APPEAL from the Circuit Court of Madison County; the Hon.
MOSES W. HARRISON, II, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Defendant pleaded guilty on the same date as to two offenses of unlawful delivery of a controlled substance in violation of section 401(b) of the Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401(b)). On the first conviction he was sentenced to the Department of Corrections to not less than six and two-thirds years nor more than twenty years. On the second conviction, he was sentenced to the Department of Corrections to not less than nine years nor more than twenty-seven years pursuant to section 408 of the Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1408).
Pursuant to Supreme Court Rule 604(d) (Ill. Rev. Stat. 1975, ch. 110A, par. 604(d)), defendant filed a motion to withdraw his pleas of guilty or in the alternative to reduce sentence. The court denied the motion after a hearing. Defendant appeals.
On March 25, 1976, the Madison County grand jury returned four one-count indictments against defendant. In No. 76-CF-140, the indictment alleged that on November 2, 1975, defendant delivered less than 30 grams of a substance containing heroin to Dennis Joyce. Pre-trial discovery indicates the heroin weighed 0.5 grams. In 76-CF-141, the indictment alleged that on November 6, 1975, defendant delivered less than 30 grams of a substance containing heroin to Dennis Joyce. Pre-trial discovery indicates that the heroin which was the basis of this charge weighed 4.1 grams. The record does not indicate the amount or type of drugs involved in the other indictments.
1 At the time of the offenses, defendant was serving a sentence of five years probation for robbery. The cases were called separately and 76-CF-140 was taken first. The court was informed that there had been plea negotiations. The court determined that defendant could read, write, and understand English, was not suffering from a mental or physical disability, and was not under the influence of alcohol, narcotics, or drugs. Defendant further stated that he was not a drug addict. The trial court then substantially complied with Supreme Court Rule 402 (Ill. Rev. Stat. 1975, ch. 110A, par. 402) which in this case included the admonishment that the sentence could run consecutively to any sentence the court imposed on the revocation of probation on the robbery charge. The factual basis for the plea was that agents Hempe and Joyce of the Metropolitan Enforcement Group (MEG) had previously purchased heroin from defendant and sought him in order to make another purchase. Upon finding defendant, the agents told him that the heroin which they had previously purchased from him was good, and defendant asked them if they wanted more. After a discussion of price, the defendant said he would sell the agents 0.5 gram of heroin for $83. The agents and the defendant drove to 1110 West 9th Street, Alton, Madison County, where the defendant entered the building and returned approximately five minutes later with a tin-foil packet of heroin which he delivered to agent Joyce. Jim Flynn, an Illinois Bureau of Identification Criminalist, confirmed that the packet delivered to agent Joyce contained 0.5 gram of a substance containing heroin. Defendant agreed with the statement of facts.
The court was then informed of the terms of the plea negotiations. Defendant agreed to plead guilty to 76-CF-140 and 76-CF-141. The State agreed to dismiss 76-CF-139 and 76-CF-142 and to recommend three to nine years' imprisonment on the revocation of probation on the robbery conviction. The State further agreed to make no recommendations on the sentences for conviction in 76-CF-140 and 76-CF-141. The court then repeated the plea agreement, and defendant stated that the agreement was as the court had stated. Defendant also stated that he was satisfied with the services of his attorney. Defendant persisted in his plea of guilty, and the court accepted the plea. The court ordered a pre-sentence investigation and recessed for five minutes.
When the court reconvened, No. 76-CF-141 was called. The proceeding was essentially the same as had previously occurred in No. 76-CF-140. However, defendant was further admonished that section 408 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1408) provided that upon a second or subsequent conviction under the Act, he could be sentenced to imprisonment up to twice the maximum sentence or fined twice the amount as otherwise provided. The factual basis for this plea was that on November 6, 1975, agents Joyce and Hempe and defendant went to 1109 West 9th Street, Alton, Illinois. Agent Hempe and the defendant entered the residence. The defendant went into another room, returned a few minutes later, and asked agent Hempe to give him the money. Hempe said he wanted a good ounce of heroin for his $450. Defendant then went to the kitchen, returned in a few minutes, and left the house with Hempe. Upon entering the automobile, the defendant delivered a tin-foil packet to Joyce. An analysis of the contents of the packet by George A. Whitlatch, Illinois Bureau of Identification, established that the packet contained 4.1 grams of a substance containing heroin. After the plea agreement, which was the same as in 76-CF-140, was stated, the court said it would not be bound in any way by the plea agreements and that he had not been a party to the plea agreements. After the court again substantially complied with Supreme Court Rule 402 (Ill. Rev. Stat. 1975, ch. 110A, par. 402), the court accepted the defendant's guilty plea and ordered a pre-sentence report.
A consolidated pre-sentence report was filed which supplemented the previous pre-sentence report which was prepared for the sentencing hearing on the robbery charge. On July 22, 1976, the cases were called for sentencing. No. 76-CF-140 was called first and in accord with the plea agreement, the State offered no evidence in aggravation. Joe Holcomb, professor of psychology at Lewis and Clark Community College, testified that defendant had been one of his superior students in the three classes in which defendant was a student. Defendant testified that he had found it difficult to obtain employment because he was on probation for robbery. Then the Veterans Administration sent him a bill for approximately $600 which the administration had overpaid him for G.I. Bill Education Benefits. Defendant sold the heroin to pay for his school books and only sold drugs on the four occasions on which he was indicted. After hearing argument of the defendant, the court stated:
"The Court has further considered the testimony presented here at the sentencing hearing, the presentations of Counsel, the presentence report, and the Court having regard to the nature and circumstances of the offense, and your history must consider not only you but the other citizens of this community. The nature of the offense that you are charged with is a very serious one, in that heroin is a very dangerous drug and is severely damaging to both the mind and body, and there can be very severe emotional difficulties as a result of the use of heroin. The delivery of heroin has wrecked [sic] havoc on many segments of our society and it is a conduct that cannot be tolerated in our society today. The Court has considered your history, has considered what was stated here today regarding your history and particular the Court has considered your conviction of robbery in 1973 and being granted probation for that felony, and later that probation was revoked by the Court. The Court having considered all of these things, the Court feels that in order to sentence you appropriately, it is necessary for the Court to impose a sentence greater than the minimum term. Clyde Phillips, it is the sentence of this Court, and you are hereby sentenced to the custody of the Department of Corrections for the State of Illinois for an indeterminate term of years; the minimum to be 6 2/3 years and the maximum to be 20 years."
Defendant was advised of Supreme Court Rule 604(d) procedures and his right to appeal from a denial of a 604(d) motion. The court then recessed for five minutes.
When the court resumed, No. 76 CF 141 was called for sentencing and the State again stood mute and made no recommendation. The defendant argued that he should not be sentenced as a second or subsequent offender as the two offenses occurred over a couple of days and that he should be sentenced under section 5-4-2 of the Unified Code of Corrections for multiple offenders. The court stated:
"The Court having regard to the nature and circumstances of the offense in that you were convicted of, having pled guilty to the Unlawful Delivery of a Controlled Substance, the substance being heroin, the Court should properly consider that element of the offense, and heroin is a highly dangerous and destructive drug for human beings. The delivery of heroin has wrecked [sic] havoc on many segments of our society. Heroin is damaging physically and mentally and can result in permanent emotional disabilities and permanent emotional damage. This is a very serious crime and the Court must consider the nature and circumstances of this offense. The Court having regard to the history and character of the defendant Clyde Phillips, has considered very carefully the presentence report and in particular the fact that the defendant was convicted of a felony, robbery in 1973 and that the defendant has been sentenced just a few minutes ago, in connection with another delivery of heroin. The Court also has considered the provisions of Chapter 56 1/2, Paragraph 1408 of the Illinois Revised Statutes and find in considering all of these matters that in order to sentence appropriately in this case it is necessary for the Court to impose a sentence greater than the minimum sentence provided. Clyde Phillips, it is the sentence of this Court and you are hereby sentenced to the custody of the Department of Corrections for the State of Illinois for an indeterminate term of years, the minimum to be nine and the maximum to be twenty-seven years."
Defendant was again advised of Supreme Court Rule 604(d) procedures and his right to appeal from a denial of a motion made under that rule.
Defendant timely filed a motion to withdraw his pleas of guilty or in the alternative reduce the sentences. On August 24, 1976, the motion was heard and the court denied the motion in both cases. The defendant appeals in both cases.
Pursuant to Supreme Court Rule 604(d), the only issue which we can consider on appeal is the propriety of defendant's sentences and whether defendant should be treated as a second or subsequent offender as provided in section 408 of the Controlled ...