People v. Blakney

THIRD DIVISION
AUGUST 8, 2007
1-04-3669

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 04 CR 14264
)
DONTELL BLAKNEY, ) Honorable
) John P. Kirby,
Defendant-Appellant. ) Judge Presiding.

JUSTICE CUNNINGHAM delivered the opinion of the court:

Following a bench trial, defendant Dontell Blakney was convicted of possession of a

controlled substance (cocaine) with intent to deliver within 1000 feet of a public housing agency,

possession of a controlled substance (cocaine) with intent to deliver and possession of cannabis with

intent to deliver and sentenced to seven years’ imprisonment. Defendant appeals, contending that (1)

his conviction should be reduced to simple possession because the evidence at trial was insufficient

to prove beyond a reasonable doubt that he intended to deliver the controlled substance, (2) his

conviction should be reversed and remanded because the record does not reflect that he knowingly

and intelligently waived his right of confrontation before his attorney entered into a stipulation

regarding the chain of custody and the chemical composition of the recovered substances, (3) his

conviction for possession of cocaine with intent to deliver should be vacated because the trial court

merged that conviction into his conviction for possession of cocaine with intent to deliver within 1000

feet of a public housing agency and his mittimus should be amended to reflect this correction, (4) his

mittimus should be amended to reflect the correct names of the offenses of which he was convicted,

(5) his mittimus should be amended to reflect the correct time served in presentence custody, (6) he
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is entitled to a $5 credit against the $3000 “fine” assessed to him for each day he was in custody prior

to sentencing, (7) his due process rights were violated when the trial court assessed a $5 fee for the

Spinal Cord Injury Paralysis Cure Research Trust Fund (Spinal Cord Fund), and (8) his penalty of

$20 for the Violent Crime Victims Assistance Fund should be vacated because the fee was

erroneously assessed against him.

In People v. Blakney, 366 Ill. App. 3d 925, 853 N.E.2d 885 (2006) we affirmed defendant’s

convictions and sentence, vacated a $5 Trauma Fund fee and a $20 Violent Crime Victims Assistance

fee, amended the costs and fees order to reflect a credit of $1020, and ordered the clerk of the circuit

court to amend the mittimus to reflect that defendant should receive 204 days’ credit for his pretrial

incarceration and to indicate that he had been convicted of possession of a controlled substance with

intent to deliver within 1000 feet of a public housing agency and possession of cannabis with intent

to deliver. Pursuant to a supervisory order by our supreme court we have vacated our original

opinion and now reconsider our judgment in light of People v. Jones, 223 Ill. 2d 589, 861 N.E.2d

967.

Defendant was charged by indictment with: (1) possession of a controlled substance with

intent to deliver within 1000 fee of a school (720 ILCS 570/401(c)(2), 407(b)(1) (West 2004)); (2)

possession of a controlled substance with intent to deliver within 1000 feet of a public housing agency

(720 ILCS 570/401(c)(2), 407(b)(1) (West 2004)); (3) possession of a controlled substance with

intent to deliver (720 ILCS 570/401(c)(2) (West 2004)); and (4) possession of cannabis with intent

to deliver (720 ILCS 550/5(f) (West 2004)).

Chicago Police Officer Anthony Driver was the sole prosecution witness at defendant’s trial.

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Driver testified that on May 14, 2004, at approximately 6:50 p.m., he and other police officers were

executing a search warrant at 747 East 130th Place in Chicago. After Driver announced his office

and demanded entry, defendant shut the screen door. Upon gaining entry, Driver saw defendant

halfway in the closet of the first floor. The police detained defendant and a woman, who was later

arrested and charged separately, and began to search the premises. In the closet where defendant was

standing, Driver found one plastic bag containing 35 smaller plastic bags of a white rock-like

substance suspected to be cocaine and three large “freezer” bags of suspect cannabis in the sleeve of

a male jacket. He also found another plastic bag containing approximately 100 smaller empty plastic

bags. In addition, Driver found 12 more plastic bags containing suspect cannabis from a male jacket

sleeve in a bedroom on the second floor. Elsewhere in the apartment, Driver recovered an electronic

scale. Finally, the police recovered a letter addressed to defendant at 747 East 130th Place, the

address of the apartment. At the police station, Driver sealed the items in a heat sealed bag, labeled

it with a specific inventory number and deposited it into the safe.

The parties then stipulated to the chain of custody and the chemical composition of the

recovered contraband. They stipulated that a forensic chemist would testify that she received the

inventoried items in a heat sealed condition labeled with a specific inventory number from the Chicago

Police Department and that the envelope contained 15 items of suspect cannabis and 35 items of

suspect cocaine. The parties stipulated that 8 of the 15 items of suspect cocaine tested positive for

the presence of 1.1 grams of cocaine and that the total estimated weight of the 35 items was 4.8

grams.

Following the stipulations, the State rested. After defendant’s motion for a directed verdict

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was denied, he rested without presenting any evidence. The trial court found defendant guilty on

counts II (possession of a controlled substance with intent to deliver within 1000 feet of a public

housing agency), III (possession of a controlled substance with intent to deliver) and IV (possession

of cannabis with intent to deliver).

At sentencing, the trial court merged count III into count II. Defendant filed a motion for a

new trial, which was denied. The trial court sentenced defendant as a Class X offender to seven

years’ imprisonment and gave him credit for 199 days for time served prior to sentencing. The trial

court also ordered defendant to pay a $3000 Controlled Substance Assessment, $20 to the Violent

Crime Victim Assistance Fund, $100 tot he Trauma Fund and $5 to the Spinal Cord Fund. Defendant

now appeals.

Defendant first contends that this court should reverse his conviction and remand for

resentencing on the lesser-included offense of possession of a controlled substance because the State

failed to prove that he intended to deliver the 4.8 grams of cocaine he possessed.

When a defendant challenges the sufficiency of the evidence, the relevant question for the

reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could find the defendant guilty beyond a reasonable doubt. People v. Tenney,

205 Ill. 2d 411, 427, 793 N.E.2d 571, 581 (2002). In order to convict a defendant of possession of

a controlled substance with intent to deliver, the State must prove the defendant (1) had knowledge

of the presence of the narcotics, (2) had possession or control of the narcotics and (3) intended to

deliver the narcotics. 720 ILCS 570/401 (West 2004); People v. Robinson, 167 Ill. 2d 397, 407, 657

N.E.2d 1020, 1026 (1995).

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The elements of intent to deliver are generally proved by circumstantial evidence. People v.

Beverly, 278 Ill. App. 3d 794, 799, 663 N.E.2d 1061, 1065 (1996). Accordingly, “this issue involves

the examination of the nature and quantity of circumstantial evidence necessary to support an

inference of intent to deliver.” Robinson, 167 Ill. 2d at 408, 657 N.E.2d at 1026. In Robinson, our

supreme court noted that numerous factors have been considered by Illinois courts as probative of

a defendant’s intent to deliver in controlled substance prosecutions. Robinson, 167 Ill. 2d at 408, 657

N.E.2d at 1026. These factors include whether the quantity of the controlled substance in a

defendant’s possession is too large to be viewed as being for personal consumption, the high purity

of the drug confiscated, the possession of weapons, the possession of a large quantity of cash, the

possession of police scanners, beepers or cellular telephones, the possession of drug paraphernalia

and the manner in which the substance is packaged. Robinson, 167 Ill. 2d at 408, 657 N.E.2d at

1026-27. Robinson clearly intended to merely provide examples of factors and to allow courts to

utilize other factors. Robinson, 167 Ill. 2d at 408-415, 657 N.E.2d at 1026-1030; People v. Bush,

214 Ill. 2d 318, 327, 827 N.E.2d 455, 461 (2005).

Defendant relies on several cases, including People v. Crenshaw, 202 Ill. App. 3d 432, 559

N.E.2d 1051 (1990); People v. Thomas, 261 Ill. App. 3d 366, 633 N.E.2d 839 (1994); and People

v. Hodge, 250 Ill. App. 3d 736, 620 N.E.2d 651 (1993), in support of his contention that the

evidence in this case is insufficient to sustain his conviction for possession of a controlled substance

with intent to deliver. In Crenshaw, the court found that the fact the defendant possessed 22 small

packets of cocaine, totaling 11.2 grams, was not sufficient in itself to establish an intent to deliver.

Crenshaw, 202 Ill. App. 3d at 436, 559 N.E.2d at 1053. In Thomas, the court held the evidence was

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insufficient to prove the intent to deliver where the defendant was found in possession of a total of

5.5 grams of cocaine divided into 27 individual packets and had a loaded shotgun. Thomas, 261 Ill.

App. 3d at 370-71, 633 N.E.2d at 842. In Hodge, the court reversed the defendant’s conviction and

found that possession of 4.07 grams of cocaine, $900 in cash and a handgun was not sufficient to

establish a conviction for possession with intent to deliver. Hodge, 250 Ill. App. 3d at 747, 620

N.E.2d at 660. But these cases have been seriously questioned and probably repudiated by our

supreme court. Robinson, 167 Ill. 2d at 412, 657 N.E.2d at 1028; see Beverly, 278 Ill. App. 3d at

800-01, 663 N.E.2d at 1066.

“[W]hen a defendant is charged with possession of a controlled substance, in appropriate

circumstances, packaging alone might be sufficient evidence of intent to deliver.” (Emphasis in

original.) Robinson, 167 Ill. 2d at 414, 657 N.E.2d at 1029. However, when only a small amount

of drugs is found, in order to establish the intent to deliver, the minimum evidence a reviewing court

needs to affirm a conviction is that the drugs were packaged for sale, and at least one additional factor

tending to show intent to deliver. Beverly, 278 Ill. App. 3d at 802, 663 N.E.2d at 1067.

In this case, the evidence presented at trial met much more than the minimum amount of

evidence necessary to affirm defendant’s conviction. The evidence established that defendant

possessed a total of 4.8 grams of cocaine packaged in 35 separate small plastic bags and a total of

2,506.3 grams of cannabis contained in 15 plastic bags. In addition, defendant possessed an

electronic scale and approximately 100 additional one-inch empty plastic bags.

Defendant, relying on People v. Delgado, 256 Ill. App. 3d 119, 123, 628 N.E.2d 727, 730

(1993), asserts that the presence of a large amount of cannabis is not dispositive of an intent to deliver

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a smaller amount of cocaine. Although we do not agree with defendant’s broad interpretation of

Delgado, even assuming defendant’s assertion is true, we find that there was sufficient evidence in

this case as the police also found approximately 100 empty plastic bags and an electronic scale, which

is consistent with drug packaging and distribution.

Defendant next contends that his conviction should be reversed and his case remanded for a

new trial because the record is devoid of any indication that he knowingly and intelligently waived

his constitutional right of confrontation before his attorney entered into a stipulation regarding the

chain of custody and the chemical composition of the recovered substances. Defendant’s exact

contention has recently been addressed and rejected by our supreme court in People v. Phillips, 217

Ill. 2d 270, 280-287, 840 N.E.2d 1194, 1200-1204 (2005). Therefore, no further discussion of this

issue is necessary.

Defendant next raises several issues regarding his mittimus. Defendant argues and the State

concedes that the mittimus must be amended to reflect the proper judgment of the trial court and the

correct amount of time defendant served prior to sentencing. The mittimus reflects that defendant

was convicted of counts II, III and IV. At sentencing, the trial court merged count III, the lesser-

included offense, into count II. Thus, the mittimus must be amended to reflect this merger. In

addition, defendant was in custody from the date of his arrest on May 14, 2004, until his sentencing

on December 3, 2004. Therefore, the parties agree he is entitled to 203 days of credit against his

sentence instead of 199 days pursuant to section 5-8-7(b) of the Unified Code of Corrections (the

Unified Code) (730 ILCS 5/5-8-7(b) (West 2004)).

Defendant also argues that the mittimus must be amended to reflect the proper title of the

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offenses of which he was convicted. The mittimus reflects that defendant was convicted of

“MFG/DEL COCAINE/SCH/PUB H,” “MFG/DEL 01-15 CR COCAINE,” and “MFG/DEL

CANNABIS/2000<500.” As indicated above, defendant was convicted of possession of a controlled

substance with intent to deliver within 1000 feet of a public housing agency (720 ILCS 570/401(c)(2)

(West 2004)) and possession of cannabis with intent to deliver (720 ILCS 550/401(f) (West 2004)).

He was not convicted of manufacturing the substances. Pursuant to Supreme Court Rule 615(b)(1)

(134 Ill. 2d R. 615(b)(1)), we direct the clerk of the circuit court to amend the mittimus to reflect the

proper judgment of the trial court, the proper names of the convictions and the correct number of

days for which defendant is entitled to credit. People v. Butler, 354 Ill. App. 3d 57, 69, 819 N.E.2d

1133, 1143 (2004).

Defendant also contends that he is entitled to a $5 per day credit for the 203 days he spent

in presentence incarceration, which he calculates to be $1015, against the $3000 Controlled

Substance Assessment ordered by the trial court pursuant to section 411.2 of the Controlled

Substances Act (the Act) (720 ILCS 570/411.2 (West 2004)), in accordance with section 110-14 of

the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/110-14 (West 2004)). Section 110-

14 provides in relevant part:

“(a) Any person incarcerated on a bailable offense who does not

supply bail and against whom a fine is levied on conviction of such

offense shall be allowed a credit of $5 for each day so incarcerated

upon application of the defendant.” 725 ILCS 5/110-14 (West 2004).

The State argues that defendant is not entitled to this credit because the incarceration credit

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only applies to “fines,” and not “assessments.” But our supreme court has recently held that the

incarceration credit is applicable towards the Controlled Substance Assessment. People v. Jones, 223

Ill. 2d at 587-592, 861 N.E.2d at 871-898. This opinion is in accord with previous decisions of this

court. See the discussion in People v. Fort, No. 1-04-1937, slip op. at 7-10 (Ill. App. May 29, 2007).

Thus, defendant is entitled to a $5 per day credit against his $3000 Controlled Substance Assessment.

The State argues that even if the Controlled Substance Assessment is a “fine,” defendant is

entitled to the $5 credit for only 60 days. The State bases its contention on the fact that as of June

10, 2003, defendant was serving a three-year mandatory supervised release term (MSR) following

his release from prison. See 730 ILCS 5/5-8-1(d)(1) (West 2004). According to the State, on July

12, 2004, following defendant’s May 14 arrest in the current case, his MSR was revoked and he was

returned tot he Illinois Department of Corrections (the Department). The State argues that because

defendant was serving time for violating his MSR as of July 12, he was no longer serving time on a

“bailable offense.” We disagree.

First, the record does not support the State’s contention. Although defendant’s presentence

investigative report indicates that he had previously been convicted of the Class X offense of armed

robbery on January 18, 2002, that he was paroled from prison on June 10, 2003, and that he was

returned to the Department on July 12, 2004, we find the record does not clearly support the State’s

argument that defendant was returned to the Department “to serve the remainder of his [MSR].”

Second, even if the record does in fact support the State’s contention, it lacks merit. We find

People v. Spencer, 347 Ill. App. 3d 483, 807 N.E.2d 1228 (2004), a decision from the Fifth District

and its application of People v. Robinson, 172 Ill. 2d 452, 667 N.E.2d 1305 (1996), a decision from

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our supreme court, instructive on this issue.

In Spencer, as in this case, the issue was the amount of monetary credit to which the

defendant was entitled under section 110-14 of the Code. The defendant had been arrested on several

initial charges, posted bond and was released. He then committed a second offense while out on

bond. He was eventually returned to custody and the court increased his bond on the initial offenses.

He thereafter pled guilty to the second offense and immediately began serving a one-year sentence.

He was then tried and convicted of the initial offenses. On appeal, the parties disputed the number

of days to which the $5 credit of section 110-14 applied.

The court in Spencer looked to Robinson, a case from our supreme court addressing

sentencing credit under section 5-8-7(b) of the Unified Code, for guidance. In Robinson, the court

held that a defendant is entitled to sentencing credit under section 5-8-7(b) when he or she is

simultaneously in custody on two charges. In that case, the defendant, who had previously been

arrested for murder and posted bail, committed the offense of armed robbery. When the trial court

thereafter increased his bond on the murder charge, the defendant was taken into custody. He then

pled guilty to the armed robbery and began serving his sentence on that offense. When he completed

his armed robbery sentence, he asked the trial court to reduce the bond on his murder charge. The

trial court agreed and the defendant was released. The defendant was convicted of murder and

concealment of a homicidal death almost two years later. On appeal, the parties disputed the amount

of section 5-8-7(b) credit to which the defendant was entitled. The reviewing court held that the

defendant was entitled to credit for the entire time he was in custody from when his bond was

increased to when he was released after completing his sentence on the subsequent armed robbery

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conviction. Robinson, 172 Ill. 2d at 463, 667 N.E.2d at 1310. The court reasoned that even if the

defendant had not been incarcerated on the armed robbery offense, he would have remained in

custody on the murder charge because of his failure to post the increased bond imposed on that

offense. Robinson, 172 Ill. 2d at 459, 667 N.E.2d at 1308.

The Spencer court, noting that the defendant in Robinson was entitled to section 5-8-7(b)

credit even for the time he was serving a sentence on a subsequent conviction, held that although a

portion of the disputed time was spent serving a one-year sentence on the second offense, the

defendant also remained in custody on the initial offenses. The court reasoned that as in Robinson,

the defendant would have remained in custody on the initial offenses even if he had not been serving

the sentence on the second offense due to his failure to post bond. Spencer, 347 Ill. App. 3d at 490,

807 N.E.2d at 1234. The court also found that the initial offenses did not cease to be bailable until

he was sentenced for them. Spencer, 347 Ill. App. 3d at 491, 807 N.E.2d at 1234.

We acknowledge that this case is somewhat different than Robinson and Spencer. For

example, rather than involving a defendant who is released from custody on bond who commits a

subsequent offense, this case involves a defendant being returned to prison following the revocation

of a previously imposed MSR term. We find this distinction immaterial to Spencer’s conclusion that

the offenses for which the defendant was initially arrested did not cease to be bailable until he was

sentenced on those offenses. Therefore, in this case, we conclude that the offenses for which

defendant was arrested on May 14, 2004, did not cease to be bailable until he was sentenced on

December 3, 2004, regardless of on what basis he was being held in the interim.

Spencer, in relying on Robinson, focused on whether the defendant was entitled to section

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5-8-7(b) credit. In this case, there is no question that defendant was “in custody” for over 200 days

before he was sentenced. As previously addressed, the State has even conceded as much. Both

Robinson and Spencer make clear that when a defendant is simultaneously being held on two

offenses, even if during that time he or she is serving a sentence on a conviction, he or she is entitled

to credit for that time on the first offense. Following those cases, we find that defendant is entitled

to a $5 per day credit for the entire time he was held on the current offenses, even if for part of that

time he was serving a MSR term imposed due to an unrelated offense.

We therefore reject the State’s reliance on People v. Lowry, 231 Ill. App. 3d 788, 596 N.E.2d

1218 (1992). In that case, the court refused to accept the defendant’s contention that he was entitled

to a $5 credit for each day he was held in custody, including the time he was serving time for a

previous violation of bail bond conviction, because that conviction was “totally unrelated to the case

at hand.” Lowry, 231 Ill. App. 3d at 797, 596 N.E.2d at 1223. Lowry, however, was decided prior

to our supreme court’s decision in Robinson, and prior to Spencer.

We conclude that defendant is entitled to a $5 per day credit for the entire time he was in

custody from his arrest on May 14 until his sentencing on December 3. As addressed above, we

calculate this to be 203 days. Defendant is therefore entitled to a credit of $1015 against his $3000

Controlled Substance Assessment.

Defendant contends that his due process rights were violated when he was ordered to pay $5

to the Spinal Cord Fund (730 ILCS 5/5-9-1.1(c) (West 2004)). Defendant contends that the fee does

not bear a rational relationship to the crime of possession of a controlled substance with intent to

deliver. Our supreme court has recently determined that no such rational relationship test applies to

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this charge, which is in the nature of a fine. People v. Jones, 223 Ill. 2d 589, 595-606, 861 N.E.2d

967, 983-989. Accordingly, we affirm the order that defendant pay a $5 fee to the Spinal Cord Fund.

Finally, defendant also contends that the trial court improperly imposed a $20 fine for the

Violent Crime Victims Assistance Fund because it already imposed two other “fines”: a $3000

Controlled Substance assessment and a $100 Trauma Fund Assessment. The State responds that

defendant was properly ordered to pay $20 to the Violent Crime Victims Assistance Fund because

the Trauma Fund and the Controlled Substance Assessment are “fees,” not “fines.”

The Violent Crime Victims Act provides in relevant part that:

“When any person is convicted in Illinois *** of an offense listed

below, *** and no other fine is imposed, the following penalty shall

be collected by the Circuit Court Clerk: (1) $25, for any crime of

violence as defined in subsection (c) of Section 2 of the Crime Victims

Compensation Act; and (2) $20 for any other felony or misdemeanor,

excluding any conservation offense.” (Emphasis added.) 725 ILCS

240/10(c)(1), (2) (West 2004).

The court in Jones also held that the Trauma Fund charge is a fine and subject to setoff.

Jones, 223 Ill. 2d at 592-595, 861 N.E.2d at 981-983. In light our finding above that the Controlled

Substance Assessment is also a type of “fine,” we find that the trial court erroneously ordered

defendant to pay $20 to the Violent Crime Victims Assistance Fund and we reverse that order.

For the foregoing reasons, we affirm defendant’s convictions of possession of a controlled

substance within 1000 feet of a public housing agency and possession of a controlled substance with

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intent to deliver as well as his seven-year prison sentence. We also affirm the fees assessed against

defendant of $3000 (Controlled Substance Assessment), $100 (Trauma Fund Assessment) and $5

(Spinal Cord Fund). We vacate the $20 fee (Violent Crime Victims Assistance). Defendant shall

receive a $1015 credit against these fees based upon his 203 days of presentence incarceration. Those

203 days shall also be credited against his sentence. The mittimus shall be corrected to reflect these

orders.

Affirmed in part and order vacated in part; mittimus amended.

THEIS, P.J., and KARNEZIS, J., concur.

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