People v. Hill

THIRD DIVISION
June 30, 2010

No. 1-08-2420

THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY
)
v. ) No. 07 CR 21175
)
JAMES HILL, ) HONORABLE
) JOSEPH G. KAZMIERSKI, JR.,
Defendant-Appellant. ) JUDGE PRESIDING.

JUSTICE STEELE delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant James Hill was found

guilty of possession of a controlled substance with intent to deliver and delivery of a controlled

substance. Based on Hill's criminal history, the trial court sentenced Hill as a Class X offender

(730 ILCS 5/5-5-3(c)(8) (West 2006)) to two concurrent 12-year terms in prison. On appeal, Hill

argues: (1) his conviction should be reversed, because the circuit court failed to comply with

Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b),

eff. May 1, 2007); (2) the circuit court denied Hill's knowing right to testify by refusing to rule on

his motion in limine to bar the introduction of his prior convictions for impeachment purposes; (3)

his sentences are excessive; (4) the mittimus should be corrected to reflect two extra days of

credit; and (5) the mittimus should be corrected to reflect a conviction for possession of a

controlled substance with intent to deliver and not manufacture or delivery of a controlled

substance. For the following reasons, we affirm Hill's conviction and modify the mittimus.
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BACKGROUND

The record on appeal discloses the following facts. During jury selection, the trial judge

asked the first and second panels of prospective jurors whether they had a problem with the

principles of law that the defendant is presumed innocent, that the presumption remains until the

State proves the defendant guilty beyond a reasonable doubt, and that the defendant is not

required to present any evidence on his behalf. Defense counsel asked the first panel whether it

would affect their verdict if Hill chose not to testify. Defense counsel asked the second panel if

Hill chose not to testify, "would that fact prevent you from giving him a fair and impartial trial?"

The trial judge asked a prospective juror on the second panel about following the instruction that

a defendant's decision not to testify should not be considered in reaching a verdict.

The trial judge asked the third panel of prospective jurors whether they understood the

defendant is presumed innocent, that the presumption remains until the State proves the defendant

guilty beyond a reasonable doubt, and that the defendant is not required to present any evidence.

The trial judge also asked whether they could follow the law as he issued it, even if they

personally disagreed with it. The prosecutor asked jurors in this panel whether they could follow

the judge's instruction that, if Hill did not testify, they could not consider that fact in reaching a

verdict.

The trial judge asked the fourth and fifth panels of prospective jurors whether they had

any problem with the principles of law that applied to this case that he mentioned earlier.

Prior to the introduction of evidence, defense counsel moved in limine to bar Hill's prior

convictions from being introduced as impeachment evidence if Hill testified. The trial court

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barred use of four convictions, finding them unduly prejudicial. The trial court deferred ruling on

the use of four other convictions, stating that the convictions were within the past 10 years, but

that the rulings would depend on the nature of Hill's testimony, if any.

At trial, Chicago police officer Saud Haidari testified that on September 22, 2007, he was

working as a surveillance officer for an undercover narcotics team assigned to the corner of

Francisco Avenue and Flournoy Street. From a distance, Officer Haidari observed Hill engage in

several hand-to-hand transactions where Hill tendered an unknown item in exchange for cash.

Officer Haidari radioed his observations to his team, after which he observed Hill engage in a

transaction with Chicago police detective Rhonda Anderson.

Detective Anderson testified that after she received a description of Hill from Officer

Haidari, she drove up to Hill in an unmarked car and told him she needed "two blows," which was

a street term for heroin. Hill gave Anderson two pink-tinted Ziploc bags containing a white,

powdered substance, in exchange for a $20 bill, which had a prerecorded serial number.

Anderson then radioed her team that she had engaged in a positive narcotics transaction.

Chicago police officer Konior testified that he and two other enforcement officers received

confirmation of Detective Anderson's buy and, based on Anderson's description, apprehended

Hill. Detective Anderson drove by and confirmed that Hill was the man involved in the

transaction. Officer Konior testified that the officers conducted a custodial search of Hill, which

resulted in the discovery of five pink-tinted Ziploc bags containing suspected heroin and $97,

including the $20 bill used in Detective Anderson's transaction.

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Illinois State Police forensic scientist Thomas Halloran testified that the two pink-tinted

Ziploc bags Anderson bought from Hill contained 0.5 grams of heroin. Halloran also testified that

the five pink-tinted Ziploc bags discovered in the custodial search contained 1.5 grams of heroin.

Hill chose not to testify on his behalf.

The jury found Hill guilty of possession with intent to deliver 1 to 14 grams of heroin and

delivery of heroin. Hill filed a motion for new trial, which the trial court denied on July 21, 2008.

After hearing evidence in aggravation and mitigation, the trial court sentenced Hill as a Class X

offender (730 ILCS 5/5-5-3(c)(8) (West 2006)) to two concurrent 12-year terms in prison. On

August 21, 2008, the trial court denied Hill's motion to reconsider his sentence. Hill filed a notice

of appeal to this court the same day. On August 22, 2008, the trial court denied Hill's pro se

motion to reduce his sentence. Hill filed a second notice of appeal on September 4, 2008. On

November 12, 2009, the Illinois Supreme Court entered a supervisory order directing this court to

allow the notice of appeal to stand as validly filed.

DISCUSSION

I

On appeal, Hill first argues that the circuit court violated Supreme Court Rule 431(b)

(Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007) for failing

to establish that each prospective juror understood and agreed with the four principles enunciated

by our supreme court in People v. Zehr, 103 Ill. 2d 472, 469 N.E.2d 1062 (1984). The State

correctly notes that Hill forfeited this issue by failing to make a contemporaneous objection at trial

and raising it in his posttrial motion. E.g., People v. Banks, 161 Ill. 2d 119, 143, 641 N.E.2d 331,

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342 (1994). Nevertheless, "[p]lain errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the trial court." 134 Ill. 2d R. 615(a). The

plain error doctrine operates when:

"(1) a clear or obvious error occurred and the evidence is so closely balanced that the

error alone threatened to tip the scales of justice against the defendant, regardless of the

seriousness of the error, or (2) a clear or obvious error occurred and that error is so

serious that it affected the fairness of defendant's trial and challenged the integrity of the

judicial process, regardless of the closeness of the evidence." People v. Piatkowski, 225

Ill. 2d 551, 565, 870 N.E.2d 403, 411 (2007).

Under both prongs of the plain error doctrine, " 'the burden of persuasion remains with the

defendant.' " Piatkowski, 225 Ill. 2d at 565, 870 N.E.2d at 411, quoting People v. Herron, 215

Ill. 2d 167, 187, 830 N.E.2d 467, 480 (2005).

The first step is to determine whether any error was committed. People v. Hudson, 228

Ill. 2d 181, 191, 886 N.E.2d 964, 971 (2008). Illinois Supreme Court Rule 431(b) codifies the

Illinois Supreme Court's holding in People v. Zehr that four inquiries must be made of potential

jurors in a criminal case that " 'go[ ] to the heart of a particular bias or prejudice which would

deprive [a] defendant of his right to a fair and impartial jury.' " People v. Zehr, 103 Ill. 2d 472,

477, 469 N.E.2d 1062, 1064 (1984), quoting People v. Zehr, 110 Ill. App. 3d 458, 461, 442

N.E.2d 581, 584 (1982). The version of Rule 431(b) that was in effect when Hill's trial began in

May 2008 (the 2007 rule) provides:

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"The court shall ask each potential juror, individually or in a group, whether that

juror understands and accepts the following principles: (1) that the defendant is presumed

innocent of the charge(s) against him or her; (2) that before a defendant can be convicted,

the State must prove the defendant guilty beyond a reasonable doubt; (3) that the

defendant is not required to offer any evidence on his or her own behalf; and (4) that the

defendant's failure to testify cannot be held against him or her; however, no inquiry shall

be made into the defendant's failure to testify when the defendant objects.

The court's method of inquiry shall provide each juror an opportunity to respond

to specific questions concerning the principles set out in this section." Official Reports

Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007.

The prior version of the rule began with the phrase "If requested by the defendant." 177 Ill. 2d R.

431(b). The 2007 rule removes the prefatory language and requires the trial court to issue the

Zehr admonitions and inquiries sua sponte. We examine the record to determine whether the

clear mandates of the rule were followed. Compliance with a supreme court rule is reviewed de

novo. E.g., People v. Lloyd, 338 Ill. App. 3d 379, 384, 788 N.E.2d 1169, 1173 (2003).

In People v. Wheeler, No. 1-08-1370 (March 31, 2010), this court ruled that the trial

judge's inquiry of the first nine jurors -- as to whether they agreed with the "principles" he had

addressed earlier -- was much like " ‘a general question concerning the juror's willingness to

follow the law’ " that Rule 431(b) sought to prohibit. Wheeler, slip op. at 7, quoting 177 Ill. 2d

R. 431(b) Committee Comments, at lxxix. The Wheeler court also ruled that the questioning of

the prospective jurors about each Zehr principle must be timely connected to an

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" ‘opportunity to respond to specific questions concerning the principles.’ " Wheeler, slip op. at

8, quoting Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007.

The Wheeler court reasoned:

"[I]n order to connect the Zehr principles to the opportunity of the venire to

express their understanding and acceptance of each of the principles, the recitation of the

principles and the questioning of the venire must be connected closely in time." Wheeler,

slip op. at 8-9.

Accordingly, this court concluded that the trial judge violated Rule 431(b), not only by asking too

general a question, but also in failing to ascertain the prospective jurors' understanding and

acceptance of the specific principles in a timely manner. Wheeler, slip op. at 10.

In this case, the trial judge initially mentioned three of the Zehr principles, leaving the

fourth as a subject for questioning by defense counsel. However, the fourth and fifth panels –

from which six jurors were selected – were only asked a general question about the principles the

trial judge mentioned earlier, with voir dire on a variety of subjects in the intervening time period.

We agree with the reasoning of Wheeler and conclude that the trial judge's method of inquiry here

failed to provide each juror an opportunity to respond to specific questions concerning the

principles set forth in Rule 431(b).

Having concluded that the trial court erred, we address the issue of whether the error falls

into either of the two categories identified in cases like Piatkowski. Hill does not argue on appeal

that the evidence is so closely balanced that the error alone threatened to tip the scales of justice

against him. Rather, Hill argues that the error was so serious that it affected the integrity of the

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judicial process and requires automatic reversal. In such cases "[p]rejudice to the defendant is

presumed because of the importance of the right involved." Herron, 215 Ill. 2d at 187, 830

N.E.2d at 480.

Whether a Rule 431(b) violation is a second-prong plain error is the source of divergent

decisions from this court. The Illinois Supreme Court issued supervisory orders on both sides of

the issue, directing that the decisions be reconsidered in light of People v. Glasper, 234 Ill. 2d

173, 917 N.E.2d 401 (2009). See People v. Hammonds, No. 1-08-0194, slip op. at 48 (February

11, 2010) (cataloging cases vacated by our supreme court). In Glasper, the Illinois Supreme

Court ruled that harmless-error analysis applied to a violation of the 1997 version of Rule

431(b)(4). Glasper, 234 Ill. 2d at 185-86, 917 N.E.2d at 409.

Hill – like other defendants – notes that the rule of Glasper "is limited to the version of

Rule 431(b)(4) that was in effect at the time of the instant trial, and would not necessarily apply to

subsequent versions of the rule." Glasper, 234 Ill. 2d at 200, 917 N.E.2d at 418. The supreme

court also made clear that it did not hold, in the context where the error was preserved, "that a

Rule 431(b)(4) violation could never result in reversible error." Glasper, 234 Ill. 2d at 200, 917

N.E.2d at 418. Relying on these aspects of Glasper, various appellate decisions have ruled that

Glasper is inapplicable to cases involving the 2007 rule. See, e.g., People v. Anderson,

1–07–1768 (March 29, 2010); People v. Yusuf, No. 4-08-0034 (April 13, 2010). The Fourth

District adopted a bright-line rule that the failure to comply with amended Rule 431(b) denies a

defendant a substantial right and thus, a fair trial. Yusuf, slip op. at 13. In contrast, the first

division of this district distinguished Glasper, finding second-prong plain error where the trial

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judge not only failed to comply with Rule 431(b)(4), but also failed to comply with Rules

431(b)(1) through (b)(3). Anderson, slip op. at 17-18.

However, in People v. Magallanes, 397 Ill. App. 3d 72, 92, 921 N.E.2d 388, 405 (2009),

this division of the First District rejected the bright-line rule, reasoning:

"[T]here is no quantitative or qualitative difference between the trial court failing to

admonish jurors when requested to do so, as in Glasper, and when the trial court fails to

admonish jurors under the amended rule ***."

In Wheeler, the first division of this district also found the reasoning in Glasper applicable to the

2007 version of the rule (two days after issuing a contrary ruling in Anderson). Wheeler, slip op.

at 16. The Wheeler decision also notes that in Glasper, our supreme court stated that the Rule

431(b)(4) violation "did not 'involve a fundamental right, or even a constitutional protection.' "

Wheeler, slip op. at 16, quoting Glasper, 234 Ill. 2d at 193, 917 N.E.2d at 413.

As noted earlier, the Anderson decision rules that violations of Rules 431(b)(1) through

(b)(3) deny a substantial right, even if a Rule 431(b)(4) violation, by itself, does not constitute

second-prong plain error. Anderson, slip op. at 17-18. Yet in Glasper, the supreme court's ruling

that automatic reversal was not required was based in part on People v. Emerson, 122 Ill. 2d 411,

522 N.E.2d 1109 (1987), which involved admonitions regarding the presumption of innocence.

Glasper, 234 Ill. 2d at 197, 917 N.E.2d at 416. The Glasper court's reliance on Emerson suggests

that violations of Rules 431(b)(1) through (b)(3) are not qualitatively different in this context from

a violation of Rule 431(b)(4).

Moreover, the Glasper court later stated:

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"If the facts in this case demonstrated that the trial court's failure to question the venire in

accordance with Rule 431(b)(4) resulted in defendant being tried before a biased jury, we

would not hesitate to reverse defendant's conviction, as a trial before a biased jury would

constitute structural error. However, there are no such facts in the instant case. We reject

the idea that the trial court's failure to conduct Rule 431(b)(4) questioning makes it

inevitable that the jury was biased, particularly when the record before us demonstrates

that the jurors in this case were both admonished and instructed against forming an

adverse inference against defendant based on his decision not to testify. To do so would

require us to presume that citizens sworn as jurors ignore the law and the jury instructions

given to them. This notion is contrary to our precedent which instructs us to make the

opposite presumption. See People v. Taylor, 166 Ill. 2d 414, 438 (1995) ('The jury is

presumed to follow the instructions that the court gives it')." Glasper, 234 Ill. 2d at 200-

01, 917 N.E.2d at 418.

Glasper thus suggests that – absent evidence to the contrary – the proper presumption is that the

jurors followed its instructions, rather than to presume the defendant was denied a fair trial. In

this case, Hill identifies no evidence that the trial court's error resulted in his being tried before a

biased jury.

In sum, based on Glasper, Wheeler and our prior decision in Magallanes, we conclude that

Hill has failed to show plain error that would trigger an automatic reversal in this case.

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II

Hill next argues that the circuit court denied his knowing right to testify by refusing to rule

on his motion in limine to bar the introduction of his prior convictions for impeachment purposes.

Hill also argues that the decision denied his due process right to "the guiding hand of counsel" and

his right to a remedy under the Illinois Constitution. Hill relies primarily on People v. Patrick, 233

Ill. 2d 62, 908 N.E.2d 1 (2009), in which our supreme court held that "a trial court's failure to

rule on a motion in limine on the admissibility of prior convictions when it has sufficient

information to make a ruling constitutes an abuse of discretion." Patrick, 233 Ill. 2d at 73, 908

N.E.2d at 7. However, the Patrick court also held that a defendant fails to preserve for appeal the

issue of the trial court's refusal to rule on the admissibility of his prior convictions, when the

defendant does not testify at trial. Patrick, 233 Ill. 2d at 77, 908 N.E.2d at 10. In this case, Hill

did not testify at trial, thereby forfeiting the issue on appeal.

Hill argues that the forfeiture rule of Patrick should not apply because the trial judge had a

"blanket policy" of refusing to rule on such motions, which is necessarily arbitrary. Assuming

arguendo that the trial judge had a blanket policy, we note that the Illinois Supreme Court

squarely rejected the argument in People v. Averett, Nos. 106362, 106621 cons. (April 15, 2010).

The Averett court ruled that the trial court's application of a blanket policy of deferring rulings on

motions in limine did not violate the defendants' constitutional rights to testify or to the "guiding

hand of counsel." Averett, slip op. at 10. The Averett court also rejected the state constitutional

claim, noting that article I, section 12, of the Illinois Constitution (Ill. Const. 1970, art. I, §12)

only expresses a philosophy and does not require a certain remedy in any specific form. Averett,

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slip op. at 15. Hill further argues that the forfeiture rule of Patrick is wrongly decided. Although

we understand Hill's desire to preserve the issue for review, this court has no power to reverse a

decision of the Illinois Supreme Court. E.g., O'Casek v. Children's Home & Aid Society of

Illinois, 229 Ill. 2d 421, 440, 892 N.E.2d 994, 1006 (2008) (stare decisis requires courts to follow

the decisions of higher courts). Accordingly, Hill's arguments on this issue fail.

III

Moreover, Hill argues that his 12-year sentences are excessive, claiming that the trial court

failed to consider relevant mitigating factors, including the nonviolent nature of the offenses and

Hill's drug addiction. It is well established that the sentence imposed by a trial court is entitled to

great deference, and when the sentence is within the statutory limits, it may be disturbed only

where the trial court has abused its discretion. E.g., People v. Bosley, 233 Ill. App. 3d 132, 139,

598 N.E.2d 355, 360 (1992) (and cases cited therein). So long as the trial court " 'does not

consider incompetent evidence, improper aggravating factors, or ignore pertinent mitigating

factors, it has wide latitude in sentencing a defendant to any term within the statutory range

prescribed for the offense.' " Bosley, 233 Ill. App. 3d at 139, 598 N.E.2d at 360, quoting People

v. Hernandez, 204 Ill. App. 3d 732, 740, 562 N.E.2d 219, 225 (1990). The trial court has no

obligation to recite and assign value to each factor presented at a sentencing hearing. People v.

Baker, 241 Ill. App. 3d 495, 499, 608 N.E.2d 1251, 1253 (1993). Where mitigating evidence is

presented to the trial court during the sentencing hearing, we may presume that the trial court

considered it, absent some indication, other than the sentence itself, to the contrary. People v.

Dominguez, 255 Ill. App. 3d 995, 1004, 626 N.E.2d 775, 783 (1994).

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In this case, based on Hill's criminal history, the trial court sentenced Hill as a Class X

offender (730 ILCS 5/5-5-3(c)(8) (West 2006)), which has a sentencing range of 6 to 30 years in

prison (730 ILCS 5/5-8-1(a)(3) (West 2006)). Thus, Hill's sentence falls within the statutory

range. Indeed, as Hill acknowledges, even absent the Class X statute, possession with intent to

deliver 1 to 14 grams of heroin is a Class 1 offense with a maximum sentence of 15 years. See

720 ILCS 570/401(c)(1) (West 2006); 730 ILCS 5/5-8-1(a)(4) (West 2006).

Hill's claim that the court failed to consider his drug addiction is incorrect. The transcript

of proceedings shows that the trial court did consider the presentence investigation report, which

detailed Hill's drug use. The trial judge specifically mentioned Hill's participation in a substance

abuse treatment program while incarcerated as a mitigating factor.

Hill's claim that the court failed to consider the nonviolent nature of the offenses is

unpersuasive. The trial judge heard the evidence adduced at trial and is presumed to know

violence was not involved in this case. The trial judge was also entitled to consider that, in

addition to the offenses prerequisite to Class X sentencing, Hill had 14 felony convictions, 13 of

which were drug-related – a factor that certainly bears on Hill's potential for rehabilitation.

As the reviewing court, we are not to reweigh the factors considered in determining the

defendant's sentence nor are we to substitute our judgment for that of the trial court simply

because we would have weighed the factors differently. People v. Jones, 376 Ill. App. 3d 372,

394, 876 N.E.2d 15, 34 (2007). In this case, Hill has failed to show the trial court abused its

discretion in imposing his concurrent 12-year sentences.

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IV

Moreover, Hill argues that this court should correct the mittimus to reflect 304 days spent

in custody as credited against his sentence, as opposed to the 302 days noted by the trial court.

Hill maintains that he should receive credit for the day of his arrest and the day he was sentenced.

The State responds that Hill should receive credit for the former, but not the latter. Pursuant to

Supreme Court Rule 615 (134 Ill. 2d R. 615), a reviewing court may correct the mittimus without

remanding the cause to the trial court. See, e.g., People v. Davis, 303 Ill. App. 3d 684, 688, 708

N.E.2d 1181, 1184 (1999).

Except for certain specified offenses, a prisoner serving a term of imprisonment receives

one day of good conduct credit for each day of his prison sentence. 730 ILCS 5/3-6-3(a)(2.1)

(West 2006). A sentence of imprisonment begins on the date when a defendant is received by the

Department of Corrections (Department). 730 ILCS 5/5-8-7(a) (West 2006). There is an

apparent split of opinion in this court as to whether, under sections 3-6-3 and 5-8-7 of the Unified

Code of Corrections (730 ILCS 5/3-6-3, 5-8-7 (West 2006)), the day of sentencing is included in

computing of the presentencing credit.

The Fourth District has held that the day of sentencing is not included in calculating the

presentence credit if the defendant is remanded to the Department on the same day, while several

cases outside the Fourth District, including this district, have held implicitly in their calculation of

presentencing credit that the day of sentencing is included. See People v. Williams, 394 Ill. App.

3d 480, 481-82, 917 N.E.2d 547, 548-49 (2009), appeal allowed, No. 109361 (January 27, 2010)

(and cases cited therein). The Williams court reasoned as follows:

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"After considering the above cases, we find little concrete legal foundation for the

split in cases. The cases that include the day of sentencing in the presentencing credit

apparently follow the undisputed rule that a portion of a day spent in custody adds a day

of credit by implicitly acknowledging that a defendant in custody spends a portion of the

sentencing day in custody prior to sentencing. The cases excluding the day of sentencing

from the credit seek to prevent a defendant from receiving double credit: one day under

section 5-8-7 for the portion of the sentencing day spent in presentencing detention and

one day under section 3-6-3 for the portion of the same day spent after issuance of the

mittimus commences the prison sentence in the Department's legal (if not physical)

custody.

We find the concern over double credit persuasive and thus hold that a defendant

is not entitled to credit for the day of sentencing if the mittimus is issued effective that

same day. Conversely, where the mittimus is not issued or not effective on the day of

sentencing, the defendant is not yet in Department custody so that the presentencing credit

under section 5-8-7 applies rather than any credit under section 3-6-3. Since defendant's

mittimus issued on the day of his sentencing, he is entitled to 287 days' credit [as opposed

to 288 days] for presentencing detention." Williams, 394 Ill. App. 3d at 483, 917 N.E.2d

at 549-50.

Following Williams, this court also noted in People v. Jones, 397 Ill. App. 3d 651, 656, 921

N.E.2d 768, 771-72 (2009):

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"[T]he fact that the Unified Code of Corrections demarcates two separate periods for

calculating defendant's sentencing credit suggests that a defendant should not receive

credit twice for a single day. In the statute quoted above, subsection (a) delineates the

postsentencing credit, while subsection (b) delineates the presentencing credit. 730 ILCS

5/5-8-7 (West 2006). The fact that the two separate subsections set out two different time

periods suggests a legislative intent that a defendant should not receive credit twice for the

same day."

In this case, the potential double credit problem does not exist. This court may take judicial

notice of the Department's records, because they are public documents. People v. Peterson,

372 Ill. App. 3d 1010, 1019, 868 N.E.2d 329, 336 (2007). Here, the Department's records show

an admission date of July 22, 2008 – the date after Hill was sentenced. Accordingly, we conclude

that Hill is entitled to presentencing credit for the date of sentencing. Therefore, we order the

mittimus corrected to reflect 304 days of presentencing credit for time served.

V

Finally, Hill argues that the mittimus should be corrected to reflect a conviction for

possession of a controlled substance with intent to deliver, not manufacture or delivery of a

controlled substance. The State agrees. Accordingly, we correct the convictions on Hill's

mittimus to reflect possession of a controlled substance with intent to deliver and delivery of a

controlled substance.

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CONCLUSION

Although the trial judge violated Rule 431(b), Hill failed to show plain error that would

trigger an automatic reversal in this case. Hill forfeited the argument that the trial court erred in

refusing to rule on his motion in limine to bar the introduction of his prior convictions for

impeachment purposes, as Hill failed to testify at trial. Hill failed to show that the trial court

abused its discretion in imposing his concurrent 12-year sentences. Hill's mittimus is corrected to

reflect 304 days of presentencing credit for time served and to reflect convictions for possession

of a controlled substance with intent to deliver and delivery of a controlled substance.

Affirmed; mittimus corrected.

MURPHY, P.J., and COLEMAN, J., concur.

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