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August 9, 1995


Appeal from the Circuit Court of Saline County. No. 93-CF-142. Honorable Stephen L. Spomer, Judge, presiding.

The Honorable Justice Rarick delivered the opinion of the court: Maag, P.j., and Goldenhersh, J., concur.

The opinion of the court was delivered by: Rarick

JUSTICE RARICK delivered the opinion of the court:

Defendant, Winifred Moss, was charged in the circuit court of Saline County with unlawful delivery of cocaine (count I) and unlawful possession of contraband (cocaine) in a penal institution (count II). At the time of the offense, defendant was on electronic home detention and living at his mother's house at 724 Beggs Street. Pursuant to a written electronic home detention agreement, defendant and his mother agreed that her home was an extension of a corrections facility. The alleged offenses took place in the driveway of Randy Moss, who lived in a mobile home at 712A Beggs Street.

At trial, the evidence revealed that an informant named Ginger Jeffers was sent to buy cocaine from defendant. Jeffers testified that she went to defendant's home, where she purchased two "rocks" of cocaine from defendant with money supplied by the police. Upon arriving, she saw Nicole Crawford and Robert Bryant. She testified that she met defendant in his driveway and asked to buy two "rocks," and defendant went into the trailer and came back out with the cocaine. Officer Philip Werkmeister testified that he arranged with Jeffers for her to attempt to purchase crack cocaine from Winifred Moss. He andofficer Rob McConnell met Jeffers in a nearby cemetery, where he gave her $60 with which to purchase the cocaine. They thereupon drove to a point one block from the Winifred Moss residence. Approximately 10 minutes later, they observed Jeffers' vehicle and followed it back to the cemetery. Jeffers gave Werkmeister $10 and two bags of what was later determined to be crack cocaine. Nicole Crawford testified that on May 6, 1993, she was at the Winifred Moss residence where she saw a girl named Ginger in her car in the driveway of the Randy Moss residence. Robert Bryant testified that he observed the defendant at Herbie Moss's trailer handing something in a plastic bag to a "skinny black guy," but he did not know what it was. Randy Moss denied that Bryant had been in his trailer.

Both defendant and his mother had previously signed "Electronic Detention Host Agreements" (Agreement) wherein they agreed, inter alia, not to knowingly permit the unauthorized use of controlled substances in their residence and, most importantly, that their home was an extension of defendant's "assigned placement in a correctional facility."

Defendant was convicted on both counts.

On appeal, defendant argues first that the trial court erred in ruling that, as a matter of law, anyone on electronic detention through the Department of Corrections (Department) is in a penal institution. Specifically, the trial court ruled:

" defendant who is under sentence to the Department of Corrections *** and on the electronic detention program, as a matter of law [, is] within a penal institution for the purposes of this unlawful possession of contraband in a penal institution."

The trial court further clarified its ruling during the hearing on defendant's posttrial motion:

"The Court's ruling is that if you are in a permissible place pursuant to that [electronic home detention] agreement then you are technically in a penal institution."

Section 31A-1.1(c)(1) of the Criminal Code of 1961 defines penal institution as:

"any penitentiary, State farm, reformatory, prison, jail, house of correction, police detention area, half-way house or other institution or place for the incarceration or custody of persons under sentence for offenses, awaiting trial or sentence for offenses, under arrest for an offense, a violation of probation, a violation of parole, or a violation of mandatory supervised release, or awaiting a bail setting, hearing or preliminary hearing ***." (Emphasis added.) 730 ILCS 5/31A-1.1(c)(1) (West 1992).

Citing People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 357 N.E.2d 1180, 2 Ill. Dec. 737, defendant argues that a person on electronic detentionis in constructive custody of, but not committed to, the Department. In Cannon, our supreme court held that a parolee was merely in constructive, rather than physical, custody of the Department and that section 5-8-4(f) of the Unified Code of Corrections (Code) did not apply to parolees. ( Cannon, 65 Ill. 2d at 371, 357 N.E.2d at 1182.) Defendant contends that a person on electronic home detention is likewise in merely constructive custody and not committed to the Department. Defendant misreads Cannon. A careful reading of Cannon demonstrates that our supreme court held section 5-8-4(f) of the Code inapplicable to parolees not because they were not "committed" to the Department but because they were not "held," a term which the court said "connotes a state or degree of physical restraint" and was inconsistent with the parolee's ...

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