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12/09/94 PEOPLE STATE ILLINOIS v. SALVADOR CHAVA

December 9, 1994

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE
v.
SALVADOR CHAVA RAYA, JR., DEFENDANT-APPELLANT



Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois. No. 92 C 320. Honorable John Donald O'Shea, Judge Presiding.

Present - Honorable Kent Slater, Presiding Justice, Honorable Allan L. Stouder, Justice, Honorable Michael P. McCUSKEY, Justice.

The opinion of the court was delivered by: Mccuskey

Justice McCUSKEY delivered the opinion of the court:

The defendant, Salvador Raya, appeals from his sentence of seven years' imprisonment which was imposed following remand. In Raya's prior appeal, his conviction of unlawful possession of a substance containing cocaine with intent to deliver (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401(a)(2)(A)) was reduced to a conviction of unlawful possession of a substance containing cocaine (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1402(a)(2)(A)). (People v. Raya (1993), 250 Ill. App. 3d 795, 621 N.E.2d 222, 190 Ill. Dec. 353.) The case was remanded for resentencing. On remand, the trial court sentenced the defendant to seven years' imprisonment which was the same sentence previously imposed.

The sole issue raised by Raya on appeal is whether the trial court abused its discretion in imposing the same sentence on remand. Following our careful review of the record, we conclude that the trial court did not abuse its discretion. Accordingly, we affirm the defendant's sentence.

BACKGROUND

Police officers executing a search warrant found 25.8 grams of cocaine in the laundry room of Mathias Pizano's residence. Raya's identification (ID) card was found near two "lines" of the cocaine. Raya was at the residence during the search. He fled out the back door of the residence. Raya was chased by police officers and arrested.

Fernando Castillo testified at Raya's trial that he brought the cocaine to a party at Pizano's residence. There was testimony presented that Raya asked Castillo to bring the cocaine to the party and Raya's ID card was used to cut "lines" of cocaine. Based upon this evidence, Raya was convicted of unlawful possession of a substance containing cocaine with intent to deliver.

On appeal from that conviction, this court concluded the evidence was not sufficient to prove that Raya had the specific intent to cause Castillo to bring drugs to the party for the purpose of delivering them to others. We stated, "one who solicits narcotics for his own personal use should not be held accountable for the distributor's intent to deliver." (Raya, 250 Ill. App. 3d at 801, 621 N.E.2d at 226.) This court reduced Raya's conviction to unlawful possession of a substance containing cocaine (Raya, 250 Ill. App. 3d at 801, 621 N.E.2d at 226-27) and remanded for resentencing (Raya, 250 Ill. App. 3d at 803, 621 N.E.2d at 228).

The offense Raya was originally convicted of committing was a Class X felony with a permissible sentencing range of 6 to 30 years' imprisonment (Ill. Rev. Stat. 1991, ch. 56 1/2, par 1401(a)(2)(A)). Following Raya's successful appeal, his conviction was reduced to a Class 1 felony with a permissible sentencing range of 4 to 15 years' imprisonment (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1402(a)(2)(A)).

A resentencing hearing was held on February 6, 1994. Three witnesses testified on Raya's behalf, including his fiancee. Raya's fiancee testified they had a serious relationship and planned to get married. She said she is a positive influence on Raya. Raya testified and said he had received his G.E.D. since he was incarcerated. Raya had also enrolled in vocational school and had no violations while in prison. Raya continued to claim his innocence and said he was "not guilty of this offense whatsoever."

The presentence investigation report showed that Raya was 27 years old on the date of resentencing. As a juvenile, Raya was found guilty of battery. As an adult, he had been convicted of retail theft, possession of cannabis and two counts of burglary. He was sentenced to a term of three years' imprisonment for the burglary convictions. Raya also had two convictions of disorderly conduct and numerous traffic offenses, including one DUI.

The State argued a seven-year sentence was appropriate based on Raya's prior felony record, his failure to be rehabilitated in prison, and his continuous record of criminal offenses during his lifetime. Defense counsel argued that a lesser sentence should be imposed because Raya's conviction had been reduced from a Class X felony to a Class 1 felony. Defense counsel also remarked that Raya had been a model prisoner and was making efforts to improve himself. Finally, Raya's counsel pointed out that Castillo, the more culpable party, had received a sentence of only six years' imprisonment. Based on these factors, Raya's attorney requested a minimum sentence of four years' imprisonment.

The trial Judge responded by saying that he did not believe Raya's claim of innocence. The Judge said that he believed Raya was lying and lacked rehabilitative potential. The Judge acknowledged Raya's good conduct in prison, but placed heavy emphasis on Raya's history of criminal convictions. Upon reflection, the trial Judge stated, "I think my original sentence of seven [years] regardless of whether it's ...


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