NOTICE FILED This order was filed under Supreme 2020 IL App (4th) 180126-U September 2, 2020 Court Rule 23 and may not be cited Carla Bender as precedent by any party except in NO. 4-18-0126 4th District Appellate the limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County ANTWONE LAMONT CREATER, ) No. 17CF970 Defendant-Appellant. ) ) Honorable ) Scott D. Drazewski, ) Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court. Justices Knecht and Holder White concurred in the judgment.
ORDER ¶1 Held: The appellate court affirmed, finding the trial court did not abuse its discretion when sentencing defendant within the statutory sentencing range for unlawful delivery of a controlled substance.
¶2 In September 2017, the State charged defendant, Antwone L. Creater, with two
counts of unlawful delivery of a controlled substance. Count I alleged defendant delivered less
than one gram of heroin to a confidential source of the Bloomington Police Department while
within 1000 feet of a school, a Class 1 felony. 720 ILCS 570/407(b)(2) (West 2016). Count 2
alleged defendant knowingly and unlawfully delivered to a confidential source of the
Bloomington Police Department less than one gram of heroin. 720 ILCS 570/401(d)(i) (West
2016). Count I was dismissed before trial. Count 2 was a Class 2 felony, normally punishable by
three to seven years in the penitentiary, with probation available. In defendant’s case, it carried a
Class X mandatory penitentiary sentence of 6 to 30 years in the Illinois Department of Corrections (IDOC) based on defendant’s prior criminal record. 730 ILCS 5/5-4.5-95 (West
2016). In December 2017, a jury found defendant guilty, and the matter was set for sentencing in
January 2018. In December 2017, defense counsel filed a “Motion for Judgment
Notwithstanding the Verdict or for a New Trial.” In January 2018, the trial court denied
defendant’s motion and proceeded to sentencing. The trial court sentenced defendant to 15 years
in IDOC. Defendant filed a timely motion to reconsider sentence, which was denied. Defendant
filed a timely notice of appeal.
¶3 On appeal, defendant argues the trial court’s sentence was excessive, considering
the legislative intent of the Illinois Controlled Substances Act (Act) (720 ILCS 570/100 et seq.
(2016)) and the nature and circumstances of the offense. We disagree and affirm.
¶4 I. BACKGROUND
¶5 In September 2017, the State charged defendant by information with two counts
of unlawful delivery of a controlled substance (720 ILCS 570/407(b)(2) (West 2016); 720 ILCS
570/401(d)(i) (West 2016)). Before trial, the State dismissed count I and proceeded solely on
count II. Defendant raises no issues regarding the trial, so we will outline the proceedings only to
the extent necessary.
¶6 Jury trial commenced in December 2017. The State’s first witness, Casey
Wheeler, testified about her role as a paid confidential source with the Bloomington Police
Department and the purchase of heroin from defendant in September 2017. After recounting her
past substance abuse struggles and her criminal record, she relayed the details of her interaction
with defendant to purchase heroin. She testified defendant, via phone calls and text messages,
instructed her to go to several different locations in Bloomington before eventually directing her
to a bus stop, where the transaction took place. Defendant’s cousin, Dorian Parker, arrived at the
-2- bus stop, and Wheeler and Parker engaged in the drug transaction. She stated she gave Parker
$140 of the prerecorded currency provided by the police and Parker gave her one packet of
heroin and a methadone bottle. She confirmed defendant arrived at the bus stop after the
transaction and she spoke with him. The State introduced text messages between Wheeler and
defendant where defendant expressed concern about police watching him and Wheeler “setting
him up.” The text messages also alluded to defendant sending someone to meet Wheeler.
Regarding her pending unrelated felony, she said she was hoping for leniency, but she indicated
no promises were made. She testified she decided to become a confidential source because she
wanted to stop using drugs and because she “knew that if [defendant] was off the streets I
couldn’t—I couldn’t go there. I couldn’t go to him.”
¶7 Dorian Parker testified that in agreement for his testimony, the State would
dismiss two of his non-probationable felony counts arising from this incident and allow him to
plead to an amended probationable count. However, there was no agreement as to sentence.
Parker said he had been a heroin addict for eight years, and he and his wife came to Bloomington
from Harvey, Illinois, to visit his wife’s cousin (defendant) over the Labor Day weekend. Parker
stated he met up with defendant on September 5, 2017, to deliver drugs for him. Defendant
instructed him to deliver an empty methadone bottle and two packets of heroin to Wheeler at a
bus stop, and defendant would provide a bag of heroin to Parker as payment in exchange for
agreeing to the delivery. Parker testified after Wheeler provided him with $140, he provided her
with two bags of heroin. After the drug transaction between Parker and Wheeler, defendant
arrived, Parker said, and “not even 30 seconds” later police stopped Parker and defendant as they
were walking away from the bus stop. Parker still had the recorded currency from the drug
transaction in his pocket at the time of his arrest.
-3- ¶8 Parker admitted signing an affidavit while housed in the McLean County jail,
taking sole responsibility for the drug transaction and exonerating defendant. However, he said
the body of the affidavit was not his handwriting, he did not know what it contained, and he
signed it because he “felt pressured and *** was still coming off withdrawals from the drugs.”
He said defendant and his brother (who was also incarcerated in the McLean County jail at the
time) pressured him daily to sign it.
¶9 The State called several police officers involved in the planning and execution of
the controlled drug transaction between Wheeler and defendant. The testimony revealed officers
witnessed Wheeler at the bus stop, when an individual (later identified as Parker) sat next to her
on the bench. Police witnessed a hand-to-hand transaction as Wheeler put money on the bench,
and Parker handed her something while picking up the money. Wheeler and Parker were
engaged in conversation when another individual (later identified as defendant) approached the
bus stop. Parker and defendant began walking away when other officers arrived and arrested
them. Defendant had over $1700 in his pockets along with a cellular phone, which officers
confirmed was the phone used to set up the drug transaction with Wheeler. Police also searched
Parker, who had $261 on his person, $140 of which was the “buy money” Wheeler used to
purchase the heroin.
¶ 10 Todd Walcott, the lead detective on the case, testified about the benefit of using
confidential sources in drug cases and explained the details involved in controlled-buy
transactions. He described how Wheeler contacted him wanting to work as a confidential source
and purchase heroin from defendant. On the day of the incident, he drove her to various locations
to meet up with defendant and searched her before and after the drug transaction. After the
transaction, he made contact with Wheeler at a nearby restaurant where she informed him the
-4- drug transaction was completed and provided him with a bag of heroin. A recorded interview of
defendant was played before the jury where he stated he directed Parker to give Wheeler her
empty methadone bottle but he did not direct him to deliver her any drugs. He confirmed his cell
phone number was the same one Wheeler used to set up the drug transaction but stated she kept
on contacting him to return her methadone bottle. A stipulation was read attesting to the proper
foundational requirements for the drugs and testing by an Illinois State Police forensic scientist
revealed the tested substance was heroin that weighed 0.1 gram. The State rested its case,
defendant elected not to testify, and the defense called no witnesses. The jury found defendant
guilty.
¶ 11 In late December 2017, defendant filed a “Motion for Judgment Notwithstanding
the Verdict or for a New Trial.” Defendant claimed the State failed to prove the elements of the
offense beyond a reasonable doubt and the finding of the jury was against the manifest weight of
the evidence. In January 2018, the trial court denied the motion and proceeded to sentencing. The
State submitted, as a demonstrative exhibit, a list of dates defendant had been in custody since
1997. Defense counsel submitted an acceptance letter defendant received from Midwest
Technical Institute and defendant’s payroll records from his employment in 2017. Defense
counsel called Alexandria Macon, a 17-year-old who stated defendant has been a father figure to
her since she was born, taking her to doctor’s appointments and helping her with school. When
he was released from prison in 2016, she helped him find placement and helped him complete
job applications.
¶ 12 During its argument, the State outlined defendant’s drug-related convictions
starting in 1988. It noted that since 2004, every time defendant was paroled from prison, his
parole was violated for another unlawful delivery of a controlled substance charge. Using the
-5- exhibit, the State noted that in the 13 years and 4 months since defendant first went into prison in
2004,
“he spent nine years and nine months in DOC, and he spent 11
months in county [jail]. *** [W]ithin 13 years since he first
stepped into DOC he’s only been out for less than two [years], and
yet, in this timeframe he was able to pick up six delivery [of
controlled substances] charges.”
The State argued the substance delivered in this case, heroin, was a highly toxic controlled
substance and defendant committed the offense while on parole, both statutory factors a court
may consider. See 720 ILCS 570/411(1) (West 2016); 730 ILCS 5/5-5-3.2(a)(12) (West 2016).
The State argued a 20-year sentence was necessary to deter defendant and others and appropriate
“because the only thing the defendant has learned through his numerous terms in the Department
[of Corrections] is just different ways of trying to evade detection.” It pointed out, through his
six previous controlled substance delivery charges, he violated parole in each instance with a
similar charge.
¶ 13 Defense counsel argued the evidence at trial, placing responsibility for the
transaction on Parker and asserting he “was the primary drug deliverer and dealer in this case
and, by his own testimony, was feeding his own drug habit.” Counsel also contended defendant
was battling a drug addiction and anxiety disorder, which helped explain why he has been in and
out of prison. Defense counsel asked the court to impose a 10-year sentence based on the “very
small” quantity of drugs and defendant’s limited involvement in “a crime of opportunity.”
Defendant gave a lengthy allocution professing his innocence, claiming he was used by Wheeler
and Parker and the jury’s guilty verdict was a “grave mistake.”
-6- ¶ 14 Before announcing sentence, the trial court stated it considered:
“the evidence at trial, the gravity of the offense, the Presentence
Investigation Report as amended, the financial impact of
incarceration, the exhibits that were admitted at the sentencing
hearing today *** along with the testimony of the witness, the
arguments and recommendations of counsel, the defendant’s
statement in allocution. The Court, having further considered the
factors in aggravation and mitigation, the defendant’s history,
character and attitude, the youth of the defendant and his potential
for rehabilitation, all sentencing options, and otherwise being fully
advised in the premises ***.”
¶ 15 In addressing defendant’s claims and his statement of allocution, the trial court
noted that even while defendant maintained his innocence, which the court recognized was his
right and would not factor into sentencing, the trier of fact did not see it that way.
¶ 16 The trial court expressed reluctance to comment on specific factors in aggravation
based on his concern for possible misconstruction by the appellate court of his comments as
“double enhancement,” and therefore it did not specify such factors, saying instead it
“considered all the factors in aggravation and mitigation and that does, among others, take into
consideration [defendant’s] previous criminal offenses which would be substantial” before
sentencing defendant to 15 years in IDOC.
¶ 17 In January 2018, defendant filed a motion to reconsider his sentence, claiming
“[t]hat given all the circumstances, the sentence imposed is excessive.” In February 2018, the
trial court held a hearing on defendant’s motion where defendant’s counsel indicated, “I’m just
-7- asking the court to reconsider and weigh the evidence that was present at the prior sentencing
hearing and at trial.” Counsel then provided a brief overview of the trial testimony as well as
evidence presented at the sentencing hearing and contained in the presentence investigation
report.
¶ 18 The State reiterated its previous argument concerning defendant’s criminal record
and his failure to successfully complete any term of parole. The trial court again listed the factors
it considered when imposing the sentence originally and denied the motion.
¶ 19 This appeal followed.
¶ 20 II. ANALYSIS
¶ 21 On appeal, defendant argues the trial court’s sentence was excessive considering
the nature and circumstances of the offense and is at odds with the legislative intent and purpose
of the Act. For these reasons, defendant urges us to reduce his sentence “to no more than 10
years in prison.” The State responds the trial court’s 15-year sentence was within the statutory
guidelines and there is no evidence in the record the trial court abused its discretion. We agree
with the State.
¶ 22 A trial court enjoys broad discretion in imposing a sentence. People v. Patterson,
217 Ill. 2d 407, 448, 841 N.E.2d 889, 912 (2005). “ ‘In determining an appropriate sentence, a
defendant’s history, character, and rehabilitative potential, along with the seriousness of the
offense, the need to protect society, and the need for deterrence and punishment, must be equally
weighed.’ ” People v. Hestand, 362 Ill. App. 3d 272, 281, 838 N.E.2d 318, 326 (2005) (quoting
People v. Hernandez, 319 Ill. App. 3d 520, 529, 745 N.E.2d 673, 681 (2001)). When mitigating
factors are presented to a court, the reviewing court should presume that the trial court
considered them. People v. Pippen, 324 Ill. App. 3d 649, 653, 756 N.E.2d 474, 478 (2001).
-8- Likewise, when a sentence falls within the statutory range of sentences possible for a particular
offense, it is presumed reasonable. People v. Moore, 41 Ill. App. 3d 3, 4, 353 N.E.2d 191, 192
(1976).
¶ 23 “Because the trial court is in a better position to observe the witnesses and
consider the relevant factors, its sentencing determination is entitled to great deference.” People
v. Kenton, 377 Ill. App. 3d 239, 245, 879 N.E.2d 402, 407 (2007). “ ‘Absent an abuse of
discretion by the trial court, a sentence may not be altered upon review.’ ” People v. Hensley,
354 Ill. App. 3d 224, 234, 819 N.E.2d 1274, 1284 (2004) (quoting People v. Kennedy, 336 Ill.
App. 3d 425, 433, 782 N.E.2d 864, 871 (2002)). An abuse of discretion will be found “where the
sentence is ‘greatly at variance with the spirit and purpose of the law, or manifestly
disproportionate to the nature of the offense.’ ” People v. Alexander, 239 Ill. 2d 205, 212, 940
N.E.2d 1062, 1066 (2010) (quoting People v. Stacey, 193 Ill. 2d 203, 210, 737 N.E.2d 626, 629
(2000)). Alternatively, an abuse of discretion will not be found unless the court’s sentencing
decision is “arbitrary, fanciful, unreasonable, or where no reasonable person would take the view
adopted by the trial court.” People v. Etherton, 2017 IL App (5th) 140427, ¶ 26, 82 N.E.3d 693.
¶ 24 In this case, defendant was convicted of unlawful delivery of a controlled
substance, a Class 2 felony, but subject to Class X sentencing (6 to 30 years in IDOC) due to
defendant’s prior criminal record. 730 ILCS 5/5-4.5-95 (West 2016). As the trial court’s 15-year
sentence fell within the relevant sentencing range, it is presumed to be proper, and we will not
disturb the sentence absent an abuse of discretion. People v. Knox, 2014 IL App (1st) 120349,
¶ 46, 19 N.E.3d 1070.
¶ 25 Defendant’s argument, in part, posits he was indirectly involved in the sale of a
small amount of heroin and the sentence of 15 years is excessive because the offense itself was
-9- not serious enough to warrant such a sentence. If we were to consider that in isolation, defendant
may have a point. Unfortunately, when exercising its broad discretion at sentencing, the trial
court must base a defendant’s sentence on other relevant factors besides the instant offense itself.
As we have previously stated, “[a]n appropriate sentence must be based upon the particular
circumstances of an individual case, including (1) the defendant’s history, character, and
rehabilitative potential; (2) the seriousness of the offense; (3) the need to protect society; and
(4) the need for deterrence and punishment.” People v. Garcia, 2018 IL App (4th) 170339, ¶ 37,
99 N.E.3d 571. All of these factors “ ‘must be equally weighed.’ ” Hestand, 362 Ill. App. 3d at
281 (quoting Hernandez, 319 Ill. App. 3d at 529). Therefore, it is incumbent upon the trial court
to review all appropriate factors and weigh them accordingly before imposing sentence.
¶ 26 Although the trial court did not make specific findings of what it considered
aggravating or mitigating, it was not required to do so. See People v. McGuire, 2017 IL App
(4th) 150695, ¶ 38, 92 N.E.3d 494 (“When imposing a sentence, the trial court must consider
statutory factors in mitigation and aggravation, but the court need not recite and assign a value to
each factor it has considered.”). Besides considering the seriousness of the offense, the trial court
stated it considered factors in “aggravation and mitigation, the defendant’s history, character and
attitude, the youth of the defendant and his potential for rehabilitation, [and] all sentencing
options.” It is certainly appropriate for the trial court to consider the seriousness of the offense
before imposing sentence, but defendant is asking us to reverse a sentence within the statutory
guidelines by arguing a lack of seriousness should be given more weight than any of the other
factors previously considered by the trial court. We decline to do so.
¶ 27 Defendant folds into his excessive-sentence argument a claim the trial court’s
15-year sentence is at odds with the legislative intent and purpose behind the Act. As defendant
- 10 - indicates, the legislative intent of the Act provides “a wide latitude in sentencing discretion, to
enable the sentencing court to order penalties in each case which are appropriate for the purposes
of this Act.” 720 ILCS 570/100 (West 2016). Defendant lists nine sentencing factors under the
Act’s sentencing statute, claiming defendant only qualifies under one of them (that heroin is a
highly toxic controlled substance.) For this reason, defendant claims the 15-year sentence was
excessive. Defendant appears to ignore the fact that section 411 of the Act provides for any one
of these factors (they are listed in the disjunctive) to be considered as warranting “the most
severe penalties.” 720 ILCS 570/411 (West 2016). Further, defendant confuses the sentencing
structure of the Act with defendant’s circumstances. True, he was subject to a sentence under the
Act; however, because of his extensive criminal history, his sentence was to be determined
pursuant to the habitual criminal statute (730 ILCS 5/5-4.5-95(b) (West 2016)) which, simply by
operation of the number, severity, and frequency of his previous convictions, warranted
enhancement from a probationable 3 to 7 years for a Class 2 felony, to mandatory Class X
sentencing, now with a range of a non-probationable 6 to 30 years. This is due to the fact the
conviction in this case was defendant’s seventh delivery of controlled substances conviction
between 2003 and 2018.
¶ 28 Contrary to defendant’s claim that a 15-year sentence is at odds with the Act’s
legislative intent, the Act states in part its purpose is to “penalize most heavily the illicit
traffickers or profiteers of controlled substances, who propagate and perpetuate the abuse of such
substances with reckless disregard for its consumptive consequences upon every element of
society.” 720 ILCS 570/100 (West 2016). Defendant is not an occasional petty distributer of
controlled substances—it is his profession. The Act’s intent was designed to curb defendant, and
individuals similarly situated, from delivering dangerous substances that damage “the peace and
- 11 - welfare of the citizens of Illinois.” 720 ILCS 570/411 (West 2016). The evidence produced at
trial and sentencing also supports the conclusion the sentence was necessary to deter others,
including defendant, from committing the same crime in the future. 730 ILCS 5/5-5-3.2(7) (West
2016). Indeed, defendant was on mandatory supervised release (MSR) at the time he committed
this felony and appears to have been on MSR or parole each time he reoffended. See 730 ILCS
5/5-5-3.2(12) (West 2016). The court mentioned defendant’s extensive criminal history—a
statutory aggravating factor the court can consider at sentencing. 730 ILCS 5/5-5-3.2 (3) (West
2016).
¶ 29 Defendant’s criminal history dates back to the late 1980s and covers four
counties. He has 7 prior felonies, 6 prior misdemeanors, and 21 related traffic offenses. At the
time he committed this offense, he was out on parole after serving a 10-year sentence for
committing the same offense—unlawful delivery of a controlled substance. Before committing
this offense, he had approximately 10 convictions related to drug offenses, 6 of which involved
delivery of controlled substances. He has received a total of six separate sentences to IDOC and
has been returned on a parole violation every time. As the State pointed out at sentencing, during
the 13 years after his first sentence to IDOC, defendant had been out of prison for less than 2
years. Within that two-year period, he was convicted of six felonies involving unlawful delivery
of controlled substances.
¶ 30 Defendant has failed to show how the trial court erred by imposing a sentence in
the mid-range of what was statutorily permissible and only five years more than defendant’s own
recommendation while at the same time five years less than the recommendation of the State.
The record reveals the trial court considered all appropriate evidence before imposing a sentence,
all factors in aggravation and mitigation, and “defendant’s history, character and attitude, the
- 12 - youth of the defendant and his potential for rehabilitation.” Defendant’s 15-year sentence
amounted to half of the maximum possible for committing the same offense for the seventh time.
We find this sentence was not greatly at variance with the spirit of the law or manifestly
disproportionate to the nature of defendant’s crimes in light of both aggravating and mitigating
factors. Accordingly, we conclude defendant’s sentence was not excessive and the trial court did
not abuse its discretion.
¶ 31 III. CONCLUSION
¶ 32 For the reasons stated, we affirm the trial court’s judgment.
¶ 33 Affirmed.
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