People v. Aquisto
| Docket Number | 4-20-0081 |
| Decision Date | 24 February 2022 |
| Citation | 2022 IL App (4th) 200081,205 N.E.3d 812,461 Ill.Dec. 724 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brandon AQUISTO, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James E. Chadd, Catherine K. Hart, and Mariah K. Shaver, of State Appellate Defender's Office, of Springfield, for appellant.
Randy Yedinak, State's Attorney, of Pontiac (Patrick Delfino, David J. Robinson, and Kerri Davis, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
¶ 1 In a bench trial, the circuit court of Livingston County found the defendant, Brandon Aquisto, guilty of methamphetamine-related offenses. The court sentenced him to concurrent terms of 25 years’ imprisonment for aggravated participation in methamphetamine manufacturing ( 720 ILCS 646/15(b)(1)(B) (West 2018)) and 7 years’ imprisonment for unlawful delivery of methamphetamine (id. § 55(a)(2)(A)). He appeals on five grounds.
¶ 2 First, defendant challenges the chain of custody for People's exhibit No. 1, a substance that the crime laboratory found to test positive for the presence of methamphetamine. He objects to gaps in the proof linking him to this incriminating exhibit. Through his defense counsel, however, defendant affirmatively stated to the circuit court that he had no objection to the admission of People's exhibit No. 1. Consequently, defendant is estopped from challenging the chain of custody—which, we find, is not so deficient that his possession of People's exhibit No. 1 is unproven as a matter of law. Defendant contends that defense counsel rendered ineffective assistance by not objecting to deficiencies in the chain of custody. Because defendant, however, fails to show that he suffered prejudice from the omission of such an objection, his claim of ineffective assistance fails.
¶ 3 Second, defendant contends that the circuit court erred by denying his motion for the suppression of evidence. But the search warrant that defendant challenged in his motion was supported by probable cause. We conclude, de novo , that a controlled purchase of methamphetamine from defendant in the backyard of a house designated as his "parole" residence created probable cause to search the house. Therefore, we find no error in the denial of his motion for the suppression of evidence.
¶ 4 Third, defendant claims that by watching, outside his presence, the postarrest video of his interrogation by the police, the circuit court denied him his constitutional right to be present at a critical stage of the proceeding. It is true that, after admitting the video in evidence, the circuit court watched the video in chambers, in the presence of the attorneys but outside defendant's presence. Defense counsel, however, did not object to defendant's absence from the viewing of the video. Defendant makes a less than compelling argument that the viewing of this admitted exhibit was a "proceeding," let alone that the fairness of his trial depended on his being present at the viewing. Thus, we find no clear or obvious error.
Absent an error that is clear or obvious, the doctrine of plain error does not avert the issue's forfeiture resulting from (1) the lack of a contemporaneous objection and (2) the failure to reiterate the objection in a posttrial motion. See People v. Enoch , 122 Ill. 2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988) ; People v. Schrems , 224 Ill. App. 3d 988, 994, 167 Ill.Dec. 65, 586 N.E.2d 1337 (1992).
¶ 5 Fourth, defendant accuses his defense counsel of rendering ineffective assistance by failing to raise an entrapment defense to the charge of unlawful delivery of methamphetamine. Because defendant, however, denied the charge of unlawfully delivering methamphetamine—and for all that appears in the record, persisted in his denial—the affirmative defense of entrapment was legally unavailable. Defense counsel was correct, then, to refrain from raising an entrapment theory. Effective assistance does not entail raising legally unmeritorious theories.
¶ 6 Fifth, defendant requests us to reduce his sentence or, alternatively, to remand his case for a new sentencing hearing for the following reasons: (1) the circuit court subjected him to a double enhancement by treating his receipt of compensation from a confidential source (Bryan Cox) as an aggravating factor, (2) the court failed to consider, as a mitigating factor, that Cox had induced defendant to commit unlawful delivery of methamphetamine, (3) the court failed to treat defendant's drug addiction as a mitigating factor, (4) the court imposed a trial tax, and (5) the 25-year prison sentence for aggravated participation in methamphetamine manufacturing was too severe, considering the seriousness of the offense and the evidence in mitigation. Acknowledging that he has procedurally forfeited the first four contentions by omitting them in his postsentence motion, defendant attributes the forfeiture to ineffective assistance of counsel, and alternatively, he invokes the doctrine of plain error. These claims of ineffective assistance and plain error fail because of either a lack of prejudice or a lack of a clear or obvious error. We find no abuse of discretion in the sentence of 25 years’ imprisonment.
¶ 7 Therefore, we affirm the judgment.
¶ 10 The State charged defendant with count I, aggravated participation in methamphetamine manufacturing ( 720 ILCS 646/15(b)(1)(B) (West 2018)); count II, methamphetamine-related child endangerment (id. § 50(a)(1)); count III, possession of methamphetamine-manufacturing materials (id. § 30(a)); count IV, unlawful delivery of methamphetamine (id. § 55(a)(2)(A)); and count V, unlawful use of property (id. § 35(b)).
¶ 12 On June 5, 2018, Inspector Leland Brooke signed a complaint for a search warrant. In his complaint, he averred as follows. He was a deputy in the Livingston County Sheriff's Department and was assigned to be an inspector with the department's proactive unit. On June 4, 2018, around 1:51 p.m., Brooke had a text-message conversation with confidential source No. 99-14, who claimed he could buy one gram of methamphetamine from defendant for $70 at 838 South Locust Street in Pontiac, Illinois. Defendant had told the confidential source that he had been making methamphetamine for the past two days. Defendant had even sent the confidential source photographs of the methamphetamine "in the production liquid form."
¶ 13 On June 4, 2018, at 11:20 p.m., Brooke met with the confidential source (Brooke continued in his complaint), and they made preparations for a controlled purchase of methamphetamine from defendant. Brooke searched the confidential source and found no contraband on his person. He gave the confidential source $70 in prerecorded currency. Then he drove the confidential source to the vicinity of the 900 block of South Locust Street.
¶ 14 Keeping the confidential source under surveillance, Brooke and another police officer, Zachary Benning, observed the following. At approximately 12:01 a.m. on June 5, 2018, the confidential source got out of Brooke's undercover vehicle and walked directly to 838 South Locust Street. South of that residence, on the sidewalk, the confidential source met a man, later identified as defendant. The confidential source and the man walked to the residence at 838 South Locust Street. Then they walked around to the north side of the residence. At about 12:09 a.m., the confidential source walked away from 838 South Locust Street, heading south on Locust Street, toward Brooke. At approximately 12:12 a.m., the confidential source arrived back at the undercover vehicle, where he handed Brooke a bag containing "approximately 0.2 grams of powder methamphetamine." At approximately 12:20 a.m., the confidential source was searched, "with negative results." The residence where the controlled purchase had taken place, 838 South Locust Street, was "the parole address listed for [defendant]."
¶ 15 After the controlled purchase (Brooke continued in his complaint for a search warrant), the confidential source told him what had happened. According to this debriefing, the confidential source walked north on Locust Street, and defendant whistled to him. He walked up to defendant, who had the confidential source follow him around to the back of the house. There defendant told the confidential source he had only 30 dollars’ worth, and he asked the confidential source if he had $30. The confidential source handed defendant $30, and defendant handed him the methamphetamine. Defendant explained to the confidential source how to use the methamphetamine since the confidential source had never used it before, and defendant advised him to swallow the methamphetamine if the police stopped him. The confidential source then walked back to Brooke.
¶ 16 On the basis of those facts, Brooke requested a warrant to search 838 South Locust Street for methamphetamine and for any equipment and currency associated with the manufacture of methamphetamine. The circuit court issued the requested search warrant.
¶ 17 C. The Search of 838 South Locust Street
¶ 18 On June 6, 2018, the police executed the search warrant. The residence that they searched, 838 South Locust Street, was a house that defendant shared with his sister and her spouse. Defendant's nieces, who were born on July 2, 2009, and February 25, 2011, also lived in the house and were present at the time of the search. Defendant's bedroom was in the basement, where the police found a paystub with defendant's name on it as well as supplies and equipment for manufacturing methamphetamine. When the police opened a bag, wisps of vapor began wafting upward, toward the children's bedroom.
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