                                                                                      FILED

                                                                                    March 19, 2018
                                      2018 IL App (4th) 170339                       Carla Bender
                                                                                 4th District Appellate
                                           NO. 4-17-0339                               Court, IL

                                  IN THE APPELLATE COURT

                                           OF ILLINOIS

                                        FOURTH DISTRICT

 THE PEOPLE OF THE STATE OF ILLINOIS,                        ) Appeal from
                                                             ) Circuit Court of
                Plaintiff-Appellee,                          ) McLean County
                                                             )
                v.                                           ) No. 13CF420
                                                             )
 PABLO M. GARCIA,                                            ) Honorable
                                                             ) Robert Freitag,
                Defendant-Appellant.                         ) Judge Presiding.


       JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
       Presiding Justice Harris and Justice Knecht concurred in the judgment and opinion.

                                             OPINION

¶1             In April 2013, the State charged defendant, Pablo M. Garcia, with (1) unlawful

possession of a controlled substance with the intent to deliver (count I) (720 ILCS

570/401(a)(2)(B) (West 2012)), (2) unlawful possession of a controlled substance (count II) (id.

§ 402(a)(2)(C)), (3) unlawful possession of cannabis with the intent to deliver (count III) (720

ILCS 550/5(e) West 2012)), (4) unlawful possession of cannabis (count IV) (id. § 4(e)), (5)

unlawful delivery of a controlled substance (count V) (720 ILCS 570/401(c)(2) (West 2012)), (6)

unlawful delivery of a controlled substance (count VI) (id.), (7) unlawful delivery of a controlled

substance (count VII) (id.), (8) unlawful delivery of a controlled substance (count VIII) (id.), (9)

unlawful delivery of a controlled substance (count IX) (id.), and (10) unlawful delivery of a

controlled substance (count X) (id. § 401(a)(2)(A)).
¶2             In January 2014, defendant pleaded guilty to count I (id. § 401(a)(2)(B)), count III

(720 ILCS 550/5(e) (West 2012)), and count X (720 ILCS 570/401(a)(2)(A) (West 2012)). In

return for his guilty plea, the State dismissed all other charges, but the parties had no agreement

regarding the sentence to be imposed.

¶3             In April 2014, the trial court sentenced defendant to 16 years on count I, 5 years

on count III, and 12 years on count X and ordered the sentences to run concurrently.

¶4             In May 2014, defendant’s attorney filed a motion to reconsider the sentence,

arguing that it was excessive and did not give proper weight to mitigating factors. In July 2014,

defendant filed a pro se motion for reduction of his sentence. In March 2015, the trial court

denied the motions to reconsider. However, in December 2016, we remanded this case back to

the trial court for (1) defense counsel’s filing of an Illinois Supreme Court Rule 604(d) certificate

(Ill. S. Ct. R. 604(d) (eff. Feb. 6, 2013)), (2) the opportunity for defendant to file a new postplea

motion, (3) a new hearing and ruling on the motion, and (4) strict compliance with the

requirements of Rule 604(d). People v. Garcia, No. 4-15-0257 (Dec. 6, 2016) (agreed order

remanding for the filing of a Rule 604(d) certificate and further proceedings).

¶5             In April 2017, defendant filed a new motion to reconsider. At the hearing on that

motion, defendant argued that (1) his sentence was excessive and (2) the trial court considered an

impermissible double enhancement when it considered the quantity of the drugs as an

aggravating factor. In May 2017, the trial court denied the motion to reconsider.

¶6             Defendant appeals, arguing that the trial court improperly considered the amount

of the drugs in his possession, a factor inherent in the offenses, as a factor in aggravation. We

disagree and affirm.

¶7                                      I. BACKGROUND



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¶8                          A. The State’s Charges and the Guilty Plea

¶9             We earlier mentioned the 10 counts the State filed against defendant in April 2013

charging him with various drug offenses. In January 2014, defendant pleaded guilty to unlawful

possession of a controlled substance with the intent to deliver (count I) (720 ILCS

570/401(a)(2)(B) (West 2012)), unlawful possession of cannabis with the intent to deliver (count

III) (720 ILCS 550/5(e) (West 2012)), and unlawful delivery of a controlled substance (count X)

(720 ILCS 570/401(a)(2)(A) (West 2012)). Defendant’s plea was without any agreement

regarding the sentence to be imposed. In return for his guilty plea, the State dismissed all other

charges.

¶ 10                                B. The Sentencing Hearing

¶ 11           In April 2014, the trial court conducted a sentencing hearing. Count I had a

minimum sentence of 9 years and a maximum sentence of 40 years (id. § 401(a)(2)(B)), count III

had a minimum sentence of 3 years and a maximum sentence of 7 years (730 ILCS 5/5-4.5-35

(West 2012)), and count X had a minimum sentence of 6 years and a maximum sentence of 30

years (720 ILCS 570/401(a)(2)(A) (West 2012)). The following evidence was presented to the

court.

¶ 12                              1. The Evidence in Aggravation

¶ 13           Kevin Raisbeck, a detective for the Bloomington Police Department, testified that

his department purchased cocaine from defendant on six separate occasions between January

2013 and March 2013. These purchases were controlled-buy transactions in which a confidential

source would buy cocaine from defendant with prerecorded money. Raisbeck stated that in

March 2013, they executed a search warrant on defendant’s home where they found

approximately 1500 grams of cocaine and approximately 2 pounds of cannabis. Raisbeck further



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testified that they found scales, large amounts of packaging, and other evidence tending to show

that defendant intended to sell and deliver the controlled substances.

¶ 14                              2. The Evidence in Mitigation

¶ 15           Jonathan Zwanzig, a part-time minister, testified that defendant attended his Bible

lessons in jail. Zwanzig testified that defendant had admitted his guilt to him and was truly sorry

for what he had done. Defendant’s cousin-in-law, Rosio Hurtado, testified that defendant took

care of her while she was pregnant and that he had taken care of her children. Defendant’s

younger brother, Abel Garcia, testified that defendant supported his family in Mexico.

¶ 16           Defendant admitted he committed the crimes to which he had pleaded guilty and

took full responsibility for his actions. However, defendant refused to reveal the supplier of his

drugs.

¶ 17                              C. The Trial Court’s Sentence

¶ 18           In April 2014, the trial court sentenced defendant to 16 years in prison on count I,

5 years on count III, and 12 years on count X, with the sentences to run concurrently. The court

found in mitigation that (1) defendant did not have a significant criminal history and (2) he

displayed genuine regret since committing his crimes.

¶ 19           In aggravation, the trial court considered the amount, value, and level of toxicity

of the drugs. The court noted that “this is an offense that involves [a large] amount of a very

powerful and toxic drug that I don’t normally see. It’s a lot of cocaine for our little community

here.” The court considered the amount of drugs to both punish defendant, deter others, and to

protect the community. Defendant’s refusal to implicate his supplier was also a factor in

aggravation.

¶ 20                            D. The First Motion to Reconsider



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¶ 21           In May 2014, defendant’s attorney filed a motion to reconsider the sentence, and

in July 2014, defendant filed a pro se motion for reduction of his sentence. In March 2015, the

trial court denied both of these motions. As noted, in December 2016, we remanded this case

back to the trial court for (1) defense counsel’s filing of a Rule 604(d) certificate, (2) the

opportunity for defendant to file a new postplea motion, (3) a new hearing and ruling on the

motion, and (4) strict compliance with the requirements of Rule 604(d).

¶ 22                            E. The Second Motion to Reconsider

¶ 23           In April 2017, defendant filed a second motion to reconsider. At the hearing,

defendant argued that (1) his sentence was excessive and (2) the trial court considered an

impermissible double enhancement when it considered the quantity of the drugs as an

aggravating factor. Defendant requested that his sentence be reduced to nine years.

¶ 24           In May 2017, the trial court denied the motion to reconsider, explaining as

follows:

                       “[T]he [c]ourt is permitted and, in fact, the Illinois Constitution requires

               that the [c]ourt consider what is called the seriousness of the offense when it

               imposes a sentence. And I think my consideration of the facts of this case,

               including the amount of the drugs involved [and] the level of Mr. Garcia’s

               involvement, all related to the [c]ourt’s consideration of how serious this

               particular offense was, as opposed to taking that and then adding punishment in

               aggravation. I think there’s a difference in those two approaches.

                       So I don’t believe that there was any impermissible double enhancement

               in this case. *** I still think it’s the appropriate sentence, given all the evidence

               that I heard.”



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¶ 25           This appeal followed.

¶ 26                                      II. ANALYSIS

¶ 27           On appeal, defendant argues that the trial court improperly considered as an

aggravating factor the amount of drugs in his possession. We disagree.

¶ 28                                 A. Double Enhancements

¶ 29           A double enhancement occurs when (1) a single factor is used both as an element

of an offense and as a basis for imposing a harsher sentence than might otherwise have been

imposed or (2) the same factor is used twice to elevate the severity of the offense itself. People v.

Phelps, 211 Ill. 2d 1, 11-13, 809 N.E.2d 1214, 1120 (2004). Generally, double enhancements are

prohibited because courts assume that the legislature, in designating the appropriate range of

punishment for an offense, necessarily considered the factors inherent in the offense. Id. at 12.

¶ 30           However, there is no prohibition against double enhancements when the

legislature clearly intends to enhance a penalty based upon some aspect of the crime. People v.

Powell, 2012 IL App (1st) 102363, ¶ 8, 970 N.E.2d 539. To determine whether the legislature

intended such an enhancement, we look to the statute itself as the best evidence of the

legislature’s intent. Id.; see also People v. Guevara, 216 Ill. 2d 533, 545-46, 837 N.E.2d 901, 908

(2005); Phelps, 211 Ill. 2d at 15; People v. Rissley, 165 Ill. 2d 364, 390-91, 651 N.E.2d 133, 145

(1995).

¶ 31           Whether the trial court considered an improper double enhancement when

sentencing a defendant is a question of law, which we review de novo. People v. Morrow, 2014

IL App (2d) 130718, ¶ 14, 39 N.E.3d 44. When reviewing the trial court’s judgment, we review

the record as a whole rather than focusing on isolated statements. Id.

¶ 32                                B. The Applicable Statutes



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¶ 33	   Section 1 of the Cannabis Control Act states the following:

        “It is, therefore, the intent of the General Assembly *** to establish a reasonable

        penalty system *** which directs the greatest efforts of law enforcement agencies

        toward the commercial traffickers and large-scale purveyors of cannabis. To this

        end, this Act provides wide latitude in the sentencing discretion of the courts and

        establishes penalties in a sharply rising progression based on the amount of

        substances containing cannabis involved in each case.” (Emphasis added.) 720

        ILCS 550/1 (West 2012).

¶ 34    Section 100 of the Illinois Controlled Substances Act states the following:

        “It is the intent of the General Assembly [to] *** penalize most heavily the illicit

        traffickers or profiteers of controlled substances, who propagate and perpetuate

        the abuse of such substances with reckless disregard for its consumptive

        consequences upon every element of society ***.

               *** To this end, guidelines have been provided, along with a wide latitude

        in sentencing discretion, to enable the sentencing court to order penalties in each

        case which are appropriate for the purposes of this Act.” (Emphasis added.) 720

        ILCS 570/100 (West 2012).

¶ 35	   Section 411 of the Illinois Controlled Substances Act provides the following:

        “In determining the appropriate sentence for any conviction under this Act, the

        sentencing court may consider the following as indicative of the type of offenses

        which the legislature deems most damaging to the peace and welfare of the

        citizens of Illinois and which warrants the most severe penalties:




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                               (1) the unlawful delivery of the most highly toxic controlled

                       substances, as reflected by their inclusion in Schedule I or II of this Act;

                               (2) offenses involving unusually large quantities of controlled

                       substances, as measured by their wholesale value at the time of the

                       offense;

                                                ***

                               (5) offenses involving the large-scale manufacture of controlled

                       substances;

                                                ***

                       Nothing in this section shall be construed as limiting in any way the

               discretion of the court to impose any sentence authorized by this Act.” (Emphasis

               added.) Id. § 411.

¶ 36                        C. The Trial Court’s Sentencing Discretion

¶ 37           The trial court has broad discretionary powers when selecting an appropriate

sentence. Ill. Const. 1970, art. I, § 11; People v. McGath, 2017 IL App (4th) 150608, ¶ 63, 83

N.E.3d 671. An appropriate sentence must be based upon the particular circumstances of an

individual case, including (1) the defendant’s history, character, and rehabilitative potential; (2)

the seriousness of the offense; (3) the need to protect society; and (4) the need for deterrence and

punishment. McGath, 2017 IL App (4th) 150608, ¶ 63; People v. Hestand, 362 Ill. App. 3d 272,

281, 838 N.E.2d 318, 326 (2005). The trial court’s exercise of discretion when selecting an

appropriate sentence within the statutory framework provided by the legislature is not a double

enhancement. People v. Walsh, 2016 IL App (2d) 140357, ¶¶ 28-30, 53 N.E.3d 392; People v.

Childress, 321 Ill. App. 3d 13, 27-28, 746 N.E.2d 783, 796-97 (2001); People v. Thomas, 171 Ill.



                                                -8­
2d 207, 224-25, 664 N.E.2d 76, 85-86 (1996).

¶ 38                                 D. The Facts of this Case

¶ 39            In this case, defendant was found with over 1500 grams of cocaine and over 2

pounds of marijuana. Defendant pleaded guilty to count I (which had a minimum sentence of 9

years and a maximum sentence of 40 years), count III (which had a minimum sentence of 3 years

and a maximum sentence of 7 years), and count X (which had a minimum sentence of 6 years

and a maximum sentence of 30 years). The trial court sentenced defendant to 16 years in prison

on count I, 5 years on count III, and 12 years on count X, and ordered the sentences to run

concurrently.

¶ 40            In so doing, the trial court explained that it had considered in aggravation the

amount, value, and level of toxicity of the drugs involved. Defendant contends that the “amount

of drugs possessed or sold should *** not be available as an additional aggravating factor, as it is

already included in the sentencing range set by the legislature.” We disagree with this argument

for two reasons.

¶ 41            First, the legislature clearly intended that the amount of drugs possessed or sold

by a defendant should be an aggravating factor, so the rule against double enhancements does not

apply in this case. Powell, 2012 IL App (1st) 102363, ¶ 8. The legislature explicitly provided

trial courts with wide discretion when sentencing commercial traffickers and large-scale

purveyors of cannabis and controlled substances. 720 ILCS 550/1 (West 2012); 720 ILCS

570/411 (West 2012). Further, the explicit legislative intent of both the Cannabis Control Act

and the Illinois Controlled Substances Act is to punish large-scale drug dealers most severely.

720 ILCS 550/1 (West 2012); 720 ILCS 570/100 (West 2012). Likewise, the Illinois Controlled

Substances Act explicitly allows the trial court to consider the amount and toxicity of a drug



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when sentencing a defendant. 720 ILCS 570/411 (West 2012).

¶ 42           Second, even though the trial court considered the amount of the drugs involved

as an aggravating factor, the court framed this factor within the context of determining the

seriousness of the offense, the need to protect the community, the need to deter others from

committing similar crimes, and to punish the defendant. These were all appropriate

considerations for the court. McGath, 2017 IL App (4th) 150608, ¶ 63. We also note that the trial

court’s sentence was well below the maximum penalty that could have been imposed under the

applicable statutes. See 720 ILCS 570/401(a)(2)(A), (a)(2)(B) (West 2012). We conclude that no

double enhancement occurred because the trial court properly exercised its discretion in selecting

an appropriate sentence within the statutory framework provided by the legislature. Walsh, 2016

IL App (2d) 140357, ¶¶ 28-30. Accordingly, the trial court did not improperly consider the

amount of drugs in defendant’s possession as an aggravating factor.

¶ 43                                   III. CONCLUSION

¶ 44           For the reasons stated above, 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. 55 ILCS 5/4-2002 (West 2016).

¶ 45           Affirmed.




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