People v. Blakney

Decision Date08 August 2007
Docket NumberNo. 1-04-3669.,1-04-3669.
PartiesThe PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dontell BLAKNEY, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Michael J. Pelletier, Deputy Defender, and Barbara C. Kamm, Supervisor, Office of the State Appellate Defender, Chicago (Gilbert C. Lenz, Assistant Appellate Defender, of counsel), for Appellant.

Richard A. Devine, State's Attorney, County of Cook, Chicago (James E. Fitzgerald, Yvette Loizon and Patrick Waller, of counsel), for Appellee.

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 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, 304 Ill.Dec. 808, 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 569, 308 Ill.Dec. 402, 861 N.E.2d 967 (2006).

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. 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 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, 275 Ill.Dec. 800, 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, 212 Ill.Dec. 675, 657 N.E.2d 1020, 1026 (1995).

The elements of intent to deliver are generally proved by circumstantial evidence. People v. Beverly, 278 Ill.App.3d 794, 799, 215 Ill.Dec. 547, 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, 212 Ill.Dec. 675, 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, 212 Ill.Dec. 675, 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, 212 Ill.Dec. 675, 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, 212 Ill.Dec. 675, 657 N.E.2d at 1026-1030; People v. Bush, 214 Ill.2d 318, 327, 292 Ill.Dec. 926, 827 N.E.2d 455, 461 (2005).

Defendant relies on several cases, including People v. Crenshaw, 202 Ill.App.3d 432, 147 Ill.Dec. 711, 559 N.E.2d 1051 (1990); People v. Thomas, 261 Ill.App.3d 366, 199 Ill.Dec. 43, 633 N.E.2d 839 (1994); and People v. Hodge, 250 Ill.App.3d 736, 189 Ill.Dec. 683, 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, 147 Ill.Dec. 711, 559 N.E.2d at 1053. In Thomas, the court held the evidence was 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...

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9 cases
  • People v. Clinton
    • United States
    • United States Appellate Court of Illinois
    • February 5, 2010
    ...drugs were packaged for sale and at least one additional factor tending to show an intent to deliver. People v. Blakney, 375 Ill. App.3d 554, 559, 314 Ill.Dec. 77, 873 N.E.2d 1007 (2007); People v. Beverly, 278 Ill.App.3d 794, 802, 215 Ill.Dec. 547, 663 N.E.2d 1061 (1996); People v. Delgado......
  • People v. Sherrod
    • United States
    • United States Appellate Court of Illinois
    • October 7, 2009
    ...drugs were packaged for sale, and at least one additional factor tending to show intent to deliver." People v. Blakney, 375 Ill. App.3d 554, 559, 314 Ill.Dec. 77, 873 N.E.2d 1007 (2007), citing People v. Beverly, 278 Ill.App.3d 794, 802, 215 Ill.Dec. 547, 663 N.E.2d 1061 (1996). See also Pe......
  • People v. Ellison
    • United States
    • United States Appellate Court of Illinois
    • March 28, 2013
    ...other grounds by People v. Luedemann, 222 Ill.2d 530, 306 Ill.Dec. 94, 857 N.E.2d 187 (2006); accord People v. Blakney, 375 Ill.App.3d 554, 558, 314 Ill.Dec. 77, 873 N.E.2d 1007 (2007). This list of “factors” is not “exhaustive” or “inflexible.” People v. Bush, 214 Ill.2d 318, 328, 292 Ill.......
  • People v. Wade
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    • United States Appellate Court of Illinois
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    ...to accurately reflect his conviction: possession of a controlled substance with intent to deliver. See People v. Blakney, 375 Ill.App.3d 554, 560, 314 Ill.Dec. 77, 873 N.E.2d 1007 (2007) (where wrong offense is listed, this court may order corrected mittimus be issued to reflect actual offe......
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