APPEAL from the Circuit Court of Williamson County; the Hon.
BROCKTON D. LOCKWOOD, Judge, presiding.
JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 9, 1982.
After a jury trial in the circuit court of Williamson County, defendant, James C. Royse, was found guilty of delivery of more than 30 grams of a substance containing cocaine and was sentenced to six years' imprisonment. In this appeal defendant contends that: (1) the information by which he was charged was fatally defective; (2) a new trial should have been granted due to the ineffective representation of his retained trial counsel; and (3) the minimum sentence imposed deprived him of due process of law.
Defendant was tried jointly with Kevin Young, who was tried in absentia under section 115-4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 115-4.1). Defendant raised and argued a defense of entrapment, and the jury was instructed as to both accountability and entrapment.
The State's evidence consisted primarily of the testimony of sheriff's deputies Bruce Townsend and William Mehrtens, whose undercover operations resulted in the deputies' purchase of cocaine on January 10, 1980. at the house shared by defendant, Young, and Debbie Clinton. Townsend testified as to the following version of the events. He and Young planned the transaction in the kitchen of the house on January 9, 1980, while Mehrtens waited in the deputies' car. Townsend obtained a small sample of cocaine on January 9, then left and tested the sample before returning to the house the same day. On Townsend's return, he and Young further planned the transaction in the living room in the presence of defendant and Ms. Clinton. In defendant's presence, Young suggested having defendant go get the cocaine when Townsend returned with the money. The next day, when Townsend returned, he asked Young and defendant whether it was "snowing," that is, whether the cocaine had been obtained; both replied that it was snowing. Townsend insisted that the money be counted out in the car, where Mehrtens was waiting. Defendant went out and counted the money, then left in his own car. Upon defendant's return, both deputies and all three residents of the house met in the kitchen, where defendant produced the cocaine from a jacket pocket. Townsend further testified that he had been in the house on about six occasions between December 19, 1979, and January 9, 1980, and that on one occasion when Young was absent, he and defendant had discussed selling Townsend some LSD.
Deputy Mehrten's testimony regarding his own observations from the deputies' car on January 9 was corroborative of Townsend's account. He agreed with Townsend that on January 10 defendant came out to the car to count the money, then left in his own car, producing a packet of cocaine in the kitchen on his return. Mehrtens also testified that he was present in the house on December 11, 1979, when he purchased LSD from Young, and on December 13, 1979, when he purchased LSD from defendant in Young's absence.
Defendant testified in his own behalf that he had lived in the house for less than two months at the time of the offense. Defendant admitted his presence in the house on January 9 and 10 at the times the deputies had testified he was there; however, defendant stated that he did not realize that a drug transaction was in progress until, on January 10, Young asked defendant to go out to the car and count the money. Defendant refused. According to defendant, Townsend asked defendant whether he was a "narc" and called him "chicken shit." Defendant related that Young told him to count the money or move out and that he (defendant), mindful that he owed Young money for rent and utilities, complied. Defendant testified that he told the deputies, however, that the deal was none of his business and that he did not want to get involved. Defendant further stated that he then returned to the house, where Young gave him the packet of cocaine and told him to drive around so that it would appear that the cocaine had not come from the house. Defendant further testified that when he returned, he threw the cocaine on Young's scale, said he had nothing to do with it, and left the room. Defendant admitted that he did sell Mehrtens LSD on December 13, 1979, and that he had known what it was; however, he testified that Mehrtens had told him the deal was already set up with Young and that Young would be angry if defendant blew it.
On cross-examination, defendant testified that he had not seen Ms. Clinton in three months and was unaware of her whereabouts. On recross-examination, he replied in the negative when asked whether he intended to call Ms. Clinton as a witness. The trial court informed the jury that Ms. Clinton had pleaded guilty to possession of less than 30 grams of cocaine but admonished the jury that this information was to be considered only to show why Ms. Clinton was not present at trial.
At the hearings on defendant's post-trial motion, defendant was represented by new counsel who argued that defendant's trial counsel had been so ineffective that defendant had been deprived of a fair trial. In denying the post-trial motion, the court commented that trial counsel had not handled the case as he would have. The court stated:
"I have seen cases where counsel has done a worse job than the Defense counsel in this case. Not a lot, but I have seen some in major cases. The problem is, and [sic] if this were appointed counsel I would have no hesitancy in deciding that his conduct was so incompetent that this Defendant should have a new trial."
• 1 First, we consider defendant's contention that the information was fatally defective because it alleged his unlawful delivery of "cocaine." Defendant notes that the legislature recently deleted one reference to "cocaine" where it appeared in schedule II of the Illinois Controlled Substances Act (compare Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1206(b)(4), with Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1206(b)(4)), and argues that cocaine is therefore no longer a controlled substance. This contention was rejected in People v. Simon (1980), 91 Ill. App.3d 667, 416 N.E.2d 285. We reject that contention for the additional reason that the instant defendant was charged with violation of section 401(a)(2) of the Controlled Substances Act, which specifically proscribes delivery of "30 grams or more of any substance containing cocaine." (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401(a)(2).) We also note that Schedule II still lists "[c]oca leaves and any salt, compound, derivative, or preparation of coca leaves * * *." (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1206(b)(4).) Cocaine is a "derivative" of coca leaves. (People v. McCarty (1981), 86 Ill.2d 247, 427 N.E.2d 147; Webster's Third New International Dictionary 434 (1971).) The legislature's deletion of "cocaine" appears to have been intended to cure a redundancy in the language of that provision rather than to decriminalize cocaine.
• 2 Defendant also contends that the information was defective because it did not specify which form of cocaine defendant was charged with having delivered. This contention, too, was rejected in Simon. Further, we find neither evidence nor authority in support of defendant's view that certain forms of cocaine are not controlled by the Act. In United States v. Orzechowski (7th Cir. 1977), 547 F.2d 978, cert. denied (1977), 431 U.S. 906, 52 L.Ed.2d 391, 97 S.Ct. 1701, cited by defendant, the parties agreed and the court assumed that some forms of cocaine were not controlled. In United States v. Bockius (5th Cir. 1977), 564 F.2d 1193, cited by defendant, the court assumed, without deciding, that "L-cocaine" was the only illegal form of eight existing forms of cocaine. There the court specifically reserved the question of the validity of that construction of the applicable statute. (564 F.2d 1193, 1194 n. 1.) In the case at bar, the parties dispute whether some forms of cocaine are not proscribed. In the absence of evidence or authority to the contrary, we read the statute as it appears, i.e., it is unlawful to deliver 30 grams or more of "cocaine." Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401(a)(2).
• 3, 4 Defendant also argues that the Act is fatally ambiguous because it does not define "cocaine." When construing a statute the court is required to assign to the words used therein their plain and ordinary meaning. (People v. Moore (1978), 69 Ill.2d 520, 372 N.E.2d 666.) "Cocaine" is defined as an alkaloid obtained from coca leaves and synthesized from ecgonine. (Webster's Third New International Dictionary 434 (1971).) We believe the Act's use of "cocaine" is sufficiently unambiguous in view of the general acceptance of this definition.
• 5 Next, we consider defendant's contention that the incompetence of his trial counsel requires that the cause be remanded for a new trial. Defendant argues that reversal is mandated in view of the trial court's comments indicating that trial counsel would have been found incompetent under the standard for appointed counsel. He urges that this court held in People v. Scott (1981), 94 Ill. App.3d 159, 418 N.E.2d 805, filed after the hearings on the post-trial motion in this case, that a less rigid standard for determining competency of retained counsel as opposed to appointed counsel was impermissible because of the decision in Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L.Ed.2d 333, 100 S.Ct. 1708. In Scott this court determined that the standard for retained counsel should be the same as the standard applied to appointed counsel. Under the rationale of People v. Scott, defendant is entitled to a new trial if counsel "`was actually incompetent, as reflected in the performance of his duties as trial attorney, and if this incompetence produced substantial prejudice to the defendant without which the result of the trial would probably have been different.'" (People v. Scott (1981), 94 Ill. App.3d 159, 163, 418 N.E.2d 805, 807; People v. Greer (1980), 79 Ill.2d 103, 120-21, 402 N.E.2d 203, 211.) The State argues that, contrary to the comments of the trial court, counsel was sufficiently competent under the standard set forth in ...