People v. Stewart

FIRST DIVISION
May 15, 2006

No.1-04-1885

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
) the Circuit Court
Plaintiff-Appellee, ) of Cook County
)
v. ) No. 04 CR 2680
)
PHILLIP STEWART, ) Honorable
) Nicholas Ford,
Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE CAHILL delivered the opinion of the court :

Following a bench trial, defendant Phillip Stewart (also written as Steward) was convicted of

possession with intent to deliver less than one gram of cocaine. See 720 ILCS 570/401(d)

(West 2004). He was sentenced as a Class X offender (730 ILCS 5/5-5-3(c)(8)

(West 2004)) to eight years in prison. He appeals, claiming: (1) he did not receive a fair sentencing

hearing; (2) his right to confront witnesses against him was violated; (3) he received ineffective assistance

of counsel; (4) the trial court did not admonish him as required by Supreme Court Rule 605(a)

(Official Reports Advance Sheet No. 21 (October 17, 2001), R. 605(a), eff. October 1,

2001); and (5) his sentence was excessive. We affirm.

Defendant was indicted for possession of a controlled substance with intent to deliver (720

ILCS 570/401(d) (West 2004)). At trial, Officer Patrick Lee-Palmer testified that on
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December 28, 2003, he received information that narcotics were being sold at 7041 South

Emerald Avenue in Chicago. Palmer and his partners set up surveillance across the street from this

address and saw several persons entering and leaving the property. Palmer wore his Chicago police

department uniform, but a sweatshirt covered his shirt and his star was not visible. Palmer approached the

house and knocked on the front door. Defendant answered. Palmer said he showed defendant money,

showed two fingers and said Agive me two.@ Defendant then withdrew from his right pants pocket a clear

plastic bag that contained a small white rocklike substance. Palmer said that based on Apast experience,@ he

believed the baggie contained narcotics. Palmer testified that he had made 80 narcotics arrests in his

career, conducted 50 narcotics surveillances and purchased narcotics while undercover 7 times. Palmer

grabbed the bag from defendant=s hand, told defendant he was a police officer and arrested him. Palmer

recovered $74 in a custodial search of defendant.

The parties stipulated that forensic chemist Dori Lewis, if called as a witness, would testify that

she tested the contents of the bag that Officer Palmer recovered from defendant and concluded that it

contained .6 grams of cocaine.

Defendant testified that he was at the Emerald Avenue address to install burglar bars on the front

door for Carlos Sanchez, who lived there. Defendant said Sanchez did not have the proper screws to

install the bars so Sanchez went to buy screws while defendant waited inside the house. When Sanchez did

not return, defendant decided to leave. As defendant exited through the front door, the police, who were on

the doorstep, rushed in and grabbed him.

Defendant said the police asked him and the other people in the house where the Ashit@ was located.

Defendant testified that the police told the two women present, Coco and Gwen, that they were going to

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have a policewoman come and search them. Coco then took a bag of drugs from her pocket and these were

the drugs the police found. Defendant said he had no drugs on his person and the officers did not find drugs

on his person when they searched him. Defendant also testified that a sales transaction never occurred.

The trial court found defendant guilty of possession with intent to deliver. The trial court found

Officer Palmer's testimony to be "highly credible." He also said defendant's version of the facts "would

push the notion of a coincidence to its extreme for me to find that at the very moment the defendant went to

leave this address the police were there waiting to enter.@ The trial court ordered a presentence investigation

(PSI) report.

The presentence investigation report is of record. It contains defendant's history of convictions but

it does not include personal background information about defendant, including employment status, education,

marital status, substance use, psychological information, physiological information or gang involvement. A

notation at the end of the report stated that the report could not be completed because defendant was

returned to the penitentiary where he was being held for parole violations and calls to his public defender were

not returned.

At defendant's sentencing hearing, the trial court asked if "both parties have had an opportunity to

review [defendant's] pre-sentence investigation." Defense counsel said, "I have Judge." The judge asked,

"Any amendments, corrections, anything like that?" Defense counsel replied, "Nothing, inasmusch as

[defendant] was in the Illinois Department of Corrections." The record shows the court then read into the

record defendant's criminal history, including his convictions and incarcerations, and determined that Class X

sentencing was mandatory. Defendant=s history included convictions and prison terms for robbery,

aggravated robbery, aggravated battery, possession of a stolen vehicle and controlled substance offenses.

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Defense counsel informed the court: A[defendant] is forty-seven years old. He is single, two children, both

of them grown. He is employed as a rehabber. He got as far as the 11th grade, and he has [lived] his

entire life in Chicago.@

The trial judge said before imposing the sentence: "I have considered my notes from the trial as well

as the pre-sentence investigation, the arguments in aggravation and mitigation, all of the other relevant

aspects of the information that are accepted in the statute relative to *** sentencing." He noted that

defendant was a "five-time convicted felon." The judge imposed an eight-year sentence.

The judge gave defendant these admonishments:

"[E]ven though you have been sentenced here today, you have the right to appeal.

In order to appeal you must within thirty days file a motion asking the Court to reconsider

your sentence to appeal.

If you fail to set forth any grounds in your appeal in writing, they will be waived for

the purpose of the appeal.

That means, if you don=t articulate every aspect of the appeal in writing, it would be

considered waived by the Court. What I would do is appoint the State Appellate

Defender to represent you in this case."

Defendant apparently filed motions for a new trial and to reconsider his sentence. These motions

are not of record and, according to defendant, could not be located at the time this case was briefed. We

are unable to determine the issues raised in these motions because defendant has failed to file a sufficient

record for review. See People v. Smith, 106 Ill. 2d 327, 336, 478 N.E.2d 357

(1985) (it is the defendant's burden to preserve and present a sufficient record on appeal). The record

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does confirm that the trial court denied both motions. Defendant appeals.

Defendant first claims his sentencing hearing was unfair because the trial court sentenced him without

receiving a complete PSI report. The State argues that because defendant failed to object to the contents

of his PSI report at his sentencing hearing, he waived the issue for review.

Sections 5-3-1 and 5-3-2 of the Unified Code of Corrections (Code) require trial courts

to consider a written PSI report before imposing a sentence for a felony. 730 ILCS 5/5-3-1,

5-3-2 (West 2004). The statute provides that in felony cases, the presentence report must contain

Athe defendant=s history of delinquency or criminality, physical and mental history and condition, family

situation and background, economic status, education, occupation and personal habits.@ 730 ILCS

5/5-3-2(a)(1) (West 2004). If the PSI report considered by the court is deficient but the

defendant fails to object, the issue is waived for review. People v. James, 255 Ill. App. 3d 516,

530, 626 N.E.2d 1337 (1993). Accord People v. Meeks, 81 Ill. 2d 524,

533, 411 N.E.2d 9 (1980); People v. Laramore, 163 Ill. App. 3d 783, 793, 516

N.E.2d 401 (1987).

Here, the record shows that defense counsel did not object to the incomplete report, despite the fact

that the trial judge asked specifically for corrections. Defense counsel declined to make additions or comment

on the content of the report. Defense counsel presented orally to the court much of the missing information.

The trial court specifically considered all factors when sentencing defendant. Based on these facts, we

conclude the matter was waived.

Defendant urges us to review his incomplete PSI report as "plain error." The plain error doctrine

allows a reviewing court to consider a waived claim of error when: (1) the evidence was closely balanced; or

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(2) where the error was so fundamental and of such magnitude that the right to a fair trial was denied.

People v. Williams, 193 Ill. 2d 306, 348-49, 739 N.E.2d 455 (2000).

Here, the evidence was not closely balanced. The police officer on whose credibility the trial judge

relied purchased drugs from defendant. Defendant's version of a coincidental meeting with the officer was

not credible. Nor were the missing parts of the PSI report so fundamental that the proceedings were

unfair, particularly in light of the fact that defense counsel presented orally information on defendant's age,

education, employment and family. The trial judge verified that he had considered more than just the PSI

report, including "all of the other relevant aspects of the information that are accepted in the statute relative

to *** sentencing." The trial court did not commit plain error in sentencing defendant despite an incomplete

PSI report.

Defendant=s second claim is that he should receive a new trial because he did not consent to the

waiver of his right to be confronted with the witnesses against him. U.S. Const., amend. VI; Ill.

Const. 1970, art. I, '8. He contends he did not authorize defense counsel=s stipulation to the identity

and weight of the substance that Officer Palmer recovered.

"[T]o sustain a conviction for possession of a controlled substance with intent to deliver, the State

must prove, beyond a reasonable doubt, that (1) defendant had knowledge of the presence of a controlled

substance, (2) the controlled substance was in the immediate control and possession of defendant, and (3)

the amount of the controlled substance exceeded that which could be viewed as merely for personal use."

People v. Harris, 352 Ill. App. 3d 63, 68, 815 N.E.2d 863 (2004). Illinois

courts favor the stipulated testimony of forensic experts on the presence of controlled substances because

stipulations can expedite the disposition of cases, simplify the issues and reduce expenses. People v.

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Woods, 214 Ill. 2d 455, 468, 828 N.E.2d 247 (2005). The question here,

whether defendant's rights were violated when his attorney agreed to a stipulation without defendant's

permission, was addressed by our supreme court in People v. Campbell, 208 Ill. 2d 203, 220-

21, 802 N.E.2d 1205 (2003), and People v. Phillips, 217 Ill. 2d 270, 283, 840

N.E.2d 1194 (2005). A[C]ounsel in a criminal case may waive his client=s sixth amendment right of

confrontation by stipulating to the admission of evidence as long as the defendant does not object to or dissent

from his attorney=s decision, and where the decision to stipulate is a matter of legitimate trial tactics or

prudent trial strategy.@ Campbell, 208 Ill. 2d at 220-21.

The court affirmed and clarified Campbell in Phillips, 217 Ill. 2d at 283. A defendant need

not personally waive the right of confrontation and yield to a stipulation except " 'when the State's entire case

is to be presented by stipulation and the defendant does not present or preserve a defense ***, or where the

stipulation includes a statement that the evidence is sufficient to convict the defendant.' " Phillips, 217 Ill.

2d at 283, quoting Campbell, 208 Ill. 2d at 218. AWe attached no other restrictions to defense

counsel=s authority to stipulate to the admission of evidence, and, except in those specified instances where

the stipulation is tantamount to a guilty plea, we imposed no obligations on the trial court or counsel to

admonish the defendant and ensure that the advisement is made a part of the record.@ Phillips, 217 Ill. 2d

at 283. See People v. Matthews, 362 Ill. App. 3d 953, 960, 842 N.E.2d 150

(2005) (the defendant's possession of narcotics was established through the testimony of witnesses, not

counsel's stipulation); People v. Foerster, 359 Ill. App. 3d 198, 200, 833 N.E.2d

942 (2005) (defense counsel's independent decision to stipulate to a chemist's opinion that a substance

was cocaine did not violate the defendant's constitutional rights because the evidence was not sufficient to

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convict).

Here, defense counsel stipulated only to the forensic chemist's findings, not to the State's entire

case. Nor did the stipulation establish that the forensic evidence was sufficient to convict defendant. It

showed only the presence of a controlled substance, not that defendant had knowledge of its presence or that

he had it in his immediate control and possession. The stipulation established only that Officer Palmer

recovered a bag of cocaine. The State had to prove the remaining elements of the offense with unstipulated

evidence from Palmer. The stipulation here was not tantamount to a guilty plea. The record does not show,

nor does defendant claim, that he objected to or dissented from his attorney's decision to stipulate. We

conclude that defendant=s confrontation rights were not violated by the stipulation.

Defendant next contends that he received ineffective assistance of counsel in violation of the sixth

amendment when his attorney failed to file a motion to quash his arrest, suppress the evidence and suppress

his identification. He argues such a motion would have been successful because he was arrested illegally

without probable cause.

The state and federal constitutions guarantee the right to effective assistance of counsel. U.S.

Const., amends. VI, XIV; Ill. Const. 1970, art. I, '8. The test for ineffective assistance is the

two-prong test established in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674,

104 S. Ct. 2052 (1984). To demonstrate ineffective assistance, a defendant must show: (1) that

counsel's performance was deficient, and (2) the deficient performance prejudiced the defendant to such a

degree that he was denied a fair trial. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693,

104 S. Ct. at 2064. If either prong of the Strickland test cannot be shown, then the defendant has

not established ineffective assistance of counsel. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at

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699, 104 S. Ct. at 2069. An attorney's performance will not be deemed ineffective for failing to

file a futile motion. People v. Martinez, 348 Ill. App. 3d 521, 537, 810 N.E.2d 199

(2004).

Here, defendant claims that it would not have been futile for his attorney to file the motion at issue

because the trial court would have seen he was arrested without probable cause and so granted the motion.

Probable cause exists when facts and circumstances within the arresting officer=s knowledge are sufficient to

warrant a reasonable person=s belief that the person to be arrested has committed an offense. People v.

Tisler, 103 Ill. 2d 226, 236-37, 469 N.E.2d 147 (1984). This analysis is based on

practical and commonsense considerations and requires an examination of the probabilities. Tisler, 103 Ill.

2d at 236.

Here, we conclude that Officer Palmer had probable cause to arrest defendant. A motion to

suppress for lack of probable cause would have been futile. Defense counsel was not ineffective for declining

to file such a motion. Palmer's testimony shows that the following facts and circumstances were within his

knowledge. Narcotics were being sold from the residence at 7041 South Emerald Avenue. Several

people came and went from the residence while Palmer watched. Defendant answered the door when

Palmer knocked. When Palmer signaled defendant that he wanted Atwo@ and showed money, defendant

produced a clear plastic bag that contained what Palmer believed to be narcotics. This belief was based on

his experience of making more than 80 narcotics arrests and about 7 undercover drug purchases. Palmer

then arrested defendant. These facts and circumstances were sufficient to warrant a reasonable person's

belief that defendant had committed a crime. The trial judge found Palmer=s testimony to be dispositive and

highly credible. A motion to suppress evidence for lack of probable cause would have had no reasonable

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chance of success. See People v. Rucker, 346 Ill. App. 3d 873, 885-86, 803

N.E.2d 31 (2003). Defendant was not prejudiced by trial counsel=s failure to file a futile motion and

his constitutional right to counsel was not violated.

Defendant next argues that the trial court failed to comply strictly or substantially with Supreme

Court Rule 605(a) (Official Reports Advance Sheet No. 21 (October 17, 2001), R.

605(a), eff. October 1, 2001) in admonishing him on his right to appeal. Defendant claims he suffered

prejudice and asks for a remand for proper admonishments. The State concedes that the admonishments

were improper but argues that remand is not necessary because defendant was not prejudiced by the error.

See In re J.T., No. 98492, slip op. at 6-7 (April 20, 2006) (admonitions did not strictly

comply with Rule 605(c), but relief was not warranted where the respondent had notice that some action

on his part was necessary if he wished to appeal). We apply a de novo standard of review to

questions concerning the application of supreme court rules. People v. Burdine, 362 Ill. App. 3d 19,

29, 839 N.E.2d 573 (2005).

Illinois Supreme Court Rule 605(a) requires a trial court to admonish a defendant who has been

found guilty and sentenced to imprisonment at the time of imposing sentence. The admonishments must include

specific instructions on how and when to file an appeal of some aspect of sentencing. The rule also requires

the trial court to inform the defendant that the failure to file a motion to reconsider his sentence will result in

waiver of the issues on appeal. Official Reports Advance Sheet No. 21 (October 17, 2001), R.

605(a), eff. October 1, 2001. The effects of incomplete Rule 605(a) admonishments have been

considered in several cases, including those relied on by defendant: People v. Glenn, 345 Ill. App. 3d

974, 804 N.E.2d 661 (2004), and People v. Bagnell, 348 Ill. App. 3d 322,

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809 N.E.2d 753 (2004).

Those holdings were abrogated by the supreme court in People v. Henderson, 217 Ill. 2d

449, 841 N.E.2d 872 (2005). The court held that where a trial court fails to properly

admonish a defendant on preservation of sentencing issues for appeal, Aremand is required only where there

has been prejudice or a denial of real justice as a result of the inadequate admonishment.@ Henderson, 217

Ill. 2d at 466. Henderson differed from this case because the defendant there had not raised sentencing

issues on appeal as has defendant here. But the court anticipated situations where, as here, sentencing

issues would be raised on appeal: "If defendant had presented actual sentencing challenges in his appeal

[(emphasis in original)], the appellate court would at least have been alerted to the existence of these issues.

The court then could have taken whatever actions it deemed appropriate, including hearing the challenges itself

or remanding them to the trial court [(emphasis added)].@ Henderson, 217 Ill. 2d at 468.

We agree with the parties that defendant was not properly admonished and the sentencing issues he

raised on appeal could be subject to waiver, assuming he failed to raise them in a motion to reconsider the

sentence. As noted, we do not know what issues, if any, were raised in a motion to reconsider the sentence

because the documents are not of record. But despite deficiencies in both the admonishments and the record,

we have been alerted to defendant's sentencing issues. We have elected to consider them here rather than

remanding them to the trial court for proper admonishments. See Henderson, 217 Ill. 2d at 470;

People v. Quinones, 362 Ill. App. 3d 385, 400-01, 839 N.E.2d 583 (2005)

(appellate court review of the defendant's alleged sentencing errors avoids the necessity of remand and serves

the interest of judicial economy). See also J.T., slip op. at 6 (reasserting the decision in Henderson.)

But see J.T., slip op. at 12 (Kilbride, J., (concurring in part and dissenting in part) (restating his dissent

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in Henderson and contending that Rule 605(c) requires strict compliance).

Defendant's final claim is that the eight-year sentence is excessive. Defendant does not dispute

that the sentence was within the statutory range for a Class X offender. Instead, he argues that his

offense was not violent and the sentence does not reflect its seriousness.

"Where the sentence chosen by the trial court is within the statutory range permissible for the

pertinent criminal offense ***, a reviewing court has the power to disturb the sentence only if the trial court

abused its discretion ***." People v. Jones, 168 Ill. 2d 367, 373-74, 659 N.E.2d

1306 (1995). Section 5-5-3(c)(8) of the Code provides:

"When a defendant, over the age of 21 years, is convicted of a Class I or Class

2 felony, after having twice been convicted in any state or federal court of an offense that

contains the same elements as an offense now classified in Illinois as a Class 2 or greater

Class felony and such charges are separately brought and tried and arise out of different

series of acts, such defendant shall be sentenced as a Class X offender." 730 ILCS

5/5-5-3(c)(8) (West 2004).

The sentencing range for a Class X offense is 6 to 30 years in prison. 730 ILCS 5/5-8-

1(a)(3) (West 2004).

Here, defendant=s earlier convictions fit the statutory criteria for Class X sentencing. The 8-

year sentence imposed is within the permissible range of 6 to 30 years. The record, particularly the trial

judge's observation that defendant was a five-time felon, convinces us that the trial court did not abuse its

discretion in sentencing defendant to two years over the minimum sentence.

The judgment of the trial court is affirmed.

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Affirmed.

BURKE and McBRIDE, JJ., concur.

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