People v. Aquisto

2022 IL App (4th) 200081, 205 N.E.3d 812, 461 Ill. Dec. 724

• Court: Appellate Court of Illinois
• Decided: February 24, 2022
• Docket: 4-20-0081
• Status: Published

Opinion

2022 IL App (4th) 200081 FILED February 24, 2022 NO. 4-20-0081 Carla Bender th 4 District Appellate IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Livingston County BRANDON AQUISTO, ) No. 18CF166 Defendant-Appellant. ) ) Honorable ) Jennifer Hartmann Bauknecht, ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court, with opinion. Justices Harris and Holder White concurred in the judgment and opinion.

OPINION ¶1 In a bench trial, the circuit court of Livingston County found the defendant,

Brandon Aquisto, guilty of methamphetamine-related offenses. The court sentenced him to

concurrent terms of 25 years’ imprisonment for aggravated participation in methamphetamine

manufacturing (720 ILCS 646/15(b)(1)(B) (West 2018)) and 7 years’ imprisonment for unlawful

delivery of methamphetamine (id. § 55(a)(2)(A)). He appeals on five grounds.

¶2 First, defendant challenges the chain of custody for People’s exhibit No. 1, a

substance that the crime laboratory found to test positive for the presence of methamphetamine.

He objects to gaps in the proof linking him to this incriminating exhibit. Through his defense

counsel, however, defendant affirmatively stated to the circuit court that he had no objection to the

admission of People’s exhibit No. 1. Consequently, defendant is estopped from challenging the

chain of custody—which, we find, is not so deficient that his possession of People’s exhibit No. 1 is unproven as a matter of law. Defendant contends that defense counsel rendered ineffective

assistance by not objecting to deficiencies in the chain of custody. Because defendant, however,

fails to show that he suffered prejudice from the omission of such an objection, his claim of

ineffective assistance fails.

¶3 Second, defendant contends that the circuit court erred by denying his motion for

the suppression of evidence. But the search warrant that defendant challenged in his motion was

supported by probable cause. We conclude, de novo, that a controlled purchase of

methamphetamine from defendant in the backyard of a house designated as his “parole” residence

created probable cause to search the house. Therefore, we find no error in the denial of his motion

for the suppression of evidence.

¶4 Third, defendant claims that by watching, outside his presence, the postarrest video

of his interrogation by the police, the circuit court denied him his constitutional right to be present

at a critical stage of the proceeding. It is true that, after admitting the video in evidence, the circuit

court watched the video in chambers, in the presence of the attorneys but outside defendant’s

presence. Defense counsel, however, did not object to defendant’s absence from the viewing of

the video. Defendant makes a less than compelling argument that the viewing of this admitted

exhibit was a “proceeding,” let alone that the fairness of his trial depended on his being present at

the viewing. Thus, we find no clear or obvious error. Absent an error that is clear or obvious, the

doctrine of plain error does not avert the issue’s forfeiture resulting from (1) the lack of a

contemporaneous objection and (2) the failure to reiterate the objection in a posttrial motion. See

People v. Enoch, 122 Ill. 2d 176, 186 (1988); People v. Schrems, 224 Ill. App. 3d 988, 994 (1992).

¶5 Fourth, defendant accuses his defense counsel of rendering ineffective assistance

by failing to raise an entrapment defense to the charge of unlawful delivery of methamphetamine.

-2- Because defendant, however, denied the charge of unlawfully delivering methamphetamine—and

for all that appears in the record, persisted in his denial—the affirmative defense of entrapment

was legally unavailable. Defense counsel was correct, then, to refrain from raising an entrapment

theory. Effective assistance does not entail raising legally unmeritorious theories.

¶6 Fifth, defendant requests us to reduce his sentence or, alternatively, to remand his

case for a new sentencing hearing for the following reasons: (1) the circuit court subjected him to

a double enhancement by treating his receipt of compensation from a confidential source (Bryan

Cox) as an aggravating factor; (2) the court failed to consider, as a mitigating factor, that Cox had

induced defendant to commit unlawful delivery of methamphetamine; (3) the court failed to treat

defendant’s drug addiction as a mitigating factor; (4) the court imposed a trial tax; and (5) the 25-

year prison sentence for aggravated participation in methamphetamine manufacturing was too

severe, considering the seriousness of the offense and the evidence in mitigation. Acknowledging

that he has procedurally forfeited the first four contentions by omitting them in his postsentence

motion, defendant attributes the forfeiture to ineffective assistance of counsel, and alternatively,

he invokes the doctrine of plain error. These claims of ineffective assistance and plain error fail

because of either a lack of prejudice or a lack of a clear or obvious error. We find no abuse of

discretion in the sentence of 25 years’ imprisonment.

¶7 Therefore, we affirm the judgment.

¶8 I. BACKGROUND

¶9 A. The Charges

¶ 10 The State charged defendant with count I, aggravated participation in

methamphetamine manufacturing (720 ILCS 646/15(b)(1)(B) (West 2018)); count II,

methamphetamine-related child endangerment (id. § 50(a)(1)); count III, possession of

-3- methamphetamine-manufacturing materials (id. § 30(a)); count IV, unlawful delivery of

methamphetamine (id. § 55(a)(2)(A)); and count V, unlawful use of property (id. § 35(b)).

¶ 11 B. The Complaint for a Search Warrant

¶ 12 On June 5, 2018, Inspector Leland Brooke signed a complaint for a search warrant.

In his complaint, he averred as follows. He was a deputy in the Livingston County sheriff’s

department and was assigned to be an inspector with the department’s proactive unit. On June 4,

2018, around 1:51 p.m., Brooke had a text-message conversation with confidential source No.

99-14, who claimed he could buy one gram of methamphetamine from defendant for $70 at 838

South Locust Street in Pontiac, Illinois. Defendant had told the confidential source that he had

been making methamphetamine for the past two days. Defendant had even sent the confidential

source photographs of the methamphetamine “in the production liquid form.”

¶ 13 On June 4, 2018, at 11:20 p.m., Brooke met with the confidential source (Brooke

continued in his complaint), and they made preparations for a controlled purchase of

methamphetamine from defendant. Brooke searched the confidential source and found no

contraband on his person. He gave the confidential source $70 in prerecorded currency. Then he

drove the confidential source to the vicinity of the 900 block of South Locust Street.

¶ 14 Keeping the confidential source under surveillance, Brooke and another police

officer, Zachary Benning, observed the following. At approximately 12:01 a.m. on June 5, 2018,

the confidential source got out of Brooke’s undercover vehicle and walked directly to 838 South

Locust Street. South of that residence, on the sidewalk, the confidential source met a man, later

identified as defendant. The confidential source and the man walked to the residence at 838 South

Locust Street. Then they walked around to the north side of the residence. At about 12:09 a.m., the

confidential source walked away from 838 South Locust Street, heading south on Locust Street,

-4- toward Brooke. At approximately 12:12 a.m., the confidential source arrived back at the

undercover vehicle, where he handed Brooke a bag containing “approximately 0.2 grams of

powder methamphetamine.” At approximately 12:20 a.m., the confidential source was searched,

“with negative results.” The residence where the controlled purchase had taken place, 838 South

Locust Street, was “the parole address listed for [defendant].”

¶ 15 After the controlled purchase (Brooke continued in his complaint for a search

warrant), the confidential source told him what had happened. According to this debriefing, the

confidential source walked north on Locust Street, and defendant whistled to him. He walked up

to defendant, who had the confidential source follow him around to the back of the house. There

defendant told the confidential source he had only 30 dollars’ worth, and he asked the confidential

source if he had $30. The confidential source handed defendant $30, and defendant handed him

the methamphetamine. Defendant explained to the confidential source how to use the

methamphetamine since the confidential source had never used it before, and defendant advised

him to swallow the methamphetamine if the police stopped him. The confidential source then

walked back to Brooke.

¶ 16 On the basis of those facts, Brooke requested a warrant to search 838 South Locust

Street for methamphetamine and for any equipment and currency associated with the manufacture

of methamphetamine. The circuit court issued the requested search warrant.

¶ 17 C. The Search of 838 South Locust Street

¶ 18 On June 6, 2018, the police executed the search warrant. The residence that they

searched, 838 South Locust Street, was a house that defendant shared with his sister and her

spouse. Defendant’s nieces, who were born on July 2, 2009, and February 25, 2011, also lived in

the house and were present at the time of the search. Defendant’s bedroom was in the basement,

-5- where the police found a paystub with defendant’s name on it as well as supplies and equipment

for manufacturing methamphetamine. When the police opened a bag, wisps of vapor began wafting

upward, toward the children’s bedroom.

¶ 19 D. The Chemical Testing of Substances

¶ 20 1. People’s Exhibit No. 1

¶ 21 In his testimony in the bench trial, Brooke testified that, after the controlled

purchase at 838 South Locust Street, the confidential source, Cox, brought back to him, along with

$40 in change, “a little pill bag or a jeweler bag *** with a white powdery substance” in it. Brooke

further testified that he took the pill bag of powder to the sheriff’s department and that, after field-

testing the powder, he sealed the pill bag of powder into an evidence bag, which he locked into the

evidence vault. He identified People’s exhibit No. 1 as the sealed evidence bag. Brooke believed

that only he, “Inspector Benning, Detectives Rork [and] DeMoss, [and] Lieutenant Hamilton” had

access to the evidence vault. As far as Brooke knew, People’s exhibit No. 1 “remained in that

sealed condition in that locked vault until such time that it was transported to the Illinois State

Police crime lab.”

¶ 22 The prosecutor asked Brooke:

“Q. How do you know, again, how do you know that[ ] [People’s exhibit

No. 1 is] the exact same bag?

A. Because it’s my handwriting on the back and my initials, signature on

the back with the date and my badge number.”

¶ 23 Michelle Dierker, a forensic scientist with the Illinois State Police, testified that,

when People’s exhibit No. 1 arrived at the laboratory, someone other than her signed it in. Dierker

in turn “sign[ed] it over from another scientist.” The prosecutor asked Dierker:

-6- “Q. Now, if you recall, if you can tell from that mark or that packaging,

when you received it from the other forensic scientist who checked it in, do you

recall, was it in a sealed condition?

A. Yes, it was.

Q. And it was sealed in the bag that it’s, this plastic bag that it’s contained

in. Is that correct?

A. Correct. At the time that I received it, the only thing missing would be

the blue evidence tape along the bottom of the plastic bag because that’s evidence

tape that I put there as I resealed the evidence after my analysis.”

¶ 24 After performing chemical tests on the substance in People’s exhibit No. 1, Dierker

concluded that “the tenth of a gram of white powder substance in this exhibit was, in fact, positive

for the presence of methamphetamine.”

¶ 25 The prosecutor then offered People’s exhibit No. 1 in evidence. The circuit court

asked defense counsel:

“Any objection to [the] admission of People’s 1?

MR. RIPLEY [(DEFENSE COUNSEL)]: No.

THE COURT: People’s 1 is admitted.”

¶ 26 2. People’s Exhibit No. 6

¶ 27 A bottle in defendant’s basement bedroom contained liquid. The police poured 10

milliliters of the liquid into a vial and sent the vial, People’s exhibit No. 6, to the laboratory for

chemical testing. A forensic scientist, Joni Little, testified that, when she bubbled hydrogen

chloride through the liquid (a step in the methamphetamine-manufacturing process), the liquid

-7- turned into crystals, which tested positive for methamphetamine. Thus, Little opined, the liquid in

People’s exhibit No. 6 was methamphetamine that had not yet been crystallized.

¶ 28 E. The Unsuccessful Plea Negotiations

¶ 29 On May 30, 2019, at the beginning of the bench trial, the prosecutor reminded the

circuit court, “I don’t know if Your Honor was planning on the pretrial admonitions regarding

offers.” The court admonished defendant, explaining to him the minimum and maximum sentences

for the five counts of the information. Then the court inquired if there had been any plea

negotiations. The prosecutor answered that “[t]he original offer *** was 23 years in the Illinois

Department of Corrections” and that the last offer was 18 years. Defense counsel informed the

court that defendant had responded with a counteroffer, which the State had rejected.

¶ 30 F. The Testimony of the Confidential Source

¶ 31 The confidential source, Bryan Cox, testified that, in return for cash payments from

the police, he had done about 60 controlled purchases over the years. Although Cox had known

defendant since eighth grade and although they had been good friends, he came to regard defendant

as another target for a controlled purchase. Cox came to this realization, according to his testimony,

after defendant requested that he buy Sudafed for him. Initially, Cox thought that defendant wanted

the Sudafed to treat a cold (so Cox represented in his testimony), but somehow Cox found out that

defendant really wanted the Sudafed for making methamphetamine. It appears, from Cox’s

testimony, that defendant made it known on Facebook that he had methamphetamine to sell. The

prosecutor asked Cox:

“Q. Now, you indicated that you had never bought from [defendant] before?

A. No, I have not.

-8- Q. But you figured out that you could buy from him this time. Is that

correct?

A. Yes. Because he said, he had something on Facebook.”

¶ 32 Cox approached Brooke, suggesting that he could buy methamphetamine from

defendant. For his services on this occasion, the police promised to pay Cox $100 or so—he did

not remember the amount. Arrangements were made for the controlled purchase. Surveillance was

set up. When Cox approached defendant on South Locust Street, Benning was parked across the

street in a pickup truck, and the headlights of the truck came on. (According to Benning’s

testimony, the lights in the cab of the truck came on. Benning testified that it was a new truck and

that he had not learned yet how to control the interior lights.) Uneasy at the lights from the truck

across the street, defendant urged Cox to come into the backyard of 838 South Locust Street, where

they could transact their business in a more secluded location. In the backyard, defendant told Cox

that he had only $30 worth of methamphetamine. Of the $70 in cash that Brooke had given him,

Cox paid defendant $30. Then Cox brought back to Brooke the remaining $40 and the

methamphetamine.

¶ 33 G. The Postarrest Video of Defendant’s Statement to the Police

¶ 34 After the controlled purchase, the police arrested defendant. In the police station,

after reading defendant his rights, Brooke interviewed him. People’s exhibit No. 4 was a video

recording of the statement that defendant chose to make.

¶ 35 In the bench trial, Brooke testified that People’s exhibit No. 4 was “a fair and

accurate depiction of [his] conversation with the Defendant after he had been arrested.” After this

authentication of the exhibit by Brooke, the prosecutor offered the exhibit in evidence:

-9- “MR. YEDINAK [(PROSECUTOR)]: Your Honor, I’d ask that People’s

Number 4 be admitted into evidence.

THE COURT: Any objection?

MR. RIPLEY: No.

MR. YEDINAK: We would ask Your Honor to review this. I know we are

out of time for the day, and that actually concludes my direct examination of Deputy

Brooke. I don’t know how Your Honor wishes to proceed.

THE COURT: Okay. So first of all, you want me to view that. Any

objection to me viewing the interview of the Defendant outside of the courtroom?

MR. RIPLEY: No.”

¶ 36 In People’s exhibit No. 4, defendant admitted manufacturing methamphetamine

four times in the basement of 838 South Locust Street while the two children, his nieces, were in

the house. He insisted, however, that it had been exclusively for his own personal consumption

that he had manufactured the methamphetamine. He denied delivering methamphetamine to

anyone, including Cox.

¶ 37 H. The Findings of Guilt and the Sentence

¶ 38 The circuit court found defendant guilty of all five counts of the information, but

the court held that counts II, III, and V merged into count I.

¶ 39 Defendant did not move for a new trial.

¶ 40 On October 31, 2019, in the sentencing hearing, defendant made a statement in

allocution. The circuit court responded, “I think you’ve accepted responsibility here although we

did have a full-blown trial. You are entitled to maintain your innocence. But we did have a

full-blown trial on this case ***.”

- 10 - ¶ 41 The circuit court found the following factors in aggravation. First, defendant had

“been offered treatment on several occasions,” and he now was 30 years old—no longer a

juvenile—and his drug problem was getting worse instead of better. The court noted, “It did come

out during the trial that, you know, you learned this, how to attempt to cook meth while you were

in Decatur which is the place your mom said she was trying to get you to sober up ***.” Second,

defendant received compensation for his delivery of methamphetamine to Cox. The court

remarked to defendant:

“You received some money, and I think you actually got some of the Sudafed or

whatever it was that you were using to cook the meth. So you did receive

compensation for committing the offense. That’s not inherent in the offense itself,

albeit minimal. It wasn’t that much. But it is a factor in aggravation.”

Third, defendant had a considerable criminal record, which the court deemed a “very strong factor

in aggravation.” Fourth, another “very strong factor in aggravation,” in the court’s view, was that

defendant committed the present offense after being “paroled on January [20, 2018].” “So[,] there

are very, very strong aggravating factors in this case,” the court opined, “especially when you

consider the totality of the circumstances and the seriousness of the offense.”

¶ 42 Looking at the other side of the ledger, the circuit court agreed with defense counsel

that defendant “ha[d] no violent history in [his] past.” Even so, the court commented to defendant,

“You are a threat to society. I mean, not only to society but your nieces and to your sister and her

family. You are a very real threat.”

¶ 43 The circuit court concluded:

“So I can’t imagine a situation where you would receive a sentence

anywhere near what [you’re] asking for [(eight years’ imprisonment)], particularly

- 11 - again since you were on parole at the time of these offenses. So I do think the State’s

recommendation is a reasonable recommendation, and I am going to sentence you

to 25 years in the Department of Corrections on Count 1 plus a three year mandatory

supervisory release period. Seven years is the maximum sentence on Count 2 so I

will sentence you to seven years on Count 2.”

The written sentencing order specified that the two prison terms would run concurrently.

¶ 44 On November 25, 2019, defendant moved for a reduction of the sentence. See 730

ILCS 5/5-4.5-50 (West 2018). His motion gave four reasons for this requested relief. First, the

motion claimed that the circuit court had failed to consider unspecified mitigating factors. Second,

quoting from People v. Alexander, 239 Ill. 2d 205, 212 (2010), the motion criticized the sentence

as “ ‘greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to

the nature of the offense.’ ” (Internal quotation marks omitted.) Third, the motion asserted that the

court had disregarded the rehabilitative objective of article I, section 11, of the Illinois Constitution

(Ill. Const. 1970, art. I, § 11). Under that section, all penalties were to be “determined both

according to the seriousness of the offense and with the objective of restoring the offender to useful

citizenship.” Id. Fourth, the motion argued that the court had “failed to adequately consider the

financial impact of the cost of incarceration of Defendant, as required by [section 5-4-1 of the

Unified Code of Corrections (730 ILCS 5/5-4-1 (West 2018))].”

¶ 45 On February 10, 2020, the circuit court denied defendant’s motion for a reduction

of the sentence.

¶ 46 This appeal followed.

¶ 47 II. ANALYSIS

¶ 48 A. The Chain of Custody for People’s Exhibit No. 1

- 12 - ¶ 49 In drug cases, the alleged controlled substance usually is nondescript. White

powder looks much like any other white powder; off-white fragments look much like any other

off-white fragments. A reasonable trier of fact, then, would expect an explanation of how the

testifying police officer is able to tell that the bag of white powder, for example, that the prosecutor

has handed him and has asked him to identify is the same white powder that the police seized from

the defendant. See People v. Woods, 214 Ill. 2d 455, 466-67 (2005). Because the police are in the

business of seizing illegal narcotics and because they may well have many items of such evidence,

an explanation would be necessary of how the witness knows that this particular white powder, as

distinct from some other white powder, is the white powder that the defendant possessed. Unless

precautions are taken, a Baggie corner of suspected narcotics could easily get confused with

another Baggie corner of narcotics.

¶ 50 There is an additional risk: white powder that originally was not contraband could

easily be made into contraband by being tainted, accidentally or intentionally, with a tiny amount

of a controlled substance. See 720 ILCS 570/401(a) (West 2018) (gauging the severity of the

punishment by the weight of the substance containing the controlled substance). In the event of

such contamination, it would be impossible, by looking at the white powder, to tell that it had been

altered. See Woods, 214 Ill. 2d at 466-67. In short, “in cases *** where a defendant is accused of

a narcotics violation, the physical evidence is often not readily identifiable or may be susceptible

to tampering, contamination[,] or exchange.” Id.

¶ 51 Therefore, in drug cases, the State must lay a foundation for the admission of the

substance by “establish[ing] a chain of custody.” Id. at 467. That is, “[t]he State must show that

the police took reasonable protective measures to ensure that the substance recovered from the

defendant was the same substance tested by the forensic chemist.” Id.

- 13 - ¶ 52 Typically, for a chain of custody, reasonableness and probability are the standards,

not minute comprehensiveness. See id. The supreme court explains:

“Unless the defendant produces evidence of actual tampering, substitution[,] or

contamination, a sufficiently complete chain of custody does not require that every

person in the chain testify, nor must the State exclude every possibility of tampering

or contamination; the State must demonstrate, however, that reasonable measures

were employed to protect the evidence from the time that it was seized and that it

was unlikely that the evidence has been altered.” Id.

Thus, the State must show that the police took “reasonable protective measures” with the suspected

substance, not foolproof protective measures. Id.

¶ 53 On appeal, defendant argues that “the State failed to establish a chain of custody

for People’s Exhibit [No.] 1—purported to be the bag [that defendant] delivered to Cox.” The State

observes, however, that defendant never made such an objection in the trial court. The transcript

of the trial bears out the State’s observation. In fact, the transcript goes even further by showing

that defense counsel affirmatively disclaimed any objection. The circuit court asked defense

counsel if he had any objection to the admission of People’s exhibit No. 1, and defense counsel

answered, “No.”

¶ 54 By his attorney, then, defendant invited any error that might have been committed

by the admission of People’s exhibit No. 1. See People v. Cox, 2017 IL App (1st) 151536, ¶ 72

(holding that, by affirmatively answering no to the circuit court’s question of whether he objected

to the admission of a document, the defendant, through his defense counsel, invited any error in

the admission of the document). “Affirmative representations that a party has no objection to the

proceedings fall within the scope of the invited error doctrine because such representations

- 14 - reassure the trial court and encourage it to proceed without further consideration of the issues.”

State v. Winfield, 128 P.3d 1171, 1176 (Utah 2006). Consequently, under the doctrine of invited

error, defendant is estopped from contending, on appeal, that People’s exhibit No. 1 was

inadmissible on the ground of deficiencies in the chain of custody (or on any other ground). See

People v. Harvey, 211 Ill. 2d 368, 385 (2004). This estoppel makes defendant’s case

distinguishable from cases such as People v. Howard, 387 Ill. App. 3d 997, 1002 (2009), cited by

him, in which the defendant objected, at trial, to deficiencies in the chain of custody. A

chain-of-custody objection to People’s exhibit No. 1 would have been an objection that the State

had failed to lay a foundation for the admission of the exhibit. See Woods, 214 Ill. 2d at 471.

Foundational objections can be waived. See id.; People v. Averett, 237 Ill. 2d 1, 24 (2010); People

v. Stewart, 2018 IL App (3d) 160205, ¶ 20.

¶ 55 It is true that defendant did not waive his right to have the State prove, beyond a

reasonable doubt, that he possessed the methamphetamine. Generally, though, deficiencies in the

chain of custody do not make the evidence insufficient to sustain the conviction. Only a “complete

breakdown in the chain of custody” can make the chain of custody problematic enough that the

defendant’s possession (and, therefore, delivery) of the controlled substance is unproven as a

matter of law. See Woods, 214 Ill. 2d at 471-72. A complete breakdown is “a formidable standard”

for a defendant to establish on appeal. People v. Wilson, 2017 IL App (1st) 143183, ¶ 32. As the

supreme court explained in Woods, a chain-of-custody problem becomes a

sufficiency-of-the-evidence problem only if there is zero evidence linking the substance to the

defendant:

“For example, in those rare instances where a complete breakdown in the chain of

custody occurs—e.g., the inventory number or description of the recovered and

- 15 - tested items do not match—raising the probability that the evidence sought to be

introduced at trial was not the same substance recovered from defendant, a

challenge to the chain of custody may be brought under the plain error doctrine.

When there is a complete failure of proof, there is no link between the substance

tested by the chemist and the substance recovered at the time of the defendant’s

arrest. In turn, no link is established between the defendant and the substance. In

such a case, a failure to present a sufficient chain of custody would lead to the

conclusion that the State could not prove an element of the offense: the element of

possession.” Woods, 214 Ill. 2d at 471-72.

Thus, to challenge the sufficiency of the evidence on the ground of the lack of a chain of custody,

the defendant must show that the chain of custody is nonexistent, not merely incomplete. The

defendant must convince the reviewing court that the record fails to reveal any link at all between

the substance and the defendant.

¶ 56 A chain of custody can have “substantial gaps” while still linking the substance to

the defendant. People v. Smith, 2014 IL App (1st) 103436, ¶ 53. The decision by the Fourth District

in People v. Echavarria, 362 Ill. App. 3d 599 (2005), illustrates how substantial the gaps can be.

The chain of custody in Echavarria was as follows. A police officer, John Schweighart, testified

that he saw another police officer, Jon Swenson, take a package of suspected cocaine out of the

defendant’s pants pocket. Id. at 607. A third police officer, Dale Rawdin, testified that, when the

defendant was arrested, he possessed what the forensic laboratory later determined to be about 23

grams of cocaine. Id. Schweighart testified that the exhibit in question in that case, People’s exhibit

No. 1, “appeared to be the same item removed from [the] defendant’s pocket and [that] it was in

the same condition as it was when Sergeant Swenson removed it.” Id. According to a stipulation

- 16 - by the parties, a chemist, John Martin, would testify that he received People’s exhibit No. 1 in a

sealed evidence bag from a fourth police officer, Willie Gartrell, and that the enclosed substance

was 22.6 grams of a chunky, white powder containing cocaine. Id. For the first time on appeal, the

defendant in Echavarria challenged the chain of custody. Id. at 603.

¶ 57 The appellate court in Echavarria agreed that the chain of custody suffered from

considerable gaps:

“The record contain[ed] no evidence *** as to what Sergeant Swenson did with the

plastic bag he recovered from [the] defendant. No evidence showed the bag was

placed in a closed or sealed container or was initialed or dated by Sergeant

Swenson. No evidence showed where the bag was stored after it was recovered by

Sergeant Swenson or when it came into the possession of Willie Gartrell. *** [It

was unexplained] how [Gartrell] was involved in this investigation, how the exhibit

came into his possession, or how he stored the exhibit while it was in his custody.

*** No evidence showed how a bag taken from [the] defendant ended up in a sealed

evidence bag. No evidence showed this bag [was] different in any way from other

bags of controlled substances that [might] have been handled by the task force or

transported to the lab or stored. No evidence showed the bag presented as exhibit

No. 1 [was] the same one recovered from [the] defendant by Sergeant Swenson.”

(Emphasis in original.) Id. at 607-08.

Even so, the appellate court concluded that the chain of custody “met the minimum standard

enunciated in Woods.” Id. at 608.

¶ 58 The chain of custody in the present case is more detailed than that in Echavarria.

Brooke testified that after the controlled purchase, Cox brought back to him, along with $40 in

- 17 - change, “a white, a little pill bag or a jeweler bag *** with a white powdery substance” in it.

Brooke further testified that he took the pill bag of powder to the sheriff’s department and that,

after field-testing the powder, he sealed the pill bag of powder into an evidence bag, which he then

locked into the evidence vault. He identified People’s exhibit No. 1 as the sealed evidence bag.

Brooke believed that only he, “Inspector Benning, Detectives Rork [and] DeMoss, [and]

Lieutenant Hamilton” had access to the evidence vault. As far as Brooke knew, People’s exhibit

No. 1 “remained in that sealed condition in that locked vault until such time that it was transported

to the Illinois State Police crime lab.” Brooke could tell that People’s exhibit No. 1 was “the exact

same bag” because his handwriting was on the back of the bag along with his initials, signature,

badge number, and the date.

¶ 59 Thus, unlike the testifying police officer in Echavarria, Brooke explained how he

could identify People’s exhibit No. 1. It is true, as defendant points out, that Brooke did not specify

what date he had written on the back of People’s exhibit No. 1. Nevertheless, when we view the

evidence in a light most favorable to the prosecution (see Woods, 214 Ill. 2d at 470), it is reasonably

inferable—and it would be only logical—that Brooke had written the date he received the

evidence: June 5, 2018. Otherwise, he would have been unable to testify that the date notation

helped him identify People’s exhibit No. 1 as the substance that Cox brought him on June 5, 2018,

from defendant. Granted, it is theoretically possible that Brooke recovered other illegal narcotics

from other suspects on that date. Such a theoretical possibility, however, does not eliminate the

connection between People’s exhibit No. 1 and defendant. See id. at 472.

¶ 60 Granted, as defendant argues, some links in the chain of custody were left

unspecified. For example, Brooke could not remember who took People’s exhibit No. 1 to the

crime laboratory. The seals of the exhibit, however, appeared to be in order. Brooke identified the

- 18 - blue seal of the laboratory. A forensic scientist, Michelle Dierker, testified that she “sign[ed]

[People’s exhibit No. 1] over from another scientist” in the laboratory and that, when Dierker

received the exhibit, it was sealed. The prosecutor asked Dierker:

“Q. And it was sealed in the bag that it’s, this plastic bag that it’s contained

A. Correct. At the time that I received it, the only thing missing would be

the blue evidence tape along the bottom of the plastic bag because that’s evidence

tape that I put there as I resealed the evidence after my analysis.”

¶ 61 Also, as defendant notes, the State did not call the scientist who signed People’s

exhibit No. 1 into the laboratory. Nor did the State prove, for that matter, who transported People’s

exhibit No. 1 from the sheriff’s department to the laboratory. Likewise, in Echavarria, no evidence

showed how the substance in question was “transported to the lab.” Echavarria, 362 Ill. App. 3d

at 608. Nonetheless, the evidence in Echavarria was sufficient to support the conviction. Id.

¶ 62 In short, just because, absent an objection by defendant, some links in the chain of

custody were left undescribed, it does not follow that defendant’s possession of the

methamphetamine was unproven as a matter of law. His case is hardly comparable to People v.

Terry, 211 Ill. App. 3d 968, 973 (1991), cited by him, in which the police officer “inventoried 32

packets with an estimated weight of 8 grams” and the chemist, by contrast, “found 42 packets,

weighing approximately 12 grams.” Nor is his case comparable to People v. Gibson, 287 Ill. App.

3d 878, 882 (1997), also cited by him, in which there was “almost a five-fold increase” between

the weight of the substance as recorded in the police station and the weight of the substance as

stipulated in the trial. In the present case, the asserted discrepancy between “approximately [0.2]

grams” and a “tenth of a gram” (0.1 grams) is a matter of rounding. (Emphasis added.) For that

- 19 - matter, given the use of the qualifier “approximately,” there is no discrepancy. In Echavarria, the

difference between 22.6 grams and “approximately 23 grams” did not make the evidence

insufficient as a matter of law. (Emphasis added.) Echavarria, 362 Ill. App. 3d at 601. It follows

that in the present case the difference of a mere tenth of a gram, in approximate terms, does not do

so.

¶ 63 In sum, defendant is estopped from raising any deficiencies in the chain of custody.

The record shows a link between People’s exhibit No. 1 and him. Therefore, we reject his challenge

to the sufficiency of the evidence.

¶ 64 Defendant’s alternative claim of ineffective assistance of counsel is equally

unavailing. A claim of ineffective assistance has two elements: deficient performance and

resulting prejudice. People v. Shipp, 2020 IL App (2d) 190027, ¶ 31. “Prejudice” means a

reasonable probability that, but for the claimed error by defense counsel, the outcome of the trial

would have been different. See People v. Hale, 2013 IL 113140, ¶ 18. “[W]e may dispose of an

ineffective assistance of counsel claim by proceeding directly to the prejudice prong without

addressing counsel’s performance.” Id. ¶ 17. Let us assume, for the sake of argument, that the

omission of a chain-of-custody objection was deficient performance. Even so, to find prejudice

from the omission of such an objection, we would have to find a reasonable probability that, if

defense counsel had made such a chain-of-custody objection, the State would have been unable to

cure the objection (and, consequently, the circuit court would have refused to admit People’s

exhibit No. 1 and would have acquitted defendant of count IV). In the record before us, we find

no basis for asserting a reasonable probability that the State would have been incapable of curing

any chain-of-custody objection.

¶ 65 B. The Motion for Suppression of Evidence

- 20 - ¶ 66 On March 8, 2019, defendant filed a motion for the suppression of evidence, in

which he asserted “a reasonable expectation of privacy in respect to the residence” at 838 South

Locust Street. The motion then made three observations about the complaint for a search warrant.

First, neither Brooke nor the confidential source reported that any illegal substance had been

purchased inside the residence. Second, neither Brooke nor the confidential source reported seeing

any methamphetamine inside the residence. Third, neither Brooke nor the confidential source

reported seeing defendant going into or coming out of the residence. Because of those claimed

shortcomings in the complaint for a search warrant, the motion argued that the search of 838 South

Locust Street was unsupported by probable cause and hence was unlawful. Consequently, the

motion requested the suppression of all evidence that was the fruit of the search, including physical

evidence, descriptions of what the police saw inside the house, and oral statements by defendant

to the police. The circuit court denied the motion.

¶ 67 Defendant contends that the denial of his motion for the suppression of evidence

was erroneous because the complaint for a search warrant failed to show a nexus between the

delivery of methamphetamine and the residence itself. In other words, quoting from People v.

Manzo, 2018 IL 122761, ¶ 35, he argues that the complaint failed to establish “reasonable cause

to believe that the specific things to be searched for and seized [were] located on the property to

which entry [was] sought.” (Internal quotation marks omitted.) In Manzo, the supreme court

concluded that “the information set forth in the sworn complaint [for a search warrant] fail[ed] to

connect [the] defendant’s home to [the] drug sales.” Id. ¶ 46. Defendant regards Manzo as

“instructive on this issue.”

¶ 68 Manzo, however, is distinguishable in its facts. In Manzo, the affidavit for a search

warrant presented no evidence that the drug dealer was a frequent visitor at the searched residence,

- 21 - let alone that he lived there. Id. ¶ 10. Also, none of the drug sales occurred at the residence. Id.

¶ 44. In the present case, by contrast, the complaint for a search warrant represented that 838 South

Locust Street was “the parole address listed for [defendant]” and that on June 5, 2018, the

confidential source bought methamphetamine from defendant in the backyard of that address.

Other cases cited by defendant are distinguishable for the same reason that Manzo is

distinguishable: the drug sale did not occur at the address known to be the defendant’s residence.

¶ 69 Granted, the drug sale did not occur inside the residence. Rather, it occurred outside

the residence, in the backyard. The question, then, is whether a controlled purchase that took place

in the yard of a house in which the drug seller is known to reside creates probable cause to search

the interior of the house. Surprisingly, we have found no Illinois case that addresses this precise

question. In the view of other jurisdictions, however, there would be probable cause to search the

residence. United States v. Arguelles, No. 12-20305, 2012 WL 4513781, at *3 (E.D. Mich. Sept.

29, 2012); United States v. Solomon, No. 1:11CR32-1, 2011 WL 1704721, at *10 (M.D.N.C. May

4, 2011); Commonwealth v. Alcantara, 760 N.E.2d 1236, 1239 (Mass. App. Ct. 2002). The Eastern

District of Michigan reasoned as follows:

“Police officers observed a drug transaction in the backyard of the residence the

day the warrant was obtained and executed. This alone establishes probable cause

to search the entire residence, which is alleged to be under the control of [the]

[d]efendant, as it implies that [the] [d]efendant was using his home as a base for

ongoing criminal activity.” Arguelles, 2012 WL 4513781, at *3.

¶ 70 We find the reasoning in Arguelles to be persuasive. If a defendant sells drugs in

the backyard of a house known to be the defendant’s residence, a person of reasonable caution

would infer that the defendant probably is using the house as a base for ongoing drug trafficking

- 22 - and that evidence of drug trafficking therefore could be found inside the house. See People v.

Teague, 2019 IL App (3d) 170017, ¶ 11 (explaining that “[p]robable cause exists when the totality

of the facts and circumstances within the affiant’s knowledge at that time was sufficient to warrant

a person of reasonable caution to believe that the law was violated and [that] evidence of [the

violation] is on the premises to be searched” (internal quotation marks omitted)). Thus, in our

de novo review, we affirm the denial of defendant’s motion to suppress evidence. See People v.

Lyons, 373 Ill. App. 3d 1124, 1127 (2007) (holding that the appellate court “review[s] de novo a

trial court’s ruling on a motion to suppress when the underlying facts are not in dispute and the

only question is the adequacy of the affidavit attached to the complaint for the warrant”). The

complaint for a search warrant described a nexus between the controlled purchase and defendant’s

known residence, 838 South Locust Street. See Manzo, 2018 IL 122761, ¶ 35.

¶ 71 C. The Right to a Public Trial

¶ 72 Defendant claims that by viewing outside his presence People’s exhibit No. 4, the

postarrest video of his interrogation, the circuit court violated his due-process right to a public

trial. See U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 8; People v. Lucas, 2019 IL App (1st)

160501, ¶ 12. The court asked the parties ahead of time, “Any objection to me viewing the

interview of the Defendant outside of the courtroom?” Defense counsel answered, “No.” Thus, the

court did not ask defense counsel if he objected to the court’s viewing the video outside defendant’s

presence. Instead, the court asked him if he objected to the court’s viewing the video outside the

courtroom. By answering no to that question, defense counsel did not affirmatively assent to

defendant’s noninclusion in the viewing of the video. This time, therefore, instead of an invited

error, there was merely a procedural forfeiture resulting from the omission of an objection to

defendant’s noninclusion at the video viewing. See People v. Holloway, 2019 IL App (2d) 170551,

- 23 - ¶ 44. The doctrine of plain error, invoked by defendant, can avert a procedural forfeiture. See

People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).

¶ 73 The first question in plain-error review is whether a clear or obvious error was

committed. Id. Defendant compares his case to Lucas, 2019 IL App (1st) 160501, ¶ 21, in which

the appellate court found that an in-chambers viewing of a traffic-stop video outside the

defendant’s presence violated her right to a public trial. In Lucas, however, the circuit court viewed

the video before admitting the video in evidence. Id. ¶ 6. In the present case, by contrast, it appears

that the circuit court viewed the video after admitting the video in evidence. The prosecutor offered

People’s exhibit No. 4 in evidence. The court asked defense counsel if he had any objection, and

defense counsel answered no. At that point, it is true, the court did not explicitly say, “People’s

exhibit No. 4 is admitted.” It is fairly implied, though, that as soon as defense counsel answered

that he had no objection to the admission of the exhibit, the exhibit was admitted. The docket entry

for May 30, 2019, reads, “People’s Exhibit *** #4 admitted, no objection.” After the admission of

People’s exhibit No. 4, the court asked defense counsel if he had any objection to the court’s

viewing the video outside the courtroom, and defense counsel again answered no. Thus, the court

first admitted the postarrest video in evidence, and then, evidently sometime afterward, the court

viewed the video. The appellate court has distinguished Lucas from a case in which the circuit

court viewed a video outside the defendant’s presence after admitting the video in evidence. See

People v. Maniwa, 2021 IL App (4th) 190796-U, ¶ 31.

¶ 74 Defendant has moved for permission to cite as supplemental authority People v.

Flagg, 2021 IL App (1st) 191692-U, which extended the rationale of Lucas to a case in which the

circuit court viewed a video outside the defendant’s presence after admitting the video in evidence

(see id. ¶ 2). We grant the motion.

- 24 - ¶ 75 In Flagg, the record was unclear whether the defendant personally had viewed the

videotaped statement of the sexual-assault victim before the circuit court viewed it. After admitting

the video in evidence, the court watched the video in chambers, without playing it in open court.

Id. ¶ 25. The defendant claimed that the court thereby violated his constitutional right to be present

at all critical stages of the proceeding. Id. ¶ 44. The defendant never preserved this claim through

a contemporaneous objection and a reiteration of the objection in a posttrial motion. Id. ¶ 45.

Nevertheless, he argued that the doctrine of plain error should avert the procedural forfeiture of

this claim. Id.

¶ 76 “ ‘The first step of plain-error review,’ ” the appellate court reasoned in Flagg, “ ‘is

determining whether any error occurred.’ ” Id. (quoting People v. Thompson, 238 Ill. 2d 598, 613

(2010)). (According to more recent case law from the supreme court, the first step in plain-error

review is determining whether any clear or obvious error occurred. People v. Reese, 2017 IL

120011, ¶ 60; People v. Downs, 2015 IL 117934, ¶ 15.) Under the Illinois and United States

Constitutions, a criminal defendant has a “ ‘right to be present at any stage of the criminal

proceeding that is critical to its outcome if his presence would contribute to the fairness of the

procedure.’ ” Flagg, 2021 IL App (1st) 191692-U, ¶ 46 (quoting People v. Lofton, 194 Ill. 2d 40,

67 (2000)). Citing Lucas, the defendant in Flagg argued that “the [circuit] court’s viewing of the

*** video was a critical stage because his absence prevented him from reviewing all the evidence

against him before deciding whether to testify.” Id. ¶ 47. The appellate court in Flagg was

persuaded by that argument since it was unclear from the record whether the defendant ever viewed

the video. Id. ¶ 51.

¶ 77 The appellate court explained in Flagg:

- 25 - “On this understanding [(that the circuit never ensured that the defendant viewed

the video before the court viewed it)], the court’s decision to view the *** video in

chambers denied [the] defendant his right to be present at a critical stage because

the [video] was a significant aspect of the evidence against him. *** [T]he court

stated it considered the *** video in arriving at its guilty finding, explaining that

the *** video bolstered [the victim’s] credibility. It follows that this evidence was

significant, and therefore [the] defendant had a right to review it before deciding

whether to testify, which the court denied him by viewing the *** video only in

chambers.” Id.

¶ 78 In its defense of that holding, the appellate court in Flagg distinguished some cases

from the Fourth District. The Flagg court distinguished People v. Myles, 2020 IL App (4th)

180652, because in Myles “the defendant’s testimony revealed he saw the video evidence at issue

before deciding whether to testify.” Flagg, 2021 IL App (1st) 191692-U, ¶ 54. The Flagg court

also distinguished People v. Young, 2013 IL App (4th) 120228, because in Young the appellate

court did not consider “a defendant’s right to be present for the introduction of significant evidence

against him at trial” but instead considered whether the viewing of a video in chambers during a

section 115-10 (725 ILCS 5/115-10 (2010)) hearing was a critical stage. Flagg, 2021 IL App (1st)

191692-U, ¶ 54.

¶ 79 The Flagg court, however, did not discuss Maniwa, a decision that the Fourth

District filed a month before the First District decided Flagg. Nor did the Flagg court discuss

Justice Steigmann’s special concurrence in People v. Duckworth, 2021 IL App (4th) 180740-U,

¶¶ 140-149 (Steigmann, J., specially concurring), a special concurrence that the Maniwa court

endorsed. See Maniwa, 2021 IL App (4th) 190796-U, ¶ 31.

- 26 - ¶ 80 In Maniwa, the defendant was charged with four counts of possessing child

pornography. Id. ¶ 2. He was tried in a bench trial. Id. People’s exhibit No. 3 was a DVD containing

the four videos that were the bases of the four counts. Id. ¶¶ 9, 19. The circuit court admitted the

DVD in evidence. Id. ¶ 9. Upon completion of the testimony, the proceedings went into recess. Id.

¶ 20. When the proceedings reconvened, the court noted, for the record, that it had reviewed the

State’s exhibits (including the DVD). Id. After closing arguments, the court found the defendant

guilty of all four counts. Id. ¶ 21. The court sentenced him to imprisonment. Id. ¶ 22.

¶ 81 On appeal, the defendant in Maniwa claimed he had been “denied his constitutional

right to be present at all critical stages of his trial when he was not present for the trial court’s

viewing of State’s exhibit No. 3,” the DVD. Id. ¶ 26. The Fourth District explained that “whether

the defendant’s absence occurred at a critical stage is answered by considering whether ‘the

defendant’s presence at the proceeding would have contributed to his opportunity to defend

himself against the charges.’ ” (Emphasis added.) Id. ¶ 29 (quoting Lofton, 194 Ill. 2d at 67). The

Fourth District agreed with Justice Steigmann’s special concurrence in Duckworth that “ ‘a trial

judge’s consideration of already admitted evidence does not constitute a “hearing” ’ or

proceeding.” Id. ¶ 31 (quoting Duckworth, 2021 IL App (4th) 180740-U, ¶ 145 (Steigmann, J.,

specially concurring)). The Fourth District further agreed with Justice Steigmann that an admitted

video was comparable to admitted documentary evidence and that the defendant’s presence in

chambers as the judge reviewed an admitted video would not have contributed to the defendant’s

ability to mount a defense any more than if the defendant were present in chambers as the judge

reviewed documentary evidence. Id.

¶ 82 Presumably, the Flagg court would disagree with that analysis in Maniwa. If the

defendant had known the contents of the video, the First District reasoned in Flagg, the defendant

- 27 - could have made a better-informed decision of whether to take the stand and testify on his own

behalf. See Flagg, 2021 IL App (1st) 191692-U, ¶ 51. There was “insufficient indication in the

record for [the Flagg court] to conclude that [the defendant] ever saw [the video].” Id. ¶ 51.

¶ 83 The logic of Flagg, however, would lead to an implausible conclusion: a judge

would be forbidden to read, in the privacy of chambers, a document admitted in evidence unless

the record affirmatively disclosed that the defendant personally had read the document first. Cf.

Duckworth, 2021 IL App (4th) 180740-U, ¶ 148 (Steigmann, J., concurring) (posing the rhetorical

question “[C]ould anyone really argue that a defendant had a constitutional right to be present at

this so-called ‘critical stage of the trial’ so defendant could watch the judge as he reviews

[numerous admitted documents] on the bench?”). After all, the only difference between an

admitted document and an admitted video is that equipment is necessary to view the video (unless

the judge uses reading glasses and would need that equipment to view the document). It seems to

us, then, that the reasoning in Maniwa is more persuasive than that in Flagg. The judge’s viewing

of the admitted postarrest video in chambers was not a “proceeding,” and therefore the viewing

did not violate defendant’s constitutional right to be present at all critical stages of the proceeding.

See Maniwa, 2021 IL App (4th) 190796-U, ¶ 31.

¶ 84 “[A] defendant is guaranteed the right to be present at any stage of the

criminal proceeding that is critical to its outcome if his presence would contribute to the fairness

of the procedure.” Lofton, 194 Ill. 2d at 67. Aside from the problem that a judge’s scrutiny of

admitted evidence in chambers is not a “proceeding,” defendant offers no convincing explanation

of how his presence in chambers during the viewing of the postarrest video would have contributed

to the fairness of the procedure. The content of the video would have been identical from one

showing to the next. The State disclosed the video in discovery and offered to make copies of the

- 28 - video for the defense if the defense provided a blank DVD. As far as we know, nothing prevented

defendant from watching the video himself. It is unclear why defendant, as Flagg would put it,

was “ ‘able to view all of the State’s evidence against him at trial’ ” only if he watched the video

while the judge was watching it. Flagg, 2021 IL App (1st) 191692-U, ¶ 48 (quoting People v.

Richardson, 2021 IL App (1st) 190821, ¶ 53). Since the video was of defendant’s being

interviewed by the police, he must have known what was in the video. Defendant argues, however,

that he was deprived of the opportunity to see the judge’s facial expressions and other body

language as the judge watched the video. This benefit would be “but a shadow.” (Internal quotation

marks omitted.) Lofton, 194 Ill. 2d at 67. In sum, then, in our de novo review, we find no violation

of defendant’s right to be present at a critical stage of the proceeding. See Maniwa, 2021 IL App

(4th) 190796-U, ¶ 29.

¶ 85 D. The Defense of Entrapment

¶ 86 Defendant claims that his defense counsel rendered ineffective assistance by

omitting to raise the defense of entrapment. See 720 ILCS 5/7-12 (West 2018). For defense counsel

to have raised the defense of entrapment, however, defendant would have had to admit committing

unlawful delivery of methamphetamine. See People v. Cooper, 239 Ill. App. 3d 336, 350-51

(1992). We quote from defendant’s brief: “Though [defendant] did make statements to the police

following his arrest, he repeatedly denied delivering meth.” Because defendant never admitted

delivering methamphetamine to Cox, defense counsel was justified in not raising the affirmative

defense of entrapment. See People v. Trice, 2017 IL App (4th) 150429, ¶ 31. Defense counsel’s

chosen strategy, instead, was to argue that defendant never committed the charged offenses. It

would have been “both factually and legally inconsistent for” defendant “to deny committing the

offense and then to assert as a defense that he committed the offense, but only because of

- 29 - incitement or inducement by the authorities.” (Internal quotation marks omitted.) Id. Effective

assistance of counsel does not entail making inconsistent claims.

¶ 87 E. The Severity of the Sentence

¶ 88 1. The State’s Motion to Strike Some Authorities From Defendant’s Brief

¶ 89 In arguing to us that the sentence for count I is too severe, defendant informs us

that he “started using drugs after he was prescribed pain killers following a surgery when he was

15.” (He cites the presentence investigation report, in which he made that representation to the

investigating officer, Ron R. Baker.) Defendant continues in his brief, “In a 2019 National Survey

on Drug Use and Health conducted by the Substance Abuse and Mental Health Services

Administration, it was reported that 9.7 million people aged 12 or older misused prescription pain

relievers. [Citation.] The [Centers for Disease Control and Prevention (CDC)] has categorized the

opioid abuse as an epidemic. [Citation.]” The State has moved to strike from defendant’s brief the

citations for those two online articles because defendant never presented those articles in the

sentencing hearing. The State further moves that, in ruling on its motion to strike the articles, we

refrain from considering the oral argument in a different appeal, People v. Klein, No. 4-20-0599

(Dec. 1, 2020). Because the record and arguments before us adequately equip us to rule on the

State’s motion to strike the articles, we grant the State’s motion that we refrain from considering

Klein.

¶ 90 Because the articles are official governmental publications, an argument could be

made for taking judicial notice of them on appeal. The Substance Abuse and Mental Health

Services Administration is a federal agency under the United States Department of Health and

Human Services. The CDC is a federal agency under the United States Department of Health and

Human Services. The appellate court has held that it may take judicial notice of information on

- 30 - official governmental websites. Leach v. Department of Employment Security, 2020 IL App (1st)

190299, ¶ 44.

¶ 91 If the information, however, is evidence that should have been presented in the

proceeding below, the appellate court will decline to take judicial notice of the information. Cook

County Board of Review v. Property Tax Appeal Board, 339 Ill. App. 3d 529, 542 (2002); People

v. Heaton, 266 Ill. App. 3d 469, 476 (1994); People v. Mehlberg, 249 Ill. App. 3d 499, 531 (1993).

The articles by the Substance Abuse and Mental Health Services Administration and the CDC are

evidence that defendant should have presented in the sentencing hearing so as to allow the State a

fair opportunity to (1) present counterevidence and (2) make arguments to the circuit court against

the evidence.

¶ 92 Even so, the State’s requested remedy of “striking” the citations is problematic for

two reasons. First, to “strike” some lines of text is to “delete” them. Merriam-Webster’s Online

Dictionary, https://www.merriam-webster.com/dictionary/strike [https://perma.cc/3Q2N-VXEW]

(last visited Feb. 22, 2022). In this age of electronic briefs, the appellate court no longer crosses

out passages in a brief with a black marker (if the appellate court ever did so). Nor does our

software allow us to remove text from a brief by holding down the delete button. We are reluctant

to grant a motion to strike parts of a brief unless we really are able to strike parts of a brief. Second,

even if we assumed that “striking” text from a brief retains any meaning, such striking is not

supposed to be routine. Rather, the “striking of an appellate brief, in whole or in part, is a harsh

sanction and is appropriate only when the alleged violations of procedural rules interfere with or

preclude review.” (Internal quotation marks omitted.) Independent Trust Corp. v. Kansas Bankers

Surety Co., 2016 IL App (1st) 143161, ¶ 33. Defendant’s citations of the articles by the Substance

Abuse and Mental Health Services Administration and the CDC do not interfere with or preclude

- 31 - review. Therefore, while disregarding the cited materials as outside the record, we deny the State’s

motion to strike the citations from defendant’s brief.

¶ 93 2. The Claim of Double Enhancement

¶ 94 Defendant claims that his defense counsel rendered ineffective assistance by failing

to object to the circuit court’s consideration, as an aggravating factor, that defendant received

compensation for unlawfully delivering the methamphetamine to Cox. See People v. McCain, 248

Ill. App. 3d 844, 851 (1993) (noting that, although unlawful delivery of a controlled substance can

be committed without compensation, few drugs are delivered as gifts and hence “it is generally

improper to consider compensation to be a factor in aggravation”). Again, “we may dispose of an

ineffective assistance of counsel claim by proceeding directly to the prejudice prong without

addressing counsel’s performance.” Hale, 2013 IL 113140, ¶ 17. Because the circuit court gave

“minimal” weight to the factor of compensation, we find no reasonable probability that the

sentence that defendant received for unlawful delivery of methamphetamine would have been

lighter had defense counsel objected to the consideration of compensation. See id. ¶ 18; cf. People

v. Beals, 162 Ill. 2d 497, 509-10 (1994) (holding that, “[w]here it can be determined from the

record that the weight placed upon the improperly considered aggravating factor was insignificant

and that it did not lead to a greater sentence, remandment is not required” and finding that “any

weight that the trial court placed on the fact that the defendant’s conduct caused the ultimate harm

was insignificant[ ] and did not result in a greater sentence”); People v. Minter, 2015 IL App (1st)

120958, ¶ 152 (“[W]here the trial court appears to place minimal emphasis upon an improper

factor, a new sentencing hearing is not required.”).

¶ 95 3. Inducing the Offense

- 32 - ¶ 96 That “[t]he defendant’s criminal conduct was induced or facilitated by someone

other than the defendant” “shall be accorded weight in favor of *** minimizing a sentence of

imprisonment.” 730 ILCS 5/5-5-3.1(a)(5) (West 2018). Defendant contends that, in determining

his sentence, the circuit court neglected to consider that mitigating factor. A failure to consider a

statutory mitigating factor is an abuse of discretion. People v. Miller, 2021 IL App (2d) 190093,

¶ 22. Defendant accuses defense counsel of rendering ineffective assistance by failing to raise the

mitigating factor in section 5-5-3.1(a)(5).

¶ 97 Defense counsel could have reasonably perceived, however, that it was defendant

who induced Cox instead of the other way around. Cox responded to a Facebook message by

defendant that he, defendant, “had something.” Arguably, defendant attempted to entice Cox

further by sending him pictures of the methamphetamine he was manufacturing. Defendant was

so eager to sell methamphetamine to Cox that defendant was undeterred by the lights that came on

in Benning’s truck. The characterization of Cox as the inducer is not necessarily convincing.

Defendant, rather, appears to have suggested to Cox that he was open for business. So, we find no

ineffective assistance in defense counsel’s probably wise decision not to portray defendant as

having been corrupted by Cox.

¶ 98 4. Addiction

¶ 99 Claiming that “[t]he majority of his criminal history is a symptom of his drug

problem,” defendant complains that the circuit court failed to consider his addiction as a mitigating

factor. Because the Unified Code of Corrections, however, does not list drug addiction as a

mitigating factor or an aggravating factor (730 ILCS 5/5-5-3.1(a), 5-5-3.2(a) (West 2018)), a

sentencing court need not regard drug addiction as either aggravating or mitigating. People v.

Sturgeon, 2019 IL App (4th) 170035, ¶ 105. The supreme court, in fact, has specifically held that

- 33 - a sentencing court is not required to consider drug addiction as a factor in mitigation. People v.

Mertz, 218 Ill. 2d 1, 83 (2005). A sentencing court may conclude that a “defendant’s drug addiction

lessened his rehabilitative potential, increased the seriousness of the offense, increased the need to

protect society, and increased the need for deterrence.” Sturgeon, 2019 IL App (4th) 170035,

¶ 108. Drug addiction can be deemed a factor in aggravation if the addiction causes additional

future unpredictability and criminal behavior or a low potential for rehabilitation. Mertz, 218 Ill.

2d at 83-84.

¶ 100 Arguably, judging from his treatment history, defendant is not a promising

candidate for rehabilitation. We quote from the presentence investigation report:

“He reported having tried methamphetamine in February of 2018 and

commented, ‘once tried that was it.’ He became quickly addicted and used up until

the time of his arrest.

***

Past efforts at treatment have included outpatient at [the Institute for Human

Resources] in 2010 when he was 16. While on Probation in 2013, he completed 28

days of Inpatient at Heritage Behavior Health in Decatur, IL. He then began the

recommended after care but did not complete it. He reported having returned to

Heritage in 2018 for detox and was placed on the waiting list for treatment, but he

never entered it. He indicated he has been in detox 5 to 6 times in his life.

The defendant expressed having developed a clearer understanding of his

addiction while incarcerated pending this case and advised he ‘doesn’t want to do

it anymore.’ ”

- 34 - This claim of having a clearer understanding and this resolution to stop abusing drugs could be

discounted as what is commonly said on the eve of a sentencing hearing. The history set forth in

the presentence investigation report could give little cause for optimism. Defendant began drug

treatment “but did not complete it.” He got on the waiting list for treatment, “but he never entered

[treatment].” If his drug problem is intractable and if it causes him to commit crime, society’s need

to be protected from him is just as pressing regardless of what caused him to have a drug problem.

Regardless of the circumstances that led to his addiction to methamphetamine, such as a surgery

he underwent when he was a teenager, he is a threat to those whom he would cause to become,

like him, a methamphetamine addict. Likewise, he is a threat to those whose addiction he would

feed.

¶ 101 We are unable to say, then, that the circuit court abused its discretion by considering

defendant’s drug addiction as a factor in aggravation instead of as a factor in mitigation. Nor are

we able to say that defense counsel rendered ineffective assistance by omitting to argue that

defendant’s drug addiction was mitigating. If, as defendant represents, “[t]he majority of his

criminal history is a symptom of his drug problem,” the court was justified in regarding his drug

addiction as a factor in aggravation. See id.; Sturgeon, 2019 IL App (4th) 170035, ¶ 108.

¶ 102 5. A Trial Tax

¶ 103 Defendant contends that his sentence was an abuse of discretion in that the circuit

court, he believes, imposed a trial tax for his rejection of the State’s plea offer and his choice to

stand trial. He observes that “[a] defendant may not be punished for exercising his right to trial.”

See People v. Jones-Beard, 2019 IL App (1st) 162005, ¶ 26; People v. Johnson, 2018 IL App (1st)

153634, ¶ 18. He criticizes his defense counsel for failing to object to the alleged trial tax.

- 35 - ¶ 104 We will find a trial tax only if it is clearly evident from the record that the circuit

court, in its determination of a sentence, penalized the defendant for choosing to stand trial.

Jones-Beard, 2019 IL App (1st) 162005, ¶ 26; Johnson, 2018 IL App (1st) 153634, ¶ 18. It is one

thing to treat the demand for a trial as an aggravating factor that calls for more years of

imprisonment. By doing so, a court would impose a trial tax. See People v. Moriarty, 25 Ill. 2d

565, 567 (1962) (in which the judge linked the increased sentence to the rejected plea offer by

telling the defendant that his rejection of the plea deal “ ‘will cost you nine years additional’ ”). It

is another thing to evaluate the sincerity of the defendant’s posttrial acceptance of responsibility

by stating what cannot be seriously denied, namely, that by insisting on a trial—as, make no

mistake, the defendant was entitled to do—the defendant did not then accept responsibility. In a

sentencing hearing, a defendant cannot present himself as accepting responsibility while

exempting that presentation from commonsense scrutiny.

¶ 105 By remarking in so many words, “You accept responsibility now, when you are

about to be sentenced, but you did not accept responsibility a short while ago, in the trial,” the

judge would not clearly punish the defendant for demanding a trial. Instead, the judge would

consider whether the defendant’s acceptance of responsibility, in his statement in allocution, is

more tactical than genuine. In other words, instead of treating the demand for a trial as a factor in

aggravation, the judge would evaluate a claimed factor in mitigation: an “attitude[ ]” of remorse

that the defendant presents himself as having. 730 ILCS 5/5-5-3.1(a)(9) (West 2018). The judge

has to decide whether, or to what extent, to believe the statement in allocution. As the Fifth Circuit

observes:

“Of course, accepting responsibility for a crime entails admitting the crime, while

trial strategies predicated upon a claim of innocence entail denial of the crime. A

- 36 - defendant who maintains her innocence at trial, and then purports to accept

responsibility afterward, may have a difficult time persuading the trial judge that

her later position is sincere rather than merely convenient.” United States v.

Thomas, 870 F.2d 174, 177 (5th Cir. 1989).

¶ 106 The circuit court explicitly acknowledged that defendant was “entitled to maintain

[his] innocence.” The court also acknowledged defendant’s acceptance of responsibility, noting,

however, that it was a posttrial acceptance of responsibility. We are unconvinced that the mere

observation “But we did have a full-blown trial on this case” clearly evinced an intention to punish

defendant for insisting on a trial. See Jones-Beard, 2019 IL App (1st) 162005, ¶ 26; Johnson, 2018

IL App (1st) 153634, ¶ 18. In context, all the court did was assess the sincerity of defendant’s

acceptance of responsibility. The court never suggested that “the sentence was at least partly a

penalty for rejecting a plea offer.” Johnson, 2018 IL App (1st) 153634, ¶ 18.

¶ 107 But there is another way, other than the circuit court’s saying so, by which the

record can show the imposition of a trial tax: if the court “imposed a sentence so outrageously

higher than the one offered pretrial that the only conclusion can be that the trial court punished

[the defendant] for exercising his right to trial.” Jones-Beard, 2019 IL App (1st) 162005, ¶ 27. The

prison sentence that the circuit court imposed upon defendant was seven years longer than the one

the State had offered before the trial. In a case that defendant cites, the appellate court held, “[The

defendant’s] sentence, which amounts to just over a twofold increase from the pretrial offer, is not

so outrageously disproportionate that we are left only to conclude that it was the product of a trial

tax.” Id. It follows that a trial tax cannot be reasonably inferred from a prison term of 25 years as

opposed to the pretrial offer of 18 years.

- 37 - ¶ 108 The failure of defendant to show that any clear or obvious error was committed in

the sentencing hearing defeats both his claim of ineffective assistance and his claim of plain error.

People v. Hensley, 2014 IL App (1st) 120802, ¶ 47.

¶ 109 6. The Severity of the Sentence for Aggravated

Participation in Methamphetamine Manufacturing

¶ 110 Defendant argues that 25 years’ imprisonment for count I, aggravated participation

in methamphetamine manufacturing (720 ILCS 646/15(b)(1)(B) (West 2018)), is excessive. The

statutory range of imprisonment for this offense is not less than 6 years and not more than 30 years.

Id. § 15(b)(2)(A). Imprisonment for 25 years was not the maximum possible term that defendant

could have received, but it was toward the upper end of the range. The question is whether the

circuit court abused its discretion by sentencing defendant to a term of imprisonment that was five

years short of the maximum.

¶ 111 “Where the sentence chosen by the trial court is within the statutory range

permissible for the pertinent criminal offense for which the defendant has been tried and charged,

a reviewing court has the power to disturb the sentence only if the trial court abused its discretion

in the sentence it imposed.” People v. Jones, 168 Ill. 2d 367, 373-74 (1995). “A sentence will be

deemed an abuse of discretion where the sentence is greatly at variance with the spirit and purpose

of the law, or manifestly disproportionate to the nature of the offense.” (Internal quotation marks

omitted.) Alexander, 239 Ill. 2d at 212.

¶ 112 As defendant points out, the most important sentencing factor is the seriousness of

the offense. To quote the appellate court, “[t]he most important sentencing factor is

the seriousness of the offense, and the court need not give greater weight to rehabilitation or

mitigating factors than to the severity of the offense.” People v. Charles, 2018 IL App (1st)

- 38 - 153625, ¶ 47. The word “offense,” in the phrase the “seriousness of the offense,” means not the

statutory offense in the abstract but the offense as committed by the defendant: the particular facts

and circumstances of the defendant’s offense. A statutory element of aggravated participation in

methamphetamine manufacturing is that “the person knowingly does so in a structure *** where

a child under the age of 18 *** resides.” 720 ILCS 646/15(b)(1)(B) (West 2018). Arguably, for

four reasons, defendant’s offense was an especially egregious way of accomplishing that abstract

statutory definition. First, whereas the statute required that only one child live in the structure, two

children lived at 838 South Locust Street. Second, whereas any child under 18 years of age

triggered the statute, the two children at 838 South Locust Street were considerably younger, 7 and

8 years old. Consequently, they were less able to protect themselves and less able to recognize

their endangerment than, say, a 17-year-old child. Third, according to Brooke’s testimony, the

“bag and vapors” were not merely in the same structure in which the children lived but were

directly below their bedrooms. Fourth, these children were defendant’s nieces, of whom one might

have expected an uncle to feel protective. Arguably, then, the offense as committed by defendant

was especially serious.

¶ 113 In addition to the seriousness of the offense, the circuit court could have taken into

account that defendant had, as an adult, three prior felony convictions (two convictions of theft

and one conviction of residential burglary) and seven misdemeanor convictions. That “the

defendant has a history of prior delinquency or criminal activity” “may be considered by the court

as [a] reason[ ] to impose a more severe sentence.” 730 ILCS 5/5-5-3.2(a)(3) (West 2018). A

further significant aggravating factor is that defendant committed the present offense while he was

on mandatory supervised release.

- 39 - ¶ 114 In sum, we disagree with defendant that the evidence in his sentencing hearing was

closely balanced. Given the circumstances of count I, defendant’s prior criminal record, and his

reoffending while on mandatory supervised release, we are unable to say that 25 years’

imprisonment is “greatly at variance with the spirit and purpose of the law,

or manifestly disproportionate to the nature of the offense.” (Internal quotation marks omitted.)

Alexander, 239 Ill. 2d at 212. Finding no abuse of discretion in the sentence, we decline his request

to reduce the sentence on count I or to remand the case for a new sentencing hearing.

¶ 115 III. CONCLUSION

¶ 116 For the foregoing reasons, we affirm the circuit court’s judgment.

¶ 117 Affirmed.

- 40 - No. 4-20-0081

Decision Under Review: Appeal from the Circuit Court of Livingston County, No. 18- CF-166; the Hon. Jennifer H. Bauknecht, Judge, presiding.

Attorneys James E. Chadd, Catherine K. Hart, and Mariah K. Shaver, of for State Appellate Defender’s Office, of Springfield, for appellant. Appellant:

Attorneys Randy Yedinak, State’s Attorney, of Pontiac (Patrick Delfino, for David J. Robinson, and Kerri Davis, of State’s Attorneys Appellee: Appellate Prosecutor’s Office, of counsel), for the People.

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