People v. Blakney ( 2006 )

THIRD DIVISION
AUGUST 2, 2006
1-04-3669
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 04 CR 14264
)
DONTELL BLAKNEY, ) Honorable
) John P. Kirby,
Defendant-Appellant. ) Judge Presiding.
JUSTICE ERICKSON delivered the opinion of the court:
Following a bench trial, defendant Dontell Blakney was convicted of multiple counts of
possession of a controlled substance with intent to deliver within 1000 feet of a public housing
agency and possession of cannabis with intent to deliver and sentenced to seven years'
imprisonment. Defendant appeals, contending that (1) his conviction should be reduced to simple
possession because the evidence at trial was insufficient to prove beyond a reasonable doubt that he
intended to deliver the controlled substance, (2) his conviction should be reversed and remanded
because the record does not reflect that he knowingly and intelligently waived his right of
confrontation before his attorney entered into a stipulation regarding the chain of custody and the
chemical composition of the recovered substances, (3) his conviction on count III (possession of a
controlled substance with intent to deliver) should be vacated because the trial court merged count
III into count II (possession of a controlled substance with intent to deliver within 1000 feet of a
public housing agency) and his mittimus should be amended to reflect this correction, (4) his
mittimus should be amended to reflect the correct names of the offenses of which he was convicted,
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(5) his mittimus should be amended to reflect the correct time served in pretrial custody, (6) he is
entitled to a $5 credit against the $3000 "fine" assessed to him for each day he was in custody prior
to sentencing, (7) his penalty of $20 for Violent Crime Victims Assistance Fund should be vacated
because the fee was erroneously assessed to him, and (8) his due process rights were violated when
the trial court assessed a $5 fee for the Spinal Cord Injury Paralysis Cure Research Trust Fund
(Spinal Cord Fund). BACKGROUND
Defendant was charged by indictment with: (1) possession of a controlled substance with intent to deliver
within 1000 feet of a school (720 ILCS 570/401(c)(2), 407(b)(1) (West 2004)); (2)
possession of a controlled substance with intent to deliver within 1000 feet of a public housing agency (720
ILCS 570/401(c)(2), 407(b)(1) (West 2004)); (3) possession of a controlled substance with
intent to deliver (720 ILCS 570/401(c)(2) (West 2004)); and (4) possession of cannabis with
intent to deliver (720 ILCS 550/5(f) (West 2004)).
Chicago Police Officer Anthony Driver was the sole prosecution witness at defendant's trial. Driver
testified that on May 14, 2004, at approximately 6:50 p.m., he and other police officers were executing
a search warrant at 747 East 130th Place in Chicago. After Driver announced his office and demanded
entry, defendant shut the screen door. Upon gaining entry, Driver saw defendant half way in the closet of the
first floor. The police detained defendant and a woman, who was later arrested and charged separately, and
began to search the premises. In the closet where defendant was standing, Driver found one plastic bag
containing 35 smaller plastic bags of a white rock-like substance suspected to be cocaine and three large
"freezer" bags of suspect cannabis in the sleeve of a male jacket. He also found another plastic bag containing
approximately 100 smaller empty plastic bags. In addition, Driver found 12 more plastic bags containing
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suspect cannabis from a male jacket sleeve in a bedroom on the second floor. Elsewhere in the apartment,
Driver recovered an electronic scale. Finally, the police recovered a letter addressed to defendant at 747
East 130th Place, the address of the apartment. At the police station, Driver sealed the items in a heat
sealed bag, labeled it with a specific inventory number, and deposited it into the safe at the police station.
The parties then stipulated to the chain of custody and the chemical composition of the recovered
contraband. They stipulated that a forensic chemist would testify that she received the inventoried items in a
heat-sealed condition labeled with a specific inventory number from the Chicago Police Department and that the
envelope contained 15 items of suspect cannabis and 35 items of suspect cocaine. The parties stipulated that
8 of the 15 items of suspect cannabis tested positive for presence of 2,128.1 grams of cannabis and that the
total estimated weight of the 15 items was 2,506.3 grams. They also stipulated that 8 of the 35 items
of suspect cocaine tested positive for presence of 1.1 grams of cocaine and that the total estimated weight of the
35 items was 4.8 grams.
Following the stipulations, the State rested. After defendant's motion for a directed verdict was
denied, he rested without presenting any evidence. The trial court found defendant guilty on counts II (possession
of a controlled substance with intent to deliver within 1000 feet of a public housing agency), III (possession of
a controlled substance with intent to deliver), and IV (possession of cannabis with intent to deliver).
At sentencing, the trial court merged count III into count II. Defendant filed a motion for a
new trial, which was denied. The trial court sentenced defendant as a Class X offender to seven
years' imprisonment and gave him credit for 199 days for time served prior to sentencing. The trial
court also ordered defendant to pay a $3000 Controlled Substance Assessment, $20 to the Violent
Crime Victim Assistance Fund, $100 to the Trauma Fund, and $5 to the Spinal Cord Fund.
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Defendant now appeals.
ANALYSIS
Defendant first contends that this court should reverse his conviction and remand for
resentencing on the lesser-included offense of possession of a controlled substance because the State
failed to prove that he intended to deliver the 4.8 grams of cocaine he possessed.
When a defendant challenges the sufficiency of the evidence, the relevant question for the
reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could find the defendant guilty beyond a reasonable doubt. People v.
Tenney, 205 Ill. 2d 411, 427, 793 N.E.2d 571 (2002). In order to convict a defendant of possession
of a controlled substance with intent to deliver, the State must prove the defendant (1) had
knowledge of the presence of the narcotics, (2) had possession or control of the narcotics, and (3)
intended to deliver the narcotics. 720 ILCS 570/401(West 2004); People v. Robinson, 167 Ill. 2d
397, 407, 657 N.E.2d 1020 (1995) (Robinson).
The elements of intent to deliver is generally proved by circumstantial evidence. People v.
Beverly, 278 Ill. App. 3d 794, 799, 663 N.E.2d 1061 (1996) (Beverly). Accordingly, "this issue
involves the examination of the nature and quantity of circumstantial evidence necessary to support
an inference of intent to deliver." Robinson, 167 Ill. 2d at 408. In Robinson, our supreme court
noted that numerous factors have been considered by Illinois courts as probative of a defendant's
intent to deliver in controlled substance prosecutions. Robinson, 167 Ill. 2d at 408. These factors
include whether the quantity of controlled substance in a defendant's possession is too large to be
viewed as being for personal consumption, the high purity of the drug confiscated, the possession of
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weapons, the possession of large quantity of cash, the possession of police scanners, beepers or
cellular telephones, the possession of drug paraphernalia, and the manner in which the substance is
packaged. Robinson, 167 Ill. 2d at 408. "Robinson also expressly allows for the consideration of
other, unspecified factors." People v. Bush, 214 Ill. 2d 318, 327, 827 N.E.2d 455 (2005).
Defendant relies on several cases, including People v. Crenshaw, 202 Ill. App. 3d 432, 559
N.E.2d 1051 (1990) (Crenshaw), People v. Thomas, 261 Ill. App. 3d 366, 633 N.E.2d 839 (1994)
(Thomas), and People v. Hodge, 250 Ill. App. 3d 736, 620 N.E.2d 651 (1993) (Hodge), in support of
his contention that the evidence in this case is insufficient to sustain his conviction for possession of
a controlled substance with intent to deliver. In Crenshaw, the court found that the fact the
defendant possessed 22 small packets of cocaine, totaling 11.2 grams, was not sufficient in itself to
establish an intent to deliver. Crenshaw, 202 Ill. App. 3d at 436. In Thomas, the court held the
evidence was insufficient to prove the intent to deliver where the defendant was found in possession
of a total of 5.5 grams of cocaine divided into 27 individual packets and had a loaded shotgun.
Thomas, 261 Ill. App. 3d at 371. In Hodge, the court reversed the defendant's conviction and found
that possession of 4.07 grams of cocaine, $900 in cash, and a handgun was not sufficient to establish
a conviction for possession with intent to deliver. Hodge, 250 Ill. App. 3d at 747. It has also been
held, however, that these cases have been seriously questioned, and perhaps repudiated, by our
supreme court in Robinson. Beverly, 278 Ill. App. 3d at 800-01.
"[W]hen a defendant is charged with possession of a controlled substance, in appropriate
circumstances, packaging alone might be sufficient evidence of intent to deliver." (Emphasis in
original.) Robinson, 167 Ill. 2d at 414. In order to establish the intent to deliver, the minimum
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evidence a reviewing court needs to affirm a conviction is possession of the drugs packaged for sale,
and at least one additional factor tending to show intent to deliver. Beverly, 278 Ill. App. 3d at 802.
In this case, the evidence presented at trial met the minimum amount of evidence necessary
to affirm defendant's conviction. The evidence established that defendant possessed a total of 4.8
grams of cocaine packaged in 35 separate small plastic bags and a total of 2,506.3 grams of cannabis
contained in 15 plastic bags. In addition, defendant possessed an electronic scale and approximately
100 additional one-inch empty plastic bags.
Defendant, relying on People v. Delgado, 256 Ill. App. 3d 119, 123, 628 N.E.2d 727 (1993)
(Delgado), asserts that the presence of a large amount of cannabis is not dispositive of an intent to
deliver a smaller amount of cocaine. Although we do not agree with defendant's broad interpretation
of Delgado, even assuming defendant's assertion is true, we find that there was sufficient evidence in
this case as the police also found approximately 100 empty plastic bags and an electronic scale,
which is consistent with drug packaging and distribution.
Defendant next contends that his conviction should be reversed and his case remanded for a
new trial because the record is devoid of any indication that he knowingly and intelligently waived
his constitutional right of confrontation before his attorney entered into a stipulation regarding the
chain of custody and the chemical composition of the recovered substances. Defendant's exact
contention has recently been addressed and rejected by our supreme court in People v. Phillips, 217
Ill. 2d 270, 840 N.E.2d 1194 (2005) (Phillips). Therefore, no further discussion of this issue is
necessary.
Defendant next raises several issues regarding his mittimus. Defendant argues, and the State
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concedes, that the mittimus must be amended to reflect the proper judgment of the trial court and the
correct amount of time defendant served prior to sentencing. The mittimus reflects that defendant
was convicted of counts II, III, and IV. At sentencing, the trial court merged count III, the lesser-
included offense, into count II. Thus, the mittimus must be amended to reflect this merger. In
addition, defendant was in custody from the date of his arrest on May 14, 2004, until his sentencing
on December 3, 2004. Therefore, he is entitled to 204 days of credit instead of 199 days pursuant to
section 5-8-7(b) of the Unified Code of Corrections (the Unified Code) (730 ILCS 5/5-8-7(b) (West
2004)).
Defendant also argues that the mittimus must be amended to reflect the proper title of the
offenses of which he was convicted. The mittimus reflects that defendant was convicted of
"MFG/DEL COCAINE/SCH/PUB H," "MFG/DEL 01-15 GR COCAINE," and "MFG/DEL
CANNABIS/2000<500." As indicated above, defendant was convicted of possessing a controlled
substance with intent to deliver within 1000 feet of a public housing agency (720 ILCS
570/401(c)(2) (West 2004)), and possession of cannabis with intent to deliver (720 ILCS 550/5(f)
(West 2004)); he was not convicted of manufacturing the substances. Pursuant to Supreme Court
Rule 615(b)(1) (134 Ill. 2d R. 615(b)(1)), we direct the clerk of the circuit court to amend the
mittimus to reflect the proper judgment of the trial court, the proper names of the convictions, and
the correct number of days for which defendant is entitled to credit. People v. Butler, 354 Ill. App.
3d 57, 69, 819 N.E.2d 1133 (2004).
Defendant also contends that he is entitled to a $5 per day credit for the time he spent in
presentence incarceration, which he calculates to be $1015, against the $3000 Controlled Substance
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Assessment ordered by the trial court pursuant to section 411.2 of the Controlled Substances Act (the
Act) (720 ILCS 570/411.2 (West 2004)), in accordance with section 110-14 of the Code
of Criminal Procedure of 1963 (the Code) (725 ILCS 5/110-14 (West 2004)). Section 110-14
provides in relevant part:
"(a) Any person incarcerated on a bailable offense who does not
supply bail and against whom a fine is levied on conviction of such
offense shall be allowed a credit of $5 for each day so incarcerated
upon application of the defendant." 725 ILCS 5/110-14 (West 2004).
The plain language of this statute indicates that the credit only applies to "fines" that are
imposed following a conviction, not to any other court "costs" or "fees." People v. Tolliver, 363 Ill.
App. 3d 94, 96, 842 N.E.2d 1173 (2006).
The State argues that defendant is not entitled to this credit because the incarceration credit
only applies to "fines," and not "assessments."
This court has recently rejected an argument similar to the State's and held that the
incarceration credit is applicable towards the Controlled Substance Assessment. People v. Fort, 362
Ill. App. 3d 1, 8, 839 N.E.2d 1064 (2006) (Fort). In Fort, the court, adhering to a long line of cases,
analyzed the language and the legislative history of section 411.2 of the Act and found that "the
assessment is a kind of fine." Fort, 362 Ill. App. 3d at 8. Thus, defendant is entitled to a $5 credit
against his $3000 Controlled Substance Assessment.
The State argues that even if the Controlled Substance Assessment is a "fine,"
defendant is entitled to the $5 credit for only 60 days. The State bases its contention on
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the fact that as of June 10, 2003, defendant was serving a three-year mandatory
supervised release term (MSR) following his release from prison. See 730 ILCS 5/5-8-
1(d)(1) (West 2004). According to the State, on July 12, 2004, following defendant's May
14 arrest in the current case, his MSR was revoked and he was returned to the Illinois
Department of Corrections (the Department). The State argues that because defendant
was serving time for violating his MSR as of July 12, he was no longer serving time on a
"bailable offense." We disagree.
First, the record does not support the State's contention. Although defendant's
presentence investigative report indicates that he had previously been convicted of the
Class X offense of armed robbery on January 18, 2002, that he was paroled from prison on
June 10, 2003, and that he was returned to the Department on July 12, 2004, we find the
record does not clearly support the State's argument that defendant was returned to the
Department "to serve the remainder of his [MSR]."
Second, even if the record does in fact support the State's contention, it lacks merit.
We find People v. Spencer, 347 Ill. App. 3d 483, 807 N.E.2d 1228 (2004) (Spencer), a
decision from the Fifth District, and its application of People v. Robinson, 172 Ill. 2d 452,
667 N.E.2d 1305 (1996) (Robinson), a decision from our supreme court, instructive on this
issue.
In Spencer, as in this case, the issue was the amount of monetary credit to which
the defendant was entitled under section 110-14 of the Code. The defendant had been
arrested on several initial charges, posted bond, and was released. He then committed a
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second offense while out on bond. He was eventually returned to custody and the court
increased his bond on the initial offenses. He thereafter pled guilty to the second offense
and immediately began serving a one-year sentence. He was then tried and convicted of
the initial offenses. On appeal, the parties disputed the number of days to which the $5
credit of section 110-14 applied.
The court in Spencer looked to Robinson, a case from our supreme court addressing
sentencing credit under section 5-8-7(b) of the Unified Code, for guidance. In Robinson,
the court held that a defendant is entitled to sentencing credit under section 5-8-7(b) when
he or she is simultaneously in custody on two charges. In that case, the defendant, who
had previously been arrested for murder and posted bail, committed the offense of armed
robbery. When the court thereafter increased his bond on the murder charge, the
defendant was taken into custody. He then pled guilty to armed robbery and began serving
his sentence on that offense. When he completed his armed robbery sentence, he asked
the court to reduce the bond on his murder charge. The court agreed and the defendant
was released. The defendant was convicted of murder and concealment of a homicidal
death almost two years later. On appeal, the parties disputed the amount of section 5-8-
7(b) credit to which the defendant was entitled.
The court held that the defendant was entitled to credit for the entire time he was in
custody from when his bond was increased to when he was released after completing his
sentence on the subsequent armed robbery conviction. Robinson, 172 Ill. 2d at 463. The
court reasoned that even if the defendant had not been incarcerated on the armed robbery
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offense, he would have remained in custody on the murder charge because of his failure to
post the increased bond imposed on that offense. Robinson, 172 Ill. 2d at 459.
The Spencer court, noting that the defendant in Robinson was entitled to section 5-
8-7(b) credit even for the time he was serving a sentence on a subsequent conviction, held
that although a portion of the disputed time was spent serving a one-year sentence on the
second offense, the defendant also remained in custody on the initial offenses. The court
reasoned that as in Robinson, the defendant would have remained in custody on the initial
offenses even if he had not been serving the sentence on the second offense due to his
failure to post bond. Spencer, 347 Ill. App. 3d at 490. The court also found that the initial
offenses did not cease to be bailable until he was sentenced for them. Spencer, 347 Ill.
App. 3d at 491.
We acknowledge that this case is somewhat different than Robinson and Spencer.
For example, rather than involving a defendant who is released from custody on bond who
commits a subsequent offense, this case involves a defendant being returned to prison
following the revocation of a previously imposed MSR term. We find this distinction
immaterial to Spencer's conclusion that the offenses for which the defendant was initially
arrested did not cease to be bailable until he was sentenced on those offenses. Therefore,
in this case, we conclude that the offenses for which defendant was arrested on May 14,
2004, did not cease to be bailable until he was sentenced on December 3, 2004, regardless
of on what basis he was being held in the interim.
Additionally, this court has recently noted that "[u]nder section 110-14 of the [Code],
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for each day or part of a day spent in custody before sentencing, a defendant is entitled to
a credit of $5 against fines imposed as a result of the conviction." People v. Jamison, No.
1-04-2219, slip op. at 4 (April 12, 2006). Spencer, in relying on Robinson, focused on
whether the defendant was entitled to section 5-8-7(b) credit. In this case, there is no
question that defendant was "in custody" for over 200 days before he was sentenced. As
previously addressed, the State has even conceded as much. Both Robinson and Spencer
make clear that when a defendant is simultaneously being held on two offenses, even if
during that time he or she is serving a sentence on a conviction, he or she is entitled to
credit for that time on the first offense. Following those cases, we find that defendant is
entitled to a $5 credit for the entire time he was held on the current offenses, even if for part
of that time he was serving a MSR term imposed due to an unrelated offense.
We therefore reject the State's reliance People v. Lowry, 231 Ill. App. 3d 788, 596
N.E.2d 1218 (1992) (Lowry). In that case, the court refused to accept the defendant's
contention that he was entitled to a $5 credit for each day he was held in custody, including
the time he was serving time for a previous violation of bail bond conviction, because that
conviction was "totally unrelated to the case at hand." Lowry, 231 Ill. App. 3d at 797.
Lowry, however, was decided prior to our supreme court's decision in Robinson, and prior
to Spencer.
We conclude that defendant is entitled to a $5 credit for the entire time he was in
custody from his arrest on May 14 through his sentencing on December 3. As addressed
above, we calculate this to be 204 days. Defendant is therefore entitled to a credit of
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$1020 against his $3000 Controlled Substance Assessment.
Defendant also contends that the trial court improperly imposed a $20 fine for the Violent
Crime Victims Assistance Fund because it already imposed two other "fines": a $3000 Controlled
Substance Assessment and a $100 Trauma Fund Assessment.
The State responds that defendant was properly ordered to pay $20 to the Violent Crime
Victims Assistance Fund because the Trauma Fund and the Controlled Substance Assessment are
"fees," not "fines."
The Violent Crime Victims Act provides in relevant part that:
"When any person is convicted in Illinois *** of an offense listed
below, *** and no other fine is imposed, the following penalty shall
be collected by the Circuit Court Clerk: (1) $25, for any crime of
violence as defined in subsection (c) of Section 2 of the Crime
Victims Compensation Act; and (2) $20 for any other felony or
misdemeanor, excluding any conservation offense." (Emphasis
added.) 725 ILCS 240/10(c)(1), (2) (West 2004).
In light our finding above that the Controlled Substance Assessment is a type of "fine," we
find that the trial court erroneously ordered defendant to pay $20 to the Violent Crime Victims
Assistance Fund and reverse the order.
Finally, defendant contends that his due process rights were violated when he was ordered to
pay $5 to the Spinal Cord Fund (730 ILCS 5/5-9-1.1(c) (West 2004)). Defendant contends that the
fee does not bear a rational relationship to the crime of possession of a controlled substance with
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intent to deliver.
The State responds that because drug offenders contribute to traffic accident injuries, it is
reasonable for the legislature to mandate those persons who contribute to the injuries to also
contribute to the cost of addressing those injuries.
This court recently rejected a similar argument presented by the State and held that the $5
spinal cord fee violated the due process rights of a defendant convicted of a drug related offense
because unlike certain offense like DUI, the possession of narcotics bore no rational relationship.
Fort, 362 Ill. App. 3d at 10; People v. Rodriguez, 362 Ill. App. 3d 44, 54, 839 N.E.2d 543 (2006). In
addressing an identical argument for constitutionality to the spinal cord research, we see no reason to
depart from these holdings. We therefore reverse the order that defendant pay a $5 fee to the Spinal
Cord Fund.
CONCLUSION
For the foregoing reasons, we amend the costs and fees order to reflect a credit of $1020
against the $3000 "Assessment Controlled Substance," we vacate the $5 fee for the "Trauma Fund
Spinal Cord," and the $20 fee for the "Violent Crime Victims Assistance," and affirm the remainder
of the trial court's decision. We order the clerk of the circuit court to amend the mittimus to reflect
204 days' of credit and the proper name and number of the offenses of which defendant was
convicted.
Affirmed in part and order vacated in part; mittimus amended.
THEIS and KARNEZIS, J.J., concur.
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