People v. Brownstein

• Decision Date: 31 March 1982
• Docket Number: No. 80-2084,80-2084
• Citation: 105 Ill.App.3d 459,434 N.E.2d 505,61 Ill.Dec. 352
• Court: United States Appellate Court of Illinois
• Parties: , 61 Ill.Dec. 352 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronald A. BROWNSTEIN, Defendant-Appellant.

Page 505

434 N.E.2d 505

105 Ill.App.3d 459, 61 Ill.Dec. 352

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronald A. BROWNSTEIN, Defendant-Appellant.

No. 80-2084.

Appellate Court of Illinois, First District, Fifth Division.

March 31, 1982.

[61 Ill.Dec. 353] I. Bruce Wexler, Chicago, for defendant-appellant

Richard M. Daley, State's Atty., Chicago (Michael E. Shabat, Ruth Stern, Geis, James B. Koch, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

WILSON, Justice:

Following a bench trial, defendant was convicted of possession of cocaine (Ill.Rev.Stat.1977, ch. 561/2, par. 1402(a)(2)); diazepam (Ill.Rev.Stat.1977, ch. 561/2, par. 1402(b)); codeine (Ill.Rev.Stat.1977, ch. 561/2, par. 1402(b)); and marijuana (Ill.Rev.Stat.1977, ch. 561/2, par. 704). He was sentenced to 6 years imprisonment for possession of cocaine, 5 years for possession of diazepam, 5 years for possession of codeine and 3 years for possession of marijuana, all to be served concurrently. On appeal, defendant asserts that (1) he was denied his right to a jury trial; (2) his conviction and sentence under Count II and III are void because prior decisions have invalidated the statute on which these counts are based; (3) the legislature has improperly classified cocaine as a narcotic; (4) he was denied effective assistance of counsel; (5) he was not proven guilty beyond a reasonable doubt; and (6) his sentence was excessive for a person with no prior record. The pertinent facts follow.

Investigator Thomas Andricopoulos testified that on July 27, 1978 he obtained a search warrant for defendant's residence at 542 West Arlington. Christine Christopolous All three floors of the apartment were searched; and in a third floor bedroom a clear plastic bag containing plants and seeds was recovered. Next to the desk in the same bedroom, police officers recovered from a briefcase a plastic bag of white powder and a number of pills. Defense counsel stipulated to the chain of custody and to the chemical identity of the substances recovered, to wit: 99.9 grams of cocaine, including the thirteen paper packets, 188 grams of marijuana seeds and plants, 18 diazepam pills and two pills containing codeine.

[61 Ill.Dec. 354] answered the door of defendant's residence, whereupon he entered and locked the door. Shortly thereafter, defendant and Jack Kellman knocked at the door and they were asked to step inside. Defendant dropped a coat as he entered the apartment, which contained 13 white paper packets of a white powder and a clear plastic bag containing a white powder. Defendant admitted that the jacket contained the white paper packets, but denied that there was a clear plastic bag in the coat.

Defendant testified that during the month of July, 1978 he lived with Christine and another female at 542 West Arlington. He shared the third floor bedroom with Christine but others had easy access to the room as well because it was the only place in the house where there was a television. He admitted that he had thirteen paper packets in his jacket but denied having a plastic bag on his person, and denied that he was aware that there was any contraband in the bedroom.

New counsel filed and argued post-trial motions, enumerating among other errors, that defendant was denied his right to a jury trial. On July 17, 1980 defendant filed a motion to reconsider denial of a new trial, in which he attached a transcript of the proceeding in which the State claimed he waived jury. The motion was considered by the trial judge on July 22, 1980, who did not rule on the motion, as he believed he had no jurisdiction since the notice of appeal was filed on July 18, 1980.

OPINION

Defendant initially contends he was denied his right to a jury trial. In support of this contention, defendant asserts that he was not advised of his right to a jury trial, did not sign a jury waiver, the report of the proceedings for May 28, 1980 does not affirmatively show an admonishment or waiver, and the common law record does not contain a signed jury waiver form; also with the motion for a new trial, trial counsel both filed affidavits in regard to the alleged jury waiver. The affidavits indicated that defendant did not sign a jury waiver form, that counsel did not waive jury in defendant's presence and that at no time was defendant admonished as to his right to a jury trial.

"Every person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court." (Ill.Rev.Stat.1977, ch. 38, par. 103-6.) And the trial court must insure that defendant made a knowing and understanding waiver. (People v. Walton (1979), 77 Ill.App.3d 905, 33 Ill.Dec. 314, 396 N.E.2d 841.) A trial without a jury cannot be upheld where the record is silent as to jury waiver. People v. Banks (1979), 71 Ill.App.3d 15, 27 Ill.Dec. 368, 389 N.E.2d 180.

In this instance, the report of the proceedings for May 28, 1980 is silent as to defendant's waiver, however, the common law record reflects that all parties were present, defendant entered his not guilty plea, was informed of his right to a jury trial and expressly waived that right. The trial judge at the post-trial hearing also stated that he had a personal recollection of defendant signing the jury waiver form. Thus, defendant's contention that he did not understandingly waive his right to trial by jury is without a foundation, particularly in light of the fact that trial counsel did not call the trial court's attention to this matter during trial.

An analogous situation was presented in People v. Rettig (1980), 88 Ill.App.3d 888, 44 Ill.Dec. 7, 410 N.E.2d 1099, where the docket entry indicated that defendant waived jury, as did the trial court's comment on the day of trial. We found that the record adequately reflected an express and understanding waiver, as we must do also in the case at bar. See also, People v. Feather (1976), 42 Ill.App.3d 974, 1 Ill.Dec. 603, 356 N.E.2d 885; People v. Karabatsos (1971), 131 Ill.App.2d 33, 266 N.E.2d 764.

People v. Coleman (1978), 59 Ill.App.3d 1050, 17 Ill.Dec. 278, 376 N.E.2d 277, relied on by defendant, is distinguishable from the case at bar. In Coleman, the report of proceedings made no reference to the jury waiver and the docket entry only stated "PLEA NOT GUILTY-JURY WAIVED." We found this evidence insufficient to sustain a jury waiver. Unlike Coleman, the docket entry in the pending matter specifically reflects what occurred, as do the trial court's comments.

Defendant also asserts that the trial judge cannot rely solely on his memory in making a correction of the record. (Hartgraves v. Don Cartage Co. (1976), 63 Ill.2d 425, 348 N.E.2d 457.) Thus, the trial court's comments on his jury waiver are impermissible as an addition or amendment to the record. However, the Hartgraves opinion left open the question of whether an amendment or addition to the record could be based on "clear memory," when that clear memory did not contradict or impeach the clear contents of the record. In People v. Whitehead (1980), 87 Ill.App.3d 885, 42 Ill.Dec. 743, 409 N.E.2d 358, defendant asserted that he never waived his right to a jury trial and the record was silent as to the waiver. The Assistant State's Attorney and the presiding trial judge both testified that defendant's attorney waived jury in defendant's presence. We held that the court could allow an amendment without some documentation in the record since the amendment supplied an omission in the record and did not impeach or contradict the contents thereof. In this instance, the trial judge's comments do not contradict the record, but in fact support the docket entry regarding defendant's waiver. While defendant's trial counsel filed affidavits with their post-trial motion asserting otherwise, resolution of any conflicts in the evidence is the responsibility of the trier of fact, and we will not substitute our judgment for that of the trial court. (People v. Villalobos (1979), 78 Ill.App.3d 6, 11-12, 33 Ill.Dec. 357, 396 N.E.2d 1081.) We believe that the trial court's finding regarding defendant's waiver is not against the manifest weight of the evidence.

Defendant next asserts that his conviction and sentence for possession of diazepam, a Schedule IV controlled substance, should be vacated as section 402(b) (Ill.Rev.Stat.1977, ch. 561/2, par. 1402(b)) was found to be unconstitutional in People v. Natoli (1979), 70 Ill.App.3d 131, 26 Ill.Dec. 266, 387 N.E.2d 1096. Our supreme court upheld the unconstitutionality of section 402(b) as applied to Schedule IV controlled substances in People v. Bradley (1980), 79 Ill.2d 410, 38 Ill.Dec. 575, 403 N.E.2d 1029. The State has conceded this issue and we are vacating the conviction and sentence on Count II.

The third issue defendant raises is that his conviction and sentence under Count III charging him with possession of codeine should be void in that section 402(b) of the statute is unconstitutional as applied to Schedule V substances. He charges that since the indictment did not mention the purity of the codeine, we must assume that the possession amounted to only a Schedule V controlled substance.

We point out that the flaw in defendant's contention is that he presumes codeine is solely a Schedule V substance. Contrary to defendant's contention, codeine is also classified as a Schedule II controlled substance under the Controlled Substances Act; and at the time of his arrest in July 1978, he could have been charged with illegal possession of codeine under Schedules II, III or V of the Act. The indictment did not state under which schedule of the Act that the charge fell. Defendant was convicted of possession under Schedule II. He acknowledges the constitutionality of the statute regarding Schedule II and III controlled substances (People v. Bradley ) and he does not dispute that the substance found in his bedroom was codeine. We stated in People v. Jones (198...