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People v. Hunzicker

November 24, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JEFFREY M. HUNZICKER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 10th Judicial Circuit, Tazewell County, Illinois No. 95--CF--118 Honorable Joe Vespa, Judge Presiding

The opinion of the court was delivered by: Justice Lytton

Defendant Jeffrey M. Hunzicker was charged with Class X unlawful possession of a controlled substance (cocaine) with intent to deliver (720 ILCS 570/401(a)(2)(A) (West 1994)) and unlawful possession with intent to deliver cannabis, a Class 2 felony (720 ILCS 550/5(e) (West 1994)). Following negotiations with the State, he pleaded guilty to Class 1 unlawful possession of a controlled substance (720 ILCS 570/402(a)(2)(A) (West 1994)) with no agreement as to sentence. Defendant was subsequently sentenced to a 10-year term of imprisonment and ordered to pay $5,000 in fines.

Defendant appeals, arguing that (1) his 10-year sentence constitutes an abuse of the trial court's discretion; and (2) he is entitled to a $735 reduction in his fines for the period of his pre-sentence incarceration. We affirm defendant's sentence and modify the sentencing order to reflect monetary credit against his fines.

FACTS

The State's factual basis established that drug enforcement agents executed a warrant to search defendant's apartment on March 8, 1995. As a result of the search, they seized 48.1 grams of cocaine, a large quantity of suspected cannabis and $3,150 in currency. The street value of the cocaine was $100 per gram. Based on these facts, the court accepted defendant's plea of guilty to Class 1 unlawful possession of a controlled substance, and the cannabis charge was dismissed pursuant to the parties' agreement.

The pre-sentence investigation report showed that defendant had prior convictions in 1982 and 1985 for unlawful possession of a controlled substance, for which he had received sentences of probation. At the sentencing hearing for the instant offense, the prosecutor introduced in aggravation reports showing that defendant was arrested for unlawful possession of a controlled substance while on bond for the offense in this case.

In mitigation, defendant introduced letters of commendation from elderly people for whom defendant had presented free musical performances in 1995. In addition, defendant explained to the judge that he had used controlled substances for several years to control the symptoms of attention deficit disorder (ADD). He said the drug helped him to concentrate, but he knew he would have to find a legal substitute. Defendant said he wanted to rededicate his life to lawful pursuits, including teaching philosophy and helping others with ADD.

The court found factors in aggravation based on defendant's criminal history and his commission of another offense while on bond. In mitigation, the court observed that defendant was a non-violent person and posed no threat to others. The court then sentenced defendant to 10 years' imprisonment with credit for time served and ordered him to pay a $5,000 fine. Defendant's motion to reduce sentence was denied, and he appeals.

ANALYSIS

A. Term of Imprisonment

Defendant initially argues that the trial judge abused his discretion in imposing a 10-year term of imprisonment. The State responds that defendant is estopped from challenging his sentence; or, in the alternative, the sentence was not an abuse of discretion.

1. Withdrawal of Plea

We must first consider the State's argument that the plea agreement would be vitiated if defendant were permitted to challenge only his sentence without first withdrawing his guilty plea. The State suggests that permitting defendant to appeal the severity of his sentence without returning the parties to the status quo ante is the type of gamesmanship criticized by our supreme court in People v. Evans, 174 Ill. 2d 320, 673 N.E.2d 244 (1996).

In Evans, two defendants entered fully negotiated guilty pleas. Subsequently, they moved for a reduction of sentence. The supreme court ruled that the defendants were not entitled to challenge the severity of their fully negotiated sentences without first withdrawing their guilty pleas to reduced charges and vacating judgment pursuant to Supreme Court Rule 604(d). 145 Ill. 2d R. 604(d). Applying contract principles, the court reasoned that defendants who ...


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