People v. Pena

2020 IL App (2d) 170721-U

Opinion

2020 IL App (2d) 170721-U No. 2-17-0721 Order filed April 23, 2020

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). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of McHenry County. ) Plaintiff-Appellee, ) ) v. ) No. 16-CF-1094 ) GREGORIO PENA, ) Honorable ) Sharon L. Prather, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUDSON delivered the judgment of the court. Presiding Justice Birkett and Brennan concurred in the judgment.

ORDER

¶1 Held: The State proved defendant guilty beyond a reasonable doubt of possession of heroin with the intent to deliver: despite evidence that the quantity of heroin was consistent with personal use, the jury could infer the requisite intent to deliver from defendant’s furtive movements in his vehicle, the cash that he possessed, the packaging of the heroin as if for sale, its discovery in an innocuous container with small packages of cocaine, and the absence of drug paraphernalia indicating personal use; however, the cause was remanded under Krankel for a preliminary inquiry into the basis for defendant’s claim that trial counsel was ineffective for failing to introduce certain police body camera evidence and the lack of certain fingerprint testing.

¶2 Defendant, Gregorio Pena, appeals from the judgment of the circuit court of McHenry

County, contending that he was not proved guilty beyond a reasonable doubt of possession of 2020 IL App (2d) 170721-U

heroin with the intent to deliver (720 ILCS 570/401(d) (West 2016)) and that his comments during

his allocution required the trial court to conduct a preliminary inquiry under People v. Krankel,

102 Ill. 2d 181 (1984). We affirm the conviction and remand for a preliminary Krankel inquiry.

¶3 I. BACKGROUND

¶4 Defendant was indicted on eight drug offenses, including (1) unlawful possession with the

intent to deliver cocaine (Count III) (720 ILCS 570/401(c)(2) (West 2016)), and (2) unlawful

possession with the intent to deliver heroin (Count VI) (720 ILCS 570/401(d) (West 2016)).

¶5 The following facts were presented at the jury trial. On November 23, 2016, at about 12:15

a.m., Officer Spencer Smith of the Harvard Police Department stopped a vehicle driven by George

Herrera. Defendant was in the front passenger seat. Sergeant Andrew Spielman of the Harvard

Police Department arrived with two other officers and approached the passenger side of the

vehicle.

¶6 He saw defendant with his right hand “reaching down to his right *** between the seat”

and the door. Sergeant Spielman considered that act to be either stashing something or picking

something up. However, he did not see defendant drop anything. On cross-examination, Sergeant

Spielman admitted that defendant held a “soda” in his hand but he could not recall which hand.

¶7 Pursuant to an inventory of the vehicle, Sergeant Spielman, a certified evidence technician,

found a blue container on the rear floorboard, “right behind the passenger seat near the right rail”

of the seat. According to Sergeant Spielman, the container was in the area where defendant had

reached down. Officer Smith admitted that at one point defendant held a cellphone in one hand

and a soda in the other. He also admitted that the front bucket seats made it possible for the driver

to reach behind the front passenger seat.

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¶8 The blue container held five plastic baggies containing a white and brown powder and nine

plastic baggies containing a white powder. A subsequent laboratory test of one of the five bags

showed it held 0.1 grams of heroin. A test of six of the nine bags showed that the six bags held a

total of 5.7 grams of cocaine. Because of limited resources, the laboratory did not test the contents

of all of the bags.

¶9 Officer Smith also found $360 in defendant’s wallet. The money consisted of fifteen $20

bills, one $50 bill, and some smaller bills. According to Officer Smith, defendant initially told

him that defendant’s mother gave him the money, but he later said it came from his new job. The

officers also found in the vehicle two empty plastic baggies, at least one of which was behind the

driver’s seat. Officer Smith described them as having had their corners removed. Officer Smith

believed that the two empty bags were not preserved as evidence, because field tests were negative.

There was no other drug-related evidence or paraphernalia in the vehicle.

¶ 10 Officer Smith and Sergeant Spielman each wore a body camera that recorded the incident.

Portions of both videos were played for the jury.

¶ 11 Sergeant Spielman processed the blue container for fingerprints. He collected a partial

latent print, but a forensic expert testified that neither the latent print nor any other prints on the

container were suitable for comparison.

¶ 12 Sergeant Michael Muraski of the McHenry County Sheriff’s Office testified as an expert

on narcotics trafficking. According to Sergeant Muraski, heroin is typically packaged for sale in

0.1-gram doses in one-by-one-inch “ziplock” bags similar to those found in the blue container. It

is also packaged in 0.1- or 0.2-gram doses in capsules or foil packets. In McHenry County, 0.1

gram of heroin sells for $20. Three doses sell for $50, and “a jab” (10-13 doses) sells for about

$200.

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¶ 13 At any one time, a typical heroin user will possess a couple of doses up to a jab. People

who solely use, as opposed to sell, heroin typically possess paraphernalia such as “needles, spoons,

cookers, some sort of lighting mechanism, whether that’s matches or lighter, [and] some sort of

filter.”

¶ 14 Sergeant Muraski opined that the amount of heroin seized was not significant, but he

believed that it was packaged for resale. The heroin was with cocaine, it was packaged in individual

baggies, it was concealed in an innocuous container, and no drug paraphernalia was found.

Further, because heroin in McHenry County is typically purchased with $20 bills, the number of

$20 bills found in defendant’s wallet showed that it was from drug sales. Sergeant Muraski

concluded that the amount of drugs, the packaging, the lack of any drug paraphernalia, the

currency, defendant’s furtive movements in the vehicle, and the concealment of the drugs in the

blue container collectively showed that the cocaine and heroin was for resale as opposed to

defendant’s personal use.

¶ 15 Kevin Stott testified that defendant had worked for Stott’s paving company from early

October 2016 to mid-November 2016. Defendant earned $10 per hour, and Stott paid him either

by check or in cash.

¶ 16 The jury found defendant guilty of possession with intent to deliver both cocaine and

heroin. The trial court denied defendant’s motion for a new trial.

¶ 17 In his sentencing allocution, defendant essentially argued that he was not proved guilty.

To that end, he asserted that the officers lied to prove their case. He added that, although there

were fingerprints taken from the plastic bags of heroin “[it] was never brought to light at [the]

trial” that the fingerprints were not sent to the lab. He further stated that Sergeant Spielman’s body

camera showed that there was contraband on the floor behind the driver’s seat and that defendant

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“asked for the footage to be played at trial *** but [it was] never introduced.” He added that the

jury should have also heard that Officer Smith’s body camera showed that he had seen defendant

several times the day before but did not arrest him on a warrant, but instead, waited until defendant

was with Herrera, a known drug offender. He reiterated that Officer Smith’s body camera would

have shown two empty plastic baggie corners behind the driver’s seat and that he “asked for both

footages to be played at trial, but it never was.” Finally, he noted that he had asked to have

“brought to light” that Officer Smith’s body camera showed Officer Smith several times looking

at his wristwatch. Defendant asserted that, because the time on the wristwatch differed from that

on the body camera by an hour, that showed possible tampering.

¶ 18 The trial court responded that it understood that defendant disagreed with the verdict. The

court explained that any argument regarding his innocence would have to be presented in the

appellate court. The court then sentenced defendant to concurrent terms of six years’

imprisonment for unlawful possession with intent to deliver cocaine and four years’ imprisonment

for unlawful possession with intent to deliver heroin. Defendant, in turn, filed a timely notice of

appeal.

¶ 19 II. ANALYSIS

¶ 20 On appeal, defendant contends that (1) because the amount of heroin was consistent with

personal use, the State failed to prove him guilty beyond a reasonable doubt of possession of heroin

with the intent to deliver, and (2) although he alleged at sentencing that his trial attorney was

ineffective, the trial court failed to conduct the inquiry required by People v. Krankel, 102 Ill. 2d

181 (1984).

¶ 21 The State, conceding that the amount of heroin was consistent with personal use, responds

that there were additional factors that proved that defendant had the intent to deliver. The State

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further responds that a Krankel inquiry was not required, because defendant never mentioned that

he asked his attorney to do anything, defendant does not explain how the body camera videos could

have helped his defense, the record rebuts defendant’s claim that the body camera videos were not

played for the jury, the record shows that trial counsel vigorously cross-examined both officers,

and Officer Smith testified that the baggies found behind the driver’s seat were destroyed because

field tests showed they contained no drugs.

¶ 22 We first decide whether the State proved beyond a reasonable doubt that defendant

possessed the heroin with the intent to deliver. It did.

¶ 23 In a criminal case, when a defendant challenges the sufficiency of the evidence, the

dispositive 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 have found the essential elements of

the crime beyond a reasonable doubt. People v. Bush, 214 Ill. 2d 318, 326 (2005). Under that

standard, a reviewing court must draw all reasonable inferences from the record in favor of the

prosecution. Bush, 214 Ill. 2d at 326. To convict a defendant of possession of a controlled

substance with the intent to deliver, the State must prove that the defendant (1) knew of the

presence of the narcotics, (2) possessed or controlled the narcotics, and (3) intended to deliver the

narcotics. People v. Starks, 2019 IL App (2d) 160871, ¶ 36 (citing 720 ILCS 570/401 (West

2014)). Defendant does not dispute the first two elements.

¶ 24 Because direct evidence of intent to deliver is rare, such intent usually must be proved by

circumstantial evidence. Starks, 2019 IL App (2d) 160871, ¶ 37 (citing People v. Robinson, 167

Ill. 2d 397, 408 (1995)). Accordingly, the issue involves the examination of the nature and quantity

of circumstantial evidence necessary to support an inference of intent to deliver. Starks, 2019 IL

App (2d) 160871, ¶ 37. Our supreme court has identified the following examples of factors that

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are probative of a defendant’s intent to deliver: (1) whether the quantity is too large to be viewed

as being for personal consumption; (2) the high purity of the substance; (3) the possession of

weapons; (4) the possession of large amounts of cash; (5) the possession of police scanners,

beepers, or cell phones; (6) the possession of drug paraphernalia; and (7) the manner in which the

substance is packaged. Robinson, 167 Ill. 2d at 408. However, the factors set forth in Robinson

were not meant to be exclusive, and courts may consider other evidence of drug dealing. Bush,

214 Ill. 2d at 327. Indeed, when other factors indicate a defendant’s intent to deliver, the absence

of the factors identified in Robinson is inconsequential. Bush, 214 Ill. 2d at 328.

¶ 25 Here, there were several factors that, viewed together in the light most favorable to the

prosecution, supported a reasonable inference that defendant intended to deliver the heroin. First,

according to Sergeant Muraski, an expert on the sale of heroin in McHenry County, the heroin was

packaged for resale. It was in divided into typical 0.1 gram doses and packaged in ziplock bags

commonly used to sell heroin. Second, the absence of any paraphernalia for personal drug use,

such as those items identified by Sergeant Muraski, showed that defendant possessed the heroin

for sale as opposed to use. See People v. White, 221 Ill. 2d 1, 20 (2006) (absence of paraphernalia

for consuming crack cocaine was a relevant factor supporting conviction for possession with intent

to deliver, notwithstanding that the amount of drugs was not inconsistent with personal use).

Third, although defendant did not possess an unusually large amount of cash, according to

Sergeant Muraski, the number of $20 bills was consistent with someone who had sold 0.1 gram

doses of heroin. Although Stott testified that he had paid defendant in cash, he did not specify the

denominations. Further, the jury was entitled to reject Stott’s testimony. Fourth, consistent with

drug dealing, the heroin was concealed in an innocuous container. Fifth, the heroin was found in

the same container that held numerous packets of cocaine, which Sergeant Muraski testified was

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another indicator of drug dealing. When we view collectively the various indicators of drug

dealing, there was ample evidence to prove beyond a reasonable doubt that defendant possessed

the heroin with the intent to deliver.

¶ 26 Although defendant cites several cases to support his argument, those cases are not

controlling. Whether the State has established the intent to deliver is a case-by-case assessment,

and the fact that the evidence in one case is not as strong as in others is not dispositive. Starks,

2019 IL App (2d) 160871, ¶ 41 (citing People v. Blan, 392 Ill. App. 3d 453, 457 (2009)).

¶ 27 Further, defendant’s reliance on People v. Nixon, 278 Ill. App. 3d 453 (1996), is misplaced.

In that case, in reducing the defendant’s conviction to simple possession, the court emphasized

that there was no other evidence of drug dealing beyond the defendant’s mere possession of a small

quantity of drugs. Nixon, 278 Ill. App. 3d at 458-59. Here, unlike in Nixon, there was ample

evidence that showed defendant ‘s intent to deliver the small amount of heroin. Thus, Nixon does

not support defendant.

¶ 28 We next decide whether defendant’s comments during allocution required the trial court to

inquire into the factual basis of a claim of ineffective assistance of counsel. They did.

¶ 29 When a defendant presents a pro se posttrial claim of ineffective assistance of counsel, the

trial court should inquire into the factual basis of the claim. People v. Jolly, 2014 IL 117142, ¶ 29.

If a defendant’s allegations of ineffective assistance of counsel show possible neglect, new counsel

is appointed to represent the defendant in a full hearing on his claim. People v. Moore, 207 Ill. 2d

68, 78 (2003). However, if a defendant does not sufficiently raise an ineffective-assistance claim,

he does not trigger a preliminary inquiry. People v. Taylor, 237 Ill. 2d 68, 75-77 (2010). To

trigger the preliminary inquiry, a claim must be clear. People v. Jindra, 2018 IL App (2d) 160225,

¶ 14 (citing People v. Ayers, 2017 IL 120071, ¶ 18). If a defendant clearly states a claim and the

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trial court fails to conduct the preliminary inquiry into the factual basis, the case must be remanded

for the limited purpose of allowing the court to do so. People v. Remsik-Miller, 2012 IL App (2d)

100921, ¶ 9. A trial court’s alleged failure to conduct the required inquiry is reviewed de novo.

People v. Bates, 2019 IL 124143, ¶ 14.

¶ 30 Here, during his allocution, defendant stated that certain evidence was not introduced at

trial. Specifically, he mentioned fingerprints from the bags containing the drugs and portions of

the body camera videos. Further, he stated that, although he asked that those portions of the videos

be played, they were not. Although defendant never mentioned his attorney, he clearly implied

that he had asked his attorney to introduce the evidence and was unhappy that he did not. That

sufficiently raised a claim of ineffectiveness. See People v. Craig, 2020 IL App (2d) 170679, ¶ 18.

Because defendant raised a claim of ineffective assistance of counsel, the trial court erred in failing

to conduct a preliminary inquiry into the factual basis of the claim.

¶ 31 III. CONCLUSION

¶ 32 For the reasons stated, we affirm the judgment of the circuit court of McHenry County and

remand the cause for a preliminary inquiry under Krankel.

¶ 33 Affirmed and remanded.

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