Court: Selling of drugs near Elgin church not proven
By Dave Gathman dgathman@stmedianetwork.com June 27, 2012 7:56PM
Updated: July 29, 2012 5:07PM
ELGIN — Yes, the building is a church. But was it a church three years ago?
Saying that Kane County prosecutors didn’t answer that question specifically enough during a trial, 2nd Appellate Court justices this week threw out a six-year prison sentence levied against Jose L. Ortiz of Elgin for selling cocaine within 1,000 feet of a place of worship.
Selling cocaine within 1,000 feet of a church is a Class X felony, punishable by six to 30 years in prison. But selling the same amount of the drug farther away from a church is only a Class 1 felony, punishable by four to 15 years.
Ortiz had been convicted by Judge Allen Anderson of selling cocaine to an undercover police officer in the officer’s car at Bent and Liberty streets in Elgin on Jan. 9, 2009. According to the appellate justices, prosecutors at Ortiz’s trial had another police officer testify that the intersection is 705 feet from the building now occupied by Immanuel Baptist Church, at 500 St. Charles St. But the justices said the prosecutors did not introduce any evidence that the Immanuel Baptist building was already being used as a church on Jan. 9, 2009.
The justices suggested the prosecutors should have subpoenaed a church official to testify about the history of the building.
Therefore, the justices ruled that they must set aside Ortiz’s six-year sentence. The justices affirmed that Ortiz instead had been convicted only of the Class 1 felony version of selling cocaine and sent him back to the Kane County Circuit Court to be resentenced.
A judge now could sentence Ortiz to between four and 15 years.
Church officials could not be reached Wednesday for comment. But the church has occupied that same building for many years. For example, a 1975 Polk’s City Directory lists 500 St. Charles St. as being occupied by Immanuel Baptist Church.
