People v. Palmer-Smith

• Decision Date: 26 March 2015
• Docket Number: No. 4–13–0451.,4–13–0451.
• Citation: 29 N.E.3d 95
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Kwenton PALMER–SMITH, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

29 N.E.3d 95

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Kwenton PALMER–SMITH, Defendant–Appellant.

No. 4–13–0451.

Appellate Court of Illinois, Fourth District.

March 26, 2015.

Rehearing Denied May 5, 2015.

Michael J. Pelletier, Jacqueline L. Bullard, and Lawrence Bapst, all of State Appellate Defender's Office, of Springfield, for appellant.

Julia Rietz, State's Attorney, of Urbana (Patrick Delfino, David J. Robinson, and James C. Majors, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Presiding Justice POPE delivered the judgment of the court, with opinion.

¶ 1 In July 2013, defendant entered into a negotiated guilty plea to unlawful possession with intent to deliver a controlled substance (more than 900 grams of a substance containing cocaine) (720 ILCS 570/401(a)(2)(D) (West 2010)), a Class X felony punishable by 15 to 60 years' imprisonment. In exchange, the State agreed to dismiss two other counts and recommend a sentencing cap of 20 years in prison. The trial court sentenced defendant to 20 years in prison. The court denied defendant's motion to withdraw his guilty plea. Defendant appeals, arguing the court erred by not considering his motion to reduce his sentence on the grounds the court improperly considered a factor inherent in the offense when it sentenced him to the maximum sentence within the agreed sentencing cap. We affirm.

¶ 2 I. BACKGROUND

¶ 3 In May 2012, the State charged defendant with unlawful possession with intent to deliver a controlled substance (900 or more grams of cocaine) (count I) (720 ILCS 570/401(a)(2)(D) (West 2010)), a Class X felony punishable by 15 to 60 years in prison; unlawful possession with intent to deliver cannabis (more than 2,000 grams but not more than 5,000 grams) (count II) (720 ILCS 550/5(f) (West 2010)), a Class 1 felony punishable by 4 to 15 years in prison; and unlawful possession of a firearm by a felon (count III) (720 ILCS 5/24–1.1(a) (West 2010)), a Class 2 felony punishable by 3 to 14 years in prison (720 ILCS 5/24–1.1(e) (West 2010)).

¶ 4 At an April 2013 hearing, defendant indicated his agreement to plead guilty to count I in exchange for the State agreeing to dismiss counts II and III and recommend a sentencing cap of 20 years' imprisonment. The trial court admonished defendant of his right to a trial, to proof beyond a reasonable doubt, to hear and cross-examine witnesses against him, to call witnesses on his own behalf, and to testify. Defendant indicated his understanding of the rights he was waiving by pleading guilty. Defendant further advised the court there had not been any other promises, force, or threats to cause him to plead guilty.

¶ 5 The factual basis for the plea was as follows: In 2012, the Champaign police department was investigating drug sales involving defendant, including several controlled buys. Based on that information, the police obtained search warrants for defendant's residence and his parents' residence, where defendant often stayed. Officers located over 3,000 grams of a substance testing positive for cocaine, approximately 5,000 grams of a substance testing positive for cannabis, over $73,000 in United States currency, a loaded .45–caliber pistol, digital scales, and drug-packaging materials. Defendant admitted residing at the residences and ownership of the drugs, gun, and money.

¶ 6 The trial court accepted defendant's guilty plea, entered judgment on the plea, and ordered preparation of a presentence investigation report (PSI).

¶ 7 On May 2, 2013, a new attorney entered his appearance on defendant's behalf. On that same date, defendant filed a motion to withdraw his plea of guilty and vacate the judgment. Defendant argued he was deprived of his right to effective assistance of counsel when his original counsel was not aware of case law impacting the trial court's earlier ruling on motions to suppress evidence. Therefore, he argued, his plea was involuntary. Counsel filed a certificate pursuant to Rule 604(d) (Ill.S.Ct. R. 604(d) (eff. Feb. 6, 2013)).

¶ 8 On May 14, 2013, defendant filed a supplemental motion to withdraw his plea of guilty and vacate the judgment, which included numerous exhibits. In this motion, defendant made more in-depth arguments about his counsel's ineffective assistance regarding the motions to suppress evidence. Defendant again maintained, but for his counsel's errors, he would not have pleaded guilty.

¶ 9 At the May 2013 sentencing hearing, the trial court noted defendant had filed motions to withdraw his plea, which the court indicated it would consider after the sentencing hearing. Although defense counsel had filed a Rule 604(d) certificate along with the motion to withdraw the plea, the court gave counsel permission to file an amended certificate to include language he had reviewed the transcript of the sentencing hearing.

¶ 10 The hearing proceeded to sentencing, where the trial court indicated receipt and consideration of the PSI. Prior to the hearing, defendant had filed written objections to the PSI, among other things, objecting to inclusion of all traffic offenses, ordinance violations, and juvenile-petition charges as part of defendant's prior record. The court indicated it did not consider petty traffic offenses, but it would not exclude consideration of defendant's juvenile-adjudication history.

¶ 11 The State presented no evidence in aggravation.

¶ 12 Defendant presented testimony from his 16–year–old daughter, 66–year–old father, and 54–year–old mother. Counsel sought exclusion of all people from the courtroom so he could present the testimony of a Champaign police officer. Because the court refused to exclude a member of the press from the courtroom, counsel did not call the witness but was allowed to summarize what that testimony would have included, i.e., defendant's cooperation during the investigation of the case.

¶ 13 Defendant argued the applicable statutory factors in mitigation included (1) defendant's conduct neither caused nor threatened serious physical harm to another; (2) defendant did not contemplate his criminal conduct would cause or threaten serious harm to another; and (3) defendant had led a law-abiding life for a substantial period of time before the commission of this crime, because prior to this 2012 offense his last criminal offense dated back to 1999. Defendant asked for the minimum sentence of 15 years in prison.

¶ 14 The State recommended 20 years in prison due to defendant's prior drug-related record and the fact he was running a large-scale drug business out of his home and his parents' home with “astounding” amounts of cocaine and cannabis, large amounts of cash, and a loaded weapon. The State further argued defendant's conduct certainly posed a danger to the community and others in his household given the number of people with whom he would have had contact through this large-scale drug business.

¶ 15 Defendant testified in allocution, stating he was sorry to everyone. He asked for the minimum sentence because he was not a troublemaker and he did not cause any harm, his family was dependent on him, he had made mistakes but had been to church, and he knew how to help others change and correct their lives.

¶ 16 The trial court indicated it had considered the PSI with amendments, the comments of counsel, defendant's comments, the testimony in mitigation, the statutory factors in aggravation and mitigation, and the nature of the offense. The court found some statutory factors did not apply to defendant due to the nature of the offense. The court found the following nonstatutory mitigating factors applied: (1) defendant had pleaded guilty; (2) he was a relatively young man; (3) albeit lately, he had been involved in the lives of his daughter and newborn son; (4) he was an articulate and intelligent young man; and (5) he cooperated with the police during the investigation of the case. Although defendant did have a prior juvenile adjudication, the court did not really consider that as a factor in aggravation since it was 20 years ago. The court found two statutory factors in aggravation: defendant's 1998 conviction for unlawful possession with intent to deliver a controlled substance and deterrence.

¶ 17 The trial court further stated:

“Quite frankly, the only statutory factor in aggravation that really applies to this case because, as [defense counsel] said, his last stretch in the Department of Corrections was a considerable period of time ago, but the factor that has come across loudly and clearly is the deterrent factor. As the statute says, this court has to fashion a sentence that will not only deter this defendant, but others similarly situated from committing this type of an offense. The offense involved is possession with intent to deliver. According to the factual basis, the seizure out of the Sherwood Terrace address was over—approximately 3[,]000 grams of a substance testing positive for cocaine, and a large, large amount of cannabis. This is a large amount of controlled substance. [Defendant] was a substantial drug dealer.

Unlike the ones that the court sees on a regular basis, the ones with a couple of bags in their pocket, the State charges possession with intent to deliver, the amount doesn't even total five grams. This defendant had a substantial, some would say outrageous amount of drugs for distribution in this community. So the deterrent factor has to come across loudly and clearly.

* * *

The agreement was somewhere between 15 and 20 years. The maximum could have been out to 60 years, and the court agreed that the sentencing range that was agreed to between [defense counsel] and [the assistant State's Attorney] was an appropriate one, given the circumstances. But when I look at the deterrent factor, it becomes apparent that the sentence has to be one that will deter other individuals similarly situated, and therefore, I do believe a sentence is one of incarceration to the Illinois Department of

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