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04/20/95 PEOPLE STATE ILLINOIS v. EDNA MAE FARMER

April 20, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT AND CROSS-APPELLEE,
v.
EDNA MAE FARMER ET AL., APPELLEES (PEGGY JUNE MYERS, APPELLEE AND CROSS-APPELLANT).



The Honorable Justice Nickels delivered the opinion of the court:

The opinion of the court was delivered by: Nickels

JUSTICE NICKELS delivered the opinion of the court:

These four consolidated appeals by the State present the common issue of the constitutionality of the sentencing provisions imposing felony penalties for the offense of possessing contraband in a penal institution (720 ILCS 5/31A-1.1(b) (West 1992)). By cross-appeal, defendant Peggy June Myers challenges the constitutionality of the provisions imposing felony penalties for the offense of bringing contraband into a penal institution (720 ILCS 5/31A-1.1(a) (West 1992)).

BACKGROUND

In unrelated prosecutions in the circuit court of Livingston County, defendants Myers (Nos. 76154 & 76155), Edna Mae Farmer (No. 76152), Mary Henry (No. 76153) and Loretta Flores (No. 76272) were each charged with one count of bringing contraband into a penal institution (720 ILCS 5/31A-1.1(a) (West 1992)) and one count of possessing contraband in a penal institution (720 ILCS 5/31A-1.1(b) (West 1992)). The records of the proceedings below reflect that the defendants were charged after each allegedly visited either the Pontiac Correctional Center or the Dwight Correctional Center, where they were subjected to routine searches for contraband. Cannabis was allegedly discovered as a result of the searches of defendants Myers and Henry. A weapon, namely a knife, was allegedly discovered during a search of defendant Farmer. A search of defendant Flores allegedly resulted in the discovery of phencyclidine (PCP).

In the case of People v. Myers (Cir. Ct. Livingston Co.), No. 93-CF-120, the defendant moved for the dismissal of both of the charges against her on the basis that the felony penalties prescribed for the offenses of possessing contraband in a penal institution and bringing contraband into a penal institution were constitutionally impermissible. The trial court denied defendant Myers' motion to dismiss the charge of bringing contraband into a penal institution, but granted the motion to dismiss the charge of possessing contraband in a penal institution. The trial court reasoned that while the offense of bringing contraband into a penal institution required a knowing act, possessing contraband in a penal institution was an absolute liability offense. The trial court ruled that the applicable felony penalty was excessive punishment for an offense for which no culpable mental state is required. In its written order dismissing the charge, the court ruled that the applicable sentencing provision violated State and Federal equal protection and due process guarantees (Ill. Const. 1970, art. I, § 2; U.S. Const., amend. XIV), the proportionate penalties clause of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 11) and the eighth amendment to the United States Constitution (U.S. Const., amend. VIII).

Thereafter, prior to trial in People v. Farmer (Cir. Ct. Livingston Co.), No. 93-CF-129, and People v. Flores (Cir. Ct. Livingston Co.), No. 93-CF-108, the trial court similarly declared that the applicable felony penalties for the offense of possessing contraband in a penal institution were unconstitutional. In People v. Henry (Cir. Ct. Livingston Co.), No. 93-CF-83, the court declared the applicable sentencing provision to be unconstitutional on the date set for sentencing of defendant Henry, who had already been found guilty of possessing contraband in a penal institution but not guilty of bringing contraband into a penal institution at a bench trial. The State appealed the trial court's rulings directly to this court pursuant to Supreme Court Rule 603 (134 Ill. 2d R. 603). Defendant Myers has taken a cross-appeal from the trial court's order denying her motion to dismiss the charge bringing contraband into a penal institution. We consolidated the State's appeals and defendant Myers' cross-appeal. *fn1

ANALYSIS

I

At the outset, we address two procedural matter involving only defendant Myers. First, we note that defendant Myers' cross-appeal seeking review of the trial court's denial of her motion to dismiss the charge of bringing contraband into a penal institution is not properly before us. The denial of a motion to dismiss criminal charges is an interlocutory order from which, generally speaking, an appeal may not be taken. That defendant Myers seeks review by way of cross-appeal is of no consequence, since a reviewing court acquires no greater jurisdiction on cross-appeal than it could on appeal. ( People v. Miller (1966), 35 Ill. 2d 62, 68, 219 N.E.2d 475.) Accordingly, defendant Myers' cross-appeal is dismissed.

Second, we address defendant Myers' argument that the State has waived review of the trial court's ruling in her case. During the proceedings below, the State failed to raise any argument in response to defendant Myers' motion to dismiss. Defendant Myers asserts that we should affirm the trial court's ruling on the basis of the State's waiver, and need not reach the merits of the constitutional issue with respect to her case. The waiver rule is one of administrative convenience rather than jurisdiction, and the goals of obtaining a just result and maintaining a sound body of precedent may sometimes override considerations of waiver. ( People v. Bailey (1994), 159 Ill. 2d 498, 506, 203 Ill. Dec. 459, 639 N.E.2d 1278.) We agree with the State that relaxation of the waiver rule is appropriate here. Four cases presenting the same constitutional issue are currently before this court, but only defendant Myers claims the benefit of a general waiver by the State. Since we must decide the constitutional issue in the remaining cases, for us to refrain from applying that decision to Myers would neither promote the interests of administrative convenience nor lead to a just result.

II

Turning to the merits of the State's appeals, section 31A-1.1 of the Criminal Code of 1961 (Code) (720 ILCS 5/31A-1.1 (West 1992)) provides, in pertinent part:

"(a) A person commits the offense of bringing contraband into a penal institution when he knowingly and without authority of any person designated or authorized to grant such authority (1) brings an item of contraband into a penal institution or (2) causes another to bring an item of contraband into a penal institution or (3) places an item of ...


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