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People v. Bergman





Appeal from the Circuit Court of Du Page County; the Hon. Helen Kinney, Judge, presiding.


Defendant, Larry W. Bergman, and a co-defendant, Paul J. Basista, were charged in an information in count I with unlawful delivery of a controlled substance (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401(a)(2)), in count II with unlawful possession with intent to deliver a controlled substance (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401(a)(2)), and in count III with unlawful possession of a controlled substance (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1402(a)(2)), all counts alleging the same transaction in an amount of 30 grams or more of a substance containing cocaine. Basista entered a negotiated plea of guilty to count I and was sentenced to a six-year term of imprisonment. Bergman, who is the only defendant in this appeal, pleaded guilty to count I without any agreement with the State and was sentenced to a 25-year term of imprisonment and fined $200,000.

Defendant, Bergman, appeals contending his 25-year imprisonment term and fine constitute an abuse of sentencing discretion because (1) the sentence is grossly disparate with that of his co-defendant, (2) the trial court compared him with defendants in totally unrelated cases rather than his co-defendant, and (3) the trial court failed to make sufficient findings of record to support the sentence imposed on him and failed to balance the seriousness of the offense with his potential for rehabilitation.

On May 28, 1981, defendant and his co-defendant, Basista, were arrested and charged with the delivery of 30 grams or more of cocaine alleged to have occurred on that day. On August 23, 1982, defendant entered a nonnegotiated plea of guilty to count I, unlawful delivery of more than 30 grams of a substance containing cocaine. Counts II and III were nolle prossed. The factual basis which the State proffered was that agents of the Federal Drug Enforcement Administration (DEA) and deputies from the Du Page County sheriff's office would testify that arrangements were made with Basista for the delivery of a pound of cocaine; that on May 28, 1981, Basista drove his car into the parking lot where the sale was to take place; that defendant was in the passenger seat and subsequently crawled over into the back seat and crouched down; that the DEA agents drove near where the vehicle was parked; that Basista got into the rear seat of the agents' vehicle and was handed a bag containing $33,000 by the agents; that Basista told the agents that the person in his car was the one who had been sitting on the cocaine and had the package; that Agent Collins walked to the car and defendant then drove the vehicle away from the area because he observed a security guard had been watching; that defendant told Agent Collins that the package was in a tennis racket which he handed to Collins; that Collins withdrew a bag containing white powder and was told by defendant it was of good quality and was the same as samples previously received from Basista; that defendant was then arrested and stated he was not a big dealer and asked why they wanted him; and that a later laboratory analysis indicated the white powder contained 453.5 grams of a substance containing cocaine.

At defendant's sentencing hearing on October 8, 1982, DEA agent Richard L. Ripley testified, in addition to events occurring at the time of the delivery, that he had a telephone conversation with Basista on May 26, 1981, in which Basista informed the agent that he was ready to deliver a pound of cocaine from his source who was sitting on it, and the source, in turn, had to meet another person, who was to fly in from out of town, before the deal could be consummated; that defendant was the person sitting on it; that the substance which was seized in this case was 72% pure cocaine; that one pound of 72% pure cocaine had a street value of $140,800 ($2,200 per ounce) when the substance was diluted and cut to four pounds of 18% purity, which was the average percentage of purity the agent encountered in his work; that he had received two prior samples of cocaine from Basista; that Basista was supposed to receive $3,000 for his part in the transaction; and that the agent had no personal knowledge regarding how much money, if any, defendant was going to realize as the result of this cocaine deal.

DEA agent Patricia M. Collins testified that when she entered the vehicle to procure the cocaine, the defendant told her that the cocaine was high quality, was as good as the two samples, and was all his cocaine; and that after his arrest, informed her that the cocaine was Basista's.

The defendant testified at the sentencing hearing that he was not going to make any money as a result of the cocaine transaction and the deal was totally Basista's; that he had used cocaine for a substantial period of time and that he made deals with various people to cut the price for himself; that Basista was a cocaine user; that he had not used cocaine since his arrest and was convinced that using cocaine was not the thing to do; and that he had never been arrested except for traffic tickets and was always gainfully employed. On cross-examination, when defendant was asked who gave him the cocaine involved in the present case, defendant paused for 30 to 45 seconds before he answered the question at the direction of the court. He replied that he received the one pound of cocaine from Bob Lidinsky; that Bob was a high school friend of his; that he hesitated in answering the question because he did not like saying anything more than he had to about it; that he called Bob to tell him that a guy (Basista) wanted to make a deal; that Bob gave him the pound of cocaine without requiring the defendant to pay for it upon receipt of the substance; that Bob gave him the cocaine without prior payment because he could trust the defendant; that Bob had given the defendant quantities of cocaine previously, and defendant had always paid Bob later; that during the course of a one-year period, Lidinsky gave him cocaine on five or 10 occasions without asking for prior payment; that Bob never offered him anything or threatened him not to reveal his name; and that this was Basista's deal, his customers.

Following arguments of counsel, defendant was sentenced to a 25-year term of imprisonment and fined $200,000. The trial court articulated its reasons for the sentence. The court stressed the large amount of the cocaine delivered, its purity, and its ability to be cut and channeled out to individual street buyers. The court disbelieved defendant's testimony that Basista was the moving party in the transaction, and stated Basista located the customers, but defendant had access to the source of this unusually large quantity. The trial judge also stated she did not believe defendant's testimony that he procured the cocaine without a motive to participate in the profit. The court reasoned this was not a quantity that can reasonably be viewed as a casual delivery by a naive distributor as evidenced by defendant's testimony that the supplier entrusted him with this quantity without collateral. The court concluded that defendant's reliability as a transmittal agent was well-established with his supplier and he sold cocaine with a profit motive. Finally, the court stated the reason for imposing the substantial fine was to remove the profit motive.

Following imposition of the sentence, the defendant later filed a post-trial motion to vacate his conviction and a motion to reduce the sentence. Both were subsequently denied. At the hearing on the motion to reduce his sentence, it was stated that Basista was sentenced to a six-year term of imprisonment on his plea of guilty to the same offense before the same judge. The prosecutor revealed that Basista, in plea negotiations, received substantial leniency based on his willingness to cooperate in general with regard to drug enforcement and specifically with regard to the prosecution of defendant, who at the time, had not entered a plea of guilty. The prosecutor characterized defendant as the "dealer" and Basista as the contact or "straw man" in this delivery. It was represented to the court that neither man had a prior record, and presentence investigation reports for both are in this record. The salient points of both reports are that Basista is 25, defendant is 31, both are married with one child, both have employment in the past although defendant has a more steady work record, and both received generally favorable evaluations from the reporting probation officer. Upon her denial of the motion to reduce sentence, the trial judge remarked on the different involvement of the two in the cocaine transaction, the cooperation of Basista who was willing to testify against defendant, and the negotiated plea by Basista. The court also commented on how this transaction differed from other cases it had heard and reflected on the charges and sentences in several cases.

We review first defendant's contention that the trial court erred in supporting a grossly disparate sentence on defendant by comparing him with defendants in totally unrelated cases, rather than with his co-defendant, Basista. In this regard, defendant refers to comments about sentences in drug cases for other defendants in her court made by the trial judge at the post-sentencing hearing in denying his motion to reduce his sentence.

The remarks of the trial court about other prior cases before her were made at the hearing on the motion to reduce defendant's sentence and after arguments by defendant's counsel and the prosecutor. It is further clear from the record of that hearing that defendant's counsel first presented and argued the question of disparity in the defendant's sentence with Basista's. Subsequently, the trial judge pointed out her reasons for the difference in sentence between the two co-defendants here, stressing the plea-bargained cooperation of Basista, the degree of involvement, and the quantity and purity of the cocaine in this transaction. The court then mentioned that this was a Class X felony with a mandatory minimum sentence of six years. The court then briefly reviewed three other narcotics cases in which she had imposed the mandatory minimum sentence in two, and a sentence of eight years in the other. One was a case of possession of two ounces of cocaine, one a case of delivery of two ounces of cocaine by one who received no money from the transaction, and one a case of delivery of two ounces of cocaine by one who participated in the profits of the sale. The court then reiterated the quantity and purity of the cocaine in this transaction, and the impact if it had reached the street in smaller quantities.

• 1 We conclude that the trial judge's remarks were clearly directed to the difference in sentences it had previously imposed on defendant and Basista. The references to other defendants in separate cases appears to have been made only to illustrate that a distinction in the severity of a sentence must be made between one who delivers cocaine of high quality in a large quantity with a profit motive, such as here, from those who possess or deliver a smaller "street" quantity. In the context in which the trial judge made these comparisons, we find no error was committed.

Next, defendant contends that the trial court abused its discretion in imposing grossly disparate sentences on the two co-defendants whose participation in the crime, prior records, and potential for rehabilitation were the same.

Although an arbitrary and unreasonable disparity between the sentences of co-defendants who are similarly situated is impermissible, the mere fact that one defendant receives a substantially longer sentence than another does not, by itself, establish a violation of fundamental fairness. (People v. Kline (1982), 92 Ill.2d 490, 508, 442 N.E.2d 154; People v. Godinez (1982), 91 Ill.2d 47, 55-56, 434 N.E.2d 1121.) A disparity in sentences between co-defendants will not be disturbed where it is warranted by differences in the nature and extent of the concerned defendants' participation in the offense (People v. Godinez (1982), 91 Ill.2d 47, 55-56, 434 N.E.2d 1121), by differences in the criminal records of the participants (People v. Kline (1982), 92 Ill.2d 490, 508, 442 N.E.2d 154; People v. Cook (1983), 112 Ill. App.3d 621, 623, 445 N.E.2d 824), by a defendant's greater relative maturity (People v. DeWaele (1981), 98 Ill. App.3d 636, 637, 424 N.E.2d 876; People v. ...

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