People v. Banks

571 N.E.2d 935, 213 Ill. App. 3d 205, 156 Ill. Dec. 955, 1991 Ill. App. LEXIS 610
Appellate Court of Illinois·Decided April 17, 1991·No. 4-90-0623·Published·Cited by 12 cases

Opinion

JUSTICE SPITZ

delivered the opinion of the court:

Defendant pleaded guilty to the possession of cocaine with the intent to deliver, and now appeals the denial of his amended motion to withdraw his guilty plea and sentence. We affirm in part, vacate in part and remand with directions.

The record reveals the following. Undercover police with the Department of Criminal Investigations, Illinois State Police (DCI), worked with defendant’s college roommate, Bill Moffit, to arrange the purchase of a large amount of cocaine from either defendant, or defendant’s friend, Marvin Blackshear. According to an Illinois State Police investigation report, Moffit informed defendant that he was trying to arrange a cocaine transaction with Blackshear, and defendant told Moffit that if Blackshear could not obtain the cocaine, he could from the same source. Arrangements were made for defendant to deliver approximately eight ounces of cocaine to Agent Ken Wurl of the DCI.

On March 23, 1988, at approximately 11:30 p.m., Wurl contacted defendant by phone and defendant told Wurl that everything was set for the transaction. On March 24, 1988, at approximately 1:45 p.m., Wurl again contacted defendant by phone and inquired whether the arrangements were made for the cocaine delivery. Defendant again confirmed that everything was ready. Later that day, at approximately 5:30 p.m., Moffit and Wurl met with defendant, who advised them that the person delivering the cocaine was en route, or maybe already in town.

At approximately 9:01 p.m. that same evening, Moffit contacted defendant by phone. Defendant was waiting for the arrival of the cocaine. Defendant told Moffit that he did not want Blackshear involved in the transaction because Blackshear was unreliable. Defendant wanted to handle the entire transaction himself.

At approximately 11:32 p.m. that night, Moffit again contacted defendant by phone. Defendant informed Moffit that he had just talked to Blackshear, who said that the person delivering the cocaine would arrive in 15 minutes. At approximately 11:47 p.m., Blackshear contacted Moffit and told him that the cocaine had arrived and the two agreed to meet at Blackshear’s apartment to conduct the sale.

At approximately 12:09 a.m. on March 25, 1988, Moffit and Wurl went to Blackshear’s apartment and discussed the transaction with Blackshear. Blackshear told Moffit that his source was only able to supply four ounces of cocaine, and that he wanted $6,000 for it. After some discussion, Blackshear and Moffit left the apartment to the get the money and Blackshear was arrested. Police later executed a search warrant of the apartment and found a quantity of white powder in plastic containers. According to the DCI evidence log, approximately 112 grams of the white powder were retrieved from the apartment. Later tests by a lab revealed the white powder to be 105.4 grams of cocaine, not including amounts found in paper folds, which were not tested; 27.3 grams of the cocaine were tested for purity and found to be 90% pure. The rest of the cocaine was not tested for purity.

Defendant was arrested later that day, March 25, at another address and taken into custody for an interview. Defendant told police that he had set up numerous narcotic transactions for Blackshear, who would give defendant cocaine in return. Defendant also told the police that four or five days prior to his arrest, Moffit had asked him to contact Blackshear and order eight ounces of cocaine. Moffit told defendant that a friend in Champaign, Illinois, had $8,000 to buy cocaine.

On March 25, 1988, defendant was charged by information with the possession of a controlled substance, cocaine, in an amount exceeding 15 grams, with the intent to deliver, a Class X offense. (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2).) Defendant originally pleaded not guilty to the Class X offense. However, at a change of plea hearing on February 7, 1990, the State reduced the charge to a Class 1 offense by lowering the amount of the controlled substance involved from “more than 15” grams to “more than one gram but less than five” grams. In exchange for this reduction, defendant agreed to plead guilty, but no agreement was made as to sentence.

At the plea hearing, the State presented the court with the factual basis for defendant’s plea. The State informed the court that Wurl conducted a “purported cocaine buy” from defendant through phone conversations, and that defendant repeatedly told Wurl that everything was set for the transaction. Wurl later talked to Black-shear on the phone, and Blackshear “arranged to furnish Agent Wurl with the cocaine in question. A portion of cocaine was sold to Agent Wurl.” After a search warrant was obtained, a search of “Mr. Black-shear’s residence was conducted and an amount of cocaine was seized up to one ounce.” Defendant was later arrested and told police that he had arranged numerous narcotic transactions for Blackshear.

The court proceeded to advise defendant of his rights pursuant to Supreme Court Rule 402 (134 Ill. 2d R. 402), but failed to inform defendant of the mandatory street-value drug fine (Ill. Rev. Stat. 1989, ch. 38, par. 1005—9—1.1). The court found a factual basis for, and accepted, defendant’s guilty plea.

At defendant’s sentencing hearing on March 8, 1990, an officer with the Illinois State Police testified that the street value of the cocaine seized was in the range of $11,000 to $36,000, depending on the purity of the cocaine and the number of times it was cut. The officer also testified that cocaine sold on the street for $100 a gram.

Defendant testified at his sentencing hearing that he was currently working two jobs, as a cook and as a bag boy, and was three or four classes short of finishing his major at Illinois State University. The last time defendant ever used any illegal substance was in April 1988. Defendant also explained that he had set up drug deals with Blackshear, but only for friends and to obtain drugs for his personal use. Defendant stated that he never set up the deals for money, and that the largest amount of cocaine he ever sold was about a gram. Defendant also stated that since his arrest, he had not associated with former friends who were involved with cocaine.

The State argued for a sentence of 10 years, and noted that the amount of cocaine seized could have produced 360 grams of final product. If the cocaine was not cut, there would have been roughly 105.4 grams. The State thus argued for a street-value fine in the range of $10,540 to $36,000, based on the testimony that cocaine sold on the street for $100 a gram.

Defense counsel argued for a sentence of probation due to defendant’s good behavior since his arrest, and his prior record. Defense counsel also argued that it would be erroneous to impose a street-value fine of anything greater than the minimum figure the State argued, because all of the cocaine seized was not tested for purity. Defense counsel did not argue that the court failed to inform defendant of the mandatory street-value fine pursuant to Supreme Court Rule 402 before defendant pleaded guilty.

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People v. Banks, 571 N.E.2d 935, 213 Ill. App. 3d 205, 156 Ill. Dec. 955, 1991 Ill. App. LEXIS 610 (Ill. Ct. App. 1991).

571 N.E.2d 935 (People v. Banks) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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