NO. 4-05-1053 Filed 7/19/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Livingston County AMORY L. MILLSAP, ) No. 05CF190 Defendant-Appellant. ) ) Honorable ) Harold J. Frobish, ) Judge Presiding. _________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
In November 2005, a jury convicted defendant, Amory L.
Millsap, of two counts of criminal drug conspiracy (720 ILCS
570/405.1(a) West 2004)), one count of unlawful delivery of a
controlled substance (720 ILCS 570/401(d)(i) (West 2004)), and
one count of unlawful possession of a controlled substance (720
ILCS 570/402(c) (West 2004)). The trial court entered
convictions on one count of criminal drug conspiracy and on the
unlawful delivery of a controlled substance (counts I and III).
The court sentenced defendant to concurrent 10-year prison terms.
On appeal, defendant argues (1) defense counsel was ineffective
for failing to file a motion to suppress defendant's statements
to police; (2) the court abused its discretion by requiring
defendant to wear leg shackles during trial; and (3) his
criminal-drug-conspiracy conviction must be vacated because it is
the inchoate offense of unlawful delivery of a controlled substance. We affirm in part, vacate in part, and remand with
directions.
I. BACKGROUND
On August 2, 2005, the State charged defendant with two
counts of criminal drug conspiracy, one count of unlawful
delivery of a controlled substance, and one count of unlawful
possession of a controlled substance. On November 16, 2005, a
jury trial was conducted. Prior to jury selection, defense
counsel asked the court about the removal of defendant's
handcuffs. The court noted defendant was in the custody of the
county jail and was informed by the prosecutor that defendant was
returned to the county's custody after serving his time in prison
for a parole violation. The court went on to say:
"THE COURT: Let me raise this as a
suggestion, and I can get the comments of
counsel. I would be inclined since Mr.
Millsap is in custody, to release both of his
hands from handcuffs. ***
***
THE COURT: And then shackle his ankles
to the eyebolt in the floor. The jury ***
won't know that his ankle is secured. He
will have freedom of his hands. The
alternative is to place security officer[]
- 2 - deputies very close to [defendant]. This is
a very old courthouse, very inadequate
physical accommodation. I believe this would
be the best way to go.
Any objection to that Mr. Ahlemeyer?
MR. AHLEMEYER: Well, I personally am not
too worried about him being restrained at
all. I have known Amory since he was 13
years old. I don't think he is much of a
threat to do anything."
The court inquired into defendant's prison record,
learning defendant served half of a 5-year sentence and 11 months
on a 3-year sentence. The court observed defendant was eligible
for a 14-year sentence on the current charges. Upon the court's
inquiry, defendant advised the court he was approximately 5 feet
11 inches tall and weighed 290 to 295 pounds. The court then
expressed its belief defendant would not be prejudiced by
shackling his legs to an eyebolt in the floor because his hands
would be free and the table was skirted. The court asked defense
counsel for his opinion, and counsel objected to the shackling.
The court responded:
"THE COURT: [Defendant] is in custody.
I am not in the position to say because we
are having a trial, his custodial status is
- 3 - terminated. The alternative is to bring in
at least two officers and seat them right
behind [defendant], who is, as he says, 5'
11" and 290 pounds. Would you rather have
two officers seated behind him?
MR. AHLEMEYER: Well, Your Honor, I have
given you my opinion, and I don't think he is
a risk to do anything. I would leave it to
the [c]ourt to do what the [c]ourt wants to
do. You are not going to get me in a
situation where I pick one of--one of two
alternative, neither of which I want.
THE COURT: It is the position of the
defense that [defendant] should then be
placed in a noncustodial status during the
trial? Is that the position of the defense?
MR. AHLEMEYER: Well, frankly, I think
that my understanding of the defendants we
have had in this courtroom that are in the
custody of Livingston County, which he is,
are, I guess, guarded by our security
officer. *** I don't know why [defendant]
should be treated any different. He has been
to prison twice. They have both been for
- 4 - nonviolent crimes.
THE COURT: Well, they are turned over to
our security officers. Juries are not here.
And they are shackled. Their legs and hands
usually are shackled. That is why they are
not a risk.
MR. AHLEMEYER: I meant during trials.
During trials you know, I just am telling the
[c]ourt my opinion is *** he's not a security
problem. My wish is that he is unencumbered
altogether. ***
* * *
THE COURT: Well, I am dealing with an
Appellate Court in the Third District at
least, and sometimes we hear some language of
that in the Fourth District, that are very
uninformed, inexperienced[,] and possess very
poor judgment on what is a proper step to
take in courtroom security.
Now, I answer to the Fourth District
Appellate Court. They are absolutely dead
wrong. They mean well, but they are making
some decisions that are unwarranted, that are
dangerous, and uncalled for. They basically
- 5 - take the position that when someone enters
the courtroom, even though he is in custody,
unless he has spit in somebody's face or hit
them along the side of the head recently, put
them in a noncustodial status. That is
idiotic.
THE COURT: All right. The decision of
the court is that [defendant's] hands should
be released and that he will be secured to
the eyebolt in the floor. The Appellate
Court is advised that the jury can't see
that. That it is absurd to take any other
action. Even the [United States] Supreme
Court does not require that defendants in
custody be placed in a noncustodial status.
To do otherwise is going to require that I
bring in, certainly, two guards to sit right
behind [defendant] so that he remains in
custody. That would prejudice him, I fear.
This arrangement that I have chosen does not.
To those members of the Appellate Court that
disagree with me, I simply say to them that
they are wrong."
- 6 - The State then called John Cox, a corporal with the
City of Pontiac police department, who testified on July 22,
2005, he received a tip from a caller who identified herself as
Stephanie. Cox testified the woman described the automobile and
identified the subjects in the car, the subjects' place of origin
and destination, and the subjects' purpose.
Acting on the information, Cox gathered officers to
look for the car. Shortly after receiving the tip, Officer Robin
Bohm located the vehicle, a dark blue Chevy Impala with license
plates reading BDYSHP4, and informed Cox the vehicle was in route
to Pontiac. Bohm eventually lost sight of the vehicle. Officer
Mike Nolan later located the vehicle leaving Pontiac and followed
it. Cox caught up with the vehicle and stopped it a few miles
outside town. As Cox approached the car, he observed Tiffany
Krueger driving, Jose Speedon sitting in the front passenger
seat, and defendant sitting in the backseat, all consistent with
the tipster's description.
Cox requested Krueger exit the vehicle and asked her
who had the heroin she had just purchased in Pontiac. Cox then
removed Jose Speedon from the car and noticed an open syringe on
the floorboard. The floorboard and the bottom of Speedon's jeans
were soaking wet with water The officers patted down Speedon
and placed him in the rear seat of Cox's car. Defendant exited
the vehicle and waited with a Livingston County deputy while Cox
- 7 - searched the car. Cox found two syringes and a silver tablespoon
with a burnt edge on the end in the front passenger area and a
clear plastic corner from a Baggie with white residue in the
center console.
Cox testified defendant stated he took Speedon to
Pontiac and introduced him to Carlos Mims so Speedon could
purchase heroin. Defendant stated Speedon bought a $30 gram bag
of heroin from Mims. Cox did not arrest defendant that night
because defendant agreed to assist police that evening in
purchasing more narcotics from Mims with an undercover agent.
During Cox's testimony, the prosecutor requested a
sidebar during which the following colloquy occurred:
"MR. LUCKMAN [(prosecutor)]: [Defendant]
is putting on quite a show.
MR. AHLEMEYER: I already told him that.
MR. LUCKMAN: With witnesses. I know Mr.
Ahlemeyer is talking to him and I hope the
[c]ourt won't have to, but if it continues, I
am going to ask the [c]ourt to do it. He is
doing all kinds of things over there.
THE COURT: All right. Thank you."
Following Cox's testimony the trial court recessed.
Outside the presence of the jury, the court stated:
"THE COURT: For purposes of the record
- 8 - and the whole issue of the security in the
courtroom, the record should reflect that I
believe Mr. Ahlemeyer admonished his client
to stop gyrating around in his chair while
testimony is being given. Mr. Luckman
objected to it. I simply note this for the
record because the conduct of the defendant
was not appropriate. And these are the kinds
of things that happen in trials when people
are in custody. Appellate Justices don't
understand that because some of them haven't
been trial judges. But we have to take into
consideration those kinds of things that
happen. I did so. And that is further
reason to justify the shackling I have done
in this case."
Next, Jose Speedon testified on the night of the
offense he was at his house when defendant showed up to see if
Speedon wanted heroin. Speedon indicated he might want some, so
defendant used Speedon's cellular phone to arrange for Speedon to
purchase heroin from defendant's friend Mims.
Once Krueger came to the house, she drove them to
Pontiac. Speedon testified defendant directed them to Meadowview
Apartments, where defendant's friend Mims came out of an
- 9 - apartment and defendant introduced them. Mims got in the car and
directed them to another location. Mims then got out of the car
and went into a house. Mims returned to the car and got in.
Speedon gave Mims $50 and Mims gave Speedon a half gram of heroin
in a small corner Baggie. Speedon had never talked to Mims
before defendant introduced them at Meadowview.
Speedon testified Mims then gave defendant some crack
cocaine. Speedon understood that when defendant provided Mims
with someone to buy heroin, defendant was given crack in
exchange. They then dropped Mims off and started driving back to
Fairbury. As the drove, Speedon "cooked" some of the heroin and
injected it.
Defendant testified Speedon came to defendant's house
and told defendant he was "dope sick." Speedon told defendant he
had talked to Mims on the phone and arranged to buy heroin from
Mims at Meadowview Court in Pontiac. Speedon was not sure how to
get to Meadowview and asked defendant to show him where it was.
Defendant agreed, and directed Krueger to Meadowview Court.
When they arrived, Mims got in the backseat of the car
and Speedon gave Mims $50. Krueger drove across town, where Mims
went into a house and returned with heroin, which he gave to
Speedon. Defendant denied getting anything from Mims that night.
After they dropped Mims off, they stopped at a gas
station, where Krueger bought a bottle of water. While driving
- 10 - back to Fairbury, Speedon cooked and injected some heroin.
Krueger initially asked Speedon to make some for her but shortly
thereafter the police pulled the vehicle over. Speedon threw the
remaining packets on the floor, poured water over them, and
stomped the drugs into the carpet. Speedon also flushed the
needle out with water. Defendant denied telling Cox he had taken
Speedon to Pontiac to buy drugs from Mims or that he introduced
Speedon to Mims. The jury found defendant guilty on all four
counts.
On December 21, 2005, the trial court conducted a
sentencing hearing and entered convictions on one count of
criminal drug conspiracy and on the unlawful-delivery-of-a-
controlled-substance charge. The court noted defendant had a
significant criminal history, with more than a 20-year history of
drug use and criminal activity. The court also noted defendant's
prior sentences included sentences of probation, jail terms, and
prison sentences. The court characterized defendant as a career
criminal whose conduct demonstrated that drugs are more important
to him than his family. The court sentenced defendant to
concurrent 10-year prison terms on the 2 counts. The court
stated the sentence was "justly earned by you by your conduct."
This appeal followed.
II. ANALYSIS
A. Ineffective Assistance of Counsel
- 11 - Defendant argues his trial counsel was ineffective for
failing to file a motion to suppress his statements to police
because the police's seizure and questioning of him was not
justified by the anonymous tip and the police's limited
corroboration of the tip. Defendant contends the substance of
the tip failed to adequately establish the informant's veracity
or her basis of knowledge, and the police's corroboration of only
the occupants' identities and their seating arrangement was
insufficient independent verification of the tipster's
allegations. Defendant argues the stop was not justified by
specific articulable facts that would lead a reasonable person to
believe defendant was committing a crime, so the detention was
illegal and defendant's later statements to police would have
been suppressed. The State argues the record lacks sufficient
evidence to allow meaningful consideration of defendant's
ineffective-assistance-of-counsel claim. We agree with the State
and decline to adjudicate this issue because it is more
appropriately addressed in a motion for postconviction relief.
To prevail on a claim of ineffective assistance of
counsel, a defendant must prove (1) counsel's assistance was
deficient under prevailing professional norms and (2) the
deficiency prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064
(1984).
- 12 - In this case, it is not clear the record contains all
the evidence that could have been presented in regard to the
seizure. The circumstances leading up to the stop of the vehicle
were only briefly described at the preliminary hearing and trial.
Notably, the prosecutor specifically asked Cox at trial to
describe the tip "without going into a bunch of detail" and
indicated he wanted Cox "to stay away from a great deal of
detail." The record is insufficient to determine whether the
State could have presented additional evidence supporting a legal
stop of the vehicle.
As such, the record is devoid of the facts necessary to
make a determination on whether trial counsel was ineffective for
failing to challenge the stop and, if so, whether defendant was
prejudiced by the deficiency. When, as here, the defendant’s
ineffective-assistance-of-counsel claims require consideration of
matters outside the record on direct appeal, a proceeding for
postconviction relief is better suited for addressing defendant’s
claims because a complete record can be made and the attorney-
client privilege no longer applies. See People v. Kunze, 193
Ill. App. 3d 708, 725-26, 550 N.E.2d 284, 296 (1990); People v.
Neylon, 327 Ill. App. 3d 300, 312, 762 N.E.2d 1127, 1138 (2002).
We therefore decline to adjudicate defendant’s ineffective-
assistance-of-counsel claims in this direct appeal.
- 13 - B. Shackling
Defendant argues the trial court abused its discretion
by requiring him to wear leg shackles during trial as part of
routine court security, without holding a proper hearing on
whether defendant posed a security risk. The State argues the
court conducted a hearing and correctly concluded it was
necessary to shackle one of defendant's ankles to an eyebolt in
the floor.
1. Defendant's Claim as Plain Error
Defense counsel objected to the restraints prior to
trial but did not include the issue in a posttrial motion. To
preserve an error for appellate review, defendant must object at
trial and include the issue in a posttrial motion. People v.
Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988). By
failing to include the issue in a posttrial motion, defendant has
forfeited this issue for review.
Defendant asserts we can review the issue as plain
error. Under the plain-error doctrine, a reviewing court can
review forfeited errors when (1) the evidence is so closely
balanced the verdict may have resulted from the error and not the
evidence or (2) the error is so serious it denied defendant a
substantial right and a fair trial. People v. Herron, 215 Ill.
2d 167, 178-79, 830 N.E.2d 467, 475 (2005).
a. Defendant's Claim on the Merits
- 14 - Initially, we will consider whether error occurred at
all. People v. Urdiales, No. 98996, slip op. at 47 (February 16,
2007), __ Ill. 2d ___, ___, ___, N.E.2d ___, ___.
Defendant argues the record fails to demonstrate an
exceptional need to justify the use of restraints. Counsel
personally vouched for defendant's passive character and the
record provided no indication defendant had ever been disruptive
in court, tried to escape, been violent or self-destructive, or
put court security at risk. The State argues the court properly
made a particularized determination to the defendant based on
factors such as the seriousness of the charge, defendant's
physical attributes, defendant's past record, the nature and
physical security of the courtroom, and the adequacy and
availability of alternative remedies.
b. Restraints Generally
Shackling a defendant is disfavored because
"(1) it tends to prejudice the jury
against the accused; (2) it restricts the
defendant's ability to assist counsel during
trial; and (3) it offends the dignity of the
judicial process. Nonetheless, *** a
defendant may be shackled if there is an
indication he may try to escape, pose a
threat to the safety of courtroom occupants,
- 15 - or disrupt the order of the courtroom."
Urdiales, slip op. at 48, __ Ill. 2d at ___,
___, N.E.2d at ___.
The factors the trial court should consider in deciding
whether restraint is necessary include (1) the seriousness of the
current charge; (2) defendant's temperament and character; (3)
defendant's age and physical attributes; (4) defendant's prior
record; (5) evidence of a present plan to escape and any past
escapes or attempted escapes; (6) threats to cause a disturbance
or harm to others; (7) self-destructive tendencies; (8) the risk
of mob violence or of revenge by others; (9) the possibility of
an attempted rescue by other offenders; (10) the size and mood of
the audience; (11) the security of the courtroom; and (12) the
adequacy of alternative remedies. People v. Boose, 66 Ill. 2d
261, 266-67, 362 N.E.2d 303, 305-06 (1977).
The trial court must, outside the presence of the jury,
state for the record its reasons for shackling the defendant and
give defense counsel an opportunity to present reasons why the
defendant should not be shackled. Boose, 66 Ill. 2d at 266, 362
N.E.2d at 305. A defendant should not be restrained in front of
the fact finder without a showing of a manifest need for the
restraints. Boose, 66 Ill. 2d at 265-66, 362 N.E.2d at 305. The
trial court is to "select the physical restraints most suitable
in light of all the circumstances." Boose, 66 Ill. 2d at 266,
- 16 - 362 N.E.2d at 305. The Boose court held, "'the trial judge must
make the decision to use physical restraints on a case-by-case
basis. The court cannot adopt a general policy of imposing such
restraints upon prison inmates charged with new offenses unless
there is a showing of necessity on the record.'" (Emphasis
added.) Boose, 66 Ill. 2d at 268, 362 N.E.2d at 306, quoting
People v. Duran, 16 Cal. 3d 282, 293, 545 P.2d 1322, 1329, 127
Cal. Rptr. 618, 625 (1976).
c. Standard of Review
While a single reason has generally been held
insufficient to justify shackling, courts have found no abuse of
discretion when the trial court expresses more than a single
reason for shackling a defendant. Urdiales, slip op. at 48-49,
__ Ill. 2d at ___, ___, N.E.2d at ___. On appeal, we review the
trial court's determination shackling was necessary for an abuse
of discretion. Urdiales, slip op. at 48, __ Ill. 2d at ___, ___,
N.E.2d at ___.
d. Facts Here
Prior to jury selection, defense counsel asked the
trial court to remove defendant's handcuffs. At that time, the
prosecutor informed the court defendant was in the county's
custody after serving his time in prison for a parole violation.
The court stated it was inclined to release defendant's hands but
to shackle his ankle to the eyebolt in the floor. The court
- 17 - stated the jury would not know defendant's ankle was shackled.
The court observed the courthouse provided "inadequate physical
accommodation" and stated the alternative to shackling defendant
was to place security officers close to him. The court stated it
believed shackling defendant was the best alternative and asked
if defense counsel objected.
Defense counsel objected, telling the trial court he
had known defendant for many years and did not think defendant
posed a threat or needed to be restrained at all. The court then
inquired into defendant's prison record, learning defendant
served half of a 5-year prison sentence and 11 months on a 3-year
prison sentence. The court also noted defendant was eligible for
a 14-year sentence on the current charges. Upon the court's
inquiry, defendant advised the court he was approximately 5 feet
11 inches tall and weighed 290 to 295 pounds.
The trial court reiterated its belief that defendant
would not be prejudiced by shackling his legs to the floor
because his hands would be free and the table was skirted. The
court again asked defense counsel for his opinion and counsel
objected to the shackling and emphasized that defendant's prison
sentences were for nonviolent crimes. The court ultimately
decided to release defendant's hands but to secure defendant's
legs to the eyebolt in the floor. The court found the shackling
was not visible to the jury and would not prejudice him while
- 18 - bringing in two guards to sit behind defendant could prejudice
him.
In addition, the trial court later expressed concern
over defendant's behavior during the course of the trial.
Outside the presence of the jury, the court stated for the record
defendant was admonished by his counsel to "stop gyrating around
in his chair while testimony is being given." The court stated
it found defendant's conduct inappropriate and further
justification for the shackling.
e. Principles Applied
The record shows that prior to the trial court making
its final determination, the court conducted a Boose analysis and
found numerous factors supported shackling the defendant,
including (1) the seriousness of the current charge, (2)
defendant's physical attributes, (3) defendant's prison record;
(4) the security of the courtroom, and (5) the adequacy of
alternative remedies. See Boose, 66 Ill. 2d at 266-67, 362
N.E.2d at 305-06. The court also gave defense counsel an
opportunity to object and state his reasons why defendant should
not be shackled. The restraints were not visible the jury and
defendant makes no allegation the restraints impaired his ability
to communicate with counsel or assist in his defense. We find
the trial court set forth sufficient reasons on the record to
- 19 - justify the use of physical restraints.
Although we find the trial court made a sufficient
particularized finding that the circumstances supported shackling
defendant, we are mindful of defendant's contention the court
shackled defendant as a matter of routine court procedure because
he was "in custody." However, "[w]e ordinarily presume that the
trial judge knows and follows the law unless the record indicates
otherwise." People v. Gaultney, 174 Ill. 2d 410, 420, 675 N.E.2d
102, 107 (1996). In this case, the court seemingly conducted a
proper Boose analysis, setting forth numerous reasons justifying
the shackling. We note defendant's failure to raise the
shackling issue in a posttrial motion denied the court the
opportunity to address the allegation it shackled defendant as
part of routine court security. We conclude no error occurred;
moreover, neither did any error rise to the level of plain error.
2. An Epilogue on The Trial Judge's Remarks
The trial court also spent considerable time and energy
condemning this court for its decisions on the issue of shackling
defendants. The Illinois Supreme Court recently admonished the
same trial judge for similar conduct, stating:
"We do not, however, mean to encourage
the kind of rambling, amorphous diatribe in
which the trial court engaged. While
restrained and reasoned disagreement with the
- 20 - rulings of a superior court is not to be
discouraged, and may well be constructive in
a proper setting, as our appellate court has
observed, dignity is necessary for judicial
proceedings. [Citation.] *** [A] trial judge
should be the exemplar of dignity, he should
exercise restraint over his conduct and
utterances, and should control his emotions.
[Citation.] We trust that the judge in this
case will, in the future, circumscribe his
conduct and comments so as to reflect the
dignity of his office, in particular, and
that of the judicial system, of which he is
but one part." Urdiales, slip op. at 52, ___
Ill. 2d at ___, ___ N.E.2d at ___.
In addition, we are compelled to observe that the
Illinois Supreme Court has held a general policy of shackling
defendants is not appropriate, even for those defendants who are
in custody. In Boose, the supreme court stated as follows:
"'[T]he trial judge must make the decision to
use physical restraints on a case-by-case
basis. The court cannot adopt a general
policy of imposing such restraints upon
prison inmates charged with new offenses
- 21 - unless there is a showing of necessity on the
record.'" (Emphasis added.) Boose, 66 Ill.
2d at 268, 362 N.E.2d at 306, quoting Duran,
16 Cal. 3d at 293, 545 P.2d at 1329, 127 Cal.
Rptr. at 625.
Illinois Supreme Court precedent also indicates this
standard applies in situations where the defendant has little or
no risk of being prejudiced by a jury's knowledge of the
shackles. In In re Staley, 67 Ill. 2d 33, 35-36, 364 N.E.2d 72,
72-73 (1977), the defendant appealed after being required to
appear at an adjudicatory hearing in handcuffs. The Staley court
stated as follows:
"The possibility of prejudicing a jury *** is
not the only reason why courts should not
allow the shackling of an accused in the
absence of a strong necessity for doing so.
The presumption of innocence is central to
our administration of criminal justice. In
the absence of exceptional circumstances, an
accused has the right to stand trial 'with
the appearance, dignity, and self-respect of
a free and innocent man.'" (Emphasis added.)
Staley, 67 Ill. 2d at 37, 364 N.E.2d at 73,
quoting Eaddy v. People, 115 Colo. 488, 492,
- 22 - 174 P.2d 717, 719 (1946).
The Staley court held requiring a defendant to be restrained
while being judged without clear cause jeopardizes the
presumption's value and protection and demeans justice. Staley,
67 Ill. 2d at 37, 364 N.E.2d at 73. In People v. Allen, 222 Ill.
2d 340, 346-47, 856 N.E.2d 349, 352-53 (2006), the Illinois
Supreme Court applied Boose to a case involving an electronic
stun belt that was not necessarily visible to the jury. The
court found the trial court's failure to follow the Boose
procedures before requiring a defendant to continue wearing the
electronic stun belt constituted a due-process violation. Allen,
222 Ill. 2d at 349, 856 N.E.2d at 356. The Allen court
specifically stated that the county sheriff's policy requiring
all custodial felony defendants to wear stun belts was frowned
upon in Boose. Allen, 222 Ill. 2d at 349, 856 N.E.2d at 354.
While the trial court's assertion the United States
Supreme Court "does not require that defendants in custody be
placed in a noncustodial status" is debatable, we note that
Illinois Supreme Court decisions are binding on all Illinois
courts, including on questions of federal law in the absence of
conflicting United States Supreme Court precedent answering the
precise legal issue. Bowman v. American River Transportation
Co., 217 Ill. 2d 75, 91-92, 838 N.E.2d 949, 958 (2005);
Mekertichian v. Mercedes-Benz U.S.A., L.L.C., 347 Ill. App. 3d
- 23 - 828, 836, 807 N.E.2d 1165, 1171 (2004). Also, Illinois courts
have the authority to interpret provisions of the Illinois
constitution, such as the due-process clause (Ill. Const. 1970,
art. I, §2), more broadly than United States Supreme Court
interpretations of similar provision of the federal constitution.
See People v. McCauley, 163 Ill. 2d 414, 426, 645 N.E.2d 923, 930
(1994).
The trial in this case occurred before the Urdiales
decision. We presume the admonition in that case will prompt the
trial judge to temper his comments. We choose, however, to make
our own. The trial judge's criticism of the Appellate Court of
the Third and Fourth Districts consisted of deriding the
cumulative experience, judgment, and insight of the members of
those courts using words such as "idiotic" and "absurd."
Disagreement can be healthy, but such language is unseemly and
disrespectful. The members of those courts will easily cope with
the trial judge's comments without a loss of self-esteem. But
what of the public, and court personnel, and defendants and
lawyers who appear in court? They may come to believe the system
is flawed because the judge before whom they appear berates and
ignores the decisions of higher courts, or they may believe those
higher courts do not deserve respect.
Previous decisions that have questioned shackling
procedures have focused on whether a hearing has been conducted,
- 24 - what factors were considered and whether the record demonstrates
a need for restraints. The trial judge is apparently unable to
grasp that restraints are disfavored. Thus, if restraints are
used, it must be shown they were justified on a case-by-case
basis.
In this case the trial judge's comments grudgingly
delineate appropriate reasons for shackling while showing pique
at being required to follow the guidelines established in Boose,
66 Ill. 2d at 266-67, 362 N.E.2d at 305-06. No member of the
judiciary takes security lightly, but both dignity and safety can
be preserved by following the law.
The trial judge need not concern himself with our
tender sensibilities. We can withstand his displeasure.
However, he does both a disservice and damage to the
administration of justice by condemning the system "of which he
is but one part." Urdiales, slip op at 52, ___ Ill. 2d at ___,
___ N.E.2d at ___.
C. Inchoate Offense
Defendant also contends the trial court improperly
entered convictions on and sentenced him for both an inchoate and
substantive offense. Defendant argues his criminal-drug-
conspiracy conviction should be vacated and the cause should be
remanded for resentencing on the unlawful-delivery conviction.
The State concedes the criminal-drug-conspiracy conviction should
- 25 - be vacated but argues the cause need not be remanded for
resentencing. We agree with the State.
Although defendant forfeited the issue, the State
concedes we may review the issue as plain error under Supreme
Court Rule 615(a) (134 Ill. 2d R. 615(a)). Because a defendant
shall not be convicted of both the inchoate offense and the
substantive offense, we vacate defendant's conviction for
criminal drug conspiracy. See 720 ILCS 5/8-5 (West 2004) ("[n]o
person shall be convicted of both the inchoate and the principal
offense"); People v. Sonntag, 238 Ill. App. 3d 854, 856-57, 605
N.E.2d 1064, 1065-66 (1992).
"Where a defendant is convicted of multiple
offenses, reversal of one conviction does not
per se require that the defendant be
resentenced on the remaining conviction or
convictions, as long as the record shows that
the trial court considered the offenses
separately and sentenced the defendant
separately on each offense." People v.
Hagan, 199 Ill. App. 3d 267, 290-91, 556
N.E.2d 1224, 1240 (1990).
In sentencing the defendant, the trial court noted
defendant had a significant criminal history going back more than
20 years and had numerous prior sentences of probation, jail, and
- 26 - prison. The court characterized defendant as a career criminal
whose conduct had "justly earned" the concurrent 10-year
sentences. Although the court did not delineate between the
conspiracy and the delivery charges, the record shows the court
sentenced defendant separately on each offense. In this case,
defendant's 10-year sentence for unlawful delivery was justified
by the circumstances of the offense and defendant's extensive
criminal history. We therefore vacate defendant's conviction and
sentence for criminal drug conspiracy and remand for issuance of
an amended sentencing judgment.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment in part, vacate in part, and remand with directions.
Affirmed in part and vacated in part; cause remanded
with directions.
APPLETON and McCULLOUGH, JJ., concur.
- 27 -