                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Burse, 2012 IL App (4th) 100973




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    MARK A. BURSE, Defendant-Appellant.



District & No.             Fourth District
                           Docket No. 4-10-0973


Filed                      June 15, 2012


Held                       Where defendant was convicted of attempted delivery of a controlled
(Note: This syllabus       substance pursuant to a fully negotiated plea and received a sentence of
constitutes no part of     probation in exchange for his stipulation that the evidence was sufficient
the opinion of the court   to convict him of attempt, he was precluded from arguing on appeal that
but has been prepared      the offense of which he was convicted was void on the ground that the
by the Reporter of         general attempt statute had been preempted by sections 401(d) and102(h)
Decisions for the          of the Controlled Substances Act and, therefore, his conviction was
convenience of the         affirmed, since he benefitted from his bargain with the State and should
reader.)
                           not be heard to object on appeal.


Decision Under             Appeal from the Circuit Court of Pike County, No. 09-CF-31; the Hon.
Review                     Michael R. Roseberry, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Karen Munoz, and Ryan R. Wilson, all of State
Appeal                     Appellate Defender’s Office, of Springfield, for appellant.

                           Frank McCartney, State’s Attorney, of Pittsfield (Patrick Delfino, Robert
                           J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE POPE delivered the judgment of the court, with opinion.
                           Justices Steigmann and Appleton concurred in the judgment and opinion.




                                            OPINION

¶1          In April 2009, pursuant to a fully negotiated agreement, defendant, Mark A. Burse, was
        sentenced to 24 months’ probation for attempt (delivery of a controlled substance) (720 ILCS
        5/8-4(a) (West 2008); 720 ILCS 570/401(d) (West 2008)), following a stipulation to the
        evidence and the sufficiency thereof to convict. In April 2010, defendant admitted violating
        his probation and the trial court subsequently resentenced him to 30 months’ probation and
        60 days’ periodic imprisonment. Following a September 2010 hearing, the court found
        defendant violated his probation a second time and resentenced him to 30 months’ probation
        and 76 days’ periodic imprisonment. Shortly thereafter, the court granted defendant’s motion
        to modify sentence and converted defendant’s periodic imprisonment to 150 days’ straight
        time with credit for 8 days served.
¶2          In November 2010, the trial court denied defendant’s amended motion to reconsider
        sentence. Defendant filed a notice of appeal. In January 2011, this court allowed defendant’s
        motion for leave to file a late notice of appeal to correct the nature of the appeal.
¶3          On appeal, defendant asserts the offense of which he was convicted (attempt (delivery
        of a controlled substance)) is void because the general attempt statute (720 ILCS 5/8-4(a)
        (West 2008)) has been preempted by sections 401(d) and 102(h) of the Illinois Controlled
        Substances Act (Act) (720 ILCS 570/401(d), 102(h) (West 2008)). We affirm.

¶4                                        I. BACKGROUND
¶5          As a result of his actions on or about February 23, 2009, the State charged defendant by
        information with (1) unlawful delivery of a controlled substance (between 1 and 15 grams
        of cocaine) (count I) (charged February 2, 2009) (720 ILCS 570/401(c)(2) (West 2008)); (2)
        criminal drug conspiracy (count II) (charged March 11, 2009) (720 ILCS 570/405.1(a) (West
        2008)); and (3) unlawful delivery of a controlled substance (less than one gram of cocaine)
        (count III) (charged March 24, 2009) (720 ILCS 570/401(d) (West 2008)). On April 7, 2009,

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       the State dismissed count I after lab results confirmed the amount of cocaine was less than
       one gram. Because of defendant’s prior criminal history, he was not eligible for a sentence
       to probation on count II or III.
¶6          On April 21, 2009, the State informed the trial court the parties had reached a plea
       agreement. Pursuant to the agreement, the State filed a fourth charge alleging defendant
       “committed the offense of attempt (delivery of a controlled substance), in that said defendant,
       with the intent to commit the offense of [d]elivery of a [c]ontrolled [s]ubstance, in violation
       of 720 ILCS 570/401(d), performed a substantial step toward the commission of that offense
       in that he drove a [vehicle] containing *** a controlled substance to the residence of
       confidential source ‘Michael Stewart’ *** in violation of 720 ILCS 5/8-4(a).” Attempt
       (delivery of a controlled substance) is a Class 3 felony. 720 ILCS 5/8-4(c)(4) (West 2008).
¶7          Defendant stipulated to the following facts, acknowledging they were sufficient to find
       him guilty of attempt (delivery of a controlled substance) (count IV). On February 23, 2010,
       police engaged the services of a confidential source, “Michael Stewart,” who had indicated
       defendant’s cousin, Justin Burse, sold him cocaine on approximately five prior occasions.
       After receiving a call from Stewart informing them Justin would be delivering a small
       amount of cocaine, the police conducted a search of Stewart’s person and residence, finding
       no illegal contraband or money. The police gave Stewart $100 of prerecorded marked money
       to use in the transaction and a video camera was installed in the living room. From nearby,
       police watched a Chevrolet Trailblazer containing defendant and Justin pull up to Stewart’s
       house. Sergeant Jeff Windmiller, one of the officers conducting surveillance, recognized the
       Trailblazer as defendant’s, knew defendant to be the usual operator of the vehicle, and had
       some intelligence defendant had previously been involved with the distribution of cocaine.
       Defendant remained in the Trailblazer while Justin exited and went into the residence,
       returning approximately two minutes later. Police then entered the residence and seized
       approximately one gram of crack cocaine. A traffic stop was immediately effected on
       defendant’s vehicle. Upon a search incident to arrest, police recovered a small amount of
       cannabis and $1,165 from defendant’s person, $100 of which was the marked money police
       had given Stewart.
¶8          On the stipulation of this evidence, the trial court found defendant guilty of attempt
       (delivery of a controlled substance). Pursuant to the agreement, the State dismissed counts
       II and III, and the court sentenced defendant to 24 months’ probation on count IV. Defendant
       took no appeal.
¶9          In February 2010, the State filed a petition to revoke defendant’s probation. In April
       2010, defendant admitted the allegations in the petition and in June 2010, the trial court
       resentenced defendant to 30 month’s probation and 60 days’ periodic imprisonment.
       Defendant took no appeal.
¶ 10        In August and September 2010, the State filed a petition to revoke probation and an
       amended petition, respectively. Following a September 2010 hearing, the court found
       defendant had violated probation a second time, and in October 2010, resentenced defendant
       to 30 months’ probation and 76 days’ periodic imprisonment. Shortly thereafter, the court
       granted defendant’s motion to modify his sentence from periodic imprisonment to straight


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       time, modifying defendant’s sentence to 150 days’ straight time with credit for 8 days served.
       The court denied defendant’s motion to reconsider sentence and an amended motion to
       reconsider sentence. Defendant immediately filed a notice of appeal herein.
¶ 11       In January 2011, this court allowed defendant’s motion for leave to file late notice of
       appeal to correct the nature of the appeal.

¶ 12                                         II. ANALYSIS
¶ 13       On appeal, defendant does not raise any error in the proceedings identified in his notice
       of appeal. Rather, for the first time, defendant argues his conviction of attempt (delivery of
       a controlled substance) is void because the general attempt statute (720 ILCS 5/8-4(a) (West
       2008)) has been preempted by sections 401(d) and 102(h) of the Act (720 ILCS 570/401(d),
       102(h) (West 2008)). Specifically, defendant contends his April 2009 conviction must be
       vacated, or in the alternative, he should be allowed to withdraw his guilty plea. We disagree.
¶ 14       “ ‘When no direct appeal is taken from an order of probation and the time for appeal has
       expired, a reviewing court is precluded from reviewing the propriety of that order in an
       appeal from a subsequent revocation of that probation, unless the underlying judgment of
       conviction is void.’ ” People v. Gregory, 379 Ill. App. 3d 414, 418, 883 N.E.2d 762, 765-66
       (2008) (quoting People v. Johnson, 327 Ill. App. 3d 252, 256, 762 N.E.2d 1180, 1183
       (2002)). “ ‘A void judgment is one entered by a court (1) without jurisdiction or (2) that
       exceeded its jurisdiction by entering an order beyond its inherent power.’ ” Id. at 418, 883
       N.E.2d at 766 (quoting Johnson, 327 Ill. App. 3d at 256, 762 N.E.2d at 1183).
¶ 15       In this case, pursuant to the agreement, defendant was convicted of attempt (delivery of
       a controlled substance) pursuant to section 8-4(a) of the Criminal Code of 1961(Criminal
       Code), which provides, “[a] person commits an attempt when, with intent to commit a
       specific offense, he does any act that constitutes a substantial step toward the commission
       of that offense.” 720 ILCS 5/8-4(a) (West 2008). Defendant did not appeal his original April
       2009 conviction. More important, the charge he pled to was filed as a result of a fully
       negotiated resolution of the case and defendant stipulated the evidence was sufficient to
       convict him of attempt (unlawful delivery of a controlled substance). The State, as part of the
       fully negotiated disposition, dismissed two counts which carried mandatory prison time, filed
       a probationable charge, and agreed to a sentence of probation in exchange for defendant’s
       stipulation. Now, after (1) violating his probation twice; (2) being resentenced twice; and (3)
       the trial court granting his motion to modify sentence, defendant urges this court to vacate
       his conviction, or, alternatively, allow him to withdraw his plea because he contends attempt
       (delivery of a controlled substance) is not a crime in Illinois. We decline to do so.
¶ 16       Section 401 of the Act provides, “it is unlawful for any person knowingly to manufacture
       or deliver, or possess with intent to manufacture or deliver, a controlled substance.” 720
       ILCS 570/401 (West 2008). A violation of section 401(d) (less than one gram of cocaine) is
       a Class 2 felony. 720 ILCS 570/401(d) (West 2008). The Act defines “delivery” as “the
       actual, constructive or attempted transfer of possession of a controlled substance.” (Emphasis
       added.) 720 ILCS 570/102(h) (West 2008). Based on the definition of “delivery,” defendant
       asserts the Act has specifically criminalized the attempted delivery of a controlled substance

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       and, thus, has preempted the general attempt statute (a Class 3 felony) under which he was
       convicted. See People v. Taylor, 18 Ill. App. 3d 480, 482, 309 N.E.2d 595, 597 (1974) (“It
       is generally accepted that special statutes prevail over general statutes, especially when the
       special statute has its origin later in time.”).
¶ 17       Defendant cites People v. Stupka, 226 Ill. App. 3d 567, 589 N.E.2d 1068 (1992), to
       support his preemption argument. In Stupka, the defendant was convicted of unlawful
       delivery of a controlled substance (cocaine) under the Act, a Class X felony (formerly Ill.
       Rev. Stat. 1989, ch. 56 1/2, ¶ 1401(a)(2)). Id. at 568, 589 N.E.2d at 1069. On appeal, the
       defendant argued he should have been convicted of attempt (delivery of a controlled
       substance), a Class 1 felony, under the general attempt statute (formerly Ill. Rev. Stat. 1989,
       ch. 38, ¶ 8-4) because he did not actually deliver the controlled substance. Id. at 572, 369
       N.E.2d at 1072. The Second District Appellate Court disagreed and stated as follows:
               “We believe the principle of preemption has sound application here where the
           legislature has chosen to include an ‘attempted transfer of possession’ of a controlled
           substance in the definition of the substantive offense of unlawful ‘delivery’ of a
           controlled substance [under the Act]. [Citation.] The express inclusion of an attempt in
           the substantive offense appears to demonstrate a legislative intent to equate an attempted
           delivery with the seriousness of a completed delivery of a controlled substance.” Id. at
           574, 589 N.E.2d at 1073.
       The Stupka court held “the specific provisions regarding delivery, which include an
       attempted transfer as defined in the [Act] [citation] preempt the general attempt provision
       of section 8-4 [of the Criminal Code] [citation]” and, thus, defendant was properly charged
       and convicted of the substantive offense under the Act, even where delivery was not
       completed. Id. at 574-75, 589 N.E.2d at 1073. People v. Lev, 166 Ill. App. 3d 173, 519
       N.E.2d 1168 (1988); People v. Echols, 282 Ill. App. 3d 185, 668 N.E.2d 35 (1996).
¶ 18       We need not decide whether the general attempt statute under the Criminal Code has
       been preempted by the Act because, “it is not unlawful for the State and the defendant to
       bargain for a plea of guilty to a nonexistent crime, if defendant gets a benefit.” Cf. People v.
       Johnson, 200 Ill. App. 3d 1018, 1023, 558 N.E.2d 607, 610 (1990) (citing People ex rel.
       Bassin v. Isreal, 31 Ill. App. 3d 744, 748, 335 N.E.2d 53, 57 (1975)). In Isreal, the defendant
       was charged with attempted murder but later entered a negotiated guilty plea to attempted
       voluntary manslaughter. Isreal, 31 Ill. App. 3d at 744, 335 N.E.2d at 54. Defendant later filed
       a pro se petition for writ of habeas corpus, alleging the trial court did not have jurisdiction
       to convict him because attempted voluntary manslaughter was not a crime in Illinois. Id. at
       744-45, 335 N.E.2d at 54. Without determining whether attempted voluntary manslaughter
       was an offense in Illinois, the Fifth District Appellate Court held it was not error to accord
       the defendant the benefit of his bargain, which allowed him to receive a substantially reduced
       sentence. Id. at 748, 335 N.E.2d at 57. This case is similar because, as in Isreal, the plea
       agreement allowed defendant the luxury of pleading to a reduced charge and receiving a
       sentence of probation, rather than the three to seven years he would have faced had he been
       convicted of count II and/or count III, both Class 2 felonies (see 720 ILCS 570/401(d),
       405.1(c) (West 2008)).


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¶ 19       In his reply brief, defendant argues the Fifth District Appellate Court took a step back
       from Isreal in People v. Clark, 80 Ill. App. 3d 46, 50, 399 N.E.2d 261, 265 (1979), when it
       held the “defendant’s conviction cannot stand, since the statute under which he was
       convicted [was] a nullity.” We are not convinced. In Clark, the defendant pleaded guilty to
       possession of a controlled substance under a similar statute which had been expressly
       declared a nullity in People v. Natoli, 70 Ill. App. 3d 131, 140, 387 N.E.2d 1096, 1102
       (1979), because it punished simple possession more harshly than delivery of a controlled
       substance. Further Clark distinguished itself from Isreal on the ground the defendant in
       Clark pleaded guilty to the original offense, not a reduced charge, in exchange for a mere
       sentence recommendation. Indicating its agreement with the holding in Isreal, the Clark
       court stated “[w]hat the State relinquished in the [Isreal] plea negotiation was an opportunity
       to seek a longer sentence and a conviction on a more serious charge. Here, the State
       relinquished an opportunity to seek a more serious penalty on a prosecution the State could
       not maintain in any event. On the instant facts, the requisite loss on the part of the State
       necessary to establish estoppel does not appear.” Clark, 80 Ill. App. 3d at 49, 399 N.E.2d at
       264.
¶ 20       Stupka upheld a defendant’s conviction on a higher class felony for attempt (delivery)
       under the Act. It did not hold a general attempt conviction would be a nullity. Additionally,
       unlike the defendant in Clark, defendant’s sentence of 24 months’ probation was not a mere
       sentence recommendation but a fully negotiated agreement. The reduced charge was filed as
       part of the negotiations and defendant avoided conviction on higher-class felonies with
       mandatory prison time. He benefitted from his bargain with the State and should not be heard
       to complain now.

¶ 21                                   III. CONCLUSION
¶ 22      For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
       award the State its $50 statutory assessment against defendant as costs of this appeal.

¶ 23      Affirmed.




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