2023 IL App (2d) 220333-U No. 2-22-0333 Order filed June 13, 2023
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kendall County. ) Plaintiff-Appellee, ) ) v. ) No. 18-CF-261 ) GARY D. CASTLE JR., ) Honorable ) John F. McAdams, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
PRESIDING JUSTICE McLAREN delivered the judgment of the court. Justices Jorgensen and Schostok concurred in the judgment.
ORDER
¶1 Held: The trial court erred in denying defendant’s postconviction petition where defendant, who had pleaded guilty to drug-induced homicide, was deprived of his constitutional right to the effective assistance of counsel in connection with his plea: there is a reasonable probability that, had defendant’s attorney reviewed discovery with defendant, defendant would have chosen to go to trial. Reversed and remanded with directions.
¶2 Defendant, Gary D. Castle Jr., appeals from the denial, after an evidentiary hearing, of his
petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)) for
relief from his conviction of drug-induced homicide (720 ILCS 5/9-3.3(a) (West 2018)). Although
defendant pleaded guilty to that offense, he argues that the evidence at the hearing on his petition 2023 IL App (2d) 220333-U
established that he was deprived of his constitutional right to the effective assistance of counsel in
connection with his plea. We reverse and remand.
¶3 I. BACKGROUND
¶4 Defendant was indicted on a single count of drug-induced homicide based on the
allegations that he unlawfully delivered a controlled substance containing fentanyl to Bradley Friel
and that Friel’s death was caused by the injection, inhalation, absorption, or ingestion of that
controlled substance. A private attorney represented defendant. On March 14, 2019, defendant
pleaded guilty per an agreement with the State that he would receive a 12-year prison sentence, to
be served at 75%, in exchange for his plea. In reciting the agreement, the prosecutor added, “This
case will run consecutive to Kendall County case [No.] 17 CF 213, but concurrent to [case No.] 18
CF 116.” 1 After noting that defendant appeared in court “on a writ from [the] Illinois Department
of Corrections[ ]” and would need to be “booked and processed[,]” the prosecutor added, “that’s
the sum and substance of the disposition[.]”
¶5 Before accepting defendant’s plea, the trial court asked defendant whether anyone had
threatened defendant or promised him anything to get him to plead guilty. Defendant responded,
“No.” The trial court asked defendant whether he had an opportunity to speak with his attorney
about the case and whether his attorney answered all his questions. Defendant answered, “Yes[,]”
to both questions. Defendant also confirmed that he was pleading guilty voluntarily.
¶6 The factual basis for the plea was as follows:
1 We note that records available from the circuit court of Kendall County’s website show
that defendant entered guilty pleas on June 4, 2018, in case Nos. 17-CF-213 and 18-CF-116.
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“[I]f the State would proceed to trial, the State would call witnesses previously
tendered in disclosure who would testify that on March 24, 2018, sheriff’s deputies and
medical personnel were dispatched to 20 Ashlawn Avenue in Montgomery, Kendall
County, Illinois for a report of an overdose. The victim being [Friel].
Friel’s mother had contacted the police and the 911 dispatch when she returned and
found her son on the couch, white foam around his mouth, no pulse or breathing.
The testimony would be that Mr. Friel was transported to Rush Copley Hospital
and pronounced dead on March 25, 2018, just after midnight.
An autopsy was completed, and testimony would be presented that the
determination of death was that intoxication of—I’ll spell it, cyclo, P-R-O-P-Y-L,
Fentanyl, F-E-N-T-A-N-Y-L; intoxication.
Investigators searched Mr. Friel’s phone, found contacts and recent conversations
via text messages, a message string, between the defendant and a number they identified
belonging to—between Mr. Friel and the defendant[ ] ***.
During the message string there were talks or discussion of purchasing or picking
up jabs, which based on the investigator’s information, would refer to heroin.
The two settled on an agreement that [defendant] would provide heroin to [Friel] in
exchange for a gold chain.
During the investigation there was discussion that Mr. Friel had, in fact, tendered
over a gold chain in exchange for heroin. And that subsequent conversations between Mr.
Friel and [defendant] were that [defendant] was not happy with the quality of the necklace,
that he believed it to be false or fake.
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After follow-up conversation between the two, that chat ceased, and it coincided
approximately about the same time that it was determined that Mr. Friel had expired.
Follow-up investigation with [defendant] from investigators were [sic] that in an
interview with [defendant,] he acknowledged that he had, in fact, confirmed selling drugs
to [Friel]. And that he, [Friel], and another unidentified male named Frank had gone to
Chicago to purchase heroin. Six bags were purchased. They split them. And it was
confirmed to coincide with the time frame right before Mr. Friel expired.
All events occurring in Kendall County, Illinois.”
¶7 The trial court accepted defendant’s plea and imposed sentence in accordance with the
parties’ agreement.
¶8 On March 26, 2021, defendant filed a pro se petition under the Act claiming that he
received ineffective assistance of counsel. He claimed that his trial attorney (1) coerced him with
threats that, if he did not plead guilty, he could be sentenced to up to 90 years in prison; (2) did not
familiarize himself with Friel’s toxicology report or present it to the trial court; and (3) did not
argue that no heroin was found “in the possession of, or on common premises of, either [defendant]
or [Friel].” Along with the petition, defendant submitted, inter alia, a toxicology report detailing
the results of testing performed on samples of Friel’s blood and urine collected at the hospital and
during the postmortem examination.
¶9 On April 30, 2021, the trial court entered an order docketing the petition for further
proceedings and appointing the Kendall County Public Defender to represent defendant. See 725
ILCS 5/122-2.1(b), 122-4 (West 2020). On February 22, 2022, postconviction counsel filed an
amended petition. The amended petition alleged that, when defendant entered his guilty plea, his
trial attorney had not (1) investigated the nature of the allegations against defendant or
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(2) discussed any potential evidence with defendant. The amended petition further alleged that
defendant had no access to discovery materials before entering his plea. Defendant was able to
review the discovery materials only after obtaining them via a Freedom of Information Act (FOIA)
(5 ILCS 140/1 et seq. (West 2020)) request to the Kendall County Sheriff’s Department. Before
entry of his plea, defendant also lacked access to Friel’s toxicology report (attached to both the
pro se petition and the amended petition), which showed that Friel’s blood and urine contained
multiple substances. Among other findings, the report indicated that Friel’s urine tested
presumptively positive for cocaine. According to the amended petition, “[t]here was no evidence
that any alleged narcotics recovered by law enforcement during their investigation contained
fentanyl and cyclopropylfentanyl.” The amended petition further alleged that, if defendant “[h]ad
*** been given the opportunity to review the evidence and his potential defenses, [he] would not
have entered in [sic] the plea and would have stood on his right to trial.”
¶ 10 The amended petition also alleged that defendant had been “threatened, coerced and
forced” to plead guilty in that his trial attorney erroneously told him that he could receive a prison
term of up to 90 years if he rejected the State’s plea offer.
¶ 11 Exhibits to the amended petition included: (1) Illinois Department of Corrections records
showing that defendant’s trial attorney never visited defendant or spoke with him by telephone
while he was incarcerated at the Illinois River Correctional Center before entering his plea; (2) the
toxicology report; and (3) the report from Friel’s postmortem examination, ascribing Friel’s death
to cyclopropylfentanyl and fentanyl intoxication. The State moved to dismiss the amended
petition, but the trial court denied the motion and set the amended petition for an evidentiary
hearing.
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¶ 12 At the hearing on the amended petition, defendant testified that when he was charged in
this case, he was incarcerated at the Illinois River Correctional Center for an unrelated drug
offense. His family retained a private attorney to represent him in this case. Defendant’s only
meetings with the attorney took place in the holding cell at the Kendall County Courthouse on the
days of defendant’s four court appearances on September 4, 2018, November 13, 2018, January
22, 2019, and March 14, 2019. During these meetings, they never discussed what evidence the
State had against defendant or reviewed any discovery materials produced by the State. Between
the court dates, defendant had no communication with his attorney in person, by telephone, or
otherwise.
¶ 13 During their meeting on January 22, 2019, defendant asked if he could see the State’s
discovery. His attorney said he did not have it with him. Defendant did not ask his attorney to
send him the discovery materials. Defendant testified that between January 22, 2019, and March
14, 2019, he tried to call his attorney to obtain the discovery materials. However, his attorney told
defendant not to call his office, because he did not accept collect calls. Defendant acknowledged
that he did not write to or ask family members to call his attorney to obtain the discovery materials.
¶ 14 Defendant testified that, on March 14, 2019, his attorney informed him that the State had
offered him a 12-year prison sentence, to be served at 75%, if he pleaded guilty to drug-induced
homicide. According to defendant, his attorney advised him to accept the offer. Defendant
testified,
“He told me that if I didn’t take it and I was found guilty at trial, I could face 9 to
60 if the Class X was enhanced, and then if I was extended-term eligible, if they enhance
the other charges, I could face anywhere from 60 to 90 years.”
He later learned he was not eligible for a sentence over 30 years.
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¶ 15 In July 2020, defendant sent a FOIA request to the Kendall County Sheriff’s Department
seeking material related to his case. In response, defendant received police reports. Additionally,
at defendant’s request, his trial attorney sent him Friel’s toxicology report. According to
defendant, the police reports indicated that numerous baggies with burnt-off corners were found
“in the presence of Mr. Friel” before he was taken to the hospital. Defendant explained that
baggies are often used to package narcotics. According to defendant’s account, the police reports
indicated that the baggies were not collected or tested for the presence of narcotics. Asked what
other substances were found at the scene, defendant responded, “Numerous pill bottles, a blue
glass container with an unknown liquid in it that was never tested, marijuana, I think a hitter box,
and that might have been it.” Nothing tested positive for the presence of heroin.
¶ 16 Defendant also testified that the police reports revealed that law enforcement authorities
made copies of photos from Friel’s phone during the investigation. Defendant received copies of
those photos as part of his FOIA request. Defendant noticed that some of the photos depicted
baggies with pictures of blue devils on them. Those photos “were allegedly sent from [defendant]
to Mr. Friel[.]” In defendant’s experience, the blue devil images indicated that the baggies were
used to package narcotics. Defendant testified that the blue devil baggies in the photos he allegedly
sent Friel were not found when Friel’s home was searched after he was taken to the hospital.
Defendant testified that, if he had had the opportunity to review all the discovery produced by the
State, he would not have pleaded guilty.
¶ 17 On cross-examination, defendant admitted that he supplied Friel with heroin before his
death and that fentanyl “is something used often to mix with heroin[.]” Defendant also admitted
that, at the plea hearing, he did not protest to the trial court that his attorney had not shown him
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the State’s evidence. Defendant acknowledged that he was convicted of felony theft in 2012,
felony possession of a controlled substance in 2014 and 2018, and retail theft in 2017.
¶ 18 The State did not present any evidence.
¶ 19 On August 31, 2022, the trial court denied the petition in a written order. The trial court
found that defendant’s trial attorney did not perform deficiently. Notably, however, the trial court
did not address the allegation that defendant’s trial attorney failed to provide him with the State’s
discovery or review it with him. The trial court also found that defendant did not show that he had
a plausible defense to the charge of drug-induced homicide and, thus, did not establish prejudice.
The trial court reasoned:
“[Defendant] admitted he gave heroin to [Friel]. The fact that there were no Blue
Devil baggies (the baggies containing the heroin which [defendant] gave to [Friel]) on the
scene does not mean that [Friel] did not use the heroin given to him by [defendant]. [Friel]
could have used the heroin with the Blue Devil baggies at a different location or transferred
the heroin to a different baggie or destroyed the baggies. The lack of Blue Devil baggies
is not a plausible defense.
*** Finally, [defendant] has not presented any evidence that the baggie [Friel] used
did not contain fentanyl. Rather, [defendant] simply alleges there was no evidence the
baggie of heroin used by [Friel] which was given to him by [defendant] contained
fentanyl.”
Defendant filed a timely notice of appeal.
¶ 20 II. ANALYSIS
¶ 21 Before proceeding, we note that the State argues defendant’s plea here was part of a “global
plea agreement” that included case No. 17-CF-213 and case No. 18-CF-116. The State argues that
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“[b]y challenging only his guilty plea on the instant case, defendant is improperly seeking to retain
the benefit of his bargain on the two additional cases while seeking to deprive the State of their
benefit in the instant case.” The argument is meritless. The State appears to assume that it made
some sentencing concession in the other cases in exchange for his plea in this case. The record
belies that assumption. Here the prosecutor recited the State’s agreement with defendant: he would
plead guilty and receive a 12-year prison sentence to be served concurrently with his sentence in
case No. 18-CF-116 but consecutively to his sentence in case No. 17-CF-213. The prosecutor
stated, “that’s the sum and substance of the disposition[.]” The State cannot now argue that the
agreement had unstated terms affording defendant a benefit in other cases.
¶ 22 We now consider whether defendant adequately established grounds for relief under the
Act. The Act permits a criminal defendant to mount a collateral challenge on a conviction or
sentence if it substantially violates the defendant’s constitutional rights. People v. Ross, 2022 IL
App (2d) 210068, ¶ 15. As we explained in Ross:
“The Act provides for a three-stage proceeding, and a defendant must satisfy the
requirements of each before continuing to the next stage. [Citation.] At the first stage, the
trial court has 90 days after the filing and docketing of the petition to review it without
input from the State. [Citation.] The petition must present the gist of a constitutional claim,
and the petition will survive so long as it is not frivolous or patently without merit.
[Citations.] A petition that is not dismissed within 90 days must advance to second-stage
proceedings under sections 122-4 through 122-6 of the Act [citation]. [Citations.]
At the second stage, the trial court may appoint counsel for the defendant, if the
defendant is indigent. [Citation.] After counsel has made any necessary amendments to
the defendant’s claims, the State may move to dismiss or may answer the petition.
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[Citation.] The petition and any accompanying documentation must make a substantial
showing of a constitutional violation. [Citation.] All well-pleaded facts that are not
positively rebutted by the record are taken as true. [Citation.] Finally, at the third stage,
the trial court conducts an evidentiary hearing to determine whether a new trial is
warranted. [Citation.] At that time, it makes fact-finding and credibility determinations.
[Citation.] The defendant must again make a substantial showing of a constitutional
violation. [Citation.]” Id. ¶¶ 16-17.
Courts review for manifest error a decision to deny postconviction relief following an evidentiary
hearing. People v. Reed, 2020 IL 124940, ¶ 51.
¶ 23 In his amended petition, defendant claimed, inter alia, that trial counsel’s failure to review
discovery with him before his guilty plea amounted to ineffective assistance of counsel. 2 As our
supreme court explained in People v. Hall, 217 Ill. 2d 324, 334-36 (2005):
“A challenge to a guilty plea alleging ineffective assistance of counsel is subject to
the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). [Citations.] Under
Strickland, a defendant must establish that counsel’s performance fell below an objective
standard of reasonableness and the defendant was prejudiced by counsel’s substandard
performance. [Citation.]
An attorney’s conduct is deficient if the attorney failed to ensure that the
defendant’s guilty plea was entered voluntarily and intelligently. [Citation.] ***.
2 As noted, defendant also claimed that he had been “threatened, coerced and forced” to
plead guilty. Defendant does not argue on appeal that he is entitled to postconviction relief on that
basis.
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To establish the prejudice prong of an ineffective assistance of counsel claim ***,
the defendant must show there is a reasonable probability that, absent counsel’s errors, the
defendant would have pleaded not guilty and insisted on going to trial. [Citation.] A bare
allegation that the defendant would have pleaded not guilty and insisted on a trial if counsel
had not been deficient is not enough to establish prejudice. [Citation.] Rather, the
defendant’s claim must be accompanied by either a claim of innocence or the articulation
of a plausible defense that could have been raised at trial. [Citation.] *** [T]he question
of whether counsel’s deficient representation caused the defendant to plead guilty depends
in large part on predicting whether the defendant likely would have been successful at trial.
[Citation.]”
¶ 24 Counsel’s decision as to what discovery materials to share with the defendant is normally
considered a matter of strategy that will not support a claim of ineffective assistance of counsel.
See People v. Walker, 2019 IL App (3d) 170374, ¶ 18. However, a defendant may show that
counsel’s performance was deficient under Strickland where counsel “withheld discovery
information that cast doubt on the State’s ability to prove him guilty or was otherwise particularly
relevant to his decision to plead guilty.” Id. Here, defendant testified that his attorney did not
discuss the State’s evidence against him or give him access to discovery materials that suggested
the State had little or no evidence that the substance he supplied to Friel contained the
cyclopropylfentanyl and fentanyl that caused Friel’s death.
¶ 25 The State argues that the record rebuts defendant’s claim that counsel failed to discuss any
of the State’s discovery with him. The State notes that, before defendant entered his plea, the trial
court asked him whether he had the opportunity to speak with counsel and whether counsel had
been able to answer all his questions. Defendant answered, “Yes[,]” to both queries by the trial
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court. The State argues that defendant’s answers “undercut” his claim that counsel failed to review
discovery with him. However, we fail to see how simply meeting with defendant and answering
his questions implies that counsel reviewed discovery with him.
¶ 26 The State also stresses that defendant “did not identify any concerns or issues” after his
plea’s factual basis was presented to the court. However, the State does not explain why defendant
should have had any issues or concerns with the factual basis or how his failure to express concerns
has any bearing on whether counsel reviewed discovery with him.
¶ 27 The State notes that, at the hearing on his amended petition, defendant admitted that he did
not inform the trial court at the plea hearing that counsel had not shown him any of the evidence
in the case. The State implies that, if reviewing discovery were important to defendant, he would
have spoken up. However, even though defendant testified that he made some attempts to obtain
the State’s discovery from counsel, it does not appear that this was a matter of major concern to
defendant at the time or that it undermined his confidence in counsel’s advice regarding the State’s
plea offer. Defendant apparently trusted counsel’s advice, despite counsel’s failure to review
discovery with him. Thus, it is not surprising that defendant refrained from interrupting the plea
proceeding (which might have jeopardized his agreement with the State) by protesting counsel’s
failure to provide the State’s discovery materials to him.
¶ 28 As previously noted, the trial court did not find incredible defendant’s testimony that
counsel failed to review discovery with him. Rather, the court simply did not address defendant’s
contention that counsel was neglectful in that respect. The State presented no evidence refuting
defendant’s testimony on the subject. For instance, the State did not call defendant’s trial counsel
as a witness to rebut defendant’s account. Accordingly, the trial court’s conclusion that defendant
failed to establish deficient performance was against the manifest weight of the evidence.
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¶ 29 We turn to whether counsel’s failure to review discovery with defendant engendered
prejudice within the meaning of Strickland. The State insists that it did not. The State notes that
there is no question that defendant provided controlled substances to Friel on the day of Friel’s
death. The State observes that, at the hearing on his petition, defendant (1) confirmed that he sold
heroin to Friel and (2) acknowledged that heroin is often mixed with fentanyl. Furthermore,
according to the State, defendant had no evidence to contradict the finding in the postmortem
examination report that Friel died of cyclopropylfentanyl and fentanyl intoxication. According to
the State, “[d]efendant now asks this Court to speculate that the drugs he provided to [Friel]
was [sic] not the cause of his death.” The argument implies that, to be entitled to postconviction
relief, defendant was obligated to prove that the drugs he provided to Friel did not cause his death.
To the contrary, to establish prejudice, defendant was obligated to show that he would not have
pleaded guilty if his trial attorney had reviewed the State’s discovery with him or had at least
provided the State’s discovery to him. To that end, defendant needed to claim innocence or
articulate a plausible defense that he could have raised at trial. See Hall, 217 Ill. 2d at 335-36.
“It is axiomatic that the State carries the burden of proving each element of a charged offense
beyond a reasonable doubt.” People v. Murray, 2019 IL 123289, ¶ 28. That burden remains on
the State throughout the trial and never shifts to the defendant. Id. A defense may consist simply
of holding the State to its burden of proof and subjecting its case to meaningful adversarial testing. 3
3 The trial court evidently made the same mistake as the State, stressing that defendant had
no plausible defense, in part because he “ha[d] not presented any evidence that the baggie [Friel]
used did not contain fentanyl.” Clearly, the trial court incorrectly regarded a plausible defense as
requiring proof of innocence.
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See People v. Boots, 2022 IL App (2d) 200640, ¶ 31 (“The defendant’s argument that defense
counsel failed to present a defense is without merit because, at a minimum, defense counsel
required the State to put on its case and prove the defendant guilty beyond a reasonable doubt”
(citing United States v. Cronic, 466 U.S. 648, 656 (1984), and People v. Cherry, 2016 IL 118728,
¶ 29)). If the State’s evidence of guilt is particularly weak, the defense is plausible. See id. ¶ 31.
¶ 30 Here, the postmortem examination report ascribed Friel’s death to cyclopropylfentanyl and
fentanyl intoxication. Defendant confessed to supplying heroin to Friel, but the postmortem
examination report, the toxicology report, and the police reports (as described in defendant’s
unrebutted testimony) do not indicate that law enforcement authorities had any evidence that the
substance defendant supplied to Friel contained either cyclopropylfentanyl or fentanyl. According
to defendant’s testimony, the police reports revealed that baggies of the type used to package
narcotics were found “in the presence of Mr. Friel.” However, defendant also testified that the
police reports indicated that none of the baggies were collected or tested for the presence of
narcotics. The State offered no testimony to the contrary. Thus, the State apparently had no
evidence that Friel had been supplied with heroin adulterated with cyclopropylfentanyl and
fentanyl. (Indeed, the State apparently had little or no evidence that Friel had used any heroin,
with or without fentanyl, shortly before his death.) Although it is undisputed that heroin is often
sold laced with fentanyl, so are other street drugs, including cocaine. See U.S. Dep’t. of Just.,
Opioid Facts, https://www.justice.gov/opioidawareness/opioid-facts [https://perma.cc/PSW5-
QXBW] (last visited May 1, 2023) (“Fentanyl *** is often used to adulterate heroin, cocaine,
methamphetamine and other ‘street drugs.’ ”) Friel’s urine tested presumptively positive for the
presence of “Cocaine/Metabolites.” In addition, according to the United States Department of
Justice, “Fentanyl appears in fake tablets, pills, and gel capsules attempting to mimic certain
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prescription drugs.” Id. Defendant testified that the police reports indicated that, in addition to
baggies, the police found “[n]umerous pill bottles, a blue glass container with an unknown liquid
in it that was never tested, [and] marijuana[ ]” in Friel’s home. Friel could have ingested a
counterfeit substance containing the fentanyl that caused his death. It is also possible that Friel
knowingly ingested fentanyl.
¶ 31 United States v. Jones, 420 F. Supp. 3d 242 (S.D.N.Y. 2019) is instructive. In that case, a
jury found the defendant guilty of intentionally and knowingly distributing, and possessing with
intent to distribute, a controlled substance containing heroin, fentanyl, and furanylfentanyl. Id. at
244. The evidence established that William Gable met Diana Haikova in December 2017. Id. at
246. On December 5, 2017, Gable observed Haikova use cocaine at a music studio. Id. He also
saw Xanax at the studio. Id. Gable obtained heroin from the defendant. Id. Gable testified that
the heroin was “ ‘the best that [he] could get his hands on.’ ” Id. Haikova was found dead in her
apartment two days later. Id. at 247. A sample of her femoral blood was found to contain a variety
of substances including fentanyl, furanylfentanyl, cocaine, methylenedioxymethamphetamine
(MDMA or “Ecstasy”), methylenedioxyamphetamine (MDA), morphine, and alprazolam. Id. at
247-48. Gable later assisted police with a controlled purchase of heroin from the defendant. Id.
at 247. While in custody, the defendant admitted to police that he gave Haikova heroin at her
apartment on December 5, 2017. Id. at 246.
¶ 32 After the jury returned its guilty verdict, the defendant moved for a judgment of acquittal
notwithstanding the verdict. Id. at 244. The Jones court granted the motion. Id. at 255-56. The
court observed that there was no direct evidence that the heroin defendant sold Haikova was mixed
with fentanyl and furanylfentanyl. Id. at 255. The trial court added:
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“Even without direct evidence that the heroin that the defendant gave to Haikova
contained fentanyl and furanylfentanyl, the jury could rely on circumstantial evidence if
that evidence was sufficient to prove beyond a reasonable doubt that the heroin the
defendant provided was in fact mixed with fentanyl and furanylfentanyl. One piece of
circumstantial evidence submitted to the jury was that several experts testified that fentanyl
and furanylfentanyl are commonly milled with heroin to make the product stronger.
However, the experts acknowledged that fentanyl can also be used to adulterate Xanax,
ecstasy, and cocaine, and the toxicology report showed that Xanax, ecstasy, and cocaine,
and their metabolites, were found in Haikova’s blood. Moreover, [an expert in drug
trafficking] testified that fentanyl can, on its own, be pressed like a pill to look like aspirin
or Oxycodone. While a jury could conclude that fentanyl and furanylfentanyl are used to
adulterate heroin, the expert testimony could not establish beyond a reasonable doubt that
the heroin distributed by the defendant in this instance was milled with fentanyl and
furanylfentanyl.” Id. at 253.
Similarly, if this case had gone to trial on the evidence reflected in the postmortem examination
report, the toxicology report, and the police reports (as described by defendant), defendant could
have plausibly argued that the evidence was insufficient to prove beyond a reasonable doubt that
whatever substance defendant supplied to Friel contained fentanyl and cyclopropylfentanyl.
Accordingly, there is a reasonable probability that, had defendant’s attorney reviewed discovery
with defendant, defendant would have chosen to go to trial. Therefore, the trial court’s decision
to deny postconviction relief was manifestly erroneous.
¶ 33 III. CONCLUSION
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¶ 34 For the reasons stated, we reverse the judgment of the circuit court of Kendall County and
remand for entry of an order granting defendant’s amended petition, vacating defendant’s
conviction, and ordering a new trial.
¶ 35 Reversed and remanded with directions.
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