People v. Jones
Annotate this Case
No. 4--97--0388
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1998
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 21st Judicial Circuit
) Kankakee County, Illinois
Plaintiff-Appellee, )
)
)
v. ) No. 96--CF--561
)
)
RONNIE E. JONES, JR., ) Honorable
) Clark E. Erickson
Defendant-Appellant. ) Judge, Presiding
_________________________________________________________________
JUSTICE LYTTON delivered the opinion of the court:
_________________________________________________________________
Defendant Ronnie E. Jones, Jr. was indicted on a charge of
aggravated battery of a police officer and charged by traffic
citations with illegal sound amplification, reckless driving and
disobeying a police officer. A jury convicted him on all charges.
Defendant was sentenced to five years incarceration for aggravated
battery and assessed court costs on all other convictions. On
appeal, defendant challenges: (1) the constitutionality of the
sound amplification statute (625 ILCS 5/12--611 (West 1996)), (2)
the sentence imposed for aggravated battery, and (3) the
calculation of fees and costs assessed in relation to his
prosecution. We affirm in part, reverse in part, and remand for
the entry of a judgment reflecting the correct amount of fees and
costs.
I. FACTS
In the early morning hours of October 17, 1996, Sergeant Barry
Thomas stopped defendant because of the excessive volume emitting
from defendant's car radio. Sergeant Thomas approached the
driver's side of defendant's car, shined his flashlight in the
window and asked to see defendant's license and insurance card.
Refusing to comply, defendant stated that he had not been speeding
and asked why the officer had stopped him. Sergeant Thomas stated
he would explain later and reached for the handle on the car door.
Finding the door locked, the officer reached through defendant's
car window, which was down approximately six inches, to unlock the
door. When the officer unlocked the door, defendant slapped his
hand away and relocked the door. In an effort to divert
defendant's attention from the lock, the officer then hit defendant
in the chest with the flashlight.
At this point, a backup patrol car arrived, and Sergeant
Thomas called out for assistance as he attempted to unlock the door
again. Suddenly, defendant accelerated and drove off with Sergeant
Thomas' right arm still inside the car. The officer clamped his
right arm down on the glass, lifted his feet and yelled to
defendant to stop. The backup officers followed in pursuit and
testified at trial that despite the fact that Sergeant Thomas was
hanging on to the car, defendant reached speeds in excess of 70
miles per hour and traveled one mile and a half before finally
pulling over. Sergeant Thomas sustained bruises on the inside of
his upper right arm.
Defendant testified that he had poor eyesight and was blinded
by the flashing lights from Sergeant Thomas' police car and from
the flashlight. He testified that he did not know it was a real
police officer who pulled him over, that he drove away in fear
after being hit in the chest with the flashlight and that he
continued to drive at high speeds for more than a mile because he
was afraid the person hanging onto his car would hurt him. The
jury convicted defendant on all four counts.
At sentencing, the State introduced evidence of defendant's
prior conviction for aggravated battery of a peace officer.
Defendant's intoxication at the time of the prior offense was a
mitigating factor, and he received a sentence of probation.
Testifying on defendant's behalf, an employer stated that defendant
was reliable and trustworthy. His family and friends testified
that he was loving, patient and affectionate. In addition,
defendant addressed the court and expressed remorse for the
incident, as well as his thankfulness that no one was seriously
injured.
The court sentenced defendant to five years incarceration for
aggravated battery, and it entered judgment for costs for the sound
amplification, disobeying a police officer and reckless driving
violations.
II. ANALYSIS
A. CONSTITUTIONALITY OF THE SOUND AMPLIFICATION STATUTE
Section 12--611 of the Illinois Vehicle Code provides in
pertinent part that:
"No driver of any motor vehicle within this State
shall operate or permit operation of any sound
amplification system which can be heard outside the
vehicle from 75 or more feet when the vehicle is being
operated upon a highway, unless such system is being
operated to request assistance or warn of a hazardous
situation.
This Section does not apply to authorized emergency
vehicles or vehicles engaged in advertising." (Emphasis
added.) 625 ILCS 5/12--611 (West 1996).
On appeal, defendant contends that the statute is
unconstitutional because it is content-based and is overbroad in
violation of the first amendment of the United States Constitution
(U.S. Const., amend. I) and denies equal protection in violation of
the fourteenth amendment (U.S. Const., amend. XIV).
Legislative enactments are presumed to be constitutional
(People v. Warren, 173 Ill. 2d 348, 355, 671 N.E.2d 700, 704
(1996)) and all reasonable doubts are to be resolved in favor of
upholding legislation (People v. Holt, 271 Ill. App. 3d 1016, 1026,
649 N.E.2d 571, 579-80 (1995)). When a court decides whether a
statute violates the first amendment, it must consider that each
medium of communication creates a unique set of first amendment
problems that must be assessed in light of the "differing natures,
values, abuses and dangers" of that medium. Kovacs v. Cooper, 336 U.S. 77, 97, 93 L. Ed. 513, 528, 69 S. Ct. 448, ___ (1949)
(Jackson, J., concurring).
Music is a form of expression and communication protected by
the first amendment. Ward v. Rock Against Racism, 491 U.S. 781,
790, 105 L. Ed. 2d 661, 674, 109 S. Ct. 2746, ___ (1989). However,
sound amplification in streets and public places is subject to
reasonable regulation. Kovacs, 336 U.S. at 89, 93 L. Ed. at 523,
69 S. Ct. at ___.
In determining whether a restriction on expression passes
constitutional muster, courts apply a two-tiered system of review.
An intermediate level of judicial scrutiny is used where the
regulation is unrelated to content. Turner Broadcasting, Inc. v.
Federal Communications Commission, 512 U.S. 622, ___, 129 L. Ed. 2d 497, 517, 114 S. Ct. 2445, 2459 (1994). On the other hand, where
a regulation suppresses, disadvantages or imposes differential
burdens upon speech because of its content, "the most exacting
scrutiny" must be applied. Turner Broadcasting, 512 U.S. at ___,
129 L. Ed. 2d at 517, 114 S. Ct. at 2459. Such content-based
discrimination is "presumptively impermissible" (City of Ladue v.
Gilleo, 512 U.S. ___, ___, 129 L. Ed. 2d 36, 50, 114 S. Ct. 2038,
___ (1994) (O'Connor, J., concurring)), and will be upheld only if
it is narrowly tailored to serve a compelling state interest
(Widmar v. Vincent, 454 U.S. 263, 269-70, 70 L. Ed. 2d 440, 447-48,
102 S. Ct. 269, ___ (1981); People v. Sanders, ___ Ill. 2d ___,
___, ___ N.E.2d ___, ___ (1998)) with the least possible burden on
expression (Phillips v. Borough of Keyport, 107 F.3d 164, 172 (3d
Cir. 1997)).
In Ward v. Rock Against Racism, the supreme court considered
a city regulation that restricted the volume of music played in a
park bandshell. Ward, 491 U.S. at 790, 105 L. Ed. 2d at 674, 109
S. Ct. at ___. In upholding the regulation, the Supreme Court
stressed that it (a) was enacted to protect surrounding neighbors
and park visitors, (b) regulated only the time, place and manner of
expression, and (c) forbade enforcement that would "vary the * * *
volume based on the message being delivered" (emphasis added).
Ward, 491 U.S. at 794-95, 105 L. Ed. 2d at 677, 109 S. Ct. at ___.
Similarly, in Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 428, 123 L. Ed. 2d 99, 116, 113 S. Ct. 1505, ____ (1993), the
Supreme Court stated:
" * * * a prohibition against the use of sound trucks
emitting 'loud and raucous' noise in residential
neighborhoods is permissible if it applies equally to
music, political speech, and advertising." (Emphasis
added.)
Ward and Discovery Network speak to the point of conflict in this
case.
We conclude that the Illinois sound amplification statute (625
ILCS 5/12--611 (West 1996)) violates the first amendment by
regulating speech on the basis of content without a compelling
state interest. Section 12--611 restricts the amplification of
religious speech, political speech and music, but exempts
advertising. Unlike the rule challenged in Ward, the restrictions
found in section 12--611 do not apply equally to all types of
amplified sound. Different types of speech are treated
differently. Since the permissible degree of amplification is
dependent on the nature of the message being conveyed, the statute
is content-based (Regan v. Time, Inc., 468 U.S. 641, 648, 82 L. Ed. 2d 487, 494, 104 S. Ct. 3262, 3265 (1984)) and subject to strict
scrutiny (Turner Broadcasting, 512 U.S. at ___, 129 L. Ed. 2d at
517, 114 S. Ct. at 2459).
Although we wholeheartedly agree that the State of Illinois
has a substantial interest in protecting its citizens from
unwelcome noise on city streets (Ward, 491 U.S. at 796, 105 L. Ed. 2d at 678, 109 S. Ct. at ___), the State has failed to provide a
compelling reason for discriminating between the amplification of
commercial speech and non-commercial speech (see Sanders, ___ Ill.
2d at ___, ___ N.E.2d at ___). Indeed, the State's brief does not
even attempt to argue that such an interest exists, and we are
unable to find a compelling reason for the distinction. While the
statute seeks to protect the citizens of Illinois from loud decibel
levels at close distances, nothing in the record, briefs or
legislative history suggests why commercial speech should be
afforded an exemption. Cf. Board of Trustees of the State
University of New York v. Fox, 492 U.S. 469, 477, 106 L. Ed. 2d 388, 402, 109 S. Ct 3028, ____ (1989)(commercial speech enjoys only
a "limited measure of protection, commensurate with its subordinate
position in the scale of First Amendment values").
In an odd twist, section 12--611 actually turns the
constitutional requirement for judicial review on its head. Courts
apply heightened scrutiny to restrictions on such cherished
freedoms as political speech and religious expression, for which
this country has "march[ed] our sons and daughters off to war"
(Young, 427 U.S. at 70, 49 L. Ed. 2d at 326, 96 S. Ct. at ____); in
contrast, commercial speech is subject to "modes of regulation that
might be impermissible in the realm of non-commercial expression"
(Fox, 492 U.S. at 477, 106 L. Ed. 2d at 402, 109 S. Ct at ____).
Ironically, section 12--611 provides greater protection to
commercial speech. This topsy-turvy reversal of constitutional
priorities cannot stand. See generally, United States v. Edge
Broadcasting Co., 509 U.S. 418, 429, 125 L. Ed. 2d 345, 358-59, 113 S. Ct. 2696, ____ (1993).
As presently written, section 12--611 unconstitutionally
discriminates in favor of amplified advertising and against speech
with religious, political and other non-commercial content. We
urge the General Assembly to revise the statute to make it content-
neutral.
Defendant's conviction for illegal sound amplification is
reversed, and thus we need not address his claims that the statute
is overbroad and denies equal protection of the laws.
B. SENTENCE FOR AGGRAVATED BATTERY
Defendant next contends that the State improperly raised and
the trial court improperly considered an element of the offense,
the victim's occupation as a peace officer, as part of the
rationale for imposing a five-year term of incarceration. See 720
ILCS 5/12--4(b)(6) (West 1996); People v. Gramo, 251 Ill. App. 3d
958, 970, 623 N.E.2d 926, 935 (1993) (essential element of offense
may not be relied upon by the court to enhance punishment).
A trial judge's reliance on an improper factor at sentencing
does not always necessitate remandment for a new hearing. People
v. Bourke, 96 Ill. 2d 327, 332, 449 N.E.2d 1338, 1340 (1983).
Here, defendant's failure to raise the issue in his motion to
reduce sentence constitutes waiver on appeal. 134 Ill. 2d R.
615(a).
Defendant requests that we review this alleged error under the
plain error rule, which can be invoked for sentencing
irregularities if the evidence was closely balanced or a defendant
was denied a fair hearing. People v. Beals, 162 Ill. 2d 497, 511,
643 N.E.2d 789, 796 (1994). After reviewing the record, we hold
that plain error did not occur.
A judge is not required to refrain from any mention of factors
that constitute elements of an offense. People v. Barney, 111 Ill.
App. 3d 669, 679, 444 N.E.2d 518, 525 (1982). The judge may
consider the nature and circumstances of the offense, and mere
reference to the existence of such a factor is not reversible
error. Gramo, 251 Ill. App. 3d at 971, 623 N.E.2d at 935, citing
People v. Tolliver, 98 Ill. App. 3d 116, 117-18, 424 N.E.2d 44, 45
(1981). After reviewing the judge's comments in context, we find
that statements regarding the victim's occupation were made within
the judge's discussion of the factual circumstances of the crime,
i.e., how defendant initiated the incident by refusing to produce
his license and then escalated a routine traffic stop into a high
speed chase while an officer was hanging onto the car. The record
does not support defendant's contention that the judge improperly
relied on the victim's occupation, or enhanced the sentence on this
basis.
Moreover, the evidence at sentencing was not closely balanced,
and defendant has failed to show that the alleged error deprived
him of a fair hearing. The judge determined that defendant's
offense was serious, his violent behavior endangered the public,
there existed a need for deterrence, defendant had a prior criminal
record that included a conviction for aggravated battery against a
peace officer and another sentence of probation would be
inconsistent with the ends of justice. The trial judge found no
factors in mitigation.
Aggravated battery of a police officer is a class 3 felony
(720 ILCS 5/12--4(e) (West 1996)), and defendant was eligible for
an extended term because of a prior conviction for aggravated
battery of a police officer (730 ILCS 5/5--5--3.2(b)(1) (West
1996)). In this case, the potential sentencing range included
probation (730 ILCS 5/5--6--1(a) (West 1996)) to a maximum extended
term of 10 years in prison (730 ILCS 5/5--8--2(a)(5) (West 1996)).
The trial court sentenced defendant to five years. Given the
substantial factors in aggravation, including defendant's prior
failed attempt at rehabilitation through probation, and the lack of
mitigating factors, this mid-range sentence was well within the
discretion of the trial court.
We affirm defendant's sentence for aggravated battery of a
peace officer.
C. ASSESSMENT OF FEES AND COSTS
Finally, defendant argues that the court incorrectly assessed
fees and costs for his one felony, one misdemeanor and two petty
offenses and contends that he is entitled to a $120.00 credit. The
State agrees that defendant is entitled to a credit, but calculates
the correct amount to be only $100.00. According to the State,
defendant failed to include in his calculation the $10 state's
attorney fee for each of the two petty offense convictions.
We agree with the State's calculation. See 55 ILCS 5/4--2002
(West 1996) (state's attorney is entitled to a fee of $10 for each
conviction that could have been assigned to an associate judge,
whether or not it was so assigned). However, in light of our
decision reversing defendant's conviction for illegal sound
amplification, on remand the circuit court will need to make
additional changes to the fees and costs assessed against
defendant.
III. CONCLUSION
For the reasons stated above, the judgment of the circuit
court of Kankakee County is affirmed in part, reversed in part, and
this cause is remanded for the entry of an amended judgment order.
Affirmed in part, reversed in part, and remanded for further
proceedings.
HOMER, P.J., concurs; SLATER, J., dissents.
JUSTICE SLATER dissenting:
_________________________________________________________________
Rather than conducting a meaningful analysis and application
of constitutional guidelines, the majority declares, based solely
on the statute's exemption of advertising vehicles, that the
statute regulates speech on the basis of content without a
compelling state interest. I find that such a mechanical approach
trivializes the First Amendment and must disagree with the
majority's conclusion.
In setting out the two-tiered system of constitutional
scrutiny, the majority refers briefly to Turner Broadcasting, 512 U.S. 622, 129 L. Ed. 2d 497, 114 S. Ct. 2445, for the principle that
the most exacting scrutiny must apply to regulations that suppress,
disadvantage or impose differential burdens on speech because of
its content. However, the majority fails to address a critical
distinction highlighted by the Court, which is that not all
regulations distinguishing between speakers warrant strict
scrutiny. Turner Broadcasting, 512 U.S. 622, 129 L. Ed. 2d 497,
114 S. Ct. 2445. Instead, it is only if the speaker-based law
reflects a governmental preference or aversion to the content of
the speech that the law is subject to strict scrutiny under the
First Amendment. Turner Broadcasting, 512 U.S. 622, 129 L. Ed. 2d 497, 114 S. Ct. 2445.
In Turner Broadcasting, cable television operators brought
actions challenging the constitutionality of the must-carry
provisions of the Cable Television Consumer Protection and
Competition Act of 1992 which required cable systems to carry local
broadcast stations. Rather than reaching a hasty conclusion that
the must-carry provisions were unconstitutional simply because the
provisions treated different speakers differently, the Court
instead recognized the difficulty in determining content neutrality
and returned to the guiding principle set forth in Ward that the
primary inquiry in determining content neutrality is whether the
government has adopted a regulation of speech because of
disagreement with the message it conveys. Turner Broadcasting, 512 U.S. 622, 129 L. Ed. 2d 497, 114 S. Ct. 2445, citing Ward, 491 U.S. 781, 105 L. Ed. 2d 661, 109 S. Ct. 2746.
"The government's purpose is the controlling
consideration. A regulation that serves purposes
unrelated to the content of expression is deemed neutral,
even if it has an incidental effect on some speakers or
messages but not others." [Emphasis added.] Ward, 491 U.S. at 791, 105 L. Ed. 2d at 675, 109 S. Ct. 2746.
If the manifest purpose is to regulate speech because of the
message it contains, then clearly the regulation is content-based.
By contrast, if the overriding purpose in enacting a law is
unrelated to the content of the expression, the law in most
instances will be deemed content neutral. Turner Broadcasting, 512 U.S. 622, 129 L. Ed. 2d 497, 114 S. Ct. 2445.
Acknowledging that the must-carry provisions distinguished
between speakers, the Turner Court nonetheless could not justify
application of the most exacting level of First Amendment scrutiny
because there was no evidence that the must-carry provisions
threatened free expression or created the potential for censorship
or manipulation. Turner Broadcasting, 512 U.S. 622, 129 L. Ed. 2d 497, 114 S. Ct. 2445. Instead, the Court found that "the
appropriate standard by which to evaluate the constitutionality of
[the provisions] is the intermediate level of scrutiny applicable
to content-neutral restrictions that impose an incidental burden on
speech." Turner Broadcasting, 512 U.S. at 662, 129 L. Ed. 2d at
___, 114 S. Ct. at 2469. Under the intermediate level of scrutiny,
a content-neutral regulation will be sustained if "it furthers an
important or substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression; and if
the incidental restriction on alleged First Amendment freedoms is
no greater than is essential to the furtherance of that interest."
United States v. O'Brien, 391 U.S. 367, 377, 20 L. Ed. 2d 672, ___,
88 S. Ct. 1673, 1679 (1968).
In determining content neutrality of the instant statute, the
essential question is whether the legislature preferred commercial
speech over noncommercial speech based on the content or the
viewpoint expressed by the different speakers. The answer is a
resounding no. There is no reason to believe that the regulation
is biased in favor of any particular point of view, nor is there
evidence of legislative intent to suppress unpopular ideas or to
manipulate the public debate in any way. Turner Broadcasting, 512 U.S. 622, 129 L. Ed. 2d 497, 114 S. Ct. 2445.
The legislature adopted the statute to prevent the excessive
volume emitted from so-called "boom box cars" in order to promote
traffic safety (vehicular and pedestrian) and to limit undue noise
pollution, which are legitimate, substantial government interests.
None of these interests is related to the content of the
expression, nor is there any danger of government censorship,
manipulation or suppression of free expression.
I disagree with the majority that the exemption for
advertising vehicles is sufficient to transform the statute into a
content-based regulation and thereby trigger strict scrutiny.
There is no evidence that the statute was designed to favor
commercial speech or that it was enacted because of the
legislature's aversion with the content of amplified noncommercial
expression.
The legislature may have rationally concluded that advertising
vehicles do not present the same dangers to the public peace and
safety and decided to exempt them from the statute. The exemption
for advertising vehicles is merely incidental to the manifest
purpose of the statute and does not undermine the constitutionality
of the regulatory scheme nor does it change the character of the
statute as a proper time, place and manner regulation. See
Metromedia, Inc. v. San Diego, 453 U.S. 490, 69 L. Ed. 2d 800, 101 S. Ct. 2882 (1981) (Burger, C.J., dissenting). So long as the law
is not a subtle means of exercising a content preference, a law
that distinguishes between speakers is not automatically presumed
invalid under the First Amendment. Turner Broadcasting, 512 U.S. 622, 129 L. Ed. 2d 497, 114 S. Ct. 2445.
The argument that the very basis of the statute was to
prohibit (or limit) noncommercial speech in favor of commercial
speech must fail. There simply is no evidence of legislative
intent to that effect and such a mechanical interpretation of the
statute would denigrate the "high purposes of the First Amendment."
Metromedia, 453 U.S. 490 at 569, 69 L. Ed. 2d at 854, 101 S. Ct. at
___ (Burger, C.J., dissenting). "The essential concern embodied in
the First Amendment is that government not impose its viewpoint on
the public or select topics on which public debate is permissible."
Metromedia, 453 U.S. at 553, 69 L. Ed. 2d 800 at 843, 101 S. Ct. at
____ (Stevens, J., dissenting in part).
The majority's hasty treatment of Turner Broadcasting resulted
in a misinterpretation of the appropriate standard of review. Had
the majority applied the intermediate level of scrutiny as
indicated by the Turner Court, it would have undoubtedly reached a
different result.
With due respect, I also must disagree with the majority's
claim that Discovery Network speaks to the point of conflict in the
instant case. Discovery Network struck down a city ordinance that
categorically and completely banned the distribution of commercial
publications through newsracks located on public property based on
the city's failure to provide a neutral justification for the
ordinance. As an example of "neutral justification," the Court in
Discovery Network cited to its decision in Renton v. Playtime
Theatres, Inc., 475 U.S. 41 89 L. Ed. 2d 29, 106 S. Ct. 925 (1986),
which upheld an ordinance imposing particular zoning regulations on
adult movie theaters. The Renton Court recognized that the
ordinance did not fall neatly into the "content-based" or "content-
neutral" category in that the ordinance treated theaters that
specialized in adult films differently from other kinds of
theaters. Nonetheless, the ordinance was upheld because it was
justified not by an interest in suppressing adult films, but by the
city's concern for the "secondary effects" of such theaters on the
surrounding neighborhood.
Similarly, the justification for the instant statute is not an
interest in suppressing free expression but rather an interest in
limiting the "secondary effects" of such uninhibited expression
(i.e. limiting the earsplitting noises emitted from "boom box
cars"). And, according to Renton, even though the instant statute
may not fit neatly into either the "content-based" or "content-
neutral" category, the statute should be upheld if it can be
justified by neutral interests in preserving the peace and
tranquility of our state.
The ordinance in Discovery Network failed constitutional
muster because it was a "categorical," "sweeping," and complete
ban. Neither of these descriptions fits the statute at issue here.
More importantly, I believe the majority here ignored the Court's
admonition that the holding in Discovery Network was narrow. "As
should be clear from the above discussion, we do not reach the
question whether, given certain facts and under certain
circumstances, a community might be able to justify differential
treatment of commercial and noncommercial [speech]." Discovery
Network, 123 L. Ed. 2d at 115. Clearly, the Court did not reach
the issue raised in the instant case. Instead, the implication is
that under certain facts and circumstances, a statute that
distinguishes between commercial and noncommercial speech may
withstand constitutional muster.
Finally, I believe that the requirement of narrow tailoring is
satisfied because the statute promotes a substantial government
interest that would be achieved less effectively absent the
regulation. See Ward, 491 U.S. 781, 105 L. Ed. 2d 661, 109 S. Ct. 2746, citing United States v. Albertini, 472 U.S. 675, 86 L. Ed. 2d 536, 105 S. Ct. 2897 (1985). The statute targets the problem of
excessive noise from "boom box cars" and eliminates that problem
without at the same time banning or significantly restricting a
substantial quantity of speech that does not create the same
problems. Ward, 491 U.S. 781, 799, 105 L. Ed. 2d 661, 681, 109 S. Ct. 2746 n.7.
In conclusion, even though the sound amplification statute
distinguishes among speakers, I believe that it is a content-
neutral regulation representing a proper exercise of the state's
police power to provide for the relative peace, tranquility and
safety of all its citizens. Consequently, I would uphold the
statute.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1998
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 21st Judicial Circuit
) Kankakee County, Illinois
Plaintiff-Appellee, )
)
)
v. ) No. 96--CF--561
)
)
RONNIE E. JONES, JR., ) Honorable
) Clark E. Erickson
Defendant-Appellant. ) Judge, Presiding
_________________________________________________________________
JUSTICE LYTTON delivered the opinion of the court:
_________________________________________________________________
Defendant Ronnie E. Jones, Jr. was indicted on a charge of
aggravated battery of a police officer and charged by traffic
citations with illegal sound amplification, reckless driving and
disobeying a police officer. A jury convicted him on all charges.
Defendant was sentenced to five years incarceration for aggravated
battery and assessed court costs on all other convictions. On
appeal, defendant challenges: (1) the constitutionality of the
sound amplification statute (625 ILCS 5/12--611 (West 1996)), (2)
the sentence imposed for aggravated battery, and (3) the
calculation of fees and costs assessed in relation to his
prosecution. We affirm in part, reverse in part, and remand for
the entry of a judgment reflecting the correct amount of fees and
costs.
I. FACTS
In the early morning hours of October 17, 1996, Sergeant Barry
Thomas stopped defendant because of the excessive volume emitting
from defendant's car radio. Sergeant Thomas approached the
driver's side of defendant's car, shined his flashlight in the
window and asked to see defendant's license and insurance card.
Refusing to comply, defendant stated that he had not been speeding
and asked why the officer had stopped him. Sergeant Thomas stated
he would explain later and reached for the handle on the car door.
Finding the door locked, the officer reached through defendant's
car window, which was down approximately six inches, to unlock the
door. When the officer unlocked the door, defendant slapped his
hand away and relocked the door. In an effort to divert
defendant's attention from the lock, the officer then hit defendant
in the chest with the flashlight.
At this point, a backup patrol car arrived, and Sergeant
Thomas called out for assistance as he attempted to unlock the door
again. Suddenly, defendant accelerated and drove off with Sergeant
Thomas' right arm still inside the car. The officer clamped his
right arm down on the glass, lifted his feet and yelled to
defendant to stop. The backup officers followed in pursuit and
testified at trial that despite the fact that Sergeant Thomas was
hanging on to the car, defendant reached speeds in excess of 70
miles per hour and traveled one mile and a half before finally
pulling over. Sergeant Thomas sustained bruises on the inside of
his upper right arm.
Defendant testified that he had poor eyesight and was blinded
by the flashing lights from Sergeant Thomas' police car and from
the flashlight. He testified that he did not know it was a real
police officer who pulled him over, that he drove away in fear
after being hit in the chest with the flashlight and that he
continued to drive at high speeds for more than a mile because he
was afraid the person hanging onto his car would hurt him. The
jury convicted defendant on all four counts.
At sentencing, the State introduced evidence of defendant's
prior conviction for aggravated battery of a peace officer.
Defendant's intoxication at the time of the prior offense was a
mitigating factor, and he received a sentence of probation.
Testifying on defendant's behalf, an employer stated that defendant
was reliable and trustworthy. His family and friends testified
that he was loving, patient and affectionate. In addition,
defendant addressed the court and expressed remorse for the
incident, as well as his thankfulness that no one was seriously
injured.
The court sentenced defendant to five years incarceration for
aggravated battery, and it entered judgment for costs for the sound
amplification, disobeying a police officer and reckless driving
violations.
II. ANALYSIS
A. CONSTITUTIONALITY OF THE SOUND AMPLIFICATION STATUTE
Section 12--611 of the Illinois Vehicle Code provides in
pertinent part that:
"No driver of any motor vehicle within this State
shall operate or permit operation of any sound
amplification system which can be heard outside the
vehicle from 75 or more feet when the vehicle is being
operated upon a highway, unless such system is being
operated to request assistance or warn of a hazardous
situation.
This Section does not apply to authorized emergency
vehicles or vehicles engaged in advertising." (Emphasis
added.) 625 ILCS 5/12--611 (West 1996).
On appeal, defendant contends that the statute is
unconstitutional because it is content-based and is overbroad in
violation of the first amendment of the United States Constitution
(U.S. Const., amend. I) and denies equal protection in violation of
the fourteenth amendment (U.S. Const., amend. XIV).
Legislative enactments are presumed to be constitutional
(People v. Warren, 173 Ill. 2d 348, 355, 671 N.E.2d 700, 704
(1996)) and all reasonable doubts are to be resolved in favor of
upholding legislation (People v. Holt, 271 Ill. App. 3d 1016, 1026,
649 N.E.2d 571, 579-80 (1995)). When a court decides whether a
statute violates the first amendment, it must consider that each
medium of communication creates a unique set of first amendment
problems that must be assessed in light of the "differing natures,
values, abuses and dangers" of that medium. Kovacs v. Cooper, 336 U.S. 77, 97, 93 L. Ed. 513, 528, 69 S. Ct. 448, ___ (1949)
(Jackson, J., concurring).
Music is a form of expression and communication protected by
the first amendment. Ward v. Rock Against Racism, 491 U.S. 781,
790, 105 L. Ed. 2d 661, 674, 109 S. Ct. 2746, ___ (1989). However,
sound amplification in streets and public places is subject to
reasonable regulation. Kovacs, 336 U.S. at 89, 93 L. Ed. at 523,
69 S. Ct. at ___.
In determining whether a restriction on expression passes
constitutional muster, courts apply a two-tiered system of review.
An intermediate level of judicial scrutiny is used where the
regulation is unrelated to content. Turner Broadcasting, Inc. v.
Federal Communications Commission, 512 U.S. 622, ___, 129 L. Ed. 2d 497, 517, 114 S. Ct. 2445, 2459 (1994). On the other hand, where
a regulation suppresses, disadvantages or imposes differential
burdens upon speech because of its content, "the most exacting
scrutiny" must be applied. Turner Broadcasting, 512 U.S. at ___,
129 L. Ed. 2d at 517, 114 S. Ct. at 2459. Such content-based
discrimination is "presumptively impermissible" (City of Ladue v.
Gilleo, 512 U.S. ___, ___, 129 L. Ed. 2d 36, 50, 114 S. Ct. 2038,
___ (1994) (O'Connor, J., concurring)), and will be upheld only if
it is narrowly tailored to serve a compelling state interest
(Widmar v. Vincent, 454 U.S. 263, 269-70, 70 L. Ed. 2d 440, 447-48,
102 S. Ct. 269, ___ (1981); People v. Sanders, ___ Ill. 2d ___,
___, ___ N.E.2d ___, ___ (1998)) with the least possible burden on
expression (Phillips v. Borough of Keyport, 107 F.3d 164, 172 (3d
Cir. 1997)).
In Ward v. Rock Against Racism, the supreme court considered
a city regulation that restricted the volume of music played in a
park bandshell. Ward, 491 U.S. at 790, 105 L. Ed. 2d at 674, 109
S. Ct. at ___. In upholding the regulation, the Supreme Court
stressed that it (a) was enacted to protect surrounding neighbors
and park visitors, (b) regulated only the time, place and manner of
expression, and (c) forbade enforcement that would "vary the * * *
volume based on the message being delivered" (emphasis added).
Ward, 491 U.S. at 794-95, 105 L. Ed. 2d at 677, 109 S. Ct. at ___.
Similarly, in Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 428, 123 L. Ed. 2d 99, 116, 113 S. Ct. 1505, ____ (1993), the
Supreme Court stated:
" * * * a prohibition against the use of sound trucks
emitting 'loud and raucous' noise in residential
neighborhoods is permissible if it applies equally to
music, political speech, and advertising." (Emphasis
added.)
Ward and Discovery Network speak to the point of conflict in this
case.
We conclude that the Illinois sound amplification statute (625
ILCS 5/12--611 (West 1996)) violates the first amendment by
regulating speech on the basis of content without a compelling
state interest. Section 12--611 restricts the amplification of
religious speech, political speech and music, but exempts
advertising. Unlike the rule challenged in Ward, the restrictions
found in section 12--611 do not apply equally to all types of
amplified sound. Different types of speech are treated
differently. Since the permissible degree of amplification is
dependent on the nature of the message being conveyed, the statute
is content-based (Regan v. Time, Inc., 468 U.S. 641, 648, 82 L. Ed. 2d 487, 494, 104 S. Ct. 3262, 3265 (1984)) and subject to strict
scrutiny (Turner Broadcasting, 512 U.S. at ___, 129 L. Ed. 2d at
517, 114 S. Ct. at 2459).
Although we wholeheartedly agree that the State of Illinois
has a substantial interest in protecting its citizens from
unwelcome noise on city streets (Ward, 491 U.S. at 796, 105 L. Ed. 2d at 678, 109 S. Ct. at ___), the State has failed to provide a
compelling reason for discriminating between the amplification of
commercial speech and non-commercial speech (see Sanders, ___ Ill.
2d at ___, ___ N.E.2d at ___). Indeed, the State's brief does not
even attempt to argue that such an interest exists, and we are
unable to find a compelling reason for the distinction. While the
statute seeks to protect the citizens of Illinois from loud decibel
levels at close distances, nothing in the record, briefs or
legislative history suggests why commercial speech should be
afforded an exemption. Cf. Board of Trustees of the State
University of New York v. Fox, 492 U.S. 469, 477, 106 L. Ed. 2d 388, 402, 109 S. Ct 3028, ____ (1989)(commercial speech enjoys only
a "limited measure of protection, commensurate with its subordinate
position in the scale of First Amendment values").
In an odd twist, section 12--611 actually turns the
constitutional requirement for judicial review on its head. Courts
apply heightened scrutiny to restrictions on such cherished
freedoms as political speech and religious expression, for which
this country has "march[ed] our sons and daughters off to war"
(Young, 427 U.S. at 70, 49 L. Ed. 2d at 326, 96 S. Ct. at ____); in
contrast, commercial speech is subject to "modes of regulation that
might be impermissible in the realm of non-commercial expression"
(Fox, 492 U.S. at 477, 106 L. Ed. 2d at 402, 109 S. Ct at ____).
Ironically, section 12--611 provides greater protection to
commercial speech. This topsy-turvy reversal of constitutional
priorities cannot stand. See generally, United States v. Edge
Broadcasting Co., 509 U.S. 418, 429, 125 L. Ed. 2d 345, 358-59, 113 S. Ct. 2696, ____ (1993).
As presently written, section 12--611 unconstitutionally
discriminates in favor of amplified advertising and against speech
with religious, political and other non-commercial content. We
urge the General Assembly to revise the statute to make it content-
neutral.
Defendant's conviction for illegal sound amplification is
reversed, and thus we need not address his claims that the statute
is overbroad and denies equal protection of the laws.
B. SENTENCE FOR AGGRAVATED BATTERY
Defendant next contends that the State improperly raised and
the trial court improperly considered an element of the offense,
the victim's occupation as a peace officer, as part of the
rationale for imposing a five-year term of incarceration. See 720
ILCS 5/12--4(b)(6) (West 1996); People v. Gramo, 251 Ill. App. 3d
958, 970, 623 N.E.2d 926, 935 (1993) (essential element of offense
may not be relied upon by the court to enhance punishment).
A trial judge's reliance on an improper factor at sentencing
does not always necessitate remandment for a new hearing. People
v. Bourke, 96 Ill. 2d 327, 332, 449 N.E.2d 1338, 1340 (1983).
Here, defendant's failure to raise the issue in his motion to
reduce sentence constitutes waiver on appeal. 134 Ill. 2d R.
615(a).
Defendant requests that we review this alleged error under the
plain error rule, which can be invoked for sentencing
irregularities if the evidence was closely balanced or a defendant
was denied a fair hearing. People v. Beals, 162 Ill. 2d 497, 511,
643 N.E.2d 789, 796 (1994). After reviewing the record, we hold
that plain error did not occur.
A judge is not required to refrain from any mention of factors
that constitute elements of an offense. People v. Barney, 111 Ill.
App. 3d 669, 679, 444 N.E.2d 518, 525 (1982). The judge may
consider the nature and circumstances of the offense, and mere
reference to the existence of such a factor is not reversible
error. Gramo, 251 Ill. App. 3d at 971, 623 N.E.2d at 935, citing
People v. Tolliver, 98 Ill. App. 3d 116, 117-18, 424 N.E.2d 44, 45
(1981). After reviewing the judge's comments in context, we find
that statements regarding the victim's occupation were made within
the judge's discussion of the factual circumstances of the crime,
i.e., how defendant initiated the incident by refusing to produce
his license and then escalated a routine traffic stop into a high
speed chase while an officer was hanging onto the car. The record
does not support defendant's contention that the judge improperly
relied on the victim's occupation, or enhanced the sentence on this
basis.
Moreover, the evidence at sentencing was not closely balanced,
and defendant has failed to show that the alleged error deprived
him of a fair hearing. The judge determined that defendant's
offense was serious, his violent behavior endangered the public,
there existed a need for deterrence, defendant had a prior criminal
record that included a conviction for aggravated battery against a
peace officer and another sentence of probation would be
inconsistent with the ends of justice. The trial judge found no
factors in mitigation.
Aggravated battery of a police officer is a class 3 felony
(720 ILCS 5/12--4(e) (West 1996)), and defendant was eligible for
an extended term because of a prior conviction for aggravated
battery of a police officer (730 ILCS 5/5--5--3.2(b)(1) (West
1996)). In this case, the potential sentencing range included
probation (730 ILCS 5/5--6--1(a) (West 1996)) to a maximum extended
term of 10 years in prison (730 ILCS 5/5--8--2(a)(5) (West 1996)).
The trial court sentenced defendant to five years. Given the
substantial factors in aggravation, including defendant's prior
failed attempt at rehabilitation through probation, and the lack of
mitigating factors, this mid-range sentence was well within the
discretion of the trial court.
We affirm defendant's sentence for aggravated battery of a
peace officer.
C. ASSESSMENT OF FEES AND COSTS
Finally, defendant argues that the court incorrectly assessed
fees and costs for his one felony, one misdemeanor and two petty
offenses and contends that he is entitled to a $120.00 credit. The
State agrees that defendant is entitled to a credit, but calculates
the correct amount to be only $100.00. According to the State,
defendant failed to include in his calculation the $10 state's
attorney fee for each of the two petty offense convictions.
We agree with the State's calculation. See 55 ILCS 5/4--2002
(West 1996) (state's attorney is entitled to a fee of $10 for each
conviction that could have been assigned to an associate judge,
whether or not it was so assigned). However, in light of our
decision reversing defendant's conviction for illegal sound
amplification, on remand the circuit court will need to make
additional changes to the fees and costs assessed against
defendant.
III. CONCLUSION
For the reasons stated above, the judgment of the circuit
court of Kankakee County is affirmed in part, reversed in part, and
this cause is remanded for the entry of an amended judgment order.
Affirmed in part, reversed in part, and remanded for further
proceedings.
HOMER, P.J., concurs; SLATER, J., dissents.
JUSTICE SLATER dissenting:
_________________________________________________________________
Rather than conducting a meaningful analysis and application
of constitutional guidelines, the majority declares, based solely
on the statute's exemption of advertising vehicles, that the
statute regulates speech on the basis of content without a
compelling state interest. I find that such a mechanical approach
trivializes the First Amendment and must disagree with the
majority's conclusion.
In setting out the two-tiered system of constitutional
scrutiny, the majority refers briefly to Turner Broadcasting, 512 U.S. 622, 129 L. Ed. 2d 497, 114 S. Ct. 2445, for the principle that
the most exacting scrutiny must apply to regulations that suppress,
disadvantage or impose differential burdens on speech because of
its content. However, the majority fails to address a critical
distinction highlighted by the Court, which is that not all
regulations distinguishing between speakers warrant strict
scrutiny. Turner Broadcasting, 512 U.S. 622, 129 L. Ed. 2d 497,
114 S. Ct. 2445. Instead, it is only if the speaker-based law
reflects a governmental preference or aversion to the content of
the speech that the law is subject to strict scrutiny under the
First Amendment. Turner Broadcasting, 512 U.S. 622, 129 L. Ed. 2d 497, 114 S. Ct. 2445.
In Turner Broadcasting, cable television operators brought
actions challenging the constitutionality of the must-carry
provisions of the Cable Television Consumer Protection and
Competition Act of 1992 which required cable systems to carry local
broadcast stations. Rather than reaching a hasty conclusion that
the must-carry provisions were unconstitutional simply because the
provisions treated different speakers differently, the Court
instead recognized the difficulty in determining content neutrality
and returned to the guiding principle set forth in Ward that the
primary inquiry in determining content neutrality is whether the
government has adopted a regulation of speech because of
disagreement with the message it conveys. Turner Broadcasting, 512 U.S. 622, 129 L. Ed. 2d 497, 114 S. Ct. 2445, citing Ward, 491 U.S. 781, 105 L. Ed. 2d 661, 109 S. Ct. 2746.
"The government's purpose is the controlling
consideration. A regulation that serves purposes
unrelated to the content of expression is deemed neutral,
even if it has an incidental effect on some speakers or
messages but not others." [Emphasis added.] Ward, 491 U.S. at 791, 105 L. Ed. 2d at 675, 109 S. Ct. 2746.
If the manifest purpose is to regulate speech because of the
message it contains, then clearly the regulation is content-based.
By contrast, if the overriding purpose in enacting a law is
unrelated to the content of the expression, the law in most
instances will be deemed content neutral. Turner Broadcasting, 512 U.S. 622, 129 L. Ed. 2d 497, 114 S. Ct. 2445.
Acknowledging that the must-carry provisions distinguished
between speakers, the Turner Court nonetheless could not justify
application of the most exacting level of First Amendment scrutiny
because there was no evidence that the must-carry provisions
threatened free expression or created the potential for censorship
or manipulation. Turner Broadcasting, 512 U.S. 622, 129 L. Ed. 2d 497, 114 S. Ct. 2445. Instead, the Court found that "the
appropriate standard by which to evaluate the constitutionality of
[the provisions] is the intermediate level of scrutiny applicable
to content-neutral restrictions that impose an incidental burden on
speech." Turner Broadcasting, 512 U.S. at 662, 129 L. Ed. 2d at
___, 114 S. Ct. at 2469. Under the intermediate level of scrutiny,
a content-neutral regulation will be sustained if "it furthers an
important or substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression; and if
the incidental restriction on alleged First Amendment freedoms is
no greater than is essential to the furtherance of that interest."
United States v. O'Brien, 391 U.S. 367, 377, 20 L. Ed. 2d 672, ___,
88 S. Ct. 1673, 1679 (1968).
In determining content neutrality of the instant statute, the
essential question is whether the legislature preferred commercial
speech over noncommercial speech based on the content or the
viewpoint expressed by the different speakers. The answer is a
resounding no. There is no reason to believe that the regulation
is biased in favor of any particular point of view, nor is there
evidence of legislative intent to suppress unpopular ideas or to
manipulate the public debate in any way. Turner Broadcasting, 512 U.S. 622, 129 L. Ed. 2d 497, 114 S. Ct. 2445.
The legislature adopted the statute to prevent the excessive
volume emitted from so-called "boom box cars" in order to promote
traffic safety (vehicular and pedestrian) and to limit undue noise
pollution, which are legitimate, substantial government interests.
None of these interests is related to the content of the
expression, nor is there any danger of government censorship,
manipulation or suppression of free expression.
I disagree with the majority that the exemption for
advertising vehicles is sufficient to transform the statute into a
content-based regulation and thereby trigger strict scrutiny.
There is no evidence that the statute was designed to favor
commercial speech or that it was enacted because of the
legislature's aversion with the content of amplified noncommercial
expression.
The legislature may have rationally concluded that advertising
vehicles do not present the same dangers to the public peace and
safety and decided to exempt them from the statute. The exemption
for advertising vehicles is merely incidental to the manifest
purpose of the statute and does not undermine the constitutionality
of the regulatory scheme nor does it change the character of the
statute as a proper time, place and manner regulation. See
Metromedia, Inc. v. San Diego, 453 U.S. 490, 69 L. Ed. 2d 800, 101 S. Ct. 2882 (1981) (Burger, C.J., dissenting). So long as the law
is not a subtle means of exercising a content preference, a law
that distinguishes between speakers is not automatically presumed
invalid under the First Amendment. Turner Broadcasting, 512 U.S. 622, 129 L. Ed. 2d 497, 114 S. Ct. 2445.
The argument that the very basis of the statute was to
prohibit (or limit) noncommercial speech in favor of commercial
speech must fail. There simply is no evidence of legislative
intent to that effect and such a mechanical interpretation of the
statute would denigrate the "high purposes of the First Amendment."
Metromedia, 453 U.S. 490 at 569, 69 L. Ed. 2d at 854, 101 S. Ct. at
___ (Burger, C.J., dissenting). "The essential concern embodied in
the First Amendment is that government not impose its viewpoint on
the public or select topics on which public debate is permissible."
Metromedia, 453 U.S. at 553, 69 L. Ed. 2d 800 at 843, 101 S. Ct. at
____ (Stevens, J., dissenting in part).
The majority's hasty treatment of Turner Broadcasting resulted
in a misinterpretation of the appropriate standard of review. Had
the majority applied the intermediate level of scrutiny as
indicated by the Turner Court, it would have undoubtedly reached a
different result.
With due respect, I also must disagree with the majority's
claim that Discovery Network speaks to the point of conflict in the
instant case. Discovery Network struck down a city ordinance that
categorically and completely banned the distribution of commercial
publications through newsracks located on public property based on
the city's failure to provide a neutral justification for the
ordinance. As an example of "neutral justification," the Court in
Discovery Network cited to its decision in Renton v. Playtime
Theatres, Inc., 475 U.S. 41 89 L. Ed. 2d 29, 106 S. Ct. 925 (1986),
which upheld an ordinance imposing particular zoning regulations on
adult movie theaters. The Renton Court recognized that the
ordinance did not fall neatly into the "content-based" or "content-
neutral" category in that the ordinance treated theaters that
specialized in adult films differently from other kinds of
theaters. Nonetheless, the ordinance was upheld because it was
justified not by an interest in suppressing adult films, but by the
city's concern for the "secondary effects" of such theaters on the
surrounding neighborhood.
Similarly, the justification for the instant statute is not an
interest in suppressing free expression but rather an interest in
limiting the "secondary effects" of such uninhibited expression
(i.e. limiting the earsplitting noises emitted from "boom box
cars"). And, according to Renton, even though the instant statute
may not fit neatly into either the "content-based" or "content-
neutral" category, the statute should be upheld if it can be
justified by neutral interests in preserving the peace and
tranquility of our state.
The ordinance in Discovery Network failed constitutional
muster because it was a "categorical," "sweeping," and complete
ban. Neither of these descriptions fits the statute at issue here.
More importantly, I believe the majority here ignored the Court's
admonition that the holding in Discovery Network was narrow. "As
should be clear from the above discussion, we do not reach the
question whether, given certain facts and under certain
circumstances, a community might be able to justify differential
treatment of commercial and noncommercial [speech]." Discovery
Network, 123 L. Ed. 2d at 115. Clearly, the Court did not reach
the issue raised in the instant case. Instead, the implication is
that under certain facts and circumstances, a statute that
distinguishes between commercial and noncommercial speech may
withstand constitutional muster.
Finally, I believe that the requirement of narrow tailoring is
satisfied because the statute promotes a substantial government
interest that would be achieved less effectively absent the
regulation. See Ward, 491 U.S. 781, 105 L. Ed. 2d 661, 109 S. Ct. 2746, citing United States v. Albertini, 472 U.S. 675, 86 L. Ed. 2d 536, 105 S. Ct. 2897 (1985). The statute targets the problem of
excessive noise from "boom box cars" and eliminates that problem
without at the same time banning or significantly restricting a
substantial quantity of speech that does not create the same
problems. Ward, 491 U.S. 781, 799, 105 L. Ed. 2d 661, 681, 109 S. Ct. 2746 n.7.
In conclusion, even though the sound amplification statute
distinguishes among speakers, I believe that it is a content-
neutral regulation representing a proper exercise of the state's
police power to provide for the relative peace, tranquility and
safety of all its citizens. Consequently, I would uphold the
statute.
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