{ "id": 4268677, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TODD JOHNSON, Defendant-Appellant", "name_abbreviation": "People v. Johnson", "decision_date": "2007-03-30", "docket_number": "No. 1\u201405\u20141050", "first_page": "772", "last_page": "784", "citations": [ { "type": "official", "cite": "372 Ill. App. 3d 772" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "255 Ill. App. 3d 425", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2988731 ], "year": 1993, "pin_cites": [ { "page": "438-39" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/255/0425-01" ] }, { "cite": "83 Ill. 2d 537", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5472805 ], "year": 1981, "pin_cites": [ { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/83/0537-01" ] }, { "cite": "223 Ill. 2d 569", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3604511 ], "weight": 9, "year": 2006, "pin_cites": [ { "page": "592" }, { "page": "592" }, { "page": "605-06" }, { "page": "605" }, { "page": "602" }, { "page": "605" }, { "page": "602" }, { "page": "600-01" }, { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/223/0569-01" ] }, { "cite": "495 U.S. 575", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 634101 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "599" }, { "page": "627-28" }, { "page": "2158-59" } ], "opinion_index": 0, "case_paths": [ "/us/495/0575-01" ] }, { "cite": "18 U.S.C. \u00a7924", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "pin_cites": [ { "page": "(e)" } ], "opinion_index": 0 }, { "cite": "365 Ill. App. 3d 53", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4263338 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/ill-app-3d/365/0053-01" ] }, { "cite": "368 Ill. App. 3d 381", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4267190 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/ill-app-3d/368/0381-01" ] }, { "cite": "362 Ill. App. 3d 953", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4260743 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/ill-app-3d/362/0953-01" ] }, { "cite": "365 Ill. App. 3d 109", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4263480 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/ill-app-3d/365/0109-01" ] }, { "cite": "362 Ill. App. 3d 815", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4260566 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "821", "parenthetical": "\"a presentence report, like the one in the instant case, is generally a rehable source for the purpose of inquiring into a defendant's criminal history\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/362/0815-01" ] }, { "cite": "212 Ill. 2d 107", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2444442 ], "year": 2004, "pin_cites": [ { "page": "129", "parenthetical": "the constitutionality of a statute is reviewed de novo" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/212/0107-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 9, "year": 2000, "pin_cites": [ { "page": "490" }, { "page": "455" }, { "page": "2362-63" }, { "page": "490" }, { "page": "455" }, { "page": "2362" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "143 Ill. 2d 82", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591083 ], "year": 1991, "pin_cites": [ { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0082-01" ] }, { "cite": "151 Ill. 2d 168", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3292349 ], "year": 1992, "pin_cites": [ { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0168-01" ] }, { "cite": "175 Ill. 2d 294", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295778 ], "year": 1997, "pin_cites": [ { "page": "326-27" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/175/0294-01" ] }, { "cite": "162 Ill. 2d 465", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477534 ], "year": 1994, "pin_cites": [ { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/162/0465-01" ] }, { "cite": "367 Ill. App. 3d 304", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4264927 ], "year": 2006, "pin_cites": [ { "page": "312" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/367/0304-01" ] }, { "cite": "263 Ill. App. 3d 740", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5368892 ], "year": 1994, "pin_cites": [ { "page": "752" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/263/0740-01" ] }, { "cite": "196 Ill. App. 3d 680", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2491027 ], "year": 1990, "pin_cites": [ { "page": "687" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/196/0680-01" ] }, { "cite": "339 Ill. App. 3d 792", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2468995 ], "year": 2003, "pin_cites": [ { "page": "799" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/339/0792-01" ] }, { "cite": "209 Ill. 2d 194", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461336 ], "year": 2004, "pin_cites": [ { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0194-01" ] }, { "cite": "186 Ill. 2d 83", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243850 ], "year": 1999, "pin_cites": [ { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0083-01" ] }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "year": 1984, "pin_cites": [ { "page": "525-27" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 18, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "693" }, { "page": "2064" }, { "page": "687" }, { "page": "693" }, { "page": "2064" }, { "page": "694" }, { "page": "698" }, { "page": "2068" }, { "page": "695" }, { "page": "698" }, { "page": "2069" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "351 Ill. App. 3d 343", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083858 ], "year": 2004, "pin_cites": [ { "page": "352-53", "parenthetical": "trial court conducted adequate inquiry because it read defendant's motion and gave defendant the opportunity to argue, explain, and support his allegations" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/351/0343-01" ] }, { "cite": "159 Ill. 2d 97", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781337 ], "year": 1994, "pin_cites": [ { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/159/0097-01" ] }, { "cite": "207 Ill. 2d 68", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 974982 ], "weight": 6, "year": 2003, "pin_cites": [ { "page": "77-79" }, { "page": "78-79" }, { "page": "79" }, { "page": "77" }, { "page": "78" }, { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/207/0068-01" ] }, { "cite": "544 U.S. 13", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5879404 ], "weight": 18, "year": 2005, "pin_cites": [ { "page": "17" }, { "page": "211" }, { "page": "1257" }, { "page": "17" }, { "page": "216-17" }, { "page": "1262" }, { "page": "26" }, { "page": "218" }, { "page": "1263" }, { "page": "24" }, { "page": "217" }, { "page": "1262" } ], "opinion_index": 0, "case_paths": [ "/us/544/0013-01" ] }, { "cite": "102 Ill. 2d 181", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3156888 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "189" }, { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/102/0181-01" ] } ], "analysis": { "cardinality": 1045, "char_count": 29425, "ocr_confidence": 0.761, "pagerank": { "raw": 6.771876575152096e-08, "percentile": 0.4149166611644154 }, "sha256": "9c17dff849f6bb6c86bff84e56340bac0308906872964e8a568b7798994b5678", "simhash": "1:abcff0207f0cd5d5", "word_count": 4782 }, "last_updated": "2023-07-14T16:46:01.247775+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. TODD JOHNSON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE O\u2019HARA FROSSARD\ndelivered the opinion of the court:\nFollowing bench trial, defendant Todd Johnson was convicted of possession with intent to deliver a controlled substance and sentenced to 18 years in the Illinois Department of Corrections. Defendant argues the trial court failed to properly inquire into his pro se claim of ineffective assistance of counsel as required by People v. Krankel, 102 Ill. 2d 181 (1984). Defendant also contends his extended sentence violated Shepard v. United States, 544 U.S. 13, 161 L. Ed. 2d 205, 125 S. Ct. 1254 (2005). In addition, defendant challenges his $20 penalty under the Violent Crime Victims Assistance Fund Act (725 ILCS 240/1 et seq. (West 2002)), his $5 spinal cord injury fee, and the trial court\u2019s refusal to apply a $5-per-day sentence credit toward his $2,000 controlled substance assessment for his 453 days in custody before sentencing. Finally, defendant seeks correction of the description of his offense in the mittimus. We affirm as modified.\nBACKGROUND\nIn January of 2004, defendant was arrested in Chicago for selling heroin. Police officers testified to observing him make several sales on the streets of Chicago. Upon his arrest, police found defendant in possession of approximately seven grams of heroin and cash from the drug deals. On June 15, 2004, Johnson was convicted of possession with intent to deliver a controlled substance and the case was continued for sentencing. Before sentencing, defense counsel and defendant informed the court that defendant was taking psychotropic medication. Defendant also informed the court that he did not believe that his attorney was working in his best interests and filed a pro se motion for a new trial alleging ineffective assistance of counsel. In his motion, defendant claimed that his defense attorney never visited him in jail, failed to file certain pretrial motions, failed to investigate the crime scene, and failed to conduct sufficient cross-examination.\nIn response to defendant\u2019s claims, the trial court appointed a new attorney to represent defendant on his posttrial motions. Sentencing occurred on April 6, 2005, during which defendant again made his pro se allegation to the trial judge. The trial judge denied defendant\u2019s pro se motion, as well as his attorneys\u2019 motions for new trial, and imposed an extended sentence of 18 years in the Illinois Department of Corrections. Defendant was also assessed a total of $2,704 in fines, fees, costs and other monetary penalties. This included a $20 penalty for the Violent Crime Victims Assistance Fund, a $5 fee for deposit into the Spinal Cord Injury Paralysis Cure Research Trust Fund and a $2,000 controlled substance assessment. Defendant was incarcerated for 453 days before being sentenced. This appeal followed.\nI. Ineffective Assistance of Counsel\nDefendant contends that under the principles articulated in People v. Krankel, 102 Ill. 2d 181 (1984), the trial court was obligated to conduct a preliminary inquiry into the bases for his pro se claims of ineffective assistance of counsel. He argues the failure to do so requires remand.\nIn People v. Krankel, 102 Ill. 2d 181, 189 (1984), the defendant, accused of burglary, filed a pro se motion alleging ineffective assistance of counsel because his public defender failed to investigate the defendant\u2019s claim that he had an alibi that would prove his innocence. In Krankel, the Illinois Supreme Court found defendant\u2019s potential alibi formed a crucial part of his case and appointed him new counsel to aid in his ineffective assistance of counsel argument. Krankel, 102 Ill. 2d at 189.\nThe Illinois Supreme Court in People v. Moore, 207 Ill. 2d 68, 77-79 (2003), discussed the procedures trial courts could use to resolve a posttrial, pro se ineffective assistance of counsel motion. The trial court could conduct a brief discussion with trial counsel or defendant to determine the potential merit of defendant\u2019s allegations, or the trial court could resolve the defendant\u2019s pro se allegations based on its knowledge of defense counsel\u2019s performance at trial and the insufficiency of the allegations on their face. Moore, 207 Ill. 2d at 78-79.\nApplying the Illinois Supreme Court\u2019s ruling in Moore, the trial court is not required to perform all of the above actions to determine whether there is ineffective assistance of counsel. Rather, the trial court can base the decision on a discussion of the claim with the defendant or defendant\u2019s counsel or base its evaluation on its knowledge of defense counsel\u2019s performance at trial and the insufficiency of the allegations on their face. Moore, 207 Ill. 2d at 79. In Moore, the Illinois Supreme Court made it clear that new counsel is not automatically required in every case in which a defendant alleges ineffective assistance of counsel in a pro se motion. Moore, 207 Ill. 2d at 77. If a defendant\u2019s claim lacks merit or relates to only matters of trial strategy, then the trial court is not required to appoint new counsel and may deny the pro se motion. Moore, 207 Ill. 2d at 78.\nIn the instant case, on September 29, 2004, the defendant filed a written posttrial motion claiming his trial attorney was ineffective; however, the case was continued. On December 3, 2004, the trial court appointed a new attorney to represent defendant on his posttrial motions and continued the case. On April 6, 2005, defendant\u2019s new attorney argued the amended motion for new trial and reminded the court about defendant\u2019s pro se motion claiming ineffectiveness of trial counsel. The trial court reviewed the defendant\u2019s motion and allowed the defendant an opportunity to further state his claims in court with newly appointed counsel to assist him. As to defendant\u2019s pro se motion alleging ineffective assistance of trial counsel, defendant\u2019s new counsel inquired of defendant as follows: \u201cI would ask if he would want to add anything to that.\u201d The trial court responded: \u201cAny argument that you want to make, Mr. Johnson?\u201d Defendant declined the trial court\u2019s offer to argue, explain, or support his motion. The trial court specifically stated: \u201cI reviewed all the documents you ever tendered to me.\u201d Defendant\u2019s new attorney at that point indicated that he believed defendant would stand on his written motion.\nAdditionally the trial court expressly addressed the fact that it believed that the original defense counsel performed adequately. The trial court indicated that defendant had been ably represented both at trial and at the hearing on the posttrial motions. The trial court noted the original defense counsel did a great deal of work in the criminal court\u2019s building and described his representation as able. As to both the original defense counsel and newly appointed defense counsel, the trial court indicated as follows: \u201cI respect their ability a great deal.\u201d\nUpon review of the defendant\u2019s argument, the operative concern is whether the trial court conducted an adequate inquiry into the defendant\u2019s pro se allegations of ineffective assistance of counsel. People v. Johnson, 159 Ill. 2d 97, 125 (1994). The record in the instant case reflects the trial court reviewed defendant\u2019s motion and specifically gave defendant the opportunity to argue, explain, and support his allegations. See People v. Cummings, 351 Ill. App. 3d 343, 352-53 (2004) (trial court conducted adequate inquiry because it read defendant\u2019s motion and gave defendant the opportunity to argue, explain, and support his allegations). Moreover, in the instant case, defendant was appointed a new attorney to aid in presenting his claims of ineffective assistance and to argue trial counsel\u2019s posttrial motion for new trial, as well as the amended motion for new trial. The record reflects that the trial court\u2019s actions were appropriate and demonstrated adequate review and inquiry into defendant\u2019s allegations of ineffective assistance of counsel. Accordingly, we reject defendant\u2019s argument that the case should be remanded for the trial court to conduct further proceedings in connection with defendant\u2019s pro se claims of ineffective assistance of counsel.\nDefendant alleged in his pro se motion that his trial counsel was ineffective for failing to visit him in jail to discuss his case, failing to litigate a motion to quash arrest and suppress evidence, and failing to properly investigate and conduct sufficient cross-examination. To establish a claim of ineffective assistance of counsel, a defendant must demonstrate that his counsel\u2019s representation was deficient and that he was prejudiced by that deficiency. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Both prongs of the Strickland test must be satisfied to establish an ineffective assistance of counsel claim. People v. Albanese, 104 Ill. 2d 504, 525-27 (1984). Counsel\u2019s performance is deficient if it fails to satisfy an objective standard of reasonableness. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. The defendant must overcome a strong presumption that the challenged action or inaction was the product of sound trial strategy. People v. Evans, 186 Ill. 2d 83, 93 (1999). A defendant is prejudiced if there is a reasonable probability that the outcome of the trial would have been different or that the result of the proceeding was unreliable or fundamentally unfair. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; People v. Evans, 209 Ill. 2d 194, 220 (2004). Such a reasonable probability \u201cis a probability sufficient to undermine confidence in the outcome.\u201d Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. In deciding whether a defendant has demonstrated deficient performance and the reasonable probability of a different result, a reviewing court must \u201cconsider the totality of the evidence before the judge or jury.\u201d Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069. Where a defendant fails to satisfy Strickland\u2019s second prong by failing to show prejudice, the reviewing court need not determine whether Strickland\u2019s first prong of deficient performance has been met. People v. Grant, 339 Ill. App. 3d 792, 799 (2003).\nIn the instant case, defendant claimed ineffective assistance of counsel because his trial attorney allegedly never visited him in jail to discuss and prepare his case. Defendant has not alleged that his attorney never discussed his case with him and did not demonstrate how personal visits at the jail would have been outcome determinative. Accordingly, this alleged failure by defense counsel was not ineffective assistance.\nDefendant further alleged that his attorney was ineffective for failing to file pretrial motions to quash arrest and suppress evidence. Whether an attorney\u2019s failure to litigate a motion to quash or suppress is ineffective assistance of counsel \u201cdepends on the circumstances of each case.\u201d People v. Follins, 196 Ill. App. 3d 680, 687 (1990); People v. Nunez, 263 Ill. App. 3d 740, 752 (1994). Whether to file pretrial motions to suppress is a matter of trial strategy. People v. Woodard, 367 Ill. App. 3d 304, 312 (2006). Mistakes in strategy or tactics do not, alone, amount to ineffective assistance of counsel. People v. Palmer, 162 Ill. 2d 465, 476 (1994). Based on the facts of the instant case, the record does not reflect ineffective assistance of counsel but, rather, trial strategy in the context of defense counsel\u2019s choice to not litigate a motion to quash arrest and suppress evidence.\nDefendant claimed that his attorney should have investigated the scene and provided photographs of the scene because there was insufficient lighting. However, Officer Pickett testified that there was artificial lighting from several sources which allowed him to observe defendant exchanging heroin for money. Defendant further claimed that his trial counsel did not adequately cross-examine Officer Pickett. Cross-examination is a matter of trial strategy which is entitled to substantial deference. People v. Pecoraro, 175 Ill. 2d 294, 326-27 (1997). A defendant is entitled to competent, not perfect, representation. People v. Odle, 151 Ill. 2d 168, 173 (1992). The record reflects that trial counsel did adequately cross-examine Officer Pickett about various inconsistencies between his preliminary hearing testimony and his direct testimony at trial. Accordingly, we cannot conclude that defense counsel\u2019s representation was deficient or prejudiced defendant.\nIn the context of defendant\u2019s pro se motion alleging ineffective assistance of counsel, we reject defendant\u2019s claims as meritless. For the reasons previously discussed, these allegations do not satisfy the prejudice prong of Strickland (Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052) in that they do not demonstrate that had the attorney provided the assistance requested, a different outcome would have resulted. Moreover, the record does not demonstrate a fundamentally unfair trial process. We are mindful that a trial court\u2019s resolution of a defendant\u2019s pro se motion claiming ineffective assistance of counsel can be harmless beyond a reasonable doubt where the trial record demonstrates the meritless nature of defendant\u2019s claims. Moore, 207 Ill. 2d at 80, citing People v. Nitz, 143 Ill. 2d 82, 135 (1991). Accordingly, in the instant case, if the trial court erred in resolving defendant\u2019s pro se motion alleging ineffective assistance of counsel, the error was harmless beyond a reasonable doubt because for the reasons previously discussed, the record reflects that defendant\u2019s claims were meritless.\nII. Extended Sentence\nThe trial judge imposed an extended sentence based on defendant's prior convictions pursuant to the Unified Code of Corrections (Code) (730 ILCS 5/5\u20145\u20143.2(b)(1) (West 2002)). Defendant argues that under Shepard v. United States, the trial court\u2019s use of a presentence investigation (PSI) report to determine the existence of a prior conviction is unconstitutional. Shepard v. United States, 544 U.S. 13, 161 L. Ed. 2d 205, 125 S. Ct. 1254 (2005). Defendant contends that Shepard calls into question the constitutionality of using a PSI to establish the fact of a prior conviction and narrows the scope of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Defendant requests this court to vacate his extended sentence and resentence him to 15 years, which is the maximum nonextended sentence for a Class 1 offender. In addressing this issue we apply the de novo standard of review. People v. Huddleston, 212 Ill. 2d 107, 129 (2004) (the constitutionality of a statute is reviewed de nov\u00f3).\nBoth the defense and State recognize in their briefs that this court has taken the principles articulated in Shepard into consideration and repeatedly upheld Class X sentencing under section 5\u20145\u20143(c)(8). People v. Rivera, 362 Ill. App. 3d 815 (2005); People v. Ligon, 365 Ill. App. 3d 109 (2006); People v. Matthews, 362 Ill. App. 3d 953 (2005); People v. Yancy, 368 Ill. App. 3d 381 (2005); People v. Moore, 365 Ill. App. 3d 53 (2006). However, the issue in the instant case is whether under Shepard the information provided by defendant\u2019s PSI can be used by the trial court to establish the existence of a prior conviction for purposes of imposing an extended-term sentence. We must determine whether reliance by a trial court on a PSI to make findings pursuant to section 5\u20145\u20143.2(b)(1) of the Code violates a defendant\u2019s constitutional rights and the Supreme Court\u2019s holding in Shepard, 544 U.S. at 17, 161 L. Ed. 2d at 211, 125 S. Ct. at 1257.\nPursuant to section 5\u20145\u20143.2(b)(1), a trial court may impose an extended sentence:\n\u201cWhen a defendant is convicted of any felony, after having been previously convicted in Illinois or any other jurisdiction of the same or similar class felony or greater class felony, when such conviction has occurred within 10 years after the previous conviction, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts.\u201d 730 ILCS 5/5\u20145\u20143.2(b)(1) (West 2002).\nIn the instant case, the defendant had several felony convictions, including residential burglary, attempted armed robbery, aggravated battery, and possession of a controlled substance. Defendant\u2019s conviction in the instant case for possession with intent to deliver a controlled substance was a Class 1 felony with a sentencing range of 4 to 15 years imprisonment. 730 ILCS 5/5\u20148\u20141(a)(4) (West 2002). In imposing the 18-year extended-term sentence, the trial judge relied on defendant\u2019s previous convictions for the same or similar class felony or greater class felony.\nBased on Shepard, defendant challenges the constitutionality of the recidivism exception to Apprendi that \u201c[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.\u201d Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. Shepard refined the exception to the rule announced in Apprendi by not allowing trial courts to rely on police reports to determine whether a prior conviction qualifies a defendant for an enhanced sentence. Shepard, 544 U.S. at 17, 161 L. Ed. 2d at 216-17, 125 S. Ct. at 1262.\nThe court in Shepard addressed whether the type of burglary for which Shepard was previously convicted qualified as a predicate offense under the Armed Career Criminal Act of 1984 (ACCA) (18 U.S.C. \u00a7924(e) (2000)). The government sought to increase Shepard\u2019s sentence under the ACCA, which mandates enhancement for felons who have three prior convictions for \u201cviolent felonies\u201d or \u201cdrug offenses.\u201d Shepard\u2019s prior felonies were burglary convictions. The Supreme Court had held that only \u201cgeneric burglary,\u201d meaning those burglaries committed in a building or enclosed space, is a violent crime under the ACCA, unlike \u201cnon-generic burglary,\u201d which could be committed in an automobile or boat. See Taylor v. United States, 495 U.S. 575, 599, 109 L. Ed. 2d 607, 627-28, 110 S. Ct. 2143, 2158-59 (1990).\nAt issue in Shepard was how the crime underlying the prior conviction was committed and whether it satisfied the ACCA definition of a violent crime. This is a factual dispute. In Shepard, the Supreme Court agreed with the district court that inquiry under the ACCA to determine whether a prior conviction for burglary was \u201cgeneric\u201d or \u201cnon-generic\u201d excluded police reports and was limited to the terms of the charging document, to the terms of the plea agreement, to the transcript confirming the factual basis for the plea, or to a comparable judicial record of this information. Shepard, 544 U.S. at 26, 161 L. Ed. 2d at 218, 125 S. Ct. at 1263. However, the Supreme Court in Shepard continued to reaffirm the prior conviction exception in Apprendi. Shepard, 544 U.S. at 24, 161 L. Ed. 2d at 217, 125 S. Ct. at 1262.\nIn the instant case, unlike Shepard, there is no question as to how the prior felonies were committed; rather, the question is if and when the prior felonies were committed. Shepard\u2019s holding applied to sentencing enhancement that required findings of fact related to the elements of an underlying crime that would make such crimes predicate offenses for the purposes of enhancing a sentence. Shepard did not consider whether facts such as if and when a felony was committed are related to the elements of the predicate prior convictions. We find that they are not.\nA court relying on the \u201cfact of a prior conviction\u201d as a reason for imposing an extended sentence may do so without proof beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362. After Shepard the recidivism exception to the Apprendi rule is still viable. Recidivism is a traditional basis for imposing an enhanced sentence which does not implicate constitutional concerns because a defendant\u2019s previous conviction is obtained using procedures that satisfy due process.\nWe hold that reliance by the trial court on a PSI to establish the existence of a prior conviction for purposes of imposing an extended-term sentence under section 5\u20145\u20143.2(b)(1) does not violate defendant\u2019s constitutional rights or the Supreme Court ruling in Shepard. Consistent with Apprendi and Shepard, a judge can use appropriate judicial documents and records to enhance a sentence based on prior convictions. Accordingly, the PSI is an acceptable source for the trial judge to use when considering the defendant\u2019s prior criminal background. See Rivera, 362 Ill. App. 3d at 821 (\u201ca presentence report, like the one in the instant case, is generally a rehable source for the purpose of inquiring into a defendant\u2019s criminal history\u201d). For the reasons previously discussed, we refuse to vacate the defendant\u2019s extended sentence under section 5\u20145\u20143.2(b)(1) of the Code.\nIII. Controlled Substance Assessment\nDefendant contends he is entitled to a $5-per-day sentence credit toward his $2,000 controlled substance assessment for his 453 days of incarceration prior to his conviction. Under section 411.2 of the Illinois Controlled Substances Act, defendant was assessed $2,000. 720 ILCS 570/411.2 (West 2004). Section 411.2(a) provides as follows:\n\u201c(a) Every person convicted of a violation of this Act, and every person placed on probation, conditional discharge, supervision or probation under Section 410 of this Act, shall be assessed for each offense a sum fixed at:\n(2) $2,000 for a Class 1 felony[.]\u201d 720 ILCS 570/411.2(a) (West 2004).\nIn People v. Jones, 223 Ill. 2d 569, 592 (2006), the Illinois Supreme Court held that presentencing custody credit applies to the controlled substance assessment (720 ILCS 570/411.2(a)(4) (West 2004)). Jones, 223 Ill. 2d at 592. Accordingly, in the instant case, defendant\u2019s $2,000 drug assessment can be offset with the presentence credit that defendant is allowed under section 110\u201414 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110\u201414 (West 2004)). A credit of $5 per day for 453 days equals $2,265, which exceeds the amount of the original $2,000 drug assessment. Thus, defendant\u2019s drug assessment should be modified to reflect a $2,265 credit toward the original $2,000 drug assessment, thereby negating the drug assessment in its entirety.\nIV Spinal Cord Research Fund\nDefendant contends that the trial court\u2019s assessment of a $5 fee for deposit into the Spinal Cord Injury Paralysis Cure Research Trust Fund (Spinal Cord Fund) is a violation of his due process rights. Defendant alleges that this assessment is unconstitutional because there is no rational relationship between his offense and the public interest in funding spinal cord research. The Spinal Cord Fund assessment is set out in section 5\u20149\u20141.1 of the Unified Code of Corrections and states, in relevant part, as follows:\n\u201c(a) When a person has been adjudged guilty of a drug related offense involving possession or delivery of cannabis or possession or delivery of a controlled substance, other than methamphetamine, as defined in the Cannabis Control Act, the Illinois Controlled Substances Act, or the Methamphetamine Control and Community Protection Act in addition to any other penalty imposed, a fine shall be levied by the court at not less than the full street value of the cannabis or controlled substances seized.\n$ $ ^\n(c) In addition to any penalty imposed under subsection (a) of this Section, a fee of $5 shall be assessed by the court, the proceeds of which shall be collected by the Circuit Clerk and remitted to the State Treasurer under Section 27.6 of the Clerks of Courts Act for deposit into the Spinal Cord Injury Paralysis Cure Research Trust Fund. This additional fee of $5 shall not be considered a part of the fine for purposes of any reduction in the fine for time served either before or after sentencing.\u201d 730 ILCS 5/5\u20149\u20141.1(a), (c) (West Supp. 2005).\nThe Illinois Supreme Court in Jones overruled previous judgments of the appellate court which held that the statutory provision imposing a fee earmarked for the Spinal Cord Fund (730 ILCS 5/5\u20149\u2014 1.1(c) (West 2004)) was unconstitutional. Jones, 223 Ill. 2d at 605-06. In Jones the court determined that the $5 charge is reasonably related to the defendant\u2019s crime and therefore is constitutional. Jones, 223 Ill. 2d at 605. This $5 charge may properly be viewed as a criminal penalty, and \u201cit is well established that the legislature has broad authority to determine the nature and extent of criminal penalties.\u201d Jones, 223 Ill. 2d at 602.\nIn the instant case, the defendant is not challenging the charge as being a penalty that oversteps the bounds of what is permitted by relevant constitutional limitations. People ex rel. Carey v. Bentivenga, 83 Ill. 2d 537, 542 (1981). Rather, defendant contends that the charge violates his due process rights because there is no relationship between the Spinal Cord Fund and the crime he committed or the damage that results from his criminal activity. As to the constitutionality of the $5 fine, the court in Jones concluded that the \u201cfact that the proceeds of that fine are earmarked for a specific purpose is irrelevant to its constitutionality.\u2019\u2019 Jones, 223 Ill. 2d at 605. The court in Jones noted as follows:\n\u201cThere can be no serious argument that a $5 fine is so disproportionate to the offense of possession of a controlled substance as to violate defendant\u2019s substantive due process rights, and defendant does not so argue. Rather, he argues that it violates his due process rights that this portion of his fine is designated specifically for deposit in the Spinal Cord Injury Paralysis Cure Research Trust Fund. We reject this argument.\u201d Jones, 223 Ill. 2d at 602.\nThe Illinois Supreme Court in Jones determined that this $5 charge, although labeled as a \u201cfee,\u201d is in fact a constitutional fine and may be used to penalize a defendant. Jones, 223 Ill. 2d at 600-01. Accordingly, we reject defendant\u2019s argument that the statutory provision requiring individuals convicted of drug possession or delivery offenses to pay a $5 fee to the Spinal Cord Fund violated his right to due process and affirm the $5 fine for the Spinal Cord Fund.\nV Violent Crime Victims Assistance Fund\nDefendant correctly contends that $20 for the Violent Crime Victims Assistance Fund was erroneously assessed to him. Defendant claims that this penalty may only be applied where \u201cno other fine is imposed.\u201d Section 10(c)(2) of the Violent Crime Victims Assessment Fund Act provides:\n\u201c(c) When any person is convicted in Illinois on or after August 28, 1986, of an offense listed below, or placed on supervision for such an offense on or after September 18, 1986, and no other fine is imposed, the following penalty shall be collected by the Circuit Court Clerk:\n(2) $20, for any other felony or misdemeanor, excluding any conservation offense.\u201d 725 ILCS 240/10(c)(2) (West 2004).\nDefendant is correct that the penalty may only be applied where there are no other fines being imposed. As previously noted, the Illinois Supreme Court in Jones recognized the Spinal Cord Fee as a fine. Jones, 223 Ill. 2d at 601. Accordingly, the trial court acted improperly when it imposed a $20 Violent Crime Victims Assistance Fund penalty in this case. We strike the penalty from the order.\nVI. Mittimus\nDefendant, relying on People v. Brown, 255 Ill. App. 3d 425, 438-39 (1993), argues that his mittimus incorrectly reflects his conviction. The mittimus in the instant case is inconsistent with the trial court\u2019s findings. Defendant\u2019s mittimus should reflect a conviction for possession with intent to deliver a controlled substance, to wit: heroin.\nVII. CONCLUSION\nThe trial court correctly resolved defendant\u2019s pro se claim of ineffective assistance of counsel and properly imposed an extended sentence on the defendant. Presentencing custody credit applies to the $2,000 controlled substances assessment. The $5 fine for the Spinal Cord Injury Paralysis Cure Research Trust is constitutional and was correctly imposed by the trial court. The $20 penalty for the Violent Crime Victims Assistance Fund was erroneously assessed as such penalty may only be applied when there are no other fines imposed. The mittimus was incorrect.\nDefendant\u2019s conviction is affirmed, as is the $5 charge to defendant for the Spinal Cord Fund. We strike the $20 for the Violent Crime Victims Assistance Fund. We order the fees and costs order to be modified to reflect a credit of $2,265 toward defendant\u2019s $2,000 drug assessment, thereby negating the drug assessment in its entirety. Defendant\u2019s mittimus and sentencing order shall be modified to reflect defendant\u2019s conviction for possession with intent to deliver a controlled substance, to wit: heroin. We affirm the judgment of the circuit court of Cook County in all other respects.\nAffirmed as modified.\nO\u2019BRIEN, PJ., and TULLY, J., concur.", "type": "majority", "author": "JUSTICE O\u2019HARA FROSSARD" } ], "attorneys": [ "Michael J. Pelletier, Justin J. Major, and Kari K. Firebaugh, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Michele Grimaldi Stein, and Michele I. Lavin, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TODD JOHNSON, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201405\u20141050\nOpinion filed March 30, 2007.\nRehearing denied May 10, 2007.\nMichael J. Pelletier, Justin J. Major, and Kari K. Firebaugh, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Michele Grimaldi Stein, and Michele I. Lavin, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0772-01", "first_page_order": 788, "last_page_order": 800 }