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People v. Avery

April 26, 2001

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CHARLES L. AVERY, DEFENDANT-APPELLANT.



Appeal from Circuit Court of McLean County Nos. 98CF1275 98CF894 Honorable G. Michael Prall, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Steigmann

In July 1999, the trial court convicted defendant, Charles L. Avery, in a bench trial in McLean County case No. 98-CF-894 of (1) making a false report of a motor vehicle theft (625 ILCS 5/4-103(a)(6) (West 1998)) and (2) possession of a controlled substance (less than 15 grams of a substance containing cocaine) (720 ILCS 570/402(c) (West 1998)) and later sentenced him to nine and six years in prison, respectively. Also in July 1999, defendant pleaded guilty in McLean County case No. 98-CF-1275 (a case unrelated to case No. 98-CF-894) to obstructing justice (720 ILCS 5/31-4(a) (West 1998)). The trial court later sentenced him to six years in prison, with that sentence to run consecutively to the six-year sentence defendant received in case No. 98-CF-894, pursuant to section 5-8-4(h) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-8-4(h) (West 1998)).Defendant appeals, arguing that (1) his possession of a controlled substance conviction must be reversed because he was denied his constitutional right to confront a key prosecution witness under People v. McClanahan, 191 Ill. 2d 127, 729 N.E.2d 470 (2000), and (2) his mandatory consecutive sentence is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We affirm.

I. BACKGROUND

In September 1998, the State charged defendant in case No. 98-CF-894 with (1) making a false report of a motor vehicle theft (625 ILCS 5/4-103(a)(6) (West 1998)) (count I), (2) possession of a controlled substance (more than 1 gram but less than 15 grams of a substance containing cocaine) with intent to deliver (720 ILCS 570/401(c)(2) (West 1998)) (count II), and (3) possession of a controlled substance (less than 15 grams of a substance containing cocaine) (720 ILCS 570/402(c) (West 1998)) (count III). Also in September 1998, defendant posted a cash bond and was released pending further proceedings.

In December 1998, the State charged defendant in case No. 98-CF-1275 with (1) obstructing justice (720 ILCS 5/31-4(a) (West 1998)) (count I), and (2) resisting a peace officer (720 ILCS 5/31-1(a) (West 1998)) (count II).

After a June 1999 bench trial in case No. 98-CF-894, the trial court found defendant guilty of counts I and III. In July 1999, before he was sentenced on those convictions, defendant pleaded guilty to both counts in case No. 98-CF-1275.

In August 1999, the trial court conducted a joint sentencing hearing on both cases. In case No. 98-CF-894, the court sentenced defendant to nine years in prison on count I (false report of a motor vehicle theft) and six years in prison on count III (possession of a controlled substance), with those sentences to run concurrently. In case No. 98-CF-1275, the court sentenced defendant to six years in prison on count I (obstructing justice) and ordered that sentence to run consecutively to the nine- and six-year sentences imposed in case No. 98-CF-894. In doing so, the court stated its belief that section 5-8-4(h) of the Unified Code mandated consecutive sentences under the circumstances of this case. The court did not impose any sentence on count II in case No. 98-CF-1275. This appeal followed.

II. ANALYSIS

A. The McClanahan Issue

Defendant first argues that under the supreme court's recent decision in McClanahan, this court must reverse his possession of a controlled substance conviction because he was denied his constitutional right to confront a key prosecution witness when the trial court admitted evidence pursuant to section 115-15 of the Code of Criminal Procedure of 1963 (Procedural Code) (725 ILCS 5/115-15 (West 1998)). The State concedes this argument, but we reject the State's concession.

At defendant's bench trial in case No. 98-CF-894, the evidence established that defendant was arrested on the charge of making a false report of a motor vehicle theft and transported to the county jail in the backseat of a police car. Once the police car arrived at the jail, the arresting officer got out of the car and noticed that defendant, whose hands were cuffed behind his back, had his fingers underneath the back of the seat and kept trying to push them in further. The officer got defendant out of the car and then checked underneath the rear seat, as he did each time he transported someone in custody. As the officer examined the seat, but before he found anything, defendant began saying, "That ain't mine, man; that ain't mine."

The officer then felt a package and pulled it out from under the seat. He opened it and saw what he believed to be 14 individually wrapped "rocks" of crack cocaine. He later sealed the package and had his department send it to the Illinois State Police crime lab.

After the arresting officer testified, the following discussion took place between the trial court and counsel:

"[THE PROSECUTOR]: Judge, if I can by way of proffer at this time, and I would note for the record that State's [e]xhibits 2 and 3 are--2 is the lab report corresponding to the People's [exhibit No.] 1, and State's [e]xhibit [No.] 3 is an affidavit in lieu of court appearance of the forensic scientist, Joni Little, and after discussing with [defense] counsel by way of stipulation[,] if called to testify[,] Detective Tommy Sanders would indicate that he did, in fact,-- that he transported the sealed People's [exhibit No.] 1 to the Morton Crime Lab and it was, in fact, turned over to ...


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