Appeal from Circuit Court of Champaign County. No. 92CF2267. Honorable John G. Townsend, Judge Presiding.
Released for Publication August 24, 1994.
Honorable Robert J. Steigmann, J., Honorable Carl A. Lund, J., Honorable Frederick S. Green, J.
The opinion of the court was delivered by: Steigmann
JUSTICE STEIGMANN delivered the opinion of the court:
In January 1993, a jury found defendants, Calvin L. Dorris, Jr., and Keith L. Cooper, guilty of possession with intent to deliver more than one gram of a controlled substance within 1,000 feet of public housing property (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1407(b)(1)). The trial court later sentenced Dorris to six years in prison and Cooper to 10 years in prison. Defendants appeal, arguing that the statute enhancing the offense when committed within 1,000 feet of public housing property, as here, was not intended to apply where the property was scattered-site housing, vacant, and under construction.
The facts pertaining to defendants' appeal are essentially as follows. In September 1992, defendants sold an undercover police officer less than one gram of crack cocaine. The sale took place approximately 500 feet from a scattered-site public housing unit in Champaign, Illinois. However, the building was then vacant and undergoing reconstruction, and would not be ready for residential use for several months. After the sale, other police officers arrived at the scene of the sale, arrested defendants, and searched them. The officers found an additional 3.2 grams of crack cocaine on Dorris and 1.1 grams on Cooper. Based upon this evidence, the jury found both defendants guilty of possession with the intent to deliver more than1 gram of a controlled substance within 1,000 feet of public housing property.
Section 407(b)(1) of the Illinois Controlled Substances Act (Act) provides that possession with intent to deliver more than 1 but less than 15 grams of a controlled substance "within 1,000 feet of the real property comprising any * * * residential property owned, operated and managed by a public housing agency" is a Class X felony. (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1407(b)(1).) Without this enhancing factor, this offense-the possession with the intent to deliver the same amount of a controlled substance containing cocaine-is a Class 1 felony. (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401(c)(2).) The issue before this court, therefore, is whether "residential property" as used in section 407(b)(1) of the Act includes scattered-site public housing that is unoccupied and under construction at the time of the sale. This is apparently a question of first impression, and we hold that such housing comes within the term "residential property" as it is used in section 407(b)(1) of the Act.
Initially, we note that the Supreme Court of Illinois recently upheld the constitutionality of section 407 of the Act. ( People v. Shephard (1992), 152 Ill. 2d 489, 498-503, 605 N.E.2d 518, 523-25, 178 Ill. Dec. 724.) However, the court did not consider whether that section applied under these circumstances.
In examining the term "residential property" as used in section 407(b)(1) of the Act, we find analogous the law regarding the definition of a dwelling in the residential burglary statute. In order to commit residential burglary, the building burglarized must be a dwelling. (Ill. Rev. Stat. 1991, ch. 38, par. 19-3(a).) In People v. Silva (1993), 256 Ill. App. 3d 414, 420, 628 N.E.2d 948, 952, 195 Ill. Dec. 484, the court found that an unoccupied garden-level apartment undergoing renovation constituted a dwelling. The court considered that the building's owner intended to rent the apartment after remodeling the premises, and rejected the defendant's argument that the apartment's being vacant for seven months prevented it from being a dwelling. Silva, 256 Ill. App. 3d at 420-21, 628 N.E.2d at 952-53.
In People v. Pearson (1989), 183 Ill. App. 3d 72, 74, 538 N.E.2d 1202, 1203, 131 Ill. Dec. 646, the court also considered whether an unoccupied residence constituted a dwelling. At the time of the burglary, nobody lived in the residence, and the defendant argued that it therefore could not be a dwelling under the residential burglary statute. However, the court disagreed and held that a dwelling is simply a building with an identifiable owner or occupant who intends to reside in the building within a reasonable period of time. Accordingly, the court deemed irrelevant that a new tenant had not yet moved into the building. Pearson, 183 Ill. App. 3d at 74, 538 N.E.2d at 1203.
In this case, the housing unit was undergoing construction and renovation at the direction of its owner, the Champaign County Public Housing Authority. Thus, no one lived there at the time of this offense. However, the building's owner clearly intended it to be used as a residence upon completion of the construction. That the building happened to be vacant at the time of the offense is merely a fortuitous circumstance, ...