author: JUSTICE QUETSCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY YOUNG, Defendant-Appellant.
    Second District
    No. 2 — 92—0016
    Opinion filed September 1, 1993.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Marilyn Martin, of Chicago, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan, and Patrick J. O’Shea, of Law Offices of Patrick J. O’Shea, of Lombard (William L. Browers, Lisa A. Hoffman, and John X. Breslin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE QUETSCH

delivered the opinion of the court:

Defendant, Jerry Young, entered a straight plea to the possession of between 30 and 500 grams of cannabis with the intent to deliver, in violation of section 5(d) of the Cannabis Control Act (Ill. Rev. Stat. 1989, ch. 56V2, par. 705(d) (now 720 ILCS 550/5(d) (West 1992))). On appeal he claims that his trial counsel was ineffective for failing to investigate his mental records. According to defendant, such investigation would have revealed that defendant was not competent to enter a guilty plea, or at least it would have revealed a valid defense to the offense charged. Defendant also claims that the trial court abused its discretion when it sentenced him to an extended term of eight years’ imprisonment.

To establish a factual basis for defendant’s plea, the State informed the trial court of the following facts. Officer Gary Govecar of the Lake County Metropolitan Enforcement Group arranged for a confidential informant to purchase marijuana from defendant. On March 12, 1991, defendant exhibited the marijuana to the informant while the two were riding in a car. An officer from the Round Lake police department executed a traffic stop of the car in which defendant and the informant were riding. The officer retrieved the marijuana from under defendant’s seat. Defendant admitted that he intended to sell the marijuana to the informant.

After the trial court admonished defendant of his rights, the trial court asked defendant if his plea had been forced or coerced. Defendant responded in the negative. The trial court then asked defendant if he felt that his attorney had represented him well. Defendant responded in the affirmative. Defendant also confirmed that he had no complaints about his attorney’s performance.

At defendant’s sentencing hearing, the State presented the testimony of Officer Govecar. Govecar testified that a confidential informant contacted the Lake County sheriff’s office with information that defendant was involved in selling marijuana. The informant volunteered to participate in apprehending defendant. On March 6, 1991, the informant introduced defendant to Govecar, who was working undercover. The three men drove together to another location. The informant asked defendant if he had any marijuana, and defendant sold the informant a “baggy” of marijuana for $140. As they were returning to the location where they had met defendant, Govecar and the informant inquired into purchasing a larger quantity of marijuana from defendant. Defendant told the men that he could procure a pound of marijuana within 20 minutes and that he would sell it for $2,000. Govecar and the informant told defendant that they could not obtain that much money until the following day.

On March 7, 1991, Govecar and the informant once again met with defendant. Defendant stated that he did not have the marijuana with him, but that he could get it within 20 minutes. Defendant told Govecar and the informant that they could either pay him the $2,000 in advance and he would procure the marijuana, or they could accompany him when he purchased the marijuana. Govecar rejected both terms.

After the unsuccessful March 7, 1991, transaction, Govecar arranged for the informant to participate in the March 12, 1991, transaction which led to defendant’s arrest. Govecar further testified that the informant had told him after defendant’s arrest that defendant had been under the influence of drugs at the time of the transaction.

The presentence report established that defendant had an extensive criminal history beginning in 1970 when defendant was a juvenile. During the 10 years prior to his arrest in this case, defendant had been convicted three times of burglary, once of battery, once of aggravated battery, twice of theft, once of shoplifting, twice of driving while he was under the influence of alcohol, four times of driving while his license was revoked, once of criminal trespass to a motor vehide, and once of resisting a peace officer. Most recently, in March 1990, defendant was paroled from the Wisconsin Department of Corrections after serving years of a four-year sentence for burglary and theft. Defendant was on parole when he committed the offense in this case, although he completed his parole without revocation. Defendant never successfully completed any other term of supervision, probation, or parole. In addition, while defendant was free on bond for the instant offense, he tested positive for cannabis.

According to defendant’s presentence report, a 1982 evaluation of defendant by Lake County Mental Health revealed that defendant operated “on a dull-normal level of intellectual functioning,” displayed “an irregular thought process,” and had difficulty thinking abstractly. This evaluation stated that defendant “may be described as evidenting [sic] an antisocial personality disorder.” In addition, defendant was hospitalized for approximately two weeks in 1975 for an “acute psychotic episode.”

Defendant’s probation officer enlisted Dr. John Dunne to perform a current psychiatric evaluation of defendant. According to Dr. Dunne, defendant’s full-scale IQ was 76. This IQ was lower than defendant’s IQ in 1982. Dr. Dunne stated that defendant’s drop in IQ may have reflected “neurological damage stemming from his chronic abuse of alcohol and drugs.” Dr. Dunne observed that defendant’s verbal skills were better than his perceptual organization skills. However, his verbal skills were weak, and at times he had difficulty communicating. Dr. Dunne stated that defendant was not psychotic but seemed to have “significant psychological and emotional problems.” In addition, Dr. Dunne stated that defendant depended on his wife to manage his daily affairs. Dr. Dunne further stated that, despite defendant’s 1982 Lake County mental health evaluation, defendant did not seem to have strong antisocial tendencies, although he did show a “tendency toward impulsiveness.”

Defendant suffered a grand mal seizure in June 1991, approximately three months before he entered his guilty plea.

The presentence report further indicated that defendant had been using drugs and alcohol since his early teens. Defendant was also diagnosed as an alcoholic in 1982. He claims that he stopped drinking and using drugs in 1987. However, he tested positive for marijuana during the pendency of this case. Furthermore, a recent employer of defendant reported that he believed that defendant overdosed on prescription drugs. Defendant’s probation officer stated in the presentence report that she believed defendant continued to use alcohol and drugs despite his denial.

In mitigation, defendant presented the testimony of Martha Rogers, a pretrial services employee. Rogers stated that other than one traffic offense, defendant complied with the terms of his release while he was out on bond during the pendency of his case. Rogers admitted on cross-examination that defendant tested positive for cannabis.

Linnea Cunningham, a friend and neighbor of defendant and his wife, testified regarding defendant’s good moral character. She also testified that she had observed that defendant was good with children and that he did not drink.

Laura Young, defendant’s wife, testified that she had observed changes in defendant since the last time he was in prison. She testified that before he was incarcerated he frequently went to bars and stayed out late. After his 1990 release from prison, he got a job at the YMCA. She further testified that he helped her take care of her two children, aged 11 and 14. She stated that defendant’s return to prison would be a hardship to her and to her children. She had learned that her son had cried to a neighbor about the possibility of defendant’s returning to prison.

Defendant testified that after his release from prison he started working at the YMCA seven days per week, 12 hours per day. He also testified to seeing his pastor on a regular basis and sending him letters. He also stated that he and his wife planned to buy a house. Defendant testified that he felt that he had been set up by the informant. Defendant also presented letters from his father, a friend of defendant’s family, J.J. Thomson, and Pastor Peter Paine.

The State urged the trial court to impose the maximum extended-term sentence of 10 years based on defendant’s extensive criminal history and the large quantity of marijuana involved in this case. Defendant, on the other hand, argued that a minimum sentence of imprisonment would be appropriate because he was “goaded” into committing the crime.

The trial court found in mitigation that defendant neither caused nor threatened serious physical harm and that defendant did not contemplate that his conduct would cause or threaten serious physical harm. The trial court rejected defendant’s contention that he was acting under strong provocation or that there were grounds excusing or justifying his conduct. The trial court acknowledged that someone other than defendant facilitated the conduct. Nonetheless, the trial court stated: “I find [defendant] was fully aware of what he was doing, and his participation was quite active, and *** that his ability to produce with great alacrity and speed the amount of marijuana requested shows that he was quite seriously involved.” The trial court further stated: “[Defendant’s] imprisonment, indeed, will entail hardship upon his dependants, and most imprisonment does do exactly that.” The trial court found that there was no evidence of mental retardation, but that there was evidence of a low functionality.

Regarding the likelihood that defendant would commit future crimes, the trial court quoted from the presentence report that defendant manifested “poor understanding of himself and his responsibilities as an adult,” “pervasive impulsivity,” and “routine lack of good judgement,” and that he evidenced an antisocial personality disorder. The trial court rejected the remaining mitigating factors listed in section 5 — 5—3.1 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.1 (now 730 ILCS 5/5 — 5—3.1 (West 1992))). The trial court also found that defendant was a particularly poor candidate for probation.

In aggravation, the trial court placed the greatest weight on defendant’s “background of delinquency and criminality.” The trial court pointed out that defendant had a history of drug abuse and treatment. The trial court acknowledged that defendant’s 20-year involvement with drugs may have affected his level of functioning. He pointed out that, although defendant denied having used drugs since 1987, he tested positive for drugs in September 1991. The trial court stated: “I am quite convinced that he still uses substances notwithstanding his denial, and do find that his record clearly indicates that he has been for some time a career criminal who had been involved with drugs as a user and a seller, and his prospects of rehabilitation, in my view, are next to nil, unfortunately.” The trial court found that probation would deprecate the seriousness of the offense and that, because of defendant’s criminal history, an extended term was appropriate.

The trial court sentenced defendant to eight years’ imprisonment and also imposed a $50 laboratory fee and a $2,500 street-value fine. The trial court fully admonished defendant in accordance with Supreme Court Rule 605(b) (134 Ill. 2d R. 605(b)).

Defendant filed a motion to reconsider his sentence pursuant to section 5 — 8—1(c) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 1005— 8 — 1(c) (now codified, as amended, at 730 ILCS 5/5 — 8—1(c) (West 1992))). Defendant argued that his eight-year sentence was excessive because (1) he neither caused, threatened, nor intended to cause or threaten harm; (2) his imprisonment would result in excessive hardship to his dependents; and (3) his offense was probationable. The trial court denied defendant’s motion. Defendant never filed a motion to withdraw his guilty plea pursuant to Supreme Court Rule 604(d). 134 Ill. 2d R. 604(d).

Defendant argues on appeal that his guilty plea should be vacated because his trial counsel was ineffective for failing to investigate his medical records. According to defendant, these records would have revealed psychological problems and intellectual limitations bearing on defendant’s fitness to enter a voluntary guilty plea. Defendant further argues that, even if he was technically fit to plead guilty, pleading guilty was unwise. According to defendant, had his counsel discovered his psychological and mental impairments, his counsel would have learned that defendant was a highly suggestible individual, and he would have been able to formulate a strong entrapment defense.

Defendant points out that the following information was available to his attorney at the time he entered his guilty plea: his history of drug and alcohol abuse, his 1975 psychotic episode and hospitalization, the 1982 mental health evaluation, and his June 1991 grand mal seizure. This information should have alerted his attorney to the possibility that defendant suffered significant impairments. Defendant further points out that his probation officer saw fit to order a psychological evaluation based on this evidence of impairment. Defendant argues that the information in Dr. Dunne’s report further supports his contention that either he was unfit to enter a guilty plea or that he had a valid entrapment defense and therefore should not have pleaded guilty.

Defendant, however, never filed a motion to withdraw his guilty plea as required by Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)). Rule 604(d) provides, in part:

“No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment. The motion shall be in writing and shall state the grounds therefor. *** Upon appeal any issue not raised by the defendant in the motion to withdraw the plea of guilty and vacate the judgment shall be deemed waived.” 134 Ill. 2d R. 604(d).

Compliance with Rule 604(d) is a condition precedent to an appeal from a judgment entered on a guilty plea. (People v. Wilk (1988), 124 Ill. 2d 93,107.) In Wilk, our supreme court stated:

“A hearing under Rule 604(d) allows a trial court to immediately correct any improper conduct or. any errors of the trial court that may have produced a guilty plea. The trial court is the place for fact finding to occur and for a record to be made concerning the factual basis upon which a defendant relies for the grounds to withdraw a guilty plea. If the motion to withdraw the plea is denied, that decision can be considered on review.” Wilk, 124 Ill. 2d at 104.

Because defendant filed a motion to reconsider his sentence, we have jurisdiction to review the judgment in this case. (People v. Wallace (1991), 143 Ill. 2d 59, 61.) However, for the purposes of this appeal, defendant has waived issues relating to the validity of his guilty plea because he did not raise those issues in a Rule 604(d) motion. People v. Carroll (1990), 195 Ill. App. 3d 445, 446-47.

The instant case illustrates precisely why a defendant must file a Rule 604(d) motion before appealing his guilty plea. The trial court never heard defendant’s claims that his trial counsel failed to investigate his medical records and that he was unfit to enter a guilty plea. Therefore, defendant never had an opportunity to develop a record to support his claim. Defendant cites evidence in his presentence report of his low intellectual functioning. However, he has provided no direct evidence of how his impairments rendered him unfit to enter a guilty plea. To infer such unfitness from the evidence in the record would be speculation at best. Furthermore, the record contains no evidence that defendant’s attorney failed to investigate his medical records and consider whether defendant was fit to enter a guilty plea. Likewise, there is no evidence in the record of defendant’s inability to communicate with his attorney. The trial court is the proper place for making this record. People v. Keele (1991), 210 Ill. App. 3d 898, 903.

We acknowledge that defendant may not have been at fault for failing to file a motion to withdraw his guilty plea. The court explained in Wilk that where a defendant’s failure to file a Rule 604(d) motion stems from the ineffective assistance of his trial counsel, the appropriate remedy for that defendant lies in the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq. (now codified, as amended, at 725 ILCS 5/122 — 1 et seq. (West 1992))). (Wilk, 124 Ill. 2d at 105; People v. Umfleet (1989), 190 Ill. App. 3d 804, 809.) A proceeding under the Post-Conviction Hearing Act would provide defendant with the opportunity to develop a record in support of his claim.

Next, defendant argues that the trial court abused its discretion in sentencing him to an extended eight-year term. Specifically, defendant claims that the trial court did not consider three mitigating factors: (1) defendant’s mental retardation; (2) the hardship that the sentence would impose on his dependents; and (3) his alcoholism. Defendant also claims that the trial court improperly considered the quantity of cannabis involved in the offense and that it improperly speculated that defendant suffered from an antisocial personality disorder.

Defendant did not raise the majority of these contentions in his motion to reconsider his sentence. The State points out that any issue not raised in a motion to reduce a sentence is waived on appeal. (People v. Bronson (1991), 216 Ill. App. 3d 839, 842.) However, we will review defendant’s contentions in light of the fact that he did generally inform the trial court of his argument that his sentence was excessive (see People v. Franks (1977), 51 Ill. App. 3d 886, 890) and in light of the substantial rights involved (see People v. Martin (1988), 119 Ill. 2d 453, 458; People v. Pierce (1992), 223 Ill. App. 3d 423, 441).

We find that defendant’s arguments are without merit. Defendant does not dispute that he was eligible for an extended-term sentence because he had been convicted of a similar or greater class felony within the past 10 years. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005— 5 — 3.2(b)(l) (now codified, as amended, at 730 ILCS 5/5 — 5—3.2(b)(l) (West 1992)).) The possession of between 30 and 500 grams of cannabis with the intent to deliver is a Class 3 felony. (Ill. Rev. Stat. 1989, ch. 56V2, par. 705(d) (now 720 ILCS 55075(d) (West 1992)).) As such it carries a maximum extended sentence of 10 years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-2(a)(5) (now 730 ILCS 5/5-8-2(aX5) (West 1992)).) An eight-year sentence, therefore, was within the statutory range.

A trial court’s sentencing determinations are entitled to great weight (People v. Perruquet (1977), 68 Ill. 2d 149, 154), and we will not disturb them absent an abuse of discretion. (People v. Felella (1989), 131 Ill. 2d 525, 541; People v. Waldron (1991), 219 Ill. App. 3d 1017, 1046.) “Before this court will interfere with the sentence imposed, it must be manifest from the record that the sentence is excessive and not justified under any reasonable view which might be taken of the record.” People v. Smith (1991), 214 Ill. App. 3d 327, 338.

We first reject defendant’s contention that the trial court did not consider defendant’s mental retardation as a mitigating factor. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.1(a)(13) (now 730 ILCS 5/5 — 5—3.1(a)(13) (West 1992)).) The Code defines “mental retardation” as:

“sub-average general intellectual functioning generally originating during the developmental period and associated with impairment in adaptive behavior reflected in delayed maturation or reduced learning ability or inadequate social adjustment.”

Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 1—13 (now 730 ILCS 5/ 5-1-13 (West 1992)).

The trial court specifically stated that it considered the evidence of defendant’s “low functionality” but found that defendant was not mentally retarded. Defendant presented no definitive evidence of his mental retardation. The trial court witnessed defendant make statements during the proceedings. The trial court, therefore, was in the best position to evaluate whether defendant was mentally retarded. (See People v. Streit (1991), 142 Ill. 2d 13, 19.) We conclude that this finding was not an abuse of discretion. Furthermore, it appears that the trial court did consider defendant’s low functionality in making its sentencing determination.

Defendant next argues that the trial court did not properly consider the hardship that his imprisonment would place on his dependents. That defendant’s imprisonment would entail excessive hardship to his dependents is a mitigating factor under the Code. (Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3.1(a)(H) (now 730 ILCS 5/5 — 5— 3.1(a)(H) (West 1992)).) The trial court stated that defendant’s “imprisonment, indeed, will entail hardship upon his dependents, and most imprisonment does do exactly that.” According to defendant, the trial court has effectively written that mitigating factor out of the statute. We disagree.

We acknowledge that the trial court’s statement is somewhat unclear. The trial court could have meant that the hardship to defendant’s dependents would not be excessive, since all imprisonment creates some hardship for the prisoner’s dependents. On the other hand, the trial court could have meant that it considered the hardship to defendant's dependents as a mitigating factor, but concluded that it did not outweigh the factors supporting a lengthy prison sentence. Either way, the trial court’s treatment of this factor was permissible. The existence of a mitigating factor does not obligate the trial court to impose a minimum sentence. People v. Powell (1987), 159 Ill. App. 3d 1005, 1011.

Defendant also claims that the trial court failed to consider his alcoholism as a mitigating factor. Although alcoholism is not a statutory mitigating factor, in some circumstances it is appropriate for a trial court to consider it in mitigation. (Smith, 214 Ill. App. 3d at 339.) We presume, absent evidence to the contrary, that the trial court considered the mitigating evidence before it. (People v. Phillips (1992), 226 Ill. App. 3d 878, 891.) In this case, the trial court did consider the evidence of defendant’s alcohol abuse. The trial court found that, while the abuse may have contributed to defendant’s low functionality, it also suggested that defendant lacked rehabilitative potential. Such a finding is permissible. People v. Scott (1992), 225 Ill. App. 3d 938, 941-42.

Viewing the record as a whole, we find that the imposition of an eight-year sentence, which was two years below the maximum extended term, was not a abuse of discretion. See People v. Munn (1991), 216 Ill. App. 3d 1058, 1062-63.

Next, defendant claims that the trial court improperly credited the State’s argument that the quantity of cannabis involved in the offense constituted a factor in aggravation under section 411 of the Controlled Substances Act (Ill. Rev. Stat. 1989, ch. 56^2, par. 1411(2) (now 720 ILCS 570/411(2) (West 1992))). Defendant points out that the provision on which the State relied is part of the Controlled Substances Act and does not apply to offenses under the Cannabis Control Act. (People v. Knight (1985), 133 Ill. App. 3d 248, 257.) However, the trial court recited in detail the factors upon which it relied, and the trial court nowhere mentioned that it considered in aggravation that a large amount of cannabis was involved in the offense. “Absent proof to the contrary, we may presume that the trial judge considered only relevant, material and competent evidence in deciding whether to impose an extended-term sentence.” People v. Nally (1991), 216 Ill. App. 3d 742, 773.

We note that the trial court did find that defendant’s “ability to produce with great alacrity and speed the amount of marijuana requested shows that he was quite seriously involved.” The trial court properly determined that this fact undermined defendant’s argument that he was “goaded” into committing the offense.

Defendant finally argues that the trial court’s finding that defendant had an anti-social personality disorder was contrary to the evidence. Therefore, according to defendant, the trial court improperly relied on this finding in determining his sentence. The trial court mentioned defendant’s antisocial personality disorder during its discussion of certain mitigating factors — that the criminal conduct was the result of circumstances likely to recur and that defendant’s character and attitudes indicate that he is unlikely to commit another crime — applied to defendant. (Ill. Rev. Stat. 1989, ch. 38, pars. 1005— 5-3.1(a)(8), (a)(9) (now 730 ILCS 5/5-5-3.1(a)(8), (a)(9) (West 1992)).) Quoting in part from the 1982 mental health evaluation, the trial court stated that defendant:

“has a ‘pervasive impulsivity’ and a ‘routine lack of good judgment.’
‘Additionally, he has a poor understanding of himself and his responsibilities as an adult. The evaluation states that he may be described as evidencing an anti-social personality disorder.’ Given that, and given his long history of criminality, I find very little basis for rehabilitation or any change in life style that the defendant claims and that the letters on his behalf claim. I am quite convinced that the conduct would be quite likely to recur and to recur quite frequently and unabatedly and that he would likely commit a continuous stream of crimes.”

The trial court was referring to the presentence report’s discussion of the 1982 Lake County Mental Health evaluation of defendant. Defendant points out that Dr. Dunne’s 1991 evaluation contradicted this report. Dr. Dunne stated that “[d]espite [defendant’s] criminal history, the MMPI-2 does not suggest string [sic] antisocial tendencies.” Dr. Dunne also stated, however, that “[t]he testing does indicate a tendency toward impulsiveness, which combined with his difficulties with abstract thinking, may contribute to his taking action without regard for its consequences.” This statement is not inconsistent with either the 1982 evaluation or the trial court’s finding. The trial court’s reliance on the 1982 evaluation, therefore, was not entirely misplaced.

In addition, even if the trial court did misstate the evidence, the trial court’s finding was not unreasonable. Considering defendant’s history of continuous criminal violations, the trial court’s finding that the defendant would likely repeat his criminal conduct or commit future crimes was not an abuse of discretion. In reviewing a sentence, we will consider the record as a whole rather than focusing on a few words or statements. People v. Bolden (1991), 210 Ill. App. 3d 940, 948.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

BOWMAN and COLWELL, JJ., concur.


source: Caselaw Access Project

author: JUSTICE COLWELL

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELMER ALEXANDER, Defendant-Appellant.
    Second District
    No. 2 — 92—0501
    Opinion filed September 2, 1993.
    G. Joseph Weller, of State Appellate Defender’s Office, and Anne S. Quincy, both of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Lisa A. Hoffman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COLWELL

delivered the opinion of the court:

A jury found defendant, Elmer Alexander, guilty of one count of the unlawful delivery of at least 15 grams but less than 100 grams of a substance containing cocaine, a controlled substance. (Ill. Rev. Stat. 1991, ch. 56V2, par. 1401(a)(2)(A) (now 720 ILCS 570/401(a)(2)(A) (West 1992)).) After entering a judgment on the verdict, the court denied defendant’s post-trial motion and sentenced him to eight years’ imprisonment. On appeal, defendant argues he is entitled to a new trial because the court erroneously refused to instruct the jury on the defense of entrapment. See Ill. Rev. Stat. 1991, ch. 38, par. 7 — 12 (now 720 ILCS 5/7 — 12 (West 1992)); see also Illinois Pattern Jury Instructions, Criminal, Nos. 24 — 25.04, 24 — 25.04A (3d ed. 1992).

We hold that the evidence entitled defendant to raise the entrapment defense. We reverse and remand for a new trial.

On January 24, 1991, defendant procured a substance containing cocaine and delivered it to undercover police officer Mark Fritz, who was posing as the brother-in-law of Dennis Tennin. Tennin, a friend of defendant, was a confidential informant who introduced defendant to Fritz on January 18, 1991, at which time defendant also delivered cocaine to Fritz. Defendant was indicted for the January 24, 1991, transaction. His first trial ended in a mistrial and he was retried.

Mark Fritz was the State’s principal witness. In January 1991, he was working undercover for the State Line Area Narcotics Team (SLANT) in Rockford. He was assigned to purchase drugs from defendant, who he knew was Tennin’s long-time friend. Tennin also told him defendant was a dealer for Carrie Woods, a leading Rockford cocaine supplier. Defendant’s acquaintance with Woods was the main ■ reason SLANT pursued defendant.

On January 18, 1991, Tennin (for a $100 fee from SLANT) introduced Fritz to defendant, who was known as “Bader,” at defendant’s home at 512 Hill Street in Rockford. At trial, Fritz did not recall whether Tennin had telephoned defendant earlier that day to set up the meeting. Tennin told defendant that the officer was Tennin’s brother-in-law from Sterling and that Fritz wanted defendant to supply him with cocaine. Defendant told Fritz that he could obtain all the cocaine Fritz wanted, and he quoted some prices to Fritz. Fritz told defendant he wanted a quarter-ounce of cocaine; defendant insisted on a price of $400. Fritz gave defendant $350 and told him to get what he could. Defendant did not hesitate in agreeing to buy drugs for Fritz.

Defendant and Fritz got into Fritz’s car. At defendant’s direction, Fritz drove to 724 Concord Avenue. Fritz knew this was rumored to be Carrie Woods’ drug house. Defendant entered the house and returned with a package of cocaine. When Fritz remarked that the package was heat-sealed, defendant replied that this packaging was the trademark of “Seal-a-meal.” After the transaction, Fritz said he would like defendant to obtain larger amounts (a half-ounce or an ounce) for him in the near future. Defendant quoted prices for these amounts, which are amounts purchased by dealers rather than by mere users. Defendant said they could set up a deal with Tennin’s assistance.

Fritz next met defendant at defendant’s house at about 11:18 a.m. on January 24, 1991. Fritz had paid Tennin $150 to call defendant earlier that day to arrange the meeting. Tennin called defendant at least once that morning before Fritz showed up. After Tennin told Fritz that defendant was willing to deal, Fritz went alone to defendant’s house. Fritz explained that he did not bring Tennin along because Tennin had “ripped [him] off” earlier. Fritz told defendant he wanted to buy an ounce of cocaine. Defendant said it would cost $1,400; he refused to negotiate a lower price. As on January 18, defendant expressed no reluctance to deal, and he was sure that he could procure the requested amount of cocaine.

After they agreed on the price, defendant and Fritz went to Fritz’s car. Fritz told defendant he would like to work directly with defendant, and he asked defendant how they could get in touch when needed. Without hesitation, defendant told Fritz that he would give Fritz his telephone number. Defendant wrote down the number on a napkin Fritz supplied.

Defendant told Fritz he would take him to one of defendant’s suppliers. At defendant’s direction, Fritz drove to Blake Street. Defendant said he would get cocaine from a “Mexican.” Defendant soon returned and said the Mexican was not around. He offered to take Fritz to another dealer known as “Seal-a-meal.”

At defendant’s direction, Fritz drove to 724 Concord Avenue. Noticing there were no vehicles in the driveway, defendant instructed Fritz to drive to a white building about two blocks north of 724 Concord. Defendant entered the building and returned. He said that the people there had only three “eight-balls” (or eighth-ounces of cocaine). Fritz wanted an ounce. Defendant directed him to Oakwood Avenue, where a relative of Seal-a-meal lived. However, defendant could not get cocaine at this address; so at defendant’s direction, Fritz drove back to 724 Concord to see if Seal-a-meal had returned.

As the car approached the intersection of Albert Avenue and West State Street, defendant spotted a young woman whom he identified as another relative of Seal-a-meal. Fritz pulled over at defendant’s request. Defendant and the woman spoke briefly, then went to a residence at 115 Albert. When he returned to Fritz’s car, defendant said that the woman had no cocaine to sell. Fritz recognized the woman as Ellen Woods, a relative of Carrie Woods. Defendant directed Fritz back to Seal-a-meal’s house at 724 Concord. When they arrived, the parking lot was crowded. Defendant said the place was “in business.”

Fritz parked a block away as defendant entered the residence. Fritz soon drove up to get defendant, who, upon exiting the house, told Fritz that in 10 minutes their supplier would provide them with 15 packets of cocaine. At defendant’s instruction, Fritz drove to a nearby convenience store and soon returned to 724 Concord. At about 12:25 p.m., defendant entered the house and returned with the promised cocaine, which was in 15 individually sealed packets on a strip of plastic. Defendant then asked Fritz to drop him off at a house on Blake Street. Defendant had not tried to back out of the deal at any time.

As he let defendant out at Blake Street, Fritz told defendant he was not happy with having to drive around for an hour to find cocaine. He said he would like to expedite the procedure the next time. Defendant told Fritz to call a day ahead next time and there would be less delay.

Fritz testified that defendant never initiated a drug deal with him. Defendant never sold any cocaine from his own house. Both deals with Fritz were arranged via Tennin on Fritz’s initiative. Defendant made no money from these deals.

Charles O’Brien, one of the SLANT agents who provided surveillance for both deals, corroborated Fritz’s testimony about the sequence of events on January 24, 1991. After defendant left Fritz, the officers went to headquarters, where Fritz showed O’Brien the 15 packets of cocaine he had received from defendant.

Defendant testified that he was 39 years old and had lived in Rockford all his life. He had long been nicknamed “Bader.” Defendant had been married 12 years. He had two stepchildren and one child of his own. Two children lived at home with defendant. One, who was 18 years old, had severe congenital brain damage. Defendant had been a city maintenance worker until he was injured in 1984. Since then, he had been collecting disability benefits.

Defendant stated that he was attempting to overcome a lengthy addiction to cocaine. He started using marijuana and cocaine in 1983. He used cocaine whenever he had money to buy it. He had been treated unsuccessfully in 1983 and in 1989. The last time he used cocaine was in September 1990.

Defendant explained that he was a recovering cocaine addict, but he was not a drug dealer. His knowledge of drug terminology and of the Rockford drug trade resulted from his long use of cocaine. He had been “best friends” with Dennis Tennin since grade school. After Tennin married, they saw less of each other. However, they soon became close again, partly because they often bought and used drugs together. Their families knew one another and visited each other. In recent years, defendant had consumed cocaine with Tennin and Tennin’s girlfriend, Rachel Lumkins. Defendant had also had sexual relations with Lumkins.

Defendant testified that Tennin used their friendship to induce him to engage in both January 1991 drug transactions. At about 8:30 a.m. on January 18, Tennin called defendant and said that Tennin’s “brother-in-law” was in town and wanted to buy cocaine. As Tennin owed Carrie Woods money from a drug deal, he asked defendant to buy the requested drugs. After convincing defendant that his “brother-in-law” was not a police agent, Tennin urged defendant to do the deal out of friendship; after all, he would do a favor for defendant if defendant asked.

With some prodding, defendant agreed to do the requested favor partly because Tennin was a close friend and partly because Tennin told him defendant knew Tennin had “something on [him] anyway”— that is, Tennin knew about defendant’s sexual relations with Lumkins. Defendant feared that Tennin might tell defendant’s wife about defendant’s relations with Lumkins. Without the motivation from Tennin’s friendship and threats, defendant would not have agreed to procure cocaine for Tennin’s “brother-in-law.” He never sold cocaine from his house and he never asked Tennin or Fritz to visit him to buy drugs.

Tennin called defendant several times that morning to insist that defendant wait for him. Defendant was scheduled to take some elderly people to a food pantry, and he left the house about 10:15 a.m. Just then, Tennin and Fritz pulled up. Tennin told defendant to get into the car. Fritz was the driver. Tennin introduced defendant to Fritz, describing Fritz as Lumkins’ brother-in-law and a drug dealer from Sterling.

The three men rode off in search of cocaine. Fritz never asked about prices and defendant never quoted him any. Tennin suggested they visit Carrie Woods at 724 Concord. Defendant knew Woods was a drug dealer. He, Tennin, and Woods grew up together. Defendant had never helped Woods sell drugs before. He started to give directions to 724 Concord. Fritz replied that he knew a shortcut to 724 Concord, and he took it there.

Fritz parked outside 724 Concord. He gave defendant $350 and told him to buy what he could with the money. Defendant bought four small packages of cocaine from Woods and returned to the car. He gave the packages to Tennin, who gave them to Fritz.

At about 10 a.m. on January 24, Tennin called defendant again, relating that Fritz was back in town to get an ounce of cocaine. Tennin called two or three times that morning, eventually telling defendant Fritz would come alone to defendant’s house. Defendant was reluctant to wait, but Tennin reminded him that, if he did not comply, defendant’s wife would learn about defendant’s sexual relations with Lumkins. Before Tennin called that morning, defendant had no intention of buying cocaine. He had never before purchased an ounce of cocaine at a time.

Fritz arrived just past 11 a.m. and stayed outside defendant’s residence. As Fritz arrived, defendant was leaving the house to meet some friends for “a beer or something.” At Fritz’s request, defendant got into Fritz’s car. Fritz confirmed that Tennin had told defendant Fritz’s plans. At trial, defendant testified that, as of January 24, 1991, he did not know the price of an ounce of cocaine; thus, he never quoted any prices to Fritz. He did not recall testifying earlier that he told Fritz an ounce of cocaine would cost about $1,200 to $1,500.

Defendant’s account of the events of January 24 differed somewhat from Fritz’s account, particularly in the degree of initiative and familiarity with Rockford drug dealers that he ascribed to Fritz. According to defendant, Fritz told defendant that he had $1,300 to spend on however much cocaine he could get. Fritz drove from 512 Hill Street right to 724 Concord without any directions from defendant. Fritz did not drive to Blake Street first. When the two arrived outside 724 Concord the first time, Fritz told defendant, “that’s the Seal-a-meal man.” Defendant went to the house and knocked on the door, but a woman there- told him that Carrie Woods was not home. Defendant returned to the car. Defendant and Fritz then rode up Concord, where defendant directed Fritz to another house. Nobody was home. Defendant returned to the car and told Fritz that the people there could supply only three “eight-balls.” Defendant’s experience as a cocaine user familiarized him with this term of the trade.

Defendant asked Fritz to take him to a house on Blake Street. Although he did not so inform Fritz, he wanted to go there to keep a promise to help move furniture in return for some needed cash. Blake Street had no drug houses. Defendant told Fritz he would see if the people there had any cocaine. Actually, he went there to discuss the furniture-moving job.

After defendant reported no success at the Blake Street address, he directed Fritz to State Street, as he might see someone who could supply cocaine. At the intersection of State and Albert, defendant saw a woman he knew. At defendant’s direction, Fritz stopped the car. Defendant got out and spoke to the woman, who suggested that the two of them visit Ellen Woods’ house. They did so; nobody was home. Defendant returned to the car. Fritz, without prompting, drove to a house around the corner. Defendant knew this was a drug house, but he did not know if he could get a whole ounce of cocaine there. At Fritz’s direction, defendant went to see if cocaine was available there. Receiving no answer, he returned to the car. Fritz suggested they return to 724 Concord. Defendant assented.

When the two arrived at 724 Concord, no cars were in the driveway. However, as Fritz turned his car around, he drove by Carrie Woods’ van. Defendant alerted Fritz to Woods’ presence and they returned to 724 Concord. Defendant exited the car and helped Woods carry groceries into the house. He also told Woods he would like to buy an ounce of cocaine. Woods said it would cost $1,800. Defendant said he had only $1,300. Woods offered to sell defendant what she could. On Woods’ instruction, Fritz and defendant rode to a nearby store and soon returned.

Defendant exited the car, went into the house, and returned with 11 separate packets of cocaine that he had bought for $125 apiece. Fritz said he was dissatisfied with the merchandise and told defendant to take it back. Defendant replied that this would be impossible. Fritz was acting as though he had an “attitude,” so defendant asked Fritz to drop him off at Blake Street. When they arrived there, Fritz complained about how long defendant had taken that day to find a source of cocaine. Fritz said that the next time he wanted cocaine, he would call Tennin a few days in advance. Fritz did ask defendant for his phone number, which defendant supplied and Fritz wrote down. Defendant did not hesitate to give Fritz his number, as Fritz had said it would be useful were Tennin unávailable. However, defendant never told Fritz to call him the next time Fritz wanted to get drugs in Rockford. Defendant did not know if Fritz would call again. He did not want to meet Fritz again. Defendant testified that Fritz was able to locate various drug houses without defendant’s help because Tennin had shown Fritz around the city and told Fritz about these houses.

Defendant made no profit from the January 24 deal. He got no money or other compensation from either Fritz or Tennin. He never encouraged Fritz or Tennin to buy drugs from or through him. When he left Fritz at Blake Street, he did not intend to engage in any more cocaine transactions with anyone.

Fritz and several other law enforcement officers arrested defendant at defendant’s house in June 1991. They ushered him out without inspecting anything in the house.

Dennis Tennin testified that he had lived in Rockford all his life. He had known defendant for 20 or 25 years. They were close friends. Tennin knew defendant trusted him. He also knew that defendant had been addicted to cocaine. The two men had bought cocaine many times, in the course of which defendant became familiar with Rockford’s drug houses. Tennin, defendant, and Rachel Lumkins had used drugs together. Tennin knew there had been sexual “advances” between Lumkins and defendant, but he was not aware that the two had actually had sex.

Tennin was paid to arrange both the January 18 introduction and the January 24 meeting. He called defendant on January 18 (he did not recall how many times) with news that his brother-in-law was in town to get cocaine and that Tennin wanted defendant to buy the drugs. Tennin never told defendant he was in debt to Carrie Woods. Defendant never told Tennin to buy the drug himself. Tennin never threatened to tell defendant’s wife about defendant’s relations with Lumkins. Tennin asked if defendant could procure a quarter-ounce of cocaine. Defendant replied, “you know I can” and said it would cost $350 or $400.

Later that morning, Tennin and Fritz visited defendant’s house. Tennin introduced Fritz to defendant. Fritz tried to negotiate a price for a quarter-ounce of cocaine. Defendant insisted on $400. The three men visited a few houses. Defendant bought four small packages of cocaine at 724 Concord. After completing this transaction, Fritz told defendant he might want defendant’s services again. Defendant quoted prices for a half-ounce or quarter-ounce of cocaine. Back at defendant’s house, defendant said that the next time Fritz needed cocaine, defendant could supply it and the three men would “party.”

On January 24, Tennin called defendant with news that Fritz was back to buy more cocaine and that Tennin would drive his “brother-in-law” over to defendant’s house. Tennin called defendant three or four more times that morning. He told defendant that he could not make it and Fritz would come there alone.

Tennin testified that defendant sold him cocaine three or four times a week during the last three months of 1990. Tennin spent $6,000 of his retirement pension on these purchases.

The parties stipulated that defendant previously testified under oath that he had told Fritz that an ounce of cocaine would cost “around 12,15,13 hundred [dollars].”

Mark Fritz testified in rebuttal that, although he was long aware that Carrie Woods was nicknamed “Seal-a-meal,” he never told defendant about it. On January 24, 1991, defendant told Fritz that Woods was called “Seal-a-meal.”

According to Fritz, after the January 18 transaction, defendant told Fritz to contact Tennin the next time Fritz wanted drugs. Fritz did not initially raise the subject. Fritz denied having told defendant that he knew a shortcut to 724 Concord, and he denied having told defendant to return the cocaine defendant purchased on January 24. After completing the January 24 transaction, defendant suggested that, to avoid delay the next time, Fritz should call him at the number defendant provided.

At the instructions conference, defendant’s counsel tendered the IPI entrapment instruction (Illinois Pattern Jury Instructions, Criminal, No. 24 — 25.04 (3d ed. 1992)) and an issues instruction that stated, inter alia, that to obtain a conviction the State had to prove beyond a reasonable doubt that defendant was not entrapped into the January 24, 1991, transaction. The prosecutor argued that there was no evidence that defendant was not predisposed to participate in the transaction. The trial court agreed and refused to give the entrapment instruction or to include entrapment in the issues instruction. When defense counsel argued in closing that defendant had been entrapped, the prosecutor objected that the court had ruled that defendant could not use the entrapment defense. The judge instructed the jury to disregard the entrapment defense.

The jury found defendant guilty. The court denied his post-trial motion and sentenced him to eight years’ imprisonment. Defendant timely appealed.

Defendant argues that the trial court erred in refusing to allow the jury to consider the entrapment defense in this case. We agree that, given the evidence, the trial court should not have taken the entrapment issue away from the jury.

A defendant is entitled to an instruction on an affirmative defense if there is even “slight evidence” to support the defense. (People v. Wielgos (1991), 142 Ill. 2d 133, 136; People v. Everette (1990), 141 Ill. 2d 147, 156.) The test is whether there is enough evidence for a rational fact finder to conclude that the State has not disproved the affirmative defense beyond a reasonable doubt. (Everette, 141 Ill. 2d at 156, citing Mathews v. United States (1988), 485 U.S. 58, 64, 99 L. Ed. 2d 54, 61, 108 S. Ct. 883, 887.) In applying this test, the court must consider the evidence in the light most favorable to the defendant. (People v. Gannon (1991), 213 Ill. App. 3d 560, 565; People v. Estrada (1980), 91 Ill. App. 3d 228, 230.) The court must not deprive the jury of its role as fact finder, and a determination that a defendant has introduced sufficient evidence of entrapment does not call for an evaluation of the witnesses’ credibility, the weight to be given their testimony, or whether the State has met its burden of proof. People v. Lindo (1988), 169 Ill. App. 3d 877, 882; Estrada, 91 Ill. App. 3d 234.

Entrapment means that: (1) the concept of committing the offense originates with the State or its agent; (2) the State or its agent actively encourages the defendant to commit the offense; (3) the State’s purpose is to obtain evidence for the prosecution of the defendant; and (4) the defendant is not predisposed to commit the offense. (Wielgos, 142 Ill. 2d at 137.) Here, the State concedes there was sufficient evidence of the first three elements. This appeal centers on whether defendant raised a jury question as to whether he was predisposed to commit the offense at issue. Viewing the evidence in the light most favorable to defendant, we conclude that he was entitled to have the jury instructed on the entrapment defense.

Factors relevant to whether a defendant was predisposed to commit a drug-related offense include the defendant’s initial willingness or reluctance to commit the crime; the defendant’s familiarity with drugs and his willingness to accommodate the needs of drug users; the defendant’s willingness to make a profit; his prior or current use of drugs; whether or not he had ready access to a supply of drugs; and his criminal record or lack thereof. People v. Martin (1991), 219 Ill. App. 3d 1064, 1076.

That a defendant committed a similar offense involving the same government agents shortly before the charged offense does not establish his predisposition to commit the second offense. The issue is whether the defendant was predisposed to commit the criminal act prior to first being approached by government agents. (Jacobson v. United States (1992), 503 U.S. 540, 548-49, 118 L. Ed. 2d 174, 184, 112 S. Ct. 1535, 1540-41.) Later offenses may be the product or continuation of the initial inducement of an unpredisposed person. People v. Lindo (1988), 169 Ill. App. 3d 877, 882; People v. Estrada (1980), 91 Ill. App. 3d 228, 234, relying on Sherman v. United States (1958), 356 U.S. 369, 374, 2 L. Ed. 2d 848, 852, 78 S. Ct. 819, 822.

Applying the Martin factors, we hold defendant introduced enough evidence to raise a jury question as to whether he was predisposed to commit the January 24, 1991, offense. A rational jury could have concluded that the State did not prove beyond a reasonable doubt that defendant was not entrapped.

Defendant admitted that he was a long-time narcotics user, but the evidence of his background in dealing narcotics was disputed at most. He had no record of convictions of drug-related offenses, although he had one conviction of residential burglary. The police and their paid agent initiated both the January 18 and January 24 deals, and defendant introduced some evidence that he was not interested in further dealing. It is undisputed that defendant sold no drugs to Fritz (or, it would appear, anyone else) from his own house. According to defendant, the police did not act as though they would find drugs at defendant’s house when they arrested him. When Tennin and Fritz asked him to obtain drugs, defendant needed to find a source.

Furthermore, there is evidence that Tennin used considerable mental coercion to overcome defendant’s reluctance to become reinvolved in the drug world. Tennin and defendant were close friends. They testified conflictingly about whether Tennin blackmailed defendant into agreeing to the deal. The jury could infer that defendant’s apparent eagerness to help Fritz was the result of his knowledge that he would pay for resisting. The jury could also infer that Tennin used coercion because he was unsure that friendship alone would persuade defendant to go along with the deal. All these issues involved credibility determinations for the jury.

Also, there was some evidence that defendant’s familiarity with the Rockford drug trade was that of a long-time cocaine user rather than of a recent or regular dealer. Even assuming that defendant quoted Fritz certain prices for quantities of cocaine, it would appear that his price quotations were considerably low. Defendant knew that Woods was a major drug dealer, but he had trouble procuring drugs from several other locations.

Finally, the weight of the evidence was that defendant made no profit from either drug deal. At most, his compensation or hope of future profit was uncertain.

The cases upon which the State relies are distinguishable. In People v. Cross (1979), 77 Ill. 2d 396, the defendant himself testified that he initiated the criminal transaction of which he was convicted. Thus, the defendant raised no evidence that the transaction originated with the government, a necessary element of an entrapment defense.

People v. Foreman (1987), 153 Ill. App. 3d 346, on which the State places its greatest emphasis, involved much different circumstances from those here. In Foreman, the appellate court held that the trial court properly refused an entrapment instruction where the defendant was convicted of two drug-related offenses, including the delivery to a confidential informant of $82,000 worth of cocaine. Unlike the situation here, the defendant and the informant were barely acquainted and there was no evidence that the informant blackmailed the defendant into dealing in cocaine. Unlike the situation here, the defendant initiated one of the transactions. Also, the defendant made a large profit (not his first such profit) on the delivery of an immense quantity of cocaine.

The defendant in Foreman testified that several Colombian acquaintances threatened him with dire consequences if he refused to make the deals. The appellate court observed that this fact was relevant to the defense of compulsion but not to the entrapment defense — the reason being that the Colombians were not government agents and were not attempting to gather evidence for the prosecution of the defendant. Foreman, 153 Ill. App. 3d at 352-53; see Wielgos, 142 Ill. 2d at 136-38 (entrapment does not include actions of a private party who is not attempting to gather evidence for the prosecution of the defendant).

More similar to the case at bar than Foreman are People v. Lindo (1988), 169 Ill. App. 3d 877, and People v. Estrada (1980), 91 Ill. App. 3d 228. In Lindo, the appellate court held that the defendant was entitled to an instruction on entrapment because he had produced sufficient evidence that he was not predisposed to help an undercover informant to supply cocaine. The appellate court emphasized that a previous transaction in which the defendant assisted the informant did not conclusively establish predisposition, as a jury could find that the earlier transaction was itself the improper inducement that led an otherwise unpredisposed defendant to engage in the transaction on which the conviction was based. Lindo, 169 Ill. App. 3d 877.

In Estrada, the defendant was convicted of two counts of delivering heroin. Before he made the deliveries that formed the basis of his convictions, the defendant had made about 30 deliveries of heroin; all the transactions were made at the request of a confidential informant with whom defendant allegedly was having a “love affair.” The appellate court held that the trial court erred in refusing to instruct the jury on entrapment, as a jury could find that the defendant was not predisposed to deal in drugs until he came under the influence of the informant.

Because the trial court erred in refusing to allow the jury to consider defendant’s entrapment defense, the defendant’s conviction is reversed and the cause is remanded for a new trial.

Reversed and remanded.

BOWMAN and QUETSCH, JJ., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OTHA WILLIAMS, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 91—0350
    Opinion filed July 15, 1993.
    Michael J. Pelletier and Nan Ellen Foley, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Laurie N. Feldman, Special Assistant State’s Attorney, and Renee Goldfarb, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant, Otha Williams, was convicted of possession with intent to deliver more than 900 grams of a substance containing cocaine (Ill. Rev. Stat. 1987, ch. 56V2, par. 1401(a)(2)). He was subsequently sentenced to the minimum term of 15 years’ imprisonment. On appeal, defendant maintains that the statute under which he was sentenced is unconstitutional.

We affirm.

The record shows that defendant and three others were charged with delivery of a substance containing cocaine. The charges stemmed from an undercover narcotics operation involving month-long negotiations for a large purchase of cocaine. The deal culminated on January 23, 1989, when 1,994 grams of a substance containing 96% pure cocaine were delivered to a sheriff’s police officer who was assigned to the narcotics unit of the State’s Attorney’s office.

Defendant was identified as the driver of a truck, bearing license plate “2 OTHA,” who delivered the contraband to the designated meeting place and handed the bag containing the contraband to the person who delivered it to the agent. Defendant denied any knowledge of the operation or the contents of the bag. The court convicted defendant of possession with intent to deliver and sentenced him to 15 years’ imprisonment, the minimum term allowed under the Illinois Controlled Substances Act (the Act) (Ill. Rev. Stat. 1987, ch. 561/2, par. 1401.1).

On appeal, defendant solely contends that the provision under which he was sentenced is unconstitutional because it violates the due process and proportionate penalties provisions of the Illinois Constitution (Ill. Const. 1970, art. I, §§2, 11). The State argues that there are no constitutional infirmities in the statute, which is reasonably related to legislative concerns about the harmful consequences of the distribution of large quantities of cocaine.

It is well settled that the legislature has the power to declare and define conduct which constitutes a crime and to determine the nature and extent of the punishment for it. (People v. Taylor (1984), 102 Ill. 2d 201.) Although the supreme court has recognized that sections 2 and 11 of the Illinois Constitution place some restraint on this power, the court has been reluctant to invalidate penalties prescribed by the legislature since, institutionally, the legislature is more aware of the evils affecting our society than the courts and more capable of measuring the seriousness of various offenses. (People v. Steppan (1985), 105 Ill. 2d 310, 319.) Accordingly, in satisfaction of due process concerns, the supreme court has required that the penalty assigned to the particular crime be reasonably tailored to remedy the evil which the legislature has determined to be a threat to the public health, safety and welfare. (People v. Bradley (1980), 79 Ill. 2d 410, 417.) Regarding the limitation of penalties provision, the court has stated that interference with legislative judgment is justified only where the designated punishment is “cruel,” “degrading” or “ ‘so wholly disproportionate to the offense committed as to shock the moral sense of the community.’ ” (People v. Morris (1990), 136 Ill. 2d 157, 167, quoting People v. Gonzales (1962), 25 Ill. 2d 235, 240.) We find no reason for reversal on either count.

People v. Harlow (1993), 246 Ill. App. 3d 196, involved a similar proportionate penalties argument regarding section 401(a)(2)(A) of the Act. (Ill. Rev. Stat. 1991, ch. 56Vz, par. 1401(a)(2)(A).) In Harlow, the court concluded that the mandatory minimum sentence of 12 years’ imprisonment for drug trafficking was not “clearly irrational” or “wholly disproportionate to the offense committed” and affirmed the sentence imposed. (Harlow, 246 Ill. App. 3d at 199.) Harlow is consistent with People v. Castro (1987), 151 Ill. App. 3d 664, in which defendant challenged the constitutionality of the progressive sentencing structure and mandatory minimum sentencing provision for conviction of the delivery of heroin. We believe the reasoning expressed in those cases is applicable to the case at bar and consequently find no violation of the proportionate penalties clause of the constitution. See also People v. Johns (1992), 153 Ill. 2d 436.

Defendant maintains, however, that because the sentencing court is deprived of the opportunity to apply specific mitigating factors in each case or to recognize varying degrees of participation or culpability, his right to due process was violated. We disagree.

Defendant’s argument in the instant case parallels that of the defendant in People v. Bryant (1989), 128 Ill. 2d 448, in which the constitutionality of the possession of a stolen motor vehicle statute was in issue. In Bryant, the court found that the statute raising the crime to a Class 2 felony unambiguously applied to all persons, including organized motor vehicle thieves, and was designed to protect the public from the evils of the offense and its related activities. Bryant, 128 Ill. 2d at 458.

Applying the same standard to determine whether this legislative exercise of police power meets the constitutional requirement of due process (People v. Johns (1992), 153 Ill. 2d 436, 444-45), we reach the same conclusion. We believe the imposition of greater sentences and mandatory minimum terms for the possession and delivery of cocaine reflects the seriousness of the offense (People v. Castro (1987), 151 Ill. App. 3d 664, 667) and is reasonably designed to remedy the evils of drug trafficking and its attendant social repercussions. (See People v. Gaither (1991), 221 Ill. App. 3d 629; see also People v. Morris (1990), 136 Ill. 2d 157, 167.) Accordingly, we find no reason to depart from the presumptive validity of this legislative enactment. People v. Taylor (1984), 102 Ill. 2d 201, 206.

Upon arrival at this conclusion, we examined the cases cited by defendant and found them distinguishable. Unlike the situation at bar, the sentencing provisions at issue in People v. Bradley (1980), 79 Ill. 2d 410, and People v. Hamm (1992), 149 Ill. 2d 201, contravened the express legislative intent of the statutes. Defendant cites People v. Wisslead (1983), 94 Ill. 2d 190, and People v. Christy (1991), 139 Ill. 2d 172; however, these cases are factually distinguishable from the case at bar and they do not require that we reach a different outcome here.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

CAHILL and HOFFMAN, JJ., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    KENNETH KOLMIN, Plaintiff-Appellant, v. THE VILLAGE OF WILMETTE, Defendant-Appellee (C.E. Russell and Associates et al., Defendants).
    First District (4th Division)
    No. 1 — 92—1887
    Opinion filed July 15, 1993.

      Matthew I. Baker, of Karlin & Fleisher, and David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky and Margarita T. Kulys, of counsel), for appellant.
    Knight, Hoppe, Fanning & Knight, Ltd., of Des Plaines (Charles C. Hoppe, Jr., and Janella L. Barbrow, of counsel), for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Kenneth Kolmin, the plaintiff in the trial court proceedings, appeals from the trial court’s order granting summary judgment to the defendant, the Village of Wilmette (Village). The trial court held that the Village owed no duty of care to Kolmin.

On October 26, 1989, the plaintiff, Kenneth Kolmin, was riding a bicycle on Sheridan Road in Wilmette. Upon entering an “S” curve in the road, the bicycle Kolmin was riding skidded on some gravel scattered in the roadway and slid out from beneath him. Kolmin was injured when he fell. He later brought suit alleging negligence on the part of the Village of Wilmette and others.

At the time of Kolmin’s accident, Wilmette was under contract to the State of Blinois through the Department of Transportation to “operate and maintain” Sheridan Road, which is a State roadway. In part, the contract specifically stated the following:

“Operation and maintenance includes but is not limited to all routine surface and pothole repairs, temporary full-depth patches, expansion bump removal on bituminous surfaces, crack and joint sealing, cleaning and litter pickup, snow and ice control and all other routine operational services. Median maintenance, when applicable, shall consist of sweeping, litter pickup, mowing, and routine surface repairs.”

The contract also stated in part:

“The Corporation agrees to permit no cuts or openings in the curbs or pavements of the streets covered by this agreement without the written approval of the Department. Pavement cuts, curb openings, utility frames and municipal frames and grates or covers disturbed by settlement, construction or repair under permit are to be restored, repaired, adjusted and maintained by the utility owner or permit holder to the satisfaction of the Department át no expense to the State.”

The gravel Kolmin ran into on the roadway was there due to some construction work that had been taking place in the area. In order to install sewer and water lines to an adjacent home, a contractor had obtained a permit from the State of Illinois to open a portion of the road. After the excavation and installation work was completed, the contractor backfilled the excavation intending to return in the spring to close it with asphalt. It was at this stage that Kolmin had his accident.

Both parties agree that the question of whether the Village of Wilmette owed a duty of care to Kolmin is to be determined from the language of the maintenance contract between the Village and the State. The trial court determined as a matter of law that the contract did not give rise to a duty on the part of the Village to remove from the roadway gravel that had spilled out of the excavation site. The court granted the Village’s motion for summary judgment.

On appeal, Kolmin argues that contrary to the trial court’s decision, the plain and ordinary meaning of the contract words imposed a duty on the Village to remove the gravel in question. (J.M. Beals Enterprises, Inc. v. Industrial Hard Chrome, Ltd. (1990), 194 Ill. App. 3d 744, 551 N.E.2d 340.) Kolmin points to the language in the contract instructing the Village to “maintain” the roadway, and asserts that under Ross v. City of Chicago (1988), 168 Ill. App. 3d 83, 522 N.E.2d 215, the word “maintenance” encompasses acts of repair directed toward keeping the streets in a reasonably safe condition for the amount and kind of travel that may fairly be expected on them. The Village also cites to Ross v. City of Chicago; however, it is the Village’s contention that because removing the spilled gravel was not necessary to preserve, keep up, or prevent the roadway from deteriorating, it was not a duty imposed by the contract in general or the specific language “maintain.”

The Village also argues that removal of the gravel in response to the special occasion of the construction underway does not fall under the definition of “routine” maintenance for which the Village was obligated. In support of this argument, the Village points to the provision in the contract that dictates that pavement cuts are to be “restored, repaired, adjusted and maintained by the utility owner or permit holder to the satisfaction of the Department.” It is the Village’s position that reading the contract as a whole, and viewing the more specific provision as controlling, it is clear that any maintenance related to the excavation of the road was not a “routine operational” service of the Village, but rather the duty of the permit holder. J.M. Process Systems, Inc. v. W.L. Thompson Electric Co. (1991), 218 Ill. App. 3d 350, 578 N.E.2d 264; Wilson v. Wilson (1991), 217 Ill. App. 3d 844, 577 N.E.2d 1323.

In response to the Village’s argument, Kolmin points out that the contract charges the Village with “cleaning and litter pickup.” Kolmin asserts that under this language, the Village is responsible for removing foreign matter from the surface of the roadway. Kolmin contends that the concurrent duty of the permit holder does not relieve the Village of its contractual responsibilities. Finally, Kolmin asserts that because the contract contains the language “includes but is not limited to,” it contemplates duties not specifically enumerated in the agreement. Kolmin urges in the alternative that at the least the terms of the contract are ambiguous and, therefore, present a material question of fact that cannot be disposed of through summary judgment.

We do not believe that the terms of the contract are ambiguous. Contract language is ambiguous where it is reasonably or fairly susceptible of different constructions. (Public Relations Board, Inc. v. United Van Lines, Inc. (1978), 57 Ill. App. 3d 832, 373 N.E.2d 727.) A contract is not rendered ambiguous simply because, as in the present case, the parties disagree on its proper construction. (Public Relations Board, 57 Ill. App. 3d 832, 373 N.E.2d 727.) Where a contract is unambiguous and clear, the contract terms must be given their ordinary and natural meaning, and the contract construed as a whole, giving effect to each provision. Srivastava v. Russell’s Barbecue, Inc. (1988), 168 Ill. App. 3d 726, 523 N.E.2d 30.

Applying these principles, we believe that in the present case the contract between the Village of Wilmette and the State of Illinois clearly imposed a duty on the Village with respect to the plaintiff Kolmin. Specifically, the contract obligated the Village among other things to “operate and maintain” the roadway, including “cleaning” it, and performing all other “routine operational services.” We believe that in the common sense, the words “maintain” and “clean,” when used in relation to roads, include the removal of extraneous matter, including gravel, where necessary to provide a reasonably safe condition for the kind of travel which may be fairly expected upon it. (Ross v. City of Chicago (1988), 168 Ill. App. 3d 83, 522 N.E.2d 215; Warchol v. City of Chicago (1979), 75 Ill. App. 3d 289, 393 N.E.2d 725.) This is the case, regardless of the source of the scattered gravel.

We do not believe the two provisions of the contract that the Village refers to are inharmonious. (Village of Rosemont v. Lentin Lumber Co. (1986), 144 Ill. App. 3d 651, 494 N.E.2d 592.) Nor do we believe that our construction of the maintenance provision relating to the Village renders the provision relating to the permit holder meaningless. (Village of Rosemont, 144 Ill. App. 3d 651, 494 N.E.2d 592.) Whether the permit holder, in this case the contractor who excavated the road, owed a duty of care to the plaintiff is not a question before us. That he may, however, does not preclude a determination that the Village owed a duty to the plaintiff.

In reviewing a trial court’s order of summary judgment, we must determine whether the court properly decided that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. (Village of Rosemont v. Lentin Lumber Co. (1986), 144 Ill. App. 3d 651, 494 N.E.2d 592.) For the reasons stated above, we believe that, in the present case, the trial court improperly entered summary judgment. Under the terms of the contract, the Village owes a duty of care to the public. Whether under the circumstances presented the Village breached its duty with respect to Kolmin is a material issue of fact. The decision of the trial court is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

CAHILL and JOHNSON, JJ., concur.