Appeal from Circuit Court of Macon County. No. 95CF24. Honorable James A. Hendrian, Judge Presiding.
Released for Publication September 12, 1997.
Honorable James A. Knecht, J., Honorable Robert J. Steigmann, P.j. - Concur, Honorable John T. McCullough, J. - Concur. Justice Knecht delivered the opinion of the court. Steigmann, P.j., and McCULLOUGH, J., concur.
The opinion of the court was delivered by: Knecht
The Honorable Justice KNECHT delivered the opinion of the court:
In January 1995, defendant Trent Chapple was charged with unlawful possession of more than 15 but less than 100 grams of a substance containing cocaine with the intent to deliver, a Class X felony (720 ILCS 570/401(a)(2)(A) (West 1994)), and the included offense of unlawful possession of a controlled substance, a Class 1 felony (720 ILCS 570/402(a) (West 1994)). Defendant was represented by private counsel and pleaded not guilty. At a pretrial hearing in May 1995, after being fully admonished by the court, defendant waived his right to a jury trial. 725 ILCS 5/103-6 (West 1994). In July 1995, however, defendant filed a motion to withdraw his jury waiver. Following argument by counsel, the trial court denied defendant's motion. The court conducted a bench trial in August 1995 and found defendant guilty of both offenses. In September 1995, the trial court vacated the judgment on possession and sentenced defendant to 15 years in prison on the conviction of possession with the intent to deliver. Defendant appeals, asserting (1) the trial court abused its discretion in denying his motion to withdraw jury waiver; (2) he was not proved guilty beyond a reasonable doubt of possession of cocaine with intent to deliver; (3) he was denied effective assistance of counsel; and (4) the trial court abused its discretion in sentencing by failing to consider the relative seriousness of the offense. We affirm.
I. WITHDRAWAL OF JURY WAIVER
Defendant contends the trial court abused its discretion in denying his motion to withdraw the jury waiver. Withdrawal of a jury waiver is not a matter of right. People v. Closson, 13 Ill. App. 3d 878, 880, 301 N.E.2d 347, 348 (1973). Rather, whether a jury waiver, once knowingly and intelligently made, may be withdrawn is a matter within the discretion of the trial court, unless the circumstances indicate the defendant was unaware of the consequences of the waiver. People v. Hall, 114 Ill. 2d 376, 414, 499 N.E.2d 1335, 1351, 102 Ill. Dec. 322 (1986).
Defendant's motion stated "the reason for the waiver of jury trial was to avoid undue prosecution of [defendant's] wife and that is no longer possible." In his brief, defendant represents he negotiated a plea agreement through his attorney whereby, in return for defendant's jury waiver and a plea of guilty, the State would not prosecute his wife in an unrelated matter. At the motion hearing, defense counsel indicated prosecution of defendant's wife was no longer feasible and, due to this changed circumstance, defendant wished to reinstate his right to a jury trial.
In denying defendant's motion, the court noted when defendant waived his right to a jury trial, it was knowing and voluntary, the alleged plea agreement was not mentioned and defendant gave no indication the waiver was conditional. Nothing in the record suggests defendant was unaware of the consequences of his jury waiver and he does not argue as much.
A change in circumstances can sometimes entitle a defendant to withdraw a jury waiver. The circumstances here did not require such a result. In People v. Smith, 11 Ill. App. 3d 423, 296 N.E.2d 628 (1973), the third district held the trial court committed reversible error in denying the defendant's motion to withdraw his jury waiver where the State was permitted to amend the charging instrument after the waiver. There, defense counsel apparently believed the original charge was technically deficient and the case would involve a purely legal question. The appellate court found the situation should have caused the trial court to question whether, in view of the amendment, the defendant's jury waiver was understandingly made. The appellate court concluded the waiver may not have been intended to be made with respect to the charge as amended, but solely to the charge as originally filed. Smith, 11 Ill. App. 3d at 425, 296 N.E.2d at 630.
In People v. Holmes, 88 Ill. App. 3d 140, 410 N.E.2d 381, 43 Ill. Dec. 381 (1980), the defendant sought to withdraw his jury waiver when the State was allowed to amend its answer to his discovery motion to include newly discovered evidence, damaging to the defendant's case, after the bench trial had already begun. The defendant argued he would not have waived a jury trial had he known the evidence would be admitted at trial. Finding the new evidence was not "substantively 'damaging'" but only impeaching, however, the first district concluded the defendant failed to demonstrate the prejudice necessary to invalidate his knowing and intelligent jury waiver. Holmes, 88 Ill. App. 3d at 143, 410 N.E.2d at 384; but see People v. Norris, 62 Ill. App. 3d 228, 379 N.E.2d 80, 19 Ill. Dec. 565 (1978) (admission of damaging, newly discovered substantive evidence resulted in mistrial). Unlike these cases, defendant's ability to defend himself against the charges here was not impaired by the changed circumstance, i.e., the State's inability to prosecute his wife in a separate matter.
The present situation is analogous to a case where a defendant wishes to withdraw a guilty plea. A defendant has no absolute right to withdraw a plea of guilty and bears the burden of demonstratingto the trial court the necessity of withdrawing the plea. People v. Artale, 244 Ill. App. 3d 469, 475, 612 N.E.2d 910, 915, 184 Ill. Dec. 34 (1993); see People v. Davis, 145 Ill. 2d 240, 244, 582 N.E.2d 714, 716, 164 Ill. Dec. 151 (1991). When it appears a plea of guilty was entered on the misapprehension of fact or law, or as a consequence of misrepresentations by counsel, the State's Attorney, or someone else in authority, the court should permit the withdrawal of a guilty plea. Artale, 244 Ill. App. 3d at 475, 612 N.E.2d at 915; see also People v. Staple, 233 Ill. App. 3d 8, 10, 598 N.E.2d 384, 386, 174 Ill. Dec. 187 (1992).
Here, defendant does not allege he was under a misapprehension of fact or law when he made his jury waiver. He does not allege the State's Attorney made any misrepresentations to him or breached the proposed plea agreement. Nor does he allege his jury waiver was involuntarily made. Defendant's only contention at the motion hearing was his incentive for waiving a jury trial no longer existed and, therefore, he wished to withdraw the waiver. Under these circumstances, we conclude the trial court did not abuse its discretion in denying defendant's motion to withdraw his jury waiver.
II. SUFFICIENCY OF THE EVIDENCE
Next, defendant argues his conviction was erroneous because, even viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found him guilty beyond a reasonable doubt of possession of cocaine with the intent to deliver. See People v. Lewis, 165 Ill. 2d 305, 336, 651 N.E.2d 72, 87, 209 Ill. Dec. 144 (1995). To convict on a charge of possession of a controlled substance with the intent to deliver, the State must prove (1) the defendant had knowledge of the presence of a controlled substance, (2) the controlled substance was in his immediate control or possession, and (3) he intended to deliver the controlled substance. People v. Robinson, 167 Ill. 2d 397, 407, 657 N.E.2d 1020, 1026, 212 Ill. Dec. 675 (1995); People v. Newman, 211 Ill. App. 3d 1087, 1093, 569 N.E.2d 1089, 1092-93, 155 Ill. Dec. 478 (1991).
At defendant's trial, six law enforcement officers testified as follows. On January 6, 1995, approximately eight officers executed a search warrant, obtained after a controlled purchase of narcotics was made at the home of Dhrumba Smith, for Smith's residence. While the officers were inside the residence conducting the search, defendant knocked on the front door. A uniformed officer opened the door and asked defendant to step in. Upon seeing the officers, defendant exclaimed "oh shit!" and turned to leave. Officer David McLearin said "stop! We want to talk to you." When defendant attempted to leave, McLearin grabbed him by the arm, but defendant spun out of his coat and ran. Three to four officers began chasing defendant. Upon exiting the residence, officers observed an unoccupied car with its motor running parked directly in front of the residence. The officers later discovered this was the car defendant had driven to the scene.
As they chased defendant, McLearin and deputy sheriff Craig Gessford observed defendant throw something up in the air. McLearin shouted to the other officers "he threw something," terminated his pursuit of defendant, and went to the area where he saw the object thrown. McLearin retrieved a plastic bag containing what appeared to be four to six rocks of crack cocaine. McLearin testified the rocks were much larger than the typical rocks of crack cocaine sold as individual doses. McLearin stated ...