People v. Bergman

458 N.E.2d 1370, 121 Ill. App. 3d 100, 76 Ill. Dec. 570, 1984 Ill. App. LEXIS 1385
CourtAppellate Court of Illinois
DecidedJanuary 12, 1984
Docket82-909
StatusPublished
Cited by68 cases

This text of 458 N.E.2d 1370 (People v. Bergman) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Bergman, 458 N.E.2d 1370, 121 Ill. App. 3d 100, 76 Ill. Dec. 570, 1984 Ill. App. LEXIS 1385 (Ill. Ct. App. 1984).

Opinions

JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Larry W. Bergman, and a codefendant, Paul J. Basista, were charged in an information in count I with unlawful delivery of a controlled substance (Ill. Rev. Stat. 1979, ch. SG1/^, par. 1401(a)(2)), in count II with unlawful possession with intent to deliver a controlled substance (Ill. Rev. Stat. 1979, ch. 56x/2, par. 1401(a)(2)), and in count III with unlawful possession of a controlled substance (Ill. Rev. Stat. 1979, ch. BG1/^, par. 1402(a)(2)), all counts alleging the same transaction in an amount of 30 grams or more of a substance containing cocaine. Basista entered a negotiated plea of guilty to count I and was sentenced to a six-year term of imprisonment. Bergman, who is the only defendant in this appeal, pleaded guilty to count I without any agreement with the State and was sentenced to a 25-year term of imprisonment and fined $200,000.

Defendant, Bergman, appeals contending his 25-year imprisonment term and fine constitute an abuse of sentencing discretion because (1) the sentence is grossly disparate with that of his codefendant, (2) the trial court compared him with defendants in totally unrelated cases rather than his codefendant, and (3) the trial court failed to make sufficient findings of record to support the sentence imposed on him and failed to balance the seriousness of the offense with his potential for rehabilitation.

On May 28, 1981, defendant and his codefendant, Basista, were arrested and charged with the delivery of 30 grams or more of cocaine alleged to have occurred on that day. On August 23, 1982, defendant entered a nonnegotiated plea of guilty to count I, unlawful delivery of more than 30 grams of a substance containing cocaine. Counts II and III were nolle prossed. The factual basis which the State proffered was that agents of the Federal, Drug Enforcement Administration (DEA) and deputies from the Du Page County sheriff’s office would testify that arrangements were made with Basista for the delivery of a pound of cocaine; that on May 28, 1981, Basista drove his car into the parking lot where the sale was to take place; that defendant was in the passenger seat and subsequently crawled over into the back seat and crouched down; that the DEA agents drove near where the vehicle was parked; that Basista got into the rear seat of the agents’ vehicle and was handed a bag containing $33,000 by the agents; that Basista told the agents that the person in his car was the one who had been sitting on the cocaine and had the package; that Agent Collins walked to the car and defendant then drove the vehicle away from the area because he observed a security guard had been watching; that defendant told Agent Collins that the package was in a tennis racket which he handed to Collins; that Collins withdrew a bag containing white powder and was told by defendant it was of good quality and was the same as samples previously received from Basista; that defendant was then arrested and stated he was not a big dealer and asked why they wanted him; and that a later laboratory analysis indicated the white powder contained 453.5 grams of a substance containing cocaine.

At defendant’s sentencing hearing on October 8, 1982, DEA agent Richard L. Ripley testified, in addition to events occurring at the time of the delivery, that he had a telephone conversation with Basista on May 26, 1981, in which Basista informed the agent that he was ready to deliver a pound of cocaine from his source who was sitting on it, and the source, in turn, had to meet another person, who was to fly in from out of town, before the deal could be consummated; that defendant was the person sitting on it; that the substance which was seized in this case was 72% pure cocaine; that one pound of 72% pure cocaine had a street value of $140,800 ($2,200 per ounce) when the substance was diluted and cut to four pounds of 18% purity, which was the average percentage of purity the agent encountered in his work; that he had received two prior samples of cocaine from Basista; that Basista was supposed to receive $3,000 for his part in the transaction; and that the agent had no personal knowledge regarding how much money, if any, defendant was going to realize as the result of this cocaine deal.

DEA agent Patricia M. Collins testified that when she entered the vehicle to procure the cocaine, the defendant told her that the cocaine was high quality, was as good as the two samples, and was all his cocaine; and that after his arrest, informed her that the cocaine was Basista’s.

The defendant testified at the sentencing hearing that he was not going to make any money as a result of the cocaine transaction and the deal was totally Basista’s; that he had used cocaine for a substantial period of time and that he made deals with various people to cut the price for himself; that Basista was a cocaine user; that he had not used cocaine since his arrest and was convinced that using cocaine was not the thing to do; and that he had never been arrested except for traffic tickets and was always gainfully employed. On cross-examination, when defendant was asked who gave him the cocaine involved in the present case, defendant paused for 30 to 45 seconds before he answered the question at the direction of the court. He replied that he received the one pound of cocaine from Bob Lidinsky; that Bob was a high school friend of his; that he hesitated in answering the question because he did not like saying anything more than he had to about it; that he called Bob to tell him that a guy (Basista) wanted to make a deal; that Bob gave him the pound of cocaine without requiring the defendant to pay for it upon receipt of the substance; that Bob gave him the cocaine without prior payment because he could trust the defendant; that Bob had given the defendant quantities of cocaine previously, and defendant had always paid Bob later; that during the course of a one-year period, Lidinsky gave him cocaine on five or 10 occasions without asking for prior payment; that Bob never offered him anything or threatened him not to reveal his name; and that this was Basista’s deal, his customers.

Following arguments of counsel, defendant was sentenced to a 25-year term of imprisonment and fined $200,000. The trial court articulated its reasons for the sentence. The court stressed the large amount of the cocaine delivered, its purity, and its ability to be cut and channeled out to individual street buyers. The court disbelieved defendant’s testimony that Basista was the moving party in the transaction, and stated Basista located the customers, but defendant had access to the source of this unusually large quantity. The trial judge also stated she did not believe defendant’s testimony that he procured the cocaine without a motive to participate in the profit. The court reasoned this was not a quantity that can reasonably be viewed as a casual delivery by a naive distributor as evidenced by defendant’s testimony that the supplier entrusted him with this quantity without collateral. The court concluded that defendant’s reliability as a transmittal agent was well-established with his supplier and he sold cocaine with a profit motive. Finally, the court stated the reason for imposing the substantial fine was to remove the profit motive.

Following imposition of the sentence, the defendant later filed a post-trial motion to vacate his conviction and a motion to reduce the sentence. Both were subsequently denied.

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Cite This Page — Counsel Stack

Bluebook (online)
458 N.E.2d 1370, 121 Ill. App. 3d 100, 76 Ill. Dec. 570, 1984 Ill. App. LEXIS 1385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bergman-illappct-1984.