Appeal from the Circuit Court of Du Page County. No. 02--CF--967 Honorable Kathryn E. Creswell Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Hutchinson
Following a bench trial, defendant, Marcella R. Miles, was convicted of the offense of possession of a counterfeit credit card (720 ILCS 250/16 (West 2002)) and sentenced to five years' imprisonment. On appeal, defendant contends that (1) her due process rights were violated because the statute under which she was convicted contains an unconstitutional mandatory presumption of intent, and (2) the statutory penalty under which she was sentenced is impermissibly disproportionate to the seriousness of the offense. We reverse and remand.
At trial the State presented evidence establishing that on March 29, 2002, Naperville police officer Brian Cunningham was contacted by Detective John McAnally regarding a credit card fraud investigation at a retail establishment near Route 59 in Naperville. McAnally asked Cunningham to maintain surveillance of a Dodge Ram van and its occupants, one of whom was defendant. During his surveillance, Cunningham observed one of the other occupants, the driver, get out of the van and walk to the edge of a parking lot. The driver went to a landscaped area, moved a rock and some mulch, and retrieved a white item.
Another officer effectuated a traffic stop of the van. As Cunningham approached the van, he observed defendant move toward the rear of the vehicle and observed her "stuff" a white plastic bag with blue lettering into a hole in the door panel. Cunningham ordered the occupants out of the vehicle and retrieved the bag that he had observed defendant put in the door panel. Inside the bag, Cunningham found six credit cards. The parties stipulated that the six credit cards retrieved from the bag in the door panel were counterfeit.
Following arguments of the parties, the trial court found defendant guilty. With respect to defendant's intent to defraud, the trial court stated:
"Why does a person have counterfeit credit cards? And that's
why the statute provides it is prima facie evidence that the person
intended to defraud if they possessed two or more cards which have
been counterfeited. And the Defendant possessed six credit cards
which were clearly counterfeited. She knowingly possessed those
After a sentencing hearing, the trial court sentenced defendant to five years' imprisonment. Defendant timely appeals.
Defendant first contends that her conviction must be reversed because the statute under which she was convicted contains an unconstitutional mandatory presumption. Section 16 of the Illinois Credit Card and Debit Card Act (the Act) (720 ILCS 250/16 (West 2002)) provides:
"A person who, with intent to defraud either a purported
issuer, or a person providing money, goods, property, services or
anything else of value, or any other person, counterfeits a
purported credit card or debit card or possesses a purported credit
card or debit card with knowledge that the card has been
counterfeited, is guilty of a Class 3 felony. The possession by a
person other than the purported issuer of 2 or more credit cards or
debit cards which have been counterfeited is prima facie evidence
that the person intended to defraud or that he knew the credit
cards or debit cards to have been so counterfeited." 720 ILCS
250/16 (West 2002).
The constitutionality of a statute is subject to de novo review (People v. Malchow, 193 Ill. 2d 413, 418 (2000)) and may be raised for the first time on appeal (People v. Wooters, 188 Ill. 2d 500, 510 (1999)). Statutes carry a strong presumption of constitutionality, and the challenging party bears the burden of rebutting that presumption. People v. Maness, 191 Ill. 2d 478, 483 (2000). This court has a duty to interpret a statute in a manner that upholds its validity and constitutionality if it can be reasonably done. People v. Fisher, 184 Ill. 2d 441, 448 (1998).
A presumption is a legal device that either permits or requires the fact finder to assume the existence of an ultimate fact, after certain predicate or basic facts have been established. People v. Pomykala, 203 Ill. 2d 198, 203 (2003), citing People v. Watts, 181 Ill. 2d 133, 141 (1998). Although due process requires that the State prove a criminal defendant guilty of every element of an offense beyond a reasonable doubt (In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1073 (1970)), the State may, in some instances, rely upon presumptions and inferences (Pomykala, 203 Ill. 2d at 203). However, these presumptions cannot relieve the State of its burden to prove each element of the offense beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979).
Presumptions are classified as either permissive or mandatory. Pomykala, 203 Ill. 2d at 203. A permissive presumption allows, but does not require, the fact finder to infer the existence of an ultimate or presumed fact upon proof of the predicate fact, without placing any burden on the defendant. Watts, 181 Ill. 2d at 142, citing County Court v. Allen, 442 U.S. 140, 157, 60 L. Ed. 2d 777, 792, 99 S. Ct. 2213, 2224 (1979). A mandatory presumption, on the other hand, requires the fact finder to accept the proffered presumption. Pomykala, 203 Ill. 2d at 203. A mandatory presumption may be conclusive, i.e., irrebuttable, or it may be rebuttable. Pomykala, 203 Ill. 2d at 203. Both types, however, are per se unconstitutional. Pomykala, 203 Ill. 2d at 203-04.
In the present case, defendant argues that the second sentence of section 16 creates a mandatory presumption of intent to defraud based solely on the possession of two or more counterfeit credit cards. The State counters that the second sentence is a permissive presumption because there is no restraint on the fact finder's ability to accept or reject the presumption and because the facts giving rise to the presumption are only evidence of the intent to defraud to be considered with the other evidence presented ...