March 27, 2001

NO. 4-99-0551

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JUSTICE MYERSCOUGH delivered the opinion of the court:

In November 1998, the State charged defendant, Jackie Williamson, withburglary and criminal damage to property over $300. 720 ILCS 5/19-1(a),21-1(1)(a) (West 1998). At the State's request, the trial court dismissed thecriminal damage to property charge. In March 1999, a jury found defendant guiltyof burglary. In April 1999, the trial court denied defendant's posttrial motion;sentenced defendant to 15 years' imprisonment, to run consecutively to thesentence in another case (People v. Williamson, No. 98-CF-1441 (Cir. Ct. WillCo.)); ordered him to pay a $1,000 public defender fee, $600 court costs, and$2,000 restitution to Birkey's Farm Store (Birkey's); and directed theDepartment of Corrections (DOC) to withhold 50% of defendant's monthlycorrections income to apply to the aforementioned costs and fees.

On appeal, defendant argues that (1) the trial court erred in not suppressingevidence obtained during an illegal search; (2) he was denied effectiveassistance of counsel; (3) the trial court erred in not holding a hearing ondefendant's ability to pay public defender fees; (4) the trial court erred whenit ordered DOC to withhold 50% of any income defendant earned while imprisonedto satisfy restitution and costs; and (5) the discretionary consecutivesentencing provision of section 5-8-4(b) of the Unified Code of Corrections(Unified Code) (730 ILCS 5/5-8-4(b) (West 1998)) violates defendant's rights todue process and trial by jury. We affirm defendant's conviction and consecutivesentence, vacate the DOC wages withholding order, vacate the recoupment orderfor a hearing thereon, and remand.

I. BACKGROUND

On November 2, 1998, Officer Howard Curry of the Gibson City policedepartment was performing routine checks of local businesses and churches. Atapproximately 1 a.m., Curry noticed that one of the bay doors of Birkey's wasripped from its hinges and immediately called for another unit. When OfficerChristopher Decker arrived, the two officers searched the building and foundthat one of the office windows had been broken, the cash register had been priedopen, and computer disks were scattered around the floor. At that point, thepolice contacted James Faker, general manager of Birkey's. Faker noticed thatseveral items were missing, including Birkey's pickup.

Officer Boyd Headrick also arrived on the scene to assist in the burglaryinvestigation. As he patrolled the area around Birkey's, Headrick noticed asilver 1985 Cadillac without any license plates parked north of Birkey's. Uponexamining the vehicle, Headrick noticed the vehicle identification number didnot match the license-applied-for sticker on the vehicle. He then called awrecker service to have the car removed from the scene, and, as he was waitingfor the wrecker service, the missing Birkey's pickup pulled into a nearbydriveway. Headrick pulled his squad car into the driveway behind the pickup. Ashe exited his squad car, a man jumped out of the truck and ran. Headrick chasedthe man on foot but was unable to catch him.

At trial, Headrick testified that the fleeing man was of Mexican descent andwearing a large bulky-type plaid jacket. Curry testified that, on the night ofthe incident, Headrick reported that the suspect was a Mexican male wearing ared-checked coat. Decker testified that Headrick reported that the suspect waswearing a dark-colored, puffy-looking coat with dark-colored pants.

The officers called for a canine unit to assist in the search for thesuspect. Officer Kurtis Buckley, with the trained canine, and Decker searchedthe area for two hours in the cold, wet weather. The officers ended up at afarmhouse where they terminated their unsuccessful search.

About an hour and a half later, the officers received a sheriff's report thata black male was walking westbound on a rural road about four miles west of thefarmhouse where the officers had terminated their unsuccessful search. Thereport came from a school bus driver who had observed defendant trying to getinto a shed and thought that was "odd and strange." Headrick, Buckley,and Decker then proceeded to the location and found defendant on foot.

At trial, Decker testified that, when he first saw defendant, defendant wasin a roadway and no vehicles were around. The nearest building was a farmhouselocated an eighth of a mile away. Defendant was moving toward the farmhouse andsurrounding buildings. His clothing was wet, muddy, and covered with cockleburs.Headrick testified that he recognized the plaid on the inside of defendant'sjacket as the plaid that he had seen earlier on the man fleeing the Birkey'spickup.

The officers stopped defendant. Decker asked defendant his name and address,arrested him, and conducted a pat-down search of defendant to make sure thatdefendant had no weapons. The record is unclear as to the order of the arrestand pat-down search of defendant. During the pat down, Office Decker felt andremoved a Swiss army knife, which had keys and a watch attached to it by achain. After obtaining a search warrant for the car, the officers determinedthat the keys belonged to the Cadillac found parked near Birkey's. Deckerprocessed the Cadillac and discovered documents bearing defendant's name inside.

Michael Trummel, a crime-scene investigator with the Illinois State Police,processed the crime scene and the stolen pickup. He obtained shoe prints fromthe crime scene, one of which was on a manila envelope on the floor of Birkey'sinterior premises. Trummel sent all of the evidence to the Illinois State Policecrime lab. At trial, Thomas Gamboe, Illinois State Police forensic scientist,explained footwear-impression analysis and testified that, based on thatanalysis, he found a match between the footprint left at the crime scene and theleft shoe that defendant was wearing when the officers apprehended him.

At trial, defense counsel objected to Decker's testimony regarding the keysobtained during the pat-down search. The following dialogue took place:

"[PROSECUTOR]: Okay. What, if anything, did you do with those keys?

[DEFENSE COUNSEL]: [I am] going to object. I [do not] believe that [he is] entitled to testify about the keys in this particular case, your Honor.

* * *

[THE COURT]: We are resumed out of the presence of the jury. [Defense Counsel], your objection.

[DEFENSE COUNSEL]: I think this is [an] illegal search, your Honor, because the only description [we have] heard about defendant is that [he is] a Hispanic. [Defendant] is obviously not Hispanic; he is obviously black[.] [T]herefore[,] the taking of the keys is the fruit of the poisonous tree so to speak[,] and [the State] should not be allowed to go into this.

* * *

[PROSECUTOR]: Your Honor, this is the most routine of pat[-]down searches. This was either--this was done pursuant to his arrest and all of the circumstances in this case; the burglary had been committed, a person had fled, this person matched to some extent the description obtained by officers conducting the investigation in this case, was found a short distance away[;] after a pat[-]down search was conducted for weapons, the keys were obtained, and this is a reasonable extension of the investigation of this matter. [The keys are] evidence, and they were properly taken into evidence.

* * *

[DEFENSE COUNSEL]: At this point the officers are basically taking a guy into custody because [he is] the wrong color in the wrong town at the wrong time. This is some five miles away from the place where the burglary took place, and [he does not] answer the description of the person that has been identified as a Hispanic male.

[THE COURT]: Well, [defense counsel], we [have not] heard anything about the condition or what other observations this officer made about [defendant], but he was on foot some distance from the location. I guess by reference to a bus driver we can infer that [it is] rural. And at this point all [I have] heard is that there was a pat down for protection of the officer, and he discovered some keys. And on that basis I [do not] think [there is] any reason to suppress what [we have] heard thus far. There may be some additional foundation the State wants to lay here."

When the prosecutor later asked Decker what he did with the keys, defensecounsel objected, the trial court overruled the objection, and Decker testifiedthat he used the keys to open the Cadillac to look for evidence of the crime atBirkey's. The jury found defendant guilty of burglary.

In April 1999, defendant filed a posttrial motion, alleging in part that"[t]he [c]ourt erred in denying the [m]otion to [s]uppress evidence thatthe keys in defendant[']s pocket fit the Cadillac automobile." The trialcourt denied defendant's posttrial motion and sentenced defendant as stated.This appeal followed.

II. ANALYSIS

A. Motion To Suppress

Defendant first contends that the trial court erred in denying his motion tosuppress the keys obtained during a search of his person. The trial court'sruling on a motion to suppress is generally entitled to great deference, andthis court will not disturb it on review unless it is against the manifestweight of the evidence. People v. Smith, 315 Ill. App. 3d 772, 775, 734N.E.2d 1039, 1041 (2000).

The State asserts that defendant has forfeited this issue because the groundsraised in his posttrial motion differ from his argument at trial. We disagree.At trial, defense counsel argued that the keys should be suppressed because theywere seized as the result of an illegal search. In his posttrial motion,defendant asserted that the trial court erred in denying his motion to suppress.We find that defendant's assertion of error in his posttrial motion sufficed topreserve this issue for appeal.

Here, the officers stopped defendant, asked him his name and address, andthen arrested him. The facts are unclear as to whether defendant was searchedbefore or after his arrest. Defendant contends the seizure of the keys was theresult of a stop and frisk prior to the arrest. Conversely, the State argues theseizure was the result of a search incident to arrest. However, the real issuehere is whether probable cause to arrest defendant existed when the officerssearched him because, if it did, the search is justified as a search incident tothe arrest. People v. Miller, 212 Ill. App. 3d 195, 200, 570 N.E.2d 1202,1206 (1991). A search may be conducted immediately prior to the arrest and neednot take place after it. People v. Boyd, 298 Ill. App. 3d 1118, 1125, 700N.E.2d 444, 449 (1998), citing Rawlings v. Kentucky, 448 U.S. 98, 111& n.6, 65 L. Ed. 2d 633, 645-46 & n.6, 100 S. Ct. 2556, 2564 & n.6(1980).

A police officer can make a warrantless arrest when "[h]e has reasonablegrounds to believe that the person is committing or has committed anoffense." 725 ILCS 5/107-2(1)(c) (West 1998). As used in the statute,"reasonable grounds" is synonymous with "probable cause." Peoplev. Smith, 222 Ill. App. 3d 473, 478, 584 N.E.2d 211, 215 (1991). Indetermining if probable cause exists, the trial court must decide whether"'a reasonable and prudent [person], having the knowledge possessed by theofficer at the time of the arrest, would believe the defendant committed theoffense.'" People v. Tisler, 103 Ill. 2d 226, 237, 469 N.E.2d 147,153 (1984), quoting People v. Wright, 41 Ill. 2d 170, 174, 242 N.E.2d180, 183 (1968). Probable cause need not be based on evidence sufficient toconvict (People v. Neal, 111 Ill. 2d 180, 193, 489 N.E.2d 845, 849(1985)), and the calculation concerns the probability of criminal activity andnot proof beyond a reasonable doubt (People v. House, 141 Ill. 2d 323,370, 566 N.E.2d 259, 280 (1990)). In determining probable cause, police mayconsider as relevant the closeness in geographic location and time between crimeand arrest. People v. McCleary, 208 Ill. App. 3d 466, 478, 567 N.E.2d434, 441 (1990).

Defendant argues that the police lacked probable cause to arrest him becausea general description of a defendant is insufficient to support probable cause.See People v. Barnes, 70 Ill. App. 3d 566, 569, 388 N.E.2d 869, 871(1979) ("'a general description is insufficient to provide the probablecause necessary to justify an arrest unless it is supported by other relativefacts and circumstances known to the arresting officer.' (In re Woods, 20Ill. App. 3d 641, 646, 314 N.E.2d 606[, 609 (1974)]"). However, unlike thecases cited by defendant, the officer that witnessed the suspect fleeing andgave the general description was one of the officers who apprehended defendant.At trial, the officer testified that he recognized the plaid on the inside ofdefendant's jacket.

When the officers arrested defendant, they knew the following: a business hadbeen burglarized and a pickup stolen; a man was seen driving the stolen pickup;the man took flight in a rural area on a rainy night when he saw police;defendant was located about four hours later and five miles away from the sceneof the burglary; the officer who witnessed the man's flight from the crime sceneearlier identified defendant as the man who fled; and defendant was wet, muddy,and covered with cockleburs. Based upon these facts known to police at the timeof defendant's arrest, probable cause existed to believe a crime was committedand defendant committed the crime. Accordingly, we find the trial court's rulingon the motion to suppress was not against the manifest weight of the evidence.

B. Ineffective Assistance of Counsel

Defendant next argues that he was denied effective assistance of counselbecause his trial counsel did not file a motion to quash his arrest and suppressevidence of his clothing and shoes seized after the arrest. Ineffectiveassistance of counsel claims are reviewed under the standard set forth in Stricklandv. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Peoplev. Evans, 186 Ill. 2d 83, 93, 708 N.E.2d 1158, 1163 (1999). To obtainreversal under Strickland, a defendant must prove that (1) his counsel'sperformance failed to meet an objective standard of competence, and (2)counsel's deficient performance resulted in prejudice to the defendant. Evans,186 Ill. 2d at 93, 708 N.E.2d at 1163. The Strickland court noted that,when a case is more easily decided on the ground of lack of sufficientprejudice, rather than that counsel's representation was constitutionallydeficient, the court should do so. Strickland, 466 U.S. at 697, 80 L. Ed.2d at 699, 104 S. Ct. at 2069.

Since the officers had probable cause to arrest defendant, the arrest waslegal, and a motion to quash the arrest and suppress evidence would have beendenied. Accordingly, defendant cannot show prejudice as required by Stricklandto succeed on this ineffective assistance of counsel claim.

In the alternative, defendant argues the failure to suppress the shoes thathe was wearing when arrested is plain error. We disagree. Police may reasonablysearch and/or seize, without a warrant, the personal effects of a person underlawful arrest as part of the routine administrative procedure at a policestation incident to booking and jailing the suspect. People v. Hadley,179 Ill. App. 3d 152, 155, 534 N.E.2d 395, 397 (1989), citing Illinois v.Lafayette, 462 U.S. 640, 643, 77 L. Ed. 2d 65, 69, 103 S. Ct. 2605, 2608(1983). Here, defendant's shoes were evidently seized because of a shoe printfound on an envelope in the interior of the crime scene. Because defendant waslawfully arrested when his shoes were seized, no error occurred by notsuppressing the shoes. Absent error, plain error cannot exist.

C. Recoupment Order for Public Defender Fees

Defendant also argues that the trial court erred in not holding a hearing ondefendant's ability to pay public defender fees before ordering him to pay.While the State agrees the court did not strictly comply with the statute andcase law, the State requests that we remand the cause for a new recoupmenthearing. Defendant asserts that the State is time-barred from requesting such ahearing because section 113-3.1(a) of the Code of Criminal Procedure of 1963(Procedure Code) (725 ILCS 5/113-3.1(a) (West 1998)) provides that a trial courtmust hold a recoupment hearing within 90 days after the entry of a final orderdisposing of the case at the trial court level. We disagree.

Here, the trial court held a recoupment hearing within the 90-day period.However, because the hearing did not comply with other provisions of section113-3.1(a), we vacate that portion of the trial court's sentencing orderrequiring defendant to pay $1,000 in appointed counsel's fees and remand thecause for a hearing pursuant to section 113-3.1 of the Procedure Code. See Peoplev. Love, 177 Ill. 2d 550, 565, 687 N.E.2d 32, 39 (1997).

D. Wage Withholding Order

Next, defendant argues that the trial court exceeded its authority when itordered DOC to withhold 50% of defendant's monthly corrections income and remitit to the Ford County circuit clerk to satisfy restitution and court costs. TheState concedes this issue, and we agree. No authority exists for a trial courtto direct DOC to withhold wages earned while a defendant is imprisoned. See Peoplev. Watson, 318 Ill. App. 3d 140, 142-43, ___ N.E.2d ___, ___ (2000).Accordingly, the part of the trial court's sentencing order directing DOC towithhold defendant's corrections wages is void, and we vacate it.

E. Consecutive Sentencing

Finally, defendant argues that section 5-8-4(b) of the Unified Code violateshis rights to due process and a jury trial under the United States SupremeCourt's decision in Apprendi v. New Jersey, 530 U.S. ___, 147 L. Ed. 2d435, 120 S. Ct. 2348 (2000). We review the constitutionality of a statute denovo. People v. Fisher, 184 Ill. 2d 441, 448, 705 N.E.2d 67, 71-72(1998). The applicability of Apprendi is a pure question of law. UnitedStates v. Shepard, 235 F.3d 1295, 1296 (11th Cir. 2000).

The trial court may, in its discretion, impose consecutive sentences pursuantto section 5-8-4(b) if it believes that such sentences are necessary to protectthe public. Section 5-8-4(b) provides:

"The court shall not impose a consecutive sentence except as provided for in subsection (a) unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record ***." 730 ILCS 5/5-8-4(b) (West 1998).

Defendant argues that the imposition of consecutive sentences offends theprinciples outlined in Apprendi. The State counters, arguing that, by itsown terms, Apprendi does not apply to consecutive sentences imposed undersection 5-8-4(b). We agree with the State and find section 5-8-4(b)constitutional.

In Apprendi, a New Jersey statute provided that the possession of afirearm for an unlawful purpose was a "second-degree" offense,punishable by a 5- to 10-year prison sentence. Apprendi, 530 U.S. at ___,147 L. Ed. 2d at 442, 120 S. Ct. at 2351. Another statute, described as a"hate crime" law, provided for an extended term of imprisonment if thetrial judge found, by a preponderance of the evidence, that "'[t]hedefendant in committing the crime acted with a purpose to intimidate anindividual or group of individuals because of race, color, gender, handicap,religion, sexual orientation[,] or ethnicity.'" Apprendi, 530 U.S.at ___, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351, quoting N.J. Stat. Ann.