2019 IL App (3d) 170153
Opinion filed September 9, 2019 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 14th Judicial Circuit, ) Whiteside County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-17-0153 v. ) Circuit No. 07-CF-188 ) JAMES R. TODD, ) ) Honorable Trish A. Joyce, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
PRESIDING JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices Carter and Lytton concurred in the judgment and opinion.
OPINION
¶1 Defendant, James R. Todd, appeals from the Whiteside County circuit court’s summary
dismissal of his pro se postconviction petition. Defendant argues that the court erred in
dismissing his petition because it presented an arguable claim of ineffective assistance of
appellate counsel. We affirm.
¶2 I. BACKGROUND
¶3 On February 25, 2008, defendant entered an open guilty plea to one count of unlawful
delivery of a controlled substance (720 ILCS 570/401(a)(2)(A) (West 2006)). The factual basis for the plea reported that an undercover officer purchased an ounce of cocaine from defendant
for $1000. The court accepted defendant’s guilty plea and released defendant on bond.
¶4 Before the sentencing hearing, the State prepared a presentence investigation report
(PSI). The criminal history section of the PSI stated that defendant had five prior felony
convictions.
¶5 On May 27, 2010, defendant appeared with counsel for the sentencing hearing. Before
the court pronounced defendant’s sentence, the court found, in aggravation, that (1) defendant
had a significant history of criminal activity and (2) a prison sentence was necessary to deter
others from committing the same crime. The court further said:
“The other factor that I simply can’t ignore is the, is the, frankly
the significant amount of cocaine that was sold here, and I’m not going to
ignore it. That, that tells me that this is something more than just a casual,
a casual deal, and especially in light of the history, and you can read into
that whatever you feel you need to read into it.”
The court sentenced defendant to 25 years’ imprisonment.
¶6 On direct appeal, private attorney Demitrus Evans filed a brief on behalf of defendant.
Counsel raised four issues: (1) defendant received ineffective assistance of trial counsel where
counsel led him to believe that his plea agreement included a 10-year sentencing cap,
(2) defendant’s guilty plea was not knowingly or voluntarily entered, (3) defendant was denied
the benefit of the bargain that he made with the State, and (4) the court violated defendant’s right
to due process when it denied his motion to vacate a directed finding. People v. Todd, 2012 IL
App (3d) 110624-U, ¶ 2. We affirmed defendant’s conviction and sentence. Id. ¶ 26.
-2- ¶7 On December 19, 2016, defendant filed a pro se postconviction petition. The petition
alleged four claims: (1) posttrial counsel provided ineffective assistance, (2) appellate counsel
was ineffective, (3) the court violated defendant’s right to due process, and (4) the court deprived
defendant of his right to due process when it considered the amount of cocaine as an aggravating
factor at sentencing. The court found the claims in defendant’s petition to be frivolous and
patently without merit. The court entered a written order summarily dismissing defendant’s
pro se petition. Defendant appeals.
¶8 II. ANALYSIS
¶9 Defendant argues that the court erroneously dismissed his pro se postconviction petition
because it presented an arguable claim of ineffective assistance of appellate counsel who did not
argue on direct appeal that the court relied on an improper factor—the weight of the cocaine—at
sentencing. We find that the court did not err because its consideration of the weight of the
cocaine was not an improper double enhancement.
¶ 10 To advance from the first to second stage of postconviction proceedings, a petition must
allege a violation of the petitioner’s constitutional rights and that violation must have an arguable
basis in fact or law. People v. Hodges, 234 Ill. 2d 1, 11-12 (2009). Dismissal is appropriate
where the petition alleges a claim that is frivolous or patently without merit. 725 ILCS 5/122-
2.1(a)(2) (West 2016); see also Hodges, 234 Ill. 2d at 11. Any claim raised and decided on direct
appeal is barred by res judicata. People v. Pitsonbarger, 205 Ill. 2d 444, 456 (2002). Claims that
could have been raised, but were not, are considered waived. Id. We review the court’s summary
dismissal de novo. Id.
¶ 11 At the outset, we find that the court properly dismissed defendant’s claims of ineffective
assistance of trial counsel, as well as the two due process claims, as these claims are barred by
-3- res judicata and waiver. See id. However, defendant’s ineffective assistance of appellate counsel
claim is not subject to waiver because he could not raise the issue in his direct appeal. People v.
Flores, 153 Ill. 2d 264, 281-82 (1992).
¶ 12 At the first stage of postconviction proceedings, an ineffective assistance of appellate
counsel claim must make an arguable assertion that (1) counsel’s performance fell below an
objective standard of reasonableness and (2) defendant was prejudiced. Hodges, 234 Ill. 2d at 17.
Defendant’s contention that appellate counsel was ineffective for failing to raise a double
enhancement issue required defendant to allege facts and law to show that counsel’s failure was
objectively unreasonable and counsel’s decision prejudiced defendant. See People v. Easley, 192
Ill. 2d 307, 328-29 (2000). Appellate counsel is not required to brief every conceivable issue and
is not incompetent for refraining from raising an issue that is without merit, unless counsel’s
appraisal of the merits is patently wrong. Id. at 329.
¶ 13 Turning first to defendant’s allegation of deficient performance, defendant alleged that
appellate counsel’s performance was deficient for failing to raise an issue regarding the court’s
comment at sentencing that it could not ignore the “significant amount of cocaine that was sold
here.” Generally, “a factor implicit in the offense for which a defendant has been convicted
cannot be used as an aggravating factor in sentencing for that offense, absent a clear legislative
intent to allow such use of the factor.” People v. Milka, 211 Ill. 2d 150, 184 (2004). “The
prohibition against double enhancements is based on the assumption that, in designating the
appropriate range of punishment for a criminal offense, the legislature necessarily considered the
factors inherent in the offense.” People v. Phelps, 211 Ill. 2d 1, 12 (2004). To determine if the
legislature permitted the court to consider a factor inherent in the offense at sentencing, we look
first to the plain language of the statute. See People v. Guevara, 216 Ill. 2d 533, 545-46 (2005).
-4- ¶ 14 The State charged defendant, under section 401 of the Illinois Controlled Substances Act
(Act), with unlawful delivery of a controlled substance. 720 ILCS 570/401(a)(2)(A) (West
Free access — add to your briefcase to read the full text and ask questions with AI
2019 IL App (3d) 170153
Opinion filed September 9, 2019 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 14th Judicial Circuit, ) Whiteside County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-17-0153 v. ) Circuit No. 07-CF-188 ) JAMES R. TODD, ) ) Honorable Trish A. Joyce, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
PRESIDING JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices Carter and Lytton concurred in the judgment and opinion.
OPINION
¶1 Defendant, James R. Todd, appeals from the Whiteside County circuit court’s summary
dismissal of his pro se postconviction petition. Defendant argues that the court erred in
dismissing his petition because it presented an arguable claim of ineffective assistance of
appellate counsel. We affirm.
¶2 I. BACKGROUND
¶3 On February 25, 2008, defendant entered an open guilty plea to one count of unlawful
delivery of a controlled substance (720 ILCS 570/401(a)(2)(A) (West 2006)). The factual basis for the plea reported that an undercover officer purchased an ounce of cocaine from defendant
for $1000. The court accepted defendant’s guilty plea and released defendant on bond.
¶4 Before the sentencing hearing, the State prepared a presentence investigation report
(PSI). The criminal history section of the PSI stated that defendant had five prior felony
convictions.
¶5 On May 27, 2010, defendant appeared with counsel for the sentencing hearing. Before
the court pronounced defendant’s sentence, the court found, in aggravation, that (1) defendant
had a significant history of criminal activity and (2) a prison sentence was necessary to deter
others from committing the same crime. The court further said:
“The other factor that I simply can’t ignore is the, is the, frankly
the significant amount of cocaine that was sold here, and I’m not going to
ignore it. That, that tells me that this is something more than just a casual,
a casual deal, and especially in light of the history, and you can read into
that whatever you feel you need to read into it.”
The court sentenced defendant to 25 years’ imprisonment.
¶6 On direct appeal, private attorney Demitrus Evans filed a brief on behalf of defendant.
Counsel raised four issues: (1) defendant received ineffective assistance of trial counsel where
counsel led him to believe that his plea agreement included a 10-year sentencing cap,
(2) defendant’s guilty plea was not knowingly or voluntarily entered, (3) defendant was denied
the benefit of the bargain that he made with the State, and (4) the court violated defendant’s right
to due process when it denied his motion to vacate a directed finding. People v. Todd, 2012 IL
App (3d) 110624-U, ¶ 2. We affirmed defendant’s conviction and sentence. Id. ¶ 26.
-2- ¶7 On December 19, 2016, defendant filed a pro se postconviction petition. The petition
alleged four claims: (1) posttrial counsel provided ineffective assistance, (2) appellate counsel
was ineffective, (3) the court violated defendant’s right to due process, and (4) the court deprived
defendant of his right to due process when it considered the amount of cocaine as an aggravating
factor at sentencing. The court found the claims in defendant’s petition to be frivolous and
patently without merit. The court entered a written order summarily dismissing defendant’s
pro se petition. Defendant appeals.
¶8 II. ANALYSIS
¶9 Defendant argues that the court erroneously dismissed his pro se postconviction petition
because it presented an arguable claim of ineffective assistance of appellate counsel who did not
argue on direct appeal that the court relied on an improper factor—the weight of the cocaine—at
sentencing. We find that the court did not err because its consideration of the weight of the
cocaine was not an improper double enhancement.
¶ 10 To advance from the first to second stage of postconviction proceedings, a petition must
allege a violation of the petitioner’s constitutional rights and that violation must have an arguable
basis in fact or law. People v. Hodges, 234 Ill. 2d 1, 11-12 (2009). Dismissal is appropriate
where the petition alleges a claim that is frivolous or patently without merit. 725 ILCS 5/122-
2.1(a)(2) (West 2016); see also Hodges, 234 Ill. 2d at 11. Any claim raised and decided on direct
appeal is barred by res judicata. People v. Pitsonbarger, 205 Ill. 2d 444, 456 (2002). Claims that
could have been raised, but were not, are considered waived. Id. We review the court’s summary
dismissal de novo. Id.
¶ 11 At the outset, we find that the court properly dismissed defendant’s claims of ineffective
assistance of trial counsel, as well as the two due process claims, as these claims are barred by
-3- res judicata and waiver. See id. However, defendant’s ineffective assistance of appellate counsel
claim is not subject to waiver because he could not raise the issue in his direct appeal. People v.
Flores, 153 Ill. 2d 264, 281-82 (1992).
¶ 12 At the first stage of postconviction proceedings, an ineffective assistance of appellate
counsel claim must make an arguable assertion that (1) counsel’s performance fell below an
objective standard of reasonableness and (2) defendant was prejudiced. Hodges, 234 Ill. 2d at 17.
Defendant’s contention that appellate counsel was ineffective for failing to raise a double
enhancement issue required defendant to allege facts and law to show that counsel’s failure was
objectively unreasonable and counsel’s decision prejudiced defendant. See People v. Easley, 192
Ill. 2d 307, 328-29 (2000). Appellate counsel is not required to brief every conceivable issue and
is not incompetent for refraining from raising an issue that is without merit, unless counsel’s
appraisal of the merits is patently wrong. Id. at 329.
¶ 13 Turning first to defendant’s allegation of deficient performance, defendant alleged that
appellate counsel’s performance was deficient for failing to raise an issue regarding the court’s
comment at sentencing that it could not ignore the “significant amount of cocaine that was sold
here.” Generally, “a factor implicit in the offense for which a defendant has been convicted
cannot be used as an aggravating factor in sentencing for that offense, absent a clear legislative
intent to allow such use of the factor.” People v. Milka, 211 Ill. 2d 150, 184 (2004). “The
prohibition against double enhancements is based on the assumption that, in designating the
appropriate range of punishment for a criminal offense, the legislature necessarily considered the
factors inherent in the offense.” People v. Phelps, 211 Ill. 2d 1, 12 (2004). To determine if the
legislature permitted the court to consider a factor inherent in the offense at sentencing, we look
first to the plain language of the statute. See People v. Guevara, 216 Ill. 2d 533, 545-46 (2005).
-4- ¶ 14 The State charged defendant, under section 401 of the Illinois Controlled Substances Act
(Act), with unlawful delivery of a controlled substance. 720 ILCS 570/401(a)(2)(A) (West
2006). Subsection 401(a)(2)(A) criminalizes the offense of possessing with an intent to deliver a
substance containing cocaine. Id. Applicable to this case, the subsection provides a sentence
range of “not less than 6 years and not more than 30 years with respect to 15 grams or more but
less than 100 grams of a substance containing cocaine, or an analog thereof.” Id. Section 100 of
the Act explains:
“It is the intent of the General Assembly [to] *** penalize most heavily
the illicit traffickers or profiteers of controlled substances, who propagate
and perpetuate the abuse of such substances with reckless disregard for its
consumptive consequences upon every element of society ***.
*** To this end, guidelines have been provided, along with a wide
latitude in sentencing discretion, to enable the sentencing court to order
penalties in each case which are appropriate for the purposes of this Act.”
(Emphasis added.) Id. § 100.
The sentencing section of the Act further provides that
“In determining the appropriate sentence for any conviction under this
Act, the sentencing court may consider the following as indicative of the
type of offenses which the legislature deems most damaging to the peace
and welfare of the citizens of Illinois and which warrants the most severe
penalties:
(1) the unlawful delivery of the most highly toxic controlled
substances, as reflected by their inclusion in Schedule I or II of this Act;
-5- (2) offenses involving unusually large quantities of controlled
substances, as measured by their wholesale value at the time of the
offense;
***
(5) offenses involving the large-scale manufacture of controlled
substances;
Nothing in this section shall be construed as limiting in any way
the discretion of the court to impose any sentence authorized by this Act.”
(Emphasis added.) Id. § 411.
Together, the plain language of these sections establishes that the legislature intended for the
courts to have broad discretion to consider the amount of drugs as an aggravating factor at
sentencing. See People v. Garcia, 2018 IL App (4th) 170339, ¶ 40. More specifically, the
sentencing section of the Act expressly allows a circuit court to consider the amount of a drug
when sentencing a defendant. See id.
¶ 15 Applied to this case, defendant possessed with an intent to deliver approximately 28
grams of cocaine. This amount corresponded to a sentence range of 6 to 30 years’ imprisonment.
See 720 ILCS 570/401(a)(2)(A) (West 2006). To select defendant’s sentence from this range, the
Act required the court to consider the amount of cocaine that defendant delivered to the
undercover police officer. While this amount was less than the 100-gram maximum for the
range, it was an appropriate factor for the court to consider in aggravation. Additionally, this was
not the only factor in aggravation, as the PSI established that defendant had several prior
criminal convictions. Notably, defendant also does not challenge the overall length of his
-6- sentence. Therefore, we conclude that the court properly considered the amount of cocaine
during sentencing, and appellate counsel did not have a duty to raise this meritless double
enhancement issue. Accordingly, the court did not err when it summarily dismissed defendant’s
pro se postconviction petition.
¶ 16 III. CONCLUSION
¶ 17 For the foregoing reasons, we affirm the judgment of the circuit court of Whiteside
County.
¶ 18 Affirmed.
-7- No. 3-17-0153
Decision Under Review: Appeal from the Circuit Court of Whiteside County, No. 07-CF- 188; the Hon. Trish A. Joyce, Judge, presiding.
Attorneys James E. Chadd, Peter A. Carusona, Nathaniel A. Nieman, of for State Appellate Defender’s Office, of Ottawa, for appellant. Appellant:
Attorneys Terry A. Costello, State’s Attorney, of Morrison (Patrick Delfino for and Thomas D. Arado, of State’s Attorneys Appellate Appellee: Prosecutor’s Office, of counsel), for the People.
-8-