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11/15/96 PEOPLE STATE ILLINOIS v. MICHAEL D.

November 15, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MICHAEL D. ANDERSON, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Logan County. No. 95CF44. Honorable W. Charles Witte, Judge Presiding.

Released for Publication December 17, 1996. As Corrected January 7, 1997.

Honorable Robert J. Steigmann, J., Honorable Frederick S. Green, J. - Concur, Honorable John T. McCullough, J. - Concur. Justice Steigmann delivered the opinion of the court.

The opinion of the court was delivered by: Steigmann

The Honorable Justice STEIGMANN delivered the opinion of the court:

In February 1995, the State charged defendant, Michael D. Anderson, with unlawful possession with intent to deliver a controlled substance (more than 900 grams of a substance containing cocaine) (720 ILCS 570/401(a)(2)(D) (West 1994)). Defendant filed motions to suppress certain evidence and his statements pertaining thereto, which the trial court denied. In August 1995, defendant waived his right to a jury trial and submitted to a stipulated bench trial. The court found him guilty as charged and, in October 1995, sentenced him to 30 years in prison and ordered him to pay various fines.

Defendant appeals, arguing that the trial court improperly considered his refusal to implicate others as an aggravating factor at sentencing. We affirm.

I. BACKGROUND

In February 1995, the Illinois State Police received a tip that a maroon Nissan carrying six kilograms of cocaine left Chicago around 12:30 p.m. en route to St. Louis. The driver of the vehicle was described as male, black, and paraplegic. An Illinois State trooper who was patrolling Interstate 55 received that message and watched for the described automobile. When it drove by, the officer noticed that the driver was wearing headphones. The officer then made a traffic stop of the vehicle for that reason.

Defendant was the driver and sole occupant of the vehicle, and a license check revealed that his driver's license had been suspended. Defendant was also male, black, and paraplegic. The officer arrested defendant for driving with a suspended license, and a later search of the Nissan revealed three kilograms of a powdery substance containing cocaine in a duffel bag in the trunk. Subsequent testing showed the cocaine to be 88% pure.

In August 1995, defendant filed a motion to suppress the physical evidence obtained from the stop of the vehicle, but the trial court denied that motion. Defendant also moved to suppress statements he made at the scene; the court denied the motion in part and granted it in part.

Later in August 1995, defendant indicated he wished to proceed on the basis of a stipulated bench trial. The trial court admonished him in accordance with Supreme Court Rule 402(a) (134 Ill. 2d R. 402(a)), accepted his waivers of various procedural rights, and found him guilty as charged. The court ordered a presentence investigation and allotted the matter for sentencing in October 1995. Because of the quantity of the substance involved, defendant was convicted of a "super Class X" offense, meaning that the court was required to sentence defendant to prison for not less than 15 years and not more than 60 years. See 720 ILCS 570/401(a)(2)(D) (West 1994).

Prior to the sentencing hearing, defendant's lawyer filed a document entitled "defendant's commentary on sentencing factors," which contained both an assessment of various sentencing factors and an argument regarding why the court should impose a lesser sentence upon defendant. At one point in that document, defendant wrote that, "given the facts of the case, the court, defendant and prosecution fully recognized that a stipulated bench trial was tantamount to a guilty plea. However, it was necessary to follow that procedure in order to preserve defendant's appellate rights as to the motion to suppress." In that document, defendant further argued the following:

"Probably more than any other factor the court must consider is the defendant's acceptance of responsibility. His actions in the stipulated bench trial are the first step toward rehabilitation. These actions demonstrate an attitude deserving of lesser punishment."

At the sentencing hearing, defendant's counsel continued with that same theme, claiming defendant's willingness to proceed by a stipulated bench trial constituted "in a very real sense [his] acceptance of responsibility by preserving his constitutional right on the appeal in terms of the suppression."

The State's Attorney disagreed with this view of the case and argued that because defendant possessed with intent to deliver three kilograms (or six pounds and six ounces) of cocaine with a purity level of 88%, the trial court should sentence him to the maximum term of 60 years in prison. The State's Attorney also suggested that the court should infer, from the amount of cocaine involved, that defendant was "a player" in the "game of delivery of narcotics and cocaine." The prosecutor argued as follows:

"He's a hauler. You cannot get entrusted with over six pounds of a substance this pure containing cocaine unless you have developed a position of trust within whatever community it is that deals in this category of cocaine."

Emphasizing the cocaine's purity and that it could be further diluted three times or more, the prosecutor contended that the cocaine seized from defendant's car had a street value of $900,000.

Noting that 15 years was the minimum sentence required by law, defendant's counsel responded that the trial court should impose a sentence closer to the minimum than the sentence the prosecutor recommended. Defendant's counsel also asked the court to consider defendant's unfortunate physical condition, where he became a paraplegic after being shot in his neighborhood some years earlier.

Defendant, who was 31 years old at the sentencing hearing, had informed the probation office during its presentence investigation that he had used marijuana on a regular basis for many years but that he did not use cocaine or other "harder drugs."

This was the context in which defendant exercised his right of allocution. As he did so, the trial court asked him certain questions. Because the sole issue defendant presents on appeal concerns those questions, we quote at length from the dialogue between defendant and the court, as follows:

"[Defendant]: I understand what I am being charged with and what I have been found guilty of. *** It was a one-time thing *** and I am sorry for making that bad decision that I did make.

THE COURT: You indicated it is a onetime thing. What does that mean?

A. That that was it. I have never done it before and it most likely won't happen again.

THE COURT: Why did you do it?

A. Pressure.

THE COURT: What was the pressure?

A. Trying to maintain my family.

THE COURT: In what way?

A. Support. Finances.

THE COURT: What were you to be paid ...


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