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People v. Seidel

OPINION FILED NOVEMBER 22, 1985.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

DONALD H. SEIDEL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Whiteside County; the Hon. L.E. Ellison, Judge, presiding.

JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

The defendant, Donald H. Seidel, appeals from the trial court's denial of his motion to withdraw his guilty plea and from his sentence. We affirm as modified.

The defendant entered a blind plea of guilty to one count of unlawful possession of more than 500 grams of cannabis with intent to deliver. (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 705(e).) Following a hearing in aggravation and mitigation, the court sentenced the defendant to seven years of imprisonment and the payment of a $4,125 fine, based upon the street value of the cannabis involved. The court denied the defendant's motion to withdraw his guilty plea, and this appeal followed.

The defendant's first argument on appeal is that he should have been allowed to withdraw his guilty plea because it was not voluntary. According to the defendant, his plea of guilty was improperly induced by State threats to prosecute his grandparents for the instant offense.

• 1, 2 We note initially that it is within the sound discretion of the trial court whether to allow a defendant to withdraw his guilty plea. A court of review will not disturb the court's decision absent an abuse of that discretion. (People v. Hiera (1980), 81 Ill. App.3d 571, 402 N.E.2d 290.) Permission to withdraw a plea of guilty is not granted as a matter of right, but only if the defendant carries the burden of proof by showing that withdrawal is necessary to correct a manifest injustice based upon the facts of the case. People v. Nichols (1981), 96 Ill. App.3d 354, 420 N.E.2d 1166.

• 3 In the instant case, the record does not support the defendant's allegation that his guilty plea was improperly induced by the State. The defendant's grandparents were also charged with the instant offense because of evidence presented at the defendant's preliminary hearing. The cannabis was found in a storage area of a house which was owned and occupied by the defendant's grandparents. By the grandfather's own admission, he had the only key to the room in which the majority of the drugs were found. We thus find no basis in the record before us that the charges against the grandparents were improperly filed by the State. The defendant's grandparents were obviously implicated at that point in regard to the possession of the drugs in question. We further note that at the hearing on the motion to withdraw his plea, the defendant admitted that no coercion was applied against him and no promises of any kind were made in relation to his grandparents. Moreover, no one indicated to him that if he pleaded guilty, the charges against his grandparents would be dismissed.

During the plea proceedings, the trial court thoroughly admonished the defendant concerning the consequences of his guilty plea. The defendant was carefully questioned as to whether anyone had threatened or forced him to plead guilty. There is clearly nothing in the record to indicate that the defendant's plea of guilty was anything but voluntary. We, therefore, conclude that the trial court properly exercised its discretion in denying the defendant's motion to withdraw his guilty plea.

The defendant next contends that the trial court during sentencing failed to give proper consideration to the nature of the offense and his rehabilitative potential. The defendant requests that we vacate his sentence of seven years' imprisonment and impose a lesser sentence.

• 4, 5 It is well settled that a court of review will not disturb a sentence imposed by the trial court absent an abuse of the court's discretion. (People v. Cox (1980), 82 Ill.2d 268, 412 N.E.2d 541.) The balance struck by the trial court in weighing the factors in aggravation and mitigation should not be changed if supported by the record. People v. Lewis (1980), 89 Ill. App.3d 15, 410 N.E.2d 1047.

• 6 We find in the case at bar that the mitigating factors raised by the defendant were outweighed by the factors in aggravation. These aggravating factors included the defendant's prior criminal history and the need to deter others from committing the same offense. The court also considered the defendant's potential for rehabilitation and the nature of the instant offense. We believe that the trial court properly balanced the various factors and the record supports the court's judgment. The sentence imposed on the defendant was clearly not an abuse of the court's discretion.

• 7, 8 The defendant's next issue on appeal is that the court's imposition of a fine in the amount of the street value of the cannabis was improper. According to the defendant, the statute governing the mandatory street-value fine (Ill. Rev. Stat. 1983, ch. 38, par. 1005-9-1.1) was impliedly repealed by the subsequent enactment of section 10.1 of the Cannabis Control Act and section 411.1 of the Controlled Substances Act. (Ill. Rev. Stat. 1983, ch. 56 1/2, pars. 710.1 and 1411.1.) These latter sections govern the imposition of a discretionary fine in drug-related cases. The defendant asserts that these statutes are in conflict and cannot be reconciled.

Section 5-9-1.1 of the Unified Code of Corrections provides that:

"When a person has been adjudged guilty of a drug related offense involving possession or delivery of cannabis or * * * a controlled substance * * * in addition to any other penalty imposed, a fine shall be levied by the court at not less than the full street value of the cannabis or controlled substances seized." (Ill. Rev. Stat. 1983, ch. 38, par. 1005-9-1.1.)

The above statute became effective on January 1, 1982. The following sections, 10.1 and 411.1, which concern discretionary fines in drug-related ...


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