                                    2018 IL App (1st) 152967

                                                                                FIRST DISTRICT
                                                                                  Second Division
                                                                                    June 29, 2018

                                         No. 1-15-2967

THE PEOPLE OF THE STATE OF ILLINOIS,                        )   Appeal from the
                                                            )   Circuit Court of
          Plaintiff-Appellee,                               )   Cook County.
                                                            )
     v.                                                     )   No. 15 CR 8642
                                                            )
DELFONTE MILLER,                                            )   Honorable
                                                            )   Rickey Jones,
          Defendant-Appellant.                              )   Judge, presiding.

          PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion.
          Justice Hyman concurred in the judgment and opinion.
          Justice Pucinski specially concurred, with opinion.

                                             OPINION

¶1        Following a bench trial, defendant Delfonte Miller was found guilty of possession of a

controlled substance and sentenced to one year in prison. On appeal, he contends that he was not

proven guilty, beyond a reasonable doubt, of possession of a controlled substance when the

arresting officer did not see “exactly” what was in his hand and the contraband was recovered

from a trash pile. He also contends that his mittimus must be corrected to accurately reflect the

offense of which he was convicted and challenges the assessment of certain fines and fees. We

affirm Miller’s conviction and correct his mittimus and fines and fees order.

¶2        On the afternoon of May 9, 2015, Chicago police officer Esnaf Husic observed Miller in

an abandoned building. Miller was “crouched down” near the entrance to the back of the

building by a set of stairs. Husic could see Miller because the door to the building was gone.

Husic observed as Miller reached behind the stairs with his right hand. Miller was holding a
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small item, but Husic could not tell “exactly” what it was. At this point, Miller “simultaneously”


stood up, looked in Husic’s direction, and “took off running.” When Miller’s hand moved away


from the stair area, it was empty. Husic pursued Miller, losing sight of him briefly, and


eventually took him into custody. After securing Miller, Husic returned to the abandoned house.


Two to three minutes had passed. Husic looked at the place where he saw Miller reach and


observed nine Ziploc baggies containing a white powdery substance, which he suspected was


heroin. He saw “garbage everywhere” and described the baggies as “just laying there.” Husic 


collected the baggies, inventoried them, and sent them for processing. 


¶3       The parties stipulated that the contents of seven of the nine baggies tested positive for the


presence of heroin and weighed 3.4 grams.


¶4       According to Miller, he was in an abandoned house and ran away when he noticed police


officers. He denied having drugs in his hand. Miller identified a photograph of the “door of the


house” that he was in front of. Miller claimed that he was not at the back of the building; rather,


he was in the gangway close to the front. Miller acknowledged that a photograph of the building 


showed that the back door was missing. Before seeing the police, he heard “ ‘lights, lights,’ ”


which is a “street term” to let people know that the police are nearby and which prompted him to


run. 


¶5       The parties stipulated that Miller had two prior convictions for possession of a controlled 


substance and one prior conviction for residential burglary.


¶6       The trial court found Miller guilty of possession of a controlled substance and sentenced


him to one year in prison. 





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¶7     On appeal, Miller first contends that he was not proven guilty beyond a reasonable doubt

of possession of a controlled substance when Officer Husic did not see what he had in his hand

and recovered the contraband from a pile of trash. In other words, Miller contends the State

failed to prove that he actually possessed any contraband.

¶8     When reviewing a challenge to the sufficiency of the evidence, the relevant question is

whether, after viewing the evidence in the light most favorable to the State, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt. People v.

Brown, 2013 IL 114196, ¶ 48. It is the responsibility of the trier of fact to resolve conflicts in the

testimony, weigh the evidence, and draw reasonable inferences from the facts. People v.

Bradford, 2016 IL 118674, ¶ 12. A reviewing court will not substitute its judgment for that of the

fact finder on questions involving the weight of the evidence or the credibility of the witnesses.

Id. This court will reverse a defendant’s conviction only where the evidence is so unreasonable,

improbable, or unsatisfactory that a reasonable doubt of defendant’s guilt remains. Id.

¶9     “To support a conviction for possession of a controlled substance, the State must prove

that the defendant had knowledge of the presence of the narcotics and that the narcotics were in

the defendant’s immediate and exclusive control.” People v. Tates, 2016 IL App (1st) 140619,

¶ 19. A defendant’s possession can be either actual or constructive. Id. Actual possession is

proved by testimony that the defendant exercised some form of dominion over the contraband,

such as trying to conceal it or throw it away. People v. Love, 404 Ill. App. 3d 784, 788 (2010).

“A defendant’s lack of control of the premises will not preclude a finding of guilt if the

circumstantial evidence supports an inference that the defendant intended to control the

contraband inside.” Tates, 2016 IL App (1st) 140619, ¶ 20. Knowledge and possession are



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factual issues, and we will not disturb the trier of fact’s findings on these questions unless the

evidence is so unbelievable or improbable that it creates a reasonable doubt as to the defendant’s

guilt. People v. Carodine, 374 Ill. App. 3d 16, 25 (2007).

¶ 10      Here, taking the evidence in the light most favorable to the State as we must (Brown,

2013 IL 114196, ¶ 48), there was evidence from which a rational trier of fact could have found

that Miller possessed the baggies of heroin based on Husic’s testimony that (i) Miller had

something in his hand as he reached behind the stairs, (ii) Miller did not have anything in his

hand as he ran away, and (iii) nine baggies of suspect heroin were recovered from behind the

stairs.

¶ 11      Miller argues that because Husic did not see “exactly” what he had in his hand, his

conviction was based on the mere fact that he was observed in the vicinity of a trash-strewn area

from which contraband was later recovered. But while Miller is correct that Husic did not see

“exactly” what Miller was holding in his hand, Husic did observe Miller reach behind a set of

stairs while holding something and then run away empty-handed. See Love, 404 Ill. App. 3d at

788 (actual possession is proved by testimony that the defendant exercised some form of

dominion over the contraband, such as trying to conceal it). When Husic returned to the building

two to three minutes later he observed nine baggies of suspect heroin. The fact that the building

was abandoned was not fatal to the State’s case when the evidence at trial established that Miller

reached behind a set of stairs while holding something in his hand and baggies of heroin were

later recovered from that area. See Tates, 2016 IL App (1st) 140619, ¶ 20 (the defendant’s lack

of control of a premises will not preclude a finding of guilt if the circumstantial evidence

supports an inference that he intended to control the contraband inside). Possession is a factual



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issue, and this court will not disturb the trier of fact’s finding on this issue unless the evidence is

so unbelievable that it creates a reasonable doubt as to defendant’s guilt (Carodine, 374 Ill. App.

3d at 25). This is not one of those cases. Moreover, Miller’s theory of the case would have

required the trier of fact to accept that Miller happened to place his hand behind a staircase in an

abandoned building in the same spot as the contraband, and leave behind an object, without

knowing that the contraband was there. A trier of fact is not required to disregard the inferences

that flow from the evidence or search out all possible explanations consistent with a defendant’s

innocence and raise them to a level of reasonable doubt. See In re Jonathon C.B., 2011 IL

107750, ¶ 60. We therefore affirm Miller’s conviction for possession of a controlled substance.

¶ 12   Miller next contends that his mittimus, which incorrectly lists his offense as manufacture

or delivery of a controlled substance, must be corrected to reflect the offense of which he was

convicted, i.e., possession of a controlled substance. The State concedes the error, and it is

obvious that the mittimus must be corrected to reflect the trial court’s judgment. Accordingly,

pursuant to Illinois Supreme Court Rule 615(b)(1), we direct the clerk of the court to correct the

mittimus to reflect that Miller was convicted of possession of a controlled substance.

¶ 13   Miller finally challenges the imposition of certain fines and fees. Miller acknowledges

that he failed to challenge the imposition of these fines and fees before the trial court. These

issues are, therefore, forfeited. See People v. Smith, 2018 IL App (1st) 151402, ¶ 4 (citing People

v. Hillier, 237 Ill. 2d 539, 544 (2010)). Miller requests that we review his claims under the plain

error doctrine.

¶ 14   We disagree with Miller that his challenge to the fines and fees order is reviewable under

plain error. Miller does not claim that the trial court failed to provide a fair process for



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determining his fines and fees. Therefore, his complained-of errors do not affect substantial

rights and are not reviewable under the plain error doctrine. Smith, 2018 IL App (1st) 151402,

¶ 5. However, given that the State has not argued that Miller forfeited his challenge to the fines

and fees order, we will address the merits of his claims. People v. Williams, 193 Ill. 2d 306, 347­

48 (2000) (rules of waiver and forfeiture apply to the State). Further, on direct appeal, the State

typically does not argue forfeiture, a position consistent with the State’s obligation to do

substantial justice and to avoid burdening criminal defendants with assessments not properly

imposed. 1 As waiver and forfeiture are limitations on the parties, not the court (Maniez v.

Citibank, F.S.B., 404 Ill. App. 3d 941, 948 (2010)), we elect to review the errors claimed by

Miller. We review the imposition of fines and fees de novo. People v. Bowen, 2015 IL App (1st)

132046, ¶ 60.

¶ 15     The following assessments were improperly imposed: the $250 DNA analysis fee

(Miller’s DNA was already in the database) (People v. Marshall, 242 Ill. 2d 285, 303 (2011));

the $5 electronic citation fee (this fee applies only in traffic, misdemeanor, municipal ordinance,

and conservation cases) (see 705 ILCS 105/27.3e (West 2014)); the $100 Methamphetamine

Law Enforcement Fund fine and the $25 methamphetamine drug traffic prevention fund fine

(Miller’s conviction did not involve methamphetamine) (see 730 ILCS 5/5-9-1.1-5(b), (c) (West

2014)); and the $110 misdemeanor, business, or petty offense complaint filed fee (Miller’s

offense was a felony) (see 705 ILCS 105/27.2a(w)(1)(B)-(D) (West 2014)). These assessments

totaling $490 are incorrect, and we direct the trial court to correct the fines and fees order

accordingly.
        1
          The same analysis does not apply in cases involving collateral appeals as a defendant’s attempt
to raise such forfeited issues implicates the parameters of appellate jurisdiction. See People v. Grigorov,
2017 IL App (1st) 143274, ¶ 8; People v. Griffin, 2017 IL App (1st) 143800, ¶ 13.

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¶ 16      Miller next contends that he is entitled to offset the fines assessed against him with his

presentence custody credit. See 725 ILCS 5/110-14(a) (West 2014). Miller accumulated 132

days of presentence custody credit, and therefore, he is potentially entitled to $660 of credit

toward his eligible fines.

¶ 17      But before we can calculate the presentence custody credit to which Miller is entitled, we

must first determine which assessments, though labeled “fees,” are actually fines as to which the

presentence custody credit applies. In countless cases, we have held that the $25 state police

operations fee (see, e.g., People v. Brown, 2017 IL App (1st) 150146, ¶ 36 (finding the state

police operations assessment is a fine)); the $10 mental health court fee and the $5 youth

diversion/peer court assessment (see, e.g., People v. Price, 375 Ill. App. 3d 684, 698-701 (2007)

(finding both the $10 mental health court fee and the $5 youth diversion/peer court assessment

are fines)); the $5 drug court fee (People v. Unander, 404 Ill. App. 3d 884, 886 (2010) (“the $5

[drug     court assessment] is actually a fine”)); and the $30 Children’s Advocacy Center

assessment (People v. Jones, 397 Ill. App. 3d 651, 660-61 (2009) (“the Children’s Advocacy

Center charge is a fine rather than a fee”)) are fines subject to offset by presentence custody

credit.

¶ 18      Miller also argues the $10 probation and court services operations fee (705 ILCS

105/27.3a(1.1) (West 2014)) is actually a fine because it is imposed on all defendants “upon a

judgment of guilty or grant of supervision” regardless of whether the probation department was

utilized in each defendant’s case. Although there is a split among the appellate districts as to the

proper categorization of this assessment, we adhere to the view that it is a fee because it is

compensatory in nature as it reimburses the State for costs of prosecuting a defendant. See



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People v. Rogers, 2014 IL App (4th) 121088, ¶¶ 37-39; People v. Mullen, 2018 IL App (1st)

152306, ¶¶ 54-56 (following Rogers and holding that this assessment is a fee when the probation

office was involved in preparing a presentence investigation report). But see People v. Carter,

2016 IL App (3d) 140196, ¶¶ 56-57 (declining to follow Rogers and finding this assessment to

be a fine regardless of whether the defendant actually utilized probation services). Here, the

probation department prepared a presentence investigation report used at sentencing and we find

this assessment to be properly categorized as a fee.

¶ 19    What remains to be done is to calculate the dollar amount of the credit to which Miller is

entitled. The State asserts that this court need not calculate Miller’s presentence custody credit

because the clerk of the circuit court will apply the credit. We elect instead to calculate the credit

here.

¶ 20    We have examined the current version of the order assessing fines, fees, and costs, which

is a form order used by the circuit court clerk. The four-page order, containing more than 100

possible assessments, breaks down the categories of assessments into those offset by the $5

per diem credit and those that are not. The order contains a line for the total amount of

assessments imposed and the number of days served in custody but does not have any line where

the credit against fines to which the defendant is entitled can be entered. Instead, under the

number of days served in custody, the order states: “Allowable credit toward fine will be

calculated.” (Emphasis added). The order does not say when or by whom the credit will be

calculated. This is an important omission as we cannot expect criminal defendants to calculate

the maximum credit to which they are entitled by multiplying their days in custody by five,

adding up the fines, and calculating the actual credit. We have seen some fines and fees orders



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where the trial judge has made the calculation on the face of the order and, in the absence of a

revised order containing a line item for this calculation, we encourage this practice. It is

important for criminal defendants to know, in addition to the date they are eligible to be released

from custody, the financial ramifications of the sentence imposed as, at least in theory, they face

efforts by the State to collect those assessments. See Smith, 2018 IL App (1st) 151402, ¶ 10

(discussing the lasting repercussions of unpaid assessments). Miller was assessed a total of $914

in fines. After deducting the fines erroneously assessed ($490) and allowing credit for those

assessments labeled fees, which we have determined are fines ($75), the total assessed fines are

$349.

¶ 21    For the foregoing reasons, we affirm Miller’s conviction. Pursuant to Illinois Supreme

Court Rule 615(b)(1), we order that Miller’s mittimus be corrected to reflect that he was

convicted of possession of a controlled substance. We also order the circuit court to correct

Miller’s fines and fees order to reflect that the $250 DNA analysis fee, the $5 electronic citation

fee, the $100 Methamphetamine Law Enforcement Fund fine, the $25 methamphetamine drug

traffic prevention fund fine, and the $110 misdemeanor, business, or petty offense complaint

filed fee are vacated. Per our discussion above, the circuit court should also grant Miller an

additional credit of $75, leaving total fines of $349. Miller’s maximum per diem credit ($660)

offsets these fines in total.

¶ 22    Affirmed in part and vacated in part; mittimus corrected and fines and fees order


corrected.


¶ 23    JUSTICE PUCINSKI, specially concurring:





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¶ 24    I write this special concurrence to emphasize how strongly I feel that orders signed by

judges must be complete and accurate. The judiciary was established to provide a meaningful

way for citizens and the state to redress grievances. For citizens, it is the nonviolent way to

resolve problems. For the state, it is the way to determine guilt or innocence and, where guilt is

determined, to provide the proper penalty.

¶ 25    For the court system to have any credibility with the citizens we serve, the orders entered

must be complete and accurate. Without those two fundamental elements the orders, which

impair liberty or impose monetary penalties, are always suspect. It is, then, I believe imperative

that every court take every precaution to assure that every signed written order completely and

accurately reflects the findings of the court and the judgment of the judge. Where the orders are

not complete or are inaccurate the judge, not the clerk of the court and not the defendant, must be

accountable for signing a faulty order.

¶ 26    Incorrect, incomplete, or inaccurate orders go to the very foundation of the integrity of

the judiciary. Wrong orders either give the impression that no one cares about the actual result of

a trial, or worse, that no one really cares about what happens to a defendant. When a defendant is

sentenced for one crime but his paperwork reflects some other crime his future may be

irreparably harmed. When an order has the wrong monetary assessment or calculation it can

cause financial burdens that are not only unfair but illegal to the party ordered to pay.

¶ 27    Judges should make sure that attorneys for both sides of every case review their final

orders before signing them. Then, at the very least, the judge can have some assurance that the

other two lawyers on the case have checked it out and can be expected to raise some objection in

the case of error.



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¶ 28   The clerk of the court is not an attorney and is, in fact, prohibited from practicing law. To

assume that the clerk is responsible for reading, proofreading, and managing the myriad of issues

on legal orders is putting the shoe on the wrong foot.




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