People v. Price

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People v. Price

State: Illinois

Court: 1st District Appellate

Docket No: 1-05-3782 Rel

Case Date: 07/27/2007

Preview:FIFTH DIVISION July 27, 2007

No. 1-05-3782 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KIRK PRICE, Defendant-Appellant. ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County

Honorable Thomas M. Davy, Judge Presiding.

JUSTICE GALLAGHER delivered the opinion of the court: Following a bench trial, defendant Kirk Price was convicted of aggravated unlawful use of a weapon, sentenced to 30 months' probation and assessed $729 in fines, fees and costs. On appeal, defendant contends that because he was arrested during an overnight stay at his sister's home, he falls within a statutory exception enumerated in the offense. Defendant also asserts that his 30-month probation sentence was excessive and that the trial court improperly assessed three fees and one fine against him. Finally, defendant challenges the court's failure to provide him with a $5-per-day credit for the two days he spent in custody before posting bail. For the reasons set forth below, we affirm defendant's conviction and sentence. However, we vacate $105 in fines and fees assessed by the trial court, and we further order that he receive a $10 credit for his time spent in custody against any remaining fines.

1-05-3782 BACKGROUND The relevant facts are not in dispute. At approximately 9 a.m. on November 23, 2003, a group of Chicago police officers executed an arrest warrant for defendant's nephew, Pierre Price, at 11135 South Ashland Street during a routine warrant sweep of the neighborhood. Defendant was an overnight guest at the house which was rented by defendant's sister and her husband. Defendant testified that his sister suffered from diabetes and he spent the night to assist with her care, as he regularly did when she was ill. The residence was also the permanent residence of Pierre, whom the police were seeking when they entered the house with the arrest warrant. When the officers entered the residence looking for Pierre, defendant was asleep in the living room adjacent to the entryway. Shortly after entering the residence, an officer saw defendant retrieve a gun from the cushion of an armchair and attempt to conceal it. A fully loaded and uncased .57 Ruger revolver was recovered from underneath the chair. The weapon's serial number had been filed off, and defendant and his relatives disclaimed any knowledge of its origin or ownership. Defendant was convicted of aggravated unlawful use of a weapon. At sentencing, in seeking mitigation of defendant's sentence, his counsel highlighted defendant's lack of criminal history and his excellent educational and employment prospects. Defendant's counsel accordingly requested probation to "give some structure" to defendant's life and help him become a "productive law abiding member of society." The court sentenced defendant to 30 months' probation and ordered him to pay $729 in fines, fees and costs.

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1-05-3782 ANALYSIS I. Whether Defendant Was in His "Abode" Defendant challenges his conviction on the basis that his status as an overnight guest at 11135 South Ashland puts him outside the scope of the aggravated-unlawful-use-of-a-weapon statute. Specifically, defendant contends that the statute permits a person who is in his or her "overnight living quarters" to lawfully possess a weapon. The statute provides, in relevant part: "(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly: (1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode or fixed place of business any pistol, revolver, stun gun or taser or other firearm; and *** (3) One of the following factors is present: (A) The firearm was uncased, loaded and immediately accessible at the time of the offense." (Emphasis added.) 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2002). Relying on a definition of "abode" enumerated in People v. Taylor, 28 Ill. App. 3d 186, 187, 328 N.E.2d 325, 326 (1975), defendant asserts that the legislature intended "abode," as used 3

1-05-3782 in the statute, to mean "overnight living quarters." Accordingly, defendant contends that the State failed to prove beyond a reasonable doubt that he was not in his abode when he possessed a weapon while spending the night as a guest at his sister's home. As the statute indicates, a person's presence in his abode is an exception to the offense of unlawful use of a weapon. Because the exception is a substantive element of the offense, however, the State must prove, beyond a reasonable doubt, that the defendant was not in his abode. People v. Laubscher, 183 Ill. 2d 330, 335, 701 N.E.2d 489, 492 (1998); People v. Chmilenko, 44 Ill. App. 3d 1060, 1063, 358 N.E.2d 1247, 1250 (1976). The State may rely on circumstantial evidence to prove the abode element as long as it is not left entirely to conjecture or assumption. People v. Pulley, 345 Ill. App. 3d 916, 921, 803 N.E.2d 953, 957 (2004), citing Laubscher, 183 Ill. 2d at 335-36, 701 N.E.2d at 491. Though defendant frames his appeal as a challenge to the sufficiency of the evidence on the abode element, he also asserts that because the only issue on appeal is whether, as a matter of law, his sister's home qualifies as his abode, a de novo standard of review applies. The State counters that because defendant has styled his appeal as a challenge to the sufficiency of the evidence presented at trial, a more deferential standard of review applies. Because both parties raise only questions of law on appeal and because defendant, in his reply brief, expressly disavows challenging the sufficiency of the evidence, we apply a de novo standard of review and focus our inquiry on the definition of "abode" in the statute. See People v. Davis, 199 Ill. 2d 130, 135, 766 N.E.2d 641, 644 (2002) (holding that when a defendant challenges only the provisions of a statute as interpreted by the trial court and not the facts of the case, a question of law is presented and a de novo standard of review applies). 4

1-05-3782 When interpreting a statute, it is well settled that a court should give words their plain and ordinary meaning. People v. Dednam, 55 Ill. 2d 565, 568, 304 N.E.2d 627, 629 (1973). When ascribing meaning to words, however, courts also must give effect to the law's purpose and the intent of the legislature. People v. Jeffries, 164 Ill. 2d 104, 110, 646 N.E.2d 587, 589 (1995); People v. Scott, 57 Ill. 2d 353, 358, 312 N.E.2d 596, 599 (1974). A court must not construe a term used in a statute in a manner that would lead to an absurd result. People v. Chandler, 129 Ill. 2d 233, 253, 543 N.E.2d 1290, 1298 (1989). Furthermore, courts may properly consider legislative history when attempting to divine legislative intent. Kirwan v. Welch, 133 Ill. 2d 163, 168-70, 549 N.E.2d 348, 350-51 (1989). We begin our inquiry with the ordinary meaning of "abode." Webster's Third New International Dictionary defines "abode" as "continued stay in a place: residence, sojourn; place where one abides or dwells: home." Webster's Third New International Dictionary 4 (1993). Similarly, Black's Law Dictionary defines "abode" as "a home; a fixed place of residence." Black's Law Dictionary 5 (8th ed. 2004). Black's further defines "residence" as the "the act or fact of living in a given place for some time," and "the place where one actually lives, as distinguished from a domicile, [requiring] bodily presence plus an intention to make the place one's home. A person thus may have more than one residence at a time but only one domicile." Black's Law Dictionary 1335 (8th ed. 2004). See also Dunbar v. State, 162 Ind. App. 375, 378, 319 N.E.2d 630, 632 (1974) ("the word `abode,' in its usual and customary meaning, connotes the place where one resides"). In short, this authority suggests that the ordinary meaning of "abode" is a place with which one has significant and persisting contacts, i.e., a place that a person considers his home 5

1-05-3782 and where he intends to live on a more than transient basis. See also United Bank of Loves Park v. Dohm, 115 Ill. App. 3d 286, 291, 450 N.E.2d 974, 978 (1983) (holding that a person's "usual place of abode" as used in section 2-203 of the Code of Civil Procedure is a residence with which an individual maintains intimate, unbroken and substantial ties). Accordingly, while the ordinary meaning of "abode"

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