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                              Appellate Court                            Date: 2017.07.24
                                                                         14:38:12 -05'00'




                   People v. Brace, 2017 IL App (4th) 150388



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           CASEY L. BRACE, Defendant-Appellant.



District & No.    Fourth District
                  Docket No. 4-15-0388



Filed             May 26, 2017



Decision Under    Appeal from the Circuit Court of Adams County, No. 14-CF-143; the
Review            Hon. William O. Mays, Judge, presiding.



Judgment          Affirmed.


Counsel on        Michael J. Pelletier, Jacqueline L. Bullard, and Susan M. Wilham, of
Appeal            State Appellate Defender’s Office, of Springfield, for appellant.

                  Gary L. Farha, State’s Attorney, of Quincy (Patrick Delfino, David J.
                  Robinson, and Timothy J. Londrigan, of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.



Panel             PRESIDING JUSTICE TURNER delivered the judgment of the court,
                  with opinion.
                  Justices Harris and Pope concurred in the judgment and opinion.
                                            OPINION

¶1       In January 2015, defendant, Casey L. Brace, pleaded guilty to the offense of unlawful
     possession of methamphetamine precursors without a prescription while having a previous
     methamphetamine conviction. In March 2015, the trial court sentenced her to one year in
     prison. In April 2015, defendant filed a motion to withdraw her guilty plea, which the court
     granted. In a May 2015 stipulated bench trial, the court found defendant guilty and reimposed
     the one-year sentence.
¶2       On appeal, defendant argues the State’s evidence at her stipulated bench trial failed to
     prove a necessary element of the charged offense. We affirm.

¶3                                       I. BACKGROUND
¶4       In March 2014, the State charged defendant by information with one count of unlawful
     possession of methamphetamine precursors without a prescription under section 120 of the
     Methamphetamine Control and Community Protection Act (Act) (720 ILCS 646/120 (West
     2014)). Therein, the State alleged she knowingly purchased or possessed products containing
     pseudoephedrine without a prescription and she had been previously convicted of the offense
     of unlawful possession of methamphetamine in June 2006.
¶5       In July 2014, defendant filed a motion to dismiss, claiming she was never made aware
     that, given her previous conviction, her purchase or possession of pseudoephedrine was
     illegal. Defendant argued the law prohibiting possession of pseudoephedrine without a
     prescription by individuals with another conviction under the Act “should be considered to
     be ex post facto.” In September 2014, the trial court denied the motion.
¶6       In January 2015, defendant pleaded guilty in return for a sentencing cap of three years.
     The State’s factual basis was as follows:
                 “Your Honor, if this matter had proceeded to trial the People would present a
             certified copy of her conviction in 06-CF-101, which was for the offense of unlawful
             possession of methamphetamine.
                 This conviction was after the effective date of the Methamphetamine Community
             Control and Protection Act, thereby making it illegal for her to purchase
             pseudoephedrine. The People would show by a number of means, numerous
             purchases of pseudoephedrine; specifically, on January 26th, 2014, her purchase of
             pseudoephedrine at Walgreens located at 18th and Broadway in Quincy, Adams
             County, Illinois. That would include a video of her being at the Walgreens store.
                 There is a copy of the receipt for her purchase of Wal-Phed D-tabs, which are a
             pseudoephedrine product. Again, we would have the NPLEx [(National Precursor
             Log Exchange)] pill logs to show that purchase, along with 18 other purchases in
             Adams County and one block, since the effective date of the statute. She also made
             110 total purchases, not only in this county, but in other counties.”
     The court accepted the State’s factual basis and defendant’s guilty plea.
¶7       In March 2015, the trial court sentenced defendant to one year in prison, with credit for
     one day served. Thereafter, defendant filed a notice of appeal. In April 2015, defendant filed
     a motion to strike the notice of appeal and withdraw her guilty plea. Defendant contended she


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       was incorrectly advised by counsel as to the effect of her plea and wished to withdraw it and
       have a bench trial.
¶8         In May 2015, the trial court granted the motion and the case proceeded by agreement to a
       stipulated bench trial. Defendant agreed she would accept the statement of facts presented at
       her plea hearing. The parties also agreed to accept the statement of facts prepared for the
       Department of Corrections, which stated as follows:
                   “Reporting date February 5, 2014, the reporting officer received from Msgt. Pat
               Frazier an NPLEx report showing that Casey Brace has purchased pseudoephedrine
               110 times and been blocked 18 times since May 19, 2010. There are 18 purchases in
               Adams County and one block. The majority of the purchases took place in Mason and
               Fulton Counties. Brace has a meth conviction 2006-CF-101. This conviction was
               possession of meth less than 5 grams. A purchase of pseudoephedrine after a meth
               conviction violates the Methamphetamine Control and Community Protection Act.
                   On March 16, 2015 the defendant was sentenced to the Department of Corrections
               for a term of 1 year for Unlawful Possession of Meth. Precursors without a
               Prescription, a Class 4 Felony.”
       The court noted it reviewed the statement of facts and found defendant guilty. The court also
       reimposed the one-year sentence. This appeal followed.

¶9                                             II. ANALYSIS
¶ 10        Defendant argues her conviction for unlawful possession of methamphetamine precursors
       without a prescription must be vacated because the State’s evidence at her stipulated bench
       trial failed to show she lacked a prescription for pseudoephedrine. We disagree.
¶ 11        “When reviewing a challenge to the sufficiency of the evidence in a criminal case, the
       relevant inquiry is whether, when viewing the evidence in the light most favorable to the
       prosecution, any rational trier of fact could have found the essential elements of the crime
       beyond a reasonable doubt.” People v. Singleton, 367 Ill. App. 3d 182, 187, 854 N.E.2d 326,
       331 (2006). However, when a defendant only “questions whether the uncontested facts were
       sufficient to prove the elements of the offense, our review is de novo.” People v. Perkins, 408
       Ill. App. 3d 752, 757-58, 945 N.E.2d 1228, 1234 (2011) (citing In re Ryan B., 212 Ill. 2d 226,
       231, 817 N.E.2d 495, 497-98 (2004)). Moreover, questions of statutory interpretation are
       reviewed de novo. People v. Campa, 217 Ill. 2d 243, 252, 840 N.E.2d 1157, 1164 (2005).
¶ 12        In the case sub judice, the trial court found defendant guilty of unlawful possession of
       methamphetamine precursors without a prescription. Section 120(a) of the Act (720 ILCS
       646/120(a) (West 2014)) is titled “Prescriptions” and provides as follows:
                “Whenever any person pleads guilty to, is found guilty of, or is placed on supervision
                for an offense under this Act, in addition to any other penalty imposed by the court,
                no such person shall thereafter knowingly purchase, receive, own, or otherwise
                possess any substance or product containing a methamphetamine precursor as defined
                in Section 10 of this Act, without the methamphetamine precursor first being
                prescribed for the use of that person in the manner provided for the prescription of
                Schedule II controlled substances under Article III of the Illinois Controlled
                Substances Act.”



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       This court has found section 120(a) of the Act requires the State to prove a defendant
       knowingly possessed a substance containing a methamphetamine precursor and had a prior
       conviction under the Act. People v. Laws, 2016 IL App (4th) 140995, ¶ 25, 66 N.E.3d 848
       (citing 720 ILCS 646/120(a) (West 2012)). Pseudoephedrine is a “[m]ethamphetamine
       precursor” as defined by the Act. 720 ILCS 646/10 (West 2014).
¶ 13        Here, the State’s factual basis at the guilty plea hearing showed defendant had a prior
       conviction for unlawful possession of methamphetamine in case No. 06-CF-101. The State
       also indicated defendant made numerous purchases of pseudoephedrine. In the agreed
       statement of facts presented at the stipulated bench trial, the evidence indicated defendant
       had a previous methamphetamine conviction and had purchased pseudoephedrine 110 times
       since May 19, 2010. According to our decision in Laws, the State’s evidence was sufficient
       to prove defendant guilty of the charged offense.
¶ 14        Defendant, however, argues the State failed to prove she lacked a prescription for the
       pseudoephedrine. Defendant contends the lack of a requisite prescription must be
       demonstrated by the State to prove the charged offense. In support of her argument,
       defendant relies on this court’s decision in People v. Ellis, 71 Ill. App. 3d 719, 390 N.E.2d
       583 (1979). In that case, the State charged the defendant with driving while his license or
       permit was suspended or revoked. Ellis, 71 Ill. App. 3d at 719, 390 N.E.2d at 584. The
       statute at issue provided criminal penalties for any person driving a motor vehicle on any
       highway of this State “at a time when his drivers license or permit or privilege so to do *** is
       revoked or suspended ***, except as may be allowed by a restricted driving permit issued
       under this Act.” Ill. Rev. Stat. 1977, ch. 95½, ¶ 6-303(a). The defendant argued the State had
       the burden of proving he did not possess a valid restricted driving permit. Ellis, 71 Ill. App.
       3d at 720, 390 N.E.2d at 584-85. This court rejected the defendant’s argument and stated as
       follows:
                    “The general rule in Illinois is that where an act is made a crime and there are
                exceptions embraced in the enacting clause creating the offense which affect the
                description of that offense, the State must allege and prove that the accused does not
                come within the exception. In other words, where the exception is descriptive of the
                offense it must be negatived in order to charge the accused with the offense. On the
                other hand, if the exception rather than being a part of the description of the offense,
                merely withdraws certain acts or persons from the operation of the statute, it need not
                be negatived, and its position in the act, whether in the same section or another part of
                the act, is of no consequence. Such exceptions are generally matters of defense.
                [Citations.] In the instant case, the exception merely withdraws persons with
                restricted driving permits from the operation of the statute and in no sense is
                descriptive of the offense.” Ellis, 71 Ill. App. 3d at 720-21, 390 N.E.2d at 585.
¶ 15        In People v. Rodgers, 322 Ill. App. 3d 199, 200, 748 N.E.2d 849, 850 (2001), the State
       also charged the defendant with violating section 6-303(a) of the Illinois Vehicle Code (625
       ILCS 5/6-303(a) (West 1998)). The defendant argued the State failed to meet its burden of
       proving he violated the statute because it failed to prove he lacked a restricted driving permit
       from another state. Rodgers, 322 Ill. App. 3d at 201, 748 N.E.2d at 850. In holding the State
       had no burden of proving the lack of an out-of-state restricted driving permit, the Second
       District stated as follows:


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               “[I]f a defendant merely drives on a public highway while his license is revoked, he
               commits what is generally a criminal act. That is, in the typical case, the commission
               of the crime does not depend on the inapplicability of the exceptions. Thus, the
               exceptions do not bear on the elements of the offense; instead, they state only that
               particular defendants (those with, e.g., restricted driving permits) are protected from
               liability. Because the exceptions merely withdraw certain persons from the scope of
               the statute, the State has no burden to disprove them.” (Emphasis in original.)
               Rodgers, 322 Ill. App. 3d at 203, 748 N.E.2d at 852.
       The Second District concluded the State was not required to prove the defendant did not have
       a restricted driving permit from another state and affirmed his conviction. Rodgers, 322 Ill.
       App. 3d at 203, 748 N.E.2d at 852.
¶ 16       In this case, section 120(a) of the Act criminalizes the knowing purchase or possession of
       a methamphetamine precursor after having been previously convicted of an offense under the
       Act. Persons with a valid prescription for the methamphetamine precursor are exempted. The
       prescription exception is not part of the body of the offense. Instead, it merely withdraws
       certain persons from the operation of the statute, i.e., those possessing a prescription for the
       drug they purchase. Thus, the exception is a matter of defense, and the State has no burden to
       disprove it. Accordingly, we find the State was not required to prove defendant did not have
       a prescription for the pseudoephedrine in her possession to establish a violation of section
       120(a) of the Act.

¶ 17                                       III. CONCLUSION
¶ 18      For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
       award the State its $75 statutory assessment against defendant as costs of this appeal.

¶ 19      Affirmed.




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