Appeal from the Circuit Court of Lake County. No. 97--CF--2622 Honorable Stephen E. Walter, Judge, Presiding.
The opinion of the court was delivered by: Justice Colwell
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Defendant, Kenneth D. Daniels, was convicted of unlawful delivery of less than one gram of a controlled substance (cocaine) on a public way within 1,000 feet of the real property comprising a church (720 ILCS 570/401(d) (West 1996); 720 ILCS 407(b)(2) (West Supp. 1997)). On appeal, defendant argues that section 407(b) of the Illinois Controlled Substances Act (Act) (720 ILCS 570/407(b) (West Supp. 1997)), the statute that contains the provision enhancing the penalty for delivery of a controlled substance near a place of worship, violates the establishment clause of the first amendment to the United States Constitution (U.S. Const., amend. I) as well as the comparable provision of the Illinois Constitution (Ill. Const. 1970, art. I, §3).
In addition, defendant asks us to determine whether, for purposes of a conviction under section 407(b)(2) of the Act, the State must prove that (1) he knew that he was making a drug delivery on a public way within 1,000 feet of real property comprising a place of worship and (2) worship services were in session or that the church in question was otherwise occupied at the time of the offense. For the reasons that follow, we affirm.
Section 401(d) of the Act (720 ILCS 570/401(d) (West 1996)) provides that it is unlawful for any person to knowingly deliver less than one gram of certain controlled substances. A violation of section 401(d) is classified as a Class 2 felony, which is punishable by a term of imprisonment not less than three years and not more than seven years. 730 ILCS 5/5--8--1(a)(5) (West 1996). Section 407(b)(2) of the Act enhances the classification of a section 401(d) offense to a Class 1 felony if the violation occurs "on any public way within 1,000 feet of the real property comprising any church, synagogue, or other building, structure, or place used primarily for religious worship." 720 ILCS 570/407(b)(2) (West Supp. 1997). A Class 1 felony is punishable by a term of imprisonment of not less than 4 years and not more than 15 years. 730 ILCS 5/5--8--1(a)(4) (West 1996).
On October 1, 1997, the State filed a three-count indictment against defendant. Count I charged defendant with unlawful delivery of less than one gram of a controlled substance (cocaine) on a public way within 1,000 feet of real property comprising a church. 720 ILCS 570/401(d) (West 1996); 720 ILCS 570/407(b)(2) (West Supp. 1997). Count II charged defendant with unlawful delivery of less than one gram of a controlled substance (cocaine). 720 ILCS 570/401(d) (West 1996). Count III charged defendant with unlawful possession of less than 15 grams of a controlled substance (cocaine). 720 ILCS 570/402(c) (West 1996).
Prior to trial, the State filed a motion in limine seeking to prohibit defendant from arguing that the State was required to prove as a necessary element of the offense charged in count I that defendant knew or was aware of his proximity to the church at the time of the offense. Relying on People v. Pacheco, 281 Ill. App. 3d 179 (1996) (holding that in prosecution for unlawful delivery of a controlled substance within 1,000 feet of a school, the State was not required to prove defendant's knowledge of the proximity of the school), the trial court granted the State's motion.
Following a pretrial hearing, the court denied defendant's motion to declare unconstitutional section 407(b) of the Act. Initially, the court declined defendant's invitation to find the statute ambiguous. The court also applied a three-part test established by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971), to determine whether the statute violated the state or federal establishment clause. First, the court opined that the statute had a secular purpose, namely, to prevent individuals who sell drugs from preying on those who attend places of worship. Second, the court determined that the primary effect of the statute was to protect those attending religious institutions. Finally, the court concluded that there was no excessive entanglement with religion.
The jury returned a verdict of guilty on all three counts. The circuit court of Lake County entered judgment only on count I and sentenced defendant to a term of 4½ years' imprisonment.
Defendant asserts that the enforcement of the enhancement factor in this case violates his rights under the establishment clause of the first amendment to the United States Constitution (U.S. Const., amend. I) and the comparable provision of the Illinois Constitution (Ill. Const. 1970, art. I, §3). Specifically, defendant claims that section 407(b) favors those who attend religious services over nonbelievers, "conveying the message that non-believers [sic] are less than full members of the community." Defendant also suggests that the enhancement factor favors religions that hold services in fixed places of worship over religions that do not.
We begin our analysis with the maxim that statutory enactments carry a strong presumption of constitutionality and all doubts must be resolved in favor of a statute's validity. People v. Fisher, 184 Ill. 2d 441, 448 (1998). The party challenging a statute's validity has the burden of establishing that the statute is unconstitutional. Fisher, 184 Ill. 2d at 448. Our review of a constitutional issue is de novo. Fisher, 184 Ill. 2d at 448.
The establishment clause of the first amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion." U.S. Const., amend. I. The establishment clause is applicable to the states through the fourteenth amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 84 L. Ed. 1213, 1218, 60 S. Ct. 900, 903 (1940). The Supreme Court has interpreted the establishment clause as prohibiting the government from (1) promoting or affiliating itself with any religious organization or doctrine; (2) discriminating among persons on the basis of their religious beliefs and practices; (3) delegating a governmental power to a religious institution; and (4) involving itself too deeply in such an institution's affairs. County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 590-91, 106 L. Ed. 2d 472, 492-93, 109 S. Ct. 3086, 3099 (1989).
In Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971), the Supreme Court established a three-prong test to determine whether a statute violates the establishment clause. To pass constitutional muster, a statute must have a secular legislative purpose; the statute's principal or primary effect must be one that neither advances nor inhibits religion; and the statute must not foster an excessive entanglement with religion. Lemon, 403 U.S. at 612-13, 29 L. Ed. 2d at 755, 91 S. Ct. at 2111. A statute need contain only one of these defects to be deemed unconstitutional. Edwards v. Aguillard, 482 U.S. 578, 583, 96 L. Ed. 2d 510, 518-19, 107 S. Ct. 2573, 2577 (1987).
In resolving this issue of first impression, we find instructive two cases that addressed whether what is now section 5--5--3.2(a)(11) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5--5-- 3.2(a)(11) (West 1996)) violated the federal ...