{ "id": 3777010, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE D. DAVIS, Defendant-Appellant", "name_abbreviation": "People v. Davis", "decision_date": "2003-11-13", "docket_number": "No. 4-00-0322", "first_page": "400", "last_page": "413", "citations": [ { "type": "official", "cite": "344 Ill. App. 3d 400" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "636 N.E.2d 834", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "839" }, { "page": "839" } ], "opinion_index": 0 }, { "cite": "259 Ill. App. 3d 949", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2871638 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "956" }, { "page": "956-57" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/259/0949-01" ] }, { "cite": "763 N.E.2d 925", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "930" } ], "opinion_index": 0 }, { "cite": "327 Ill. App. 3d 829", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 79463 ], "year": 2002, "pin_cites": [ { "page": "835" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/327/0829-01" ] }, { "cite": "546 N.E.2d 553", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "555" } ], "opinion_index": 0 }, { "cite": "131 Ill. 2d 370", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5569773 ], "year": 1989, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0370-01" ] }, { "cite": "737 N.E.2d 230", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "245", "parenthetical": "\"Before invoking the plain error exception, however, 'it is appropriate to determine whether error occurred at all.' People v. Wade, 131 Ill. 2d 370, 376[, 546 N.E.2d 553, 555] (1989)\"" } ], "opinion_index": 0 }, { "cite": "193 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 963704 ], "year": 2000, "pin_cites": [ { "page": "27", "parenthetical": "\"Before invoking the plain error exception, however, 'it is appropriate to determine whether error occurred at all.' People v. Wade, 131 Ill. 2d 370, 376[, 546 N.E.2d 553, 555] (1989)\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/193/0001-01" ] }, { "cite": "793 N.E.2d 816", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "840" } ], "opinion_index": 0 }, { "cite": "341 Ill. App. 3d 950", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5573206 ], "year": 2003, "pin_cites": [ { "page": "976-77" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/341/0950-01" ] }, { "cite": "713 N.E.2d 532", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1999, "pin_cites": [ { "page": "535" }, { "page": "537", "parenthetical": "holding that trial courts should not consider the mere-fact impeachment method" }, { "page": "538" }, { "page": "538" }, { "page": "537-38", "parenthetical": "holding that the trial court did not abuse its discretion by allowing evidence of defendant's two prior burglary convictions at defendant's burglary trial" } ], "opinion_index": 0 }, { "cite": "186 Ill. 2d 450", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243932 ], "weight": 5, "year": 1999, "pin_cites": [ { "page": "456" }, { "page": "461" }, { "page": "463" }, { "page": "462-63" }, { "page": "461-63" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0450-01" ] }, { "cite": "268 N.E.2d 695", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "47 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903225 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill-2d/47/0510-01" ] }, { "cite": "785 N.E.2d 86", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "94" } ], "opinion_index": 0 }, { "cite": "337 Ill. App. 3d 106", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 894516 ], "year": 2003, "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/337/0106-01" ] }, { "cite": "680 N.E.2d 315", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "318" } ], "opinion_index": 0 }, { "cite": "176 Ill. 2d 372", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544881 ], "year": 1997, "pin_cites": [ { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0372-01" ] }, { "cite": "658 N.E.2d 445", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "448", "parenthetical": "holding that where the requirements for mandatory consecutive sentencing were met, the trial court's imposition of concurrent prison terms was void" }, { "page": "448" } ], "opinion_index": 0 }, { "cite": "168 Ill. 2d 107", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307263 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "113", "parenthetical": "holding that where the requirements for mandatory consecutive sentencing were met, the trial court's imposition of concurrent prison terms was void" }, { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/168/0107-01" ] }, { "cite": "619 N.E.2d 750", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "754-55" }, { "page": "754", "parenthetical": "\"a court may not lose jurisdiction because it makes a mistake in determining either the facts, the law[,] or both\"" } ], "opinion_index": 0 }, { "cite": "156 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777558 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "155-56" }, { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0149-01" ] }, { "cite": "698 N.E.2d 671", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "673-74", "parenthetical": "holding that the appellate court had no authority on appeal following revocation of probation to review voidable judgment in underlying proceeding" } ], "opinion_index": 0 }, { "cite": "298 Ill. App. 3d 241", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073544 ], "year": 1998, "pin_cites": [ { "page": "244", "parenthetical": "holding that the appellate court had no authority on appeal following revocation of probation to review voidable judgment in underlying proceeding" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/0241-01" ] }, { "cite": "361 N.E.2d 579", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "page": "581", "parenthetical": "holding that the appellate court lacked jurisdiction to review the defendant's initial judgment of conviction in an appeal from the revocation of his probation" } ], "opinion_index": 0 }, { "cite": "66 Ill. 2d 174", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5464240 ], "year": 1977, "pin_cites": [ { "page": "178-79", "parenthetical": "holding that the appellate court lacked jurisdiction to review the defendant's initial judgment of conviction in an appeal from the revocation of his probation" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0174-01" ] }, { "cite": "762 N.E.2d 1180", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "1184-85" }, { "page": "1184-85" } ], "opinion_index": 0 }, { "cite": "327 Ill. App. 3d 252", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 79508 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "257" }, { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/327/0252-01" ] }, { "cite": "751 N.E.2d 573", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "575" } ], "opinion_index": 0 }, { "cite": "323 Ill. App. 3d 102", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 171679 ], "year": 2001, "pin_cites": [ { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/323/0102-01" ] } ], "analysis": { "cardinality": 1181, "char_count": 29123, "ocr_confidence": 0.784, "pagerank": { "raw": 4.7492960360752035e-08, "percentile": 0.2982181586648488 }, "sha256": "63e4552752dd28938e1be013f301cd1b16cc60863db72359256a918f4a9903a0", "simhash": "1:02699be4bbf7cc74", "word_count": 4793 }, "last_updated": "2023-07-14T15:11:26.904766+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE D. DAVIS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nThis case requires this court, in part, to determine whether allegedly improper probationary conditions may be challenged as void years later in an appeal from the revocation of a defendant\u2019s probation. On the facts of this case, we hold they may not.\nI. PROCEDURAL HISTORY\nIn September 1996, defendant, Eugene D. Davis, pleaded guilty in case No. 96 \u2014 CF\u2014198 to delivery of a controlled substance on public housing property (a Class 1 felony) (720 ILCS 570/401(d), 407(b)(2) (West 1996)), and the trial court sentenced him to 48 months\u2019 probation, subject to various conditions, including that defendant serve 354 days of periodic imprisonment with work release.\nIn July 1998, the State charged defendant in case No. 98 \u2014 CF\u2014 381 with (1) one count of possession of a controlled substance (720 ILCS 570/402(c) (West 1998)), (2) two counts of criminal trespass to State-supported property (720 ILCS 5/21 \u2014 5 (West 1998)), and (3) one count of violating an order of protection (720 ILCS 5/12 \u2014 30 (West 1998)).\nIn July 1999, the State filed a petition to revoke defendant\u2019s probation in case No. 96 \u2014 CF\u2014198, alleging that he failed to (1) report to his probation officer between February 1999 and June 1999 and (2) pay his monthly probation service fee.\nIn September 1999, the State charged defendant in case No. 98\u2014 CF \u2014 422 with retail theft (subsequent offense) (720 ILCS 5/16A \u2014 3(a) (West 1998)).\nIn October 1999, (1) a jury convicted defendant of possession of a controlled substance (720 ILCS 570/402(c) (West 1998)) in case No. 98 \u2014 CF\u2014381, and (2) the trial court found that defendant had violated his probation in case No. 96 \u2014 CF\u2014198 but reserved ruling on whether to revoke probation until the sentencing hearing. In December 1999, defendant pleaded guilty to retail theft in case No. 99 \u2014 CF\u2014422.\nLater in December 1999, the trial court conducted a sentencing hearing on case Nos. 96 \u2014 CF\u2014198, 98 \u2014 CF\u2014381, and 99 \u2014 CF\u2014422. At the conclusion of that hearing, the court sentenced defendant as follows: (1) 10 years in prison (with credit for 99 days served) for delivery of a controlled substance on public housing property (720 ILCS 570/401(d), 407(b)(2) (West 1996)) (case No. 96 \u2014 CF\u2014198); (2) 6 years in prison (with credit for 33 days served) for possession of a controlled substance (720 ILCS 570/402(c) (West 1998)) (case No. 98\u2014 CF \u2014 381); and (3) 6 years in prison (with credit for 76 days served) for retail theft (720 ILCS 5/16A \u2014 3(a) (West 1998)) (case No. 99 \u2014 CF\u2014 422). The court ordered all defendant\u2019s sentences to run concurrently.\nDefendant appeals, arguing that (1) certain provisions of the trial court\u2019s September 1996 periodic imprisonment order are void; (2) the court abused its discretion during defendant\u2019s October 1999 jury trial by allowing the State to choose which of defendant\u2019s prior convictions would be admitted for impeachment purposes; (3) cumulative errors deprived him of a fair trial; and (4) he is entitled to two additional days of credit against his sentence for time served. We affirm defendant\u2019s convictions and sentences as modified but remand for correction of the sentencing order.\nII. DEFENDANT\u2019S APPEAL IN CASE No. 96 \u2014 CF\u2014198\nA. Background\nAs previously stated, in September 1996, the trial court sentenced defendant to 48 months\u2019 probation. As a condition of probation, the court also ordered that he serve 354 days of periodic imprisonment with work release. Pursuant to the court\u2019s order encaptioned \u201cPeriodic Imprisonment Order of Distribution of Employment Compensation,\u201d the Vermilion County probation department was directed to collect all compensation earned by defendant during the term of his periodic imprisonment and distribute those funds as follows:\n\u201c(a) To [Vermilion County] the sum of $5.00 for each day or partial day of incarceration.\n(b) To the defendant for necessary travel and incidental expenses. Disbursement shall be made after each pay interval in an amount requested by the defendant and approved by the Probation Department.\n(c) To the dependents of the offender in an amount requested by the defendant and approved by the probation officer.\n(d) To apply toward fines, costs, fees, and restitution as ordered by the [c]ourt.\n(e) To the offender at the completion of his term of sentence any undistributed balance.\u201d\nB. Analysis\nDefendant argues that three of the five wage distribution provisions set forth in the trial court\u2019s order are void. Specifically, he contends as follows: (1) paragraph (b) is void because section 5 \u2014 7\u2014 6(a) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5\u2014 7 \u2014 6(a) (West 1996)) authorizes the withholding of income for travel expenses only when those expenses are incurred by the administrator of the offender\u2019s imprisonment; (2) paragraph (d) is void because it allows fines, costs, fees, and restitution to be taken out of defendant\u2019s paycheck without any of the \u201climits of process\u201d required by the Code of Civil Procedure (Code) (735 ILCS 5/12 \u2014 801 through 12 \u2014 819 (West 1996)); and (3) paragraph (e) is void because it allows the probation department to keep earnings not otherwise used until defendant completes his sentence and, thus, (a) is not authorized by section 5 \u2014 7\u20146(a) of the Unified Code (730 ILCS 5/5 \u2014 7\u20146(a) (West 1996)), (b) violates the Code, and (c) is not consistent with section 3 \u2014 13\u20146 of the Unified Code (730 ILCS 5/3 \u2014 13\u20146 (West 1996)).\nDefendant concedes that he neither (1) raised a timely objection to the trial court\u2019s 1996 periodic imprisonment order nor (2) directly appealed that order. Nevertheless, he contends that because these provisions of the court\u2019s order are void, they may be attacked at any time.\nWhen a defendant does not file a timely notice of appeal from an order placing him on probation, this court lacks jurisdiction to consider errors in the underlying conviction \u201cunless such errors render the conviction void.\u201d People v. Arnold, 323 Ill. App. 3d 102, 104, 751 N.E.2d 573, 575 (2001). In People v. Johnson, 327 Ill. App. 3d 252, 257, 762 N.E.2d 1180, 1184-85 (2002), this court held that an erroneously imposed condition of probation did not render the defendant\u2019s probationary sentence void, and we wrote as follows:\n\u201cIf defendant had raised the matter on direct appeal, *** only the improper condition *** would have been vacated; the sentence of probation would otherwise stand. A condition of probation improperly imposed does not render the entire order of probation void, it merely renders the condition voidable.\u201d Johnson, 327 Ill. App. 3d at 257, 762 N.E.2d at 1184-85.\nAccordingly, we conclude that in this case, the alleged improprieties in the trial court\u2019s order of probation and, as a condition thereof, periodic imprisonment, would constitute voidable errors rather than void judgments. We thus lack jurisdiction to consider those errors in this appeal. See People v. Stueve, 66 Ill. 2d 174, 178-79, 361 N.E.2d 579, 581 (1977) (holding that the appellate court lacked jurisdiction to review the defendant\u2019s initial judgment of conviction in an appeal from the revocation of his probation); People v. Morrison, 298 Ill. App. 3d 241, 244, 698 N.E.2d 671, 673-74 (1998) (holding that the appellate court had no authority on appeal following revocation of probation to review voidable judgment in underlying proceeding).\nIn so concluding, we offer the following on the distinction between voidable errors and void judgments. In People v. Davis, 156 Ill. 2d 149, 155-56, 619 N.E.2d 750, 754-55 (1993), the Supreme Court of Illinois addressed what it means for a judgment to be void and wrote as follows:\n\u201cThe term \u2018void\u2019 is so frequently employed interchangeably with the term \u2018voidable\u2019 as to have lost its primary significance. Therefore, when the term \u2018void\u2019 is used in a judicial opinion it is necessary to resort to the context in which the term is used to determine precisely the term\u2019s meaning. Whether a judgment is void or voidable presents a question of jurisdiction. [Citation.] Jurisdiction is a fundamental prerequisite to a valid prosecution and conviction. Where jurisdiction is lacking, any resulting judgment rendered is void and may be attacked either directly or indirectly at any time. [Citation.] By contrast, a voidable judgment is one entered erroneously by a court having jurisdiction and is not subject to collateral attack. [Citation.]\nIn Illinois, jurisdiction is conferred by the constitution. [Citation.] Pursuant to article VI, section 9, of our constitution, the circuit courts have jurisdiction over all justiciable matters. (Ill. Const. 1970, art. VI, \u00a7 9.) As applied in the context of criminal proceedings, the term \u2018subject[-]matter\u2019 jurisdiction means the power to hear and determine a given case. [Citation.]\nSome authorities, including this court, have held that the power to render the particular judgment or sentence is as important an element of jurisdiction as is personal jurisdiction and subject[-] matter jurisdiction. Without such power the judgment or sentence is void. [Citations.] However, jurisdiction or power to render a particular judgment does not mean that the judgment rendered must be the one that should have been rendered, for the power to decide carries with it the power to decide wrong as well as to decide right. [Citations.]\nGenerally, once a court has acquired jurisdiction, no subsequent error or irregularity will oust the jurisdiction thus acquired. Accordingly, a court may not lose jurisdiction because it makes a mistake in determining either the facts, the law[,] or both. [Citation.] However, a judgment or decree may be void where a court has exceeded its jurisdiction.\u201d\nPeople v. Arna, 168 Ill. 2d 107, 113, 658 N.E.2d 445, 448 (1995) (holding that where the requirements for mandatory consecutive sentencing were met, the trial court\u2019s imposition of concurrent prison terms was void), is widely cited for the proposition that a sentence that is not authorized by statute is void. However, Arna should not be construed as allowing collateral attack of any sentencing error a trial court makes in applying provisions of the Unified Code, especially where \u2014 as here \u2014 the provisions at issue address matters of an . administrative nature rather than the deprivation of liberty. Even in light of Arna, questions of voidness remain questions of jurisdiction.\nAlthough trial courts have discretion to fashion sentences, that discretion is limited by the sentencing statutes. Thus, courts do not have discretionary authority to sentence a defendant beyond the maximum allowable sentence prescribed by the Unified Code or to order concurrent sentences when the Unified Code requires consecutive sentences. Arna, 168 Ill. 2d at 113, 658 N.E.2d at 448. However, when a trial court enters an order of probation, it has wide discretion in fashioning probationary conditions. People v. Meyer, 176 Ill. 2d 372, 378, 680 N.E.2d 315, 318 (1997).\nSection 5 \u2014 6\u20143(a) of the Unified Code sets forth nine mandatory conditions of probation the trial court must impose in certain cases (730 ILCS 5/5 \u2014 6\u20143(a) (West 2000)). Section 5 \u2014 6\u20143(b) of the Unified Code sets forth another 16 conditions of probation the court may impose in its discretion. Significantly, in addition to all of these mandatory and discretionary probation conditions, section 5 \u2014 6\u20143(b) of the Unified Code begins its list of discretionary conditions with the following language: \u201cThe [c]ourt may[,] in addition to other reasonable conditions relating to the nature of the offense or the rehabilitation of the defendant as determined for each defendant in the proper discretion of the [cjourt, require that the [defendant do the following].\u201d (Emphasis added.) 730 ILCS 5/5 \u2014 6\u20143(b) (West 2000). By this language, the legislature is saying, \u201cLook, judge, we\u2019ve already provided you with two dozen possible probationary conditions, but if, in your judgment, you can think up some other reasonable probationary conditions, please feel free to use them.\u201d\nA trial court might abuse its discretion by imposing an unreasonable condition of probation, but such an abuse of discretion is not equivalent to the court\u2019s exceeding its jurisdiction. We decline to hold that a trial court exceeds its jurisdiction when it imposes a condition that is arguably unreasonable or crafts an order that misapplies the administerial provisions of the periodic imprisonment statute. See Davis, 156 Ill. 2d at 156, 619 N.E.2d at 754 (\u201ca court may not lose jurisdiction because it makes a mistake in determining either the facts, the law[,] or both\u201d). If a defendant is truly aggrieved by any such alleged improprieties in the court\u2019s imposition of probationary conditions, then his remedy is to take a direct appeal. We simply hold that he may not sit silently only to attempt to raise the issue years later in an appeal, as here, from an order revoking his probation or periodic imprisonment.\nIn sum, we reject defendant\u2019s claim that Arna applies to this case. The trial court\u2019s imposition of allegedly improper probationary conditions, in violation of the court\u2019s discretionary authority, cannot be equated with a court\u2019s (1) disregard of a statutory mandate (as in Arna) or (2) imposition of a prison sentence that exceeded the maximum permitted under the Unified Code.\nIII. DEFENDANT\u2019S APPEAL IN CASE No. 98 \u2014 CF\u2014381\nA. Background\nAt defendant\u2019s October 1999 jury trial, Danville police officer Steven Wilson testified that on June 19, 1998, he was on patrol in a squad car with Danville police officer John Miller. At around 2 p.m., he saw defendant standing in the rear doorway to a residence at 1613 East Fairchild, which is on public housing authority property. Wilson knew that defendant was barred from all housing authority property. He also (1) knew that Lynette Brandt was the resident of 1613 East Fairchild, and (2) was familiar with the layout of the residence. Wilson then saw defendant enter the residence. After Wilson parked the squad car, Miller went to the front entrance of the residence and Wilson proceeded to the back door. As he walked toward the back door, Brandt also approached that door. As they approached, Wilson noticed the back door being closed by someone inside the residence. Wilson told Brandt that he had seen defendant at the residence and needed to speak with him. Brandt told Wilson that Barbara Davis, defendant\u2019s sister, was inside, and Brandt knocked on the back door. Barbara opened the door, and Brandt and Wilson entered.\nWilson began looking for defendant on the first floor of the residence, and Brandt let Miller in through the front door. Wilson then went upstairs, where he found defendant standing in the hallway. A large amount of clothing was on the floor near defendant, and a box of clothing was next to where he was standing. Wilson placed defendant under arrest for being on the property, placed him in handcuffs, and searched him incident to arrest. He found a crack pipe in defendant\u2019s pants pocket. Miller came upstairs and took custody of defendant. Wilson then conducted a \u201cpat down\u201d of the immediate area where defendant had been standing. In a box of clothing directly next to where defendant had been standing, Wilson found a small plastic Baggie containing what was later identified as crack cocaine. The Baggie had been on top of the clothing in the box. Wilson held the Baggie up and remarked, \u201c[L]ook what I found.\u201d Barbara said, \u201c[W]hat is it?,\u201d and defendant replied, \u201c[I]t\u2019s just a [gjanke bag.\u201d Wilson asked defendant if he meant that it was not real. Defendant replied, \u201cI\u2019ve been ganked before and I was going to ganke someone.\u201d Wilson had heard the term \u201cganke\u201d before and explained that it is often used to refer to something that is purported to be drugs but is not. Wilson acknowledged that he did not see defendant hide anything in the clothing or throw anything to the floor.\nMiller\u2019s testimony regarding defendant\u2019s arrest was substantially similar to Wilson\u2019s. Miller had not seen the Baggie before Wilson lifted it out of the box. Miller further testified that he was with defendant at the public safety building when Wilson informed Miller that the substance in the Baggie had field-tested positive for cocaine. Miller then told defendant that he would be charged with possession of a controlled substance. Defendant responded, \u201c[A]ll right. I knew it was real, but can\u2019t we work something out. Come on, man, give me a break. I got to work tomorrow.\u201d\nDanville police officer Larry Thompson testified regarding the evidence storage procedures utilized in the case. Illinois State Police lab scientist Nancy Antonacci testified that the Baggie had contained 0.1 grams of cocaine base.\nJanice Hoke testified on defendant\u2019s behalf that she used to \u201cget high\u201d with Brandt. Hoke testified regarding an occasion on which defendant was arrested at Brandt\u2019s residence; however, she was not certain that it was the June 19, 1998, incident because she had been led to believe that her recollection could have corresponded to one of two different dates.\nDefendant testified that on the day of his arrest, he went to th\u00e9 East Fairchild residence to see Brandt, who was his girlfriend. He acknowledged that he was not allowed to be there. He initially stated that when he heard police walkie-talkies he went upstairs to the bathroom door. Hoke and Brandt were in the bathroom at that time. Later in his testimony, defendant indicated that he had been lying down in an upstairs bedroom when he heard the walkie-talkies. Hoke told Brandt not to open the door to the residence because there was a warrant for her arrest. Brandt went downstairs and answered the door. Defendant was standing in the hallway when the officers came upstairs and arrested him. After the officers arrested defendant, Brandt, and Hoke, defendant\u2019s sister arrived.\nDefendant also testified that Hoke had handed him the crack pipe when she was in the bathroom, just before his arrest. Hoke left the bathroom and walked downstairs past the officers while defendant was being arrested. According to defendant, the box where Wilson found the Baggie was two to three feet from defendant. None of the clothes in the hallway belonged to him, and he had not seen the Baggie before Wilson removed it from the box. Defendant did not recall (1) saying anything about the Baggie being \u201cganke\u201d or (2) admitting to Miller that he knew the substance in the Baggie was cocaine. He recalled telling Miller that he had to go to work the next day.\nWilson and Miller both testified on rebuttal that in early May 1998, they went to the East Fairchild residence on a different matter and arrested Brandt, Hoke, and defendant.\nOver defendant\u2019s objection, the trial court admitted for impeachment purposes defendant\u2019s certified convictions for the following: (1) a 1990 aggravated battery conviction, (2) a 1994 unlawful use of a firearm by a felon conviction, and (3) a 1996 delivery of a controlled substance on public housing property conviction (case No. 96 \u2014 CF\u2014 198).\nBased on this evidence, the jury convicted defendant of possession of a controlled substance.\nB. Analysis\n1. Prior-Conviction Evidence\nDefendant argues that the trial court abused its discretion by allowing the prosecutor to determine which of defendant\u2019s prior convictions to admit in evidence for impeachment purposes. We disagree.\nWhether evidence of a prior conviction may be admitted in evidence for impeachment purposes is a question that lies within the trial court\u2019s discretion. People v. Cooper, 337 Ill. App. 3d 106, 116, 785 N.E.2d 86, 94 (2003). The admission of a prior conviction to impeach the credibility of a witness is governed by the test established in People v. Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695 (1971). Under the Montgomery test, evidence of a prior conviction is admissible for impeachment if (1) the crime was punishable by death or imprisonment in excess of one year, or involved dishonesty or false statement regardless of the punishment; (2) less than 10 years have passed since the date of conviction of the prior crime or release of the witness from confinement, whichever is later; and (3) the probative value of admitting the prior conviction outweighs the danger of unfair prejudice. People v. Atkinson, 186 Ill. 2d 450, 456, 713 N.E.2d 532, 535 (1999).\nAt a hearing just prior to defendant\u2019s trial, the trial court and counsel revisited the question of the admissibility of defendant\u2019s prior convictions for impeachment purposes. Defendant contends that the following colloquy shows that the court \u201cdelegated\u201d to the prosecutor its authority to decide which of defendant\u2019s prior convictions would be admitted.\n\u201cTHE COURT: *** I do have some question as I sit here and think about this as to whether or not it\u2019s overkill to put in two felony drug convictions. It seems to me that your point might be made quite clearly with the use of one of those convictions. I don\u2019t want to cut the State off at the knees, but, on the other hand, I do want to apply balance as much as I possibly can to recognize potential prejudice to this defendant through overkill and so I don\u2019t know that it really makes a whole lot of difference, Mr. Mills, but I do think that it might be fair under the circumstance to allow you to advise the [c]ourt which delivery conviction you would prefer to use knowing that I\u2019m going to let one in and not the other.\nMR. MILLS [(Assistant State\u2019s Attorney)]: Delivery of a [c]on-trolled [s]ubstance on [public] [h]ousing [p]roperty.\nTHE COURT: And that would be [case No. 96 \u2014 CF\u2014198],\nMR. MILLS: That would be correct, [y]our [h]onor. That is also the more recent one which lends some support too.\nTHE COURT: All right. Then the ruling of the [c]ourt will be, in essence, to reverse myself as far as the June decision. I can only hope that at that point Atkinson hadn\u2019t come down yet, but if it did I was clearly incorrect in my decision, and if it hadn\u2019t then I\u2019m somewhat vindicated, but today I am going to apply Atkinson\u2019s findings and we will not be using the mere[-]fact approach.\nWe will allow the admission of the felony convictions for the aggravated battery, I think you said unlawful possession by a felon.\nMR. MILLS: Yes, [y]our [h]onor.\nTHE COURT: And the delivery as to [case No. 96 \u2014 CF\u2014198]. [The other felony drug conviction] will not be admitted.\nMR. MILLS: And the misdemeanor retail theft, right.\nTHE COURT: And the misdemeanor retail theft that I earlier ruled upon, that ruling will remain.\u201d\nWe disagree with defendant\u2019s interpretation of the above colloquy. The trial court did not.delegate its authority to rule on the admissibility of defendant\u2019s prior convictions. Rather, the court informed the prosecutor that he would be limited to one conviction for possession of a controlled substance, asked the prosecutor which one he would like to admit, and then ruled that it would be admitted. The record does not show that the court ceased to exercise its discretion during the proceeding. Indeed, the record shows that the court gave considerable attention to the matter, having earlier ruled that the mere-fact method of impeachment could be used, but then later changing course in light of the supreme court\u2019s holding in Atkinson. See Atkinson, 186 Ill. 2d at 461, 713 N.E.2d at 537 (holding that trial courts should not consider the mere-fact impeachment method). If the court had deemed that the risk of unfair prejudice outweighed the probative value of the prior-conviction evidence, the court would have barred it. The record does not show that the court failed to exercise its discretion or delegated its authority.\nWe further note that similarity between the prior conviction and the offense charged does not mandate exclusion of the prior conviction. Instead, it is merely a factor to be considered. Atkinson, 186 Ill. 2d at 463, 713 N.E.2d at 538; People v. Sykes, 341 Ill. App. 3d 950, 976-77, 793 N.E.2d 816, 840 (2003). Here, as in Atkinson, (1) the jury was instructed to consider defendant\u2019s prior convictions only for the purpose of assessing his credibility and not as evidence of his guilt, and (2) defendant\u2019s credibility was a central issue in the case. See Atkinson, 186 Ill. 2d at 462-63, 713 N.E.2d at 538. The trial court did not abuse its discretion by finding that the probative value of admitting defendant\u2019s conviction for possession of a controlled substance on public housing property was not outweighed by the danger of unfair prejudice to defendant. See Atkinson, 186 Ill. 2d at 461-63, 713 N.E.2d at 537-38 (holding that the trial court did not abuse its discretion by allowing evidence of defendant\u2019s two prior burglary convictions at defendant\u2019s burglary trial).\n2. Cumulative Errors\nDefendant next argues that he was deprived of a fair trial \u201cby cumulative error which adversely [ajffected his credibility.\u201d Specifically, he contends that in addition to the evidence of his prior convictions, his credibility was unfairly undermined when the prosecutor made the following improper remarks during closing argument.\n\u201cLet\u2019s look at something *** that\u2019s in the *** testimony, though. By the defendant\u2019s version \u2014 by the officer\u2019s version there is another person present. The defendant\u2019s sister Barbara Davis. She did not testify today. I would suggest you can consider from that whether or not she would support the defendant\u2019s version because she wouldn\u2019t. If she would he would have called her here. Why not here? Because the defendant\u2019s sister wouldn\u2019t dabble his story.\u201d\nDefendant concedes that he neither raised a timely objection to the prosecutor\u2019s remarks nor raised this issue in a posttrial motion. Nonetheless, he contends that the remarks amount to plain error. Not only do we conclude there is no plain error, we conclude that the prosecutor\u2019s remarks did not constitute error at all. See People v. Williams, 193 Ill. 2d 1, 27, 737 N.E.2d 230, 245 (2000) (\u201cBefore invoking the plain error exception, however, \u2018it is appropriate to determine whether error occurred at all.\u2019 People v. Wade, 131 Ill. 2d 370, 376[, 546 N.E.2d 553, 555] (1989)\u201d).\n\u201cIt is well established that prosecutors are afforded wide latitude in closing argument and may argue facts as well as reasonable inferences drawn from the evidence. [Citation.] In reviewing a challenge to remarks made by a prosecutor during closing argument, the comments must be considered in the context of the parties\u2019 closing arguments as a whole. Moreover, the reviewing court must indulge in every reasonable presumption that the trial court properly exercised its discretion in determining the propriety of the remarks.\u201d People v. Beler, 327 Ill. App. 3d 829, 835, 763 N.E.2d 925, 930 (2002).\nIt is generally improper for a prosecutor to comment on a defendant\u2019s failure to call a nonalibi witness when the witness was equally accessible to both parties. People v. Zernel, 259 Ill. App. 3d 949, 956, 636 N.E.2d 834, 839 (1994).\n\u201cA witness is not considered equally accessible, however, if the witness, due to a familial relationship to the defendant, would likely be biased against the State. [Citation], The State may then properly comment on the absence of the witness, especially where the witness could shed light on the accused\u2019s theory of defense.\u201d Zernel, 259 Ill. App. 3d at 956-57, 636 N.E.2d at 839.\nHere, defense counsel argued that the cocaine could have belonged to someone else and indicated that \u201cother people\u201d besides defendant and Hoke were present at the time of defendant\u2019s arrest. On rebuttal, the prosecutor commented that Barbara, who was one of those \u201cother people,\u201d did not testify on defendant\u2019s behalf. Barbara is defendant\u2019s sister and is not considered equally accessible to the State. Thus, the State was entitled to comment on her failure to testify on defendant\u2019s behalf. Accordingly, we conclude that the prosecutor\u2019s remarks did not constitute error.\nIV SENTENCE CREDIT\nLast, defendant argues that he is entitled to two additional days of credit against his prison sentence for time served prior to sentencing. The State concedes that defendant is entitled to credit for 201 days, and we accept the State\u2019s concession. Therefore, we remand with instructions to amend the sentencing order to reflect 201 days of credit for time served prior to sentencing.\nV CONCLUSION\nFor the reasons stated, we affirm the trial court\u2019s judgment as modified and remand with instructions to amend the sentencing order to reflect 201 days of credit for time served prior to sentencing.\nAffirmed as modified and remanded with directions.\nKNECHT and McCULLOUGH, JJ., concur.", "type": "majority", "author": "JUSTICE STEIGMANN" } ], "attorneys": [ "Darnel D. Yuhas and Martin J. Ryan, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Frank Young, State\u2019s Attorney, of Danville (Norbert J. Goetten, Robert J. Biderman, and Perry L. Miller, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE D. DAVIS, Defendant-Appellant.\nFourth District\nNo. 4-00-0322\nOpinion filed November 13, 2003.\nRehearing denied December 15, 2003.\nDarnel D. Yuhas and Martin J. Ryan, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nFrank Young, State\u2019s Attorney, of Danville (Norbert J. Goetten, Robert J. Biderman, and Perry L. Miller, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0400-01", "first_page_order": 418, "last_page_order": 431 }