People v. M. I. D.

Case Date: 08/07/2001
Court: 3rd District Appellate
Docket No: 3-00-0570 Rel

August 07, 2001

No. 3--00--0570

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IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

THE PEOPLE OF THE STATE 
OF ILLINOIS,

          Plaintiff-Appellee,

          v.

M. I. D.,

          Defendent-Appellant

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Appeal from the Circuit Court
of the 9th Judicial Circuit,
Fulton County,  Illinois


No. 98--CF--114

Honorable
Steven R. Bordner,
Judge Presiding


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MODIFIED OPINION

PRESIDING JUSTICE HOMER delivered the opinion of the court:____________________________________________________________________________________

Pursuant to a partial plea agreement, defendant M.I.D. pledguilty to unlawful possession with intent to deliver between 15 and100 grams of a controlled substance (cocaine) (720 ILCS570/401(a)(2)(A) (West 1998)). The court imposed a 12-year prisonsentence and ordered defendant to pay a $500 reimbursement fee forthe services of the public defender. Defendant appeals hersentence. Following our careful review of the record, we affirm inpart and remand the cause for further proceedings.

FACTS

Defendant was originally charged with Class X unlawfulpossession of cocaine, Class 1 felony possession of cocaine withintent to deliver, and Class A misdemeanor possession of cannabisand possession of drug paraphernalia. She negotiated an agreementwhereby she would plead guilty to the Class X offense in exchangefor the State's dismissal of related charges. At the guilty pleahearing, the court admonished defendant that she faced a penalty of6 to 30 years' imprisonment. After the State presented a factualbasis, the court determined that defendant's plea was voluntary andimposed conviction for unlawful possession of cocaine with intentto deliver.

At the sentencing hearing, the State established that thepolice recovered 56 grams of cocaine and 5 grams of cannabis duringtheir search of defendant's motel room on June 1, 1998. In astatement to the police, defendant said that she had purchased twoounces of cocaine in Peoria for $2,000. She said she had beendealing in crack cocaine in Canton for several months, selling fourto six ounces per week. Following her arrest, defendant cooperatedwith the police in the arrest of her supplier. As a consequence ofthat arrest, the police obtained the supplier's cooperation andarrested his supplier.

Testifying on her own behalf, defendant stated that prior to1995 she reared two children as a single parent, held five jobs atthe same time and put herself through college, maintaining an "A"average. Then, in 1994, she contracted varicella zoster, a chronicform of chicken pox. In 1995, defendant's elder son was killed ina work-related accident. After that, defendant said, she lost herjob, her house and her dog. She used cocaine daily, spending$1,500 per week to support the habit. To pay for the cocaine,defendant purchased drugs and became a major supplier of drugs inthe Canton area. Defendant denied, however, that she profited fromthe sale of drugs.

After her arrest, defendant said, she placed her life in perilby assisting the police. Defendant said she stopped using drugs onthe date of her arrest, but she admitted using cannabis. She alsoadmitted that she was on probation for a 1995 conviction forunlawful possession of cocaine at the time of her arrest.

Defendant's presentence investigative report disclosednumerous misdemeanors and traffic convictions, in addition to the1995 felony conviction. Before pronouncing sentence, the courtnoted several statutory factors in aggravation, including: (1)that defendant received compensation for the offense; (2) that shehad a history of criminality; (3) a substantial sentence wasnecessary to deter others; and (4) defendant was on probation atthe time of the offense. The court did not find any statutoryfactors in mitigation. Accordingly, the court sentenced defendantto 12 years' imprisonment and imposed mandatory fines and costs.

The court then asked defense counsel and the prosecutorwhether they wished to set a hearing with respect tocourt-appointed counsel fees or address the matter instanter. Defense counsel responded by indicating that he had spent 15 hourson the case. The court then asked whether there was any objectionto it then fixing the amount of reimbursement for court-appointedcounsel. Both defense counsel and the prosecutor indicated thatthey did not object. Without further evidence, the court entereda $500 reimbursement order.

Defendant filed a postsentencing motion to reconsidersentence, which was heard and denied, except to grant monetarycredit for defendant's presentence incarceration.

ISSUES AND ANALYSIS

On appeal, defendant initially contends that her sentence wasan abuse of discretion. She argues that the trial court improperlyconsidered receipt of compensation as a factor in aggravation andthat the court minimized significant mitigation evidence andoveremphasized matters in aggravation.

A sentence within the statutory range for an offenseconstitutes an abuse of discretion when it is manifestly unjust orpalpably wrong. People v. Marlow, 303 Ill. App. 3d 568, 708 N.E.2d579 (1999). As a general rule, a trial judge should not considerfactors in aggravation that are implicit in the offense, becausesuch factors are presumed to have been considered by thelegislature in setting the penalty. People v. Conover, 84 Ill. 2d400, 419 N.E.2d 906 (1981). However, a factor implicit in thecrime may relate to proper sentencing considerations, such as theextent and nature of a defendant's involvement in a particularcriminal enterprise, a defendant's underlying motivation forcommitting the offense, the likelihood of the defendant'scommission of similar offenses in the future and the need to deterothers from committing similar crimes. People v. McCain, 248 Ill.App. 3d 844, 617 N.E.2d 1294 (1993).

The receipt of compensation (730 ILCS 5/5--5--3.2(a)(2) (West1998)) is inherent in offenses involving the delivery of drugs;therefore, the defendant's sentence for a delivery offense shouldnot be increased by this statutory factor. People v. Smith, 198Ill. App. 3d 695, 556 N.E.2d 307 (1990). Potential compensation,or an expectation of compensation, is inherent in possession withintent to deliver. McCain, 248 Ill. App. 3d 844, 617 N.E.2d 1294. Nevertheless, the court may properly consider a defendant's effortsto maximize profits from a drug enterprise in sentencing forunlawful possession, to the extent that such evidence reflects onthe nature of the crime. McCain, 248 Ill. App. 3d 844, 617 N.E.2d1294.

In this case, defendant was convicted of unlawful possessionwith intent to deliver. Before imposing sentence, the courtspecifically mentioned defendant's receipt of compensation. However, the judge's comments immediately thereafter demonstratethat it was not defendant's expectation of compensation from thesale of the 56 grams of cocaine underlying her conviction that thejudge considered aggravating. After citing the statutory factor,the court noted defendant's own testimony in which she admittedselling a substantial amount of drugs in the Canton area over asignificant period of time. The judge's comments show that heconsidered the profits from defendant's criminal enterprise asbearing on the nature of the offense.

Moreover, during the hearing on defendant's motion toreconsider sentence, the judge reiterated that defendant's role asa main supplier of drugs in Canton was an aggravating circumstancewhich he considered in imposing sentence. The court also explainedthat it did not find credible defendant's denial that she hadreceived profits from the sale of drugs. On these facts, the courtdid not err in factoring compensation from defendant's criminalenterprise into the sentencing decision. See McCain, 248 Ill. App.3d 844, 617 N.E.2d 1294.

We further reject defendant's contention that the trial courtimproperly weighed matters in aggravation and mitigation. Therecord demonstrates that the court considered all relevantevidence, including defendant's medical condition and hercooperation with the police leading to the arrest of other felons,before imposing a sentence at the lower end of the 6- to 30-yearrange. Defendant's 12-year sentence, while substantial, is notdisproportionate to the offense. It is neither manifestly unjustnor palpably wrong; therefore, the sentence is affirmed.

Next, defendant contends that the trial court improperlyordered her to make reimbursement for the services of the publicdefender without conducting a hearing into her ability to pay. Arguing that a defendant is bound by the acts of his attorney, theState argues waiver. See People v. Priola, 203 Ill. App. 3d 401,561 N.E.2d 82 (1990); People v. Bowman, 138 Ill. 2d 131, 143, 561N.E.2d 633, 639 (1990) (failure of a defendant to promptlyrepudiate attorney's unauthorized act serves as a ratification).

Pursuant to section 113--3.1(a) of the Code of CriminalProcedure of 1963 (Code) (725 ILCS 5/113--3.1(a) (West 1998)), thecourt must conduct a meaningful hearing into the defendant'sfinancial circumstances before she can be ordered to pay forappointed counsel. People v. Love, 177 Ill. 2d 550, 687 N.E.2d 32(1997). Although a defendant's silence may be deemed acquiescencein counsel's conduct under other circumstances (see, e.g., Peoplev. Frey, 103 Ill. 2d 327, 469 N.E.2d 195 (1984)), such is not thecase where, as here, appointed counsel's interest in being paid isin apparent conflict with defendant's right to a fair hearingregarding her ability to pay. See People v. Webb, 276 Ill. App. 3d570, 658 N.E.2d 852 (1995).

The record in this case establishes that the court made noinquiry into defendant's ability to pay for appointed counsel'sservices. Therefore, the order for reimbursement must be vacatedand the cause remanded for a hearing pursuant to section 113--3.1of the Code. See Love, 177 Ill. 2d 550, 687 N.E.2d 32.

CONCLUSION

For the reasons stated, we affirm defendant's prison sentence,vacate that portion of the judgment requiring her to pay $500 forthe services of appointed counsel, and remand the cause for aproper reimbursement hearing.

Affirmed in part; vacated in part and remanded.

LYTTON and SLATER, J.J., concur.