Opinion
No. 1-15-1604
10-20-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VONTRELL MAXWELL, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 14 CR 21158
Honorable Thomas J. Hennelly, Judge, presiding.
JUSTICE Shelvin Louise M. Hall delivered the judgment of the court.
Justices Lampkin and Rochford concurred in the judgment.
ORDER
¶ 1 Held: Defendant's sentence of three years' imprisonment for possession of a controlled substance (heroin) is affirmed because the trial court did not err in considering, at sentencing, reliable evidence of his intent to deliver the heroin.
¶ 2 Following a bench trial, defendant was found guilty of possession of a controlled substance (heroin) (720 ILCS 570/402(c) (West 2014)) and sentenced to three years' imprisonment. On appeal, defendant contends that he was denied a fair sentencing hearing
because the trial court improperly considered evidence that he possessed the heroin with intent to deliver. We affirm.
¶ 3 Defendant was arrested on November 6, 2014, and subsequently charged by indictment with possession of a controlled substance with intent to deliver. Because defendant does not challenge the sufficiency of the evidence to sustain his conviction, we recount the evidence presented to the extent necessary to resolve the issue raised on appeal.
¶ 4 At trial, Officer Carlson testified that, on November 6, 2014, he and his partner, Officer Slechter, were on patrol in an unmarked police vehicle near the vicinity of 2803 West Jackson Boulevard. The officers were patrolling the area due to citizen complaints of narcotics sales. As the officers patrolled the area, Carlson observed defendant engage in a suspect narcotics transaction. During the transaction, defendant retrieved a small reflective item from his front waistband and tendered it to an unidentified person in exchange for money. After seeing this transaction, Carlson and Slecther approached defendant, who complied with Carlson's request for his name and date of birth. After learning that defendant had an outstanding arrest warrant due to a parole violation, Carlson arrested him. Incident to a custodial search, Carlson recovered $106 from defendant. Carlson also recovered "six mini Ziploc bags encased in green tape" from defendant's left boot, and "six additional green tinted Ziploc bags" from defendant's front waistband. All the bags contained a white powdery substance. Carlson tendered the bags to Slechter for inventory.
¶ 5 The parties stipulated that, if called, Slechter would testify to properly inventorying the recovered items. The parties also stipulated that, if called, Martin Palomo, an Illinois State Police
forensic scientist, would testify that the items weighed a total of 3.2 grams and tested positive for the presence of heroin. The State then rested.
¶ 6 Based on this evidence, the trial court did not find beyond a reasonable doubt that defendant possessed a controlled substance with intent to deliver. In announcing its decision, the court noted that:
"While I think there is some inference given the amount of narcotics, the six that were found in the boot, the six that were found in the waistband, along with his conduct immediately prior would also probably give one the idea that he was out there conducting business. But the question for the court is does this rise to proof beyond a reasonable doubt. It is in my opinion that while it is an inference, I do not think that's sufficient for proof beyond a reasonable doubt."
However, the trial court concluded that "there's no question that [defendant] was in possession of some narcotics," and accordingly found defendant guilty of the lesser-included offense of possession of a controlled substance. The trial court ordered a presentence investigation (PSI) report and the case proceeded to posttrial motions and sentencing. After denying defendant's motion for a new trial, the trial court held a sentencing hearing.
¶ 7 At sentencing, the State argued in aggravation that defendant had multiple juvenile adjudications for robbery, including aggravated robbery. The State also pointed out that defendant was previously convicted of armed robbery and sentenced to nine years' imprisonment. The State further pointed out that, in this case, there was evidence of "a possible narcotics transaction," and requested that defendant be sentenced as an extended-term, Class 4 felon to six years' imprisonment.
¶ 8 Defense counsel argued in mitigation that defendant was 20 years old at the time of the offense. Counsel pointed out that defendant entered foster care when he was 13 years old, after being "taken away from his mother and stepfather," and was 15 years old when he was convicted, as an adult, of armed robbery. Counsel highlighted that defendant did not know his biological father growing up, and informed the court that defendant "had a great deal of difficulty" with bipolar disorder, with which he was diagnosed at a young age and treats with medication. In allocution, defendant stated that he learned his lesson, and should be "given a chance, another chance to correct [his] wrongdoing."
¶ 9 In announcing its sentencing decision, the trial court noted that it considered the PSI, the statutory factors in mitigation, the attorneys' arguments, defendant's statement in allocution, and defendant's "issues," including his mental health. The trial court also emphasized three aggravating factors. First, the trial court noted that:
"there was evidence that you were not just out there possessing drugs, but you were out there selling drugs, and I think I gave you the benefit of the doubt just by convicting you of a [C]lass 4 and not a [C]lass 1, which there was evidence which you would have been looking at much more time had I convicted you of that."
Second, the court noted that defendant had "four prior contacts of a violent nature as a juvenile," and that he "amassed quite a record for a young man of 20 years old." Finally, the court pointed out that defendant committed the crime at issue six weeks after his release on parole. The court stated that a sentence of six years' imprisonment would be suitable, but declined the State's suggestion to categorize defendant as an extended-term Class 4 felon. The court sentenced defendant to three years' imprisonment.
¶ 10 Defendant did not file a motion to reconsider sentence. Defendant filed a timely notice of appeal.
¶ 11 On appeal, defendant contends that he was denied a fair sentencing hearing because the trial court improperly considered evidence that he possessed the heroin with intent to deliver, despite the fact that it had acquitted him of that offense. In setting forth this argument, defendant acknowledges that he has forfeited this issue on appeal by failing to raise it in a timely filed postsentencing motion. See People v. Hillier, 237 Ill. 2d 539, 544 (2010) ("It is well-settled that, to preserve a claim of sentencing error, both a contemporaneous objection and a written postsentencing motion raising the issue are required"). However, defendant argues that we may review this issue under the plain-error doctrine.
¶ 12 Plain-error review of a forfeited sentencing issue is available when a defendant demonstrates "a clear or obvious error occurred" and satisfies the burden of showing "(1) the evidence at the sentencing hearing was closely balanced, or (2) the error was so egregious as to deny the defendant a fair sentencing hearing." Hillier, 237 Ill. 2d at 545 (quoting People v. Hall, 195 Ill. 2d 1, 18 (2000)). "The first step of plain-error review is to determine whether any error occurred." People v. Lewis, 234 Ill. 2d 32, 43 (2009). Here, we find no error.
¶ 13 Before determining whether any error occurred, we initially address defendant's argument that the appropriate standard of review in this case is de novo. In doing so, we observe that the trial court has broad discretionary powers to determine a defendant's sentence and its decision merits great deference because it is in a superior position to weigh the applicable sentencing factors. People v. Stacey, 193 Ill. 2d 203, 209 (2000). As such, the imposition of a sentence is normally within the trial court's discretion and a reviewing court will not alter a
defendant's sentence absent an abuse of discretion. People v. Alexander, 239 Ill. 2d 205, 212 (2010). Moreover, where, as here, a sentence falls within the prescribed statutory range it is presumed proper and will not be disturbed absent an affirmative showing that the sentence is at variance with the purpose and spirit of the law or is manifestly disproportionate to the nature of the offense. People v. Knox, 2014 IL App (1st) 120349, ¶ 46 (citing People v. Gutierrez, 402 Ill. App. 3d 866, 900 (2010)).
¶ 14 In this case, however, defendant is not asking us to reweigh the sentencing factors presented and substitute our judgment for that of the trial court. He is also not arguing that his sentence varies greatly from the purpose and spirit of the law or is manifestly disproportionate to the nature of the offense. Rather, the core of defendant's argument is that the trial court essentially considered an improper factor in imposing sentence, i.e. the evidence of his intent to deliver the heroin.
¶ 15 The question of whether a court relied on an improper factor in imposing sentence is a question of law that we review de novo. People v. Chaney, 379 Ill. App. 3d 524, 527 (2008); see also People v. Phelps, 211 Ill. 2d 1, 12 (2004). In determining an appropriate sentence, the trial court must weigh both aggravating and mitigating factors. See 730 ILCS 5/5-5-3.1, 3.2 (West 2014). When such factors have been presented for the court's consideration, it is presumed that the trial court considered all relevant factors, unless a defendant makes " 'an affirmative showing that the sentencing court did not consider the relevant factors.' " People v. Wilson, 2016 IL App (1st) 141063, ¶ 11 (quoting People v. Burton, 2015 IL App (1st) 131600, ¶ 38). A trial court may consider evidence of criminal conduct even if the defendant had previously been acquitted of that conduct so long as the evidence presented is relevant and reliable. People ex rel. City of Chicago
v. Le Mirage, Inc., 2013 IL App (1st) 093547, ¶¶ 134-135 (citing People v. Williams, 149 Ill. 2d 467, 490 (1992)); see also People v. Deleon, 227 Ill. 2d 322, 340 (2008). For "evidence to be admissible in a sentencing hearing, it is required only to be reliable and relevant, a determination that is within the trial court's discretion." People v. Rose, 384 Ill. App. 3d 937, 941 (2008).
¶ 16 After examining the record, we find that the evidence of defendant's intent to deliver the heroin was sufficiently reliable and relevant to be admissible at sentencing. As mentioned, " '[i]t is well established that 'evidence of criminal conduct can be considered at sentencing even if the defendant previously had been acquitted of that conduct.' " Deleon, 227 Ill. 2d 322, 340 (2008) (quoting People v. Jackson, 149 Ill. 2d 540, 549-50 (1992)). Here, although the court did not find defendant guilty of possession of a controlled substance with intent to deliver, it nevertheless noted that there was "some inference" that defendant was "out there conducting business." At sentencing, the court similarly noted that "there was evidence" that defendant was "out there selling drugs." This inference is supported by the record which shows that a custodial search of defendant yielded $106 and a total of 12 mini Ziploc bags, containing heroin. See People v. Beverly, 278 Ill. App. 3d 794, 799 (1996) (many different factors are probative of a defendant's intent to deliver, such as the quantity of the controlled substance in the defendant's possession, the manner in which the substance is packaged, and the defendant's possession of large amounts of cash). This physical evidence, combined with Officer Carlson's testimony that he saw defendant engage in a suspect narcotics transaction, constituted sufficiently reliable evidence of defendant's intent to deliver the heroin. Accordingly, the trial court did not err in considering this evidence during sentencing. Because the trial court did not commit any error, defendant's claim
is forfeited. See People v. Wade, 131 Ill. 2d 370, 376 (1989) (without error, there can be no plain error).
¶ 17 Defendant nevertheless argues that the trial court erred in considering evidence that he possessed the heroin with intent to deliver because it had implicitly found that evidence unreliable when it found him not guilty of possession of a controlled substance with intent to deliver. Contrary to defendant's argument, however, the fact that the trial court did not find him guilty of possessing narcotics with the intent to deliver does not mean that the trial court found this evidence unreliable for sentencing purposes. See Rose, 384 Ill. App. 3d at 941 (An acquittal is not conclusive of innocence, but is rather conclusive of the State's inability to offer proof of defendant's guilt beyond a reasonable doubt). Although the evidence adduced at trial did not show defendant's intent to deliver the heroin beyond a reasonable doubt, there was, as mentioned, evidence presented of defendant's intent, which was sufficiently reliable and relevant for purposes of sentencing.
¶ 18 For the reasons stated, we affirm the judgment of the circuit court of Cook County.
¶ 19 Affirmed.