Appeal from Circuit Court of Livingston County No. 08CF315 Honorable Robert M. Travers and Jennifer H. Bauknecht, Judges Presiding.
The opinion of the court was delivered by: Justice Turner
JUSTICE TURNER delivered the judgment of the court, with opinion. Justices Steigmann and Pope concurred in the judgment and opinion.
¶ 1 In December 2008, the State charged defendant, Marci A. Rios, with one count of unlawful possession with the intent to deliver a controlled substance (720 ILCS 570/401(c)(1) (West 2008)), two counts of unlawful delivery of a controlled substance (720 ILCS 570/401(d) (West 2008)), and one count of unlawful possession with the intent to deliver cannabis (720 ILCS 550/5(d) (West 2008)). In February 2009, the Livingston County circuit court accepted defendant's plea of guilty to all four charges. At an April 2009 hearing, the court sentenced defendant to concurrent prison terms of 12 years for unlawful possession with the intent to deliver a controlled substance, 5 years for each count of unlawful delivery of a controlled substance, and 3 years for unlawful possession with the intent to deliver cannabis. In May 2009, defendant filed a motion to reconsider her sentence, which the court denied. Defendant appealed, and this court remanded the cause for further proceedings consistent with Illinois Supreme Court Rule 604(d) (eff. July 1, 2006). People v. Rios, No. 4-09-0690 (February 18, 2010) (unpublished order under Supreme Court Rule 23).
¶ 2 On remand, defense counsel filed a proper Rule 604(d) certificate, and after a new hearing, the trial court once more denied defendant's motion to reconsider her sentence. Defendant again appeals, asserting the court erred by considering improper factors in aggravation when sentencing her. We affirm.
¶ 4 The State's December 4, 2008, information alleged defendant committed (1) unlawful possession with the intent to deliver more than 1 but less than 15 grams of heroin on December 4, 2008 (count I); (2) unlawful delivery of less than 1 gram of heroin on December 2, 2008 (count II); (3) unlawful delivery of less than 1 gram of heroin on November 26, 2008 (count III); and (4) unlawful possession with the intent to deliver more than 30 grams but less than 500 grams of cannabis on December 4, 2008 (count IV). The next day, Judge Jennifer H. Bauknecht set defendant's bond, and defendant stated the following: "Ma'am, please. I have two children. I don't even know where they are. This is what I do. I know this isn't a good thing, but that's how I pay my bills." In February 2009, the State filed an amended information, modifying count I by changing the amount of heroin to more than 5 grams but less than 15 grams.
¶ 5 At a February 4, 2009, hearing, defendant entered an open plea of guilty to the charged offenses. Judge Robert M. Travers presided over the plea hearing. Before accepting defendant's plea, the trial court heard a factual basis that defendant sold packets of heroin to a confidential source from her residence on November 26 and December 4, 2008. A third controlled buy occurred at her residence on December 2, 2008, which was dispensed by another resident. On December 4, 2008, police executed a warrant for defendant and her residence. The police found a Ziploc bag containing 233 grams of a substance that field-tested positive for cannabis in the bathroom, along with three more sandwich bags containing a total of 11.5 grams of cannabis. The police also found nine foils of heroin in defendant's bra, which contained approximately 2.7 grams that field-tested positive for heroin, along with 19 more foils of heroin located in the residence. The cumulative weight of all of the heroin in the foils was 5.12 grams. The state crime lab confirmed the substances recovered contained cannabis and heroin, respectively. In an interview, defendant had told the police she alone had purchased in Chicago all of the heroin in the residence and brought it back to Pontiac.
¶ 6 The April 16, 2009, presentence investigation report showed defendant had a criminal history of five misdemeanors and numerous traffic offenses. Defendant had been employed until June 2007 when she quit due to being " 'dope sick.' " She had "been off work, '[a]lmost 2 years and was living off her boyfriend,' who had been working two jobs." She described her financial situation as " '[c]omfortable' " since her boyfriend was working two jobs. Defendant was " '[m]aking $400/day sometimes more selling heroin' " and " '[h]ad 5 or 6 people buying off her.' " As to substance abuse, defendant acknowledged having a problem with heroin. Her heroin abuse caused her initially to leave work. She was " '[s]elling heroin to afford the habit.' " Additionally, defendant also indicated she had participated in a substance-abuse evaluation at the Institute of Personal Development. The institute's records note defendant appeared there on August 12, 2008, and stated she wanted off heroin. The institute recommended defendant participate in outpatient treatment and prescribed her Suboxone to help with the heroin addiction. Defendant never returned to the institute.
¶ 7 On April 22, 2009, Judge Travers held defendant's sentencing hearing. In addition to the presentence investigation report, the State also asked the trial court to take judicial notice of the transcript of defendant's December 5, 2008, bond hearing. After receiving the parties' evidence and hearing their arguments, the court found no mitigating factors and then stated, in pertinent part, the following:
"As far as factors in aggravation, I find that the defendant's conduct caused or threatened serious harm to others, that the defendant received compensation for committing the offense, and that a sentence is necessary to deter others from committing the same crimes.
I note from the pre-sentence investigation that the defendant was selling heroin in the community for a period of approximately two years, by her own admission. That she was making about $400 a day off the sale of heroin and regularly supplying five or six people. That is her--those are her words out of the presentence investigation, those are not the words of the State. Those are her words. She also indicated that she was doing this at a time when she was very comfortable financially because her boyfriend was working two jobs. So there was really no financial incentive here. *** I would also note that there was no suggestion at any time that she sought treatment or sought help in any form, despite the fact that she was comfortable financially and, arguably, had the wherewithal to ask someone for assistance, and that did not occur.
I also do note from the prior comments in court and also from pre-sentence, that this is something she willingly admits doing over an extended period of time.
The question then becomes what does the court do with individuals that sell heroin on a regular basis over an extended period of ...