People v. Peterson

590 N.E.2d 935, 227 Ill. App. 3d 20, 169 Ill. Dec. 16, 1992 Ill. App. LEXIS 526
CourtAppellate Court of Illinois
DecidedMarch 30, 1992
DocketNo. 2 — 90—0530
StatusPublished
Cited by2 cases

This text of 590 N.E.2d 935 (People v. Peterson) 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. Peterson, 590 N.E.2d 935, 227 Ill. App. 3d 20, 169 Ill. Dec. 16, 1992 Ill. App. LEXIS 526 (Ill. Ct. App. 1992).

Opinion

JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Gary Peterson, pleaded guilty to one count of unlawful possession of a controlled substance (Ill. Rev. Stat. 1989, ch. BQVz, par. 1402(b)), one count of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1989, ch. SGVa, par. 1401(a)(2)), and one count of armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A— 2). The circuit court of McHenry County sentenced defendant to a prison term of 18 months for the unlawful possession count, 11 years and $75,000 fíne for the unlawful delivery count, and 6 years for the armed violence count. On appeal, defendant argues that (1) the armed violence conviction must be vacated because it was based upon the same act as the unlawful delivery conviction, (2) the armed violence conviction should be reduced to a Class 2 felony if it is not vacated, (3) the trial judge relied upon improper factors in aggravation at sentencing, and (4) he is entitled to credit toward his fine for the days he was incarcerated on a bailable offense in accordance with section 110 — 14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 110 — 14). We affirm in part and vacate in part.

On May 12, 1989, a police officer met with defendant and White (codefendant) in order to carry out a prearranged drug transaction. While in his car, defendant handed the officer two ounces of cocaine. The officer returned the cocaine and walked away from the car, allegedly to get $2,300 to accomplish the deal. The police then arrested defendant. The police found an unloaded gun in the car and an additional gram of cocaine in defendant’s personal property. At sentencing, defendant admitted that he was to be paid $200 to give White a ride in order to carry out the drug deal. Defendant also admitted that he received $60 to $80 before the transaction took place.

The presentence report stated that defendant had snakes and serpents tattooed on both his forearms. This was shown to be incorrect at the sentencing hearing when defendant held up his arms and showed the court that he did not have these tattoos. The prosecution stated that defendant was the subject of an ongoing investigation and had been involved in a previous drug deal and in conversations arranging drug deals. Defendant denied such involvement and contended that the State’s information was incorrect and was a matter of mistaken identity. Defendant also denied the accuracy of references in the presentence report that he had outstanding warrants for traffic offenses in Lake County. In support of this contention, defendant stated that he was called to court twice for DUIs allegedly committed while he was in custody for the present offense. Defendant also objected to the characterization of his criminal record by the presentence report as “lengthy,” when, in fact, he only committed two alcohol-related offenses as a minor and had been convicted of three criminal offenses as an adult. Finally, defendant objected to information in the presentence report indicating that he used an alias and that he maintained a Mexican bank account.

Defendant first argues that the armed violence conviction must be vacated because it was based upon the same act as his conviction of unlawful delivery of a controlled substance. The general rule is that where there is a single act there can be but one conviction of a crime. (People v. Donaldson (1982), 91 Ill. 2d 164, 168.) Therefore, if defendant’s armed violence conviction is based upon the same act as his conviction of unlawful delivery of a controlled substance, then one of these convictions must be vacated.

According to the Criminal Code of 1961, “[a] person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law.” (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 33A — 2.) In Donaldson, the court identified the policy underlying this statute as one which seeks to “increase or enhance the minimum penalty upon conviction of a felony when the violator was in possession of a dangerous weapon while committing the felony.” (Donaldson, 91 Ill. 2d at 168.) In Donaldson, the court held that convictions of both armed violence and aggravated battery causing great bodily harm were improper. The court explained that the underlying felony charge, aggravated battery causing great bodily harm, “does not require proof of a fact in addition to those required to prove the offense of armed violence based on the underlying felony of aggravated battery causing great bodily harm.” (Donaldson, 91 Ill. 2d at 170.) Thus, the court held that the aggravated battery felony becomes an included offense upon conviction of the armed violence charge.

In contrast, in People v. Green (1990), 199 Ill. App. 3d 927, the defendant was convicted of and sentenced for (1) armed violence predicated on unlawful possession of a controlled substance; and (2) unlawful possession of a controlled substance with intent to deliver. The intent to deliver charge was not held to be an offense included in the armed violence charge because the armed violence charge was predicated upon unlawful possession, not unlawful delivery. Because the defendant was carrying separate parcels of controlled substances, the two acts of possession and delivery could be viewed as separate and distinct, and defendant could be convicted of and sentenced for each of them. Green, 199 Ill. App. 3d at 932.

In the present case, defendant’s armed violence conviction was predicated upon unlawful delivery. Thus, it arose out of the same act underlying the unlawful delivery conviction.

Under these circumstances, the general rule is that judgment should be entered and sentence imposed on the more serious offense. (Donaldson, 91 Ill. 2d at 170.) The present case poses some difficulty in this respect because one would normally expect an act involving the delivery of a controlled substance to be more serious when such an act is performed while the actor is armed. However, the trial judge in the present case sentenced defendant to 11 years on the unlawful delivery conviction but to only 6 years on the armed violence conviction. However, in Donaldson, the court considered that the armed violence statute was intended to enhance the mandatory minimum sentence to be imposed upon conviction of a felony. (Donaldson, 91 Ill. 2d at 169.) Before presenting our own resolution of the matter, we examine the approaches other courts have taken when addressing multiple convictions and sentences for single acts.

The most basic approach to sentencing for convictions involving an included offense is simply to hold that the predicate felony conviction is void and, therefore, must be vacated. (People v. Johnson (1990), 200 Ill. App. 3d 1018.) However, other courts have more closely examined the elements of the offenses committed in order to determine which is more serious. For example, in People v. Edwards (1988), 167 Ill. App. 3d 324, the court vacated the defendant’s armed violence conviction because the predicate felony of attempted murder was viewed as a specific intent crime and was deemed more serious than the general intent crime of armed violence. Likewise, in People v. Olsen (1987), 161 Ill. App. 3d 945, we vacated an armed violence conviction which we considered to be less serious than an aggravated criminal sexual assault. Finally, our supreme court noted that, where both the armed violence and its predicate felony are Class X offenses, the defendant may be convicted of and punished for either offense, “since neither is ‘more serious’ than the other.” People v.

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Cite This Page — Counsel Stack

Bluebook (online)
590 N.E.2d 935, 227 Ill. App. 3d 20, 169 Ill. Dec. 16, 1992 Ill. App. LEXIS 526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-peterson-illappct-1992.