Appeal from Circuit Court of Pike County No. 09CF31 Honorable Michael R. Roseberry, Judge Presiding.
The opinion of the court was delivered by: Justice Pope
JUSTICE POPE delivered the judgment of the court, with opinion. Justices Steigmann and Appleton concurred in the judgment and opinion.
¶ 1 In April 2009, pursuant to a fully negotiated agreement, defendant, Mark A. Burse, was sentenced to 24 months' probation for attempt (delivery of a controlled substance) (720 ILCS 5/8-4(a) (West 2008); 720 ILCS 570/401(d) (West 2008)), following a stipulation to the evidence and the sufficiency thereof to convict. In April 2010, defendant admitted violating his probation and the trial court subsequently resentenced him to 30 months' probation and 60 days' periodic imprisonment. Following a September 2010 hearing, the court found defendant violated his probation a second time and resentenced him to 30 months' probation and 76 days' periodic imprisonment. Shortly thereafter, the court granted defendant's motion to modify sentence and converted defendant's periodic imprisonment to 150 days' straight time with credit for 8 days served.
¶ 2 In November 2010, the trial court denied defendant's amended motion to reconsider sentence. Defendant filed a notice of appeal. In January 2011, this court allowed defendant's motion for leave to file a late notice of appeal to correct the nature of the appeal.
¶ 3 On appeal, defendant asserts the offense of which he was convicted (attempt (delivery of a controlled substance)) is void because the general attempt statute (720 ILCS 5/8-4(a) (West 2008)) has been preempted by sections 401(d) and 102(h) of the Illinois Controlled Substances Act (Act) (720 ILCS 570/401, 102(h) (West 2008)). We affirm.
¶ 5 As a result of his actions on or about February 23, 2009, the State charged defendant by information with (1) unlawful delivery of a controlled substance (between 1 and 15 grams of cocaine) (count I) (charged February 2, 2009) (720 ILCS 570/401(c)(2) (West 2008));
(2) criminal drug conspiracy (count II) (charged March 11, 2009) (720 ILCS 570/405.1(a) (West 2008)); and (3) unlawful delivery of a controlled substance (less than one gram of cocaine) (count III) (charged March 24, 2009) (720 ILCS 570/401(d) (West 2008)). On April 7, 2009, the State dismissed count I after lab results confirmed the amount of cocaine was less than one gram. Because of defendant's prior criminal history, he was not eligible for a sentence to probation on count II or III.
¶ 6 On April 21, 2009, the State informed the trial court the parties had reached a plea agreement. Pursuant to the agreement, the State filed a fourth charge alleging defendant "committed the offense of attempt (delivery of a controlled substance), in that said defendant, with the intent to commit the offense of [d]elivery of a [c]ontrolled [s]ubstance, in violation of 720 ILCS 570/401(d), performed a substantial step toward the commission of that offense in that he drove a [vehicle] containing *** a controlled substance to the residence of confidential source 'Michael Stewart' *** in violation of 720 ILCS 5/8-4(a)." Attempt (delivery of a controlled substance) is a Class 3 felony. 720 ILCS 5/8-4(c)(4) (West 2008).
¶ 7 Defendant stipulated to the following facts, acknowledging they were sufficient to find him guilty of attempt (delivery of a controlled substance) (count IV). On February 23, 2010, police engaged the services of a confidential source, "Michael Stewart," who had indicated defendant's cousin, Justin Burse, sold him cocaine on approximately five prior occasions. After receiving a call from Stewart informing them Justin would be delivering a small amount of cocaine, the police conducted a search of Stewart's person and residence, finding no illegal contraband or money. The police gave Stewart $100 of prerecorded marked money to use in the transaction and a video camera was installed in the living room. From nearby, police watched a Chevrolet Trailblazer containing defendant and Justin pull up to Stewart's house. Sergeant Jeff Windmiller, one of the officers conducting surveillance, recognized the Trailblazer as defendant's, knew defendant to be the usual operator of the vehicle, and had some intelligence defendant had previously been involved with the distribution of cocaine. Defendant remained in the Trailblazer while Justin exited and went into the residence, returning approximately two minutes later. Police then entered the residence and seized approximately one gram of crack cocaine. A traffic stop was immediately effected on defendant's vehicle. Upon a search incident to arrest, police recovered a small amount of cannabis and $1,165 from defendant's person, $100 of which was the marked money police had given Stewart.
¶ 8 On the stipulation of this evidence, the trial court found defendant guilty of attempt (delivery of a controlled substance). Pursuant to the agreement, the State dismissed counts II and III, and the court sentenced defendant to 24 months' probation on count IV. Defendant took no appeal.
¶ 9 In February 2010, the State filed a petition to revoke defendant's probation. In April 2010, defendant admitted the allegations in the petition and in June 2010, the trial court resentenced defendant to 30 month's probation and 60 days' periodic imprisonment. Defendant took no appeal.
¶ 10 In August and September 2010, the State filed a petition to revoke probation and an amended petition, respectively. Following a September 2010 hearing, the court found defendant had violated probation a second time, and in October 2010, resentenced defendant to 30 months' probation and 76 days' periodic imprisonment. Shortly thereafter, the court granted defendant's motion to modify his sentence from periodic imprisonment to straight time, modifying defendant's sentence to 150 days' straight time with credit for 8 days served. The court denied ...