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February 10, 1994


Appeal from the Circuit Court of Carroll County. Nos. 92-CF-22, 92-CF-31, 92-CF-32, 92-CF-41. Honorable John W. Rapp, Jr., Judge Presiding.

PECCARELLI, Woodward, Quetsch

The opinion of the court was delivered by: PECCARELLI

JUSTICE PECCARELLI delivered the opinion of the court:

Defendant, Richard Wacker, pled guilty to one count of perjury (Ill. Rev. Stat. 1991, ch. 38, par. 32-2 (now 720 ILCS 5/32-2 (West 1992))) in case No. 92-CF-22, one count of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 1401(c) (now codified, as amended, at 720 ILCS 570/401(c) (West 1992))) in case No. 92-CF-31, two counts of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1989, ch. 56 1/2, pars. 1401(c), (b)(2) (now codified, as amended, at 720 ILCS 570/401(c), (b)(2) (West 1992))) in case No. 92-CF-32, and three counts of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1989, ch. 56 1/2, pars. 1401(b)(2), (a)(2) (now codified, as amended, at 720 ILCS 570/401(b)(2), (a)(2) (West 1992))) in case No. 92-CF-41. Defendant was already serving consecutive one- and four-year prison terms imposed in cases Nos. 91-CF-2 and 91-CF-60. The court accepted defendant's plea of guilty to the several indictments and the counts therein, and sentenced him to three years' imprisonment for perjury, to run consecutively to the terms he was already serving, and one 15-year term, four seven-year terms and one six-year term of imprisonment in the unlawful delivery cases. These latter terms were to run concurrently with each other but consecutively to the three-year perjury sentence. The court also imposed street value fines totalling $2,670. Defendant appeals, contending that (1) the court abused its discretion in ordering the sentences for unlawful delivery to run consecutively to the perjury sentence; (2) the court violated Supreme Court Rule 401(d)(1) by assuming the role of a prosecutor, then considering an improper and irrelevant factor in sentencing by taking into consideration defendant's refusal to identify under oath his suppliers; and (3) that defendant, having never posted bond, is entitled to a $5-per-day credit against his street-value fines for time he spent in custody prior to sentencing.

On February 10, 1992, a grand jury indicted defendant on the charges listed above. At that time, he was already serving his sentences from the 1991 cases. On April 7, 1992, defendant entered nonnegotiated pleas of guilty to all of the 1992 charges. The factual bases for the unlawful delivery charges were that defendant sold cocaine in various amounts at various times to undercover drug agents. The factual basis for the perjury charge was that defendant falsely stated under oath at a bond reduction hearing in an unrelated misdemeanor case that he had no other outstanding charges. The court accepted the pleas, entered convictions on the charges and continued the cause to May 4 for sentencing.

At the sentencing hearing, the court considered the original presentence report prepared for the 1991 cases and an update completed in connection with the instant charges. Defendant's evidence generally showed that his parents both died when he was very young and he was raised by his grandmother. He graduated from the Savanna schools with a 3.375 grade-point average. He had taken various college courses and was 10 credits short of his associate's degree. Defendant stated that he was addicted to cocaine and began selling it only to support his own habit. He had recently gone through a difficult divorce which resulted in part from his drug usage. He had a seven-year-old son from the marriage. Defendant argued that his grandmother was dependent on him and that he looked forward to seeing his son grow up.

In its remarks prior to sentencing, the court noted that defendant had continually sold drugs in progressive quantities. The court stated:

"It's been emphasized how smart you are. Anybody who is smart would not continually sell. I think in these cases we have got * * * six counts of delivery. The last count is a Class X Felony. I would like to know for the people of this community where this is coming from, and you do know where it is coming from, but in your voluntary statement you have not offered any assistance to this community. I don't hold that against you. That would be a positive and not a negative. If people really care and if people really feel sorry that they have been hooked, that they are an addict, and they want to do something about it, they would assist at this point in their lives drying this stuff up. * * * If you cared about your son being exposed to this stuff, and maybe you can afford to harm you son, and I don't like to have a negative impact here, but that would impact quite a bit positively."

The court proceeded to impose the sentences described previously.

On May 22, 1992, defendant filed a motion to reconsider the sentences in the unlawful delivery cases only. The motion was captioned with the numbers of those cases but did not address the perjury charge. Defense counsel raised several issues in the motion, but argued primarily that the 15-year sentence was an abuse of discretion considering the mitigating evidence presented and that the sentence compared unfavorably with sentences imposed on drug dealers in nearby Whiteside County and elsewhere. Concerning defendant's failure to cooperate in naming his sources, defense counsel stated that defendant had been "confused and scared and intimidated" when the court raised the issue at the sentencing hearing. He stated that defendant now was willing to meet with the court in camera to disclose the names of his cocaine suppliers. The State objected to an in camera proceeding, and the court stated that any hearing would have to be on the record.

At the Conclusion of his argument, defense counsel again moved for leave to have defendant make an unsworn statement concerning his cocaine suppliers. The court stated that any statement would have to be made under oath in open court. After conferring with his attorney, defendant stated,

"There's bankers. They said Gunnarsson (the State's Attorney) is friends [sic] of theirs and I ain't going to say nothing. * * * Well, Your Honor, people in the City of Savanna have told me that some of these people involved with this are involved with Mr. Gunnarsson as far as they went to school with him and they can't be touched. Some of these people were in the State Correctional Center already. I am not going to put my head on the chopping block because there is nothing you people can do to help me in there."

The Judge replied that he understood defendant's fear and stated, "I do not hold it against you in anything I am deciding today." The court denied the motion to reconsider, and defendant filed a timely notice of appeal.

Defendant's first contention on appeal is that the court abused its discretion by making the unlawful delivery sentences consecutive to the sentence for perjury. Defendant contends that the court failed to make the requisite finding that consecutive sentences were necessary to protect the public. The State responds that defendant has waived this issue by failing to request specific findings of fact before the trial court and by failing to raise this issue in his motion to ...

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