People v. Sinnott

590 N.E.2d 502, 226 Ill. App. 3d 923, 168 Ill. Dec. 865, 1992 Ill. App. LEXIS 440
CourtAppellate Court of Illinois
DecidedMarch 26, 1992
Docket4-91-0274
StatusPublished
Cited by33 cases

This text of 590 N.E.2d 502 (People v. Sinnott) 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. Sinnott, 590 N.E.2d 502, 226 Ill. App. 3d 923, 168 Ill. Dec. 865, 1992 Ill. App. LEXIS 440 (Ill. Ct. App. 1992).

Opinion

JUSTICE KNECHT

delivered the opinion of the court:

On April 12, 1990, defendant Kenneth Sinnott was charged in McLean County with possession of a controlled substance with intent to deliver. (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)(A).) On January 31, 1991, a jury acquitted defendant of the charged offense but convicted him of the uncharged included offense of unlawful possession of a controlled substance. (Ill. Rev. Stat. 1989, ch. 56½, par. 1402(a)(2).) He was sentenced to a four-year term of probation with various conditions. The court also imposed a $400 fine, a street-value fine of $2,700, and court costs.

Defendant appeals, arguing (1) the judge violated the separation-of-powers doctrine and denied him assistance of counsel by sua sponte including jury instructions on an uncharged included offense when defense counsel objected to their inclusion and the State had acquiesced in not instructing on the included offense; (2) imposing a street-value fine violates due process because he was a user and not a trafficker of controlled substances and the intent of the statute is to treat traffickers more harshly; and (3) he is entitled to credit toward both fines for the 63 days he was incarcerated before sentencing. We affirm the trial court’s inclusion of the jury instruction on the lesser offense, and reject defendant’s second argument. We agree defendant is entitled to $5 credit for each day he was in custody before sentencing, but only toward one of his fines.

At defendant’s trial, David Jocson, special agent for the Illinois State Police, testified he went to the Amtrak station in Bloomington on March 16, 1990, after receiving information defendant would be arriving on a train from Chicago and would be in possession of cocaine. When defendant and his girlfriend exited the train, Jocson approached them and identified himself. Defendant agreed to speak with Jocson and denied he possessed any drugs. Defendant consented to a pat-down search and to a search of his backpack. Jocson found a cocaine grinder, 27.5 grams of cocaine, and a “one-hitter” containing cocaine. Jocson testified a normal dose of cocaine was one-quarter to one-half gram. He stated on cross-examination that in searching defendant’s backpack he did not find any paraphernalia commonly used to ingest cocaine, such as blades, mirrors, straws, or rolled papers.

Michael Bernardini, a special agent supervisor for the Illinois State Police, testified he too was present when defendant was arrested at Amtrak. According to Bernardini, when he later asked defendant why he sold narcotics, defendant told him he did it for money. On cross-examination, Bernardini stated normally a person would buy between one-quarter gram and one gram for personal use. He conceded that some people consume more than others. On direct examination he stated he did not believe the defendant was under the influence of any substance when he interviewed him.

Russell Thomas, a detective with the Bloomington police department, testified when he booked defendant on March 16 defendant possessed a vial containing a white powdery substance. Thomas testified he heard defendant state to Bernardini that he was selling drugs for money. Daniel Lecocq, a forensic scientist with the Illinois State Police, testified the grinder contained cocaine residue, the substance found in defendant’s jeans contained 68% pure cocaine, and the vial contained .89 grams of cocaine.

Defendant testified that on March 16, 1990, he went to Chicago to visit his parents. While in Chicago, defendant purchased approximately one ounce of cocaine. Defendant also admitted paraphernalia found in his possession the day of his arrest belonged to him. He described himself as a cocaine addict. The 27.5 grams found in his possession would have lasted him five to eight days. Defendant testified the cocaine he possessed was for his own use and he was not intending to sell it. He denied he told Bernardini he was selling cocaine for money.

At the instructions conference, defense counsel informed the trial judge that after discussions with defendant, defendant did not wish to submit instructions related to the uncharged included offense of possession of a controlled substance. The judge however, concluded instructions on the included offense were necessary. Over defense counsel’s objections, the judge instructed the jury on the included offense of possession of controlled substances. The State did not object to the giving of the instructions.

The judge instructed the jury that the charged offense included the lesser offense of possession, provided a definition of possession, and gave an issues instruction stating the elements necessary for the jury to find defendant guilty of possession. The jury was provided verdict forms to determine defendant’s guilt in reference to the charged offense, the uncharged included offense of possession only, or a determination of not guilty as to both charges. In his post-trial motion, defendant alleged the trial court erred by instructing the jury on the uncharged included offense when the State did not object to the not instructing on it. Defense counsel contended the judge’s action amounted to his assuming the role of an advocate and deprived defendant of the advice of counsel. Defense counsel also filed an affidavit in which he stated that after discussions with him, defendant knowingly and voluntarily decided to not seek such instructions.

At defendant’s sentencing hearing, Kirk Lonbom, a criminal intelligence analyst with the Illinois State Police, testified the street value of cocaine in March 1990 was $100 per gram. Because defendant possessed 27.5 grams when he was arrested, the value of the cocaine found in his possession was $2,700.

The first issue raised by defendant is the propriety of the trial judge’s sua sponte instructing on the uncharged included offense when defense counsel objected to these instructions and the State had acquiesced in not instructing on it. The State contends the judge was correct in including the instructions on the included offense because if the instructions were not provided, reversible error might have resulted.

Defendant first argues this action violated the separation-of-powers doctrine because by including the instructions under these circumstances, the judge assumed the role of an advocate. This role, defendant contends, is generally reserved for the prosecutor. Defendant cites several cases in support of his contention. These cases, however, emphasized that it is the prosecutor’s role to determine which offenses should be charged against a defendant. See People ex rel. Daley v. Moran (1983), 94 Ill. 2d 41, 45-46, 445 N.E.2d 270, 272; People v. Coleman (1990), 205 Ill. App. 3d 567, 577, 563 N.E.2d 1010, 1016.

The State argues defendant has waived this issue by not including it in his post-trial motion. Although defendant’s post-trial motion does not specifically raise a separation-of-powers argument, the motion complains that the trial judge assumed the role of an advocate. This was sufficient to preserve the issue for our consideration. See People v. Land (1988), 169 Ill. App. 3d 342, 354, 523 N.E.2d 711, 718.

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Cite This Page — Counsel Stack

Bluebook (online)
590 N.E.2d 502, 226 Ill. App. 3d 923, 168 Ill. Dec. 865, 1992 Ill. App. LEXIS 440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-sinnott-illappct-1992.