People v. Garcia
Annotate this Case
THIRD DIVISION
May 20, 1998
No. 1-96-2812
THE PEOPLE OF THE STATE OF ILLINOIS, )
) APPEAL FROM THE CIRCUIT
Plaintiff-Appellee, ) COURT OF COOK COUNTY.
)
v. )
) HONORABLE
MISAEL GARCIA, ) L. WILLIAM SHULTZ,
) JUDGE PRESIDING.
)
Defendant-Appellant. )
JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:
The defendant, Misael Garcia, was convicted by a jury of
armed violence (720 ILCS 5/33A-2 (West 1992)) and possession of a
controlled substance with intent to deliver (720 ILCS
570/401(a)(2)(A) (West 1992)). He was sentenced to ten years'
imprisonment for each offense to be served concurrently. On
appeal the defendant contends that the trial court erred in
denying his motion to quash his arrest and suppress evidence;
that he was not proved guilty beyond a reasonable doubt; and that
the trial court abused its discretion in sentencing him. For the
reasons discussed below, we affirm defendant's conviction but
vacate and modify his sentence.
The evidence presented by the State at the hearing on the
motion to suppress showed that on October 5, 1993, at
approximately 8:30 p.m., Chicago Police Officers Paul Paulin and
William Martinez were driving eastbound on West Beach Road in an
unmarked police car. Officer Paulin saw Jose Zacharias, from
about twenty or thirty feet away, standing on the front porch of
1624 West Beach, drinking a bottle of Corona beer. Paulin, who
had arrested Zacharias the day before, knew that Zacharias was 16
years old and did not live at that address. Paulin and Martinez
exited the police car, walked up the stairs of the porch, and
arrested Zacharias for underage drinking. While handcuffing
Zacharias on the porch, Paulin looked through the glass storm
door (the front door was open) into the house and saw the
defendant and co-defendant Charles Alvarez sitting in the
kitchen, which was approximately fifteen or twenty feet from the
storm door, at a table upon which a scale and handgun lay. He
saw the defendant place a package of white powder onto the scale
and saw Alvarez take the package off the scale. The officers
entered the house through the unlocked storm door, and defendant
fled through the back door. Upon entering the house, Martinez
saw three additional individuals sitting in the living room. The
officers arrested Alvarez and recovered a Browning nine
millimeter revolver, and several plastic bags containing cocaine.
Garcia was arrested by Officer Paulin several days later.
At trial, Officer Paulin gave testimony that was
substantially similar to that which he gave at the hearing on the
motion to suppress. In addition, he testified at trial that at
the time he recognized Zacharias as the person on the porch at
1624 West Beach there was no outside light on the porch; light
was illuminating from inside the house and from the street light.
Paulin testified that, after arresting Zacharias, he looked
inside the house for his own protection because the wooden door
was open and lights were on inside. He stated that he recognized
the defendant before the defendant exited through the back door
and did not give chase because he would have had to pass the
three men in the living room as well as Alvarez who had access to
the gun on the table. Paulin's main concern as he entered the
house was to secure the handgun on the table where the defendant
and Alvarez had been sitting. Paulin described the items
recovered from the kitchen table as: one plastic bag containing
two rocks, a smaller bag containing loose cocaine, five smaller
bags containing rock cocaine, a Browning nine millimeter revolver
with twelve live rounds in the clip, two scales, and defendant's
Mexican passport, birth certificate and "various ID's."
Daniel Wolberg of the Chicago Police Department crime lab
testified that the total weight of all of the items in the
evidence bag was 58.6 grams. The largest single item weighed
35.27 grams. Wolberg tested the latter sample and determined
that it was cocaine. He did not test any of the other items for
the presence of cocaine or any other controlled substance.
Wolberg retested the sample because the original chemist who
handled the case was on maternity leave. That chemist's report
showed that she tested the items and conducted two batteries of
tests which showed that the items tested positive for cocaine.
Karen Morrissette of the Chicago Police Department, who was
qualified as an expert to testify regarding personal use and
transactional use of narcotics, opined that a "user" generally
purchased a quarter to one gram of cocaine. In her opinion, a
person having 35.27 grams or 58.6 grams of cocaine would be a
dealer.
In defense, defendant's mother, Ramona Garcia, testified
through an interpreter, that the defendant was with her at her
home at 1621 West Beach on October 5, 1993 from 7:00 p.m. to
10:00 p.m. The defendant was present the entire time and was
celebrating his birthday with his mother and siblings. The
defendant's mother lived across the street from the defendant.
Francisco Romo testified that he had been invited by the
defendant to come over to the defendant's house at 1624 West
Beach on October 5, 1993 to watch the World Series baseball game.
When he arrived there between 8:00 and 8:30 p.m. with his
brother, George, and his uncle, Nick, the defendant was not
present. A "kid" opened the door for them. At about 8:30 p.m.,
while the three men were seated in the living room watching the
baseball game, the "kid" went to throw out the garbage. A police
officer, who was holding the "kid" and pointing a gun at his
side, knocked on the door, which was closed, and told them to
open it. Romo's brother, George, opened the door. Romo
testified that he could see the officer through the small window
at the top of the door as he was seated on the couch. Romo
testified that the officers searched the entire house after
telling them to be still and sit on the floor. Romo testified
that when the officers arrived, the defendant was not at home, no
one was seated at the kitchen table and there was nothing on the
table. He testified that he did not know co-defendant Alvarez
and had never talked to him. Romo recalled speaking to an
investigator from the State's Attorney's Office but denied
telling him that the defendant and another person were present at
1624 West Beach but left to buy beer. He also denied telling the
investigator that the defendant invited him over at about 8:10 or
8:30 p.m. or that Romo was with his brother when that invitation
was made.
The defendant testified that prior to October 5, 1993 he had
been arrested by Officer Paulin on a misdemeanor charge. He
stated that October 5 was his birthday and that on October 5,
1993 he lived at 1624 West Beach. He stated that he was not
present in his home on the evening of October 5, 1993 when the
officers came to his house. He stated that he left his house at
approximately 6:30 p.m. to go to his mother's house. Jose
Zacharias was in his house at that time and defendant told
Zacharias that some friends would be coming over. Sometime
between 6:30 p.m. and 7:00 p.m. the defendant asked Romo to come
over in about an hour to watch the World Series. The defendant
stated that he was at his mother's between 7:00 p.m. and 10:00
p.m. even though he had invited Romo to watch the World Series at
his house.
The defendant testified that he was arrested on the charges
that were the subject of the instant proceedings on October 15,
1993 when he went to court on the earlier disorderly conduct
charge. He stated that the police did not arrest him at his home
although he had been present there prior to his October 15 court
appearance. The defendant denied having any knowledge of
ownership of the gun and the cocaine that had been recovered from
his house. He also denied knowing co-defendant Alvarez, although
he testified that he had seen Alvarez in the neighborhood and had
spoken with him. He also testified that when he left his house
on the evening of October 5, 1993, his identification cards and
passport were upstairs in a dresser drawer in his room.
Jorge Varzenas testified that on October 5, 1993, he lived
at 1633 West Beach, across the street from the defendant. At
approximately 8:30 p.m., he was in front of his house with his
children. He saw some plainclothed police officers walking
around in front of and going in and out of defendant's house.
Varzenas saw an officer, who he believed to be Paulin, exit the
house and call to co-defendant Alvarez who was walking westbound
on Beach with three girls. Alvarez was taken inside the house
and, when he came out, was handcuffed. Varzenas also testified
that he lived at 1633 West Beach for three years and during that
time had never seen Alvarez and the defendant together. Varzenas
admitted to talking to an investigator from the State's
Attorney's Office but denied telling him that he had seen the
defendant and Alvarez together on occasion.
Fabiola Lopez testified that she was with Charles Alvarez,
Justinia Gomez and Lupe Lopez at approximately 8:30 p.m. on
October 5, 1993. They were walking westbound on the 1600 block
of West Beach. Lopez testified that a Hispanic officer, who was
standing behind a gate at 1624 West Beach, called Alvarez over,
grabbed him and arrested him. Lopez recognized the Hispanic
officer, having previously seen him in the neighborhood. She
stated that she had been with Alvarez for approximately twenty
minutes prior to his arrest. She also testified that she knew
the defendant and that she had not seen him on the evening of
October 5, 1993. Lopez acknowledged that she was interviewed by
an investigator from the State's Attorney's Office. She denied
telling that person that she saw the defendant on Beach Street on
the evening of October 5, 1993; that he told her he was going
home to get a sweater; and that he was arrested when he walked up
to the front door of his house. She also denied telling the
investigator that she had not seen Alvarez on October 5, 1993.
In rebuttal, Harvey Carpenter, an investigator for the
Investigation Bureau of the Cook County State's Attorney's
Office. He testified that he interviewed Frank Romo on July 25,
1995. Romo told him that the defendant came to his house between
8:10 and 8:35 p.m. to invite him and his brother, George, over to
watch the baseball game. Romo also stated that the defendant was
present when they went over to defendant's house but that the
defendant left the house with another individual to buy beer.
George Mays, an investigator for the Cook County State's
Attorney's Office, testified that he interviewed Fabiola Lopez on
August 21, 1995. Lopez told Mays that she saw the defendant on
October 5, 1993 on the 1600 block of Beach and that the defendant
told her he was going home to get a sweater. She told him that
the defendant was arrested as he opened his front door. Lopez
did not tell Mays that she was with defendant Alvarez or that she
saw Alvarez being arrested.
Mays also testified that he interviewed Jorge Varzenas on
October 19, 1995. Varzenas told Mays that he had seen the
defendant and co-defendant Alvarez together in the neighborhood.
Varzenas told him that he saw Alvarez walk up the porch at 1624
West Beach and that the police pulled him inside and arrested
him.
Officer William Martinez testified that he was working with
his partner, Officer Paulin, on October 5, 1993 at approximately
8:30 p.m. in the area of 1624 West Beach. He stated that before
they entered defendant's house, the wooden door to the house was
open and the storm door was closed. Martinez testified that he
saw defendant Garcia inside the house. He also saw defendant
exit the house through the back door as he and Paulin entered
through the front door. Martinez stated that he could see the
defendant even though Paulin and Jose Zacharias were walking in
front of him.
Based upon this testimony, the jury found the defendant and
co-defendant Alvarez guilty of armed violence predicated on
possession and possession of a controlled substance with intent
to distribute. The defendant was sentenced to two concurrent
terms of ten years for each count, while Alvarez was sentenced to
two concurrent terms of six years for each count.
I. Motion to Quash Arrest and Suppress Evidence
The defendant first argues that the trial court erred in
failing to quash his arrest and suppress evidence because the
warrantless entry into his home and seizure of evidence was not
justified by the plain view doctrine or by exigent circumstances.
When presenting a motion to suppress, the defendant has the
burden of proving that the search and seizure were unlawful. 725
ILCS 5/114-12(b) (West 1992). The function of the trial court at
the hearing on the motion to suppress is to determine the
credibility of the witnesses, the weight to be given their
testimony, and the inferences to be drawn from the evidence.
People v. Galvin, 127 Ill. 2d 153, 535 N.E.2d 837 (1989); People
v. Wicks, 236 Ill. App. 3d 97, 603 N.E.2d 594 (1992). The trial
court's determination on a motion to suppress is entitled to
great deference and will not be overturned unless it is
manifestly erroneous. Galvin, 127 Ill. 2d 153, 535 N.E.2d 837;
People v. Smith, 266 Ill. App. 3d 362, 640 N.E.2d 647 (1994).
It is axiomatic that absent a warrant, a police officer's
entry into a private home to effectuate an arrest is
presumptively unreasonable under the Fourth Amendment. U.S.
Const., amend. IV. Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980). A warrantless seizure of
evidence found in plain view does not constitute an intrusive
invasion into private property in violation of the Fourth
Amendment. People v. Pierini, 278 Ill. App. 3d 974, 664 N.E.2d 140 (1996). To establish a lawful plain-view seizure, three
requirements must be met: (1) the officer must be lawfully
present in the location from which he can plainly see the
evidence; (2) it must be immediately apparent that the object in
plain view is evidence; and (3) the officer must have a lawful
right of access to the object. Pierini, 278 Ill. App. 3d at 977,
664 N.E.2d at 143. A lawful right of access to the object may be
satisfied by the exigent circumstances exception to the warrant
requirement. Pierini, 278 Ill. App. 3d at 977-78, 664 N.E.2d at
143.
Factors relevant to a determination of whether exigent
circumstances exist include whether:
"(1) the crime under investigation was recently
committed; (2) there was any deliberate or unjustified
delay by the police during which time a warrant could
have been obtained; (3) a grave offense was involved,
particularly a crime of violence; (4) there was
reasonable belief that the suspect was armed; (5) the
police officers were acting on a clear showing of
probable cause; (6) there was a likelihood that the
suspect would escape if he was not swiftly apprehended;
(7) there was strong reason to believe the suspect was
in the premises; and (8) the police entry was made
peaceably, albeit nonconsensually." People v.
Williams, 161 Ill. 2d 1, 25-26, 641 N.E.2d 296, 306
(1994).
The fundamental guiding principle with respect to exigency is
reasonableness; and in determining whether the police officers
acted reasonably, the court will look to the totality of the
circumstances confronting the officers at the time the entry was
made. Williams, 161 Ill. 2d at 26, 641 N.E.2d at 306.
Here, the officers' seizure of evidence from the defendant's
house was lawful under the plain view doctrine. The three
elements required under that doctrine were established by the
testimony of Officers Paulin and Martinez who the trial court
found to be more credible. First, it is undisputed that Officers
Paulin and Martinez were lawfully present on the front porch of
defendant's house. They were there to arrest Zacharias for
underage drinking. Second, evidence of a crime was immediately
apparent. Paulin testified that he was able to see into
defendant's house from the porch through the storm door because
the front door was open. Paulin, who was closest to the door,
could plainly see the defendant and Alvarez weighing a substance
which, based upon his experience as a police officer, he believed
to be cocaine. That substance as well as the scales and gun
present on the table were evidence of a crime. Third, the
officers' had a lawful right of access to that evidence based
upon exigent circumstances. Several factors established exigent
circumstances. An offense was taking place in the officers'
presence. See People v. Eichelberger, 91 Ill. 2d 359, 369, 438 N.E.2d 140, 145 (1982); People v. Masters, 155 Ill. App. 3d 1015,
1024, 508 N.E.2d 1163, 1169 (1987) (commission of an offense in
officers' presence constitutes exigent circumstances and
justifies warrantless entry). There was no deliberate or
unjustified delay by the officers during which time they could
have obtained a search warrant, especially since the officers did
not have probable cause to obtain a warrant prior to viewing the
defendant and Alvarez. See Eichelberger, 91 Ill. 2d at 369, 438 N.E.2d at 145. The suspects were armed; a gun was laying on the
table near where they were sitting. The officers were acting on
a clear showing of probable cause since Paulin saw the alleged
contraband and saw the suspects weighing a white powder.
Finally, the officers' entry into defendant's house was peaceful
since the door to the house was open and the outer storm door was
unlocked.
The facts in the instant case are distinguishable from
People v. Hassan, 253 Ill. App. 3d 558, 624 N.E.2d 1330 (1993), a
case relied upon by the defendant. In that case, the defendant
was arrested in his front yard as he was fleeing from police
officers to whom he had sold drugs. The officers' entry into
defendant's home and seizure of evidence occurred after
defendant's arrest; and that entry was not made for the purpose
of apprehending the defendant. Here, unlike in Hassan, the
officers' entry into defendant's home occurred for the purpose of
apprehending the defendant. See Hassan, 253 Ill. App. 3d at 571,
624 N.E.2d at 1339 (finding that exigent circumstances generally
applies to situations where entry occurs for the purpose of
apprehending the suspect). As an additional distinction, in
Hassan, the court noted that since the defendant had been taken
into custody prior to the officers' entry into his home, that
entry could not have been premised on a fear by the officers that
the defendant posed a risk of harm to others. Here, there was
testimony that the officers' entry into defendant's home was
premised in part on the presence of a gun near the defendant and
Officer Paulin's fear for his safety. Officer Paulin testified
that he saw a weapon on the kitchen table near the defendant and
Alvarez and that he feared that they would use it. Finally, the
instant case is distinguishable from Hassan because in Hassan the
officers had time to secure a warrant before making their drug
purchase from the defendant. Prior to that purchase, the
officers conducted a surveillance of defendant's house and
observed several individuals purchase drugs from the defendant.
After making those observations, the officers went to the police
station to obtain money to use in making their drug purchase.
They could have obtained a warrant during that time since their
observations of the other drug purchases would have supported a
probable cause finding. Here, as discussed above, Officers
Paulin and Martinez did not have probable cause to obtain a
warrant before they arrived at defendant's house. Probable cause
did not arise until Officer Paulin saw the defendant commit an
offense. That observation not only supplied probable cause to
arrest the defendant and Alvarez but it demanded prompt police
action thus constituting exigent circumstances. Eichelberger, 91 Ill. 2d 359, 438 N.E.2d 140.
Nor does the case of People v. Condon, 148 Ill. 2d 96, 592 N.E.2d 951 (1992), also cited by the defendant, compel
suppression of evidence in the instant case. Condon involved an
exigent circumstances inquiry for purposes of determining whether
officers executing a search warrant were excused from the "knock
and announce" requirement.[fn1] Here, as in Condon, no
testimony established a reasonable belief by the police officers
that the drugs in the premises would be destroyed. However,
here, unlike in Condon, other factors existed to establish
exigency. See Eichelberger, 91 Ill. 2d 359, 438 N.E.2d 140;
Pierini, 278 Ill. App. 3d at 978, 664 N.E.2d at 143-44; Masters,
155 Ill. App. 3d at 1023, 508 N.E.2d at 1168 (not all exigent
circumstance factors must be present in any particular case in
order to establish reasonableness of warrantless search). As
discussed above, there was testimony establishing the presence of
a gun and an officer's fear for his safety. The commission of a
crime was observed in the presence of a police officer, and that
observation demanded prompt police action. See, e.g.,
Eichelberger, 91 Ill. 2d 359, 438 N.E.2d 140. The officers did
not have probable cause to obtain a warrant prior to viewing the
commission of the offense. Finally, the officers' entry into the
home was peaceful since the door was open and unlocked. Under
the totality of these circumstances, entry into defendant's house
without a warrant was reasonable. Williams, 161 Ill. 2d at 26,
641 N.E.2d at 306; Eichelberger, 91 Ill. 2d 359, 438 N.E.2d 140
Pierini, 278 Ill. App. 3d at 978, 664 N.E.2d at 144; Masters, 155
Ill. App. 3d at 1024, 508 N.E.2d at 1169. Thus, the trial court
did not err in denying defendant's motion to suppress.
II. Reasonable Doubt
The defendant next argues that he was not proved guilty
beyond a reasonable doubt because the only evidence that
established his presence during the alleged commission of a crime
came from the testimony of Officers Paulin and Martinez which was
contradicted by all of the defense witnesses and by the officers'
conduct in failing to give chase.
"A criminal conviction will not be set aside on review
unless the evidence is so improbable or unsatisfactory that there
remains a reasonable doubt of defendant's guilt." People v.
Jimerson, 127 Ill. 2d 12, 43, 535 N.E.2d 889, 903 (1989). When
the sufficiency of the evidence is challenged on appeal, the
relevant inquiry is whether, when viewed in the light most
favorable to the State, any rational trier of fact could have
found all of the elements of the crime proved beyond a reasonable
doubt. E.g., Jimerson, 127 Ill. 2d at 43, 535 N.E.2d at 903. It
is for the trier of fact to assess the credibility of witnesses,
the weight to be given their testimony, and the reasonable
inferences to be drawn from that testimony and to resolve
conflicts in their testimony. E.g., People v. Bedell, 253 Ill.
App. 3d 322, 624 N.E.2d 1308 (1993); People v. Steidl, 142 Ill. 2d 204, 568 N.E.2d 837 (1991). It is not the function of the
reviewing court to retry the defendant or to substitute its
judgment for that of the trier of fact. E.g., People v. Hill,
276 Ill. App. 3d 683, 658 N.E.2d 1294 (1995).
Here, the testimony of Officers Paulin and Martinez
established defendant's guilt beyond a reasonable doubt. While
their testimony was contradicted by testimony from the defense
witnesses, the jury made credibility determinations in favor of
the officers. In making those determinations, the jury was free
to consider the testimony of the State's rebuttal witnesses which
impeached several of the defense witnesses. Moreover, contrary
to defendant's assertion, the fact that Officers Paulin and
Martinez did not chase the defendant or arrest him for ten days
does not make their testimony incredible. The officers testified
that they knew the defendant's identity before he fled. They had
a clear view of him as he sat at the table and knew that they
would be seeing him in court on another criminal matter several
days later. Officer Paulin also testified that, rather than
giving chase to the defendant, his priority was to protect
himself by retrieving the gun on the table. We cannot say that
the officer's testimony was so improbable or unsatisfactory so as
to create a reasonable doubt of defendant's guilt. Steidl, 142 Ill. 2d 204, 568 N.E.2d 837; Jimerson, 127 Ill. 2d at 43, 535 N.E.2d at 903.
III. Sentence
The defendant raises two arguments with respect to his
sentence. He first argues that the term of ten years is
excessive in light of his age, lack of history of violent
criminal activity, rehabilitative potential and his co-
defendant's lesser sentence of six years. He also argues that
the trial court improperly considered his employment history and
constructive possession of a handgun. Second, the defendant
argues that the ten-year term for unlawful possession of a
controlled substance with intent to deliver should be vacated
since it merged into the conviction for armed violence predicated
on unlawful possession.
A. Ten-Year Sentence[fn2]
The determination of an appropriate sentence is within the
discretion of the trial court which is normally in a superior
position during the trial and the hearing in aggravation and
mitigation to make that determination. People v. Cabrera, 116 Ill. 2d 474, 508 N.E.2d 708 (1987); People v. Smith, 258 Ill.
App. 3d 1003, 630 N.E.2d 1068 (1994). A sentence imposed by the
trial court, which is within the statutory range, is entitled to
great deference and will not be reversed absent abuse of
discretion. People v. Perruquet, 68 Ill. 2d 149, 368 N.E.2d 882
(1987); People v. Foster, 262 Ill. App. 3d 892, 635 N.E.2d 855
(1994). As stated in Perruquet:
"A reasoned judgment as to the proper sentence to be
imposed must be based upon the particular circumstances
of each individual case. [Citation.] Such a judgment
depends upon many factors, including the defendant's
credibility, demeanor, general moral character,
mentality, social environment, habits, and age.
[Citation.]" 68 Ill. 2d at 154, 368 N.E.2d at 884.
In addition, the court should consider the gravity of the
offense, the circumstances of commission, the protection of
society and the rehabilitation of the offender. Smith, 258 Ill.
App. 3d at 1028, 630 N.E.2d at 1087. On review it is presumed
that the trial court properly considered all mitigating factors
and rehabilitative potential before it; and the burden is on the
defendant to affirmatively show the contrary. People v.
McClellan, 232 Ill. App. 3d 990, 600 N.E.2d 407 (1992). A
reviewing court may not substitute its judgment for that of the
trial court merely because it would have weighed the sentencing
factors differently. People v. Streit, 142 Ill. 2d 13, 566 N.E.2d 1351 (1991).
Here, the offenses for which the defendant was convicted
were Class X felonies, punishable by a range between 6 and 30
years imprisonment. 720 ILCS 5/33A-3 (West 1992); 720 ILCS
570/401(a)(2)(A) (West 1992); 730 ILCS 5/5-8-1(a)(3) (West 1992).
The defendant argues that the trial court should have sentenced
him to the minimum term of six years because he was 22 years old
at the time of commission of the offense, he was providing
support for his child, he had a high school degree and had
maintained employment, and had no prior felony convictions or
history of propensity toward violence. He also contends that the
trial court erred in considering his unemployment history and his
constructive possession of the handgun since that possession was
an essential element of the offense of armed violence. Finally,
the defendant contends that the trial court abused its discretion
in sentencing defendant to a term of ten years when the court
sentenced co-defendant Alvarez, who was similarly situated, to
only six years for the same offenses.
The record in the instant case shows that, in determining
defendant's sentence, the trial court considered the trial
testimony, the pre-sentence investigation, and the arguments of
counsel relative to aggravation and mitigation. The court noted
defendant's rehabilitative potential and acknowledged that the
instant conviction constituted defendant's first felony
conviction. In aggravation, however, the court found that the
defendant used "his home as a sanctuary to engage in an illegal
enterprise" and was found with a sizeable amount of cocaine. The
court also found that the defendant was the "motivating force
behind this illegal enterprise." In addition, at the hearing
wherein defendant's motion to reduce sentence was denied, the
court emphasized the seriousness of the offenses for which the
defendant had been convicted.
Based upon the record before us, we cannot say that the
sentence of ten years was an abuse of discretion. It is clear
that the trial court considered defendant's age, lack of prior
criminal activity and rehabilitative potential and that the court
balanced these mitigating factors against the aggravating factors
of the seriousness of the offense, including the location of the
illegal enterprise and the manner in which the offense was
perpetrated. See People v. Tatum, 181 Ill. App. 3d 821, 826, 537 N.E.2d 875, 878 (1989) (trial court is not required to give
rehabilitative potential more weight than it gives the
seriousness of the offense). The ten-year prison term was well-
within the statutory guidelines, and, in fact, was close to the
minimum sentence that could have been imposed. That sentence was
not an abuse of discretion.
We also cannot agree, as the defendant contends, that the
trial court improperly considered defendant's unemployment
history or the presence of the handgun. A review of the record
shows that the only mention of defendant's unemployment history
came from the assistant state's attorney who used it to show that
the defendant made his livelihood by selling drugs. Cf. People
v. Bennett, 222 Ill. App. 3d 188, 582 N.E.2d 1370 (1991); People
v. Birge, 137 Ill. App. 3d 781, 485 N.E.2d 37 (1985) (mere fact
of unemployment is not a proper factor in aggravation although
defendant's occupation and status are relevant in sentencing).
The trial court did not state that it was using defendant's
unemployment history as a factor in aggravation, and we cannot
presume that it improperly considered that fact. See McClellan,
232 Ill. App. 3d 990, 600 N.E.2d 407 (reviewing court presumes
trial court properly considered all sentencing factors). The
record also does not support defendant's contention that the
trial court considered the presence of the gun to be a factor in
aggravation. Rather, the record shows that the court considered
it as proof of the armed violence charge. Moreover, even if the
court considered the gun, it was free to do so in considering the
totality of the circumstances that existed at the time the
officers entered the defendant's house. In this regard, the
court could consider the risk created by the presence of a loaded
gun within the defendant's reach. See People v. Smith, 258 Ill.
App. 3d 261, 265, 630 N.E.2d 147, 150 (1994) (defendant's
possession of a loaded handgun can be considered in sentencing
defendant on armed violence offense). Finally, we find the four-
year differential between the defendant's sentence and Alvarez's
sentence justified by the court's finding that the defendant was
the person in charge of the illegal operation. See People v.
Visnack, 135 Ill. App. 3d 113, 481 N.E.2d 744 (1985) (disparity
in sentences of two defendants justified where one was moving
force in commission of crime).
B. Merger of Offenses
Lastly, the defendant argues that his conviction for the
offense of possession with intent to deliver should be vacated
because it merged into the conviction for armed violence
predicated on unlawful possession.[fn3] The State concedes that
a merger would occur if the defendant was convicted of possession
of a controlled substance and armed violence predicated on
unlawful possession because the former offense is a lesser
included offense of the latter. It argues, however, that the
defendant was convicted of possession with intent to deliver
rather than possession alone. In reliance on People v. Green,
199 Ill. App. 3d 927, 557 N.E.2d 939 (1990), it argues that the
offense of possession of a controlled substance with intent to
deliver has the added element of intent to deliver such that it
is not a lesser included offense of the armed violence offense
predicated on possession and thus would not merge into the latter
offense.
In People v. Roberts, 263 Ill. App. 3d 348, 636 N.E.2d 86
(1994), the same appellate district court that authored Green,
stated, "Even where lesser included offenses are not involved,
however, multiple convictions and concurrent sentences cannot be
permitted where more than one offense is carved from the same
physical act." Roberts, 263 Ill. App. 3d at 354, 636 N.E.2d at
91. Accord People v. Smith, 258 Ill. App. 3d 261, 630 N.E.2d 147
(1994) (conviction of unlawful possession of a controlled
substance with intent to deliver merged with armed violence
conviction premised on same act). The Roberts court
distinguished the facts in Green to find that separate acts
supported the two convictions in Green, namely defendant's
possession of two small bags of cocaine and a loaded revolver in
one pocket (supporting the armed violence offense premised on
possession) and the possession of nine small plastic bags of
cocaine in defendant's left pocket (supporting the possession
with intent to deliver offense). Since in Roberts the defendant
possessed a single large quantity of cannabis, the court found
that the offense of armed violence based upon possession of a
controlled substance merged with the cannabis trafficking
offense.
Here, the State attempts to rely on the distinction in Green
that was reiterated in Roberts. The State argues that five
smaller bags of rock cocaine were found on the table nearer to
the gun while a plastic bag containing two large rocks, a smaller
bag containing loose rock cocaine and the scale were found on the
other side of the table. According to the State, the former
would support a conviction for armed violence premised on
possession while the latter items would support the conviction
for possession with intent to deliver. We disagree. At the time
the police entered the premises, the defendant and Alvarez were
weighing and packaging cocaine. All of the contraband recovered
was seized from one area, the kitchen table. Each item of
contraband was in close proximity to the other items. There was
nothing to suggest that the defendant had segregated any of the
cocaine for his personal use. Without more, the evidence only
supports a finding of a single act by the defendant and Alvarez:
weighing and dividing the cocaine into smaller quantities for
sale and delivery using a gun to further that purpose. Thus, the
cocaine possessed under the armed violence offense was the same
cocaine possessed with intent to deliver thereby preventing
multiple convictions and concurrent sentences. Roberts, 263 Ill.
App. 3d at 354, 636 N.E.2d at 91. Conviction should be entered
and sentence imposed only upon the most serious offense, the
armed violence offense; and the conviction of and sentence for
possession of a controlled substance with intent to deliver must
be vacated. Smith, 258 Ill. App. 3d 261, 630 N.E.2d 147.
For the foregoing reasons, the judgment of the Circuit Court
of Cook County is vacated in part; and affirmed as modified.
Vacated in part; affirmed as modified.
LEAVITT, P.J. and BURKE, J., concur.
[fn1]The defendant argues that the "knock and announce"
requirement was violated in the instant case because the officers
did not knock before entering. We disagree. As the officers
entered defendant's house through an open and unlocked door and
used minimal force to gain entry, their entry was peaceful, and
any failure by the officers to knock and announce their entry did
not vitiate the seizures made without a warrant. See People v.
Masters, 155 Ill. App. 3d 1015, 508 N.E.2d 1163 (1987) citing
People v. Abney, 81 Ill. 2d 159, 407 N.E.2d 543 (1980).
[fn2]Due to our vacatur of defendant's ten-year sentence on
the possession with intent to deliver conviction in part B below,
we address the issue of sentence only as to the conviction for
armed violence.
[fn3]The State argues that the defendant waived this issue
by not raising it at trial and by not raising it in his post-
trial motion, at his sentencing hearing or in his motion to
reduce sentence. We reach the issue under the plain error rule.
155 Ill. 2d R. 615(a).
May 20, 1998
No. 1-96-2812
THE PEOPLE OF THE STATE OF ILLINOIS, )
) APPEAL FROM THE CIRCUIT
Plaintiff-Appellee, ) COURT OF COOK COUNTY.
)
v. )
) HONORABLE
MISAEL GARCIA, ) L. WILLIAM SHULTZ,
) JUDGE PRESIDING.
)
Defendant-Appellant. )
JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:
The defendant, Misael Garcia, was convicted by a jury of
armed violence (720 ILCS 5/33A-2 (West 1992)) and possession of a
controlled substance with intent to deliver (720 ILCS
570/401(a)(2)(A) (West 1992)). He was sentenced to ten years'
imprisonment for each offense to be served concurrently. On
appeal the defendant contends that the trial court erred in
denying his motion to quash his arrest and suppress evidence;
that he was not proved guilty beyond a reasonable doubt; and that
the trial court abused its discretion in sentencing him. For the
reasons discussed below, we affirm defendant's conviction but
vacate and modify his sentence.
The evidence presented by the State at the hearing on the
motion to suppress showed that on October 5, 1993, at
approximately 8:30 p.m., Chicago Police Officers Paul Paulin and
William Martinez were driving eastbound on West Beach Road in an
unmarked police car. Officer Paulin saw Jose Zacharias, from
about twenty or thirty feet away, standing on the front porch of
1624 West Beach, drinking a bottle of Corona beer. Paulin, who
had arrested Zacharias the day before, knew that Zacharias was 16
years old and did not live at that address. Paulin and Martinez
exited the police car, walked up the stairs of the porch, and
arrested Zacharias for underage drinking. While handcuffing
Zacharias on the porch, Paulin looked through the glass storm
door (the front door was open) into the house and saw the
defendant and co-defendant Charles Alvarez sitting in the
kitchen, which was approximately fifteen or twenty feet from the
storm door, at a table upon which a scale and handgun lay. He
saw the defendant place a package of white powder onto the scale
and saw Alvarez take the package off the scale. The officers
entered the house through the unlocked storm door, and defendant
fled through the back door. Upon entering the house, Martinez
saw three additional individuals sitting in the living room. The
officers arrested Alvarez and recovered a Browning nine
millimeter revolver, and several plastic bags containing cocaine.
Garcia was arrested by Officer Paulin several days later.
At trial, Officer Paulin gave testimony that was
substantially similar to that which he gave at the hearing on the
motion to suppress. In addition, he testified at trial that at
the time he recognized Zacharias as the person on the porch at
1624 West Beach there was no outside light on the porch; light
was illuminating from inside the house and from the street light.
Paulin testified that, after arresting Zacharias, he looked
inside the house for his own protection because the wooden door
was open and lights were on inside. He stated that he recognized
the defendant before the defendant exited through the back door
and did not give chase because he would have had to pass the
three men in the living room as well as Alvarez who had access to
the gun on the table. Paulin's main concern as he entered the
house was to secure the handgun on the table where the defendant
and Alvarez had been sitting. Paulin described the items
recovered from the kitchen table as: one plastic bag containing
two rocks, a smaller bag containing loose cocaine, five smaller
bags containing rock cocaine, a Browning nine millimeter revolver
with twelve live rounds in the clip, two scales, and defendant's
Mexican passport, birth certificate and "various ID's."
Daniel Wolberg of the Chicago Police Department crime lab
testified that the total weight of all of the items in the
evidence bag was 58.6 grams. The largest single item weighed
35.27 grams. Wolberg tested the latter sample and determined
that it was cocaine. He did not test any of the other items for
the presence of cocaine or any other controlled substance.
Wolberg retested the sample because the original chemist who
handled the case was on maternity leave. That chemist's report
showed that she tested the items and conducted two batteries of
tests which showed that the items tested positive for cocaine.
Karen Morrissette of the Chicago Police Department, who was
qualified as an expert to testify regarding personal use and
transactional use of narcotics, opined that a "user" generally
purchased a quarter to one gram of cocaine. In her opinion, a
person having 35.27 grams or 58.6 grams of cocaine would be a
dealer.
In defense, defendant's mother, Ramona Garcia, testified
through an interpreter, that the defendant was with her at her
home at 1621 West Beach on October 5, 1993 from 7:00 p.m. to
10:00 p.m. The defendant was present the entire time and was
celebrating his birthday with his mother and siblings. The
defendant's mother lived across the street from the defendant.
Francisco Romo testified that he had been invited by the
defendant to come over to the defendant's house at 1624 West
Beach on October 5, 1993 to watch the World Series baseball game.
When he arrived there between 8:00 and 8:30 p.m. with his
brother, George, and his uncle, Nick, the defendant was not
present. A "kid" opened the door for them. At about 8:30 p.m.,
while the three men were seated in the living room watching the
baseball game, the "kid" went to throw out the garbage. A police
officer, who was holding the "kid" and pointing a gun at his
side, knocked on the door, which was closed, and told them to
open it. Romo's brother, George, opened the door. Romo
testified that he could see the officer through the small window
at the top of the door as he was seated on the couch. Romo
testified that the officers searched the entire house after
telling them to be still and sit on the floor. Romo testified
that when the officers arrived, the defendant was not at home, no
one was seated at the kitchen table and there was nothing on the
table. He testified that he did not know co-defendant Alvarez
and had never talked to him. Romo recalled speaking to an
investigator from the State's Attorney's Office but denied
telling him that the defendant and another person were present at
1624 West Beach but left to buy beer. He also denied telling the
investigator that the defendant invited him over at about 8:10 or
8:30 p.m. or that Romo was with his brother when that invitation
was made.
The defendant testified that prior to October 5, 1993 he had
been arrested by Officer Paulin on a misdemeanor charge. He
stated that October 5 was his birthday and that on October 5,
1993 he lived at 1624 West Beach. He stated that he was not
present in his home on the evening of October 5, 1993 when the
officers came to his house. He stated that he left his house at
approximately 6:30 p.m. to go to his mother's house. Jose
Zacharias was in his house at that time and defendant told
Zacharias that some friends would be coming over. Sometime
between 6:30 p.m. and 7:00 p.m. the defendant asked Romo to come
over in about an hour to watch the World Series. The defendant
stated that he was at his mother's between 7:00 p.m. and 10:00
p.m. even though he had invited Romo to watch the World Series at
his house.
The defendant testified that he was arrested on the charges
that were the subject of the instant proceedings on October 15,
1993 when he went to court on the earlier disorderly conduct
charge. He stated that the police did not arrest him at his home
although he had been present there prior to his October 15 court
appearance. The defendant denied having any knowledge of
ownership of the gun and the cocaine that had been recovered from
his house. He also denied knowing co-defendant Alvarez, although
he testified that he had seen Alvarez in the neighborhood and had
spoken with him. He also testified that when he left his house
on the evening of October 5, 1993, his identification cards and
passport were upstairs in a dresser drawer in his room.
Jorge Varzenas testified that on October 5, 1993, he lived
at 1633 West Beach, across the street from the defendant. At
approximately 8:30 p.m., he was in front of his house with his
children. He saw some plainclothed police officers walking
around in front of and going in and out of defendant's house.
Varzenas saw an officer, who he believed to be Paulin, exit the
house and call to co-defendant Alvarez who was walking westbound
on Beach with three girls. Alvarez was taken inside the house
and, when he came out, was handcuffed. Varzenas also testified
that he lived at 1633 West Beach for three years and during that
time had never seen Alvarez and the defendant together. Varzenas
admitted to talking to an investigator from the State's
Attorney's Office but denied telling him that he had seen the
defendant and Alvarez together on occasion.
Fabiola Lopez testified that she was with Charles Alvarez,
Justinia Gomez and Lupe Lopez at approximately 8:30 p.m. on
October 5, 1993. They were walking westbound on the 1600 block
of West Beach. Lopez testified that a Hispanic officer, who was
standing behind a gate at 1624 West Beach, called Alvarez over,
grabbed him and arrested him. Lopez recognized the Hispanic
officer, having previously seen him in the neighborhood. She
stated that she had been with Alvarez for approximately twenty
minutes prior to his arrest. She also testified that she knew
the defendant and that she had not seen him on the evening of
October 5, 1993. Lopez acknowledged that she was interviewed by
an investigator from the State's Attorney's Office. She denied
telling that person that she saw the defendant on Beach Street on
the evening of October 5, 1993; that he told her he was going
home to get a sweater; and that he was arrested when he walked up
to the front door of his house. She also denied telling the
investigator that she had not seen Alvarez on October 5, 1993.
In rebuttal, Harvey Carpenter, an investigator for the
Investigation Bureau of the Cook County State's Attorney's
Office. He testified that he interviewed Frank Romo on July 25,
1995. Romo told him that the defendant came to his house between
8:10 and 8:35 p.m. to invite him and his brother, George, over to
watch the baseball game. Romo also stated that the defendant was
present when they went over to defendant's house but that the
defendant left the house with another individual to buy beer.
George Mays, an investigator for the Cook County State's
Attorney's Office, testified that he interviewed Fabiola Lopez on
August 21, 1995. Lopez told Mays that she saw the defendant on
October 5, 1993 on the 1600 block of Beach and that the defendant
told her he was going home to get a sweater. She told him that
the defendant was arrested as he opened his front door. Lopez
did not tell Mays that she was with defendant Alvarez or that she
saw Alvarez being arrested.
Mays also testified that he interviewed Jorge Varzenas on
October 19, 1995. Varzenas told Mays that he had seen the
defendant and co-defendant Alvarez together in the neighborhood.
Varzenas told him that he saw Alvarez walk up the porch at 1624
West Beach and that the police pulled him inside and arrested
him.
Officer William Martinez testified that he was working with
his partner, Officer Paulin, on October 5, 1993 at approximately
8:30 p.m. in the area of 1624 West Beach. He stated that before
they entered defendant's house, the wooden door to the house was
open and the storm door was closed. Martinez testified that he
saw defendant Garcia inside the house. He also saw defendant
exit the house through the back door as he and Paulin entered
through the front door. Martinez stated that he could see the
defendant even though Paulin and Jose Zacharias were walking in
front of him.
Based upon this testimony, the jury found the defendant and
co-defendant Alvarez guilty of armed violence predicated on
possession and possession of a controlled substance with intent
to distribute. The defendant was sentenced to two concurrent
terms of ten years for each count, while Alvarez was sentenced to
two concurrent terms of six years for each count.
I. Motion to Quash Arrest and Suppress Evidence
The defendant first argues that the trial court erred in
failing to quash his arrest and suppress evidence because the
warrantless entry into his home and seizure of evidence was not
justified by the plain view doctrine or by exigent circumstances.
When presenting a motion to suppress, the defendant has the
burden of proving that the search and seizure were unlawful. 725
ILCS 5/114-12(b) (West 1992). The function of the trial court at
the hearing on the motion to suppress is to determine the
credibility of the witnesses, the weight to be given their
testimony, and the inferences to be drawn from the evidence.
People v. Galvin, 127 Ill. 2d 153, 535 N.E.2d 837 (1989); People
v. Wicks, 236 Ill. App. 3d 97, 603 N.E.2d 594 (1992). The trial
court's determination on a motion to suppress is entitled to
great deference and will not be overturned unless it is
manifestly erroneous. Galvin, 127 Ill. 2d 153, 535 N.E.2d 837;
People v. Smith, 266 Ill. App. 3d 362, 640 N.E.2d 647 (1994).
It is axiomatic that absent a warrant, a police officer's
entry into a private home to effectuate an arrest is
presumptively unreasonable under the Fourth Amendment. U.S.
Const., amend. IV. Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980). A warrantless seizure of
evidence found in plain view does not constitute an intrusive
invasion into private property in violation of the Fourth
Amendment. People v. Pierini, 278 Ill. App. 3d 974, 664 N.E.2d 140 (1996). To establish a lawful plain-view seizure, three
requirements must be met: (1) the officer must be lawfully
present in the location from which he can plainly see the
evidence; (2) it must be immediately apparent that the object in
plain view is evidence; and (3) the officer must have a lawful
right of access to the object. Pierini, 278 Ill. App. 3d at 977,
664 N.E.2d at 143. A lawful right of access to the object may be
satisfied by the exigent circumstances exception to the warrant
requirement. Pierini, 278 Ill. App. 3d at 977-78, 664 N.E.2d at
143.
Factors relevant to a determination of whether exigent
circumstances exist include whether:
"(1) the crime under investigation was recently
committed; (2) there was any deliberate or unjustified
delay by the police during which time a warrant could
have been obtained; (3) a grave offense was involved,
particularly a crime of violence; (4) there was
reasonable belief that the suspect was armed; (5) the
police officers were acting on a clear showing of
probable cause; (6) there was a likelihood that the
suspect would escape if he was not swiftly apprehended;
(7) there was strong reason to believe the suspect was
in the premises; and (8) the police entry was made
peaceably, albeit nonconsensually." People v.
Williams, 161 Ill. 2d 1, 25-26, 641 N.E.2d 296, 306
(1994).
The fundamental guiding principle with respect to exigency is
reasonableness; and in determining whether the police officers
acted reasonably, the court will look to the totality of the
circumstances confronting the officers at the time the entry was
made. Williams, 161 Ill. 2d at 26, 641 N.E.2d at 306.
Here, the officers' seizure of evidence from the defendant's
house was lawful under the plain view doctrine. The three
elements required under that doctrine were established by the
testimony of Officers Paulin and Martinez who the trial court
found to be more credible. First, it is undisputed that Officers
Paulin and Martinez were lawfully present on the front porch of
defendant's house. They were there to arrest Zacharias for
underage drinking. Second, evidence of a crime was immediately
apparent. Paulin testified that he was able to see into
defendant's house from the porch through the storm door because
the front door was open. Paulin, who was closest to the door,
could plainly see the defendant and Alvarez weighing a substance
which, based upon his experience as a police officer, he believed
to be cocaine. That substance as well as the scales and gun
present on the table were evidence of a crime. Third, the
officers' had a lawful right of access to that evidence based
upon exigent circumstances. Several factors established exigent
circumstances. An offense was taking place in the officers'
presence. See People v. Eichelberger, 91 Ill. 2d 359, 369, 438 N.E.2d 140, 145 (1982); People v. Masters, 155 Ill. App. 3d 1015,
1024, 508 N.E.2d 1163, 1169 (1987) (commission of an offense in
officers' presence constitutes exigent circumstances and
justifies warrantless entry). There was no deliberate or
unjustified delay by the officers during which time they could
have obtained a search warrant, especially since the officers did
not have probable cause to obtain a warrant prior to viewing the
defendant and Alvarez. See Eichelberger, 91 Ill. 2d at 369, 438 N.E.2d at 145. The suspects were armed; a gun was laying on the
table near where they were sitting. The officers were acting on
a clear showing of probable cause since Paulin saw the alleged
contraband and saw the suspects weighing a white powder.
Finally, the officers' entry into defendant's house was peaceful
since the door to the house was open and the outer storm door was
unlocked.
The facts in the instant case are distinguishable from
People v. Hassan, 253 Ill. App. 3d 558, 624 N.E.2d 1330 (1993), a
case relied upon by the defendant. In that case, the defendant
was arrested in his front yard as he was fleeing from police
officers to whom he had sold drugs. The officers' entry into
defendant's home and seizure of evidence occurred after
defendant's arrest; and that entry was not made for the purpose
of apprehending the defendant. Here, unlike in Hassan, the
officers' entry into defendant's home occurred for the purpose of
apprehending the defendant. See Hassan, 253 Ill. App. 3d at 571,
624 N.E.2d at 1339 (finding that exigent circumstances generally
applies to situations where entry occurs for the purpose of
apprehending the suspect). As an additional distinction, in
Hassan, the court noted that since the defendant had been taken
into custody prior to the officers' entry into his home, that
entry could not have been premised on a fear by the officers that
the defendant posed a risk of harm to others. Here, there was
testimony that the officers' entry into defendant's home was
premised in part on the presence of a gun near the defendant and
Officer Paulin's fear for his safety. Officer Paulin testified
that he saw a weapon on the kitchen table near the defendant and
Alvarez and that he feared that they would use it. Finally, the
instant case is distinguishable from Hassan because in Hassan the
officers had time to secure a warrant before making their drug
purchase from the defendant. Prior to that purchase, the
officers conducted a surveillance of defendant's house and
observed several individuals purchase drugs from the defendant.
After making those observations, the officers went to the police
station to obtain money to use in making their drug purchase.
They could have obtained a warrant during that time since their
observations of the other drug purchases would have supported a
probable cause finding. Here, as discussed above, Officers
Paulin and Martinez did not have probable cause to obtain a
warrant before they arrived at defendant's house. Probable cause
did not arise until Officer Paulin saw the defendant commit an
offense. That observation not only supplied probable cause to
arrest the defendant and Alvarez but it demanded prompt police
action thus constituting exigent circumstances. Eichelberger, 91 Ill. 2d 359, 438 N.E.2d 140.
Nor does the case of People v. Condon, 148 Ill. 2d 96, 592 N.E.2d 951 (1992), also cited by the defendant, compel
suppression of evidence in the instant case. Condon involved an
exigent circumstances inquiry for purposes of determining whether
officers executing a search warrant were excused from the "knock
and announce" requirement.[fn1] Here, as in Condon, no
testimony established a reasonable belief by the police officers
that the drugs in the premises would be destroyed. However,
here, unlike in Condon, other factors existed to establish
exigency. See Eichelberger, 91 Ill. 2d 359, 438 N.E.2d 140;
Pierini, 278 Ill. App. 3d at 978, 664 N.E.2d at 143-44; Masters,
155 Ill. App. 3d at 1023, 508 N.E.2d at 1168 (not all exigent
circumstance factors must be present in any particular case in
order to establish reasonableness of warrantless search). As
discussed above, there was testimony establishing the presence of
a gun and an officer's fear for his safety. The commission of a
crime was observed in the presence of a police officer, and that
observation demanded prompt police action. See, e.g.,
Eichelberger, 91 Ill. 2d 359, 438 N.E.2d 140. The officers did
not have probable cause to obtain a warrant prior to viewing the
commission of the offense. Finally, the officers' entry into the
home was peaceful since the door was open and unlocked. Under
the totality of these circumstances, entry into defendant's house
without a warrant was reasonable. Williams, 161 Ill. 2d at 26,
641 N.E.2d at 306; Eichelberger, 91 Ill. 2d 359, 438 N.E.2d 140
Pierini, 278 Ill. App. 3d at 978, 664 N.E.2d at 144; Masters, 155
Ill. App. 3d at 1024, 508 N.E.2d at 1169. Thus, the trial court
did not err in denying defendant's motion to suppress.
II. Reasonable Doubt
The defendant next argues that he was not proved guilty
beyond a reasonable doubt because the only evidence that
established his presence during the alleged commission of a crime
came from the testimony of Officers Paulin and Martinez which was
contradicted by all of the defense witnesses and by the officers'
conduct in failing to give chase.
"A criminal conviction will not be set aside on review
unless the evidence is so improbable or unsatisfactory that there
remains a reasonable doubt of defendant's guilt." People v.
Jimerson, 127 Ill. 2d 12, 43, 535 N.E.2d 889, 903 (1989). When
the sufficiency of the evidence is challenged on appeal, the
relevant inquiry is whether, when viewed in the light most
favorable to the State, any rational trier of fact could have
found all of the elements of the crime proved beyond a reasonable
doubt. E.g., Jimerson, 127 Ill. 2d at 43, 535 N.E.2d at 903. It
is for the trier of fact to assess the credibility of witnesses,
the weight to be given their testimony, and the reasonable
inferences to be drawn from that testimony and to resolve
conflicts in their testimony. E.g., People v. Bedell, 253 Ill.
App. 3d 322, 624 N.E.2d 1308 (1993); People v. Steidl, 142 Ill. 2d 204, 568 N.E.2d 837 (1991). It is not the function of the
reviewing court to retry the defendant or to substitute its
judgment for that of the trier of fact. E.g., People v. Hill,
276 Ill. App. 3d 683, 658 N.E.2d 1294 (1995).
Here, the testimony of Officers Paulin and Martinez
established defendant's guilt beyond a reasonable doubt. While
their testimony was contradicted by testimony from the defense
witnesses, the jury made credibility determinations in favor of
the officers. In making those determinations, the jury was free
to consider the testimony of the State's rebuttal witnesses which
impeached several of the defense witnesses. Moreover, contrary
to defendant's assertion, the fact that Officers Paulin and
Martinez did not chase the defendant or arrest him for ten days
does not make their testimony incredible. The officers testified
that they knew the defendant's identity before he fled. They had
a clear view of him as he sat at the table and knew that they
would be seeing him in court on another criminal matter several
days later. Officer Paulin also testified that, rather than
giving chase to the defendant, his priority was to protect
himself by retrieving the gun on the table. We cannot say that
the officer's testimony was so improbable or unsatisfactory so as
to create a reasonable doubt of defendant's guilt. Steidl, 142 Ill. 2d 204, 568 N.E.2d 837; Jimerson, 127 Ill. 2d at 43, 535 N.E.2d at 903.
III. Sentence
The defendant raises two arguments with respect to his
sentence. He first argues that the term of ten years is
excessive in light of his age, lack of history of violent
criminal activity, rehabilitative potential and his co-
defendant's lesser sentence of six years. He also argues that
the trial court improperly considered his employment history and
constructive possession of a handgun. Second, the defendant
argues that the ten-year term for unlawful possession of a
controlled substance with intent to deliver should be vacated
since it merged into the conviction for armed violence predicated
on unlawful possession.
A. Ten-Year Sentence[fn2]
The determination of an appropriate sentence is within the
discretion of the trial court which is normally in a superior
position during the trial and the hearing in aggravation and
mitigation to make that determination. People v. Cabrera, 116 Ill. 2d 474, 508 N.E.2d 708 (1987); People v. Smith, 258 Ill.
App. 3d 1003, 630 N.E.2d 1068 (1994). A sentence imposed by the
trial court, which is within the statutory range, is entitled to
great deference and will not be reversed absent abuse of
discretion. People v. Perruquet, 68 Ill. 2d 149, 368 N.E.2d 882
(1987); People v. Foster, 262 Ill. App. 3d 892, 635 N.E.2d 855
(1994). As stated in Perruquet:
"A reasoned judgment as to the proper sentence to be
imposed must be based upon the particular circumstances
of each individual case. [Citation.] Such a judgment
depends upon many factors, including the defendant's
credibility, demeanor, general moral character,
mentality, social environment, habits, and age.
[Citation.]" 68 Ill. 2d at 154, 368 N.E.2d at 884.
In addition, the court should consider the gravity of the
offense, the circumstances of commission, the protection of
society and the rehabilitation of the offender. Smith, 258 Ill.
App. 3d at 1028, 630 N.E.2d at 1087. On review it is presumed
that the trial court properly considered all mitigating factors
and rehabilitative potential before it; and the burden is on the
defendant to affirmatively show the contrary. People v.
McClellan, 232 Ill. App. 3d 990, 600 N.E.2d 407 (1992). A
reviewing court may not substitute its judgment for that of the
trial court merely because it would have weighed the sentencing
factors differently. People v. Streit, 142 Ill. 2d 13, 566 N.E.2d 1351 (1991).
Here, the offenses for which the defendant was convicted
were Class X felonies, punishable by a range between 6 and 30
years imprisonment. 720 ILCS 5/33A-3 (West 1992); 720 ILCS
570/401(a)(2)(A) (West 1992); 730 ILCS 5/5-8-1(a)(3) (West 1992).
The defendant argues that the trial court should have sentenced
him to the minimum term of six years because he was 22 years old
at the time of commission of the offense, he was providing
support for his child, he had a high school degree and had
maintained employment, and had no prior felony convictions or
history of propensity toward violence. He also contends that the
trial court erred in considering his unemployment history and his
constructive possession of the handgun since that possession was
an essential element of the offense of armed violence. Finally,
the defendant contends that the trial court abused its discretion
in sentencing defendant to a term of ten years when the court
sentenced co-defendant Alvarez, who was similarly situated, to
only six years for the same offenses.
The record in the instant case shows that, in determining
defendant's sentence, the trial court considered the trial
testimony, the pre-sentence investigation, and the arguments of
counsel relative to aggravation and mitigation. The court noted
defendant's rehabilitative potential and acknowledged that the
instant conviction constituted defendant's first felony
conviction. In aggravation, however, the court found that the
defendant used "his home as a sanctuary to engage in an illegal
enterprise" and was found with a sizeable amount of cocaine. The
court also found that the defendant was the "motivating force
behind this illegal enterprise." In addition, at the hearing
wherein defendant's motion to reduce sentence was denied, the
court emphasized the seriousness of the offenses for which the
defendant had been convicted.
Based upon the record before us, we cannot say that the
sentence of ten years was an abuse of discretion. It is clear
that the trial court considered defendant's age, lack of prior
criminal activity and rehabilitative potential and that the court
balanced these mitigating factors against the aggravating factors
of the seriousness of the offense, including the location of the
illegal enterprise and the manner in which the offense was
perpetrated. See People v. Tatum, 181 Ill. App. 3d 821, 826, 537 N.E.2d 875, 878 (1989) (trial court is not required to give
rehabilitative potential more weight than it gives the
seriousness of the offense). The ten-year prison term was well-
within the statutory guidelines, and, in fact, was close to the
minimum sentence that could have been imposed. That sentence was
not an abuse of discretion.
We also cannot agree, as the defendant contends, that the
trial court improperly considered defendant's unemployment
history or the presence of the handgun. A review of the record
shows that the only mention of defendant's unemployment history
came from the assistant state's attorney who used it to show that
the defendant made his livelihood by selling drugs. Cf. People
v. Bennett, 222 Ill. App. 3d 188, 582 N.E.2d 1370 (1991); People
v. Birge, 137 Ill. App. 3d 781, 485 N.E.2d 37 (1985) (mere fact
of unemployment is not a proper factor in aggravation although
defendant's occupation and status are relevant in sentencing).
The trial court did not state that it was using defendant's
unemployment history as a factor in aggravation, and we cannot
presume that it improperly considered that fact. See McClellan,
232 Ill. App. 3d 990, 600 N.E.2d 407 (reviewing court presumes
trial court properly considered all sentencing factors). The
record also does not support defendant's contention that the
trial court considered the presence of the gun to be a factor in
aggravation. Rather, the record shows that the court considered
it as proof of the armed violence charge. Moreover, even if the
court considered the gun, it was free to do so in considering the
totality of the circumstances that existed at the time the
officers entered the defendant's house. In this regard, the
court could consider the risk created by the presence of a loaded
gun within the defendant's reach. See People v. Smith, 258 Ill.
App. 3d 261, 265, 630 N.E.2d 147, 150 (1994) (defendant's
possession of a loaded handgun can be considered in sentencing
defendant on armed violence offense). Finally, we find the four-
year differential between the defendant's sentence and Alvarez's
sentence justified by the court's finding that the defendant was
the person in charge of the illegal operation. See People v.
Visnack, 135 Ill. App. 3d 113, 481 N.E.2d 744 (1985) (disparity
in sentences of two defendants justified where one was moving
force in commission of crime).
B. Merger of Offenses
Lastly, the defendant argues that his conviction for the
offense of possession with intent to deliver should be vacated
because it merged into the conviction for armed violence
predicated on unlawful possession.[fn3] The State concedes that
a merger would occur if the defendant was convicted of possession
of a controlled substance and armed violence predicated on
unlawful possession because the former offense is a lesser
included offense of the latter. It argues, however, that the
defendant was convicted of possession with intent to deliver
rather than possession alone. In reliance on People v. Green,
199 Ill. App. 3d 927, 557 N.E.2d 939 (1990), it argues that the
offense of possession of a controlled substance with intent to
deliver has the added element of intent to deliver such that it
is not a lesser included offense of the armed violence offense
predicated on possession and thus would not merge into the latter
offense.
In People v. Roberts, 263 Ill. App. 3d 348, 636 N.E.2d 86
(1994), the same appellate district court that authored Green,
stated, "Even where lesser included offenses are not involved,
however, multiple convictions and concurrent sentences cannot be
permitted where more than one offense is carved from the same
physical act." Roberts, 263 Ill. App. 3d at 354, 636 N.E.2d at
91. Accord People v. Smith, 258 Ill. App. 3d 261, 630 N.E.2d 147
(1994) (conviction of unlawful possession of a controlled
substance with intent to deliver merged with armed violence
conviction premised on same act). The Roberts court
distinguished the facts in Green to find that separate acts
supported the two convictions in Green, namely defendant's
possession of two small bags of cocaine and a loaded revolver in
one pocket (supporting the armed violence offense premised on
possession) and the possession of nine small plastic bags of
cocaine in defendant's left pocket (supporting the possession
with intent to deliver offense). Since in Roberts the defendant
possessed a single large quantity of cannabis, the court found
that the offense of armed violence based upon possession of a
controlled substance merged with the cannabis trafficking
offense.
Here, the State attempts to rely on the distinction in Green
that was reiterated in Roberts. The State argues that five
smaller bags of rock cocaine were found on the table nearer to
the gun while a plastic bag containing two large rocks, a smaller
bag containing loose rock cocaine and the scale were found on the
other side of the table. According to the State, the former
would support a conviction for armed violence premised on
possession while the latter items would support the conviction
for possession with intent to deliver. We disagree. At the time
the police entered the premises, the defendant and Alvarez were
weighing and packaging cocaine. All of the contraband recovered
was seized from one area, the kitchen table. Each item of
contraband was in close proximity to the other items. There was
nothing to suggest that the defendant had segregated any of the
cocaine for his personal use. Without more, the evidence only
supports a finding of a single act by the defendant and Alvarez:
weighing and dividing the cocaine into smaller quantities for
sale and delivery using a gun to further that purpose. Thus, the
cocaine possessed under the armed violence offense was the same
cocaine possessed with intent to deliver thereby preventing
multiple convictions and concurrent sentences. Roberts, 263 Ill.
App. 3d at 354, 636 N.E.2d at 91. Conviction should be entered
and sentence imposed only upon the most serious offense, the
armed violence offense; and the conviction of and sentence for
possession of a controlled substance with intent to deliver must
be vacated. Smith, 258 Ill. App. 3d 261, 630 N.E.2d 147.
For the foregoing reasons, the judgment of the Circuit Court
of Cook County is vacated in part; and affirmed as modified.
Vacated in part; affirmed as modified.
LEAVITT, P.J. and BURKE, J., concur.
[fn1]The defendant argues that the "knock and announce"
requirement was violated in the instant case because the officers
did not knock before entering. We disagree. As the officers
entered defendant's house through an open and unlocked door and
used minimal force to gain entry, their entry was peaceful, and
any failure by the officers to knock and announce their entry did
not vitiate the seizures made without a warrant. See People v.
Masters, 155 Ill. App. 3d 1015, 508 N.E.2d 1163 (1987) citing
People v. Abney, 81 Ill. 2d 159, 407 N.E.2d 543 (1980).
[fn2]Due to our vacatur of defendant's ten-year sentence on
the possession with intent to deliver conviction in part B below,
we address the issue of sentence only as to the conviction for
armed violence.
[fn3]The State argues that the defendant waived this issue
by not raising it at trial and by not raising it in his post-
trial motion, at his sentencing hearing or in his motion to
reduce sentence. We reach the issue under the plain error rule.
155 Ill. 2d R. 615(a).
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