People v. Garcia-Fino

2021 IL App (2d) 200566-U

• Court: Appellate Court of Illinois
• Decided: August 4, 2021
• Docket: 2-20-0566
• Status: Unpublished

Opinion

2021 IL App (2d) 200566-U No. 2-20-0566 Order filed August 4, 2021

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)(l). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 15-CF-251 ) DANIEL GARCIA-FINO, ) Honorable ) Victoria A. Rossetti, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court. Justices Hudson and Brennan concurred in the judgment.

ORDER

¶1 Held: The trial court’s reference at hearing on motion to reconsider sentence to alleged prior convictions that were not introduced into evidence was an error, but the improper factor was insignificant to the court’s initial sentencing decision; thus, a remand is not warranted. The State concedes, and we agree, that defendant’s conviction for methamphetamine possession should be vacated under the one-act, one-crime rule, where he was also convicted of the delivery offense. Affirmed in part and vacated in part.

¶2 Defendant, Daniel Garcia-Fino, entered an open guilty plea to possession of

methamphetamine with intent to deliver (720 ILCS 646/55(a)(1), (2)(E) (West 2014) (class X

felony; sentencing range of 12 to 50 years)) and possession of methamphetamine (720 ILCS 2021 IL App (2d) 200566-U

646/60(a), (b)(5) (West 2014) (class X felony; sentencing range of 8 to 40 years)) and was

sentenced to concurrent terms of 20 years’ imprisonment. Defendant moved to reconsider, and

the trial court denied the motion. Defendant appealed, and this court, via a motion order, vacated

the denial of defendant’s motion to reconsider and remanded the case for compliance with Illinois

Supreme Court Rule 604(d) (eff. July 1, 2017).

¶3 On remand, the trial court denied defendant’s motion to reconsider sentence. Defendant

appealed, and this court, via a motion order, vacated the court’s denial of the motion and again

remanded the case for compliance with Rule 604(d).

¶4 On the second remand, defendant filed a supplemental motion to reconsider sentence, and

the trial court denied defendant’s motion. Defendant appeals, arguing that (1) the trial court erred

in considering that defendant had alleged prior convictions from California, where no evidence of

these convictions was presented at the sentencing hearing and the State had agreed to proceed as

if defendant had no out-of-state convictions; and (2) his conviction for possession of

methamphetamine must be vacated based on the one-act, one-crime doctrine. We affirm in part

and vacate in part.

¶5 I. BACKGROUND

¶6 A. Plea

¶7 Following the execution of a search warrant at his residence on January 26, 2015, defendant

was charged with possession of methamphetamine with intent to deliver (count I) and possession

of methamphetamine (count II).

¶8 On May 28, 2015, the parties engaged in an Illinois Supreme Court Rule 402 (eff. July 1,

2012) conference, where the State represented that defendant’s criminal history included several

convictions from California, including robbery, theft, and unlawful possession of a controlled

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substance. At a June 1, 2015, hearing, after the court related the information presented at the 402

conference, defendant, through an interpreter, stated that he wanted another attorney to represent

him. He complained that he needed “proof” of the “robberies from California. I never lived in

California.” The State represented that it had received information from the Immigration and

Customs Agency that defendant had, under aliases, “a number of convictions from California,”

including for burglary, theft, and a controlled substance. The State also asserted that the agency

had a hold on defendant and advised that defendant had been deported at least five times under

known aliases. Defense counsel represented that defendant had never before informed her that the

California convictions “were not his.”

¶9 At a June 16, 2015, hearing, the State represented that defendant’s fingerprints were used

to “verify” his prior criminal history and that the State’s representations at the 402 conference

“were correct.” It also asserted that the record revealed that defendant had convictions for

vehicular prowling and criminal trespass in Seattle and a conviction in New York. Defense counsel

stated that defendant had indicated that he wanted a DNA test to be conducted. “Obviously,

fingerprint is how we verify that the priors are his or not. I will certainly go over the rest of them

when I have more time in the jail.” At a June 23, 2015, hearing defense counsel represented that

she had discussed with defendant that the fingerprint investigation was “fairly comprehensive

proof of his prior convictions,” but that defendant was insisting on a DNA test, which she explained

was not routinely administered. Defendant continued to dispute the out-of-state convictions.

Defense counsel informed the court that defendant had asked for proof of his prior convictions,

which counsel informed him she did not have. Both defense counsel and the State informed the

court that they did not have any certified copies of defendant’s prior convictions. Defense counsel

explained that she had informed defendant that prior convictions could not be introduced into

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evidence at trial, but that, if he was found guilty, they could be considered by the court in

fashioning a sentence.

¶ 10 On July 1, 2015, defense counsel informed the court that she had explained to defendant

that, if he was found guilty, the disputed convictions would appear in his presentence report and

the court could rely on such evidence in fashioning a sentence. Defendant then entered an open

plea of guilty to both counts. The court informed defendant that the sentencing range on count I

was between 12 and 50 years’ imprisonment, and the range on count II was 8 to 40 years. Both

counts would be served at 75 percent.

¶ 11 The factual basis for the plea was as follows. On January 26, 2015, pursuant to a search

warrant, police found defendant inside an apartment. In a closet, they found two bags containing

what appeared to be methamphetamine. The Illinois State Police Crime Lab tested the substance

and found that it was over 500 grams of methamphetamine. During the search of the apartment,

of which defendant was the sole occupant, officers also found a scale, cell phones, and bank

statements indicating several large deposits within one week prior to the execution of the warrant

(in the amounts of $4,500, $4,000, and $4,500). An officer would testify as an expert in narcotics

trafficking that the foregoing were indicia of intent to deliver.

¶ 12 The trial court accepted the guilty plea, finding it to be knowingly and voluntarily entered.

It ordered a presentence investigation report (PSI) and set the case for a sentencing hearing.

¶ 13 B. Sentencing Hearing

¶ 14 The PSI listed two criminal offenses in defendant’s history. The first was a 1993 1 Du Page

County conviction for manufacture/delivery of cocaine for which defendant (under an alias) was

1 Elsewhere in the record, the date for this offense is 1996. The State agrees there is only

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sentenced to six years’ imprisonment. The second was a February 13, 2003, arrest in LaSalle

County for possession of a controlled substance. The report stated that no disposition information

was provided for this incident, nor was the arrest found in the county clerk’s records. The PSI also

related that defendant was interviewed with interpreter assistance, was vague and guarded in his

reporting, failed to sign releases of information as requested to allow further investigation of his

reporting, and denied culpability. He did, however, admit to being present illegally in the United

States and returning after deportation.

¶ 15 At an August 5, 2015, hearing, the State noted that the investigator who prepared the PSI

had concerns about the accuracy of defendant’s criminal history and noted that defendant had

denied having such prior history. The preparer also had informed the parties that she could not

verify the accuracy of the other alleged prior convictions that were based on the fingerprint review.

The State noted that it had the fingerprints re-submitted to the FBI, and it received back a report

stating that the fingerprints belonged to Reinaldo Olan with a date of birth different from

defendant’s date of birth. A LEADS check resulted in information of a number of prior convictions

that were different from the ones originally presented to the court. The prosecutor informed the

court that he had contacted various agencies and requested a continuance to verify defendant’s

history. Defense counsel noted that one FBI number was for an individual with tattoos, but that

defendant was checked and he did not have any tattoos.

¶ 16 At the sentencing hearing on September 1, 2015, defendant agreed that the PSI, which,

again, listed no out-of-state convictions, was correct. The State represented that it had contacted

one prior conviction in defendant’s background for manufacture/delivery of a controlled

substance.

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various agencies in Illinois, Washington, and California and the FBI. It also noted that it had

obtained photographs of defendant from the Department of Corrections. Without conceding that

the convictions noted in the PSI were the only ones in defendant’s history, the State elected to

proceed on the PSI history alone. In aggravation, the State offered exhibit Nos. 1 and 2

(defendant’s mug shots and a copy of an FBI report). Defendant offered no evidence in mitigation

and, when the court asked defendant if he had anything to say, defendant asked to participate in a

drug addiction program. The State sought 35 years, and defendant sought the minimum sentence.

¶ 17 The court sentenced defendant to 20 years’ imprisonment on count I, to be served at 75%,

concurrent with 20 years on count II. It noted that it had reviewed the PSI, the facts, and

defendant’s statement. The court found in mitigation that defendant pleaded guilty; that he is a

father with one child who is autistic; he is capable of working, and, while he worked, he sent

money to his family in Mexico; and his family history and his request for assistance with his

addiction. In aggravation, the court noted defendant’s prior criminal record (explicitly noting that

1993 conviction for possession of a controlled substance with intent to deliver in Du Page County);

the fact that he used several aliases; he had been deported and then returned to the United States

(“it shows your inability to follow rules”); and he had not cooperated in court because, according

to the court, he did not want the court “to know who he was.”

¶ 18 Defendant, on September 8, 2015, moved to reconsider, and defense counsel filed a Rule

604(d) certificate. On November 25, 2015, the trial court denied the motion to reconsider, noting

that it had previously reviewed the motion and the PSI. It also noted that it took into consideration

that defendant pleaded guilty; his drug addiction; and his family and children (including an autistic

child). The court again noted that defendant had been deported and returned to the country, and

he had used multiple aliases (“which show[ed] [his] lack of ability to follow the rules”). Defendant

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appealed. On appeal on August 25, 2017, this court, in case No. 2-15-1171, granted defendant’s

unopposed motion for summary remand and remanded the case for further Rule 604(d)

proceedings and granted defendant the opportunity to file a new motion to withdraw his guilty plea

and/or reconsider sentence.

¶ 19 C. First Remand

¶ 20 On remand, defendant proceeded on his previously filed motion to reconsider. Defense

counsel did not file a Rule 604(d) certificate. The trial court, on November 5, 2018, denied the

motion to reconsider. The court noted that, at the time of sentencing, it considered all factors in

aggravation and mitigation and looked toward defendant’s rehabilitation, including: the fact that

he pleaded guilty; his drug addiction; his family and children (including an autistic child); the

number of times he had failed to follow the rules; that defendant refused to cooperate and sign

releases of information during the presentence investigation; and the fact that defendant had been

working and sending money back to his family.

¶ 21 Defendant appealed. On August 14, 2019, this court, in case No. 2-19-0078, granted, via

a motion order, defendant’s unopposed motion for summary remand and remanded the case for

filing of a proper Rule 604(d) certificate and granted defendant the opportunity to file a new motion

to withdraw his guilty plea and/or reconsider sentence.

¶ 22 D. Second Remand

¶ 23 On the second remand, on August 7, 2020, a new public defender filed on defendant’s

behalf a supplemental motion to reconsider sentence and a Rule 604(d) certificate. In the motion,

defense counsel incorporated defendant’s September 8, 2015, motion to reconsider sentence and

further asserted that, since being incarcerated, defendant had been losing his eyesight in one eye,

did not have behavioral issues in prison, wished to participate in substance abuse programs while

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incarcerated (but could not do so due to the length of his sentence), and, upon release, was planning

on moving to Mexico to help support and care for his autistic son. In an attached affidavit,

defendant averred to these assertions and added that he was going deaf, he had an unstable and

dysfunctional home life growing up (and his father was an alcoholic), and he could not adequately

relate his drug and alcohol issues to the presentence investigator due to the language barrier. In

the 2015 motion, defendant had sought the minimum, 12-year sentence, raising similar assertions

to that in the subsequent supplemental motion and argued that, under the given sentence, he would

not be released from prison until he is 59 years old.

¶ 24 At the September 28, 2020, hearing on the motion, defense counsel noted that defendant’s

prior felonies occurred about 22 years prior to this case and that defendant had “lived a law-abiding

life for a substantial period.” During its argument, the State did not reference defendant’s criminal

history.

¶ 25 The trial court denied defendant’s motion. The court stated,

“[Defendant], I have reviewed all the relevant information, which includes the

motion to reconsider sentence, a supplemental motion, your affidavit. I have reviewed the

presentence investigation. I have considered all of the factors in aggravation and

mitigation. I have also considered the fact that you pled guilty, your statement at the

original sentencing hearing. And I have considered all of the factors which you have

presented in your motion, which include your family background, the fact that you have an

autistic child, the fact that you claim you have drug and alcohol issues, even though at the

time of the presentence investigation you indicated that there were no issues. I considered

that you were capable of working. I also considered your priors, which included priors in

California under many different names, that you used a number of different names, that

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you have been deported a number of times, because all of that indicated your inability to

follow rules.

So based on all of this, your motion to reconsider sentence is denied, and your

sentence of 20 years will stand.” (Emphasis added.)

¶ 26 Defendant appeals.

¶ 27 II. ANALYSIS

¶ 28 A. Denial of Motion to Reconsider Sentence

¶ 29 Defendant argues first that, in denying his motion to reconsider sentence, the trial court

explicitly and erroneously considered alleged prior convictions of which no evidence was

presented at the sentencing hearing. He contends that the case should be remanded for

resentencing or, alternatively, for a new hearing on his motion to reconsider sentence. For the

following reasons, we reject defendant’s argument.

¶ 30 Defendant concedes that he did not raise his challenge below but argues that the issue can

be reviewed for plain error. We agree that the issue is forfeited but that we can review it for plain

error. People v. Williams, 2018 IL App (4th) 150759, ¶ 15 (reviewing sentencing challenge for

plain error, where the defendant failed to object during sentencing and did not raise issue in his

motion to reconsider sentence). “Sentencing errors raised for the first time on appeal are

reviewable as plain error where (1) the evidence was closely balanced[;] or (2) the error was

sufficiently grave that it deprived the defendant of a fair sentencing hearing.” People v. Ahlers,

402 Ill. App. 3d 726, 734 (2010); see Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). Under either prong

of the plain error doctrine, the burden of persuasion is on the defendant. People v. Walker, 232 Ill.

2d 113, 124 (2009). If the defendant fails to satisfy that burden, the forfeiture or procedural default

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of the issue must be honored. Id. The first step in any plain error analysis is to determine whether

an error occurred. Id. at 124-25.

¶ 31 The State responds that defendant’s argument is speculative. It contends that the trial court

did not reference those convictions in pronouncing its original sentence (and specifically

referenced only the 1993 Du Page County conviction), nor did it reference them during the

previous two hearings on defendant’s motion to reconsider sentence. It urges that the allegedly

improper remark was made “in passing” or mistakenly at the third hearing, which shows that the

court placed no weight on it in fashioning its original sentence, or that, alternatively, any impact

would have been de minimis. It also contends that the 20-year sentence imposed was on the low

end of the potential sentencing range. See 720 ILCS 646/55(a)(2)(E) (2015); 730 ILCS 5/5-4.5-

25(a) (2015) (potential range for class X felony is 12 to 50 years). The State suggests that, had the

trial court considered the alleged California convictions, which included robbery, theft, and

unlawful possession of a controlled substance, defendant’s sentence would likely have been much

greater.

¶ 32 The purpose of a motion to reconsider sentence is not to conduct a new sentencing hearing,

but rather to bring to the trial court’s attention changes in the law, errors in the court’s previous

application of existing law, and newly discovered evidence that was not available at the time of

the hearing. People v. Medina, 221 Ill. 2d 394, 413 (2006). See 730 ILCS 5/5-4.5-50(d) (West

2014) (“A defendant’s challenge to the correctness of a sentence or to any aspect of the sentencing

hearing shall be made by a written motion filed with the [trial court] clerk within 30 days following

the imposition of sentence.”).

“Imposition of a sentence is normally within a trial court’s discretion [Citation.],

and there is a strong presumption that the trial court based its sentencing determination on

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proper legal reasoning, such that the trial court’s sentencing decision is reviewed with great

deference. [Citation.] The presumption is overcome only by an affirmative showing that

the sentence imposed varies greatly from the purpose and spirit of the law or manifestly

violates constitutional guidelines. [Citation.] Nonetheless, the question of whether a court

relied on an improper factor in imposing a sentence ultimately presents a question of law

to be reviewed de novo. [Citation.]” People v. Abdelhadi, 2012 IL App (2d) 111053, ¶ 8.

¶ 33 A trial court cannot ignore a mitigating factor, nor can it consider an improper aggravating

factor (People v. Higgins, 2016 IL App (3d) 140112, ¶ 29), such as an aggravating factor based on

speculation (People v. Zapata, 347 Ill. App. 3d 956, 964 (2004)). However, a reviewing court can

affirm a sentence despite an improper factor if the record shows the weight placed on that factor

was so insignificant it did not result in a greater sentence. People v. Heider, 231 Ill. 2d 1, 21

(2008); see also People v. Cervantes, 2014 IL App (3d) 120745, ¶ 47 (trial court may not determine

a defendant’s sentence based on its own personal knowledge, prejudice, speculation, or conjecture,

since the consideration of an improper factor in aggravation clearly affects the defendant’s

fundamental right to liberty, except in circumstances where the factor is an insignificant element

of the defendant’s sentence). Where a reviewing court is unable to determine the weight given to

the improper aggravating factor in sentencing, resentencing is required. People v. Joe, 207 Ill.

App. 3d 1079, 1086 (1991).

¶ 34 Several factors are considered in determining whether a court has afforded significant

weight to an improper factor such that a remand is required: (1) whether the trial court made any

dismissive or emphatic comments in reciting its consideration of the improper factor; and (2)

whether the sentence was substantially less than the maximum sentence permissible by statute.

People v. Abdelhadi, 2012 IL App (2d) 111053, ¶ 18.

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¶ 35 We conclude that, in denying defendant’s motion to reconsider sentence, the trial court

improperly considered his alleged California convictions. However, we further conclude that a

remand is not necessary, because the weight, if any, the court placed on the improper factor was

insignificant. We find highly relevant the court’s findings at the initial sentencing hearing. There,

the court explicitly referenced defendant’s 1993 Du Page County conviction for possession of a

controlled substance with intent to deliver, for which he served a six-year sentence. Also in

aggravation, the court noted that defendant had used several aliases, had been deported and then

returned to the United States (“it show[ed] [his] inability to follow rules”), and the fact that he did

not cooperate in court. The State had sought a 35-year sentence, and defendant had sought the

minimum sentence of 12 years. In sentencing defendant to 20 years, the trial court fashioned a

sentence 20 years below the sentencing range midpoint of 31 years (and 15 years below the State’s

request) and 8 years over the minimum sentence, where, again, defendant had a prior narcotics

conviction in Du Page County (under an alias) for which he was sentenced to 6 years’

imprisonment.

¶ 36 In 2020 upon the second remand, in denying the motion to reconsider, the trial court found

in aggravation, “I also considered your priors, which included priors in California under many

different names, that you used a number of different names, that you have been deported a number

of times, because all of that indicated your inability to follow rules.” Although, again, the mention

of the alleged California convictions was improper, we cannot conclude that it reflected that the

court’s initial sentencing determination was based on the improper factor. Any weight given to it

was insignificant. We believe that this is so, because the court did not mention the alleged

California convictions in announcing defendant’s sentence in 2015 (which shows they carried no

weight in the court’s sentencing determination), and the 20-year sentence does not reflect

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consideration of prior convictions, including, most significantly, unlawful possession of a

controlled substance (in California). Thus, the mention of the alleged convictions in 2020 was a

mistake and does not show that these alleged convictions carried any weight in the court’s original

sentencing determination. Cf. Abdelhadi, 2012 IL App (2d) 111053, ¶¶ 19-20 (the defendant, who

pleaded guilty to aggravated arson, was sentenced to 6 years, where the sentencing range was 6 to

30 years; remanded for a new sentencing hearing, where the court could not determine how much

weight the trial court placed on improper aggravating factor); People v. Dowding, 388 Ill. App. 3d

936, 946 (2009) (where the trial court neither over nor underemphasized its consideration of

improper factor and where the 10-year sentence for aggravated DUI was 4 years short of the

maximum sentence, it was “unclear how much weight” trial court placed on improper factor;

remanded for new sentencing hearing). We reject defendant’s assertion that the court relied on the

alleged California convictions to find that he is a person who does not follow rules. Defendant

notes that, without the California convictions, his prior criminal history consisted of only one prior

conviction that occurred 22 years before the present offense. We disagree with his

characterization. The court’s rules reference included mention of the fact that defendant was

deported and then returned to this country.

¶ 37 Defendant’s reliance on People v. Hayes, 55 Ill. 2d 78 (1973), is misplaced. In Hayes, the

defendant was convicted of unlawful possession of heroin. At the sentencing hearing, the court

and the prosecutor engaged in a discussion about certain previous convictions, including one

involving narcotics. Defense counsel objected, arguing that there was no proof offered. Further,

the prosecutor did not identify the document from which he read, it was not offered as evidence,

and defense counsel denied that the defendant had been convicted of the mentioned offenses. The

supreme court, which had held as to another issue in the case that a remand for resentencing was

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warranted, determined as to the alleged prior conviction that there was no evidence of a prior

narcotics conviction and that the prosecution was not excused from proving a narcotics conviction

when seeking imposition of an enhanced statutory penalty for a subsequent offender. Id. at 83-84.

Thus, Hayes is distinguishable from this case, because the error occurred at the initial sentencing

hearing, not, as here, in the context of a ruling on a motion to reconsider sentence. See also People

v. Whitney, 297 Ill. App. 3d 965, 971 (1998) (“[W]e are not prepared to say that, on the record

before us, the weight placed upon [the] defendant’s nonexistent conviction by the trial court [at

the initial sentencing hearing] was negligible. Not only did the trial judge specifically state on the

record he was considering the conviction, but the prior conviction was also the first factor

specifically mentioned by the judge in handing down his sentence.”)

¶ 38 Having determined that there was no error, there can be no plain error, and we honor the

procedural default.

¶ 39 B. One-Act, One-Crime

¶ 40 Next, defendant argues that his conviction for possession of methamphetamine must be

vacated because it violates the one-act, one-crime rule, or, alternatively, because it is a lesser-

included offense of possession of methamphetamine with intent to deliver. He acknowledges that

he did not move to withdraw his guilty plea, but argues that we may review his claim because he

challenged his sentence as excessive, or, alternatively, because an objection to a surplus conviction

may be reviewed for plain error. See People v. Moshier, 312 Ill. App. 3d 879, 881 (2000).

¶ 41 The State agrees that we may review defendant’s claim for plain error and, further, that

defendant’s convictions violate the one-act, one-crime rule. It agrees that both convictions were

based on the same physical act of defendant’s possession of methamphetamine in his residence.

See, e.g., People v. Bolar, 229 Ill. App. 3d 563, 568 (1992) (where conviction for unlawful

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possession of a controlled substance with intent to deliver was affirmed, the defendant’s conviction

for unlawful possession of a controlled substance vacated under the one-act, one-crime rule).

¶ 42 We review de novo one-act, one-crime and lesser-included-offense issues, as they present

legal questions. People v. Rodgers, 364 Ill. App. 3d 229, 240-41 (2006) (both issues); see also

People v. Landwer, 166 Ill. 2d 475, 486 (1995) (lesser-included offense).

¶ 43 Under the one-act, one-crime doctrine, a defendant “may not be convicted of multiple

offenses when those offenses are all based on precisely the same physical act.” People v. Coats,

2018 IL 121926, ¶ 11. Although a defendant can be prosecuted for multiple offenses if the same

physical act formed the basis for those offenses, only one conviction and sentence may be imposed.

People v. Rodriguez, 169 Ill. 2d 183, 186 (1996); People v. Segara, 126 Ill. 2d 70, 76-77 (1988).

¶ 44 One-act, one-crime questions typically carry a two-step analysis. A court must first

determine whether the defendant’s conduct stems from one physical act or several separate acts.

Rodriguez, 169 Ill. 2d at 186. If the defendant committed multiple separate acts, then the court

must go on to determine whether any of the charged offenses are lesser included offenses. Id. If

so, then the lesser included offense must be vacated. Id.

¶ 45 We agree that the convictions violate the one-act, one-crime rule. The factual basis alleged

only that defendant possessed in his residence methamphetamine and indicia of drug dealing. It

did not allege any additional acts by defendant, and both convictions were based on a single search

of defendant’s residence.

¶ 46 Furthermore, as both defendant and the State point out, even assuming multiple acts were

involved, under People v. Miller, 238 Ill. 2d 161, 166 (2010) (under “abstract elements approach,

*** [i]f all of the elements of one offense are included within a second offense and the first offense

contains no element not included in the second offense, the first offense is deemed a lesser-

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included offense of the second”), possession of methamphetamine is a lesser-included offense of

possession of methamphetamine with intent to deliver. Possession of methamphetamine is defined

as, “knowingly to possess methamphetamine or a substance containing methamphetamine.” 720

ILCS 646/60(a) (West 2014). Possession with intent to deliver is defined as, “knowingly to engage

in the delivery or possession with intent to deliver methamphetamine or a substance containing

methamphetamine.” 720 ILCS 646/55(a)(1) (West 2014). Clearly, all of the elements of the

possession offense are included within the delivery offense. Furthermore, based on the sentencing

ranges, the possession offense is the less serious offense and must be vacated.

¶ 47 Accordingly, defendant’s conviction for possession of methamphetamine (count II) is

vacated.

¶ 48 III. CONCLUSION

¶ 49 For the reasons stated, we affirm in part and vacate in part the judgment of the circuit court

of Lake County.

¶ 50 Affirmed in part and vacated in part.

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