People v. Millsap

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[]

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 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

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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

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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

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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."

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 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

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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

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 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

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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

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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

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 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).

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 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.

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 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

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 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,

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 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,

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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

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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

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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

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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

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 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

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 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,

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 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

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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,

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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

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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

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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.

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