People v. Shephard

• Citation: 178 Ill.Dec. 724,605 N.E.2d 518,152 Ill.2d 489
• Decision Date: 22 October 1992
• Docket Number: No. 72085,72085
• Parties: , 178 Ill.Dec. 724 The PEOPLE of the State of Illinois, Appellant, v. O.C. SHEPHARD, a/k/a O.C. Shepherd, a/k/a O.C. Shepard, Appellee.
• Court: Supreme Court of Illinois

Page 518

605 N.E.2d 518

152 Ill.2d 489, 178 Ill.Dec. 724

The PEOPLE of the State of Illinois, Appellant, v. O.C. SHEPHARD, a/k/a O.C. Shepherd, a/k/a O.C. Shepard, Appellee.

No. 72085.

Supreme Court of Illinois.

Oct. 22, 1992.

Roland W. Burris, Atty. Gen., Springfield, Jack O'Malley, State's Atty., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, and Renee Goldfarb and Donald J. Mizerk, Asst. State's Attys., of counsel), for the People.

Rita A. Fry, Asst. Public Defender, Chicago (Timothy J. Leeming, Asst. Public Defender, of counsel), for appellee.

Justice FREEMAN delivered the opinion of the court:

Defendant, O.C. Shephard, was charged with offenses that related, inter alia, to drug possession. Prior to trial, the circuit court of Cook County ruled that a penalty enhancement statute was unconstitutional as applied in certain cases. The State appeals directly to this court (134 Ill.2d R. 603), and we reverse.

BACKGROUND

The record contains the following pertinent facts. On January 10, 1991, pursuant to a search warrant, Chicago police officers searched an apartment in a Chicago Housing Authority development located at 3919 South Federal Street. The apartment was registered to defendant and a friend. The officers found 41.16 grams of heroin and 3.42 grams of cocaine. The officers also found two shotguns and a pistol.

Defendant was charged in a four-count information with possessing between 15 and 100 grams of heroin and between 1 and 15 grams of cocaine, with the intent to deliver within 1,000 feet of Chicago Housing Authority property. (Ill.Rev.Stat.1989, ch. 56 1/2, pars. 1401(a)(1)(A), (c)(2), 1407(b).) Defendant was also charged with armed violence (Ill.Rev.Stat.1989, ch. 38, par. 33A-2) and the unlawful use of a weapon by a felon (Ill.Rev.Stat.1989, ch. 38, par. 24-1.1).

The State charged that defendant not only possessed the narcotics with the intent to deliver (Ill.Rev.Stat.1989, ch. 56 1/2, pars. 1401(a)(1)(A), (c)(2)), but also that those acts occurred within 1,000 feet of Chicago Housing Authority property (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1407(b)). Section 407 of the Act enhances the penalties for violations of section 401 when committed under various circumstances. Ill.Rev.Stat.1989, ch. 56 1/2, pars. 1401, 1407.

Prior to trial, the trial court granted defendant's motion to dismiss the enhancement charge. The court ruled that section 407(b) of the Illinois Controlled Substances Act (the Act) (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1407(b)) was unconstitutional as applied to public housing. The court found that the statute denied drug offenders the equal protection of the laws. (U.S. Const., amend. XIV; Ill. Const.1970, art. I, § 2.) The State appeals.

OPINION

I. Statutory Interpretation

Prior to addressing the issues raised on appeal, we are compelled to construe the statutory provisions that defendant was charged with violating. Several amendments to sections 401 and 407 of the Act conflict and require interpretation. We address this preliminary issue sua sponte, and we note that it does not affect our disposition of the issues raised on appeal.

As previously stated, on January 10, 1991, defendant was charged with violating sections 401(a)(1)(A) and 407(b) of the Act with respect to the heroin and sections 401(c)(2) and 407(b) with respect to the cocaine. After examining these provisions as they appeared in the 1989 Illinois Revised Statutes, we come to several conclusions.

First, based on its plain language, we conclude that section 407(b) did not enhance the heroin violation provided by section 401(a)(1)(A). At the time defendant possessed the heroin, section 407(b)(1) expressly referred to a violation of "Subsection (b) of Section 401." (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1407(b)(1).) However, defendant's possession of the heroin was made criminal by section 401(a)(1)(A). (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1401(a)(1)(A).) Thus, defendant's alleged conduct did not constitute an offense under section 407(b). Therefore, we hold that defendant was not chargeable with any violation of section 407 with respect to the possession of heroin.

Second, we conclude that a conflict exists between section 401 as amended by Public Acts 86-266 and 86-442, and section 401 as amended by Public Act 86-604. (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1401.) Public Acts 86-266 and 86-442 added to section 401 a new and different subsection (b) than had previously existed in section 401 and re-lettered the former subsections (b) through (g) thereof as subsections (c) through (h). The new subsection (b) added to section 401 by Public Acts 86-266 and 86-442 merely established fines for certain violations of subsection (a). The new section 401(c)(2), which was the former section 401(b)(2), provided essentially that a violation of section 401 through, inter alia, the possession with intent to deliver between 1 and 15 grams of any substance containing cocaine was a Class 1 felony. Pub.Act 86-266, § 1, eff. Jan. 1, 1990 (1989 Ill.Laws 1893); Pub.Act 86-442, § 1, eff. Jan. 1, 1990 (1989 Ill.Laws 2681) (both amending Ill.Rev.Stat.1989, ch. 56 1/2, par. 1401).

In contrast to Public Acts 86-266 and 86-442, Public Act 86-604 amended only, in part, the language of sections 401(a)(7) and (b)(7) as those subsections read prior to the changes made by Public Acts 86-266 and 86-442. In so doing, Public Act 86-604 repeated the remaining provisions of section 401 as they read prior to the changes made by Public Acts 86-266 and 86-442. Consequently, Public Act 86-604 did not add a new subsection (b) to section 401 and did not re-letter subsections (b) through (g) of section 401 as they read prior to the changes made by Public Acts 86-266 and 86-442. Pub.Act 86-604, § 1, eff. Jan. 1, 1990 (1989 Ill.Laws 3295) (amending Ill.Rev.Stat.1989, ch. 56 1/2, par. 1401).

The changes to section 401 made by Public Acts 86-266 and 86-442 and the changes to that section made by Public Act 86-604 conflict. Further, this conflict causes a problem in this case due to the contents of section 407(b) of the Act as it appeared at the time of the alleged offense. Section 407(b)(1) provided as follows:

"(b) Any person who violates: (1) Subsection (b) of Section 401 in any school or residential property owned, operated and managed by a public housing agency or public park, on the real property comprising any school or residential property owned, operated and managed by a public housing agency or public park or on any public way within 1,000 feet of the real property comprising any school or residential property owned, operated and managed by a public housing agency or public park is guilty of a Class X felony, the fine for which shall not exceed $500,000." (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1407(b)(1).)

Thereafter, sections 407(b)(2) through (b)(6) referred and corresponded to sections 401(c) through (g).

The problem caused by the conflicting amendments to section 401 is that if the legislature intended for the changes made by Public Acts 86-266 and 86-442 to control, the failure to simultaneously amend section 407 to correspond to section 401 would render section 407(b)(1) superfluous.

Section 407(b)(1) states essentially that a violation of section 401(b) under certain circumstances was a Class X felony. Section 407(b)(1) would be rendered superfluous because section 401(b), as amended by Public Acts 86-266 and 86-442, merely provided that certain violations of subsection (a) were subject to certain fines. Obviously, a provision that merely imposes a fine cannot be "violated." To avoid that result, we would, without any further indication of the legislature's intent, have to give effect to the amendment of section 401 by Public Act 86-604.

However, in light of the recent amendment of sections 401 and 407 by Public Act 87-754, effective September 29, 1991, we need not do so. (Pub.Act 87-754, eff. Sept. 29, 1991 (1991 Ill.Laws 3943).) When confronted with problems that arise when the legislature passes two or more bills at the same session which pertain to the same subject or amend the same statute, the ultimate question is the intent of the legislature, as in all cases of statutory construction. The entire legislative record, including acts passed at subsequent sessions, is open to ascertain the legislative intent. Once ascertained, it will be given effect. People ex rel. Dickey v. Southern Ry. Co. (1959), 17 Ill.2d 550, 554-55, 162 N.E.2d 417.

We conclude that Public Act 87-754 is a clear expression of the legislature's intent with respect to the operative contents of sections 401 and 407 of the Act at the time of the alleged offense. In Public Act 87-754, the legislature amended section 401, as amended by Public Acts 86-266 [178 Ill.Dec. 729] and 86-442, consistently with the amendment by Public Act 86-604, and thereafter deleted Public Act 86- 604. More importantly, the legislature also amended section 407 consistently with section 401 as amended by Public Acts 86-266 and 86-442. Specifically, the legislature amended section 407(b)(1) to refer to a violation of section 401(c) rather than section 401(b), and to correspond the remaining subsections of section 407 to the new subsections of section 401. In other words, sections 407(b)(2) through (b)(6) were amended to refer and correspond to sections 401(d) through (h). Ill.Rev.Stat.1991, ch. 56 1/2, pars. 1401, 1407.

The legislature has clearly expressed its intent through Public Act 87-754 with respect to the operative contents of sections 401 and 407. Further, this court has the authority to insert into a statute language omitted through legislative oversight. (People v. Chandler (1989), 129 Ill.2d 233, 253, 135 Ill.Dec. 543, 543 N.E.2d 1290.) Therefore, we hold that defendant was chargeable, and was properly charged, with a violation of section 407(b)(1) in addition to section 401(c)(2) with respect to the possession of cocaine.

II. Constitutionality of Section 407(...