No. 4-10-0764 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT PEOPLE OF THE STATE OF ILLINOIS, v. Plaintiff-Appellee, RYAN YOSELOWITZ, Defendant-Appellant. Appeal from the Circuit Court of the Eleventh Judicial Circuit, McLean County, Illinois Circuit Court No. 09 CF 416 Honorable Robert L. Freitag, Judge Presiding Date of Appeal: Sept. 29, 2010 Date of Judgment: Sept. 21, 2010 REPLY BRIEF OF DEFENDANT-APPELLANT Steven B. Muslin Craig M. Sandberg MUSLIN & SANDBERG 19 S. LaSalle Street, Suite 700 Chicago, Illinois 60603-1491 Tel: (312) 263-7249 Counsel for Ryan Yoselowitz ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS POINTS AND AUTHORITIES 3 INTRODUCTION. 5 ARGUMENT.. 5 I. CLAFFICIATION OF 720 ILCS 550/5(g) AS A CLASS X FELONY IS UNCONSTITUTIONAL 5 II. THE SENTENCING PROVISION OF 720 ILCS 550/5(g), AS APPLIED TO RYAN YOSELOWITZ, IS UNCONSTITUTIONAL 9 CONCLUSION.. 11 2
POINTS AND AUTHORITIES I. CLAFFICIATION OF 720 ILCS 550/5(g) AS A CLASS X FELONY IS UNCONSTITUTIONAL 5 720 ILCS 550/5(g).. passim Weems v. United States, 217 U.S. 349 30 S. Ct. 544 (1910) 5 Robinson v. California, 370 U.S. 660 82 S. Ct. 1416 (1962).. 6 Harmelin v. Michigan, 501 U.S. 957 111 S. Ct. 2680 (1991) 6 Atkins v. Virginia, 536 U.S. 304 122 S. Ct. 2242 (2002) 6 People v. McCabe, 49 Ill. 2d 338 275 N.E.2d 407 (1971) 7 Maddux v. Blagojevich, 233 Ill. 2d 508 911 N.E.2d 979 (2009) 8 Wauconda Fire Prot. Dist. v. Stonewall Orchards, LLP, 214 Ill. 2d 417, 828 N.E.2d 216 (2005).. 8 In re D.W., 214 Ill. 2d 289 827 N.E.2d 466 (2005) 8 In re K.L.P., 198 Ill. 2d 448 762 N.E.2d 741 (2002) 8 Fumarolo v. Chi. Bd. of Educ., 142 Ill. 2d 54 566 N.E.2d 1283 (1990). 8 Mass. Bd. of Ret. V. Murgia, 427 U.S. 307 96 S. Ct. 2562 (1976). 8 720 ILCS 550/1 9 3
II. DEFENDANT S CITATIONS TO SECONDARY SOURCES ARE PROPER AND THE GOVERNMENT S MOTION TO STRIKE MUST BE DENIED.. 9 People v. Mehlberg, 249 Il. App. 3d 499 618 N.E.2d 1168 (5th Dist. 1993). 9 People v. Davis, 65 Ill. 2d 157 357 N.E.2d 792 (1976) 10 Mayer v. Chi. Mech. Serv. Inc., 398 Ill. App. 3d 1005 925 N.E.2d 317, 321 (2d Dist. 2010)... 10 Eckburg v. Presbytery of Blackhawk of Presbyterian Church (USA), 396 Ill. App. 3d 164, 918 N.E.2d 1184 (2d Dist. 2009) 10 Starnes v. Int l Harvester Co., 184 Ill. App. 3d 199 539 N.E.2d 1372 (4th Dist. 1991) 10 4
INTRODUCTION Ryan Yoselowitz s opening brief showed how, inter alia, under the facts of this case, Yoselowitz s sentence is improper as, most importantly, 720 ILCS 550/5(g) is unconstitutional, as well as unreasonable. This reply shall serve to address one overarching merits argument and the government s motion to strike portions of the opening brief. As to all of the government s other arguments, those issues have been previously discussed at length in Yoselowitz s opening brief and no further briefing on those issues is required. Also, although characterized by the government otherwise, Yoselowitz s guilty plea was, in fact, a blind plea. ARGUMENT I. CLAFFICIATION OF 720 ILCS 550/5(g) AS A CLASS X FELONY IS UNCONSTITUTIONAL. The Eighth Amendment succinctly prohibits [e]xcessive sanctions. It provides: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. This country has a rich tradition of safeguarding against excessive punishment. More than a century ago, the Supreme Court of the United States held that it is a precept of justice that punishment for crime should be graduated and proportioned to offense. Weems v. United States, 217 U.S. 349, 367, 30 S. Ct. 544 (1910). This 5
application has continued to the present. See Robinson v. California, 370 U.S. 660, 666-67, 82 S. Ct. 1416 (1962); Harmelin v. Michigan, 501 U.S. 957, 997-98, 111 S. Ct. 2680 (1991); Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002). A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the Bloody Assizes or when the Bill of Rights was adopted, but rather by those that currently prevail. As Chief Justice Warren explained in his opinion in Trop v. Dulles 356 U.S. 86[, 78 S. Ct. 590] (1958): The basic concept underlying the Eighth Amendment is nothing less than the dignity of man The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Atkins, 546 U.S. at 312. As any seasoned automobile driver knows, perception (along with the other Five P s, or basic principles, for effective driving that include planning, prevention, publicity, and proper attitude) helps to reduce incorrect decisions and avoidable accidents. Perception means that a driver must have a complete picture of what is ahead by looking to the horizon and scanning from side to side, and not by looking a one object alone to base a decision. The government s response to the merits portion of defendant s opening brief attempts to obfuscate this Court s analysis away from a complete perception, which is the macro-argument, raised on appeal, namely, that the sentencing provision of 720 ILCS 550/5(g), as applied to Ryan 6
Yoselowitz, is unconstitutional. Continuing with the driving analogy, the government seeks to analyze any given view in isolation. For instance, look ahead only and decide what to do. Or, focus on what is to approaching from the left side in isolation and decide what to do. Or, focus on what is approaching from the right side in isolation and decide what to do. And on and on. The result is reductio ad absurdum and, necessarily, results in an illadvised result. While defendant has specifically raised all of the important points in his opening brief, one of the most critical has been left virtually untouched by the government: impermissible classification. Importantly, although the government addresses, generally, this issue in Section II, the response brief ignores what, in light of the Illinois Supreme Court s application in People v. McCabe, 49 Ill. 2d 338, 275 N.E.2d 407 (1971) (and its progeny), is permissible. In McCabe, the Illinois Supreme Court held that the state s statutory classification of marijuana with hard drugs was unconstitutional. A statute based on specious and discredited facts cannot survive even deferential review. Id. at 341-50. As the Illinois Supreme Court has held, even under a rational basis review, there is a judicial obligation to insure that the power to classify has not been exercised arbitrarily Id. at 341. Specifically, a court must judge whether the data presently available provides a reasonable basis for the classification, id. at 342, and where it does not, the law must fall. Id. at 350. Here, the government did not present 7
evidence that classifying 720 ILCS 550/5(g) as a Class X felony was reasonable or that it was not arbitrary, and the trial court did not make findings that classifying 720 ILCS 550/5(g) as a Class X felony was reasonable. Equal protection requires that similarly situated individuals will be treated similarly unless the government can demonstrate an appropriate reason to do otherwise. Maddux v. Blagojevich, 233 Ill. 2d 508, 525-56, 911 N.E.2d 979 (2009). Although when conducting an equal protection analysis, [Illinois courts] apply the same standards under both the United States Constitution and the Illinois Constitution, Wauconda Fire Prot. Dist. v. Stonewall Orchards, LLP, 214 Ill. 2d 417, 434, 828 N.E.2d 216 (2005), if the classification affects fundamental rights, that standard is strict scrutiny. See, e.g., In re D.W., 214 Ill. 2d 289, 313, 827 N.E.2d 466 (2005); In re K.L.P., 198 Ill. 2d 448, 467, 762 N.E.2d 741 (2002); Fumarolo v. Chi. Bd. of Educ., 142 Ill. 2d 54, 73, 566 N.E.2d 1283 (1990); see also Mass. Bd. of Ret. V. Murgia, 427 U.S. 307, 312, 96 S. Ct. 2562 (1976). Here, application of 720 ILCS 550/5(g) to defendant affects fundamental rights and classifies a non-violent crime with violent crimes under the classification of X ; strict scrutiny thus applies. As discussed a length in the opening brief, 720 ILCS 550/5(g) cannot pass such scrutiny, or, indeed, even lower level rational basis review. As the allegations here overwhelmingly demonstrate, there is no rational, let alone compelling, basis for continuing to classify 8
manufacur[ing], deliver[ing], or possess[ing] more than 5,000 grams of cannabis as a Class X felony. Accordingly, whether the test is rational basis or something more exacting, 720 ILCS 550/5(g) denies defendant s equal protection of the laws. One cannot say that, in light of the present state of knowledge regarding marijuana, the classification of 720 ILCS 550/5(g) as a Class X felony is related to the intended goals of the Illinois legislature to establish a regulatory system for marijuana based upon a belief that marijuana caused physical, psychological and sociological damage and to establish a reasonable penalty system. 720 ILCS 550/1. While the state may have some limited interest in the general prohibition of marijuana, there is no legitimate basis to classify it as a Class X. Once again, Defendant does not ask this court to reform the Cannabis Control Act, but to rule that the relevant section, 720 ILCS 550/5(g), it is unconstitutional as written. II. DEFENDANT S CITATIONS TO SECONDARY SOURCES ARE PROPER AND THE GOVERNMENT S MOTION TO STRIKE MUST BE DENIED. The government, citing a Fifth District case (People v. Mehlberg, 249 Il. App. 3d 499, 618 N.E.2d 1168 (5th Dist. 1993)), seeks to strike certain portions of defendant s opening brief because of citation to secondary sources, (Response at pp2-5), and, then, cites to its own secondary sources. (i.e., 9
United States Census Bureau (Response at p17)). Courts may take judicial notice of matters which are commonly known or of facts which, which not generally known, are readily verifiable from sources of indisputable accuracy. People v. Davis, 65 Ill. 2d 157, 161, 357 N.E.2d 792 (1976). The government seeks this court to strike citations to, inter alia, references to reports from the U.S. Department of Health and Human Services, U.S. Department of Transportation, and the National Commission on Marihuana and Drug Abuse. The case before this court is a matter of first impression. In matters of first impression, it is appropriate to consult secondary sources and decisions from other jurisdictions. Mayer v. Chi. Mech. Serv. Inc., 398 Ill. App. 3d 1005, 925 N.E.2d 317, 321 (2d Dist. 2010); Eckburg v. Presbytery of Blackhawk of Presbyterian Church (USA), 396 Ill. App. 3d 164, 169, 918 N.E.2d 1184 (2d Dist. 2009) (looking to the Restatement (Second) of Torts for guidance). In Starnes v. Int l Harvester Co., 184 Ill. App. 3d 199, 204, 539 N.E.2d 1372 (4th Dist. 1991), the court found beneficial well-respected secondary sources to be helpful in reaching its decision. The government does not argue that the cited-to law review articles and legislative sessions would not aid this court. Moreover, some of the material is cited to aid this court by providing relevant background to fill in a more complete picture. Therefore, this court should deny the government s motion to strike certain portions of Defendant s opening brief. 10
CONCLUSION For all of the foregoing reasons, the defendant-appellant, Ryan Yoselowitz, respectfully requests that this Honorable Court declare 720 ILCS 550/5(g) unconstitutional and to vacate his sentence and remand the cause with directions for imposition of a sentence less than twelve (12) years of imprisonment. Dated: May 2, 2011 Respectfully submitted, By: Steven B. Muslin (ARDC #2005093) Craig M. Sandberg (ARDC #6257836) MUSLIN & SANDBERG 19 S. LaSalle Street, Suite 700 Chicago, Illinois 60603-1491 Tel: (312) 263-7249 Attorneys for Ryan Yoselowitz 11
CERTIFICATE OF COMPLIANCE I certify that this brief conforms to the requirements of Rules 341(a) and (b). The length of this brief, excluding the pages containing the Rule 341(d) cover, the Rule 341(h)(1) statement of points and authorities, the Rule 341(c) certificate of compliance, the certificate of service, and those matters to be appended to the brief under Rule 342(a), is 7 pages. By: CRAIG M. SANDBERG 12
PROOF OF SERVICE The undersigned, being first duly sworn upon oath, deposes and states that three (3) copies of the foregoing Reply Brief of Defendant-Appellant were caused to be served upon: Robert J. Biderman STATE S ATTORNEYS APPELLATE PROSECUTOR 725 S. Second Street Springfield, Illinois 62704 Lisa M. Madigan OFFICE OF THE ILLINOIS ATTORNEY GENERAL 100 W. Randolph Street, Suite 10-500 Chicago, Illinois 60601 pursuant to SUP. CT. R. 341(e), by depositing such copies in the U.S. Mail at 19 S. LaSalle Street, Chicago, Illinois, 60603, postage prepaid, on or before 5:00 p.m. on May 2, 2011. By: CRAIG M. SANDBERG SUBSCRIBED and SWORN to before me on this 2nd day of May, 2011 NOTARY PUBLIC 13