People v. Cooper

Opinion

NOTICE 2026 IL App (5th) 250282 Decision filed 07/09/26. The text of this decision may be NO. 5-25-0282 changed or corrected prior to the filing of a Petition for IN THE Rehearing or the disposition of the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Williamson County. ) v. ) Nos. 22-CF-273 & ) 24-CF-203 ) RICKY A. COOPER, ) Honorable ) Michelle M. Schafer, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE BOLLINGER delivered the judgment of the court, with opinion. Justices Vaughan and Sholar concurred in the judgment and opinion.

OPINION

¶1 Defendant, Ricky A. Cooper, pleaded guilty to one count of aggravated driving with a

revoked license and one count of possession of a stolen vehicle. Defendant was sentenced to an

aggregate of 20 years in the Department of Corrections with a mandatory supervised release period

of 18 months. On appeal, defendant asserts that the United States Supreme Court case Erlinger v.

United States, 602 U.S. 821 (2024), makes facially unconstitutional sections 6-303 of the Illinois

Vehicle Code (Vehicle Code) (625 ILCS 5/6-303 (West 2022)) and 5-5-3.2 of the Unified Code

of Corrections (Code of Corrections) (730 ILCS 5/5-5-3.2 (West 2022)), under which defendant

was sentenced to two consecutive extended-term sentences. Defendant also asserts that the circuit

court abused its discretion in sentencing him, where the circuit court considered a probable cause

1 affidavit, imposed a discretionary consecutive term, did not admonish the defendant such a term

was possible, and did not properly weigh aggravating and mitigating evidence. Last, defendant

asserts that his plea counsel or postplea counsel provided him ineffective assistance, where he

asserts both should have challenged the use of the probable cause affidavit during sentencing and

both should have challenged the constitutionality of the aforementioned statutes in light of the

Erlinger decision. We find neither statute is facially unconstitutional in light of Erlinger, the circuit

court did not abuse its discretion in sentencing defendant, and neither counsel were ineffective

where a challenge in light of Erlinger was not warranted and the circuit court properly considered

the evidence before it in sentencing. As such, we affirm.

¶2 I. BACKGROUND

¶3 On May 25, 2022, defendant was charged by information with one count of aggravated

driving while his license was revoked, in that he drove a vehicle in Williamson County, “at a time

when the defendant’s driving privileges were revoked for driving under the influence,” and that it

was his “third violation” under section 6-303 of the Vehicle Code (case No. 22-CF-273). On

February 29, 2024, defendant was charged by information with three counts: one of child

abduction, another of obstructing justice, and the last with endangering the life or health of a child.

The informations alleged that defendant, without the permission of the custodial parent, fled with

his three-year-old son from police on an all-terrain recreational vehicle in a high-speed chase

through roadways, fields, and ditches; disobeyed traffic control devices and eluded apprehension;

and then concealed said vehicle (case No. 24-CF-203).

¶4 On March 1, 2024, defendant requested that he be placed on home confinement with

electronic monitoring at his parents’ home. The same day, defendant’s request was granted in a

GPS electronic monitoring order.

2 ¶5 On March 18, 2024, the circuit court indicated in a hearing that it “received from the

Defendant a written Plea of Guilty and Waiver of Trial as to Count I, Driving While License

Revoked, Aggravated Driving with Licensed Revoked in 22-CF-273. And the court has a Written

Waiver of Preliminary Hearing and a Plea of Guilty and Waiver of Trial as to Count IV, Possession

of a Stolen Vehicle in 24-CF-203.” Defendant confirmed that he read, understood, and signed the

aforementioned documents. Defendant confirmed that he understood what rights he was giving up

as a result of waiving his preliminary hearing. Defendant also denied being promised anything,

coerced, or threatened into waiving his right to a preliminary hearing and denied being under the

influence of any drug, alcohol, or substance that would alter his understanding.

¶6 Defendant pleaded guilty to counts I and IV the same day. Defendant was informed that,

by so pleading, “the State will no longer have the burden to prove you guilty beyond a reasonable

doubt.” Defendant was informed of the applicable sentencing ranges for the crimes he pleaded

guilty to and that, if he was determined to be extended term eligible, count I could be “up to six

years” and count IV could be “up to 14 years.” Defendant confirmed that he “realize[d] that this is

an open plea of guilty” and answered “Yes, ma’am” to whether he understood he could be

sentenced “to any of those possible penalties without regard to any agreement.”

¶7 The circuit court was then provided the factual basis for each count. Relevant to count I,

the State provided that it would have called Deputy Brayden Bisaillon of the Williamson County

Sheriff’s Office. Deputy Bisaillon would testify that on May 25, 2022, he observed defendant

operating a motorcycle and that he was aware that defendant’s driving privileges were revoked.

Deputy Bisaillon would testify that he stopped defendant and placed him under arrest. The State

also provided that it would introduce “the Illinois Secretary of State abstract showing that he was,

in fact, revoked for DUI and that it was his third violation.”

3 ¶8 Relevant to count IV, the State provided that it would have called Brad Thornton, Logan

Troxel, and Ryan Snider of the Williamson County Sheriff’s Office. Deputy Thornton would

testify that on February 28, 2024, he observed defendant operating a four-wheeler on a public

roadway and that he was aware defendant’s driving privileges were revoked. Deputy Thornton

would testify that he attempted to stop defendant, but defendant evaded him. They would testify

that defendant was later taken into custody and a search was conducted. Deputy Thornton would

testify that defendant informed him where they could find the four-wheeler, and Deputy Snider

discovered the four-wheeler where defendant said they could find it. The State provided that it

would also present testimony from the owner of the four-wheeler that defendant “did not have

permission to be in possession of it.”

¶9 Defendant’s plea counsel acknowledged both factual bases as being “the State’s evidence,”

and the circuit court accepted defendant’s guilty plea on both counts. The circuit court stated that

the pleas were “knowingly, voluntarily, and intelligently made consisting with the factual basis

proffered by the State, [and] acknowledged to be the State’s evidence by the defense.”

¶ 10 The circuit court stated, “I understand that there is some type of a negotiated sentence. I

don’t know what that is. Will that remain in effect until [April 1, 2024]?” Defendant’s plea counsel

stated that it would remain in effect until the aforementioned date and asked to make a record of

the negotiated sentence so defendant “is very clear” that it was what the State planned to present

to the circuit court. The State provided that “the negotiation at this point is he would be sentenced

to four years in the Department of Corrections on 22-CF-273 with credit for any time served. He

would be sentenced to four years consecutive to that in 24-CF-203 with credit for any time served.”

The State went on to provide that the other three counts would be dismissed as part of the

negotiated plea. The State then provided, “[Defendant, however,] will remain on electronic home

4 monitoring during this period. If he violates that, if he gets into any new criminal trouble, all

negotiations are off the table, and we will proceed to a sentencing hearing.” Defendant indicated

that he understood the terms of the negotiated sentence.

¶ 11 Three days later, on March 21, 2024, a petition for the revocation of defendant’s

presentencing release was filed, stating that defendant violated his home confinement. A hearing

on the petition to revoke was held on March 25, 2024, wherein the circuit court took judicial notice

of the violation report and an officer testified that he made sure the monitor was operating properly

before it was placed on defendant and after it was taken off. The violation report showed that

defendant exited the inclusion zone for his electronic monitor three times on March 19, 2024, with

each exit being 50 to 55 minutes in length before he returned to the zone. The circuit court

sanctioned defendant as a result of these violations, imposing upon him “that he will spend the

time in jail from the time that he got picked up on the 20th through today.”

¶ 12 On April 1, 2024, another petition for revocation of presentencing release was filed. This

time the petition alleged that defendant violated home confinement just four days after the hearing

on the last petition to revoke, on March 29, 2024. The petition alleged that defendant committed

the offense of escape, in violation of section 31-6(a) of the Criminal Code of 2012 (720 ILCS 5/31-

6(a) (West 2024)). On April 2, 2024, an entry was made, indicating that on April 1, 2024, defendant

was placed into custody for a new violation of his pretrial release and that it was alleged that

defendant cut off his electronic monitor after his release on March 25, 2024.

¶ 13 On June 27, 2024, defendant’s sentencing hearing was held. Both defendant’s presentence

investigation report and his driving abstract were admitted, to be considered during sentencing.

During the hearing, defendant stated that he took “complete responsibility for the reasons [he was]

in the courtroom today.” He stated that he “acknowledge[d]” the facts that brought him to be in

5 the circuit court and “apologize[d]” to everyone affected by his actions. He claimed to no longer

be the man that engaged in the lawless conduct just three months earlier and asked to be put in a

two-year recovery program.

¶ 14 In the sentencing hearing, the State asserted that the only factor in mitigation was that

defendant’s conduct neither caused nor threatened serious physical harm, nor did he contemplate

that his conduct would do so, and that factor was only present for the charge of aggravated driving

with a revoked license. The State asserted that defendant’s conduct threatened serious harm for the

possession of a stolen vehicle charge, where defendant fled from police on a four-wheeler with his

three-year-old son in his lap and with his son not wearing a helmet. The State highlighted

defendant’s “abundant” history of prior delinquency, citing (1) a 2002 mob action conviction, (2) a

2003 DUI conviction, (3) a 2004 theft and assault conviction, (4) a 2005 possession of a controlled

substance conviction, (5) another DUI conviction, this time in 2005, (6) two separate driving on a

suspended license convictions, also in 2005, (7) a theft conviction in 2006, and (8) a second degree

murder conviction in 2008, to which he was sentenced to 20 years. The State asserted that a

sentence was necessary to deter others. The State also asserted that aggravation factor “12 applies

for 24-CF-203,” because he “was convicted while on pretrial release in 22-CF-273, for which he

was convicted.” The State provided further, “he’s eligible for extended term because this all

occurred within ten years of his Class 1, excluding prison time.” The State requested that defendant

be sentenced to 6 years for the charge of aggravated driving with a revoked license and a

consecutive term of 14 years for the charge of possession of a stolen vehicle, for an aggregate of

20 years.

¶ 15 Outside of the statutory factor in mitigation that the State already presented for the

aggravated driving with a revoked license charge, plea counsel presented a number of nonstatutory

6 factors defendant felt warranted residential treatment rather than a prison sentence. Plea counsel

highlighted that defendant was an alcoholic and drug addict. Plea counsel also highlighted that

defendant had behavioral problems in school growing up. Plea counsel also asserted, as defendant

stated himself, that he does better “in a controlled environment.” Plea counsel also mentioned that

defendant had a lot of familial support, was at a point in his life where he wanted to “turn this

around,” and has reasons to change now. Plea counsel noted that when defendant entered his guilty

pleas “it was contemplated that [defendant], if there were no difficulties *** before his sentencing

hearing, it would be a [sic] four years on each case consecutive.”

¶ 16 The circuit court, in imposing its sentence, expressed that defendant was given “the

opportunity to get treatment. He went there and he left.” The circuit court stated that it considered

the presentence investigation report and accepted it as part of the record during sentencing. The

circuit court stated it considered all the factors in aggravation and mitigation, even the nonstatutory

factors. The circuit court expressed that plea counsel’s recollection was accurate, “that they told

the Court on the record we have an agreement, he’s going to serve four years on each case

consecutive.” The circuit court followed the State’s sentence recommendation and sentenced

defendant to an aggregate 20-year sentence.

¶ 17 On July 8, 2024, defendant filed a motion to withdraw his guilty plea, stating that he was

under the influence of drugs at the time of the plea and that the plea was resultingly not knowing

or voluntary. Defendant also filed a motion to reconsider his sentence, asserting that (1) section 5-

8-4(d) of the Code of Corrections does not mandate consecutive sentencing, (2) that his crimes

were not violent nor was violence or harm contemplated, (3) that his addiction played a role in his

prior criminal history, and (4) that he had two dependent children aged two and three years old.

7 ¶ 18 On October 17, 2024, a hearing was held on the motions to withdraw and reconsider.

During the hearing, plea counsel made an oral motion to withdraw as defendant’s counsel, stating

that defendant indicated he may want to raise additional issues that may concern ineffective

assistance of counsel. The circuit court asked defendant about his plea counsel’s assertions in

seeking to withdraw. Defendant asked how he could “effectively talk to an attorney” while “being

in the Department of Corrections” and stated that he felt that he needed to be “right here in the

county jail” for his case. Defendant stated that his conversation with the circuit court at this hearing

was “the first clear conversation [he] had through this whole process.” Defendant then stated he

thought they “should just start this whole thing over.” The circuit court set the hearing on the

motions to withdraw the guilty plea and reconsider sentence for another day, pending the

appointment of new counsel for defendant. The same day, the circuit court appointed new counsel

for defendant.

¶ 19 On February 27, 2025, postplea counsel filed a certificate pursuant to Illinois Supreme

Court Rule 604(d) (eff. Apr. 15, 2024). The certificate stated that he consulted with defendant to

ascertain defendant’s contentions of error, examined the circuit court file and report of proceedings

of the plea of guilty and sentencing, and made any amendments necessary to the motions for

adequate presentation of any defects of the proceedings. The same day, a hearing was held on the

motions to reconsider sentence and to withdraw the guilty plea. After consideration, the circuit

court denied both of defendant’s motions, stating that there was no evidence defendant was under

the influence of any type of substance or illicit drug and it adequately considered all factors in

aggravation and mitigation.

¶ 20 On April 9, 2025, a late notice of appeal was filed. On April 29, 2025, defendant’s motion

for leave to file a late notice of appeal was granted. On December 11, 2025, the Illinois Supreme

8 Court directed us to allow defendant leave to amend his notice of appeal to include No. 22-CF-

273, as it already included No. 24-CF-203. The amended notice of appeal was filed December 15,

2025.

¶ 21 II. ANALYSIS

¶ 22 On appeal, defendant asserts that his sentence should be vacated and this case remanded in

light of Erlinger, where he claims his plea and postplea counsel’s failures to challenge the

sentencing statutes for being facially unconstitutional resulted in plain error and ineffective

assistance of counsel. Defendant also asserts that the circuit court abused its discretion in

sentencing defendant, arguing that the circuit court improperly considered the probable cause

affidavit, improperly imposed a discretionary consecutive term that he claims he was unaware

could be imposed, and improperly balanced the factors in aggravation and mitigation. Finally,

defendant asserts plea and postplea counsel provided ineffective assistance, where plea counsel

did not object to the probable cause affidavit being considered, nor did postplea counsel amend

the motions to include the alleged error.

¶ 23 The State responds that defendant failed to show that the sentencing statutes were facially

unconstitutional. The State asserts that neither counsel was ineffective because no error occurred

that would require either counsel to challenge the sentence. The State contends that the circuit

court did not abuse its discretion in sentencing defendant, where it properly considered the

probable cause affidavit defendant did not object to, properly imposed consecutive sentences, and

properly balanced the evidence in aggravation and mitigation. Last, the State argues that neither

counsel was ineffective for failing to challenge the use of the probable cause affidavit during

sentencing, because a lack of an objection effectively amounted to a stipulation and therefore the

9 error was invited and any amendment to the motions complaining of such would be meritless. The

State asks that we affirm defendant’s convictions and sentences.

¶ 24 In his reply, defendant relies on much of the same arguments he relied upon in his opening

brief. He clarifies that his constitutional challenges are facial challenges. Defendant states that

People v. Holman, 2025 IL App (2d) 240513, which the State relied on in its brief, was incorrectly

decided. Defendant distinguishes People v. Coopwood, 2025 IL App (3d) 240579-U. Defendant

distinguishes People v. Redding, 2022 IL App (4th) 210727-U, and states that counsel could still

be found ineffective under the facts of the case. Defendant again asks us to vacate and remand his

sentence. For the foregoing reasons, we affirm defendant’s consecutive sentences.

¶ 25 A. Apprendi, Erlinger, and Holman

¶ 26 Given the parties’ discussion of Apprendi v. New Jersey, 530 U.S. 466 (2000), Erlinger,

602 U.S. 821, and Holman, 2025 IL App (2d) 240513, we find it necessary to discuss each case

here.

¶ 27 1. Apprendi

¶ 28 In Apprendi, a New Jersey statute classified the possession of a firearm for an unlawful

purpose as a “second-degree” offense, which carried with it a 5- to 10-year sentence. (Internal

quotation marks omitted.) Apprendi, 530 U.S. at 468. A separate statute, which was described as

a “ ‘hate crime’ law,” provided for an extended-term sentence if a trial judge found, by a

preponderance of the evidence, that the crime was committed for the purpose of intimidating an

individual or a group because of their race, color, gender, handicap, religion, sexual orientation, or

ethnicity. Id. at 468-69. The extended term authorized by the hate crime law for a second-degree

offense was between 10 and 20 years. Id. at 469.

10 ¶ 29 On the night of the crime the defendant fired several .22-caliber bullets into the home of

an African American family that had recently moved into a previously all-White neighborhood.

Id. The defendant was quickly arrested and admitted that he was the shooter, and a New Jersey

grand jury later returned a 23-count indictment, charging the defendant with, inter alia, unlawful

possession of various weapons; none of the counts referred to the hate crime statute, and none

alleged that the defendant acted with a racially biased purpose. Id.

¶ 30 The defendant entered into a plea agreement wherein he pleaded guilty to two counts of

second-degree possession of a firearm for an unlawful purpose and one count of unlawful

possession of an antipersonnel bomb. Id. at 469-70. As part of the plea agreement, the State

reserved the right to pursue a higher enhanced sentence on one of the second-degree possession

counts. Id. at 470. Likewise, the defendant reserved the right to challenge the hate crime sentence

enhancement on the ground that it violates the United States Constitution. If the court enhanced

one of the second-degree offenses based on the hate crime law, the aggregate sentence the

defendant could receive would increase from a maximum of 20 years to a maximum of 30 years,

with a 15-year period of parole ineligibility. Id.

¶ 31 After the circuit court accepted the defendant’s three guilty pleas, the prosecutor filed a

formal motion for an extended term. Id. The circuit court held an evidentiary hearing on the issues

of the defendant’s purpose for shooting into the home. Id. The defendant provided a psychologist

and seven character witnesses who testified he did not have a reputation for racial bias. Id. at 470-

71. The defendant also took the stand, asserting that he was intoxicated, denying any bias toward

African Americans, and denying that his statement to police had been accurately described. Id. at

471. The circuit court found the police officer’s testimony credible and concluded that the evidence

supported a finding that the crime was racially motivated. Id. The circuit court found the hate crime

11 enhancement applied, rejected the defendant’s constitutional challenge to the statute, and

sentenced him to 12 years on the enhanced count and lesser concurrent sentences on the other two

counts. Id. The defendant appealed, arguing, inter alia, that the finding of bias upon which his hate

crime sentence was based must be proved to a jury beyond a reasonable doubt and that his due

process rights were violated. Id. The issue ultimately came before the United States Supreme

Court. Id. at 474.

¶ 32 The Court stated in its decision, “Other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt.” Id. at 490. The Court stated that the hate crime

enhancement mandated an examination of the defendant’s mens rea, which “is perhaps as close as

one might hope to come to a core criminal offense ‘element.’ ” Id. at 492-93. The Court stated,

however, that it did not matter whether the finding was characterized as intent or motive, because

“the relevant inquiry is one not of form, but of effect—does the required finding expose the

defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Id. at 494.

The Court found that the effect of New Jersey’s sentencing enhancement was to turn a second-

degree offense into a first-degree offense. Id. The sentencing enhancement was ultimately found

unconstitutional. Id. at 497.

¶ 33 2. Erlinger

¶ 34 In Erlinger, a federal statute, the Armed Career Criminal Act of 1984 (Armed Career

Criminal Act) (18 U.S.C. § 924(e)(1) (2012)), imposed a lengthy sentence on defendants who had

“previously committed three violent felonies or serious drug offenses on separate occasions.”

Erlinger, 602 U.S. at 825. At issue was the district court’s determination of what constituted a

12 “separate occasion[ ]” and if such a determination could be decided under a preponderance of the

evidence standard of proof. Id.

¶ 35 The defendant was charged with being a felon unlawfully in possession of a firearm, which

carried a sentence up to 10 years. Id. The defendant was also, however, charged under the Armed

Career Criminal Act, and under that act, if a defendant was found guilty of being a felon in

unlawful possession of a firearm and had three prior convictions for violent felonies or serious

drug offenses that were committed on separate occasions from one another, the potential prison

sentence increased to 15 years to life. Id.

¶ 36 The defendant pleaded guilty to being a felon in unlawful possession of a firearm but, in

doing so, stressed that his previous convictions were over a decade old and he had since turned his

life around, secured a steady job, built a family, and remained drug-free. Id. at 826. The district

court stated that a 5-year prison sentence would be a fair sentence but also found by a

preponderance of the evidence that the defendant had three qualifying past offenses and, based on

that finding, stated that it was required to sentence him to the mandatory minimum 15-year

sentence. Id.

¶ 37 Shortly after the district court imposed the 15-year sentence on the defendant, the Seventh

Circuit issued decisions indicating that two of the three offenses the district court relied on did not

qualify as violent felonies or serious drug offenses. Id. Recognizing that the defendant no longer

had the requisite number of qualifying crimes for the Armed Career Criminal Act, the district court

vacated its sentence and set the case for a new sentencing hearing. Id.

¶ 38 At the new sentencing hearing, prosecutors again pursued the 15-year sentence under the

Armed Career Criminal Act. Id. At the new hearing, however, the government pointed to a string

of burglaries the defendant committed 26 years prior. Id. The government asserted that, within the

13 span of days, the defendant burglarized a pizza shop, a sporting goods store, and two restaurants.

Id. The government asserted that, because these burglaries occurred on different occasions, each

was a qualifying crime under the Armed Career Criminal Act. Id. at 826-27.

¶ 39 The defendant protested, maintaining that the string of burglaries had not occurred on four

separate occasions but during a single criminal episode, thereby only amounting to one collective

crime under the Armed Career Criminal Act. Id. at 827. The defendant argued further that the

question of whether he committed his prior burglaries during a single episode or on distinct

occasions required an assessment of the facts surrounding those offenses and contended that the

fifth and sixth amendments (U.S. Const., amends. V, VI) entitled him to have a jury make that

assessment. Erlinger, 602 U.S. at 827. The district court rejected the defendant’s request for a jury

and found that the string of four burglaries occurred on distinct occasions. Id. As a result, the

district court resentenced the defendant to 15 years, having found that defendant had three

qualifying crimes under the Armed Career Criminal Act. Id.

¶ 40 The defendant appealed on the very same constitutional issue. Id. On appeal, the

government confessed error, stating that the constitution required a jury to decide unanimously,

beyond a reasonable doubt, whether the defendant had committed the qualifying crimes on

separate occasions. Id. In its confession of error, the government noted that Wooden v. United

States, 595 U.S. 360 (2022), reviewed the Armed Career Criminal Act. Erlinger, 602 U.S. at 827-

28. The government determined that the Armed Career Criminal Act required an intensely fact-

based inquiry that impacts a defendant’s sentence and therefore a jury must resolve it. Id. at 828.

Despite the government’s concession, the Seventh Circuit did not disturb the district court’s

sentence. Id. Resultingly, the issue went before the United States Supreme Court. Id.

14 ¶ 41 The government once more conceded the issue on appeal. Id. at 834. The Court stated that

deciding whether past offenses occurred on three or more separate occasions was a fact-laden task

that involved three questions: (1) were the crimes committed close in time, (2) what was the

proximity of the crimes’ locations, and (3) were the crimes similar or intertwined in purpose and

character? Id.

¶ 42 The Court distinguished Almendarez-Torres v. United States, 523 U.S. 224 (1998), stating

that the Court permitted a judge to undertake the job of finding the fact of a prior conviction and

that job alone. Erlinger, 602 U.S. at 837. The Court went on to provide, “To conduct the narrow

inquiry Almendarez-Torres authorizes, a court may need to know the jurisdiction in which the

defendant’s crime occurred and its date in order to ascertain what legal elements the government

had to prove to secure a conviction in that place at that time.” Id. at 839. The Court continued,

“And to answer those questions, a sentencing court may sometimes consult ‘a restricted set of

materials,’ often called Shepard documents, that include judicial records, plea agreements, and

colloquies between a judge and the defendant.” Id. (quoting Descamps v. United States, 570 U.S.

254, 262 (2013)); see Shepard v. United States, 544 U.S. 13 (2005). The Court stated further, “a

sentencing judge may use the information he gleans from Shepard documents for the ‘limited

function’ of determining the fact of a prior conviction and the then-existing elements of that

offense. [Citation.] ‘[N]o more’ is allowed.” Erlinger, 602 U.S. at 839. The Court stated that a

judge may not use information in Shepard documents to decide what the defendant actually did,

or the means or manner in which he committed the offense in order to increase the punishment he

may see. Id. at 839-40.

¶ 43 The Court stated that the district court erred where it assumed the responsibility of deciding

whether the defendant’s “past offenses differed enough in time, location, character, and purpose

15 to have transpired on different occasions.” Id. at 840. The Court ultimately found that the

defendant’s fifth and sixth amendment rights were violated when the district court rejected his

request for a jury to make the occasion determination in the Armed Career Criminal Act beyond a

reasonable doubt. Id. at 849.

¶ 44 3. Holman

¶ 45 In Holman, the defendant was charged and tried on two counts of aggravated battery, one

count of robbery, and one count of theft from a person. Holman, 2025 IL App (2d) 240513, ¶ 3.

After a jury trial, the defendant was only found guilty on the charge of theft from a person. Id.

¶ 27.

¶ 46 During sentencing, the State presented, inter alia, a police synopsis from a case in which

the defendant was convicted of armed violence and aggravated battery. Id. ¶ 30. The State argued

that the defendant was extended-term eligible based on the aforementioned prior conviction, for

which the defendant was released from Department of Corrections custody on July 21, 2017. Id.

¶ 31. Both the State and defense argued factors in aggravation and mitigation. Id. ¶¶ 31-32. The

trial court found the defendant to be extended-term eligible and sentenced him to six years. Id.

¶ 33.

¶ 47 The defendant on appeal contended that under Erlinger the trial court’s failure to submit

the question of his extended-term eligibility to the jury violated his constitutional rights to due

process and a jury trial. Id. ¶ 38. The court stated that the trial court found the defendant was

extended-term eligible under section 5-5-3.2(b)(1) of the Code of Corrections (730 ILCS 5/5-5-

3.2(b)(1) (West 2022)). Holman, 2025 IL App (2d) 240513, ¶ 42. The court analyzed Erlinger and

followed that analysis, stating, “defendant here was found eligible for an extended-term sentence,

based on a single felony conviction. The mere fact of this conviction does not need to be submitted

16 to a jury.” Id. ¶¶ 44-45. The court went on, stating that it did not believe Erlinger imposed a

requirement to submit defendant’s prior convictions to a jury. Id. ¶ 46. The court stated further that

section 5-5-3.2 presents a much simpler inquiry than that of the Armed Career Criminal Act and

can be readily discerned by review of public records or the presentence investigation. Id. The court

explained that Erlinger did not overturn or narrow the holdings in Apprendi and Almendarez-

Torres. Id. “Further, Illinois courts have repeatedly held that section 5-5-3.2(b)(1) is constitutional

under Apprendi.” Id. (citing People v. Johnson, 372 Ill. App. 3d 772, 781 (2007); People v. James,

362 Ill. App. 3d 285, 293 (2005); People v. Blanks, 361 Ill. App. 3d 400, 414 (2005)). The court

also noted that another appellate district court found similarly. Id. ¶ 47 (citing Coopwood, 2025 IL

App (3d) 240579-U, ¶ 19).

¶ 48 The court held that

“the date of defendant’s release from custody is not a fact that must be submitted to a jury

but is ‘intrinsic to the conviction’ and can be properly determined by the court. [Citation.]

Further, we note that courts may take judicial notice of the public records of the Illinois

Department of Corrections regarding the dates of a conviction and release from custody.”

Id. (citing People v. Yancy, 368 Ill. App. 3d 381, 393 (2005); People v. Sanchez, 404 Ill.

App. 3d 15, 17 (2010)).

¶ 49 4. Plain Error Review for Guilty Pleas

¶ 50 Having analyzed the primary cases at issue here, we next address plain error review for

guilty pleas. While both parties on appeal addressed forfeiture of constitutional challenges on

appeal, neither party addressed waiver, which precludes our review under a plain error analysis.

¶ 51 “By entering a plea agreement, a defendant forecloses any claim of error.” (Internal

quotation marks omitted.) People v. Jones, 2021 IL 126432, ¶ 20. “This court has long held that a

17 constitutional right, like any other right of an accused, may be waived, and a voluntary plea of

guilty waives all errors or irregularities that are not jurisdictional.” (Internal quotation marks

omitted.) People v. Ratliff, 2024 IL 129356, ¶ 21. “ ‘Apprendi-based sentencing [claims] cannot

be heard on appeal from a guilty plea.’ ” People v. Townsell, 209 Ill. 2d 543, 546 (2004) (quoting

People v. Jackson, 199 Ill. 2d 286, 296 (2002)). Erlinger is part of Apprendi’s progeny. See

Erlinger, 602 U.S. at 835 (stating “this case is as nearly on all fours with Apprendi and Alleyne as

any we might imagine”). An Apprendi claim that is waived pursuant to a guilty plea may not be

considered on appeal under the plain error exception to the waiver rule. Townsell, 209 Ill. 2d at

544.

¶ 52 The case law is very clear. Given the fact that defendant pleaded guilty here, he has waived

any appellate review under a plain error analysis.

¶ 53 5. The Facial Constitutionality of the Statutes; Ineffective Assistance

¶ 54 Though our review is precluded under a plain error analysis, it is not precluded under an

ineffective assistance of counsel analysis. Under such an analysis, neither plea nor postplea counsel

can be found ineffective where defendant’s claim of error does not exist because the statutes are

not facially unconstitutional.

¶ 55 A facial challenge to a statute is “the most difficult challenge to mount successfully, since

the challenger must establish that no set of circumstances exists under which the Act would be

valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). Since Erlinger was decided, three

separate districts of our appellate court either have outright rejected the notion that Erlinger

imposes a requirement that a trial court must submit the date of a prior conviction to a jury or have

reacknowledged that section 5-5-3.2 of the Code of Corrections is not facially unconstitutional.

18 See Holman, 2025 IL App (2d) 240513, ¶¶ 43-45; Coopwood, 2025 IL App (3d) 240579-U, ¶ 19;

People v. Watts, 2024 IL App (1st) 231265-U, ¶ 49.

¶ 56 Defendant was convicted pursuant to section 6-303(d-2) of the Vehicle Code, which

provides,

“[a]ny person convicted of a third violation of this Section is guilty of a Class 4 felony ***

if:

(1) the current violation occurred when the person’s driver’s license was ***

revoked for a violation of Section *** 11-501 *** and

(2) the prior convictions under this Section occurred while the person’s driver’s

license was *** revoked for a violation of Section *** 11-501 of this Code.” 625 ILCS

5/6-303(d-2) (West 2022).

Possession of a stolen vehicle is a Class 2 felony. Id. § 4-103(b). Section 5-5-3.2(b)(1) of the Code

of Corrections provides, “When a defendant is convicted of any felony, after having been

previously convicted in Illinois *** of the same or similar class felony or greater class felony,

when such conviction has occurred within 10 years after the previous conviction, excluding time

spent in custody, and such charges are separately brought and tried and arise out of different series

of acts,” an extended-term sentence may be imposed. 730 ILCS 5/5-5-3.2(b)(1) (West 2022).

Defendant was convicted of second degree murder, a Class 1 felony, on October 21, 2009, and

sentenced to 20 years. 720 ILCS 5/9-2(d) (West 2008). Defendant’s discharge date for his second

degree murder conviction was February 28, 2020. A Class 4 felony’s usual sentencing range is 1

to 3 years of imprisonment; the extended-term sentence is 3 to 6 years. 730 ILCS 5/5-4.5-45 (West

2022). A Class 2 felony’s usual sentencing range is 3 to 7 years of imprisonment; the extended-

term sentence is 7 to 14 years. Id. § 5-4.5-35.

19 ¶ 57 On appeal, defendant argues that section 6-303(d-2) of the Vehicle Code does not require

prior convictions to enhance driving on a revoked or suspended license to a Class 4 felony and,

thus, does not comport with Erlinger or Apprendi. Defendant misreads the statute. The statute

reads, in relevant part,

“[a]ny person convicted of a third violation of this Section is guilty of a Class 4 felony ***

(1) the current violation occurred when the person’s driver’s license was ***

(2) the prior convictions under this Section occurred while the person’s driver’s

license was *** revoked for a violation of Section *** 11-501 of this Code.” (Emphases

added.) 625 ILCS 5/6-303(d-2) (West 2022).

This Court can think of no other reasonable way to interpret this statute beyond two prior

convictions increasing the classification of the crime to a Class 4 felony upon a third conviction.

¶ 58 Defendant’s main argument on appeal is that section 5-5-3.2(b)(1) of the Code of

Corrections is unconstitutional on its face, as it requires lower courts to make more of a

determination than the fact of a prior conviction, and runs afoul of Erlinger. We disagree.

¶ 59 As discussed earlier, the Armed Career Criminal Act that Erlinger reviewed required a

number of fact-intensive questions to be asked and answered for the occasions inquiry: (1) were

the crimes committed close in time, (2) what was the proximity of the crimes’ locations, and

(3) were the crimes similar or intertwined in purpose and character? The only one of these

questions that could be asked as it related to section 5-5-3.2(b)(1) of the Code of Corrections is

closeness in time, and context is pivotal in that inquiry. In Erlinger, the question of the crimes’

temporal proximity was not similar to the question here, as the Court in Erlinger was analyzing an

20 act that required three separate qualifying convictions in the past. At issue in Erlinger was whether

a string of four robberies constituted four separate crimes or a single criminal episode. Also, in

Erlinger the defendant contested that the four robberies happened on separate occasions. Here,

defendant does not contend that his 2008 murder, which he completed the sentence for in 2020,

was part of the same criminal episode as the charges he amassed in 2022 and 2024, nor can he.

¶ 60 A facial challenge is “the most difficult challenge to mount successfully.” Salerno, 481

U.S. at 745. As Illinois courts have determined both before and after the Erlinger decision, section

5-5-3.2(b) is not facially unconstitutional. Further, as defendant clarifies in his reply brief, he does

not assert an as-applied constitutional challenge, even though that too would have been

unsuccessful in light of the facts of this case. We find, in line with the First, Second, and Third

Districts, that Erlinger neither narrows nor overturns Apprendi and Almendarez-Torres. As such,

section 5-5-3.2(b)(1) is still facially constitutional.

¶ 61 Moving to the allegations of ineffective assistance, the analysis for ineffective assistance

of counsel is two-prong. First, “defendant must show that counsel’s representation fell below an

objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984).

Second, “defendant must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “To

prevail, the defendant must satisfy both prongs of the Strickland test. [Citation.] The failure to

satisfy either prong of the Strickland test precludes a finding of ineffective assistance of counsel.”

People v. Yankaway, 2025 IL 130207, ¶ 62. Where a challenge by counsel of the complained upon

conduct would have no merit in the lower court, defendant cannot establish counsel provided

deficient performance. See People v. Drain, 2023 IL App (4th) 210355, ¶ 58.

21 ¶ 62 Here, because Erlinger does not provide what defendant asserted it does, a challenge to the

facial constitutionality of the sentencing statute was not warranted. Also, “[t]o establish deficient

performance, a defendant must prove that counsel’s performance, judged by an objective standard

of competence under prevailing professional norms, was so deficient that counsel was not

functioning as the ‘counsel’ guaranteed by the sixth amendment.” People v. Webb, 2023 IL

128957, ¶ 22. It cannot be said, where Illinois courts both before and after Erlinger have

determined that section 5-5-3.2(b)(1) is facially constitutional, that plea counsel and postplea

counsel were not operating under prevailing professional norms when not challenging the

constitutionality of the statutes. Because we find defendant failed to establish deficient

performance, we need not address prejudice.

¶ 63 B. Sentencing

¶ 64 On appeal defendant lists a number of reasons why he believes the circuit court abused its

discretion when sentencing him. Defendant asserts that the circuit court (1) erroneously considered

a probable cause affidavit that he also claims his plea and postplea counsel were ineffective for

not challenging, (2) did not duly consider defendant’s rehabilitative potential, (3) failed to

adequately consider the effect an extended-term sentence would have on his children, and

(4) failed to apprise defendant of the possibility of a consecutive sentence.

¶ 65 “It is well established that the ordinary rules of evidence are relaxed during sentencing

hearings.” People v. Varghese, 391 Ill. App. 3d 866, 873 (2009). “The source and type of

admissible information is virtually without limits.” Id. Even “criminal conduct not resulting in

prosecution or conviction may be considered.” People v. Harris, 375 Ill. App. 3d 398, 409 (2007).

The mere fact that the evidence presented during a sentencing hearing “contains hearsay does not

make it per se inadmissible,” and a hearsay objection during sentencing “affects the weight rather

22 than the admissibility of the evidence.” (Internal quotation marks omitted.) Id. Our supreme court

has held that “hearsay evidence, such as affidavits, may be admitted *** where relevant and

reliable.” People v. Thompkins, 181 Ill. 2d 1, 18 (1998). “The determination of whether evidence

is relevant and reliable is left to the discretion of the sentencing judge.” People v. Hall, 194 Ill. 2d

305, 352 (2000).

¶ 66 “It is well settled that the trial court has broad discretionary powers in imposing a sentence

[citation], and the trial court’s sentencing decision is entitled to great deference.” People v. Stacey,

193 Ill. 2d 203, 209 (2000). “Consequently, the reviewing court must not substitute its judgment

for that of the trial court merely because it would have weighed these factors differently.” Id.

Though Illinois “Supreme Court Rule 615(b)(4) grants a reviewing court the power to reduce a

sentence,” that power “should be exercised cautiously and sparingly.” (Internal quotation marks

omitted.) People v. Alexander, 239 Ill. 2d 205, 212 (2010). “A reviewing court may not alter a

defendant’s sentence absent an abuse of discretion by the trial court.” Id. “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.’ ” Id. (quoting Stacey, 193

Ill. 2d at 210).

¶ 67 “[W]hen a sentence falls within the statutory guidelines, it is presumed to be proper and

will not be disturbed absent an affirmative showing that the sentence is at variance with the purpose

and spirit of the law or is manifestly disproportionate to the nature of the offense.” People v. Knox,

2014 IL App (1st) 120349, ¶ 46. “[W]hen mitigating evidence is presented before the trial court,

it is presumed that the court considered that evidence in imposing the defendant’s sentence.” Id.

“[T]hat presumption will not be overcome without explicit evidence from the record that the trial

court did not consider mitigating factors.” People v. Flores, 404 Ill. App. 3d 155, 158 (2010).

23 ¶ 68 Regarding the alleged improper use of the probable cause affidavit, it is defendant’s burden

to show the court abused its discretion in determining it to be relevant and reliable. Defendant

makes no efforts to establish how the affidavit is irrelevant or unreliable. Instead, defendant asserts

the affidavit was “unproven” or “hearsay.” Defendant effectively takes issue with the very

information he accepted as the State’s evidence when he pleaded guilty, and when he pleaded so

he accepted the fact that he was waiving his right to be proven guilty beyond a reasonable doubt.

Defendant also asserts that the State needed to provide testimony from the officers to essentially

substantiate the affidavit. Insofar as defendant’s ineffective assistance of counsel argument is

concerned on this point, as provided earlier, where a challenge by counsel of the complained upon

conduct would have no merit in the lower court, defendant cannot establish counsel provided

deficient performance. See Drain, 2023 IL App (4th) 210355, ¶ 58.

¶ 69 Defendant cites three cases in support of his assertion that “Illinois precedent makes clear

that sentencing courts cannot rely on unproven charges in aggravation of a sentence.” See People

v. Minter, 2015 IL App (1st) 120958, ¶ 148; People v. McAfee, 332 Ill. App. 3d 1091, 1097 (2002);

People v. McPhee, 256 Ill. App. 3d 102, 113-15 (1993). Minter suggests the opposite, stating:

“the court may rely on evidence of a defendant’s other criminal activity, even if that

conduct has not resulted in a conviction, where the trial court finds the evidence to be

relevant and accurate. [Citation.] A mere list of arrests or charges in a presentence report,

unsupported by live testimony or other evidence at the sentencing hearing, does not meet

those standards.” (Emphases added.) Minter, 2015 IL App (1st) 120958, ¶ 148.

We find that a mere list of arrests or charges in a presentence report as discussed in Minter is

different from a probable cause affidavit that was the basis for the charging information and

proffered facts at defendant’s guilty plea hearing. Further, both McAfee and McPhee hold that it is

24 improper for the trial court to consider as an aggravating factor that it believed a defendant put a

witness on the stand that falsely testified on the defendant’s behalf. McAfee, 332 Ill. App. 3d at

1097; McPhee, 256 Ill. App. 3d at 113-15. None of these three cases supports defendant’s

sentencing argument in this case. We find no merit to defendant’s contention that the circuit court

improperly considered the probable cause affidavit in its sentencing determination.

¶ 70 Regarding defendant’s assertion that the circuit court did not adequately consider his

rehabilitative potential and the fact that he had young kids that would be affected by a lengthy

sentence, defendant fails to make any compelling argument in this regard. Defendant’s argument

is tantamount to requesting that we simply reweigh the factors without any finding of an abuse of

discretion. The circuit court considered defendant’s rehabilitative potential when it reviewed

(1) his lengthy criminal history, (2) the fact that he was given an opportunity for residential

treatment and he left the facility, (3) the fact that he received a number of disciplinary tickets while

in prison, (4) the fact that he had multiple parole violations, and (5) the fact that, in the month’s

time he was on home confinement, he violated the conditions multiple times, culminating with

him cutting off his ankle monitor and escaping. His rehabilitative potential was considered; it just

happened to be very low. Regarding his children, the circuit court explicitly considered them as

well. It also considered that he abandoned them when he cut off his electronic monitor and escaped,

and it considered the fact that he fled in a high-speed chase from police with his three-year-old

son, unsecured and without a helmet, in his lap. Defendant provides no explicit evidence that

mitigating factors were not considered.

¶ 71 Finally, defendant asserts that the circuit court failed to apprise him of the possibility of

consecutive sentences. “The failure to properly admonish a defendant, alone, does not

automatically establish grounds for reversing the judgment or vacating the plea. *** Whether

25 reversal is required depends on whether real justice has been denied or whether defendant has been

prejudiced by the inadequate admonishment.” People v. Davis, 145 Ill. 2d 240, 250 (1991). “Our

supreme court has consistently held that Rule 402 requires only substantial, not literal, compliance

with its provisions, and that every deviation from the stated requirements of the rule does not

necessitate reversal.” People v. Baker, 133 Ill. App. 3d 620, 622 (1985). Where the trial court

failed to advise defendant of the possibility of consecutive sentencing prior to accepting his plea

and neither defense counsel nor the State mentioned the possibility of consecutive sentencing on

the record, the defendant’s sentence was reversed, his plea vacated, and the matter remanded. See

People v. Akers, 137 Ill. App. 3d 922, 924 (1985).

¶ 72 Here, though the circuit court told defendant he could be sentenced to any of the possible

penalties repeatedly, it is arguable whether that alone would inform defendant about the possibility

of consecutive sentences. However, a review of the record shows that defendant was aware that he

could receive a consecutive sentence because his original plea agreement was for a consecutive

sentence. In the plea hearing, defense counsel asked to make a record of the negotiated plea so that

defendant was “very clear” about what the State was going to present. The State provided, “Judge,

the negotiation at this point is he would be sentenced to four years in the Department of Corrections

on 22-CF-273 with credit for any time served. He would be sentenced to four years consecutive to

that in 24-CF-203 with credit for any time served.” (Emphasis added.) The State continued,

providing that it was aware of three additional charges it could file, but it was not a part of the plea

agreement. The State asserted, “[h]owever, [defendant] will remain on electronic home monitoring

during this period. If he violates that, if he gets into any new criminal trouble, all negotiations are

off the table, and we will proceed to a sentencing hearing.”

26 ¶ 73 Defendant was therefore aware of the possibility of a consecutive sentence. Also, as it

relates to defendant’s argument regarding counsel providing ineffective assistance for failing to

challenge the sentence in light of the Erlinger decision, as previously established, Erlinger does

not create the basis for such a challenge here. Therefore, neither plea counsel nor postplea counsel

provided deficient performance.

¶ 74 III. CONCLUSION

¶ 75 For the foregoing reasons, we affirm the judgment of the circuit court of Williamson

County.

¶ 76 Affirmed.

27 People v. Cooper, 2026 IL App (5th) 250282

Decision Under Review: Appeal from the Circuit Court of Williamson County, Nos. 22- CF-273, 24-CF-203; the Hon. Michelle M. Schafer, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Imani Thornton, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Ted Hampson, State’s Attorney, of Marion (Patrick Delfino, for Thomas D. Arado, and Justin A. Nicolosi, of State’s Attorneys Appellee: Appellate Prosecutor’s Office, of counsel), for the People.