People v. Matthews

• Decision Date: 19 December 2005
• Docket Number: No. 1-04-1656.,1-04-1656.
• Citation: 842 N.E.2d 150
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Johnny MATTHEWS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 150

842 N.E.2d 150

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Johnny MATTHEWS, Defendant-Appellant.

No. 1-04-1656.

Appellate Court of Illinois, First District, First Division.

December 19, 2005.

Rehearing Denied January 26, 2006.

Michael J. Pelletier, Deputy Defender, Robert Hirschhorn, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Appellant.

Richard A. Devine, State's Attorney, James Fitzgerald, Heather Fahrenkrog, Kristine A. Shrode, Assistant State's Attorneys, Cook County State's Attorney's Office, Chicago, for Appellee.

Justice GORDON delivered the opinion of the court:

Defendant, Johnny Matthews, appeals from his conviction after a bench trial of possession of a controlled substance with intent to deliver. He contends that he must receive a new trial because his trial attorney stipulated to the identity and amount of controlled substances recovered by the police without any expression in the record of his assent, and that counsel's agreement to stipulate was so unreasonable as to amount to ineffective assistance of counsel. Defendant further appeals his sentence claiming that the sequence of his prior convictions was required to be proven beyond a reasonable doubt under recent United States Supreme Court precedent, and that he was not, in fact, eligible for Class X sentencing. Finally, defendant argues that we must correct his mittimus to reflect conviction for the proper charge. For the following reasons, we affirm the conviction and sentence, but correct the mittimus.

FACTUAL BACKGROUND

At trial, Chicago police officer Coleman testified that he and his partner were called to the vicinity of 6201 South Stoney Island Avenue, on the afternoon of August 17, 2003, because of a complaint of a person selling narcotics. When he arrived he set up a surveillance from within his unmarked police car, about one block away from where he observed defendant. Coleman's view of defendant was unobstructed and his ability to perceive defendant was enhanced by sunlight and his use of binoculars.

Officer Coleman testified that he observed defendant attempt to flag down passing cars and pedestrians. One pedestrian did approach defendant, at which time a brief conversation occurred, followed by the pedestrian passing defendant money and defendant passing back packets containing a white substance. Coleman suspected the white substance to be narcotics.

When Coleman and his partner approached on foot, the pedestrian ran away, while defendant started to walk away while also dropping two, white powder filled ziplock bags from his left hand. Coleman recovered the bags, while his partner placed defendant under arrest. A custodial search of defendant revealed that he had $698 on his person.

Following Officer Coleman's testimony, the assistant State's Attorney stated "at this time, the State would proceed by way of written stipulation as to the chain of custody and laboratory analysis of the items recovered which we would ask * * * be admitted under People's One." Defense counsel responded "So stipulated," and defendant made no objection to its admission himself.

The form stipulation entered into evidence provided, in pertinent part, that Coleman would testify:

"a. That on 8-17-03 he/she recovered a ___ (description of any outer packaging) which contained 2 plastic bags (of items) of powder (description of drug packaging), which he/she kept within his/her safe keeping and control from the time of recovery until the inventory of said item(s).

b. That he/she inventoried those item(s) under inventory # 10186866 pursuant to Chicago Police Department inventory procedures by heat-sealing them in an inventory envelope for delivery to the Illinois State Police Crime Lab. That when the item(s) left his possession, they were in a sealed condition.

c. That if he/she were shown inventory listed in 1(b) above in open court, he would testify that the item(s) are in substantially the same condition, with the exception of the crime lab notation and markings made during analysis, as when they were recovered."

The written stipulation went on to provide that if Nancy McDonagh, a forensic chemist, were called to testify, she would testify:

"a. That he/she received the inventory listed in 1(b) above in a heat-sealed condition from the Chicago Police Department.

b. That said inventory envelope was opened and found to contain 2 (# of items) of plastic bags of powder (description of drug packaging).

c. That Forensic Chemist McDonagh employed by the Illinois State Police Crime Lab is qualified to testify as an expert in the area of Forensic Chemistry, and all equipment used was tested, calibrated, and functioning properly when the above items were tested.

d. That the Chemist performed tests commonly accepted in the area of Forensic Chemistry for ascertaining the presence of a controlled substance on the item(s) described above.

e. That after performing the test on the contends of 1 (# of items tested) of the 2 (# of total items recovered) item(s) recovered, the Chemist's expert opinion, within a reasonable degree of scientific certainty, is that the contents of the tested item(s) were positive for the presence of heroin (type of drug) and that the actual weight of those items was 0.3 grams. That the Chemist would further testify that the total estimated weight of the 2 (# total items recovered) items would be 0.6 grams.

f. That after the testing and analysis of inventory # 10186866 was complete, he/she would further testify that it was again sealed, and he/she would be able to identify it in open court as the same item(s) that he/she tested and that they are still in a sealed condition.

That a proper chain of custody was maintained at all times."

The written stipulation concluded with the assistant State's Attorney's and defense trial counsel's signatures appeared under a heading reading "SO STIPULATED." The State's case concluded with another, exclusively oral, stipulation that an investigator would testify that the distance between defendant's arrest and Jackson Park was 15 feet, determined by using a calibrated roller tape model 400.

Defendant's case consisted exclusively of his own testimony. He testified that he was a part of the narcotics transaction testified to by Officer Coleman, but as the buyer, not the seller. According to defendant, when the police approached, his dealer dropped the packets of heroin before he could take possession of them. Defendant averred that his arresting officer told him that the drugs were his, and upon finding the large amount of cash on defendant, told him to say that he was the seller. Defendant explained that he obtained the cash recovered by cashing his Social Security check in order to pay bills, and that he kept the money on his person because he "didn't want it to get stolen."

In rebuttal, the State sought to present defendant's "certified copy [sic] of convictions." The State referenced cases 97 CR 03488 and 97 CR 24853; both cases listed defendant's convictions for possession of a controlled substance with intent to deliver resulting in sentences of two years each. Defense trial counsel pointed out, however, that if the convictions were for possession with intent to deliver, that the minimum sentence would have to be three years and stated "I think it was reduced to PCS [simple possession]." In response, the State indicated "Certified copies do not show an amendment to the charge."¹

After closing arguments, the circuit court entered a finding of guilty as to one of the two counts of possession with intent to deliver. The court ordered the preparation of a presentence investigation report and, roughly one month later, held a sentencing hearing.

At the sentencing hearing, the parties acknowledged their receipt of the probation department's presentence investigation report. Neither party objected to or observed any inaccuracies in the report. Reviewing the report, the court counted eight prior felony convictions. The State, however, corrected that the proper criminal history was six felony convictions and two misdemeanor convictions. The State presented no argument at sentencing, "rest[ing] on the facts of the case as well as the pre-sentence." Defense counsel, on the other hand, argued that, although "Defendant [wa]s Class `X' mandatory," "the two cases that [made] him Class `X' mandatory, [were] both more than 10 years old; one * * * a '91 case and the other * * * a '92." Trial counsel concluded by observing that defendant was ultimately Class X mandatory "because of the forgery [conviction]." The court then imposed a sentence of 10 years' incarceration under the Class X provisions of the Unified Code of Corrections (730 ILCS 5/5-5-3(c)(8) (West 2002)).

ANALYSIS

Defendant first contends that he should receive a new trial because there is no indication that he assented to a waiver of his sixth amendment confrontation rights through his counsel stipulating to the identity and weight of the powder recovered by the police. We disagree.

The parties agree that this question is controlled by our supreme court's decision in People v. Campbell, 208 Ill.2d 203, 280 Ill.Dec. 684, 802 N.E.2d 1205 (2003). However, at the time of briefing, the holding of this case had been subject to differing interpretations in various decisions of the appellate court. See People v. Foerster, 359 Ill.App.3d 198, 295 Ill.Dec. 736, 833 N.E.2d 942 (2005); People v. Banks, 358 Ill.App.3d 924, 295 Ill.Dec. 722, 833 N.E.2d 928 (2005); People v. Scott, 355 Ill.App.3d 741, 291 Ill.Dec. 726, 824 N.E.2d 302 (2005); People v. Phillips, 352 Ill. App.3d 867, 288 Ill.Dec. 208, 817 N.E.2d 566 (2004), reversed by People v. Phillips, 217 Ill.2d 270, 298 Ill.Dec. 759, 840 N.E.2d 1194 (2005).

The Campbell court held:

"[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...