APPEAL from the Circuit Court of La Salle County; the Hon.
WILLIAM P. DENNY, Judge, presiding.
MR. PRESIDING JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Defendant Matias Rodriguez was tried before a jury in the Circuit Court of La Salle County and found guilty of the unlawful delivery of more than 30 grams of a substance containing heroin in violation of section 401 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401(a)(1)). At the conclusion of the sentencing hearing defendant was sentenced to a minimum of 7 years and a maximum of 21 years in the penitentiary. Defendant appeals from that sentence.
At trial the State presented evidence that defendant agreed to sell 500 grams (20 ounces) of heroin to an undercover Illinois Bureau of Investigation agent after numerous conversations in the tavern which defendant owned and operated. The sale took place on September 10, 1976, and was secretly recorded on videotape by police officers who had the scene under surveillance. At defendant's suggestion, the agent left his unlocked car parked across the street from defendant's tavern and went for a ride with defendant while the package of heroin was supposed to be placed in the car. While the two men were gone Humberto Herrera, a friend of defendant's approached the agent's car but did not make the delivery because, he later said, he thought the car was locked. Defendant and the agent again drove away, and this time Herrera put the package in the car. During the automobile ride at the time of delivery, defendant stated that future transactions would be easier after this first one, and that he would sell any amount as long as the money was paid. After returning to his car, the agent verified the contents of the package and then signaled the other officers who arrested defendant. During a subsequent search of defendant's house, police found tape and wrapping paper similar to that used on the heroin package.
According to the agent, during the negotiations that preceded delivery, defendant frequently talked about "his people" in Mexico. For example, on one occasion defendant said that his people in Mexico had moved their laboratory because of police pressure, but any day he would hear from them. The agent told defendant that he wanted to buy three or four kilograms of heroin to take to New York, and defendant agreed to sell that amount. When defendant's supplies were delayed, he arranged for the agent to purchase 500 grams from some friends for $11,500, and defendant furnished the agent with a small sample. At trial defendant testified in his own behalf that the agent had repeatedly asked him for drugs and, to help him out, defendant introduced him to Herrera who was solely responsible for the transaction. According to the agent, the "street value" of the heroin involved here was $100,000 to $150,000.
After defendant's conviction, a sentencing hearing was held. The presentence investigation report revealed that defendant immigrated to the United States from Mexico in 1961, that he became a citizen in 1971, that his 14-year marriage had produced seven children, that he worked as a union carpenter, and that in May of 1976 he purchased a tavern in La Salle on contract, that he has no prior criminal record, that he has a good reputation in the community and is a good family man. He was not able to make bail pending trial, and his family had applied for public assistance while he was in jail. At the close of the evidence and arguments in aggravation and mitigation, the trial judge commented that defendant was guilty of an extremely serious offense in terms of the large quantity of narcotics and the highly toxic nature of the controlled substance. The court also commented that in order to believe defendant's version of events, it would be necessary to disbelieve the State's witnesses and to conclude that the IBI agent had falsified his written reports and had entered into a conspiracy with Herrera and other friends of defendant to convict defendant of this crime. Instead the judge concluded that defendant must have a "split personality," appearing as a respected citizen of the community and a good family man to his friends and co-workers while participating in the wholesale drug business with criminals. The court stated, "I can't accept the position that he was a mere dupe because his active role in the transaction belies that." The court imposed a sentence of 7 to 21 years in prison.
On appeal defendant asserts that the sentence is excessive in view of his circumstances and that the sentence is disproportionate to that given his accomplice Herrera. We affirm the sentence.
Defendant would have us reduce his sentence on the grounds that a greater than minimum term is excessive for a defendant with no prior convictions and no prior drug involvement, particularly where his history and family life are indicative of early rehabilitation. The mandatory minimum term for a Class 1 felony is four years. (See Ill. Rev. Stat. 1975, ch. 38, par. 1005-8-1, and ch. 56 1/2, par. 1401(a)(1).) Defendant says that no one was harmed because none of this heroin reached the streets and that he had not dealt with drugs previously. He cites the supposedly bumbling way the delivery was handled as his own impoverished financial situation as evidence that he was not an experienced dealer. We find these arguments to be totally unpersuasive.
1 First, defendant is apparently attempting to take credit for keeping this 500 grams of heroin from reaching the unfortunate consumers of such narcotics. We see no merit in such an argument. Second, the experienced narcotics agent testified that defendant's modus operandi was the usual method for the delivery of heroin at the wholesale level. Third, the evidence at trial and at sentencing indicated that defendant had a regular source of heroin in Mexico, that he would be able to furnish large quantities in the future, and that he had contact with more than one supplier. Finally, the fact that defendant appears to have little money and few assets is no more indicative of defendant's lack of involvement in the lucrative business of drug trafficking than it is that he has gambled away his profits or put them in a secret Swiss bank account.
2 Section 411 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1411) provides:
"In determining the appropriate sentence for any conviction under this Act, the sentencing court may consider the following as indicative of the type of offenses which the legislature deems most damaging to the peace and welfare of the citizens of Illinois and which warrants the most severe penalties:
(1) the unlawful delivery of the most highly toxic controlled substances, as reflected by their inclusion in Schedule I or II of this Act;
(2) offenses involving unusually large quantities of controlled substances as measured by their wholesale value at the time of the offense * * *."
Heroin is listed in schedule I of the Act (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1204(c)(12)), and 500 grams is more than 15 times the 30-gram threshold limit in effect in 1975 for a Class 1 felony. Thus the trial court correctly took into account the large quantity of the drug and the high toxicity of heroin in imposing sentence.
Our supreme court recently reversed a reduction of sentence by the appellate court, and in reinstating the sentence entered by ...