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02/23/94 PEOPLE STATE ILLINOIS v. FRED SMITH

February 23, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
FRED SMITH, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnegago County. Nos. 90-CF-3840, 90-CF-385, 90-CF-386. Honorable David L. Smith, Judge, Presiding.

Bowman, Geiger, Colwell

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Following a bench trial, defendant, Fred Smith, was convicted of armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A-2 (now 720 ILCS 5/33A-2 (West 1992))), unlawful possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 1401(b)(2) (now 720 ILCS 570/401(b)(2) (West 1992))), and unlawful possession of cannabis with intent to deliver (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 705(d) (now 720 ILCS 550/5(d) (West 1992))). The court sentenced defendant to two-year and four-year prison terms for the drug offenses and eight years for armed violence, all sentences to run concurrently. The court also imposed a $100 street-value fine and a statutory fine of $3,480, to be paid with currency previously seized from defendant. On appeal defendant contends that (1) his conviction of and sentence for unlawful possession of a controlled substance with intent to deliver must be vacated; (2) his eight year sentence on the armed violence conviction must be reduced; and (3) he is entitled to credit against both his sentence and the street-value fine imposed on him.

The charges against defendant resulted from the execution of a search warrant in defendant's home. Detectives Versetti, Nelson, and Vincere, Rockford police officers assigned to the Rockford-Winnebago Metro Narcotics Unit, testified regarding the execution of the warrant. The officers arrived at defendant's one-story house at approximately 12:45 p.m. Detective Vincere pounded on the front door and announced "police search warrant." When no one answered after a time, the officers forced the door open. Detective Nelson, who was the first to enter the residence, immediately saw the defendant, seated in a wheelchair, rolling backward from the foyer or living room area into the kitchen. The defendant's legs had been amputated, approximately four inches above his knees. The officer ran toward the defendant. Upon reaching the kitchen area, Nelson saw what appeared to be the butt of a gun sticking out from the crotch area between defendant's legs. The officer took the gun, a loaded .357 magnum, and did a quick pat-down search of defendant for other weapons. Subsequently, Nelson conducted a thorough search of defendant's person. Inside the defendant's pinned up left pant leg, the officer found a white napkin that contained eight knotted plastic bag corners, each containing cocaine. Nelson also found $3,480 in cash and some food stamps in defendant's pocket and wallet. During the search of the house the police officers found two bags of cannabis, one inside a barbecue grill on the front porch and the other in a chest-type freezer in the kitchen. Defendant had a valid firearm owner's identification card for the handgun taken by Detective Nelson.

Defendant first contends that his felony conviction of unlawful possession of a controlled substance with intent to deliver must be vacated. The State agrees. It is well settled that multiple convictions of both armed violence and the underlying felony cannot stand where a single act is the basis for both charges. ( People v. Payne (1983), 98 Ill. 2d 45, 54-55, 456 N.E.2d 44; People v. Johnson (1990), 200 Ill. App. 3d 1018, 1020-21, 558 N.E.2d 607.) Defendant was charged with unlawful possession with intent to deliver the cocaine found on his person. He was also charged with armed violence, an offense predicated on the first offense, i.e., unlawful possession of the cocaine with intent to deliver. Thus, defendant's possession of the cocaine was the basis for both charges. Where multiple convictions arise from the same act, the conviction should be entered, and the sentence imposed upon, only the most serious offense. ( People v. Donaldson (1982), 91 Ill. 2d 164, 170, 435 N.E.2d 477.) Here, the most serious offense was armed violence. Accordingly, defendant's conviction of and sentence for unlawful delivery of a controlled substance with intent to deliver must be vacated.

Defendant next asserts that the trial court improperly enhanced his sentence for armed violence from the minimum of six years to eight years on the basis that he possessed a loaded handgun. Since such possession was an element of the offense of armed violence, according to defendant, the trial court should not have relied on it as an aggravating factor in imposing sentence. Defendant asks that we reduce his sentence to six years.

The imposition of a sentence is a matter of judicial discretion, and the standard of review to determine whether a sentence is excessive is whether the trial court has abused its discretion. ( People v. O'Neal (1988), 125 Ill. 2d 291, 297-98, 531 N.E.2d 366; People v. McCain (1993), 248 Ill. App. 3d 844, 850, 617 N.E.2d 1294.) A trial court's sentencing decisions are entitled to great deference and weight. ( People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882; People v. Gard (1992), 236 Ill. App. 3d 1001, 1016, 602 N.E.2d 920.) We find no abuse of discretion in this case.

The statutory factors in aggravation, which may be considered in imposing a more severe sentence, include the factor that "the defendant's conduct caused or threatened serious harm" (Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-3.2(a)(1) (now 730 ILCS 5/5-5-3.2(a)(1) (West 1992))). Defendant, however, relies on the rule that, generally, the consideration of a factor which is necessarily implicit in an offense cannot be used as an aggravating factor in sentencing. (See People v. Saldivar (1986), 113 Ill. 2d 256, 271-71, 497 N.E.2d 1138; People v. Conover (1981), 84 Ill. 2d 400, 404-05, 419 N.E.2d 906.) To support his position that the trial court improperly enhanced his sentence, defendant cites remarks made by the court just prior to announcing sentence. After commenting on his perception of the factors in aggravation and mitigation, the court spoke about defendant having a loaded weapon of a particular type and the fact that the gun put everyone on the premises at risk when the warrant was executed. Defendant emphasizes the court's Conclusion:

"And there has to be something done because of that, I think otherwise the 6 year minimum would be appropriate here."

The court then imposed minimum sentences for the drug possession offenses. Returning to the armed violence conviction, the court continued:

"On the Armed Violence, which would increase the penalty, it makes it from a probationable offense to a mandatory 6 years in the penitentiary, he is being punished for possession of the weapon in that regard, I am going to impose an 8 year sentence in the Department of Corrections for the Armed Violence charge.

Defendant concludes from these comments that the trial court added two years to the minimum sentence merely because of the presence of the gun.

Defendant's argument is not persuasive when viewed in light of the totality of the trial court's remarks. Early in ...


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