People v. Coleman

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People v. Coleman

State: Illinois

Court: 4th District Appellate

Docket No: 4-07-0921 Rel

Case Date: 06/17/2009

Preview:Filed 6/17/09

NO. 4-07-0921 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CASSIAN T. COLEMAN, Defendant-Appellant.

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Appeal from Circuit Court of Macon County No. 06CF448 Honorable Katherine M. McCarthy, Judge Presiding.

JUSTICE APPLETON delivered the opinion of the court: A jury found defendant, Cassian T. Coleman, guilty of three offenses: count VII, unlawful possession of a controlled substance with intent to deliver it (720 ILCS 570/401(a)(2)(D) (West 2006)); count VIII, unlawful delivery of a controlled substance (720 ILCS 570/401(a)(2)(D) (West 2006)); and count X, criminal drug conspiracy (720 ILCS 570/405.1 (West 2006)). All three counts related to the same 926 grams of cocaine, People's exhibit No. 2. The trial court sentenced him to three concurrent prison terms of 25 years, with credit for 117 days and a $3,000 mandatory drug treatment assessment with $585 credit for time served. The court also imposed a street-value fine of $92,600 and another fine of $1 million. Defendant appeals on six grounds. First, he argues that the defense cast doubt on the chain of custody and, therefore, the trial court erred in (a) admitting People's exhibit No. 2 into evidence and (b) barring the defense from arguing to the jury that the State failed to prove the illegal substance weighed 926 grams. We find that a

stipulation at trial defeats this argument. Second, defendant argues that if, by entering into the stipulation, defense counsel waived objections to the chain of custody, he thereby rendered ineffective assistance. We decline to consider this argument because it requires evidence external to the record and, thus, is better suited for postconviction proceedings. Third, defendant argues he is entitled to a new trial because defense counsel "waived" his presence during discussions of notes from the deliberating jury--a waiver that, according to case law, was ineffectual. We find this error to be harmless. Fourth, defendant argues we should vacate the convictions of counts VII and X because it is impermissible to convict a defendant both of the inchoate offense (count X) and the principal offense (count VIII) and of the greater offense (count VIII) and the included offense (count VII). The State agrees, and so do we. Fifth, defendant argues the trial court lacked authority to impose more than one fine or a fine greater than $500,000. We conclude that the fines were authorized by section 401(b) of the Illinois Controlled Substances Act (720 ILCS 570/401(b) (West 2006)) and section 5-9-1.1(a) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-9-1.1(a) (West 2006)). Sixth, defendant argues he is entitled to eight additional days of presentence credit. The State agrees, and so do we. Therefore, we vacate the convictions of counts VII and X and modify the judgment so as to allow eight more days of presentence credit and an additional credit of $40 against the mandatory drug treatment assessment. Otherwise, we affirm the

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judgment as modified and remand with directions. I. BACKGROUND A. The Charges On July 27, 2006, the State filed an additional information, which charged defendant with committing four offenses in Macon County during the period of March 21 to 22, 2006. Count VII charged him with unlawfully possessing, with the intent to deliver, 900 grams or more of a substance containing cocaine. 720 ILCS 570/401(a)(2)(D) (West 2006). (The record does not appear to contain the original information, and, in any event, only the convictions of counts VII, VIII, and X of the additional information are at issue in this appeal.) Count VIII charged defendant with unlawfully delivering to Genaro Hendrix 900 grams or more of a substance containing cocaine. 720 ILCS 570/401(a)(2)(D) (West 2006). Count IX charged defendant with unlawfully possessing 900 grams or more of a substance containing cocaine. 720 ILCS 570/402(a)(2)(D) (West 2006). Count X charged defendant with a criminal conspiracy in that, with the intent that the offense of unlawful possession of a controlled substance with intent to deliver it be committed, he agreed with Hendrix to unlawfully possess, with the intent to deliver, 900 grams or more of a substance containing cocaine. 720 ILCS 570/405.1(a) (West 2006). All four counts alleged that in Cook County case No. 98-C-55048701, defendant was previously convicted of unlawful possession of a controlled substance.

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See 720 ILCS 570/408(a) (West 2006) ("Any person convicted of a second or subsequent offense under this Act may be sentenced to imprisonment for a term up to twice the maximum term otherwise authorized, fined an amount up to twice that otherwise authorized, or both"). B. The Jury Trial In the jury trial on September 5 and 6, 2007, the State adduced the following evidence. Zundra Cotton lived at 353 North 18th Street, Decatur, Illinois, with Hendrix, a cocaine dealer. On March 22, 2006, the police raided the house. Defendant was standing on the steps of the front porch, and they arrested him. They searched his person, and he had a key to the front door. Cotton's purse was on the kitchen table, and inside her purse were 15 bags of white powder. Two black plastic bags were crumpled up on the table, beside the purse, and inside those bags was a clear plastic wrapper. Such materials commonly were used for packaging cocaine in kilograms. Defendant's fingerprints were on the black plastic bags. Cotton testified that defendant was Hendrix's supplier and that earlier in the morning, the day of the raid, defendant brought over a package of cocaine and she helped break it up and put it in the 15 bags. The parties entered into the following stipulation: " (1) *** Dan Ashenfelter is a [p]olice [o]fficer for the City of Decatur and is assigned as [e]vidence [o]fficer for the department. *** [O]n March 30[], 2006, he retrieved People's [e]xhibit[] N[o.] *** 2 *** from the evidence locker at the

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Decatur [p]olice [d]epartment. *** [M]embers of the public are not allowed access to the evidence locker. *** People's [e]xhibit N[o.] *** 2 *** [was] then in a sealed condition. *** [O]n that date[,] Dan Ashenfelter transported and delivered People's [e]xhibit N[o.] *** 2 *** to the Illinois State Police [c]rime [l]ab in Springfield, Illinois. *** Ashenfelter made no changes or alterations to the exhibit[] and did not tamper with the contents of the exhibit[] in any way. *** People's [e]xhibit[] [No.] *** 2 *** [is] now in the same or substantially the same condition as [it was] on March 30[], 2006. *** (4) *** Michael Cravens was employed as a [f]orensic [s]cientist with the Illinois State Police [c]rime [l]ab in Springfield ***. [He] is qualified as an expert witness in the identification of controlled substances. *** [O]n March 30[], 2006, he received People's [e]xhibit N[o.] 2 *** from Dan Ashenfelter at the [c]rime [l]ab. *** People's [e]xhibit N[o.] 2 *** [was] then in a sealed condition[,] and the exhibit[] [is] now in the same or substantially the same condition as when he received [it].

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*** [H]e subsequently performed tests on People's [e]xhibit N[o.] 2 ***. *** [B]ased upon the tests he performed [and] his expertise[,] Michael Cravens was able to determine[,] to a reasonable degree of scientific certainty[,] that the white powder in People's [e]xhibit N[o.] 2 was 926.0 grams of cocaine." Immediately after reading that stipulation to the jury, the State called David Dailey, a detective with the Decatur police. He testified he assisted in executing the search warrant on March 22, 2006. At the scene of the raid, he weighed the 15 bags from the purse. Nine of the bags weighed 63 grams apiece, and the other six bags weighed 64 grams apiece. He field-tested only one of the 15 bags: it tested positive for cocaine. Then he emptied the 15 bags into a larger evidence bag, People's exhibit No. 2; sealed it; and took it to the evidence vault. When the State rested, defense counsel objected to the admission of People's exhibit No. 2, and moved for a directed verdict, because before commingling the 15 bags, Dailey field-tested only 1 of the bags, i.e., 63 or 64 grams. Defense counsel argued there was no evidence that the other 14 bags contained any cocaine at all and, therefore, the State not only failed to prove a sufficient chain of custody for the admission of People's exhibit No. 2 but also failed to prove that defendant possessed 900 grams or more of a substance containing cocaine, as alleged in the charges. The trial court overruled the objection and denied the motion for a directed verdict, for the parties had stipulated that "Cravens was able to determine[,] to a reasonable degree of

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scientific certainty[,] that the white powder in People's [e]xhibit N[o.] 2 was 926.0 grams of cocaine." Before closing arguments, the State moved to prohibit defense counsel from making to the jury the argument that the trial court previously rejected, namely, that because Dailey field-tested only 1 of the 15 bags before commingling them, the State had failed to prove that defendant possessed 900 grams or more of a substance containing cocaine. The court granted the motion. The jury retired to deliberate at 3:37 p.m. on September 6, 2007. At 8:40 a.m. on September 7, 2007, the trial court told the parties: "THE COURT: *** We're outside the presence of the jury. *** The [c]ourt received a note from the jurors at 4:50 p.m. last night as they were leaving for the evening. It reads as follows: [']Can we get any type of court report from testimonies?['] Okay. I will take suggestions from the parties as to how to respond to that." Both the prosecutor and defense counsel recommended telling the jurors to rely on their memories. The court said: "Okay. Then I will send that response back to the jurors. You'll show all parties present as well as the defendant." At 8:50 a.m. on September 7, 2007, the trial court received a second note from the deliberating jury. The note inquired: " 'Can we see all the evidence other than the drugs?' " The court did not say that defendant was present (or absent) during the discussion of this second note. At the court's suggestion, the attorneys went through

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the exhibits and agreed on the ones the jury should receive. The court then sent those exhibits to the deliberation room. At 10:45 a.m. on September 7, 2007, the trial court received a third note from the jury. The court told the attorneys: "THE COURT: *** We're on the record outside the presence of the jury. [Defense counsel] waives the appearance of the defendant. [DEFENSE COUNSEL]: We do." The note asked: " 'Can we get a dictionary?' " The attorneys agreed the court should respond by asking which term the jury wished to have defined. The court said: "THE COURT: So, here's what I will respond[:] ['P]lease inform us as to what term you are seeking a definition.['] [DEFENSE COUNSEL]: Or *** plural[--][']term or terms.['] THE COURT: Okay. Okay. If you'll wait here[,] I'm sure we'll get it right back. Back on the record. Okay. The [c]ourt submitted the response to the jury. I was informed by the [c]ourt [s]ecurity [o]fficer that they no longer need the dictionary. Since I don't go in and I don't inquire[,] that's all I can say. And I don't know if it means [be]cause

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they have a verdict or because they figured out the definition. [DEFENSE COUNSEL]: That's just what I was gonna ask. THE COURT: I mean I didn't ask why. Because I didn't go in. Okay. After they told me they didn't need a dictionary[,] [n]ow[] they come back with [']a definition of ["]abet[," '] which is a legal term. *** [DEFENSE COUNSEL]: [']Assist.['] [PROSECUTOR]: I guess we could look in the dictionary to see what it says and see if it's even something we want to touch on. The [c]ourt has looked up the definition of [']abet['] in the Webster [d]ictionary. And by agreement of the parties[,] we'll give the definition as follows: [']To assist or support in the achievement of a purpose.['] " The court wrote down the definition and sent it back to the deliberation room. At 11:45 a.m. on September 7, 2007, the jury found defendant guilty of count VII, unlawful possession, with the intent to deliver, 900 grams or more of a substance containing cocaine (720 ILCS 570/401(a)(2)(D) (West 2006)); count VIII, unlawful delivery of 900 grams or more of a substance containing cocaine (720 ILCS

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570/401(a)(2)(D) (West 2006)); and count X, criminal drug conspiracy (720 ILCS 570/405.1(a) (West 2006)). The trial court entered judgment on the three guilty verdicts. C. The Sentencing Hearing On October 24, 2007, the trial court held a sentencing hearing. The presentence-investigation report did not mention any case from Cook County having a case number 98-C-55048701, as alleged in the charges. In fact, the report did not mention any previous drug conviction at all, although it listed two convictions, both in Cook County, for having forbidden items in prison. On August 26, 1998, in case No. 98CF-114093001, defendant was sentenced to 12 months' imprisonment for possessing contraband in a penal institution or bringing it into the institution (the report does not say what the contraband was). On October 20, 1998, in case No. 98-CF-2353501, he was sentenced to 12 months' imprisonment for possessing alcohol in a penal institution or bringing it into the institution. The prosecutor admitted to the trial court no evidence showed that defendant had a prior drug conviction and, therefore, the sentencing range was 15 to 60 years' imprisonment (720 ILCS 570/401(a)(2)(D) (West 2006)) instead of 15 to 120 years' imprisonment (720 ILCS 570/408(a) (West 2006)). The trial court sentenced defendant to three terms of imprisonment for 25 years, ordering that the terms run concurrently. The court also imposed a fine of $1 million, a drug assessment of $3,000, a laboratory fee of $100, and a street-value fine of $92,600.

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With respect to the question of presentence credit, the State stipulated that the police arrested defendant on March 22, 2006, when they executed the search warrant. On March 29, 2006, however, the State released him without filing charges. It was not until July 27, 2006, that the State filed the charges, after receiving the laboratory results. The State argued that because it had filed no charges against defendant when he was in jail from March 22 to 29, 2006, he deserved no credit for those eight days. The State argued he was entitled to credit only for the 117 days he spent in jail after the State filed charges against him. The trial court agreed with the State and gave him credit for only 117 days. The court also gave defendant a corresponding credit of $585 against the mandatory assessment of $3,000 (117 days x $5). This appeal followed. II. ANALYSIS A. Chain of Custody 1. Inclusion of This Issue in the Posttrial Motion Defendant argues the trial court erred in admitting People's exhibit No. 2 into evidence because he produced evidence that Dailey tampered with, or altered, the exhibit and the State failed to rebut the evidence of tampering, making the chain of custody insufficient. See People v. Woods, 214 Ill. 2d 455, 468, 828 N.E.2d 247, 255 (2005). The State responds, initially, that defendant has forfeited this issue by omitting it from his posttrial motion. See People v. Young, 128 Ill. 2d 1, 38, 538 N.E.2d 453, 46768 (1989).

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Paragraph 9 of defendant's posttrial motion states: "The [c]ourt erred in overruling defendant's objection to the admission of [People's] exhibit [No.] 2, the 926 grams of cocaine." A posttrial motion must alert the trial court to the alleged error with enough specificity to give the court a reasonable opportunity to correct it. People v. Brown, 150 Ill. App. 3d 535, 540, 501 N.E.2d 1347, 1351 (1986). Paragraph 9 of the posttrial motion performed that function. See People v. Groves, 294 Ill. App. 3d 570, 574, 691 N.E.2d 86, 89 (1998) ("We find the issue was properly preserved since [the] defendant stated in his posttrial motion that the court erred in admitting his out-ofcourt statements"). Therefore, we disagree with the State that defendant has forfeited this issue. 2. Tampering With, or Altering, the Substance Section 401 of the Controlled Substances Act provides: "Except as authorized by this Act, it is unlawful for any person knowingly to *** possess[,] with intent to *** deliver, a controlled substance ***." 720 ILCS 570/401 (West 2006). Cocaine is, of course, a controlled substance. 720 ILCS 570/102(f), 206(b)(4) (West 2006). The punishment for possession of a controlled substance with the intent to deliver it depends on how much of it the defendant possessed--or, more precisely, how much of a substance containing a controlled substance he possessed. 720 ILCS 570/401(a) (West 2006). Section 401(a)(2)(D) provides as follows: "(a) Any person who violates this [s]ection with respect to the following amounts of controlled *** substances *** is guilty of a Class X felony and shall be

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sentenced to a term of imprisonment as provided in this subsection (a) and fined as provided in subsection (b): *** (2) *** *** (D) not less than 15 years and not more than 60 years with respect to 900 grams or more of any substance containing cocaine ***." (Emphasis added.) 720 ILCS 570/401(a)(2)(D) (West 2006). From these statutory provisions, it should be apparent that a police officer's mixing substances together at the crime scene is not necessarily a matter of indifference to the defendant. The greater the amount of illegal substance the defendant possesses, the greater the crime--and, for that reason, the State must prove, beyond a reasonable doubt, the weight of the substance containing the drug. People v. Jones, 174 Ill. 2d 427, 428-29, 675 N.E.2d 99, 100 (1996). If the police seize separate bags or containers of suspected drugs, they must test a sample from each bag or container to prove it contains a controlled substance. Jones, 174 Ill. 2d at 429, 675 N.E.2d at 101. There is an exception to this requirement: "random testing is permissible when the seized samples are sufficiently homogenous so that one may infer[,] beyond a

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reasonable doubt[,] that the untested samples contain the same substance as those that are conclusively tested." Jones, 174 Ill. 2d at 429, 675 N.E.2d at 100. For example, 3 out of 100 tablets are a "sufficiently homogenous" sample if all the tablets have "identical markings, lettering characteristics, bevelling, and scoring." Jones, 174 Ill. 2d at 429, 675 N.E.2d at 100, citing People v. Kaludis, 146 Ill. App. 3d 888, 891-92, 497 N.E.2d 360, 362 (1986). Jones held, however, that five packets, each containing a white rocky substance, "[could not] be equated with identically marked and stamped tablets, pills, or capsules"; the State had to test a sample from each packet. Jones, 174 Ill. 2d at 430, 675 N.E.2d at 101. The same necessarily holds true of separate containers of white powder, which is even less distinctive, in its physical characteristics, than white rocks. The State must conclusively test a sample from each container of powder. People v. Jones, 260 Ill. App. 3d 807, 810, 633 N.E.2d 218, 221 (1994); People v. Hill, 169 Ill. App. 3d 901, 911, 524 N.E.2d 604, 611 (1988). Contrary to the holding of the Third District in People v. Jackson, 134 Ill. App. 3d 785, 787, 481 N.E.2d 1222, 1224 (1985), the State cannot evade this requirement by the facile expedient of eliminating the multiplicity of containers, that is, dumping the contents of several containers into one container and then testing a sample from the one container. See People v. Little, 140 Ill. App. 3d 682, 686, 489 N.E.2d 322, 325 (1986) (Heiple, J., dissenting) ("The defendant correctly points out that when the contents of the 11 manila envelopes were combined by the police before they were individually weighed and tested, *** the prosecution lost any basis to charge the defendant with possession of any specific quantity of a substance containing cannabis as to those 11

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envelopes. The State, after all, is required to prove its case beyond a reasonable doubt. We may speculate that each of those 11 envelopes contained cannabis. That, however, amounts to guess and conjecture[,] which will not do. It is possible that only one of those 11 envelopes contained cannabis"). To illustrate what we mean, assume the police find two bags on a kitchen table. One is a Baggie containing 15 grams of a substance containing cocaine. The other is a freezer bag containing 900 grams of pure baking soda, with no intermixture of cocaine. For the 15 grams in the Baggie, the defendant faces imprisonment for 6 to 30 years. 720 ILCS 570/401(a)(2)(A) (West 2006). For the 900 grams of baking soda in the freezer bag, he faces no punishment at all--for these are two physically separate substances and baking soda is not a controlled substance. If, before the police arrived, the defendant dumped the contents of the Baggie into the freezer bag, the two substances would become one substance--i.e., 915 grams of a substance containing cocaine--and he would face a greater penalty of 15 to 60 years' imprisonment. 720 ILCS 570/401(a)(2)(D) (West 2006). Obviously, the defendant would not want the police doing this commingling for him. If, to alter the hypothetical, the freezer bag already contained cocaine mixed in with the baking soda, it would make no practical difference that the contents of the two bags were consolidated, for both bags, to begin with, separately contained a substance containing cocaine and the criminal liability would be the same regardless of whether the contents of the two bags remained separate or were consolidated.

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For purposes of the chain of custody, if the evidence in question is an illegal substance, "tampering with," or "altering," the evidence means causing it, to the defendant's legal detriment, to be a substance different from that which the police recovered from him. Woods, 214 Ill. 2d at 468, 828 N.E.2d at 255. "The State must show that the police took reasonable protective measures to ensure that the substance recovered from the defendant was the same substance tested by the forensic chemist." Woods, 214 Ill. 2d at 467, 828 N.E.2d at 255. The addition of a minuscule amount of cocaine to 900 grams of an innocuous substance would create a crushing criminal liability. Thus, whether Dailey "tampered with," or "altered," the evidence depends on whether all 15 bags contained cocaine before he emptied them into one evidence bag. Initially, there were 15 physically separate substances. Were all 15 substances cocaine or a substance containing cocaine? Defense counsel stipulated as follows: "[B]ased upon the tests he performed [and] his expertise[,] Michael Cravens was able to determine[,] to a reasonable degree of scientific certainty[,] that the white powder in People's [e]xhibit [No.] 2 was 926.0 grams of cocaine." Like the trial court, we take that stipulation at face value. See People v. Williams, 200 Ill. App. 3d 503, 516, 558 N.E.2d 261, 269 (1990) (declining to subject to further scrutiny a forensic chemist's stipulated testimony that " 'the white powder' was in fact cocaine"); People v. Early, 158 Ill. App. 3d 232, 239, 511 N.E.2d 847, 852 (1987) (stipulations concerning evidence are "binding and conclusive on the parties"). If, as the parties stipulated, all of the white powder in People's exhibit No. 2 was cocaine, it follows that all of the white powder in the 15 bags

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was cocaine, for People's exhibit No. 2 consisted of the contents of the 15 bags. Dailey did not "tamper with, or alter," the 15 substances by mixing them together (the 15 substances were identical: they all were cocaine). As the supreme court explained in Woods, 214 Ill. 2d at 468, 828 N.E.2d at 255, "the State establishes a prima facie showing that the chain of custody for controlled substances is sufficient by meeting its burden to establish that reasonable protective measures were taken to ensure that the evidence has not been tampered with, substituted[,] or altered between the time of seizure and forensic testing." The State made that prima facie showing in this case. Dailey testified he dumped the substances into an evidence bag, sealed the bag, and put it in a vault. The bag remained sealed until Cravens opened it, and he did not alter the contents of the bag. "After the State establishes a prima facie case, the burden then shifts to the defendant to produce evidence of actual tampering, alteration[,] or substitution." Woods, 214 Ill. 2d at 468, 828 N.E.2d at 256. As we have explained, defendant failed to carry his burden of producing evidence of actual tampering, alteration, or substitution. Mixing the 15 quantities of cocaine together did not change the substance so as to increase criminal liability: it always was, and remained, cocaine. Therefore, we find a sufficient chain of custody. B. The Necessity of Adducing Evidence Outside the Record To Prove Ineffectiveness of Trial Counsel Defendant argues his trial counsel rendered ineffective assistance by stipulating that "based on the tests he performed ***[,] Michael Cravens was able to determine[,] to a reasonable degree of scientific certainty[,] that the white powder in - 17 -

People's exhibit [No.] 2 was 926.0 grams of cocaine." To prove ineffective assistance of counsel, defendant must prove two propositions: (1) counsel's representation "fell below an objective standard of reasonableness" (Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984)), and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Because it is impossible to prove ineffective assistance of counsel without proving both the deficiency of counsel's performance and prejudice therefrom, a court may proceed directly to the question of prejudice without assessing counsel's performance. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069. On the record before us, we are unable to find a reasonable probability that if defense counsel had declined to enter into the stipulation, the result of the proceeding would have been different. The purpose of the stipulation was to make it unnecessary for Cravens to testify. It seems reasonable to suppose that, absent the stipulation, the State would have called Cravens. To prove prejudice, defendant would have to prove that, absent the stipulation, there is a reasonable probability that the State would not have called Cravens or, if the State had called him, he could not have opined to a reasonable degree of scientific certainty that the white powder in People's exhibit No. 2 was 926 grams of cocaine. The record does not appear to contain any laboratory reports. To

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prove prejudice, defendant would have to adduce evidence that is outside the record. Therefore, we decline to consider the merits of his claim of ineffective assistance, which is best reserved for postconviction proceedings. See People v. Holloman, 304 Ill. App. 3d 177, 186-87, 709 N.E.2d 969, 975-76 (1999); People v. Morris, 229 Ill. App. 3d 144, 166, 593 N.E.2d 932, 947 (1992). C. Defense Counsel's Ineffectual Waiver of Defendant's Presence During Discussions of Notes From the Deliberating Jury Defendant argues that discussing the notes from the deliberating jury outside his personal presence violated his "constitutional right to a public trial, and to appear and participate in person and by counsel at all proceedings that involve his substantial rights." (Emphasis in original.) People v. McDonald, 168 Ill. 2d 420, 459, 660 N.E.2d 832, 849 (1995). Initially, we must determine precisely when, during the proceedings, defendant was absent. When discussing the second note, the trial court did not say defendant was present; nor did the court say he was absent. If the record shows the presence of the defendant when the trial commences, we presume he was present throughout the trial unless the record specifically says otherwise. Gallagher v. People, 211 Ill. 158, 171, 71 N.E. 842, 847 (1904); People v. Robinson, 258 Ill. App. 50, 52 (1930); People v. Harvey, 95 Ill. App. 3d 992, 999, 420 N.E.2d 645, 651 (1981). The record shows defendant was present when the trial began. The record does not specifically exclude his presence during the discussion of the second note. Therefore, we presume he was present at that time. See Harvey, 95 Ill. App. 3d at 999-1000, 420 N.E.2d at 651-52. The record specifically says, however, that defendant was absent during - 19 -

the discussion of the third note, when defense counsel purported to waive defendant's right to be personally present. Defense counsel had no power to effect that waiver. See People v. McGrane, 336 Ill. 404, 409, 168 N.E. 321, 323 (1929) (defense counsel had no power to waive the defendant's presence when the trial court instructed the jury in response to its request for further instructions); People v. Lofton, 194 Ill. 2d 40, 66, 740 N.E.2d 782, 797 (2000). "[A] communication between the judge and the jury after the jury has retired to deliberate, except one held in open court and in [the] defendant's presence, deprives [the] defendant of [his] fundamental rights [to be present at and to participate in a critical stage of the trial]." McDonald, 168 Ill. 2d at 459, 660 N.E.2d at 849. Reversal is unwarranted if it is apparent that no injury or prejudice resulted. McDonald, 168 Ill. 2d at 460, 660 N.E.2d at 849; People v. Kubat, 94 Ill. 2d 437, 493-94, 447 N.E.2d 247, 272 (1983); People v. Pierce, 56 Ill. 2d 361, 365, 308 N.E.2d 577, 579 (1974). The burden is on the State to prove the error was harmless beyond a reasonable doubt. McDonald, 168 Ill. 2d at 460, 660 N.E.2d at 849. The State has carried that burden. The jury requested a definition of "abet," and with the concurrence of defense counsel, the trial court gave the jury an accurate definition. "[W]e believe that [defendant's] presence at the conference, in which his rights were adequately protected, would not have had a 'relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.' " Kubat, 94 Ill. 2d at 493-94, 447 N.E.2d at 272, quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 78 L. Ed. 674, 678, 54 S. Ct. 330, 332 (1934).

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D. Vacation of the Inchoate Offense and the Included Offense The State concedes that because defendant was convicted of count VIII, unlawful delivery of a controlled substance (720 ILCS 570/401(a)(2)(D) (West 2006)), his conviction of the inchoate offense, count X, criminal drug conspiracy (720 ILCS 570/405.1(a) (West 2006)), cannot stand. See People v. Castaneda, 299 Ill. App. 3d 779, 781, 701 N.E.2d 1190, 1191 (1998). We find this concession to be correct. "No person shall be convicted of both the inchoate and the principal offense." 720 ILCS 5/8-5 (West 2006). Therefore, we vacate the conviction of count X. See Castaneda, 299 Ill. App. 3d at 781, 701 N.E.2d at 1191. The State further concedes that because defendant was convicted of count VIII, unlawful delivery of a controlled substance (720 ILCS 570/401(a)(2)(D) (West 2006)), his conviction of count VII, unlawful possession of a controlled substance with the intent to deliver it (720 ILCS 570/401(a)(2)(D) (West 2006)), cannot stand. We find this concession to be correct as well. The offense of unlawful possession of a controlled substance with intent to deliver is included in the offense of unlawful delivery of a controlled substance (for, in order to deliver a controlled substance, one must possess it with the intent to deliver it). People v. Garcia, 195 Ill. App. 3d 621, 631, 552 N.E.2d 1171, 1177 (1990). Therefore, we vacate the conviction of count VII. See Garcia, 195 Ill. App. 3d at 631, 552 N.E.2d at 1178. E. The Legality of the Fines Defendant argues that under section 401(b) of the Controlled Substances Act (720 ILCS 570/401(b) (West 2006)), the trial court had authority to impose only a

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fine of "not more than $500,000," i.e., the fine of $92,600, and that we should vacate the other fine, the fine of $1 million. By reference to statutory language, legislative history, and case law, we will explain why we construe section 401(b) of the Controlled Substances Act and section 5-9-1.1(a) of the Unified Code (730 ILCS 5/5-9-1.1(a) (West 2006)) to authorize the two fines. 1. The Statutory Language Section 401(b) of the Controlled Substances Act provides as follows: "(b) Any person sentenced with respect to violations of paragraph *** (2) *** of subsection (a) involving 100 grams or more of the controlled substance named therein, may[,] in addition to the penalties provided therein, be fined an amount not more than $500,000 or the full street value of the controlled *** substance ***, whichever is greater." 720 ILCS 570/401(b) (West 2006). Because section 401(b) says a violator "may *** be fined," a fine under this statute is discretionary. See In re Marriage of Freeman, 106 Ill. 2d 290, 298, 478 N.E.2d 326, 329 (1985) ("Except in very unusual circumstances affecting the public interest, the legislative use of the word 'may' is permissive rather than mandatory"). Section 401(b) does not specify the minimum amount of the fine. It specifies only the maximum amount, and the maximum amount depends on the street value of the controlled substance. If the street value is less than $500,000, the maximum fine is $500,000. If the street value is more than $500,000, the maximum fine is the street value. In this

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case, the street value of the cocaine was $92,600, which was less than $500,000. It follows that section 401(b) authorized the fine of $92,600 but not the fine of $1 million (because $1 million was more than $500,000). Even though the trial court imposed a fine of $92,600 as authorized by section 401(b) of the Controlled Substances Act (720 ILCS 570/401(b) (West 2006)), the language of section 5-9-1.1(a) of the Unified Code (730 ILCS 5/5-9-1.1(a) (West 2006)) not only authorized but required an additional fine. Section 5-9-1.1(a) provides as follows: "(a) When a person has been adjudged guilty of a drug[-]related offense involving *** possession or delivery of a controlled substance, *** in addition to any other penalty imposed, a fine shall be levied by the court at not less than the full street[-]value of the *** controlled substances seized." (Emphasis added.) 730 ILCS 5/5-9-1.1(a) (West 2006). Defendant was adjudged guilty of a drug-related offense involving delivery of a controlled substance. The statute directs that "in addition to any other penalty imposed, a fine shall be levied." The phrase "any other penalty" signifies it does not matter what kind of penalty the other penalty is. A fine is a penalty. Even if the defendant already has incurred a fine under another statute, the court "shall" impose a fine under section 5-9-1.1(a). See People v. Thomas, 171 Ill. 2d 207, 222, 664 N.E.2d 76, 84 (1996) ("use of the word 'shall' indicates a mandatory obligation unless the statute

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indicates otherwise"). A fine of $92,600 pursuant to section 401(b) of the Controlled Substances Act (720 ILCS 570/401(b) (West 2006)) was another "penalty imposed." In addition to that fine, section 5-9-1.1(a) required another fine. Defendant cites People v. Harmison, 108 Ill. 2d 197, 204-05, 483 N.E.2d 508, 511-12 (1985), for the proposition that section 5-9-1.1(a) (730 ILCS 5/5-9-1.1(a) (West 2006)) requires the imposition of a street-value fine. The supreme court did not so hold in that case. In Harmison, 108 Ill. 2d at 200, 483 N.E.2d at 509-10, the trial court imposed a street-value fine pursuant to section 5-9-1.1, and the supreme court upheld the fine against the defendant's constitutional challenges (Harmison, 108 Ill. 2d at 204-06, 483 N.E.2d at 511-12). The supreme court never held, however, that the amount of the fine was limited to the street value of the drug. The supreme court said that street value affected the amount of the fine (Harmison, 108 Ill. 2d at 205, 483 N.E.2d at 512)--as the statute says, the fine shall be "not less than the full street value of the *** controlled substances seized." (Emphasis added.) 730 ILCS 5/5-9-1.1(a) (West 2006). The supreme court never held, however, that the fine had to equal the street value. "The best indication of the legislature's intent is the language of the statute, given its plain and ordinary meaning." People v. Lewis, 223 Ill. 2d 393, 402, 860 N.E.2d 299, 305 (2006). In section 5-9-1.1(a), the legislature specified only the minimum amount of the fine, not the maximum amount: a fine "at not less than the full street[-]value of the *** controlled substances seized." (Emphasis added.) 730 ILCS 5/5-9-1.1(a) (West 2006). In such statutes, in which only the minimum amount of the

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fine is specified, constitutional limitations determine the maximum amount. State v. Taylor, 70 S.W.3d 717, 721-22 (Tenn. 2002) (and cases cited therein). Defendant does not argue that a fine in the amount of $1 million violates the excessive-fines clause (U.S. Const., amend. VIII) or that the fine is otherwise unconstitutional; he argues only that the fine is statutorily unauthorized. We conclude that, on its face, section 5-9-1.1(a) authorizes the $1 million fine--for $1 million is an amount "not less than" the street value of the cocaine, $92,600. Defendant further argues the trial court erred by failing to consider his ability to pay $1 million. He cites section 5-9-1(d)(1) of the Unified Code, which says that "[i]n determining the amount and method of payment of a fine, *** the court shall consider *** the financial resources and future ability of the offender to pay the fine." 730 ILCS 5/5-9-1(d)(1) (West 2006). In context, however, section 5-9-1(d)(1) seems to be speaking of a fine imposed under section 5-9-1(a) (730 ILCS 5/5-9-1(a) (West 2006)), i.e., a fine for general felonies, misdemeanors, petty offenses, and business offenses. Section 5-9-1.1 (730 ILCS 5/5-9-1.1 (West 2006)) is a separate section of the Unified Code, contemplating a different fine--a fine specifically for drug offenses. We are aware of no authority for the general proposition that a fine must be affordable for its recipient. 2. Legislative History Public Act 82-449 (Pub. Act 82-449, eff. January 1, 1982 (1981 Ill. Laws 2352-54)) consisted of three sections. Section 1 (Pub. Act 82-449,

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