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June 7, 1996


Appeal from the Circuit Court of Lake County. Nos. 94-CF-2468, 94-CF-2938. Honorable Raymond J. McKoski, Judge, Presiding.

Released for Publication July 8, 1996.

The Honorable Justice Doyle delivered the opinion of the court: Colwell and Rathje, JJ., concur.

The opinion of the court was delivered by: Doyle

The Honorable Justice DOYLE delivered the opinion of the court:

In this consolidated appeal, defendant, Alexis Pacheco, appeals the judgment of conviction entered on each of two drug offenses. We affirm.

In appeal No. 2--95--0989 (trial court No. 94--CF--2468), defendant was found guilty by a jury on March 21, 1995, of the unlawful possession of a controlled substance (cocaine) (unlawful possession) (720 ILCS 570/402(c) (1994)). The offense was alleged to have occurred on November 4, 1994.

In appeal No. 2--95--0990 (trial court No. 94--CF--2938), defendant was charged by indictment with the unlawful delivery of a controlled substance (cocaine) on a public way, within 1,000 feet of real property comprising a school, the latter circumstance enhancing the offense to a Class X felony (720 ILCS 570/401(c)(2), 407(b)(1) (West 1994)). The offense was alleged to have been committed on August 5, 1994. Defendant waived his right to a jury trial on June 26, 1995, and agreed to a stipulated bench trial in which he was found guilty of the unlawful delivery charge. On July 27, 1995, the circuit court sentenced defendant to concurrent terms of three years' imprisonment for the unlawful possession offense and nine years' imprisonment for the unlawful delivery offense. Following the denial of his motion to reconsider his sentence, this appeal followed.

On appeal in cause No. 2--95--0989, defendant argues that trial counsel was ineffective for failing to file a motion to quash his arrest and suppress evidence where, he claims, there was a strong probability of success on the motion, because the testimony at trial does not show that the officer had probable cause to arrest defendant. In cause No. 2--95--0990, defendant argues that the statutory scheme required the State to prove defendant's knowledge (scienter) of his proximity to a school as an element of the offense. Despite arguing the merits of his scienter argument, defendant further argues that trial counsel was ineffective for advising him to waive his right to a jury trial and proceed to a bench trial for the purpose of preserving the scienter issue because his counsel knew that the trial court would be bound by precedent and the likelihood of succeeding on appeal would be remote. Before addressing these issues, we recite only those facts necessary for an understanding of the issues to be resolved on appeal.

No. 2--95--0989

At the jury trial, Officer David Martinson of the Waukegan police department testified that at about 4:20 p.m. on November 4, 1994, he was driving a marked squad car while on patrol on Belvidere Street and was headed toward West Street in downtown Waukegan. As he turned onto West Street, he noticed a group of Hispanic males standing in a driveway on West Street. When he was about 30 to 40 feet away from the group, he observed defendant throw a bag with a white substance in it. He saw defendant throw the object backwards, using a side motion with his right hand. He saw four people in the group. Martinson immediately stopped his patrol car, exited, and walked up to defendant, facing him. Defendant was facing south. Defendant took a step or two away from the discarded object before Martinson said anything to him.

Martinson testified that one male near defendant began to walk away. Martinson did not attempt to stop him because he had no reason to do so. The other two males who were nearby, on the other side of the driveway, also walked away. Martinson informed defendant he was placing him under arrest and put him in the squad car. He did not inform defendant of the reason for the arrest at that time. Martinson went back within seconds to retrieve the item he saw defendant discard. Near some foliage, Martinson found a small plastic bag which contained a white substance. He took it, folded it up in a piece of paper, and stuck it into his pocket.

Officer Roger Bunnell, an evidence technician in the Waukegan police department, testified regarding the chain of evidence. He stated that he field tested the substance given to him by Martinson and that it tested positive for cocaine. The testimony of Mark Milford, a forensic scientist, established that the substance weighed 0.24 of a gram and contained cocaine.

Dionisio Rodriguez testified for the defense. He stated that there were 10 people gathered near the driveway where defendant was arrested. Rodriguez was standing behind and off to the side of defendant. When the officer parked his car, everyone started to move away. The officer told defendant to come toward him. When defendant did so, the officer handcuffed him and placed him in the police car. The officer then started searching the area for about 15 minutes. Rodriguez did not see defendant throw anything, nor did Rodriguez know if the officer found anything. Rodriguez testified that defendant did not try to run away when the police officer called him over.

Defendant testified that he did not see the officer turn the corner. Defendant was talking to some people in the driveway. He first observed the officer when he parked the car in front of the driveway--about 20 feet away. There were about 10 people present. The officer got out of the car, pointed to him, and called him over. The other people began moving away. Defendant went over to the officer who then handcuffed him and put him in the car. The officer looked around the area for about 10 or 15 minutes but did not find anything. When the officer returned to the car, he showed defendant a bag and asked defendant if it was his. ...

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