People v. Manning

• Decision Date: 31 May 2016
• Docket Number: No. 1-13-0700,1-13-0700
• Citation: 2016 IL App (1st) 130700 -U
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEITH MANNING, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2016 IL App (1st) 130700-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEITH MANNING, Defendant-Appellant.

No. 1-13-0700

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT FIRST DIVISION

May 31, 2016

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County.

No. 10 C4 41005

Honorable Noreen Valeria Love, Judge Presiding.

JUSTICE CONNORS delivered the judgment of the court.

Presiding Justice Cunningham and Justice Harris concurred in the judgment.

ORDER

¶ 1 Held: (1) The trial court properly denied defendant's motions to quash and suppress; (2) The alleged evidentiary errors did not rise to the level of plain error; (3) The State conceded that the evidence was insufficient to prove defendant was within 1000 feet of a church when he committed possession with intent to deliver; (4) The trial court properly found that defendant knowingly and intelligently waived his right to a jury trial; (5) The trial court was not required to make a Krankel inquiry; and (6) Defendant's sentencing contentions are moot based on the vacation of his conviction for possession with intent to deliver within 1000 feet of a church.

¶ 2 After a bench trial, defendant Keith Manning was convicted of possession of cocaine with intent to deliver within 1000 feet of a church and possession of cannabis with intent to deliver, and sentenced to concurrent prison terms of 15 and 5 years, respectively. On appeal, defendant contends: (1) the trial court erred in denying his pretrial motions to quash the search and suppress the evidence; (2) three statements made by the State's witness at trial were erroneously admitted; (3) the evidence at trial was insufficient to prove that his possession with intent to deliver was committed within 1000 feet of a church; (4) the trial court erred in finding that defendant knowingly and intelligently waived his right to a jury trial; (5) the trial court erred in not conducting a Krankel inquiry based on defendant's "readily-apparent and cognizable ineffective assistance of counsel claim" made in his presentence investigation (PSI) report; and (6) the trial court abused its discretion by considering the harm caused by drug dealing to children as an aggravating factor in sentencing and by imposing an excessive sentence. For the following reasons, we affirm in part, vacate in part, and remand for resentencing.

¶ 3 BACKGROUND

¶ 4 Defendant was charged by information with three counts under the Illinois Controlled Substances Act (720 ILCS 570/100 et seq. (West 2010)), including: count 1, possession of between one and fifteen grams of cocaine with intent to deliver within 1000 feet of a church (720 ILCS 570/401(c)(2), 407(b)(1) (West 2010)); count 2, possession of between 100 and 400 grams of cocaine with intent to deliver (720 ILCS 570/401(a)(2)(B) (West 2010)); and count 4, possession of between 100 and 400 grams of cocaine (720 ILCS 570/402(a)(2)(B) (West 2010)). He was also charged with three counts under the Illinois Cannabis Control Act (720 ILCS 550/1 et seq. (West 2010)), including: count 3, possession of between 500 and 2000 grams of cannabis with intent to deliver within 1000 feet of a school (720 ILCS 550/5.2, 550-5(e) (West 2010)); count 5, possession of between 500 and 2000 grams of cannabis with intent to deliver (720 ILCS 550/5(e) (West 2010)); and count 6, possession of between 500 and 2000 grams of cannabis (720 ILCS 550/4(e) (West 2010)).

¶ 5 A. Pre-Trial Motion to Quash the Search Warrant

¶ 6 In August 2010, the police executed a search warrant at 1937 South 17th Avenue, Apartment 1-N, in Broadview, Illinois, and defendant was charged based on the drugs recovered from the search. Prior to trial, defendant filed two motions to quash the search warrant based on two separate grounds: (1) the police seized three items that were outside the scope of the warrant, which turned it into an improper general search warrant and the search into an impermissible general search; and (2) the police unreasonably executed the search warrant at 4:35 a.m. so that their knock and announce "would be meaningless" and their forced entry was unreasonably "tumultuous" due to the launch of "a barrage of noisemakers and smoke bombs."

¶ 7 The language of the search warrant permitted the police to search defendant and "the entire residence located at 1937 S. 17th Ave, apartment 1 North, Broadview, Cook County, Illinois." The police were allowed to seize any of the following items:

"Cocaine, cocaine paraphernalia, scales, any related or co-mingled United States Currency, Official Advanced Funds, any documents showing proof of residency, records involved in drug transactions, which have been used in the commission of or constitutes evidence of the Delivery of A Controlled Substance and Unlawful Possession of a Controlled Substance."

¶ 8 The motions proceeded on argument only; no evidence was presented. At the hearing on defendant's first motion, he specifically argued that, during the search, the police seized a laptop computer (along with the mouse, power cord, and wireless card), a 32-inch television, and a 42-inch television, exceeding the scope of the search warrant and converting the warrant into an improper general search warrant and the search into an improper general search. In response, the State claimed that the recovered laptop was covered under the warrant because it possiblycontained drug transaction records and that the televisions "were evidence of illegal drug proceeds," or alternatively, "could have been used as a place to secrete records or narcotics."

¶ 9 As to defendant's second motion, based on an unreasonable entry, defendant first explained that the agreed-to facts included that: the warrant was executed between 4:30 and 5 a.m.; "the police would testify that they knocked on the door and announced their office"; the "occupants would testify they were asleep" and did not hear any knocking or announcing; the police "busted in the door" and detonated a noise flash device (NFD) which "gives off some amount of smoke and creates a tremendous amount of noise"; and that the police then went into the bedroom and saw defendant and a woman in bed. Based on these facts, defendant argued at the hearing that "to go into a location at an hour where you wouldn't expect anyone to be able to respond to a knock and announce makes the knock and announce a meaningless act in itself." Defendant further contended that the execution of the warrant was unreasonable based on the early morning hour the police chose to knock and announce their presence in combination with the police then "bust[ing]" down the door and detonating an NFD. The State argued that the NFD was "deployed in the rear of the apartment into the kitchen" and that before the device is deployed, protocol requires the officer to "look into the room to make sure nobody is actually in there, no stove is on or anything like that." According to the State, this protocol was followed by the police, and the device was placed "immediately inside of the door just a few feet." The State also claimed that "no case law out there *** says picking a time like 4:35 [a.m.] is unreasonable." The State further argued that the time "was chosen purely for officer safety, and that was a probable [ ] time that the target would be home. The officers had information that the defendant was involved in narcotics sales, possessing narcotics in large amounts." The State concluded that "there was nothing unreasonable about this entry." The trial court denied both motions.

¶ 10 B. The Trial

¶ 11 Just before trial began, the following exchange occurred:

"THE COURT: Mr. Manning, I have here, sir, what's known as a jury waiver.

Is that your signature?

THE DEFENDANT: Yes.

THE COURT: Do you understand by signing that you are giving up the right to have a trial by jury?

THE DEFENDANT: Yes.

THE COURT: And do you know what a jury trial is?

THE DEFENDANT: Yes.

THE COURT: Okay."

¶ 12 At trial, Detective Akim testified that at approximately 4:35 a.m. on August 19, 2010, he was part of a team that executed a search warrant at the apartment in question. Once inside, a "couple minutes" after the police entered the apartment, Detective Akim found defendant on the bed in the bedroom. Detective Akim searched the bedroom and, on top of the nightstand, found a "white pill bottle containing 18 pieces of crack cocaine." He also found a cardboard box in the closet that held five plastic baggies which contained cannabis. One of the baggies contained "21 individually knotted baggies containing [cannabis]" and another bag contained "two [cannabis] filled cigars with loose [cannabis]." Detective Akim further recovered "currency totaling $2,340 in three separate bundles" from men's jackets in the closet. In a kitchen cabinet, within a sherbet container, Detective Akim found "three individually knotted baggies containing cocaine as well as another pill bottle containing 87 pieces of crack cocaine, and a separate *** plastic baggie containing crack cocaine." The kitchen also contained two boxes of Ziploc baggies that were thesame as those that were found with cocaine and cannabis inside. Detective Akim said that, judging by his experience as a police officer, the plastic bags he recovered are associated with narcotics packaging and, with respect to the 21 smaller bags of cannabis, that was a common method of sub-packaging materials for sale.

¶ 13 When the State asked Detective Akim about any proof of residency, he testified that he saw a bill from Commonwealth Edison (ComEd) in the living room that was addressed to defendant. Defendant objected to this testimony on the basis of hearsay, but was overruled. Detective Akim explained that the bill was addressed to "Keith Manning at 1937 South 17th Avenue, Apartment 1-N." The State then asked whether defendant had given his address as...