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08/13/87 the People of the State of v. Jesse Franklin

August 13, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JESSE FRANKLIN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

512 N.E.2d 1318, 159 Ill. App. 3d 923, 111 Ill. Dec. 681 1987.IL.1167

Appeal from the Circuit Court of Cook County; the Hon. William Cousins, Jr., Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McMORROW delivered the opinion of the court. JOHNSON, J., concurs. JUSTICE JIGANTI, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

After a jury trial, defendant Jesse Franklin was convicted and sentenced to concurrent terms as follows: manufacture of more than 300 grams of phencyclidine , 15 years; possession of less than 300 grams of PCP, seven years; conspiracy to manufacture PCP, three years; manufacture of piperidinocyclohexanecarbonitrile , three years; possession of PCC with intent to manufacture PCP, three years; and possession of PCC, three years.

With respect to all of his convictions, defendant argues on appeal that reversal is required because (a) there was no probable cause for the issuance of a search warrant, (b) there was no probable cause for his arrest, (c) he was denied a full and fair hearing on the issues regarding probable cause, and (d) the prosecutor's comments during rebuttal argument served to deny him a fair trial. Defendant also maintains that his conviction of conspiracy to manufacture PCP must be reversed because he was convicted of the principal offense of manufacturing PCP. He contends that his convictions for the possession and manufacture of PCC must be reversed because they violate the prohibition against ex post facto laws.

With regard to sentencing, defendant claims that his 15-year sentence for manufacture of more than 300 grams of PCP was excessive and disproportionate to that of a co-offender. He also argues that his seven-year sentence for possession of less than 300 grams of PCP is in excess of the statutory maximum for that offense.

We affirm defendant's conviction for manufacture of more than 300 grams of PCP and reduce his sentence to 10 years. We affirm his conviction for possession of less than 300 grams of PCP and reduce his sentence to five years. We reverse his conviction for conspiracy to manufacture PCP and his convictions for manufacture of PCC, possession of PCC with intent to manufacture PCP, and possession of PCC.

Background

Evidence produced below established that defendant, Leon Rayford (Rayford), and Wiley Brooks (Brooks), a chemist and owner of a business selling solutions for diagnostic use in hematology, manufactured PCP and PCC at an apartment in Chicago rented by Rayford. The arrests of defendant, Rayford, and Brooks were the result of a five-month surveillance conducted by agents of the United States Drug Enforcement Administration .

During this surveillance, agents saw either defendant, Brooks, or Rayford pick up purchases, usually made under the name of Brooks' company, of certain derivative drugs used in the manufacture of PCP and PCC. Defendant, Brooks, or Rayford were also seen transporting these purchases to Rayford's apartment or discarding empty boxes in which the derivative chemicals had been purchased. The location given for Brooks' company had not been used by Brooks for several months, nor rent for the premises been paid.

Based on information received from drug companies regarding the drug purchases of Brooks' company, as well as their own investigation and surveillance, DEA agents obtained a warrant to search the Rayford apartment. Defendant and Brooks were arrested as they were leaving the apartment prior to the agents' search of the premises. As the agents approached the defendant and Brooks, the agents detected the odor of ether coming from both of the men. Defendant and Brooks were arrested and searched. Two packets containing 5.4 grams of PCP were found in defendant's pockets. After being advised of his constitutional rights, defendant stated that the PCP had been given to him by Brooks in exchange for defendant's assistance in the laboratory operation. The DEA agents' subsequent search of the apartment revealed the presence of 1,416 grams of PCP, 708 grams of PCC, and 78 grams of a mixture of PCP and PCC found in various forms.

Defendant was convicted following a jury trial. Brooks pleaded guilty before the trial began. Rayford elected to proceed by way of a ...


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