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People v. Amans

Court of Appeals of Illinois, Second District

June 27, 2018

SHANE M. AMANS, Defendant-Appellant.

          Appeal from the Circuit Court of Boone County. No. 14-CF-0312, Honorable C. Robert Tobin III Judge, Presiding.

          BIRKETT JUSTICE delivered the judgment of the court. Presiding Justice Hudson and Justice Jorgensen concurred in the judgment.



         ¶ 1 Defendant Shane Amans pled guilty to possession with the intent to deliver more than 2000 but not more than 5000 grams of cannabis. 720 ILCS 550/5(f) (West 2014). Defendant was originally sentenced to a four-year term of imprisonment. After granting his motion to reconsider, the trial court resentenced defendant to a term of 48 months' probation. The State filed a motion to reconsider that order. The trial court granted the State's motion and resentenced defendant to four years' imprisonment. On appeal, defendant argues that (1) the trial court abused its discretion when it originally sentenced him to four years' imprisonment and (2) the trial court erred in reconsidering his sentence of probation on the State's motion and reimposing the original sentence. For the following reasons, we vacate the trial court's order resentencing defendant to four years' imprisonment, we reinstate its order sentencing defendant to 48 months' probation, and we remand this cause with directions.

         ¶ 2 I. BACKGROUND

         ¶ 3 At the sentencing hearing, Detective Patrick Imrie testified for the State in aggravation. Imrie had been a narcotics detective for nine years and he had extensive training and experience in cannabis investigations. He had dealt with cannabis hundreds of times and had seen cannabis in almost all of its varieties. He had taken several courses in identifying different types of plants and their strengths as a psychoactive drug.

         ¶ 4 Imrie was part of a team that executed a search warrant of defendant's home and he recorded a video of the home where the cannabis was found, in two "growrooms" in the basement. The basement was unfinished, with the exception of two dry-walled rooms. The growrooms were behind a large, white bookcase. The bookcase was on a hinge and, if closed, it would block access into the growrooms. Inside the growrooms were numerous black plastic tubs that were used for housing water and plants in "grow cubes." There were numerous fans and "electronic ballasts for converting electricity to make the electricity go into these specific types of grow lights from a standard electrical setup in [the] house." Imrie said that there were machines similar to air purifiers in the rooms. The machines, one of which was connected to electricity, would "basically suck in the smell of the cannabis" so that neighbors or anyone coming into the house could not smell it.

         ¶ 5 In the smaller of the growrooms, several grow lights were hung from the ceiling, over the plastic tubs. The grow lights were on when Imrie entered that room, and they were above 12 live cannabis plants that were in plastic tubs. In each room, the tubs were connected by PVC piping and water was being pumped into those tubs. Aeration systems were set up and there was a 55- gallon barrel full of water that was actively feeding the plants in each room. In both rooms, fans were blowing at the plants. Imrie explained that fans are used so the plants have to resist the wind, which typically makes a plant grow stronger.

         ¶ 6 Imrie said that the approximate street value of the cannabis found in defendant's house was around $300 per ounce or $10 per gram. At that price, the cannabis found would be worth approximately $39, 000. Imrie said that the plants were very large, around two to three feet high and a couple of feet around. However, the plants were not ready to be harvested yet.

         ¶ 7 Imrie opined that the cannabis found in defendant's house was of high quality. The buds on the plants were mature and they had a lot of crystallized THC on the outside of them. People buy cannabis for the psychoactive properties of THC. According to Imrie, the buds on these particular plants seemed to have a high quality of THC based upon the resin that he could see on the buds.

         ¶ 8 Imrie then identified several photographs that were taken at the scene. He described the grow cubes that were found in the house. He explained that grow cubes are used instead of dirt because they give the roots of the plants room to grow. Imrie also identified nutrients that were used to grow cannabis plants along with bags of processed cannabis and a digital scale that were found in an upstairs room in the house. He also identified three bags of cannabis that were found in a freezer in the home. Finally, he identified a photograph of a humidistat, a machine that measures humidity, that was used in the growrooms.

         ¶ 9 On cross-examination, Imrie said that he was not sure if the bookcase that hid the grow rooms was on a hinge. When asked whether it was much more common for cannabis to sell for $6 per gram, rather than the $10 valuation Imrie had assigned to the cannabis on direct examination, Imrie said that there were huge fluctuations in the price of cannabis. As for the cannabis found in the bags upstairs, Imrie said that he did not go through and inspect all of it. ¶ 10 Imrie said that defendant was very cooperative when the police were executing the search warrant. In fact, one of the first things defendant said to the police after they told him that they had a search warrant was, "[y]ou won't need it. It's all downstairs."

         ¶ 11 On redirect examination, Imrie said that he had purchased cannabis for as much as $500 per ounce and as little as $125 per ounce. Based upon his training and experience, he reiterated that he considered the cannabis in defendant's home to be high quality. Finally, Imrie said that the amount of cannabis indicated that it was not for personal use.

         ¶ 12 The defense then called Sam Maurici as a character witness. Maurici testified that he and defendant had been friends for the last 20 years. They met in high school and played football together. Maurici had contact with defendant around every two weeks. Maurici's family and defendant's family took vacations together and their children played together. Defendant was a very involved father who watched his three-year-old daughter almost every day when defendant's wife was at work. If the trial court were to incarcerate defendant, Maurici believed that it would cause a hardship to defendant's family.

         ¶ 13 Maurici had spent time with defendant over the last two years since his arrest for the instant offense. He did not believe that defendant would be likely to commit additional crimes in the future, but he also did not know that defendant was committing this crime. If he had, he would have persuaded defendant to think differently about his actions and take a different course. Defendant had not expressed his feelings to Maurici about the instant offense, because defendant is a private person. Based upon his relationship with defendant and his knowledge of defendant's character, Maurici believed that, if the trial court placed defendant on probation, defendant would likely comply with any conditions placed on him.

         ¶ 14 The defense then called Ryan Curry as a character witness. Curry testified that he had known defendant for 20 years and that they met in high school. He spoke to defendant every day. He did not know that defendant had a grow operation in his basement. If he had known, he would have persuaded defendant to make other decisions and explained to defendant the ramifications of his actions. Curry said that he did not believe that defendant was likely to commit another crime in the future. Defendant is a great father and husband and Curry would not trust anyone more than he did defendant. Defendant told Curry that if he were incarcerated it would not only affect him financially, such as by causing him to lose his house, but it would affect his family as well. Defendant had expressed extreme remorse to Curry over committing this crime. He believed that defendant would comply with all conditions placed upon him if the trial court were to sentence him to probation. Curry had been wounded in Iraq in 2006 was now medically retired. Defendant is one of Curry's closest friends and Curry could completely rely on defendant if he ever needed anything.

         ¶ 15 Defendant then spoke in allocution. He said that a year prior to his arrest his family had a lot of bills. He and his wife were having a lot of financial difficulties and he thought that marijuana could get him out of his financial problems. Instead, it only caused his family hardship and worry. He intended to do it only long enough to get caught up with his bills, and at the time he thought that it was his only option. He now realized what a mistake he had made.

         ¶ 16 Defendant knew that he had to be punished for his decisions and he would accept any punishment that the court would impose. However, if he were sentenced to incarceration, his wife and daughter would struggle financially. Their childcare costs would go up and they would not have any means to pay all of their bills. They would almost certainly lose their home. His previous job allowed him to be flexible with his hours so that he could be with his daughter most of the day while his wife was gone 10 hours a day and traveled for work about two months of the year. He and his wife do not have parents who live close enough to help out, and he was unsure what it would do to his daughter emotionally not to see him every day. Defendant said that he could not believe what an idiot he was to put his family in this position. He gave the trial court his word that it would never see him in the courtroom again, and he asked the trial court not to make his family pay for his mistakes.

         ¶ 17 The State then argued that a sentence of probation would deprecate the seriousness of the offense and be inconsistent with the ends of justice. It said that it was clear that a lot of thought and planning had been put into this offense and that a sentence of imprisonment would deter other people who wanted to start up this type of operation and make fast money. The State said that probation was an option but that the legislature also set a prison range of 4 to 15 years. Therefore, the State requested that defendant be sentenced to a term of four years' imprisonment.

         ¶ 18 Defense counsel argued that there was a statutory presumption of probation in a case like this. As for mitigation, counsel argued that several statutory mitigating factors applied: (1) defendant's conduct did not cause or threaten serious harm to another, (2) defendant had no history of prior delinquency or criminal activity and had led a law-abiding life for a substantial period of time before the commission of the instant offense, (3) defendant was unlikely to commit another crime, (4) defendant was likely to comply with the conditions of a probation period, and (5) a sentence of imprisonment would cause excessive hardship to his dependents. After further argument, counsel requested that defendant be sentenced to a term of probation.

         ¶ 19 The court said that it had heard some evidence from two of defendant's close friends about defendant's good character. However, it was not sure whether those men knew defendant as well as they thought they did, because defendant was able to hide the grow operation from them. With regard to excessive hardship to his dependents, the court said that it did not doubt that if defendant were sentenced to imprisonment he would likely lose the family home, his wife would incur a huge financial burden, and his incarceration would be an emotional burden on his whole family. However, it did not think that defendant's wife "got to play innocent bystander." It could reasonably infer that she knew that there was a grow operation going on in her basement. The court then noted that defendant had pleaded guilty, thereby avoiding the cost to the State of a trial, and that he had taken responsibility for his conduct and cooperated fully with law enforcement.

         ¶ 20 The court then discussed whether it believed that a sentence of imprisonment was necessary to deter others from committing the same crime. It noted that, although it could not compare defendant's grow operation to any others, it found defendant's operation to be extensive and sophisticated. The court said that, with the decriminalization of cannabis for personal use, the State of Illinois had created a new market of people who might not go to housing projects in Rockford, for example, to purchase cannabis, but would go to a beautiful subdivision like the one defendant lived in, knock on the door, purchase the drug, and go home. It said that this type of new market was ripe for a markup, since people would pay more if they did not have to go to a seedy neighborhood to buy cannabis. ...

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