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People v. Calvert

December 11, 2001

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOSHUA R. CALVERT DEFENDANT-APPELLANT.



Appeal from Circuit Court of Adams County No. 99CF433 Honorable Mark A. Schuering, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Steigmann

PUBLISHED

In November 1999, the State charged defendant, Joshua R. Calvert, with aggravated battery (of a police officer) (count I), possession of a controlled substance (less than 15 grams of a substance containing methamphetamine) (count II), and resisting a police officer (count III) (720 ILCS 5/12-4(b)(6), 570/402(c), 5/31-1 (West 1998)). In March 2000, a jury found defendant guilty of counts II and III and not guilty of count I.

Following an April 2000 sentencing hearing, the trial court sentenced defendant to an extended term of four years in prison on count II, based on his prior felony convictions (730 ILCS 5/5-5-3.2(b)(1) (West 1998)), and 10 months in prison on count III, with those sentences to run concurrently. The court also ordered that (1) defendant pay $1,930.30 in various fees, fines, and court costs, and (2) the Department of Corrections (DOC) withhold 50% of defendant's DOC wages and remit those funds to the Adams County circuit clerk to be applied toward the amounts due in fines and costs.

Defendant appeals, arguing that (1) the trial court (a) committed plain error by allowing the State to impeach him with his prior aggravated battery conviction without first conducting the Montgomery balancing test (see People v. Montgomery, 47 Ill. 2d 510, 516, 268 N.E.2d 695, 698 (1971)), and (b) erred by denying his motion to suppress the evidence that was found during an allegedly unlawful strip search of defendant; (2) the extended-term sentencing provision set forth in section 5-5-3.2(b)(1) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-5-3.2(b)(1) (West 1998)) is unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000); and (3) the trial court lacked the authority to order that his DOC wages be withheld and remitted to the circuit clerk. Alternatively, defendant argues that he received ineffective assistance of trial counsel when counsel failed to (1) object to the trial court's allowing the State to impeach him with his prior aggravated battery conviction without first conducting the Montgomery balancing test, and (2) specifically include in the motion to suppress evidence the claim that police officers unlawfully strip-searched defendant. We affirm in part, vacate in part, and remand with directions.

I. BACKGROUND

A. Pretrial Proceedings

In November 1999, the State charged defendant with aggravated battery of a police officer, possession of a controlled substance (less than 15 grams of a substance containing methamphetamine), and resisting a police officer.

In December 1999, defendant filed a motion to suppress evidence, alleging the following: (1) during the early morning hours of November 17, 1999, Quincy police officers stopped defendant in his truck; (2) the officers lacked probable cause to stop him; and (3) the evidence obtained by the officers as a result of the unlawful stop and subsequent search of defendant's person should have been suppressed. At a February 2000 hearing on defendant's motion, Quincy police officer Gabriel Vanderbol testified that at around 2:40 a.m. on November 17, 1999, he and Officer Anjanette Stovall saw a truck without a registration plate light traveling on 8th Street in Quincy. Vanderbol activated the light bar on his squad car and pulled the truck over. Vanderbol then approached the driver of the truck (later identified as defendant) and told him the reason for the stop. Defendant told Vanderbol that he had just purchased the truck.

Vanderbol then informed defendant that the computer check of the truck's license plates showed that the registration was suspended for lack of insurance. He asked defendant to shut off the engine and step to the rear of the truck, but defendant "just sat there." Stovall opened the passenger-side door and told defendant to get out of the truck, at which point defendant got out and walked to the rear of the truck. Defendant asked why he was under arrest, and Vanderbol again advised him that the registration was suspended. Defendant said he did not understand and showed Vanderbol his proof of insurance. Before Vanderbol could say anything else, defendant hit him in the face.

After hitting Vanderbol, defendant attempted to run away, but Vanderbol grabbed his shirt and jumped on him, knocking him to the ground. Stovall and Jeff Nevin, another police officer who arrived following the stop, then assisted Vanderbol in handcuffing defendant. The officers transported defendant to the Adams County jail, where a correctional officer strip-searched defendant and found a small bag containing a brown leafy substance in defendant's underwear. (Inside the bag, the officers found a smaller bag, which contained a white powdery substance, later determined to be 2.3 grams of methamphetamine.)

After considering the evidence and counsel's arguments, the trial court denied defendant's motion to suppress evidence.

B. Defendant's Trial

At defendant's March 2000 jury trial, Vanderbol's testimony was substantially consistent with his testimony at the hearing on the motion to suppress. In addition, Vanderbol stated that after he handcuffed defendant, he conducted a pat-down search but found nothing. He then placed defendant in his squad car and transported him to the Adams County jail. Vanderbol explained that officers routinely transport arrestees to the jail, instead of police headquarters, when they have been combative during an arrest. Although Vanderbol was present during the strip search of defendant, he did not participate in the search.

Stovall's testimony substantially corroborated Vanderbol's version of the incident. However, she acknowledged that she did not actually see defendant's fist make contact with Vanderbol's face. After transporting defendant to the jail, Stovall stood outside a holding cell while a male correctional officer strip-searched defendant.

Nevin's testimony also substantially corroborated Vanderbol's version of the incident. During the strip search, Nevin stood at the door of the holding cell while a male correctional officer conducted the search. Vanderbol and Stovall stood behind him in the hallway.

Dan Steinway, an Adams County correctional officer, testified that whenever an arrestee is going to be incarcerated at the jail, a correctional officer conducts a strip search to check for contraband and weapons. After the police officers brought defendant to the jail on the morning of the incident, Steinway and another male correctional officer took defendant into a holding cell and conducted a strip search. During the strip search, defendant first took off his shirt, shoes, and pants and handed them to the correctional officers, who inspected the clothing. As defendant was pulling down his underwear, Steinway saw a small plastic bag in the "crotch of his underwear." At Steinway's request, defendant handed him the bag.

Defendant testified on his own behalf and denied hitting Vanderbol. He stated that after Vanderbol and Stovall pulled him over and he stepped out of his truck, one of the officers grabbed his arm and he pulled away. At that point, other officers knocked him down and beat him up. Defendant also denied having a plastic bag in his underwear during the strip search.

Based on this evidence, the jury (1) found defendant guilty of possession of a controlled substance (less than 15 grams of a substance containing methamphetamine) and resisting a police officer and (2) acquitted him of ...


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