Opinion
4-22-0793
06-09-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHANE ROBERT EDWARD LONG, Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of McLean County No. 21CF407 Honorable J. Casey Costigan, Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court. Justices Zenoff and Knecht concurred in the judgment.
ORDER
DOHERTY JUSTICE.
¶ 1 Held: We grant the motion of the Office of the State Appellate Defender to withdraw as counsel and affirm the judgment of the trial court.
¶ 2 Following a bench trial, defendant Shane Robert Edward Long was convicted of unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(e) (West 2020)) and sentenced to three years in prison. On appeal, the Office of the State Appellate Defender (OSAD) now seeks to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), on the basis that it cannot raise any potentially meritorious argument. We grant OSAD's motion to withdraw and affirm the judgment of the trial court.
¶ 3 I. BACKGROUND
¶ 4 While incarcerated in the McLean County jail awaiting trial on other pending charges, defendant made three phone calls in September 2020 to various individuals asking them to sell certain items. Detective Jason Parmenter of the Normal Police Department listened to those phone calls and, based on his training and experience, determined that defendant was requesting certain individuals to retrieve cannabis from his house and sell it. Based on Parmenter's interpretation of the phone calls, a search warrant for defendant's house was issued, and the search of defendant's home revealed cannabis and other drug paraphernalia. The State charged defendant with unlawful possession of cannabis with intent to deliver more than 500 but less than 2000 grams (720 ILCS 550/5(e) (West 2020)) (count I) and unlawful possession of a controlled substance (cocaine) (id. § 402(c)) (count II).
¶ 5 A. Waiver of Counsel
¶ 6 Prior to trial, defendant requested to proceed pro se. The trial court took great care in admonishing defendant about the nature of the charges, the possible penalties, and his right to counsel, all of which defendant stated he understood. Defendant informed the judge that he was 36 years old, had a general equivalency diploma and 36 college credits, and had previously represented himself in a legal proceeding. Defendant also had several other cases pending before another judge in which he was also proceeding pro se. The court found that defendant was knowingly and voluntarily waiving his right to counsel.
¶ 7 B. Motion to Suppress
¶ 8 Defendant moved to suppress the evidence obtained from the search of his home, arguing Parmenter knowingly provided false information in applying for the search warrant. Specifically, he alleged Parmenter's complaint stated that he believed defendant possessed "large amounts" of cannabis in his house, even though defendant only discussed "two ounces" on his jail phone call. Further, Parmenter stated that he believed defendant was directing a person to his house on Lee Street to dispose of cannabis. Defendant argued he never mentioned his residence on Lee Street, only the house in Cooksville, and the statement that defendant was directing someone specifically to his Lee Street residence amounted to mere speculation. Defendant also argued that the cannabis recovered was "void," citing the inventory receipt that stated the cannabis was recovered from the "kitchen SW corner void."
¶ 9 The trial court denied defendant's motion, and a motion to reconsider followed. At the hearing on the motion to reconsider, defendant requested an evidentiary hearing to present a recording of the first phone call to Miranda Becker and Parmenter's testimony. The court allowed defendant to reopen the motion to suppress and present the recording of the phone call.
¶ 10 During the hearing on the reopened motion to suppress, the State provided transcripts of the three phone calls at issue to the trial court. The State's transcripts showed that the first call was made at 2:29 p.m. to Becker; the second was made at 3:09 p.m., also to Becker; and the third was made at 3:20 p.m. to Courtney and Zach Kerrick.
¶ 11 Relevant to these proceedings, the transcripts showed that in the first call to Becker, defendant stated, "I'm going to release my keys to ya, and I need you to go out to the house in Cooksville and just start taking pictures of it and put it on Anything Goes for thirty thousand." Defendant also tells her to put his car up for sale for $10,000. Defendant then tells her that he has a box of tools at his house and that he has "two brand new pairs of shoes that uh that Gorilla. You know the new Gorilla shoes?" He says the shoes are worth $280 a pair and asks Becker if she "gets it?" He clarifies that "it's not the new shoes. It's the old stinky shoes that smell. You know what I'm saying?" Becker did not understand what defendant was saying. He then tells her, "[Y]ou know that Gorilla glue that you be smokin?" Becker replies in the affirmative, and defendant says he has "[t]wo brand new ones" and "they're smokin', everybody wants 'em. They're f***' brand new." Becker responds, "Oh, I like those shoes" and asks if the shoes are at his house, and he says yes.
¶ 12 In the second call, defendant tells Becker that she has to come to the jail to get his keys. Defendant references the countertop in his house where the microwave is and tells her that "the thing" where his microwave is, "uh it's like down," "you know what I'm saying?"
¶ 13 In the third call, Courtney Kerrick stated that she was going to "start on the houses" and planned to clean the house on Lee Street the following day. Defendant told her that he had "two pairs of Jordan's" in his "cubbyhole" at the house and asked her if she understood; she said that she did. Defendant told her that Zach knows how his "counter is all messed up" and asked to speak with him. Zach got on the phone call and said, "I hear ya about the shoes. What do you wanna do with 'em?" Defendant directed Zach to see if an individual named Bob was interested in them and that $260 was a fair price. Defendant asked if Zach understood what he was saying, Zach answered in the affirmative. Defendant told Zach that he needed to retrieve the shoes that night.
¶ 14 At the hearing, defendant requested that the trial court only listen to the recording of the first phone call with Becker. After the recording was played, defendant argued that nowhere in the call did he ever direct Becker specifically to the property on Lee Street; he only mentioned the Cooksville property. Accordingly, defendant argued Parmenter made false statements in the search warrant complaint to gain access to the Lee Street property, and he pointed to a portion of Parmenter's search warrant complaint that stated defendant, during the call with Becker, "while using code phrases, directed [her] to go to his residence located at 913 North Lee Street *** and dispose of cannabis."
¶ 15 The complaint also stated that after reviewing the phone calls, and based on Parmenter's training and experience as a vice detective, he had probable cause to believe that illegal cannabis and possibly other controlled substances were located at defendant's residence on Lee Street because "gorilla glue" was a brand of cannabis, and he believed that defendant's reference to shoes was a reference to cannabis. The complaint also explained that individuals who possess large amounts of controlled substances often utilize trapdoors or other methods of concealing the substances, which explained defendant's reference to the countertop by the microwave that would have to be manipulated.
¶ 16 The State argued that since the complaint stated that Parmenter reviewed the "calls," the complaint was based on all three phone calls, not just the first as argued by defendant. Further, the complaint was a summary, and although not every fact was included, there was no evidence of dishonesty. After reviewing the phone calls, the trial court agreed with the State, denied the motion to suppress, and found that defendant was not entitled to a Franks hearing (see Franks v. Delaware, 438 U.S. 154 (1978)).
¶ 17 C. Jury Trial Waiver
¶ 18 Following arguments on the reopened motion to suppress, the focus turned to scheduling the matter for trial. The trial court inquired whether defendant planned on waiving his right to a jury trial, to which defendant responded, "Yeah, I definitely want a bench trial. I made that clear, and the State has said jury trial, and the Court said jury trial, but I've said for the record on two occasions that I want a bench trial."
¶ 19 The trial court then provided defendant with a formal jury waiver document, which defendant signed, and the court proceeded to admonish defendant as follows:
"You understand that in this case you are entitled to a jury trial. A jury would be composed of 12 citizens that would be selected by you, the State's Attorney. They would be seated in the jury box, they would listen to the evidence, and they would determine whether the State has proven you guilty beyond a reasonable doubt. Their decision on your guilt must be unanimous. You understand by signing this document and me accepting it as a knowing and voluntary waiver that you are waiving your right to that jury trial?"
Defendant stated that he understood.
¶ 20 The trial court then continued to admonish defendant about the finality of his decision to opt for a bench trial and whether defendant had any questions. Defendant again stated he understood and did not pose any questions. The court found a knowing and voluntary waiver of defendant's right to a jury trial and set the matter for a bench trial.
¶ 21 D. Plea Offer
¶ 22 Prior to trial, the State offered defendant a plea agreement under which he would be sentenced to three years in prison if he pled guilty to the unlawful possession of cannabis with intent to deliver charge in count I. Defendant's pending charges in McLean County case Nos. 20-CF-922 and 20-CF-836 had been resolved, and defendant received sentences of nine years and one and a half years respectively in those cases. The plea deal would allow the three-year sentence to run concurrently with the sentences he received in the since-resolved cases; if defendant did not accept the plea agreement and lost at trial, he would be subject to mandatory consecutive sentences because he was incarcerated when the offense occurred. See 730 ILCS 5/5-8-4(d)(8) (West 2020). The trial court asked defendant whether he understood that he was facing mandatory consecutive sentences if convicted at trial, and defendant stated that he understood. Defendant rejected the plea deal and proceeded to trial.
¶ 23 E. Trial
¶ 24 At trial, the State proceeded on only count I and presented the testimony of two witnesses: Parmenter and Maureen Bommarito, a forensic scientist with a focus on drug chemistry employed by the Illinois State Police.
¶ 25 Parmenter had been a police officer since 2014, worked for the Normal Police Department as a vice detective from 2017 to 2021, and was the lead investigator in this case. He had been involved in hundreds of drug investigations and, from his training and experience, knew the street value of cannabis in McLean County at the time of the offense was anywhere from $150 to $300 per ounce, depending on the grade, and that "Gorilla glue" was a strain of cannabis. At the time of this offense, there were two ongoing investigations involving defendant. From those other investigations, Parmenter knew that defendant owned and resided at the Lee Street property and that the Lee Street property was defendant's "listed" address. He also knew defendant recently purchased a "project home" in Cooksville. Parmenter listened to the three phone calls made by defendant from jail by logging onto a website that records all jail calls by McLean County inmates. The system provides information about the inmate who placed the call and the number dialed. Parmenter identified the voices of defendant, Becker, and Courtney Kerrick on the phone calls due to prior conversations with all three.
¶ 26 Parmenter stated hidden compartments are often used to conceal drugs and contraband, and defendant appeared to be describing a secret compartment under the microwave in the second phone call. He admitted that there was no specific mention of the Lee Street property in the first call to Becker. Nonetheless, Parmenter knew that the Lee Street property was where defendant resided. After listening to the calls, an assistant state's attorney drafted the search warrant complaint, Parmenter signed it, and the warrant for the Lee Street property was issued the same day. The three phone calls were admitted into evidence.
¶ 27 During the search of defendant's home, officers recovered a wallet with defendant's identification, defendant's social security card, and mail addressed to defendant at the Lee Street property. In the kitchen, officers recovered a vacuum sealer, two digital scales, multiple plastic baggies, and razor blades. Officers inspected the countertop and moved the microwave to the side, revealing a compartment underneath containing a garbage bag with multiple packages of cannabis inside. Parmenter stated that in drug distribution, scales are used to weigh out drugs and baggies are used to package the drugs for sale. An inventory receipt for the cannabis was completed and Parmenter stated that the cannabis was found in a "void" in the southwest corner of the kitchen, meaning that it was inside an empty space.
¶ 28 Bommarito testified that she retrieved the cannabis taken from the Lee Street property from the Morton crime lab chemistry vault. The gross weight of all the items inside the bag was 1756.6 grams. She removed the two bags that contained the most material, emptied the contents into individual bags, and determined that the contents of the two bags weighed a total of 826.2 grams. She then tested a small sample of the contents from both bags and confirmed the presence of cannabis.
¶ 29 The State rested and defendant did not present any evidence. The trial court found defendant guilty as charged in count I.
¶ 30 F. Posttrial Proceedings
¶ 31 Defendant filed a motion to reconsider or, in the alternative, for a new trial. Two supplemental motions followed wherein defendant argued that the trial court should reconsider the finding of guilt and that a Franks hearing should be held for the reasons stated in his motions to suppress evidence. The court denied the motions and the matter proceeded to sentencing.
¶ 32 G. Sentencing
¶ 33 During sentencing, the State requested a sentence of five years in prison and argued consecutive sentences were mandatory where defendant was in pretrial detention for his pending McLean County cases when the offense occurred. Defendant argued for the statutory minimum of three years in prison so that he could engage in drug treatment during imprisonment. The trial court sentenced defendant to a three-year consecutive sentence. The court also imposed fines and assessments totaling $16,840, with a credit of $14,700 against his fines for time spent in pretrial custody.
¶ 34 This appeal followed.
¶ 35 II. ANALYSIS
¶ 36 Defendant appeals, arguing the trial court erred by (1) denying his pretrial motion to suppress and the following motion to reconsider, (2) finding him guilty, (3) crafting his sentence, and (4) denying his posttrial motion to reconsider or, in the alternative, grant a new trial. In OSAD's motion to withdraw as counsel, it considers whether (1) defendant received proper admonishments prior to proceeding pro se, (2) defendant validly waived his right to a jury trial, (3) the court erred in denying the motion to suppress and the request for a Franks hearing, (4) the evidence was sufficient to convict, and (5) any error occurred during sentencing. OSAD ultimately concluded that any argument would be frivolous and moved to withdraw.
¶ 37 We agree with OSAD, grant its motion to withdraw, and affirm the judgment of the trial court.
¶ 38 A. Supreme Court Rule 401(a)
¶ 39 Initially, OSAD considered whether defendant received sufficient admonishments before being allowed to proceed pro se.
¶ 40 "Illinois Supreme Court Rule 401(a) governs the trial court's acceptance of a defendant's waiver of counsel." People v. Reese, 2017 IL 120011, ¶ 61. The rule provides:
"(a) Waiver of Counsel. Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court." Ill. S.Ct. R. 401(a) (eff. July 1, 1984).
¶ 41 The trial court in this case took great care in providing defendant with admonishments regarding the nature of the charge, the penalties he faced, and his right to counsel. Defendant stated he understood the court's admonishments. The court also inquired into defendant's education and experience with the justice system, revealing he was representing himself in other pending matters. Once defendant was convicted and sentenced in the other pending cases, the trial court provided admonishments that he faced mandatory consecutive sentences if convicted in this case. Defendant stated that he understood all of the admonishments provided by the court. A review of the record demonstrates that the trial court took great care to admonish defendant, and those admonishments complied with Rule 401(a). See People v. Wright, 2017 IL 119561, ¶ 41 (noting substantial compliance is sufficient to effectuate a valid waiver of counsel if the record indicates that the waiver was made knowingly and voluntarily, and the admonishment the defendant received did not prejudice his rights). Accordingly, we agree with OSAD that no nonfrivolous argument could be advanced on this issue.
¶ 42 B. Waiver of Jury Trial
¶ 43 OSAD next considered whether there was any meritorious argument that could be advanced on defendant's behalf regarding the waiver of his right to a jury trial.
¶ 44 "A defendant may waive his or her right to a jury trial, but to be valid, the waiver must be knowing and voluntary." In re M.P., 2020 IL App (4th) 190814, ¶ 47 (citing People v. Bannister, 232 Ill.2d 52, 65 (2008)). The court is not required to give specific admonishments or advice for a defendant to effectively waive a trial by jury. Bannister, 232 Ill.2d at 66. There is no precise formula to apply in determining whether a defendant effectively waived the right to a jury trial, but rather the determination turns on the particular facts and circumstances of each case. People v. Bracey, 213 Ill.2d 265, 269 (2004).
¶ 45 The waiver in this case was made in open court, and defendant also signed a formal waiver of jury form. Once again, the trial court methodically and thoroughly explained defendant's right to a trial by jury and the likely finality of the jury waiver once accepted. Defendant stated he understood the court's explanations and admonishments and also declined the opportunity to ask any questions. The record in this case reflects that defendant knowingly and voluntarily waived his right to a jury trial. We agree with OSAD that there are no meritorious arguments that could be presented on this point.
¶ 46 C. Franks Hearing and Motion to Suppress
¶ 47 OSAD next considered whether there was any meritorious argument regarding the trial court's denial of defendant's request for a Franks hearing and to suppress the cannabis seized as void.
¶ 48 The United States Supreme Court in Franks, 438 U.S. at 155-56, made clear that in limited circumstances a criminal defendant has a right to a hearing where they may challenge the veracity of an affidavit supporting a search warrant complaint. The affidavit supporting a search warrant is presumed valid, but if a defendant makes a substantial preliminary showing that a false statement necessary for the finding of probable cause was included in the affidavit intentionally, knowingly, or with reckless disregard for the truth, a defendant will be granted an evidentiary hearing. Id. at 171. The purpose of a Franks hearing is to provide protection against perjurious warrant applications. People v. Chambers, 2016 IL 117911, ¶ 40.
¶ 49 Defendant argued in his motion to suppress that Parmenter's statement in the search warrant complaint concerning large amounts of cannabis was false when at most only two ounces were discussed. Further, only the Cooksville property was mentioned in the first phone call to Becker, and the Lee Street property was never mentioned. Moreover, he argued the word "void" appeared on the inventory receipt for the cannabis found in his home and as a result it was of "no legal effect."
¶ 50 Parmenter did not state that he heard defendant discussing large amounts of cannabis, only that from his training and experience he was aware that individuals in possession of large amounts of controlled substances utilize trapdoors and secret compartments of the kind he believed defendant was discussing in the various phone calls. Defendant failed to show that these statements were false or misleading. Additionally, as OSAD points out, even if Parmenter's references to the use of trapdoors and large quantities of cannabis were removed, probable cause would still exist as defendant was not legally authorized to possess an amount of cannabis exceeding that allowed by law (410 ILCS 705/10-10 (West 2020)) or to direct its distribution to others. See People v. Eyler, 133 Ill.2d 173, 204 (1989) ("Franks held that no hearing is required if, after the alleged untruths are removed from the affidavit, the remainder is sufficient to establish probable cause.").
¶ 51 Regarding the Lee Street property, although it was not explicitly mentioned in the first call to Becker, the search warrant complaint makes clear that Parmenter listened to all three phone calls defendant made directing various individuals to his "house." In the call with Courtney Kerrick, she explicitly stated she was going to the Lee Street house, and defendant began to discuss the "cubbyhole" and retrieving a pair of "Jordan" shoes. This conversation was repeated with Zach Kerrick. Viewing the totality of the information known to Parmenter from the phone calls he reviewed, defendant failed to establish a deliberate falsehood or a statement made with reckless disregard for the truth.
¶ 52 The argument that the cannabis found during the search of the Lee Street property was of no legal effect due to the word "void" is also without merit, as defendant has misunderstood the manner in which the word was used. In this situation, "void" was used to describe the location from which the evidence was retrieved, as Parmenter testified the cannabis was found in an empty space, or "void," under the counter; the word "void" was not utilized in any legal sense.
¶ 53 Accordingly, the trial court did not err in denying defendant's request for a Franks hearing or in refusing to suppress the cannabis seized from the Lee Street property.
¶ 54 D. Sufficiency of the Evidence
¶ 55 Regarding the potential issue that the State failed to prove defendant guilty beyond a reasonable doubt, OSAD suggests that the State's evidence was sufficient to support defendant's conviction for possession of cannabis with intent to deliver. When reviewing the sufficiency of the evidence, we determine whether any rational trier of fact could have found the essential elements of the crime charged were proven beyond a reasonable doubt while viewing the evidence presented in the light most favorable to the State. People v. Wheeler, 226 Ill.2d 92, 114 (2007).
¶ 56 Here, the State was required to prove defendant's knowing possession and intent to deliver the controlled substance, as well as its weight. See 720 ILCS 550/5(e) (West 2020). The State presented evidence that defendant owned and resided in the property where the cannabis was found and also provided evidence that defendant's social security card and wallet were recovered at the property. Defendant's mail sent to the Lee Street address was also admitted into evidence, along with a home warranty addressed to defendant for the Lee Street property. The State provided sufficient evidence to establish that defendant resided at the Lee Street address and exercised constructive possession of the cannabis found therein. See People v. Canizalez-Cardena, 2012 IL App (4th) 110720, ¶ 14 ("Constructive possession of contraband is often found where it is located on premises over which the defendant has control, such as the defendant's home.").
¶ 57 Unlike in most cases, there was here direct evidence of intent to deliver via the three phone calls where defendant directed Becker and Zach Kerrick to sell the cannabis to an individual named Bob. See People v. Robinson, 167 Ill.2d 397, 408 (1995) ("Because direct evidence of intent to deliver is rare, such intent must usually be proven by circumstantial evidence."). Putting the phone calls aside, there was also sufficient circumstantial evidence presented to prove defendant's intent to deliver. Parmenter testified that officers recovered two scales, a vacuum sealer, baggies, and razor blades from the Lee Street property and that these items are the accoutrements of individuals who sell narcotics. See id.
¶ 58 The State also put on sufficient evidence to prove beyond a reasonable doubt the requisite weight of the cannabis (more than 500 but less than 2000 grams). Bommarito testified that her chemical tests confirmed the presence of cannabis in two of the bags seized from the Lee Street property and that the weight of the contents of those bags was 826.2 grams.
¶ 59 Considering the totality of the evidence in the light most favorable to the State, we agree with OSAD that there is no meritorious argument that could be made that the evidence in this case was insufficient to support defendant's conviction.
¶ 60 E. Sentencing
¶ 61 Finally, OSAD asserts there is no meritorious argument that the sentence imposed in this matter was improper. Moreover, by statute, the trial court was required to impose consecutive sentences.
¶ 62 Defendant was convicted of unlawful possession of cannabis with intent to deliver and sentenced to three years in prison. The three-year sentence imposed by the trial court was the minimum sentence allowed by law. Making the sentence consecutive to those imposed in defendant's other McLean County cases was proper, as doing so was required by statute because defendant was incarcerated for those offenses when he committed the offense at issue in this appeal. See 730 ILCS 5/5-8-4(d)(8) (West 2020).
¶ 63 We note that, during sentencing, the trial court granted defendant a credit for pretrial incarceration. A letter in the record from defendant to the trial court requests that the trial court intervene and direct the clerk's office to apply the credit to the fines imposed. OSAD does not raise an argument regarding an apparent oversight in the computation of defendant's fine amount, as any argument on this issue would be premature where defendant has not filed the requisite motion in the trial court to correct the error. See Ill. S.Ct. R. 472 (eff. May 17, 2019).
¶ 64 Accordingly, we agree with OSAD that there is no meritorious argument that could be presented challenging defendant's sentence.
¶ 65 III. CONCLUSION
¶ 66 For the reasons stated, we affirm the trial court's judgment and grant OSAD's motion to withdraw as appellate counsel.
¶ 67 Affirmed.