People v. Glenn

804 N.E.2d 661, 345 Ill. App. 3d 974, 281 Ill. Dec. 696, 2004 Ill. App. LEXIS 102
Appellate Court of Illinois·Decided February 4, 2004·No. 2-02-0491·Published·Cited by 23 cases

Opinion

JUSTICE GROMETER

delivered the opinion of the court:

Following a bench trial in the circuit court of De Kalb County, defendant, Demetrius Glenn, was convicted of six counts of drug-related offenses stemming from the delivery of cocaine and heroin within 1,000 feet of a church. Three counts were related to the delivery of less than one gram of a substance containing cocaine to an undercover officer, and the other three were related to delivery of less than one gram of a substance containing heroin. Defendant was sentenced to 10 years’ imprisonment. Defendant now appeals, alleging three errors. First, he contends that trial counsel was ineffective for failing to move for the disclosure of an informant until after defendant testified at trial. Second, he argues that several of the counts of which he was convicted should be vacated because they are lesser included offenses and that multiple convictions violate the one-act, one-crime rule. Third, he asserts that he was not properly admonished regarding how to preserve sentencing errors for appeal. We agree with the latter two contentions; therefore, we affirm in part, vacate in part, and remand. Because the issues raised by defendant are discrete, we will discuss the evidence as it pertains to his arguments.

I. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant first argues that trial counsel was ineffective for failing to move for the disclosure of a police informant until after the trial had commenced. Defendant raised an entrapment defense. See 720 ILCS 5/7 — 12 (West 2000); People v. Placek, 184 Ill. 2d 370, 380-81 (1998). Defendant contends that he was entrapped by a woman he knew who was acting as an informant for the police. Defendant testified that he met the woman through his sister a short time before the incident leading to his arrest. The woman seemed to be attracted to defendant, and they “partied” together. Defendant testified that, on May 17, 2001, the date of the incident, the woman preyed on his attraction to her to induce him to procure drugs for Mark Nachman. She told defendant that Nachman was her brother. Nachman was, in fact, an undercover police officer.

According to defendant, the woman accompanied him and Nachman on the day of the incident. Before asking him to get drugs for Nachman, she joked with defendant, hugged him, and kissed him. She then directed defendant to places where drugs could be acquired. They were unable to obtain drugs at the first two locations, but were successful in obtaining crack cocaine at the third. Defendant testified that he made no profit on the transaction; however, he did ask Nachman if he could keep a piece of cocaine, which he intended to smoke later. He acknowledged that the heroin was his and that he had acquired it before meeting Nachman that day. He denied having anything to do with the cutting or testing of the drugs. Defendant testified that he had stopped dealing drugs prior to the day of the incident. He acknowledged that he had a previous conviction of unlawful delivery of a controlled substance and also admitted prior drug use. Nachman asked defendant if he could contact defendant again, and defendant replied affirmatively. In resolving this issue, for reasons that we will explain below, we will accept defendant’s version of the facts, as well as other evidence favorable to him adduced from other sources. We note that the testimony of the State’s witnesses differed significantly from defendant’s.

Defendant argues that he received ineffective assistance of counsel because his attorney failed to seek to ascertain the identity of the informant and to present her testimony at trial. To establish a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance fell below an objective standard of reasonableness and that, but for counsel’s errors, a reasonable probability exists that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984); People v. Davis, 205 Ill. 2d 349, 364 (2002). A reasonable probability is one sufficient to undermine confidence in the result of the proceeding. People v. Morris, 335 Ill. App. 3d 70, 84 (2002). A claim of ineffective assistance of counsel may be disposed of on the prejudice prong of the test without first addressing whether counsel’s performance was deficient. People v. Johnson, 128 Ill. 2d 253, 271 (1989). The burden is on the defendant to establish prejudice. People v. Richardson, 189 Ill. 2d 401, 411 (2000). We conclude that defendant has not sustained this burden.

As defendant raised the defense of entrapment, we must assess counsel’s alleged ineffectiveness in terms of how it could have affected this defense. Defendant’s claim of entrapment is based upon the informant’s use of his attraction to her, which, defendant asserts, allowed the informant to manipulate him into obtaining drugs. Entrapment requires that a defendant show both that the State improperly induced him or her to commit a crime and that he or she was not otherwise predisposed to commit the offense. Placek, 184 Ill. 2d at 380-81. In resolving this appeal, we will focus on the issue of predisposition. Several factors are relevant in assessing predisposition in drug cases, including the following: (1) the defendant’s initial reluctance or willingness to commit the crime; (2) the defendant’s familiarity with drugs; (3) the defendant’s willingness to accommodate the needs of drug users; (4) the defendant’s willingness to profit from the offense; (5) the defendant’s current or prior drug use; (6) the defendant’s participation in cutting or testing the drugs; and (7) the defendant’s ready access to a supply of drugs. Placek, 184 Ill. 2d at 381.

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People v. Glenn, 804 N.E.2d 661, 345 Ill. App. 3d 974, 281 Ill. Dec. 696, 2004 Ill. App. LEXIS 102 (Ill. Ct. App. 2004).

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