Appeal from the Circuit Court of Winnebago County. 00-CF-3112 Honorable K. Craig Peterson, Judge, Presiding.
The opinion of the court was delivered by: Justice Kapala
Following a jury trial in the circuit court of Winnebago County, defendant, William G. Roberts, was convicted of one count of possession of a look-alike substance with the intent to deliver within 1,000 feet of public housing property (720 ILCS 570/407(b)(3) (West 2000)) and sentenced to 10 years and 10 months in prison. Additionally, he was ordered to pay $20 as a street value fine and $100 as a trauma center fine. Following the denial of his posttrial motions, defendant filed this timely appeal. For the following reasons, we affirm his conviction and sentence of 10 years and 10 months but reverse the imposition of the street value fine and the trauma center fine.
The facts necessary to our disposition are as follows. Rockford police officer Jason Bailey testified that on December 7, 2000, he and his partner were patrolling a Rockford public housing project in plainclothes and an unmarked squad car. After observing defendant flagging down the officers, Officer Bailey stopped the unmarked car next to defendant.
Defendant leaned close to the driver's side window and asked the officers if they wanted some "work." While asking this question, defendant reached into his right jacket pocket. Officer Bailey explained that in the drug trade vernacular the term "work" means crack cocaine.
At that point, defendant observed the radio in the car and stated the officers must be the police. The officers exited the vehicle, and Officer Bailey asked if defendant had anything illegal on his person and if he could search defendant. Defendant, after stating he was "clean," agreed to the search. Officer Bailey explained at trial that "clean" meant defendant did not possess anything illegal such as drugs or weapons. Upon searching defendant, the officers discovered a plastic bag in the jacket pocket into which defendant had earlier reached. Defendant then volunteered that the bag contained a substance made of nail glue and pancake mix designed to resemble crack cocaine. The bag contained four individually wrapped baggies of a rock-like substance resembling crack cocaine. The officers immediately arrested defendant.
Officer Bailey performed a field test and determined the substance was not cocaine. Defendant, prior to the field test, again volunteered that the substance was not real cocaine. Following the test, defendant stated he intended to sell each rock for $5 to crack cocaine users because he had no job or income. He further admitted he was the person who made the substance contained in the baggies. Officer Bailey admitted that defendant had no other items in his possession such as a cell phone, a pager, currency, a customer list, or a weapon, which would commonly be possessed by a drug dealer.
Officer Bailey's partner corroborated Bailey's version of the events, including defendant's statement that the baggies contained fake cocaine and that defendant made the fake drugs to sell for $5 each. The parties stipulated that a lab analysis confirmed that the contents of the baggies contained no controlled substance. The undisputed evidence also established that the distance between where defendant was arrested and the public housing property was less than 1,000 feet.
Defendant, testifying in his own behalf, stated that he had purchased five baggies of a substance supposedly containing cocaine for a total of $25. When he smoked the contents of one of the baggies but was unable to get high, he concluded the substance was fake. Defendant further testified that after he discovered the substance was fake, he observed the officers' car, which he thought was the vehicle of the drug dealer who sold him the fake substance. He then flagged down the vehicle so that he could "get what [he] paid for." He admitted he flagged down the officers' vehicle because he thought it was occupied by the person who sold him the five baggies.
Defendant denied telling the officers he was "clean." He told them the baggies probably contained nail glue and pancake mix but he was unsure if the substance was fake. He denied stating that the reason he was going to sell the bags to drug dealers was because he needed the money. According to defendant, at the time he purchased the baggies he did not intend to sell any of the baggies but planned on smoking their contents. Officer Bailey, in rebuttal, testified that defendant never stated he was looking for the dealer who sold him the baggies.
The jury found defendant guilty of possession of a look-alike substance with intent to deliver within 1,000 feet of public housing property. Both defendant's counsel and defendant, pro se, filed posttrial motions. Neither of the posttrial motions raised any of the issues presented in this appeal. The trial court denied both posttrial motions, and defendant appealed.
Defendant's first contention is that section 407(b)(3) of the Illinois Controlled Substances Act (Act) (720 ILCS 570/407(b)(3) (West 2000)), punishing possession with intent to deliver a look-alike substance more severely than the statute governing possession with intent to deliver actual controlled substances, violates due process under the Illinois Constitution. We begin by noting that we will consider this constitutional issue even though defendant did not raise it in a posttrial motion. See People v. Cochran, 323 Ill. App. 3d 669, 676 ...