                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Scott, 2012 IL App (4th) 100304




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    JEFFREY L. SCOTT, Defendant-Appellant.



District & No.             Fourth District
                           Docket No. 4-10-0304


Filed                      February 10, 2012


Held                       On appeal from defendant’s conviction for possession of
(Note: This syllabus       methamphetamine and sentence to 10 years’ imprisonment, the appellate
constitutes no part of     court rejected his contentions that he was not proved guilty beyond a
the opinion of the court   reasonable doubt and that his sentence was impermissibly disparate with
but has been prepared      respect to his codefendant’s sentence, since, inter alia, the evidence
by the Reporter of         supported a finding of defendant’s constructive possession of the
Decisions for the          methamphetamine recovered in a search of his residence, and the decision
convenience of the         in Milton cited by defendant in support of his disparate-sentences
reader.)
                           argument did not change the general rule that the two-year sentence
                           imposed following his codefendant’s guilty plea did not form a valid
                           basis of comparison with the sentence imposed on defendant following
                           his trial.


Decision Under             Appeal from the Circuit Court of Jersey County, No. 09-CF-131; the
Review                     Hon. Eric S. Pistorius, Judge, presiding.



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

                          Benjamin L. Goetten, State’s Attorney, of Jerseyville (Patrick Delfino,
                          Robert J. Biderman, and Perry L. Miller, all of State’s Attorneys
                          Appellate Prosecutor’s Office, of counsel), for the People.


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




                                            OPINION

¶1          In February 2010, a jury found defendant, Jeffrey L. Scott, guilty of possession of
        methamphetamine and not guilty of aggravated participation in methamphetamine
        production. In March 2010, the trial court sentenced defendant to 10 years’ imprisonment.
        Defendant appeals, arguing he was not proved guilty of possession of methamphetamine
        beyond a reasonable doubt and his sentence was impermissibly disparate with respect to that
        of his codefendant, Amy E. Rives. We disagree with defendant and affirm.

¶2                                        I. BACKGROUND
¶3          On August 7, 2009, while defendant was on “parole,” or what is currently known as
        mandatory supervised release (MSR), in rural Jersey County, agents from the Illinois State
        Police Meth Response Team searched an apartment defendant had registered with his parole
        officer as his permanent residence. The agents intended to conduct an MSR-compliance
        check because pharmacy records showed defendant had made several purchases of
        pseudoephedrine in previous months at a local Walgreens. The Walgreens logs did not show
        defendant purchased an unlawful quantity of pseudoephedrine in any 30-day period, but
        defendant’s name also appeared on logs from other pharmacies and his activities raised a
        suspicion that he was involved in methamphetamine production or use.
¶4          After agents knocked on the door of the residence for approximately 5 to 10 minutes,
        defendant answered. Codefendant Rives, who was also on MSR, was in the bathroom. In the
        course of the ensuing search, agents found items associated with the production and use of
        methamphetamine. These included hypodermic needles found behind the refrigerator;
        “foilees” (paraphernalia related to methamphetamine use) concealed behind a picture hung
        on the wall; a razor blade stored in the corner of a picture frame that appeared wet; wet
        coffee filters suspected to have been used in methamphetamine production; and a wet, burnt
        pseudoephedrine blister pack and box. Outside the residence, in defendant’s truck, agents


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     found a cut piece of a garden hose that they suspected was used for procuring anhydrous
     ammonia. Some of these materials were deemed hazardous and were destroyed. Others were
     preserved as evidence. Tests on one of the foilees revealed it contained 0.1 grams of
     methamphetamine, a trace amount.
¶5       Later on August 7, 2009, defendant and Rives were each charged with one count of
     possession of less than five grams of methamphetamine (720 ILCS 646/60(a) (West 2008)),
     a Class 3 felony (720 ILCS 646/60(b)(1) (West 2008)), and one count of aggravated
     participation in methamphetamine production (720 ILCS 646/15(b)(1)(A) (West 2008)), a
     Class X felony (720 ILCS 646/15(b)(2) (West 2008)). Rives later pleaded guilty to
     possession of methamphetamine. Pursuant to the terms of her plea bargain, Rives was
     sentenced to two years’ imprisonment and the State dropped the charge of aggravated
     participation in methamphetamine production.
¶6       In February 2010, defendant proceeded to a two-day jury trial on both charges. Witnesses
     for the State testified to the events as described above. They also testified regarding the
     execution of the search and the relevance of items found in the residence that were seized or
     destroyed. Meth Response Team special agents Greg Cowell and Mike Fisher testified agents
     suspected that evidence was being destroyed or concealed during the 5 to 10 minutes before
     defendant answered the door. In particular, Agent Cowell testified no more than 10 minutes
     would have been needed to flush other items associated with methamphetamine production
     down a toilet; Agent Fisher testified, “Five to seven to ten minutes is [an] extraordinary
     amount of time to hide things.” The agents testified they suspected the pseudoephedrine box
     and blister pack were likely burned in an effort to destroy evidence and the coffee filters were
     rinsed to eliminate any trace amounts of methamphetamine. No methamphetamine was
     detected except in the foilee that was tested; however, none was expected to be found
     anywhere else due to the condition of the items when they were found. Agent Fisher testified
     that no more than trace amounts of methamphetamine were found because, he suspected,
     defendant and Rives used the rest. Based on his experience and the materials recovered
     during the search, Agent Fisher testified he believed the residence was used for some stage
     of methamphetamine production.
¶7       The defense included testimony by Rives and by defendant’s daughter, Jacqueline Scott.
     Their testimony showed defendant had lived in the residence for some time before he moved
     in with Rives about 1 or 1 1/2 months before August 7, 2009. Defendant left the apartment
     to remove himself from the continual recreational drug use by Jacqueline and others that
     occurred there. On July 13, 2009, after defendant had moved, Jacqueline was arrested on
     drug charges. The apartment was searched, and officers found cocaine, cannabis, and related
     paraphernalia. Jacqueline observed that search but did not see any officer search behind the
     pictures hung on the walls or in the kitchen trash bag. Defendant’s remaining possessions at
     the apartment, which he had packed in a box he left under the bed, were searched, but no
     contraband was discovered with them.
¶8       Although, due to her arrest, Jacqueline was not present at the apartment between July 13
     and August 7, 2009, Jacqueline testified the apartment was accessible to nonresidents. A key
     had been stolen by an unknown person. The lock on the front door was easily jimmied with
     a driver’s license. Once, Jacqueline had returned home to find that someone had entered

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       while she was gone; she found items she associated with manufacturing methamphetamine,
       including disassembled batteries and empty Sudafed packaging.
¶9          Regarding the materials seized on August 7, 2009, Jacqueline testified the coffee filters
       had been in the trash can since before she was arrested. She testified the razor blade found
       in the picture frame was hers; she used it when she lived in the apartment to cut lines of
       drugs. Jacqueline’s testimony regarding the prior presence of the picture frames, coffee
       filters, and razor blade was refuted by Jersey County sheriff’s deputy Michael Ringhausen,
       who conducted the July 13, 2009, search.
¶ 10        Rives testified neither she nor defendant knew methamphetamine was present in the
       apartment when it was searched on August 7, 2009. She testified defendant had returned to
       live in the apartment only a day or two earlier, when she had asked defendant to move out
       of her residence, and she was at the apartment that morning to ask defendant for a ride to
       work. She explained that she was using the restroom and defendant was getting dressed when
       the agents arrived. Rives testified she did not possess the methamphetamine that was found
       during the search but pleaded guilty to the charge because she expected to be returned to
       prison for an MSR violation regardless of the outcome of the prosecution.
¶ 11        Following the trial, the jury found defendant guilty of possession of less than five grams
       of methamphetamine and not guilty of aggravated participation in methamphetamine
       production.
¶ 12        In March 2010, the trial court held a sentencing hearing. Due to his prior convictions for
       possession of a controlled substance and possession of a methamphetamine precursor,
       defendant was eligible for an extended term of up to 10 years. Evidence showed that Rives,
       who had already been sentenced to two years’ imprisonment in exchange for her guilty plea,
       had six prior felony convictions. The State argued defendant should be sentenced to the
       maximum, 10-year term due to the extent and persistence of defendant’s involvement with
       methamphetamine production and use. Defendant argued, in light of Rives’s two-year
       sentence, the nonviolent nature of defendant’s prior crimes, and the minuscule amount of
       methamphetamine recovered, that he deserved the minimum sentence. The court, noting the
       seriousness of the charges and defendant’s MSR status, past failure to avail himself of drug-
       treatment programs offered in prison, and unwillingness to take responsibility for his crime
       in this case, sentenced defendant to 10 years’ imprisonment.
¶ 13        Later that month, defendant filed a motion to reconsider sentence. Defendant noted the
       disparity between his and Rives’s sentences and argued the trial court had punished
       defendant for exercising his constitutional right to pursue trial. In April 2010, the court
       denied defendant’s motion to reconsider sentence.
¶ 14        This appeal followed.

¶ 15                                     II. ANALYSIS
¶ 16                             A. Sufficiency of the Evidence
¶ 17      Defendant first argues the State failed to meet its burden of proving him guilty of
       possession of less than five grams of methamphetamine beyond a reasonable doubt. We


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       disagree.
¶ 18       When considering an argument regarding the sufficiency of the evidence to convict, we
       will affirm if, “viewing the evidence in the light most favorable to the prosecution, any
       rational trier of fact could have found the essential elements of the crime beyond a reasonable
       doubt.” People v. Smith, 185 Ill. 2d 532, 541, 708 N.E.2d 365, 369 (1999). Reversal is
       warranted only when the State’s evidence is “so unreasonable, improbable, or unsatisfactory
       as to justify a reasonable doubt of [the] defendant’s guilt.” Id. at 542, 708 N.E.2d at 370.
¶ 19       A person is guilty of possession of methamphetamine if he “knowingly *** possess[es]
       methamphetamine or a substance containing methamphetamine.” 720 ILCS 646/60(a) (West
       2008). In drug-related cases in general, the element of possession requires “[the] defendant’s
       knowledge of the presence of the narcotics and his immediate and exclusive control over
       them.” People v. Morrison, 178 Ill. App. 3d 76, 90, 532 N.E.2d 1077, 1086 (1988).
       “Possession can be actual or constructive.” Id. Actual possession exists where the defendant
       exhibits “some form of dominion over the unlawful substance, such as trying to conceal it
       or throw it away.” Id. Constructive possession is shown where the defendant exercises “no
       actual personal present dominion over the narcotics, but there is an intent and a capability
       to maintain control *** over them.” Id. For example, “[w]here narcotics are found on the
       premises rather than on a defendant, constructive possession may be inferred from facts
       showing that he once had physical control with intent to exercise control in his own behalf,
       he has not abandoned the drugs and no other person has obtained possession.” People v.
       McLaurin, 331 Ill. App. 3d 498, 502, 772 N.E.2d 296, 300 (2002). “[E]vidence establishing
       constructive possession is often wholly circumstantial.” (Internal quotation marks omitted.)
       People v. Minniweather, 301 Ill. App. 3d 574, 580, 703 N.E.2d 912, 916 (1998).
¶ 20       In this case, the evidence was sufficient to support a finding of defendant’s constructive
       possession of the recovered methamphetamine. A reasonable juror could have inferred that
       defendant exhibited an intent and opportunity to continue exercising dominion over the
       methamphetamine by concealing it and attempting to destroy related paraphernalia and trace
       evidence before he answered the door. Knowing they were used in relation to illegal drugs,
       defendant had an opportunity and a motive to rinse the coffee filters and the razor blade, to
       attempt to burn the pseudoephedrine packaging, to dispose of these materials in the trash, and
       to conceal the foilees behind a picture frame. That defendant and Rives were the sole
       occupants of the apartment for the day or two leading up to the search indicates they were
       responsible for rinsing the coffee filters and the razor blade and burning the pseudoephedrine
       packaging. Testimony showed other drug-related items may have been flushed down the
       toilet. Defendant and Rives’s attempted destruction and concealment of these items is
       circumstantial evidence of their possession or concealment of the recovered narcotics.
       Despite the circumstantial nature of the evidence, the inference that defendant possessed the
       methamphetamine was not so unreasonable as to preclude the jury’s guilty verdict.

¶ 21                                B. Sentencing Disparity
¶ 22       Defendant next argues his sentence was impermissibly disparate with respect to Rives’s
       sentence. We disagree.


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¶ 23       “[T]he trial court has broad discretionary powers in imposing a sentence [citation], and
       the trial court’s sentencing decision is entitled to great deference [citation].” People v.
       Stacey, 193 Ill. 2d 203, 209, 737 N.E.2d 626, 629 (2000). Accordingly, “absent an abuse of
       discretion by the trial court, the sentence may not be altered on review.” Id. at 209-10, 737
       N.E.2d at 629.
¶ 24       “Arbitrary and unreasonable disparity between the sentences of similarly situated
       codefendants is impermissible. [Citations.] However, the mere disparity of sentences does
       not, by itself, establish a violation of fundamental fairness.” People v. Caballero, 179 Ill. 2d
       205, 216, 688 N.E.2d 658, 663 (1997). Rather, a permissible sentencing disparity may be
       “warranted by differences in the nature and extent of the concerned defendants’ participation
       in the offense.” Id. A disparity may also be justified by differences in the codefendants’
       character, criminal history, and potential for rehabilitation. People v. Foster, 199 Ill. App.
       3d 372, 393, 556 N.E.2d 1289, 1303 (1990).
¶ 25       In general, “[a] sentence imposed on a codefendant who pleaded guilty as part of a plea
       agreement does not provide a valid basis of comparison to a sentence entered after a trial.”
       Caballero, 179 Ill. 2d at 217, 688 N.E.2d at 664. This is because “a trial court may properly
       grant leniency to the defendant who pleads guilty and thereby insures prompt and certain
       application of correctional measures, acknowledges his guilt, and demonstrates a willingness
       to assume responsibility for his conduct.” Foster, 199 Ill. App. 3d at 393, 556 N.E.2d at
       1303. Moreover, we observe that a trial court’s determination whether to ratify a plea
       agreement struck through negotiations between a defendant and the State differs qualitatively
       from its finding of an appropriate sentence following a trial and a sentencing hearing.
¶ 26       Defendant cites four cases in which the appellate court found a defendant’s sentence
       imposed after trial was impermissibly disparate with respect to a codefendant’s sentence who
       pleaded guilty: People v. Milton, 182 Ill. App. 3d 1082, 538 N.E.2d 1227 (1989); People v.
       Daniels, 173 Ill. App. 3d 752, 527 N.E.2d 993 (1988); People v. Jackson, 145 Ill. App. 3d
       626, 495 N.E.2d 1207 (1986); and People v. Bishop, 60 Ill. App. 3d 940, 377 N.E.2d 585
       (1978). Of these, only the court in Milton considered the codefendant’s guilty plea in its
       analysis of the sentencing disparity. The others are therefore unpersuasive.
¶ 27       In Milton, 182 Ill. App. 3d at 1093-95, 538 N.E.2d at 1234-35, the Second District
       Appellate Court found the defendant’s 30-year sentence imposed following a trial was
       excessive in comparison to his codefendant’s 8 1/2-year sentence imposed in exchange for
       a guilty plea. While “the facts that [the codefendant] was not armed, pleaded guilty to the
       offense, and agreed to testify against the defendant, if necessary,” justified sentencing the
       defendant more harshly than the codefendant, the court found, the 21 1/2-year difference was
       impermissible. Id. at 1095, 538 N.E.2d at 1235. The court reduced the defendant’s sentence
       to 12 years’ imprisonment. Id. at 1096, 538 N.E.2d at 1236.
¶ 28       In People v. Garcia, 231 Ill. App. 3d 460, 479, 596 N.E.2d 1308, 1321-22 (1992), the
       Second District discussed Milton in its analysis of the defendant’s sentencing-disparity
       argument. In Garcia, 231 Ill. App. 3d at 478-79, 596 N.E.2d at 1321-22, the court found no
       abuse of discretion in the trial court’s sentence of the defendant to 45 years’ imprisonment,
       notwithstanding sentences of 25 years and 4 years given to codefendants in exchange for


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       their guilty pleas. Discussing Milton, the court concluded the defendant’s sentence in Milton
       was reduced because of factors other than a comparison with the codefendant’s sentence.
       Specifically, the Garcia court stated, “Among those circumstances [leading the appellate
       court in Milton to conclude the defendant’s sentence was excessive] were [the] defendant’s
       youthful age of 20, his lack of a prior record, the fact that the victim was not injured, and the
       trial court’s reliance upon dubious factors.” Id. at 479, 596 N.E.2d at 1321. “In light of the
       above,” the Garcia court concluded, “the imposition of a maximum sentence in Milton
       appears to have been excessive regardless of any comparison with the codefendant’s
       sentence. *** We do not believe that Milton modifies the general rule that a sentence
       imposed after a guilty plea does not form a valid basis of comparison with respect to a
       sentence imposed after a trial.” (Emphasis added.) Id. at 479, 596 N.E.2d at 1321-22. The
       court in Garcia “adhere[d] to that rule” in concluding no abuse of discretion occurred with
       respect to the disparate sentences of the defendant and his codefendants. Id. at 479, 596
       N.E.2d at 1322.
¶ 29        In light of Garcia, we question the relevance of Milton in a sentencing-disparity analysis.
       The general rule–that a sentence imposed following a guilty plea provides no valid basis for
       comparison with respect to a sentence imposed following a trial–persists. Accordingly, we
       reject defendant’s position in this case that a comparison with Rives’s sentence can establish
       that defendant’s sentence is excessive. As defendant does not argue that his sentence is
       excessive in an absolute sense, but merely in comparison to Rives’s sentence, we find no
       abuse of discretion in the trial court’s sentencing defendant to 10 years’ imprisonment.

¶ 30                                   III. CONCLUSION
¶ 31      For the foregoing reasons, 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.

¶ 32       Affirmed.




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