Appeal from the Circuit Court OF ILLINOIS, of Lake County. No. 08-CM-8158 Honorable Helen S. Rozenberg, Judge, Presiding.
The opinion of the court was delivered by: Justice Bowman
JUSTICE BOWMAN delivered the judgment of the court, with opinion. Justices Zenoff and Birkett concurred in the judgment and opinion.
¶ 1 Following a stipulated bench trial, defendant, Daniel Carreon, was convicted of possession of drug paraphernalia (720 ILCS 600/3.5(a) (West 2008)) and possession of cannabis (720 ILCS 550/4(a) (West 2008)). The trial court imposed 1 year of court supervision, 20 hours of public service, 4 hours of substance abuse counseling, and various fines and fees. On appeal, defendant contends that (1) his conviction of possession of drug paraphernalia should be reversed because a cigar does not constitute drug paraphernalia under the statute, and (2) certain fines and fees should be vacated or reduced. For the reasons that follow, we reverse defendant's conviction of possession of drug paraphernalia, vacate the public-defender fee and remand for a hearing on defendant's ability to pay, vacate the performance-enhancing-substance fee, and award defendant a $5 credit against the mental-health-court fee.
¶ 3 Prior to trial, defendant moved to suppress the evidence seized during a search of his vehicle. At the hearing on the motion to suppress, Officer Patrick Murray of the Round Lake Beach police department testified that during his search of defendant's vehicle he located cannabis and a "pipe." The trial court denied defendant's motion to suppress and subsequent motion to reconsider.
¶ 4 At trial, the parties stipulated that, if called to testify, Murray would testify as he did at the hearing on defendant's motion to suppress. In addition, the parties stipulated that Murray would testify that defendant admitted to Murray that he possessed the cannabis and cigar located in the truck during Murray's search. When questioned by the trial court if the pipe and cigar were the same thing, the assistant State's Attorney clarified that it was a cigar that was found in defendant's truck. The parties further stipulated that laboratory tests confirmed that the substance found in the truck tested positive for cannabis and that the cigar tested positive for traces of cannabis. With respect to whether the cigar constituted drug paraphernalia, the following colloquy occurred:
"THE COURT: And the stipulation is that the cigar constituted drug paraphe[r]nalia as defined by the statute?
MR. TYER [assistant State's Attorney]: The officer would testify to that as well as within his training and experience that those kinds of cigars containing cannabis are often used to ingest cannabis in a pipe.
MR. RADOSEVICH [defense attorney]: And we'd further stipulate that according to the laboratory report which we're stipulating to, the cigar weighed 1.1 grams, had plant material in it, and there's a finding that that cigar contained cannabis. So that it's clear we're stipulating to the testimony from the officer would be as it was on January 21st at the motion to suppress hearing and then what you just heard from the state's attorney and as modified by me."
Based on the evidence, the trial court found defendant guilty of possession of drug paraphernalia and possession of cannabis. The trial court imposed 1 year of court supervision, 20 hours of public service, 4 hours of substance abuse counseling, and various fines and fees. The various fines and fees included a $250 public-defender fee, a $50 performance-enhancing-substance fee, and a $10 mental-health-court fee.
¶ 5 Defendant brought this timely appeal.
¶ 7 On appeal, defendant initially contends that his conviction of possession of drug paraphernalia should be reversed because a cigar, as a matter of law, is not drug paraphernalia under the relevant statute. The State argues, however, that defendant is not entitled to raise this issue on appeal because he stipulated in the trial court that the cigar constituted drug paraphernalia. We disagree with the State. A review of the record reveals that defendant stipulated that Murray, if called to testify, would testify that, in his experience, cigars are used to ingest cannabis. By stipulating that Murray would so testify, defendant did not also stipulate that a cigar, even if used to ingest cannabis, ...