Appeal from the Circuit Court of Cook County. Honorable Michael Getty, Judge Presiding.
Released for Publication August 13, 1996.
The Honorable Justice Braden delivered the opinion of the court: Campbell, P.j., and Wolfson, J., concur.
The opinion of the court was delivered by: Braden
JUSTICE BRADEN delivered the opinion of the court:
After a bench trial in the circuit court of Cook County, defendant, Reginald Echols, was found guilty of two counts of possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 1401(a)(2)), and one count of attempted possession of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1989, ch. 38, par. 8-4). Defendant was sentenced to concurrent terms of 15 years in the Illinois Department of Corrections and 3 years' mandatory supervised release on the two counts of possession of a controlled substance with intent to deliver. Defendant also received 15 years in the Illinois Department of Corrections with 2 years' mandatory supervised release on the one count of attempted possession of a controlled substance with the intent to deliver, to run concurrently with the aforementioned sentence.
On appeal, defendant contends that (1) he was improperly charged with the offense of attempted possession of a controlled substance with the intent to deliver; (2) the State failed to prove the necessary element of intent to support a conviction for the offense of attempted possession of a controlled substance with intent to deliver; (3) the trial court erred in denying his motion to suppress evidence; (4) the trial court relied upon improper factors in sentencing him to 15 years' imprisonment; and (5) his 15-year sentence was excessive.
The facts as adduced from the record are as follows. On September 12, 1992, postal inspector James Walsh (Inspector Walsh), received custody of a parcel addressed to Kim Echols (Echols). This parcel had been forwarded to the postal service on information that the parcel may contain contraband. Upon receipt, Inspector Walsh requested that a narcotics trained canine examine the parcel, validating that the parcel may in fact contain contraband. A Federal search warrant was obtained and the parcel was opened. The parcel contained four packages of cocaine weighing a total of four kilograms. All but 50 grams of the cocaine were removed from the four packages and four sham packages were prepared and put in the parcel in their stead. The parcel, with the sham substance, and 50 grams of cocaine was resealed for delivery to Echols.
On September 15, 1992, at about 9:30 a.m., Detective Andrew Abbott, a member of the narcotics division of the Chicago police department, as well as six additional police officers were performing drug surveillance of Echols' apartment at 500 East 33rd Street, apartment 2010. At the time, Detective Abbott was posing as a building maintenance employee and pretending to be working on the door of apartment 2009 which was located directly across the hall from Echols' apartment.
At about 9:30 a.m. Detective Abbott saw two males exit apartment 2010 and leave the building. At approximately 10 a.m., Detective Abbott observed defendant arrive and walk to the apartment where he knocked on the door. The door opened and Detective Abbott heard a female voice from within the apartment. Defendant and occupant had a brief conversation and defendant left the building.
At approximately 10:30 a.m., Postal Inspector E. C. Woodson, delivered the parcel containing the 50 grams of cocaine to Echols at apartment 2010. Detective Abbott observed Inspector Woodson speaking with a female at the apartment door. Inspector Woodson then handed the package to the woman and left.
At approximately 11:30 a.m. Detective Abbott saw defendant enter apartment 2010. Detective Abbott then saw defendant exit the apartment carrying the previously delivered package. Defendant was subsequently arrested and the apartment was searched. Defendant also consented to a search of his apartment in which Detective Abbott found an additional quantity of cocaine.
The first issue on appeal is whether defendant was improperly charged with the offense of attempted possession of a controlled substance with intent to deliver.
Defendant argues that attempted possession of a controlled substance with intent to deliver is not an offense in Illinois since the specific statutory provision for delivery preempts charging defendant under the general attempt provision. Defendant claims that he is precluded from facing trial on a properly drafted count of possession of a controlled substance with ...