People v. Silman

2016 IL App (4th) 140466-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH M. SILMAN, Defendant-Appellant.

NO. 4-14-0466

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

June 15, 2016

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from Circuit Court of Adams County

No. 13CF127

Honorable William O. Mays, Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court.

Presiding Justice Knecht and Justice Appleton concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed defendant's convictions and sentence, rejecting his claims that (1) his stipulated bench trial was tantamount to a guilty plea and (2) the State's evidence was insufficient to prove his guilt. The appellate court, however, vacated the trial court's imposition of a public defender fee.

¶ 2 Following a May 2014 stipulated bench trial, the trial court convicted defendant, Kenneth M. Silman, of possession of pseudoephedrine (a methamphetamine precursor) while having a previous conviction under the Methamphetamine Control and Community Protection Act (720 ILCS 646/120(a) (West 2012)). The court then imposed a prison sentence of one year.

¶ 3 Defendant appeals, arguing that (1) his conviction must be reversed because his stipulated bench trial was tantamount to a guilty plea, and, as a result, the trial court was required to, but did not, admonish him under Illinois Supreme Court Rule 402(a) (eff. July 1, 2012); (2) the State failed to prove him guilty beyond a reasonable doubt; and (3) the court erred by impos- ing a $600 public defender fee without conducting a hearing to determine his ability to pay the fee.

¶ 4 For the reasons that follow, we (1) affirm defendant's conviction and sentence and (2) vacate outright the trial court's imposition of a public defender fee.

¶ 5 I. BACKGROUND

¶ 6 A. The State's Charges, the Appointment of Counsel,

and Defendant's Motion To Dismiss

¶ 7 In March 2013, the State charged defendant with two counts of possession of pseudoephedrine (a methamphetamine precursor) while having a previous conviction for an offense under the Act.

¶ 8 Later that month—after the trial court continued defendant's case twice to allow him time to hire private counsel—defendant informed the court that he was unable to retain private counsel. The court then informed defendant as follows:

"[The court is] going to appoint you counsel, since you've had time to hire one. You've been unable to do it, but it looks like you can afford one. So, to keep this case moving, [the court is] going to appoint you counsel."

The court then informed defendant that "[y]ou could be ordered to repay the county and if—and would be ordered to repay the county for the services of your public defender."

¶ 9 In October 2013, defendant filed a motion to dismiss the State's charges. In his motion, defendant acknowledged that (1) in July 2009, he had been convicted of an offense under the Act, and (2) in September 2012, the legislature enacted section 120(a) of the Act. Defendant alleged that because he was unaware that section 120(a) of the Act applied to him when, in January 2013, he purchased the pseudoephedrine at issue, section 120(a) of the Act was an expost facto law. See Black's Law Dictionary 601 (7th ed. 1999) (defining an ex post facto law as a "law that applies retroactively *** in a way that negatively affects a person's rights, as by criminalizing an action that was legal when it was committed").

¶ 10 Following a February 2014 hearing, the trial court denied defendant's motion, finding, in pertinent part, that (1) ignorance of the law was not a defense, and (2) defendant was not entitled to notice about the enactment of section 120(a) of the Act.

¶ 11 B. Defendant's Stipulated Bench Trial

¶ 12 During a February 2014 pretrial hearing, defendant presented a signed jury trial waiver to the trial court and confirmed orally his intent to waive a jury trial and, instead, proceed to a stipulated bench trial on the State's charges. At an April 2014 hearing, the following exchange occurred concerning the instant case, Adams County case No. 13-CF-127, and another case, Adams County case No. 13-CF-762 (case No. 13-CF-762 is not at issue in this appeal):

"[DEFENDANT'S COUNSEL]: Your honor, I think we need to schedule a plea and sentencing instanter. These [two] cases are mandatory prison and we have a negotiation worked out. ***

[THE STATE]: *** Your honor, *** we're doing a stipulated bench trial by facts on *** case [No. 13-CF-127] so that [defendant] has the right to appeal it if that were to ever happen. And then on *** case [No. 13-CF-762], [defendant will] be entering a plea of guilty ***. ***

[DEFENDANT'S COUNSEL]: That's correct."

¶ 13 At a May 27, 2014, stipulated bench trial, the trial court confirmed its understand-ing of what was about to occur, as follows:

"THE COURT: *** [The court's] understanding is—and we're going to talk about how we're going to do all of this in a minute—is that *** on [case No. 13-CF-127], *** a factual basis is going to be given, and, in effect, [the court is] going to find [defendant] guilty of that offense and sentence you on that one. All right?

[DEFENDANT]: Yes, sir."

¶ 14 Immediately thereafter, defendant's stipulated bench trial began. After the State confirmed it was prosecuting count I only, the following exchange occurred:

"THE COURT: [Defense counsel], your agreement is that it's now set for bench trial, and [the State] is going to give a factual basis. And you are going to stipulate that the [State] could prove that evidence and then not offer any evidence; is that correct?

[DEFENDANT'S COUNSEL]: That's correct ***.

THE COURT: *** [F]actual basis ***.

[THE STATE]: *** [If] this matter *** went to a jury trial or bench trial and certainly as a stipulated bench trial, [the State] would present testimony from several witnesses including [police officers] of the West Central Illinois Task Force.

Inspector [Tom] Picket would indicate that [defendant's] name was run through the *** national pseudoephedrine purchase logs [and defendant's] name came up. *** [The State] would pre-sent a certified copy of [defendant's] conviction for unlawful possession of methamphetamine. That conviction [took] place in 2009 [in Adams County case No.] 09-CF-300. In that case[, defendant] was sentenced to the Department of Corrections.

[On January 27, 2013, defendant]—and representatives of Walgreens would verify this—presented [identification (ID)] for the purchase of [a] pseudoephedrine-based product *** in Quincy, Adams County, Illinois. [Defendant] bought one box on that date. That purchase was video recorded, and Master Sergeant Pat Frazier would testify that he obtained that footage. [Frazier] reviewed [the recording] and could identify [defendant] as the individual who purchased the pseudoephedrine pills, who presented a valid *** State of Illinois ID [card] ***.

THE COURT: *** [Defense counsel], you are stipulating that the [State] could present that evidence, and further, that *** you and [defendant] do not choose to present any evidence contradicting any of that; is that correct?

[DEFENDANT'S COUNSEL]: That's correct ***.

THE COURT: All right. Is that all correct, [defendant]?

[DEFENDANT]: Yes, sir.

THE COURT: *** Based on the factual basis and the statements of *** defendant and counsel, [the court] would then, therefore, enter a finding of guilty of the offense of *** possessionof pseudoephedrine in *** [case No.] 13-CF-127.

* * *

THE COURT: *** [I]s there an agreement regarding the sentence ***.

[THE STATE]: Yes ***. One year minimum sentence.

THE COURT: Is that correct, [defense counsel]?

[DEFENDANT'S COUNSEL]: It is ***."

¶ 15 After confirming with defendant that he was waiving his right to a presentence investigation report and opting, instead, to be sentenced immediately, the trial court sentenced defendant to one year in prison. That same day, the court entered an order imposing, in pertinent part, a $600 public defender fee.

¶ 16 This appeal followed.

¶ 17 II. ANALYSIS

¶ 18 Defendant argues that (1) his conviction must be reversed because his stipulated bench trial was tantamount to a guilty plea, and, as a result, the trial court was required to, but did not, admonish him under Rule 402(a); (2) the State failed to prove him guilty beyond a reasonable doubt; and (3) the court erred by imposing a $600 public defender fee without conducting a hearing to determine his ability to pay the fee. We consider defendant's claims, in turn.

¶ 19 A. Defendant's Stipulated Bench Trial

¶ 20 Defendant argues that his conviction must be reversed because his stipulated bench trial was tantamount to a guilty plea, and, as a result, the trial court was required to, but did not, admonish him under Rule 402(a). We disagree.

¶ 21 "A stipulated bench trial *** provides a defendant the benefits and convenienceof a guilty plea, yet preserves any pretrial objections ***for appellate review. " People v. Harris, 2015 IL App (4th) 140696, ¶ 32, 32 N.E.3d 211. "Courts recognize two types of stipulated bench trials: one in which the defendant stipulates to the evidence but does not stipulate to his or her guilt; and the other where the defendant stipulates to the sufficiency of the State's evidence to convict." People v. Weaver, 2013 IL App (3d) 130054, ¶ 18, 2 N.E.3d 621.

¶ 22 "Where a stipulated bench trial is tantamount to a guilty plea, the trial court must admonish the defendant pursuant to Illinois Supreme Court Rule 402(a) ***." People v. Campbell, 2015 IL App (3d) 130614, ¶ 15, 40 N.E.3d 756. A stipulated bench trial is tantamount to a guilty plea when the entirety of the State's case is presented by stipulation and the defendant (1) does not preserve a defense or (2) stipulates that the evidence is sufficient to convict. Weaver, 2013 IL App (3d) 130054, ¶ 19, 2 N.E.3d 621. "[I]f the stipulation 'includes a statement that the evidence is...