People v. Sims
| Decision Date | 02 June 2014 |
| Docket Number | No. 4–13–0568.,4–13–0568. |
| Citation | 380 Ill.Dec. 950,2014 IL App (4th) 130568,9 N.E.3d 621 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Jerry Wayne SIMS, Defendant–Appellant. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Michael J. Pelletier, Jacqueline L. Bullard, and Ryan R. Wilson, all of State Appellate Defender's Office, of Springfield, for appellant.
Jason Chambers, State's Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and Thomas R. Dodegge, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
¶ 1 A jury found defendant, Jerry Wayne Sims, guilty of all four counts of the indictment: counts I and III, which charged him with unlawful delivery of a controlled substance within 1,000 feet of a church (720 ILCS 570/407(b)(2) (West 2010)), and counts II and IV, which charged him with unlawful delivery of a controlled substance (720 ILCS 570/401(d)(i) (West 2010)). Because counts I and III were based on the same drug sales as counts II and IV, the trial court imposed sentences only for the more serious offenses, those in counts I and III. The court sentenced defendant to concurrent prison terms of 22 years.
¶ 2 Defendant appeals on four grounds. First, he argues he received ineffective assistance of counsel. We find no prejudice, however, from the allegedly deficient performance of which defendant complains.
¶ 3 Second, defendant argues that section 407(b)(2) of the Illinois Controlled Substances Act (720 ILCS 570/407(b)(2) (West 2010)) is unconstitutionally vague as applied to the facts of his case. We disagree. The language of the statute is unambiguous. Defendant did not have to guess whether the statute applied to the facts of his case.
¶ 4 Third, defendant argues the State failed to prove that, at the time of the drug sales, the building at 411 East Mulberry Street in Bloomington was “used primarily for religious worship.” See 720 ILCS 570/407(b)(2) (West 2010). On the contrary, when the evidence is regarded in the light most favorable to the prosecution, a rational trier of fact could find, beyond a reasonable doubt, that 411 East Mulberry Street was used primarily for religious worship on the dates of the drug sales.
¶ 5 Fourth, defendant argues that, in the Krankel hearing (see People v. Krankel, 102 Ill.2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984)), which the trial court held on remand from the previous appeal in this case, the court should have appointed new counsel to represent defendant in a posttrial hearing on his claims of ineffective assistance. We find no manifest error in the court's decision that there was no possible neglect of the case by trial counsel and that the appointment of new counsel was unnecessary.
¶ 6 Therefore, we affirm the trial court's judgment.
¶ 9 On February 16, 2011, a grand jury returned an indictment against defendant. The indictment consisted of four counts.
¶ 10 Count I charged that on February 4, 2011, defendant committed the Class 1 felony of unlawful delivery of a controlled substance within 1,000 feet of a church (720 ILCS 570/407(b)(2) (West 2010))—a transaction the indictment calls “Buy One”—in that, while within 1,000 feet of “The Joyful Gospel Church located at 411 East Mulberry Street,” he delivered cocaine, in an amount less than 1 gram, to confidential source No. 652 of the Bloomington police department.
¶ 11 Count II charged that on February 4, 2011, defendant committed the Class 2 felony of unlawful delivery of a controlled substance (720 ILCS 570/401(d)(i) (West 2010))—the same transaction, “Buy One”—in that he delivered cocaine, in an amount less than 1 gram, to confidential source No. 652.
¶ 12 Count III charged that on February 8, 2011, defendant committed the Class 1 felony of unlawful delivery of a controlled substance within 1,000 feet of a church (720 ILCS 570/407(b)(2) (West 2010))—“Buy Two”—in that, while within 1,000 feet of “The Joyful Gospel Church located at 411 East Mulberry Street,” he delivered cocaine, in an amount less than 1 gram, to confidential source No. 652.
¶ 13 Count IV charged that on February 8, 2011, defendant committed the Class 2 felony of unlawful delivery of a controlled substance (720 ILCS 570/401(d)(i) (West 2010))—“Buy Two”—in that he delivered cocaine, in an amount less than 1 gram, to confidential source No. 652.
¶ 14 All four counts of the indictment alleged that, despite the classification of the offenses, defendant was subject to “mandatory Class X sentencing due to [his] prior record.”
¶ 18 Theresa Hall, otherwise known as Theresa Pichon, testified she was a confidential informant for the Bloomington police department and that her “handler” was a Bloomington detective, Todd McClusky. She was paid $200 to $300 for each case.
¶ 19 On February 4, 2011, Hall told McClusky she thought she could buy cocaine from defendant, who lived in apartment B at 510 East Locust Street. That same day, McClusky gave Hall $100 in buy money and drove her to within one block of defendant's residence. She walked the rest of the way to the apartment building, went upstairs to apartment B, told defendant she had $100, and asked him “if he would give [her] anything.” Defendant answered he could indeed give her something. He made a telephone call and asked the person on the other end of the line, “ ‘Samuel, are you available[?’]” Hall then gave defendant the $100, and he left the apartment.
¶ 20 About 15 or 20 minutes later, defendant returned to the apartment and told Hall “his guy was on the way.” Defendant then left the apartment again after grabbing a Family Video bag.
¶ 21 Another 15 or 20 minutes went by, and defendant returned to his apartment a second time. This time he went into the bathroom, and he soon came back out and handed Hall some unpackaged cocaine. Because the cocaine was unpackaged, Hall assumed he had skimmed some of it off.
¶ 22 Hall left defendant's apartment, returned to McClusky's car, gave him the unpackaged cocaine, and told him about her encounter with defendant.
¶ 23 b. The Second Controlled Purchase
¶ 24 On February 8, 2011, Hall returned to defendant's apartment to make a second controlled purchase of cocaine. She gave defendant $150, previously provided to her by McClusky. Defendant left the apartment and returned 30 to 40 minutes later with cocaine packaged in a Baggie. Hall then left the apartment and gave McClusky the cocaine she had bought from defendant. In her opinion, this cocaine was worth no more than $50, although she had paid $150 for it.
¶ 25 c. The Attempt To Make a Third Controlled Purchase
¶ 26 Later in the evening on February 8, 2011, Hall returned to defendant's apartment to make a third controlled purchase. She gave him $95, previously provided to her by McClusky, and defendant left the apartment. This time, however, he did not return. Eventually, McClusky telephoned Hall and told her to leave the apartment. She did so.
¶ 27 d. Hall's Own Use of Cocaine While Working as a Confidential Informant
¶ 28 On cross-examination, Hall admitted using cocaine while working as a confidential informant, even though her agreement with the Bloomington police department required her to abstain from using narcotics.
¶ 29 e. Hall's Legal Troubles
¶ 30 Hall had been convicted of forgery. A drug problem, crack cocaine, had led to that misconduct.
¶ 31 After her forgery conviction, alcoholism got her in further trouble. In 2010, the State charged her with driving under the influence, and that case was still pending. She also had a pending misdemeanor charge for resisting arrest.
¶ 32 McClusky had done nothing to help her with these charges, and she did not expect any help from the State.
¶ 34 A Bloomington detective, Edward Shumaker, testified that on February 8, 2011, he assisted McClusky with a search of defendant's apartment. During the search, Shumaker seized a digital scale from defendant's bathroom. He testified that such scales typically were used to weigh narcotics.
¶ 36 A Bloomington detective, Kevin Raisbeck, testified that on February 8, 2011, he assisted with the investigation of defendant by performing a surveillance.
¶ 37 During the surveillance, another police officer informed Raisbeck that defendant had left his apartment and was walking to a nearby gas station. Raisbeck saw defendant at the gas station talking on his cell phone. He then saw defendant leave the gas station, meet with someone a few blocks away, and walk toward his apartment.
¶ 38 Later that same day, during the surveillance, Raisbeck saw defendant walk to the gas station and enter a vehicle. Then he saw defendant go to a Laundromat a few blocks away and get into a white Buick.
¶ 39 Soon afterward, defendant was arrested. Nothing of evidentiary value was found on his person.
¶ 41 A sergeant with the Bloomington police department, Brian Brown, testified that on February 4, 2011, he was a member of the surveillance team investigating defendant.
¶ 42 At 1:55 p.m., Brown saw the confidential informant, Theresa Hall, enter defendant's apartment. Then he saw defendant leave his apartment and go to a nearby gas station, where he talked on his cell phone.
¶ 43 Brown saw defendant leave the gas station and return to his apartment. When defendant came out of his apartment again, Brown saw he was carrying a bag. He saw defendant walk to a Family Video store and go inside.
¶ 44 He then saw defendant leave the Family Video store and get into a white Buick, which drove around the block. He then saw defendant get out of the Buick and return to his apartment. Shortly afterward, Hall left defendant's apartment...
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