People v. Chapple
State: Illinois
Court: 4th District Appellate
Docket No: 4-95-0816
Case Date: 08/14/1997
NO. 4-95-0816
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Macon County
TRENT L. CHAPPLE, ) No. 95CF24
Defendant-Appellant. )
) Honorable
) James A. Hendrian,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
In January 1995, defendant Trent Chapple was charged
with unlawful possession of more than 15 but less than 100 grams
of a substance containing cocaine with the intent to deliver, a
Class X felony (720 ILCS 570/401(a)(2)(A) (West 1994)), and the
included offense of unlawful possession of a controlled sub-
stance, a Class 1 felony (720 ILCS 570/402(a) (West 1994)).
Defendant was represented by private counsel and pleaded not
guilty. At a pretrial hearing in May 1995, after being fully
admonished by the court, defendant waived his right to a jury
trial. 725 ILCS 5/103-6 (West 1994). In July 1995, however,
defendant filed a motion to withdraw his jury waiver. Following
argument by counsel, the trial court denied defendant's motion.
The court conducted a bench trial in August 1995 and found de-
fendant guilty of both offenses. In September 1995, the trial
court vacated the judgment on possession and sentenced defendant
to 15 years in prison on the conviction of possession with the
intent to deliver. Defendant appeals, asserting (1) the trial court abused its discretion in denying his motion to withdraw
jury waiver; (2) he was not proved guilty beyond a reasonable
doubt of possession of cocaine with intent to deliver; (3) he was
denied effective assistance of counsel; and (4) the trial court
abused its discretion in sentencing by failing to consider the
relative seriousness of the offense. We affirm.
I. WITHDRAWAL OF JURY WAIVER
Defendant contends the trial court abused its discre-
tion in denying his motion to withdraw the jury waiver. With-
drawal of a jury waiver is not a matter of right. People v.
Closson, 13 Ill. App. 3d 878, 880, 301 N.E.2d 347, 348 (1973).
Rather, whether a jury waiver, once knowingly and intelligently
made, may be withdrawn is a matter within the discretion of the
trial court, unless the circumstances indicate the defendant was
unaware of the consequences of the waiver. People v. Hall, 114
Ill. 2d 376, 414, 499 N.E.2d 1335, 1351 (1986).
Defendant's motion stated "the reason for the waiver of
jury trial was to avoid undue prosecution of [defendant's] wife
and that is no longer possible." In his brief, defendant repre-
sents he negotiated a plea agreement through his attorney where-
by, in return for defendant's jury waiver and a plea of guilty,
the State would not prosecute his wife in an unrelated matter.
At the motion hearing, defense counsel indicated prosecution of
defendant's wife was no longer feasible and, due to this changed
circumstance, defendant wished to reinstate his right to a jury
trial.
In denying defendant's motion, the court noted when de-
fendant waived his right to a jury trial, it was knowing and
voluntary, the alleged plea agreement was not mentioned and de-
fendant gave no indication the waiver was conditional. Nothing
in the record suggests defendant was unaware of the consequences
of his jury waiver and he does not argue as much.
A change in circumstances can sometimes entitle a de-
fendant to withdraw a jury waiver. The circumstances here did
not require such a result. In People v. Smith, 11 Ill. App. 3d
423, 296 N.E.2d 628 (1973), the third district held the trial
court committed reversible error in denying the defendant's mo-
tion to withdraw his jury waiver where the State was permitted to
amend the charging instrument after the waiver. There, defense
counsel apparently believed the original charge was technically
deficient and the case would involve a purely legal question.
The appellate court found the situation should have caused the
trial court to question whether, in view of the amendment, the
defendant's jury waiver was understandingly made. The appellate
court concluded the waiver may not have been intended to be made
with respect to the charge as amended, but solely to the charge
as originally filed. Smith, 11 Ill. App. 3d at 425, 296 N.E.2d
at 630.
In People v. Holmes, 88 Ill. App. 3d 140, 410 N.E.2d
381 (1980), the defendant sought to withdraw his jury waiver when
the State was allowed to amend its answer to his discovery motion
to include newly discovered evidence, damaging to the defendant's
case, after the bench trial had already begun. The defendant
argued he would not have waived a jury trial had he known the
evidence would be admitted at trial. Finding the new evidence
was not "substantively 'damaging'" but only impeaching, however,
the first district concluded the defendant failed to demonstrate
the prejudice necessary to invalidate his knowing and intelligent
jury waiver. Holmes, 88 Ill. App. 3d at 143, 410 N.E.2d at 384;
but see People v. Norris, 62 Ill. App. 3d 228, 379 N.E.2d 80
(1978) (admission of damaging, newly discovered substantive evi-
dence resulted in mistrial). Unlike these cases, defendant's
ability to defend himself against the charges here was not im-
paired by the changed circumstance, i.e., the State's inability
to prosecute his wife in a separate matter.
The present situation is analogous to a case where a
defendant wishes to withdraw a guilty plea. A defendant has no
absolute right to withdraw a plea of guilty and bears the burden
of demonstrating to the trial court the necessity of withdrawing
the plea. People v. Artale, 244 Ill. App. 3d 469, 475, 612
N.E.2d 910, 915 (1993); see People v. Davis, 145 Ill. 2d 240,
244, 582 N.E.2d 714, 716 (1991). When it appears a plea of
guilty was entered on the misapprehension of fact or law, or as a
consequence of misrepresentations by counsel, the State's Attor-
ney, or someone else in authority, the court should permit the
withdrawal of a guilty plea. Artale, 244 Ill. App. 3d at 475,
612 N.E.2d at 915; see also People v. Staple, 233 Ill. App. 3d 8,
10, 598 N.E.2d 384, 386 (1992).
Here, defendant does not allege he was under a misap-
prehension of fact or law when he made his jury waiver. He does
not allege the State's Attorney made any misrepresentations to
him or breached the proposed plea agreement. Nor does he allege
his jury waiver was involuntarily made. Defendant's only conten-
tion at the motion hearing was his incentive for waiving a jury
trial no longer existed and, therefore, he wished to withdraw the
waiver. Under these circumstances, we conclude the trial court
did not abuse its discretion in denying defendant's motion to
withdraw his jury waiver.
II. SUFFICIENCY OF THE EVIDENCE
Next, defendant argues his conviction was erroneous
because, even viewing the evidence in the light most favorable to
the prosecution, no rational trier of fact could have found him
guilty beyond a reasonable doubt of possession of cocaine with
the intent to deliver. See People v. Lewis, 165 Ill. 2d 305,
336, 651 N.E.2d 72, 87 (1995). To convict on a charge of posses-
sion of a controlled substance with the intent to deliver, the
State must prove (1) the defendant had knowledge of the presence
of a controlled substance, (2) the controlled substance was in
his immediate control or possession, and (3) he intended to de-
liver the controlled substance. People v. Robinson, 167 Ill. 2d
397, 407, 657 N.E.2d 1020, 1026 (1995); People v. Newman, 211
Ill. App. 3d 1087, 1093, 569 N.E.2d 1089, 1092-93 (1991).
At defendant's trial, six law enforcement officers tes-
tified as follows. On January 6, 1995, approximately eight offi-
cers executed a search warrant, obtained after a controlled pur-
chase of narcotics was made at the home of Dhrumba Smith, for
Smith's residence. While the officers were inside the residence
conducting the search, defendant knocked on the front door. A
uniformed officer opened the door and asked defendant to step in.
Upon seeing the officers, defendant exclaimed "[o]h shit!" and
turned to leave. Officer David McLearin said "[s]top! We want to
talk to you." When defendant attempted to leave, McLearin
grabbed him by the arm, but defendant spun out of his coat and
ran. Three to four officers began chasing defendant. Upon exit-
ing the residence, officers observed an unoccupied car with its
motor running parked directly in front of the residence. The
officers later discovered this was the car defendant had driven
to the scene.
As they chased defendant, McLearin and deputy sheriff
Craig Gessford observed defendant throw something up in the air.
McLearin shouted to the other officers "[h]e threw something,"
terminated his pursuit of defendant, and went to the area where
he saw the object thrown. McLearin retrieved a plastic bag con-
taining what appeared to be four to six rocks of crack cocaine.
McLearin testified the rocks were much larger than the typical
rocks of crack cocaine sold as individual doses. McLearin stated
individual doses weigh approximately 0.1 grams. He estimated
each rock recovered from defendant weighed approximately 6 grams.
The pursuit of defendant ended when he ran into a resi-
dence several blocks away where police apprehended him. Occu-
pants of the residence testified they did not know defendant and
he ran into the house uninvited. The officers who apprehended
defendant brought him back to Smith's residence, patted him down
and recovered over $500 from his pants pocket.
McLearin testified he turned over the bag defendant had
thrown away to Inspector John Szajko. Szajko estimated there
were approximately 28 grams of a substance resembling crack co-
caine loose in the plastic bag McLearin gave him. Szajko per-
formed a field analysis of the substance in the bag and it tested
positive for the presence of cocaine. Szajko testified he then
placed the plastic bag and its contents into an evidence bag,
which he sealed and, later the same day, locked in the task force
evidence vault.
Jerry Wagoner, a Decatur police officer, testified he
removed the evidence bag from the task force evidence vault on
January 10, 1995, and delivered it to the Illinois State Police
laboratory for testing. Michael Cravens, a forensic scientist
with the Illinois State Police Bureau of Forensic Science, testi-
fied Wagoner delivered the evidence bag to him on January 10,
1995. Cravens testified the evidence he received consisted of an
outer plastic bag with 11 smaller plastic packets inside, each
containing a white chunky material. Cravens stated he separated
the substance contained in each packet from its packaging and
tested portions of the substance taken from each packet. These
substances tested positive for the presence of cocaine. Cravens
testified the total weight of the substances recovered was 26.5
grams. When he finished his tests, Cravens placed the rocks of
cocaine back into the plastic bag loose, along with the 11 empty
packets. At trial, McLearin, Szajko, Wagoner and Cravens identi-
fied State's exhibit No. 1 as the evidence McLearin recovered
from defendant on January 6, 1995.
Defendant testified on his own behalf. He denied pos-
sessing cocaine on the date in question and alleged he ran from
the officers because he was unaware they were police and was
frightened by their presence in his friend's house.
At the conclusion of the trial, the court found defen-
dant guilty. The court stated it considered defendant's flight
from the officers, the amount of money on his person at the time
of his arrest, and the size, amount, and packaging of the cocaine
rocks found in his possession as indications of his intent to
deliver the controlled substance. Defendant contends the evi-
dence was insufficient to prove he possessed cocaine with the
intent to deliver. Specifically, he argues (1) his flight was
not evidence of an intent to deliver, (2) he provided the court
with an explanation of why he had a large amount of money on him
at the time of his arrest, and (3) the physical evidence present-
ed was unreliable and the amount and packaging of the substance
allegedly recovered on January 6, 1995, were not indicative of an
intent to deliver.
Because direct evidence of intent to deliver is rare,
it must usually be proved by circumstantial evidence. Robinson,
167 Ill. 2d at 408, 657 N.E.2d at 1026. Illinois courts consider
several factors probative. In Robinson, the supreme court noted
the quantity of a controlled substance alone can be sufficient
evidence to prove an intent to deliver beyond a reasonable doubt.
Robinson, 167 Ill. 2d at 410-11, 657 N.E.2d at 1028. A reason-
able inference of intent to deliver arises where the amount of
narcotics possessed is too large to be viewed as being for per-
sonal use. Robinson, 167 Ill. 2d at 408, 657 N.E.2d at 1026;
People v. Beverly, 278 Ill. App. 3d 794, 799, 663 N.E.2d 1061,
1065 (1996); People v. Thomas, 261 Ill. App. 3d 366, 369, 633
N.E.2d 839, 841 (1994). At defendant's trial, there was expert
testimony indicating the amount of cocaine was more than would
reasonably be used for personal consumption.
Officer Edward Root of the Decatur police department,
qualified before the court as an expert in the area of narcotics
trafficking and sales, testified in his opinion the amount of
drugs recovered from defendant could not reasonably be considered
to have been for personal use. Root explained the typical weight
of an individual dose of crack cocaine is approximately 0.2
grams. He stated such a rock of cocaine would be the size of a
pea or kernel of corn and noted the several rocks recovered here
were much larger. Based on Root's testimony, 26 grams would be
the equivalent of 130 individual doses of crack cocaine.
McLearin testified in his experience an individual dose of crack
cocaine weighs approximately 0.1 grams. Thus, the court could
reasonably have concluded the amount of the substance represented
between 130 and 260 individual doses of crack cocaine.
Root would infer defendant intended to deliver the
drugs based solely on the quantity in his possession. Root ex-
plained drug users, as opposed to dealers, do not typically hold
large amounts of drugs because of their high cost and the greater
potential penalties associated with possession of large quanti-
ties. In Root's experience, having questioned hundreds of drug
users and dealers, he had never interviewed anyone who possessed
the amount of cocaine found on defendant for personal use.
On cross-examination Root stated such an amount of
cocaine could possibly be for personal use. On redirect he
opined that probability was very small. We acknowledge when the
amount of a seized substance may be considered consistent with
personal use, additional evidence of intent to deliver is re-
quired. Robinson, 167 Ill. 2d at 411, 657 N.E.2d at 1028. Such
additional evidence was present here.
Defendant encountered the officers in a house known by
police to be a site for drug trafficking. Shortly before defen-
dant arrived at the Smith residence, the police apprehended and
arrested another person who left the residence and possessed what
appeared to be crack cocaine. Police also arrested a person in-
side the residence who was in possession of drug-dealing para-
phernalia and a substance resembling crack cocaine.
Further, defendant's own actions support the court's
finding of an intent to deliver. When defendant got out of his
car and approached Smith's residence, he left the motor of his
car running. This suggests defendant likely intended to quickly
pick up or drop off something or someone. Upon seeing uniformed
officers inside Smith's house, he exclaimed "[o]h shit" and ran
so hurriedly he ran out of his jacket and one shoe. This permits
the inference of a consciousness of guilt.
Other factors supportive of an inference of intent to
deliver are the manner in which the drugs are packaged and the
possession of a large amount of cash. See Robinson, 167 Ill. 2d
at 408, 657 N.E.2d at 1028; People v. Jones, 215 Ill. App. 3d
652, 655-56, 575 N.E.2d 561, 563 (1991). Here, defendant had a
significant amount of money at the time of his arrest. Although
defendant testified the money was for the purchase of remodeling
supplies, the trial court was in the best position to assess the
plausibility of defendant's explanation and was entitled to dis-
believe it. People v. Young, 269 Ill. App. 3d 120, 123, 645
N.E.2d 533, 535 (1994). The court specifically stated it did not
believe defendant and remarked upon his "incredible" testimony.
Officer Root stated it was his opinion, based on the
amount of drugs recovered, the amount of money found in
defendant's possession, and defendant's arrival at a house known
for drug trafficking, the drugs found in defendant's possession
were intended for delivery. To affirm defendant's conviction
based on these factors is consistent with Robinson, Beverly, and
numerous other appellate decisions. See, e.g., People v. Nixon,
278 Ill. App. 3d 453, 663 N.E.2d 66 (1996); People v. Greenleaf,
254 Ill. App. 3d 585, 627 N.E.2d 111 (1993); People v. Berry, 198
Ill. App. 3d 24, 555 N.E.2d 434 (1990).
Defendant contends in finding the intent to deliver,
the trial court relied heavily on the manner in which the drugs
were packaged. Yet, he argues, inconsistencies between
McLearin's and Cravens' descriptions of the substance and the way
it was packaged created a reasonable doubt of his intent to de-
liver. Defendant implies McLearin's description of the amount
and packaging of the substance recovered does not demonstrate an
intent to deliver, whereas Cravens' description might. Defendant
also argues the inconsistent descriptions suggest possible tam-
pering with the substance by police.
At trial, McLearin stated he recovered approximately
four to six rocks of what appeared to be crack cocaine, packaged
loosely in an untied plastic bag. As stated, McLearin estimated
each rock weighed approximately 6 grams, indicating a total
weight of 24 to 36 grams. When McLearin was shown the State's
exhibit purported to be the substance recovered from defendant on
January 6, 1995, he stated it appeared to be the same type of
material defendant threw, with the same type of packaging, but
observed the substance was "mashed up now in a lot more small
pieces." McLearin testified he himself did not package the ex-
hibit into evidence but handed it over to Szajko. When asked to
describe in more detail the packet he recovered and its contents,
McLearin stated "I didn't really examine [it] that much." Cra-
vens described the evidence he examined as a plastic bag contain-
ing 11 smaller plastic packets of crack cocaine. He stated the
cocaine rocks, exclusive of their packaging, weighed 26.5 grams
in total. McLearin, Szajko, and Wagoner each testified neither
they nor anyone else altered or tampered with the suspected nar-
cotics while the evidence was in their custody or control.
We note McLearin's estimate of the total weight of the
substance recovered, given before he was shown State's exhibit
No. 1, was very close to the actual weight of the substance, as
determined by Cravens in the laboratory. The disagreement in
testimony was as to the number of rocks in the plastic bag and
whether they were wrapped individually.
While the trial court may have considered the packag-
ing of the cocaine an important factor, in light of the other
evidence presented, it is not as critical a factor as defendant
suggests. Despite some inconsistencies in the descriptions of
the packaging, the quantity of the substance alone, as to which
the witnesses were in substantial agreement, was a significant
factor evidencing the intent to deliver.
In People v. Munoz, 103 Ill. App. 3d 1080, 1082, 432
N.E.2d 370, 372 (1982), the appellate court affirmed the
defendant's conviction for possession with the intent to deliver
cocaine, acknowledging the only evidence of the intent to deliver
was the amount of drugs recovered (250.1 grams cocaine). Al-
though the amount of cocaine recovered here was substantially
less than in Munoz, Root's testimony showed it was an amount far
greater than could reasonably be considered consistent with per-
sonal use, regardless of its packaging. Also, the court could
have found McLearin's disclaimer, stating he did not really exam-
ine the contents of the bag when he recovered it, sufficient to
explain the inconsistencies in the witnesses' testimony. Final-
ly, the court could have found the well-documented chain of cus-
tody and the witnesses' in-court identifications of the evidence
persuasive as to the reliability of the evidence.
A criminal conviction will not be set aside unless the
evidence is so improbable or unsatisfactory it creates a reason-
able doubt as to the defendant's guilt. People v. Collins, 106
Ill. 2d 237, 261, 478 N.E.2d 267, 276 (1985); Beverly, 278 Ill.
App. 3d at 798, 663 N.E.2d at 1064. Given the totality of the
evidence presented, a rational trier of fact could have conclud-
ed, beyond a reasonable doubt, defendant possessed and intended
to deliver approximately 26 grams of a substance containing co-
caine on the date of his arrest.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends he was denied the effective assis-
tance of trial counsel, guaranteed by the federal and state con-
stitutions, setting forth three arguments in support of this con-
tention. U.S. Const., amend. VI; Ill. Const. 1970, art. I, 8.
The Supreme Court of Illinois in People v. Albanese,
125 Ill. 2d 100, 531 N.E.2d 17 (1988), adopted the standard enun-
ciated in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d
674, 104 S. Ct. 2052 (1984), for determining whether a criminal
defendant was denied effective assistance of counsel under the
state and federal constitutions. To succeed on a claim of inef-
fective assistance of counsel, a defendant must show (1) his
counsel's representation fell below an objective standard of
reasonableness, making the trial results unreliable, and (2) he
was prejudiced by counsel's unprofessional conduct, i.e., he must
show but for the attorney's unprofessional errors, the results of
the trial would have been different. Albanese, 125 Ill. 2d at
106, 531 N.E.2d at 19. To establish prejudice due to counsel's
unprofessional representation, a defendant bears the burden of
proving "the factfinder would have had a reasonable doubt re-
specting guilt" if not for counsel's errors. Strickland, 466
U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69. When
the evidence is not closely balanced and the evidence of the
defendant's guilt is overwhelming, the court may find there is no
reasonable probability the outcome of the trial or of a new trial
would have been different had trial counsel pursued the course
suggested by the defendant in his appeal. See People v. Chatman,
276 Ill. App. 3d 619, 622-23, 659 N.E.2d 44, 46 (1995).
First, defendant claims his trial counsel's failure to
request a substitution of judge following the court's denial of
his motion to withdraw the jury waiver denied him the opportunity
to have a fair and impartial trial. A defendant has the burden
of showing prejudice on the part of the judge in order to dis-
qualify the judge from sitting in a case. People v. Wright, 234
Ill. App. 3d 880, 897, 601 N.E.2d 817, 830 (1992). Absent a
showing of animosity, ill will, or distrust toward a defendant, a
judge will not be disqualified for cause. People v. Walsh, 273
Ill. App. 3d 453, 456-57, 652 N.E.2d 1102, 1105 (1995); see also
People v. Damnitz, 269 Ill. App. 3d 51, 55, 645 N.E.2d 465, 468-
69 (1994).
Defendant contends the trial judge was initially led to
anticipate defendant would enter a guilty plea and implies the
judge became biased against him when he did not do so. This
bias, defendant contends, precluded him from receiving an impar-
tial trial and was a circumstance his trial counsel should have
protected him from by filing a motion for substitution of judge.
There is no support in the record for defendant's bare
assertion the trial judge "would be clearly biased against him in
view of the fact that a guilty plea seemed imminent but was
aborted at the last minute." The trial court denied defendant's
motion to withdraw his jury waiver based on its previous finding
the waiver was knowing and voluntary. The trial judge did not
participate in or learn the details of any plea negotiations
between defendant and the State and there was no discussion of
the plea terms until the hearing on defendant's motion to with-
draw his jury waiver. In People v. Fitzgerald, 55 Ill. App. 3d
626, 632, 370 N.E.2d 1207, 1212 (1977), the court indicated a
judge who has heard an accused withdraw a previous offer to plead
guilty is not required to recuse himself in the bench trial of
the accused where the judge did not participate in plea discus-
sions and did not concur in the terms of the plea agreement sup-
posedly reached.
Defendant has presented no evidence indicating the
trial judge was biased against him. Therefore, we cannot con-
clude defendant would have succeeded on a pretrial motion for
substitution of judge if one had been filed. See Fitzgerald, 55
Ill. App. 3d at 632, 370 N.E.2d at 1212; People v. Harris, 220
Ill. App. 3d 848, 858-59, 580 N.E.2d 1342, 1349 (1991). More-
over, defendant has not established the outcome of the trial
would have been different had a new judge been assigned the case.
We find defendant's claim of ineffective assistance of counsel,
based on his attorney's failure to file a motion for substitution
of judge, to be without merit.
Next, defendant claims his trial counsel's failure to
highlight in closing argument contradictions in the testimony of
the State's witnesses denied him the effective assistance of
counsel. Defendant argues the inconsistent descriptions given by
the State's witnesses of the drugs he allegedly possessed, dis-
cussed above, suggested there had been tampering with the evi-
dence by police or police incompetence in handling the evidence,
and these possibilities should have been highlighted in closing
argument by defense counsel. Defendant suggests his trial
counsel's failure to point out the inconsistencies fell below an
objective standard of reasonableness because a critical factor in
the prosecution of possession with the intent to deliver is the
type of packaging and quantity of the substance involved. He
asserts the trial court relied heavily on Cravens' testimony re-
garding the packaging of the cocaine and argues but for his trial
counsel's failure to emphasize the inconsistent descriptions of
this evidence, the result of the trial would have been different.
In examining counsel's performance, a reviewing court
shall not extend its inquiry into areas involving the exercise of
judgment, discretion, trial tactics or strategy. People v. Gon-
zalez, 238 Ill. App. 3d 303, 331-32, 606 N.E.2d 304, 324 (1992).
Defense counsel repeatedly asked McLearin whether he or other
officers attempted to preserve any fingerprint evidence on the
plastic bag recovered. In this way, counsel brought to the
court's attention the possibility the physical evidence presented
was never actually in defendant's possession. Defense counsel
asked the witnesses numerous, specific questions regarding the
packaging and amount of the substance recovered. The court heard
any discrepancies in witness testimony and was in a position to
draw reasonable inferences from any conflicts in the evidence.
Defendant was not denied the effective assistance of counsel
merely because he disagrees with the trial tactics employed by
his attorney.
Finally, defendant alleges trial counsel's failure to
file a motion for a new trial denied him effective assistance of
counsel. To succeed on this claim, defendant must establish
there was a reasonable probability a new trial would have been
granted had counsel filed such a motion. Strickland, 466 U.S. at
694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; see Chatman, 276
Ill. App. 3d at 622, 659 N.E.2d at 46. Defendant contends he
would have prevailed on such a motion if it (1) attacked the
denial of his motion to withdraw the jury waiver and (2) argued
the evidence was insufficient to prove him guilty beyond a rea-
sonable doubt. Based on our resolution of those issues, we dis-
agree.
When there are no substantial grounds for a new trial,
a failure to move for one does not demonstrate incompetency.
Gonzalez, 238 Ill. App. 3d at 331, 606 N.E.2d at 323; People v.
Purnell, 126 Ill. App. 3d 608, 624, 467 N.E.2d 1160, 1172 (1984).
Nothing in the record suggests a defense motion for a new trial
would have been successful. Accordingly, defendant has not met
the second prong of Strickland and we reject this last claim of
ineffective assistance of counsel.
IV. SENTENCE IMPOSED
Finally, defendant argues the 15-year sentence imposed
by the court was excessive in light of the seriousness of the of-
fense committed. Absent an abuse of discretion, the sentence
imposed by the trial court may not be altered upon review. Peo-
ple v. Perruquet, 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883
(1977). The court found defendant possessed 26.1 grams of a sub-
stance containing cocaine with the intent to deliver it. The
possession of between 15 and 100 grams of cocaine with the intent
to deliver is punishable by a term of imprisonment "not less than
6 years and not more than 30 years." 720 ILCS 570/401(a)(2)(A)
(West 1994).
Defendant argues the 26.1 grams he allegedly possessed
was only "'slightly in excess of the minimum required to make the
offense a Class X felony,'" quoting People v. Evans, 143 Ill.
App. 3d 236, 242, 492 N.E.2d 1036, 1041 (1986), and concludes his
sentence was excessive. Defendant requests reduction in his sen-
tence pursuant to Supreme Court Rule 615(b)(4) (134 Ill. 2d R.
615(b)(4)) or, alternatively, remand for resentencing.
While the amount of the controlled substance possessed
by a defendant is relevant to the seriousness of the offense,
this was not the only factor considered by the trial court in
sentencing defendant. The court indicated it considered the fol-
lowing factors: defendant's substantial traffic record, his
prior convictions for possession of cannabis, his "incredible"
testimony at trial, his "total lack of sincerity," and his "con-
tinued protestations of innocence." The court concluded defen-
dant was "not a good risk of rehabilitation" and sentenced him to
15 years in prison, a period well within the statutory guide-
lines.
Sections 5-5-3.1 and 5-5-3.2 of the Unified Code of
Corrections (Code) set forth factors to which the court may ac-
cord weight in determining an appropriate sentence. 730 ILCS
5/5-5-3.1, 5-5-3.2 (West 1994). The court may opt to minimize a
sentence when the character and attitude of the defendant indi-
cate he is unlikely to commit another crime. 730 ILCS 5/5-5-
3.1(a)(9) (West 1994). The sentencing court may choose not to
minimize a sentence when, as the court found here, there is a
distinct absence of mitigating factors. 730 ILCS 5/5-8-1(b)
(West 1994). Here, the court gave weight to defendant's history
of criminal activity, including prior convictions for possession
of cannabis, which is a proper basis for imposing a more severe
sentence under section 5-8-1(b) of the Code. 730 ILCS 5/5-5-
3.2(a)(3) (West 1994). Defendant presented no evidence in miti-
gation of his crime. Given the relevant aggravating and lack of
mitigating factors before it, we conclude the trial court did not
abuse its discretion in sentencing defendant to 15 years in pris-
on.
V. CONCLUSION
For the foregoing reasons, we affirm the judgment of
the trial court.
Affirmed.
STEIGMANN, P.J., and McCULLOUGH, J., concur.
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