People v. Little

750 N.E.2d 745, 322 Ill. App. 3d 607, 255 Ill. Dec. 828, 2001 Ill. App. LEXIS 357
Appellate Court of Illinois·Decided May 16, 2001·No. 1 — 99—3776·Published·Cited by 77 cases

Opinion

JUSTICE CERDA

delivered the opinion of the court:

Defendant, James Little, was charged in a two-count indictment with possession of a controlled substance (cocaine) with intent to deliver (720 ILCS 570/401(c)(2) (West 1998)), and possession of a controlled substance (cocaine) with intent to deliver while within 1,000 feet of property comprising a public park (720 ILCS 570/401(c)(2), 407(b)(1) (West 1998)). Following a bench trial in May 1999, defendant was acquitted of the latter charge but found guilty of possession with intent to deliver. Finding that defendant qualified for an enhanced sentence under section 5 — 5—3(c)(8) of the Unified Code of Corrections (Corrections Code) (730 ILCS 5/5 — 5—3(c)(8) (West 1998)) based on the existence of prior convictions, the court sentenced defendant to a term of seven years’ imprisonment. Defendant appeals, arguing (1) his trial counsel was ineffective for failing to pursue a pretrial motion to quash his arrest and suppress evidence; (2) the State’s evidence is insufficient to sustain the conviction for possession with intent to deliver; and (3) the mandatory sentencing scheme set forth in section 5 — 5—3(c)(8) of the Corrections Code is invalid pursuant to the recent United States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Because we agree with defendant’s ineffective assistance claim, we reverse and remand for further proceedings.

The benchmark inquiry in addressing a claim of ineffective assistance of counsel is “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692-93, 104 S. Ct. 2052, 2064 (1984). A defendant claiming ineffective assistance of counsel must typically show that (1) counsel made errors so serious, and his performance was so deficient, that he was not functioning as the “counsel” guaranteed by the sixth amendment of the federal constitution, and (2) these deficiencies so prejudiced the defendant as to deprive him of a fair trial. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.

Under the first prong of the Strickland inquiry, the defendant must demonstrate that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Here, deference is paid to counsel’s challenged action and the court, without engaging in hindsight, must presume that counsel’s performance fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065. Indeed, it is incumbent upon the defendant to overcome the strong presumption that the challenged action of counsel was the product of sound trial strategy and not the result of incompetence. People v. Harris, 129 Ill. 2d 123, 156, 544 N.E.2d 357, 371 (1989).

In addition to establishing that counsel’s conduct fell below an objective standard of reasonableness, the defendant must show he was prejudiced by counsel’s deficient performance. Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Proof of prejudice requires an affirmative showing of a “reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

In the present case, defendant maintains his attorney’s failure to pursue a motion to quash arrest and suppress the cocaine recovered by the officers amounted to ineffective assistance of counsel. The law is well settled that the decision whether to file a motion to quash arrest and suppress evidence does not represent per se incompetence. People v. Rodriguez, 312 Ill. App. 3d 920, 925, 728 N.E.2d 695, 702 (2000); People v. Robinson, 299 Ill. App. 3d 426, 433, 701 N.E. 2d 231, 238 (1998). The decision is traditionally viewed as one of trial strategy, and counsel benefits from a strong presumption that his failure to challenge the validity of the accused’s arrest or to seek the exclusion of certain evidence was proper. Rodriguez, 312 Ill. App. 3d at 925, 728 N.E.2d at 702; Robinson, 299 Ill. App. 3d at 433, 701 N.E.2d at 238. To overcome these presumptions and prevail on a claim of ineffectiveness based on counsel’s failure to file a motion to quash and suppress, the defendant must show, first, a reasonable probability that the motion would have been granted and, second, that the outcome of the trial would have been different if the motion had been granted. Rodriguez, 312 Ill. App. 3d at 925, 728 N.E.2d at 702; Robinson, 299 Ill. App. 3d at 435, 701 N.E.2d at 238.

The evidentiary record establishes that at about 12:45 a.m. on April 15, 1999, Stanley Snarskis, then a police officer with the Chicago police department, and his partner, John Chibe, were conducting narcotics surveillance in the area of 742 South California Avenue in Chicago. At that time, Snarskis noticed defendant standing approximately 60 feet away, near the street. Snarskis stated he observed, on separate occasions, two unidentified persons approach defendant and give defendant money. Each time, defendant accepted the money, placed it in one of his pants pockets, and retrieved an “object” from another pocket. Defendant gave the “object” to the unidentified person from whom he received the money and the person then walked away. Based on his vast experience conducting narcotic surveillance, Snarskis suspected that defendant had been involved in two narcotic transactions. Notably, Snarskis neither identified nor described the “object” that was handed by defendant to either of the unknown persons.

Following his observation of the second incident, Snarskis radioed Chibe, who was nearby in a police vehicle. Chibe picked up Snarskis and they approached defendant. Snarskis detained defendant while Chibe searched defendant’s pockets and recovered six separate small bags containing 1.5 grams of cocaine. Defendant was ultimately arrested and transported to the police station.

As defendant asserts, the record clearly reveals that defendant’s warrantless arrest preceeded the officers’ search of his person. The fourth amendment of our federal constitution protects individuals from unreasonable searches and seizures. U.S. Const, amend. IV A search incident to an arrest is one intrusion that has been deemed reasonable under the fourth amendment. People v. Kolichman, 218 Ill. App. 3d 132, 139, 578 N.E.2d 569, 574 (1991), citing Chimel v. California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969). While [i]t is axiomatic that an incident search may not precede an arrest and serve as part of its justification” (Sibron v. New York, 392 U.S. 40, 63, 20 L. Ed. 2d 917, 934-35, 88 S. Ct.

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People v. Little, 750 N.E.2d 745, 322 Ill. App. 3d 607, 255 Ill. Dec. 828, 2001 Ill. App. LEXIS 357 (Ill. Ct. App. 2001).

750 N.E.2d 745 (People v. Little) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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