Court of Appeals of Illinois, First District, First Division
Appeal from the Circuit Court of Cook County. No. 11 CR 3038. Honorable Lawrence Edward Flood, Judge Presiding.
For APPELLANT: Michael J. Pelletier, State Appellate Defender, Office of the State Appellate Defender, Chicago, IL, (Alan D. Goldberg and Whitney B. Price, of counsel).
For APPELLEE: Anita Alvarez, State's Attorney, County of Cook, Chicago, IL, (Alan J. Spellberg, Mary P. Needham and Jocelyn M. Schieve, of counsel).
JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Cunningham concurred in the judgment and opinion.
[¶1] The circuit court found defendant, James Evans, guilty after a bench trial of possession of cannabis and sentenced him to 12 months' probation. 720 ILCS 550/4(d) (West 2010). Defendant raises three issues for our review: (1) whether the State presented sufficient evidence to sustain his conviction for possession of cannabis; (2) whether defendant received the effective assistance of trial counsel where his counsel did not file a motion to suppress the cannabis recovered during his arrest; and (3) whether the circuit court failed to apply a credit for the time he served in presentence custody against the various fines imposed on him.
[¶2] We hold the State presented sufficient evidence to sustain his conviction for possession of cannabis. We decline to review defendant's claim of ineffective assistance of counsel based on the record before us, but note that defendant may still pursue his claim under the Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-7 (West 2010)). The State concedes, and we agree, that defendant is entitled to a $5 credit per day for the time he spent in presentence custody. 725 ILCS 5/110-14 (West 2010). Accordingly, we reduce the total monetary judgment against defendant by $10 based on the two days defendant spent in presentence custody.
[¶4] The circuit court sentenced defendant on February 11, 2013. Defendant timely filed his notice of appeal on March 6, 2013. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S.Ct. Rs. 603, 606 (eff. Feb. 6, 2013).
[¶6] The State charged defendant by information with one count of possession of
cannabis between 30 and 500 grams in connection with the events that led to defendant's arrest on February 4, 2011. 720 ILCS 550/4(d) (West 2010). On that date, the Chicago police department executed a search warrant at 12534 South Bishop Street, in Chicago, Illinois.
[¶7] Officer David Guzman of the Chicago police department testified he was part of a team of approximately eight other officers executing a search warrant at 12534 South Bishop Street. He described the dwelling as a " ranch *** single family residence on a slab." He could not, however, recall the name of the person who was the target of the search warrant. Officer Guzman and the team of officers gained entry into the house through the front door, which was unlocked. Upon entering the home, the officers found themselves in the living room. Officer Guzman announced both his office and their search warrant. He wore civilian clothes underneath a police department raid vest. His star vestibule was visible on his belt. The other officers present were dressed in a similar manner. He instructed the occupants of the home to stay where they were so he could see their hands and to not make any movements. He estimated that approximately two adult males, two adult females, and two young children were present at the house.
[¶8] Officer Guzman explained how he first encountered defendant, and defendant's actions, in the following exchange:
" Q. What did defendant do?
A. The defendant was observed in the rear bedroom of the location. He was instructed to show his hands and to step towards myself.
Q. Did he do that?
A. Yes. He did that after throwing an item and closing the door to the location.
Q. Did you see what the item was?
A. Yes. The item was a tan plastic bag, such as a Jewel[ bag.
Q. So is it fair to say that the defendant did not remain where he was as you ordered?
Q. So what did you do? Where did you go?
A. I immediately detained [defendant].
Q. And what did you ...