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03/25/88 the People of the State of v. Guillermo Costales

March 25, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GUILLERMO COSTALES, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

520 N.E.2d 421, 166 Ill. App. 3d 234 1988.IL.433

Appeal from the Circuit Court of McLean County; the Hon. Luther H. Dearborn, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. GREEN, P.J., and SPITZ, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

On December 18, 1986, in the circuit court of McLean County, defendant Guillermo Costales was found guilty by a jury of the offenses of armed violence in violation of section 33A-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 33A-2), and unlawful delivery of a controlled substance in violation of section 401(b)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(b)(2)). Judgment of guilty was entered as to both offenses. On May 5, 1987, the court sentenced the defendant to eight years in the Department of Corrections on the armed violence count and assessed a $2,000 mandatory drug fine pursuant to section 5-9-1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-9-1.1). Defendant appeals alleging he received ineffective assistance of counsel, and the court erred in assessing the drug fine. We affirm.

The defendant was indicted for the offenses of unlawful delivery of a controlled substance (cocaine) in violation of section 401(b)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(b)(2)) and armed violence in violation of section 33A-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 33A-2). The armed violence count was based on defendant's being armed with a switchblade knife at the time he committed the unlawful delivery offense.

The State's evidence shows that on the late night of July 2, 1986, Steven Evans, an undercover agent for the Department of Criminal Investigations, and an informant picked up defendant, introduced to Evans as Bill, at his house for the purpose of purchasing an ounce of cocaine. Upon entering the vehicle, defendant confirmed the deal was an ounce of cocaine for $2,100. Defendant then directed as Evans drove across town to pick up the drugs.

On the way, defendant produced a switchblade knife and opened and closed it several times, noting he could cut someone quick and easy with it. He then closed the blade and held the knife near Evans' neck for a short period of time.

Upon reaching their destination, defendant directed Evans to stop the vehicle. Defendant left and returned with a clear plastic bag containing a white powdery substance and a small film canister. He gave the bag to Evans. They then proceeded to a parking lot where Evans gave defendant the $2,100. Upon Evans' giving a prearranged signal, the surveillance police responded to the scene, and Evans arrested defendant, who was sitting in the front passenger seat. Evans found the money pushed under the passenger seat and the canister and knife lying on the floorboard where defendant sat. Tests showed the bag contained 26.7 grams of cocaine, and the canister contained 0.5 grams of cocaine.

Defendant testified through an interpreter that he received a call from the police informant asking him to do him a favor. He later entered the vehicle with Evans and the informant. At that time, he showed them the knife which he just acquired and was using as a key chain. He never threatened Evans with it or spoke of cutting anyone.

He further testified he acquired the cocaine from a man named "Steve." He was only to receive $100 from the transaction. He only became involved to assist the informant. He stated he never saw the film canister before. The jury returned guilty verdicts on both counts.

At the hearing on the post-trial motion, defendant was represented by a different attorney and also had a different interpreter. Defendant testified the original interpreter was unable to communicate to him the testimony of witnesses and any comments by the court. He did admit that he knew some English and did not complain about the interpreter during the trial. The court noted it had observed the defendant during the trial, and defendant communicated freely with his attorney without using the interpreter. The court also expressed the opinion developed during the trial that defendant, to a considerable extent, understood English. The court denied the post-trial motion.

At the sentencing hearing, the parties stipulated that defendant at the time of the present offense was on bond for a delivery of cannabis charge. The court sentenced defendant to eight years in the Illinois Department of Corrections on the armed violence conviction and assessed a drug fine in the amount of $2,000 pursuant to section 5-9-1.1 of the Unified ...


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