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People v. Pina

Court of Appeals of Illinois, Fourth District

July 17, 2019

THE PEOPLE OF THE STATE OF ILLINOIS Plaintiff-Appellee,
v.
ESMERALDA PINA, Defendant-Appellant.

          Appeal from the Circuit Court of Livingston County No. 13CF233 Honorable Jennifer H. Bauknecht, Judge Presiding.

          Attorneys for Appellant: James E. Chadd, Patricia Mysza, and Bridget Geraghty, of State Appellate Defender's Office, of Chicago, for appellant.

          Attorneys for Appellee: Randy Yedinak, State's Attorney, of Pontiac (Patrick Delfino, David J. Robinson, and Luke McNeill, of State's Attorneys Ap- pellate Prosecutor's Office, of counsel), for the People.

          JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Turner and Cavanagh concurred in the judgment and opinion.

          OPINION

          HARRIS, JUSTICE

         ¶ 1 Defendant, Esmeralda Pina, pleaded guilty to unlawful delivery of a controlled substance (720 ILCS 570/401(d)(i) (West 2012)), and the trial court sentenced her to 30 months' probation. The court later revoked defendant's probation and resentenced her to five years in prison. Defendant appeals, arguing (1) the court imposed an excessive sentence and (2) her probation-revocation counsel was ineffective for not objecting to the State's failure to cap its sentencing recommendation at three years as it had agreed to do in connection with defendant's original plea agreement. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 In September 2013, the State charged defendant with three counts of unlawful delivery of a controlled substance (id. § 401(c)(2), (d)(i)). In January 2016, defendant pleaded guilty to one count of that offense in exchange for the State's dismissal of the two remaining counts and its agreement to cap its sentencing recommendation at three years' imprisonment. At the plea agreement hearing, the State presented its factual basis, asserting that, if the matter proceeded to trial, it would present evidence showing defendant sold a gram of cocaine to a confidential police informant during a controlled drug buy. Defendant's counsel asserted he had no objection to the State's factual basis but noted that the lab weight of the controlled substance at issue "was [0].70 grams." The trial court accepted defendant's guilty plea.

         ¶ 4 In March 2016, the trial court conducted defendant's sentencing hearing. Defendant's presentence investigation report was submitted to the court. It showed that defendant was 44 years old, and aside from a 1998 misdemeanor conviction for disorderly conduct, she had no criminal history. Regarding defendant's history of substance abuse, the report stated defendant initially reported that she first used cocaine in 2001 and last used on the date of her arrest for the underlying charges in September 2013. According to defendant, she had been using two times a week. When asked to submit to a drug test, defendant behaved suspiciously and failed to follow directions. Subsequently, the author of the report learned that defendant provided different information about her cocaine use during a February 2016 substance abuse evaluation. Specifically, during her evaluation, defendant reported using cocaine three to six times a day from 2011 to her arrest in 2013 and that she last used cocaine in October 2015. When confronted with the discrepancies in her reports, defendant asserted that she did not remember what answers she gave during her substance abuse evaluation but admitted using cocaine as recently as February 2016.

         ¶ 5 The State presented no further evidence and recommended that the trial court impose a three-year prison sentence. Defendant's evidence included letters from various individuals that described good character. Her counsel then asked that the court impose a sentence of probation. Ultimately, the court sentenced defendant to 30 months' probation and 180 days in jail. The court ordered that defendant would receive credit for 2 days served and that 164 days of her jail sentence would be stayed.

         ¶ 6 In September 2016, the State filed a petition to revoke defendant's probation. It alleged defendant violated her probation by either using or testing positive for cocaine on May 29, June 2, June 6, June 9, June 16, June 17, June 18, July 4, and September 30, 2016. In October 2016, the State filed a supplemental petition to revoke defendant's probation, alleging defendant violated her probation by testing positive for cocaine on five additional instances in October 2016, failing to report to her probation officer on October 17, 2016, and failing to comply with drug treatment recommendations. Following a hearing on the matter, the trial court ordered that defendant serve her previously stayed jail sentence of 164 days. While incarcerated, defendant was furloughed to participate in a residential substance abuse treatment program. She completed that program and was returned to the jail to complete her sentence. In December 2016, the State moved to withdraw its petitions to revoke defendant's probation. The court granted the motion, and defendant remained on probation.

         ¶ 7 In April 2017, the State filed a third petition to revoke. It alleged defendant violated the terms of her probation by failing to report to her probation officer on two occasions in April 2017, by using cocaine on four occasions in March and April 2017, and because her "whereabouts [were] unknown." In May 2017, defendant admitted the State's allegations, and the trial court set the matter for resentencing.

         ¶ 8 In June 2017, the State filed a fourth petition to revoke defendant's probation. It alleged defendant failed to report to the probation department on two occasions in May 2017 and that she used cocaine on or about May 20, May 29, and June 5, 2017. Following a hearing that same month, the trial court found the State proved the allegations in its fourth petition by a preponderance of the evidence.

         ¶ 9 In July 2017, the trial court conducted defendant's resentencing hearing. The court noted it had received a presentence investigation report filed on June 28, 2017. The report contained much of the same information as in defendant's first presentence investigation report. It also detailed what occurred in her case following her original sentencing and contained the following information regarding defendant's cocaine use and conduct while on probation:

"There has not been any significant period of time throughout [defendant's] Probation in which she was not using cocaine, with the exception of when she was in residential treatment or incarcerated. [Defendant] was sentenced to Probation on 03-29-16. She began using cocaine again on 05-07-16. She continued using cocaine until entering residential treatment in July of 2016. She was released from treatment on 08-16-16. She tested positive and was arrested on 09-30-2016. She bonded out of jail that same day and continued to use cocaine while out on bond until [the stay was lifted on her 164-day jail sentence] on 10-20-2016. She was released from jail on 01-28-2017. She used cocaine on 03-13-2017. She has used cocaine regularly since while *** the current [petitions to revoke were pending].
***
What is most concerning is *** defendant's increase of use in the most recent months while facing resentencing. *** It should be brought to the Court's attention *** the extent in which *** defendant is using. The following are a few tests in which to take note:
04-12-17-level of 4072 ng/mL
05-31-17-level of 4387 ...

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