Appeal from Circuit Court of Ford County No. 98CF66 Honorable Stephen R. Pacey, Judge Presiding.
The opinion of the court was delivered by: Justice Myerscough
In November 1998, the State charged defendant, Jackie Williamson, with burglary and criminal damage to property over $300. 720 ILCS 5/19-1(a), 21-1(1)(a) (West 1998). At the State's request, the trial court dismissed the criminal damage to property charge. In March 1999, a jury found defendant guilty of burglary. In April 1999, the trial court denied defendant's posttrial motion; sentenced defendant to 15 years' imprisonment, to run consecutively to the sentence in another case (People v. Williamson, No. 98-CF-1441 (Cir. Ct. Will Co.)); ordered him to pay a $1,000 public defender fee, $600 court costs, and $2,000 restitution to Birkey's Farm Store (Birkey's); and directed the Department of Corrections (DOC) to withhold 50% of defendant's monthly corrections income to apply to the aforementioned costs and fees.
On appeal, defendant argues that (1) the trial court erred in not suppressing evidence obtained during an illegal search; (2) he was denied effective assistance of counsel; (3) the trial court erred in not holding a hearing on defendant's ability to pay public defender fees; (4) the trial court erred when it ordered DOC to withhold 50% of any income defendant earned while imprisoned to satisfy restitution and costs; and (5) the discretionary consecutive sentencing provision of section 5-8-4(b) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-8-4(b) (West 1998)) violates defendant's rights to due process and trial by jury. We affirm defendant's conviction and consecutive sentence, vacate the DOC wages withholding order, vacate the recoupment order for a hearing thereon, and remand.
On November 2, 1998, Officer Howard Curry of the Gibson City police department was performing routine checks of local businesses and churches. At approximately 1 a.m., Curry noticed that one of the bay doors of Birkey's was ripped from its hinges and immediately called for another unit. When Officer Christopher Decker arrived, the two officers searched the building and found that one of the office windows had been broken, the cash register had been pried open, and computer disks were scattered around the floor. At that point, the police contacted James Faker, general manager of Birkey's. Faker noticed that several items were missing, including Birkey's pickup.
Officer Boyd Headrick also arrived on the scene to assist in the burglary investigation. As he patrolled the area around Birkey's, Headrick noticed a silver 1985 Cadillac without any license plates parked north of Birkey's. Upon examining the vehicle, Headrick noticed the vehicle identification number did not match the license-applied-for sticker on the vehicle. He then called a wrecker service to have the car removed from the scene, and, as he was waiting for the wrecker service, the missing Birkey's pickup pulled into a nearby driveway. Headrick pulled his squad car into the driveway behind the pickup. As he exited his squad car, a man jumped out of the truck and ran. Headrick chased the man on foot but was unable to catch him.
At trial, Headrick testified that the fleeing man was of Mexican descent and wearing a large bulky-type plaid jacket. Curry testified that, on the night of the incident, Headrick reported that the suspect was a Mexican male wearing a red-checked coat. Decker testified that Headrick reported that the suspect was wearing a dark-colored, puffy-looking coat with dark-colored pants.
The officers called for a canine unit to assist in the search for the suspect. Officer Kurtis Buckley, with the trained canine, and Decker searched the area for two hours in the cold, wet weather. The officers ended up at a farmhouse where they terminated their unsuccessful search.
About an hour and a half later, the officers received a sheriff's report that a black male was walking westbound on a rural road about four miles west of the farmhouse where the officers had terminated their unsuccessful search. The report came from a school bus driver who had observed defendant trying to get into a shed and thought that was "odd and strange." Headrick, Buckley, and Decker then proceeded to the location and found defendant on foot.
At trial, Decker testified that, when he first saw defendant, defendant was in a roadway and no vehicles were around. The nearest building was a farmhouse located an eighth of a mile away. Defendant was moving toward the farmhouse and surrounding buildings. His clothing was wet, muddy, and covered with cockleburs. Headrick testified that he recognized the plaid on the inside of defendant's jacket as the plaid that he had seen earlier on the man fleeing the Birkey's pickup.
The officers stopped defendant. Decker asked defendant his name and address, arrested him, and conducted a pat-down search of defendant to make sure that defendant had no weapons. The record is unclear as to the order of the arrest and pat-down search of defendant. During the pat down, Office Decker felt and removed a Swiss army knife, which had keys and a watch attached to it by a chain. After obtaining a search warrant for the car, the officers determined that the keys belonged to the Cadillac found parked near Birkey's. Decker processed the Cadillac and discovered documents bearing defendant's name inside.
Michael Trummel, a crime-scene investigator with the Illinois State Police, processed the crime scene and the stolen pickup. He obtained shoe prints from the crime scene, one of which was on a manila envelope on the floor of Birkey's interior premises. Trummel sent all of the evidence to the Illinois State Police crime lab. At trial, Thomas Gamboe, Illinois State Police forensic scientist, explained footwear-impression analysis and testified that, based on that analysis, he found a match between the footprint left at the crime scene and the left shoe that defendant was wearing when the officers apprehended him.
At trial, defense counsel objected to Decker's testimony regarding the keys obtained during the pat-down search. The following dialogue took place:
"[PROSECUTOR]: Okay. What, if anything, did you do with those keys?
[DEFENSE COUNSEL]: [I am] going to object. I [do not] believe that [he is] entitled to testify about the keys in this particular case, your Honor.
[THE COURT]: We are resumed out of the presence of the jury. [Defense Counsel], your objection.
[DEFENSE COUNSEL]: I think this is [an] illegal search, your Honor, because the only description [we have] heard about defendant is that [he is] a Hispanic. [Defendant] is obviously not Hispanic; he is obviously black[.] [T]herefore[,] the taking of the keys is the fruit of the poisonous tree so to speak[,] and [the State] should not be allowed to go into this.
[PROSECUTOR]: Your Honor, this is the most routine of pat[-]down searches. This was either--this was done pursuant to his arrest and all of the circumstances in this case; the burglary had been committed, a person had fled, this person matched to some extent the description obtained by officers conducting the investigation in this case, was found a short distance away[;] after a pat[-]down search was conducted for weapons, the keys were obtained, and this is a reasonable extension of the investigation of this matter. [The keys are] evidence, and they were properly taken into evidence.
[DEFENSE COUNSEL]: At this point the officers are basically taking a guy into custody because [he is] the wrong color in the wrong town at the wrong time. This is some five miles away from the place where the burglary took place, and [he does not] answer the ...