People v. Sturgeon

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Appellate Court Date: 2019.07.02

14:48:16 -05'00'

People v. Sturgeon, 2019 IL App (4th) 170035

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption DONALD E. STURGEON, Defendant-Appellant.

District & No. Fourth District

Docket No. 4-17-0035

Filed April 12, 2019

Decision Under Appeal from the Circuit Court of Logan County, No. 16-CF-9; the

Review Hon. William G. Workman, Judge, presiding.

Judgment Affirmed.

Counsel on James E. Chadd, Patricia Mysza, and Joshua M. Bernstein, of State

Appeal Appellate Defender’s Office, of Chicago, for appellant.

Jonathan Wright, State’s Attorney, of Lincoln (Patrick Delfino, David

J. Robinson, and Allison Paige Brooks, of State’s Attorneys Appellate

Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE STEIGMANN delivered the judgment of the court, with

opinion.

Presiding Justice Holder White and Justice Knecht concurred in the

judgment and opinion.

OPINION

¶1 In February 2016, the State charged defendant, Donald E. Sturgeon, with (count I)

unlawful participation in methamphetamine manufacturing in that defendant knowingly

participated in the manufacture of 900 grams or more of a substance containing

methamphetamine, (count II) aggravated unlawful participation in methamphetamine

manufacturing in that defendant knowingly participated in the manufacture of 400 grams or

more of a substance containing methamphetamine and the manufacturing occurred within

1000 feet of a school, (count III) unlawful possession of methamphetamine precursors, and

(count IV) unlawful possession of methamphetamine with the intent to deliver. 720 ILCS

646/15(a)(2)(E), 15(a)(2)(D), 15(b)(1)(H), 20(a)(2)(C), 55(a)(2)(A) (West 2016).

¶2 In September 2016, a jury found defendant not guilty of count I but guilty of counts II, III,

and IV. In November 2016, the trial court sentenced defendant to 45 years in prison for count

II, 45 years in prison for count III, and 14 years in prison for count IV and ordered the

sentences to run concurrently.

¶3 Defendant appeals, arguing that (1) the State failed to prove him guilty beyond a

reasonable doubt for aggravated participation in the manufacture of 400 or more grams of

methamphetamine within 1000 feet of a school, (2) he received ineffective assistance of

counsel, (3) the trial court erred during sentencing by considering his drug addiction as an

“aggravating” factor, (4) the trial court erred by “punishing” him for going to trial after he

rejected the State’s guilty plea offer, and (5) the trial court erred by not identifying various

fines and fees which it imposed. We affirm.

¶4 I. BACKGROUND

¶5 A. The Charges Against Defendant

¶6 In February 2016, the State charged defendant with (count I) unlawful participation in

methamphetamine manufacturing in that defendant knowingly participated in the manufacture

of 900 grams or more of a substance containing methamphetamine, (count II) aggravated

unlawful participation in methamphetamine manufacturing in that defendant knowingly

participated in the manufacture of 400 grams or more of a substance containing

methamphetamine and the manufacturing occurred within 1000 feet of a school, (count III)

unlawful possession of methamphetamine precursors, and (count IV) unlawful possession of

methamphetamine with the intent to deliver. Id.

¶7 B. The Rule 402 Conference

¶8 In August 2016, the trial court conducted a conference pursuant to Illinois Supreme Court

Rule 402(d) (eff. July 1, 2012) (“Upon request by the defendant and with the agreement of the

prosecutor, the trial judge may participate in plea discussions.”).

¶9 At the conference, in exchange for defendant’s pleading guilty to count I, the State offered

to dismiss counts II, III, and IV and agree to a 25-year prison sentence. The trial court noted

that based upon the information in the complaint and defendant’s prior criminal history, the

court was “more inclined to sentence [defendant] in the extended term range of at least 30

years, if not more.” Ultimately, defendant rejected the State’s offer, and a jury trial was

conducted.

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¶ 10 C. The Jury Trial

¶ 11 1. Sergeant Robert Sherren

¶ 12 In September 2016, at defendant’s jury trial, Sergeant Robert Sherren of the Lincoln Police

Department testified that defendant and Ashley Davis were suspected of using and

manufacturing methamphetamine. Sherren stated that on the evening of January 14, 2016, he

saw a vehicle pull into the driveway of the residence located at 1006 7th Street, Lincoln,

Illinois (hereinafter the residence). Sherren observed defendant get out of the vehicle and

ordered him to get on the ground. Sherren stated that defendant “took off running” but that

Sherren caught him a few moments later. Sherren testified that defendant had “thrown an

object” during the chase and that a jar containing a white powdery substance was later found

where the chase had occurred. Sherren stated that after defendant was subdued, he was

handcuffed and placed into the back of a police car. Sherren testified that another officer

believed he smelled methamphetamine at the residence.

¶ 13 On cross-examination, Sherren noted that Brandon Lovelett and Robyn Johnson lived at

the residence and that Rodney Lovelett was the brother of Brandon Lovelett. Sherren stated

that when he pulled into the driveway, one of the Lovelett boys was in the driveway.

¶ 14 2. Officer Ryan Sullivan

¶ 15 Officer Ryan Sullivan, a patrol officer with the Lincoln Police Department, stated that he

was investigating activities related to methamphetamine manufacturing on January 14, 2016.

Sullivan testified that, after a vehicle pulled into the residence, defendant ran out of the vehicle

and Sherren caught him. Sullivan further testified that he then searched defendant and found “a

clear plastic sandwich bag with multiple white pills.” He stated that there were approximately

50 pills, and he found no evidence of a prescription.

¶ 16 3. Rodney Lovelett

¶ 17 Rodney Lovelett testified that he was currently in custody and had five pending criminal

charges against him, including conspiracy to manufacture methamphetamine, unlawful

possession of drug paraphernalia, and unlawful possession of hypodermic needles. He stated

that he had a prior conviction for threatening a public official and, in January 2016, he was on

parole for that offense.

¶ 18 Rodney testified that in April 2016, he entered into a cooperation agreement with the State.

In exchange for his testimony, he would plead guilty to a new charge of unlawful possession of

methamphetamine precursors and that the charge for methamphetamine conspiracy would be

dismissed. He noted that he would receive a 5½-year prison sentence.

¶ 19 Rodney stated that both he and Brandon, his brother, were arrested on January 14, 2016.

Rodney testified that Brandon and Robyn Johnson were living at the residence in January

2016. Rodney stated that he used to live at the residence but had recently moved out prior to

defendant’s arrest. Rodney described the general layout of the residence.

¶ 20 Rodney admitted that he used heroin and methamphetamine on January 14, 2016. He

testified that defendant had given him the methamphetamine and prevented him from entering

a room where methamphetamine was later discovered. Rodney further testified that he told the

police that there might be a methamphetamine lab in the residence after defendant was

arrested.

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¶ 21 On cross-examination, Rodney admitted to being a drug addict and that using drugs altered

his thoughts and perception. He also admitted that he did not originally implicate defendant.

Rodney testified that he had never been to prison and did not want to go there. He noted that he

was originally charged with a Class X felony with a 15-year minimum, 60-year maximum

sentence that would be served at 75%. He further noted that as a result of his cooperation

agreement, he would be sentenced only to 5½ years in prison, to be served at 50%.

¶ 22 4. Ashley Davis

¶ 23 Ashley Davis stated that she was currently in custody and that she entered into a

cooperation agreement with the State in September 2016. She noted that as a result of the

agreement, she would plead guilty to unlawful possession of a methamphetamine precursor

and that the State would dismiss a methamphetamine conspiracy charge.

¶ 24 Davis noted that on January 14, 2016, she had used methamphetamine with defendant in a

bedroom at the residence. She stated that the bedroom had Gatorade bottles and funnels. She

testified that later that day, she observed defendant placing methamphetamine into little plastic

bags. She further stated that later that evening, she and defendant were arrested at the

residence.

¶ 25 On cross-examination, Davis conceded that she was a methamphetamine addict and that

she used methamphetamine on January 14, 2016. She noted that she did not implicate

defendant until August 2016. She conceded that as a result of her September 2016 cooperation

agreement with the State, the amount of time she would spend in prison had been drastically

reduced.

¶ 26 5. Special Agent Brian Hayes

¶ 27 Brian Hayes testified that he was a special agent with the Illinois State Police and was

assigned to the Methamphetamine Response Team. Hayes stated that he was dispatched to the

residence. He stated that in one of the bedrooms, he found sulfuric acid, lye, salt, tubing, pliers,

stripped lithium batteries, Gatorade bottles, camp fuel, funnels, coffee filters, and a box of cold

packs. Hayes testified that, based on his experience, these materials were commonly used in

the production of methamphetamine.

¶ 28 Hayes testified that he found two methamphetamine “cooks” at the residence. Hayes noted

that he found a Gatorade bottle in a bedroom, which he believed was used for making

methamphetamine. Hayes stated that he weighed the substance inside the bottle and

photographed the weighing process. Pictures that the trial court admitted into evidence

purported to show that the substance inside the bottle weighed 550.3 grams. Hayes stated that

he took a representative sample of the substance but that the remainder of the substance was

destroyed pursuant to safety protocol. A picture of the representative sample was introduced

into evidence as State’s exhibit 34. Regarding how he weighed the substance, Hayes testified

as follows on direct examination:

“Q. Did you seek to weigh the contents of that [bottle]?

A. Yes.

Q. How do you go about doing that?

A. I take a—I get my scale out. I check the internal components of it with weights.

Then I take a sterile vessel. I will place it on the scale, record the weights on a ***

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worksheet, as well as photograph it. Then I will empty the contents of the bottle into

that same vessel and record that weight, subtract the empty weight from the total

weight, which gives me my net weight of the contents.

Q. You did that in this case with this [bottle]?

A. Correct.

***

Q. And you calibrated this machine before you used it?

A. Not necessarily calibrated it, but I just checked it against the known weights.”

¶ 29 Hayes stated that he found additional bottles in a bathroom that he believed contained

methamphetamine. Pictures that the trial court admitted into evidence purported to show that

the substance inside the bottles weighed 560.9 grams. Hayes stated that he took a

representative sample of the substance but that the remainder was destroyed for safety

purposes. A picture of this representative sample was introduced into evidence as exhibit 38.

¶ 30 On cross-examination, Hayes noted that he did not attempt to lift fingerprints from the

crime scene. Defense counsel did not cross-examine Hayes regarding how he ensured that the

scale he used to weigh the substance was working properly.

¶ 31 6. Inspector Joseph Meister

¶ 32 Inspector Joseph Meister of the Lincoln Police Department testified that he found

defendant’s state identification card in the bedroom where methamphetamine was found.

Meister stated that he also found an electric grinder that had pseudoephedrine residue inside it.

¶ 33 Meister testified that the residence was “about 609 feet” away from Jefferson Elementary

School. However, Meister never testified how he determined the distance between the

residence and the elementary school. Instead, his only testimony regarding that distance was as

follows:

“Q. As part of your investigation in this case, did you investigate whether 1006 7th

Street [Lincoln, Illinois,] was in proximity to any locations that are considered to be an

aggravating factor?

A. Yes, I did.

Q. And what did your investigation reveal?

A. I learned that [the residence] at 1006 7th Street was about 609 feet from the

Jefferson Elementary School.

Q. And the address of that school is 710 5th Street [Lincoln, Illinois]?

A. Yes.”

¶ 34 The parties later stipulated that Jefferson Elementary School was an active school as of

January 14, 2016. However, the parties did not stipulate that the residence was within 1000 feet

of the school. Defense counsel did not cross-examine Meister regarding how he measured the

distance between the residence and the school.

¶ 35 7. Christie Dostal

¶ 36 Christie Dostal, a forensic scientist with the Illinois State Police Forensic Science Center,

testified that she analyzed substances found at the residence for the presence of controlled

substances. Dostal testified that the substance depicted in exhibit 34 weighed 3 grams and

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tested positive for methamphetamine. She further testified that the substance depicted in

exhibit 38 weighed 5.2 grams and tested positive for methamphetamine. Dostal, who was

permitted to testify as an expert witness, also testified how she calibrated her scale:

“Q. Describe how you weighed the samples?

A. When I weigh the sample, I place a weighing dish on my balance. I then zero my

balance, and then I then add the sample to the weighing dish and record the weight.

Q. And maybe you mentioned it, but did you calibrate that machine or certify that it

is working properly in terms of weight?

A. Yes. Once a week we use a standard set of weights to check to make sure that the

balance is weighing properly.”

¶ 37 8. Closing Arguments

¶ 38 The State rested following Dostal’s testimony. Defendant declined to testify and presented

no evidence. During closing argument regarding counts I and II, defense counsel argued at

length about the credibility of Ashley Davis and Rodney Lovelett. In essence, defense counsel

argued that these two individuals were not credible because they were drug addicts and

received generous cooperation agreements from the State. Defense counsel further highlighted

that Brandon Lovelett and Robyn Johnson, the individuals who lived at the residence, did not

testify. Defense counsel also argued that Rodney was further biased because his brother lived

at the residence in which the methamphetamine lab was found.

¶ 39 Defense counsel further argued that the State failed to prove that defendant was responsible

for the methamphetamine manufacturing, arguing in part as follows:

“[The State is] trying to say, I suppose, that [defendant] is in control of this meth

lab, in control of it all. He’s the man. Did you hear one witness, one, come in and say

that [defendant] was cooking meth in his meth lab? *** That he had experience, that he

could do all of this stuff? Not one witness. Not one.”

¶ 40 In closing argument, defense counsel did not specifically mention (1) Hayes’s testimony

regarding the accuracy of the scale or (2) Meister’s testimony regarding the distance between

the residence and the school. However, counsel did argue that there were “unanswered

questions” and “inconsistencies” in the State’s evidence. In pertinent part, counsel argued as

follows:

“[Defendant] is presumed innocent right now, presumed innocent right now.

Burden of proof is on the State to prove beyond a reasonable doubt. There are, when

you dig a little bit, dig a little bit, so many unanswered questions, so many

inconsistencies, so many flaws in the State’s evidence. Unless you just want to assume

or do some guesswork, there is reasonable doubt all over this case, ladies and

gentlemen.

I ask that you strictly scrutinize the evidence. You take some time, as much time as

it takes, and collectively review the evidence; and I believe when you do and you

scratch below the surface, and you really dig into it, I believe the appropriate verdict, a

verdict that is consistent with the evidence in this case, is a verdict of not guilty.”

¶ 41 Counsel concluded by arguing that the State failed to prove defendant guilty of any of the

charges against him.

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¶ 42 9. The Jury’s Verdict

¶ 43 The jury found defendant not guilty of unlawful participation in methamphetamine

manufacturing in that defendant knowingly participated in the manufacture of 900 grams or

more of a substance containing methamphetamine (count I). 720 ILCS 646/15(a)(2)(E) (West

2016).

¶ 44 However, the jury found defendant guilty of three offenses: (1) aggravated unlawful

participation in methamphetamine manufacturing in that defendant knowingly participated in

the manufacture of 400 grams or more of a substance containing methamphetamine and the

manufacturing occurred within 1000 feet of a school (count II), (2) unlawful possession of

methamphetamine precursors (count III), and (3) unlawful possession of methamphetamine

with the intent to deliver (count IV). Id. §§ 15(a)(2)(D), 15(b)(1)(H), 20(a)(2)(C), 55(a)(2)(A).

¶ 45 D. The Sentencing Hearing

¶ 46 In November 2016, the trial court conducted a sentencing hearing at which the State

requested a 40-year sentence on count II, a 30-year sentence on count III, and a 14-year

sentence on count IV. In support of this request, the State highlighted defendant’s prior

convictions and noncompliance with parole. Defense counsel requested a sentence “closer to

the 20-year timeframe” based upon defendant’s history of drug addition, his poor upbringing,

and his lack of family support.

¶ 47 The trial court sentenced defendant to 45 years in prison on count II, 45 years in prison on

count III, and 14 years in prison on count IV, and ordered the sentences to run concurrently. In

support of these sentences, the court highlighted defendant’s criminal history and the need for

deterrence. In response to defendant’s argument that he was a drug addict, the court noted that

defendant had previously failed to take advantage of prior opportunities for drug addiction

counseling while he was in prison. Last, the court also assessed various fines and fees against

defendant.

¶ 48 This appeal followed.

¶ 49 II. ANALYSIS

¶ 50 Defendant appeals, arguing that (1) the State failed to prove him guilty beyond a

reasonable doubt for aggravated participation in the manufacture of 400 or more grams of

methamphetamine within 1000 feet of a school, (2) he received ineffective assistance of

counsel, (3) the trial court erred during sentencing by considering his drug addiction as an

“aggravating” factor, (4) the trial court erred by “punishing” him for going to trial after he

rejected the State’s guilty plea offer, and (5) the trial court erred by not identifying various

fines and fees which it imposed. We address these arguments in turn.

¶ 51 A. Defendant’s Argument That the Evidence Was Not Sufficient

¶ 52 Defendant first argues that the State failed to prove beyond a reasonable doubt that he

participated in the manufacture of 400 or more grams of methamphetamine within 1000 feet of

a school. To convict defendant of this offense, the State was required to prove beyond a

reasonable doubt that (1) defendant knowingly participated in the manufacture of a substance

containing methamphetamine, (2) the weight of the substance containing methamphetamine

weighed 400 grams or more, and (3) the participation took place within 1000 feet of real

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property comprising a school. Defendant concedes that the State proved the first proposition

but argues it failed to prove the propositions related to weight and distance. We disagree.

¶ 53 1. The Standard of Review

¶ 54 The State bears the burden of proving each element of an offense beyond a reasonable

doubt. People v. Gray, 2017 IL 120958, ¶ 35, 91 N.E.3d 876. When a defendant challenges his

conviction arguing that the evidence was not sufficient to prove him guilty, a reviewing court

must (1) consider all of the evidence in the light most favorable to the State and (2) determine

whether any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. People v. Brown, 2013 IL 114196, ¶ 48, 1 N.E.3d 888.

¶ 55 “It remains the firm holding of this court that the testimony of a single witness, if positive

and credible, is sufficient to convict, even though it is contradicted by the defendant.” People v.

Siguenza-Brito, 235 Ill. 2d 213, 228, 920 N.E.2d 233, 242 (2009). “It is the responsibility of

the trier of fact to resolve conflicts in the testimony, weigh the evidence, and draw reasonable

inferences from the facts.” People v. Bradford, 2016 IL 118674, ¶ 12, 50 N.E.3d 1112.

“Accordingly, a reviewing court will not substitute its judgment for that of the fact finder on

questions involving the weight of the evidence or the credibility of the witnesses.” People v.

McGath, 2017 IL App (4th) 150608, ¶ 26, 83 N.E.3d 671.

¶ 56 A reviewing court will not reverse a defendant’s conviction “simply because there is

contradictory evidence or because the defendant claims a witness was not credible.” People v.

Mendez, 2013 IL App (4th) 110107, ¶ 17, 985 N.E.2d 1047. Instead, a reviewing court will

reverse a defendant’s conviction only when the evidence is so unreasonable, improbable, or

unsatisfactory that it justifies a reasonable doubt of the defendant’s guilt. People v. Daniels,

2016 IL App (4th) 140131, ¶ 94, 58 N.E.3d 902.

¶ 57 2. Enhancing Factors Based Upon Weight and Location

¶ 58 The Methamphetamine Control and Community Protection Act (Act), as it existed at the

time of the offense, stated that it was “unlawful to knowingly participate in the manufacture of

methamphetamine with the intent that the methamphetamine or a substance containing

methamphetamine be produced.” 720 ILCS 646/15(a)(1) (West 2016). A defendant who

participated in the manufacture of 400 or more grams but less than 900 grams of

methamphetamine or a substance containing methamphetamine was guilty of a Class X felony

and subject to a term of imprisonment of 12 to 50 years. Id. § 15(a)(2)(D). The Act further

provided that an individual committed aggravated participation in methamphetamine

manufacturing if “the methamphetamine manufacturing occurs within 1,000 feet of a place of

worship or parsonage, or within 1,000 feet of the real property comprising any school.” Id.

§ 15(b)(1)(H). If an individual was convicted of aggravated participation in the manufacture of

400 grams or more of methamphetamine, he was guilty of a Class X felony and subject to a

term of imprisonment of not less than 15 years and not more than 60 years. Id. § 15(b)(2)(D).

¶ 59 3. Sufficiency of the Evidence: Weight

¶ 60 Defendant argues that the State failed to prove beyond a reasonable doubt that he

participated in manufacturing 400 or more grams of methamphetamine because Hayes did not

“calibrate” his scale. We disagree.

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¶ 61 In this case, Hayes testified that he weighed two methamphetamine “cooks,” which

respectively weighed 550.3 and 560.9 grams. Regarding how he weighed the first “cook,”

Hayes testified as follows:

“Q. Did you seek to weigh the contents of that [bottle]?

A. Yes.

Q. How do you go about doing that?

A. I take a—I get my scale out. I check the internal components of it with weights.

Then I take a sterile vessel. I will place it on the scale, record the weights on a ***

worksheet, as well as photograph it. Then I will empty the contents of the bottle into

that same vessel and record that weight, subtract the empty weight from the total

weight, which gives me my net weight of the contents.

Q. You did that in this case with this [bottle]?

A. Correct.

***

Q. And you calibrated this machine before you used it?

A. Not necessarily calibrated it, but I just checked it against the known weights.”

(Emphasis added.)

¶ 62 We first note that the jury had the responsibility, not this court, to determine Hayes’s

credibility and the reasonable inferences to be drawn from his testimony. McGath, 2017 IL

App (4th) 150608, ¶ 26. Certainly, based on Hayes’s testimony, a jury could have found that

the scale was not calibrated and therefore any resulting measurement was invalid. However, as

shown by the jury’s verdict, the jury in this case found that the scale was working correctly and

that Hayes’s testimony was credible. This court will not substitute its judgment for that of the

jury on questions involving the weight of the evidence or the credibility of the witnesses. Id.

Moreover, the testimony of a single witness, if positive and credible, is sufficient to prove a

defendant guilty beyond a reasonable doubt. Siguenza-Brito, 235 Ill. 2d at 228.

¶ 63 Second, this court must consider all of the evidence in the light most favorable to the State.

Brown, 2013 IL 114196, ¶ 48. In this case, Hayes stated that he “checked [the scale] against the

known weights.” Christie Dostal, a forensic scientist tendered as an expert witness, later

testified that she ensured that her scale was working by using “a standard set of weights to

make sure that the [scale] is weighing properly.” Dostal’s expert testimony essentially

endorsed Hayes’s lay testimony regarding how he ensured that his scale was working properly.

When Hayes’s testimony is considered in the light most favorable to the State, a reasonable

jury could find the essential elements of the crime beyond a reasonable doubt. Siguenza-Brito,

235 Ill. 2d at 228.

¶ 64 We add that the testimony of Hayes upon which defendant relies in support of this

argument is inherently ambiguous. That is, a jury could reasonably find that the steps Hayes

described in his testimony regarding his efforts to ensure the scale was accurate constituted

“calibrating the machine.” Yet, when Hayes was specifically asked if he calibrated the

machine before he used it, he responded, “Not necessarily calibrated it, but I just checked it

against the known weights.” We note that neither the prosecutor nor defense counsel asked

Hayes to clarify this answer.

¶ 65 Part of the difficulty in understanding Hayes’s testimony on this matter is uncertainty

regarding the term “calibrated.” That is, what did Hayes understand that term to mean and was

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his understanding of that term commonly shared by the public—in this case, the jury? Further,

Hayes’s qualifying his answer by using the adverb “not necessarily” causes additional

uncertainty as to what he meant.

¶ 66 Given that the State needed to prove this element of weight beyond a reasonable doubt, the

prosecutor could have—and should have—asked Hayes to clarify his testimony. In the absence

of that clarification, defense counsel might have argued in closing that Hayes’s testimony was

too uncertain to warrant a guilty verdict, or the jury might have reached that conclusion on its

own. And we note that defense counsel did make this argument (although somewhat obliquely)

when he asserted in closing argument that there were “so many unanswered questions, so many

inconsistencies, so many flaws” in the State’s case.

¶ 67 In any event, for the reasons previously stated, we conclude that the jury could have found

Hayes’s testimony sufficient to prove that the weight of the substance containing

methamphetamine weighed 400 grams or more.

¶ 68 4. Sufficiency of the Evidence: Distance

¶ 69 Defendant next argues that the State failed to prove beyond a reasonable doubt that the

residence was within 1000 feet of a school. 720 ILCS 646/15(b)(1)(H) (West 2016). We

disagree.

¶ 70 In this case, Inspector Meister testified that the residence was “about 609 feet” away from

Jefferson Elementary School. However, as shown below, Meister never testified how he

determined the distance between the residence and the school:

“Q. As part of your investigation in this case, did you investigate whether 1006 7th

Street [Lincoln, Illinois,] was in proximity to any locations that are considered to be an

aggravating factor?

A. Yes, I did.

Q. And what did your investigation reveal?

A. I learned that [the residence] at 1006 7th Street was about 609 feet from the

Jefferson Elementary School.

Q. And the address of that school is 710 5th Street [Lincoln, Illinois]?

A. Yes.”

¶ 71 We first note that the jury, not this court, was responsible for determining Meister’s

credibility. McGath, 2017 IL App (4th) 150608, ¶ 26. Certainly, based on Meister’s rather

limited testimony regarding distance, the jury could have found that the State had failed to

establish the elements of the offense beyond a reasonable doubt. However, as shown by the

jury’s verdict, the jury in this case found Meister’s testimony to be credible and sufficient and

therefore found that the manufacturing occurred within 1000 feet of the school.

¶ 72 Second, we must consider all of the evidence in the light most favorable to the State. Id.

Meister testified that the residence was “about 609 feet” away from the school. Defendant did

not cross-examine Meister nor did he introduce any evidence that casts doubt upon Meister’s

testimony.

¶ 73 Before this court, defendant challenges Meister’s testimony by raising the following

questions: “How did Meister ‘learn’ that the school is 609 feet away? Did he use an

instrument? If so, what instrument?”

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¶ 74 These are all legitimate questions that could have been pursued at trial by either the

prosecutor or defense counsel but were not. So, this court, like the jury, must determine the

meaning of Meister’s testimony absent any helpful clarification.

¶ 75 In construing Meister’s testimony, we conclude that his response to the question, “And

what did your investigation reveal,” that he learned the residence “was about 609 feet” from

the school does not necessarily imply this information was something Meister was told by a

third party. Instead, in context, his response could mean—and probably did—that this distance

of “about 609 feet” was something he “learned” as a result of his personal efforts.

¶ 76 When Meister’s testimony is considered in the light most favorable to the State, a

reasonable jury could find the essential elements of the crime beyond a reasonable doubt. See

Siguenza-Brito, 235 Ill. 2d at 228. Therefore, we affirm defendant’s conviction because a

reasonable jury could find beyond a reasonable doubt that defendant participated in the

manufacture of 400 or more grams of methamphetamine within 1000 feet of a school. See

Daniels, 2016 IL App (4th) 140131, ¶ 94.

¶ 77 Although we have affirmed defendant’s conviction, this is not an endorsement of the

State’s handling of this case. The State should have introduced more evidence to demonstrate

that the residence was within 1000 feet of the school. Such evidence should have included a

foundation for Meister’s testimony, such as testimony regarding how he determined the

distance between the residence and the school.

¶ 78 B. Ineffective Assistance of Counsel

¶ 79 Alternatively, defendant argues that his attorney was ineffective for failing to

cross-examine (1) Meister regarding how he measured the distance and (2) Hayes regarding

how he calibrated the scale. We disagree.

¶ 80 1. The Applicable Law

¶ 81 The sixth amendment guarantees a defendant the right to effective assistance of counsel at

all critical stages of a criminal proceeding. U.S. Const., amend. VI; People v. Hughes, 2012 IL

112817, ¶ 44, 983 N.E.2d 439. To establish a claim of ineffective assistance of counsel, the

defendant must show that counsel’s performance was (1) deficient and (2) prejudicial. People

v. Westfall, 2018 IL App (4th) 150997, ¶ 61, 115 N.E.3d 1148.

¶ 82 To establish deficient performance, a defendant must demonstrate that his attorney’s

performance fell below an objective standard of reasonableness. Id. ¶ 62. This court is highly

deferential of counsel’s performance. McGath, 2017 IL App (4th) 150608, ¶ 38. We use this

deferential standard because there “are countless ways to provide effective assistance in any

given case. Even the best criminal defense attorneys would not defend a particular client in the

same way.” Strickland v. Washington, 466 U.S. 668, 689 (1984).

¶ 83 The defendant must overcome the strong presumption that the challenged action or

inaction may have been the product of sound trial strategy. People v. Manning, 241 Ill. 2d 319,

327, 948 N.E.2d 542, 547 (2011). Counsel’s strategic choices are virtually unchallengeable on

appeal. Id. at 333. Whether and how to conduct a cross-examination is generally a matter of

trial strategy. People v. Jackson, 2018 IL App (1st) 150487, ¶ 26, 105 N.E.3d 996. The content

of a closing argument is generally a matter of trial strategy. People v. Shamlodhiya, 2013 IL

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App (2d) 120065, ¶ 15, 986 N.E.2d 204. To this point, the United States Supreme Court has

reasoned as follows:

“[C]ounsel has wide latitude in deciding how best to represent a client, and deference to

counsel’s tactical decisions in his closing presentation is particularly important because

of the broad range of legitimate defense strategy at that stage. Closing arguments

should sharpen and clarify the issues for resolution by the trier of fact [citation], but

which issues to sharpen and how best to clarify them are questions with many

reasonable answers.” (Internal quotation marks omitted.) Yarborough v. Gentry, 540

U.S. 1, 5-6 (2003).

¶ 84 To establish prejudice, a defendant must show that, but for counsel’s errors, there is a

reasonable probability that the result of the proceeding would have been different. Westfall,

2018 IL App (4th) 150997, ¶ 63. A reasonable probability is a probability which undermines

confidence in the outcome of the trial. Id.

¶ 85 A defendant’s failure to satisfy either prong negates a claim of ineffective assistance of

counsel. People v. Fellers, 2016 IL App (4th) 140486, ¶ 23, 77 N.E.3d 994. When a claim of

ineffective assistance of counsel was not raised at the trial court, this court’s review is de novo.

People v. Lofton, 2015 IL App (2d) 130135, ¶ 24, 42 N.E.3d 885.

¶ 86 2. This Case

¶ 87 a. Defense Counsel’s Performance Was Not Deficient

¶ 88 We first conclude that defendant fails to show that counsel’s performance was deficient. In

this case, defense counsel did not directly challenge the weight of the methamphetamine or the

distance between the residence and the school. However, counsel argued that defendant was

not responsible for manufacturing the methamphetamine. To this point, counsel argued as

follows:

“[The State is] trying to say, I suppose, that [defendant] is in control of this meth

lab, in control of it all. He’s the man. Did you hear one witness, one, come in and say

that [defendant] was cooking meth in his meth lab? *** That he had experience, that he

could do all of this stuff? Not one witness. Not one.”

¶ 89 If the jury found this argument persuasive (as it could have), it would have found defendant

not guilty of manufacturing 400 or more grams of methamphetamine within 1000 feet of a

school. Counsel could have reasonably concluded that a jury would find this argument more

credible than explicitly arguing that the State failed to prove the weight of the

methamphetamine or the distance between the residence and the school. We conclude this

“all-or-nothing” argument was not an unreasonable trial strategy. See Shamlodhiya, 2013 IL

App (2d) 120065, ¶¶ 16-25 (counsel’s “all-or-nothing” closing argument that defendant was

not guilty on grounds of self-defense and characterizing the possibility of involuntary

manslaughter as a “compromised” verdict was not ineffective assistance of counsel).

¶ 90 Counsel also argued at length about the credibility of Davis and Rodney. Defense counsel

emphasized they were drug addicts who, after receiving generous cooperation agreements

from the State, testified against defendant. Davis and Rodney both admitted to using

methamphetamine and other narcotics on the day of defendant’s arrest. Their testimony was

crucial to convict defendant of participation in drug manufacturing. We conclude that it was

reasonable trial strategy for counsel to focus his efforts on attacking their credibility instead of

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directly focusing on the weight of the methamphetamine and the distance between the

residence and the school. We note again this strategic decision is “virtually unchallengeable”

on appeal. Manning¸ 241 Ill. 2d at 333.

¶ 91 Furthermore, whether and how to cross-examine the State’s witnesses is generally a matter

of trial strategy. Jackson, 2018 IL App (1st) 150487, ¶ 26. Counsel could have reasonably

concluded that (1) cross-examining Hayes regarding the weight of the methamphetamine and

(2) cross-examining Meister regarding the distance between the residence and the school

would serve no purpose other than to give the State an opportunity to strengthen its case on

redirect examination.

¶ 92 Moreover, although defense counsel’s closing argument did not explicitly mention

Hayes’s testimony regarding weight or Meister’s testimony regarding distance, counsel did

argue that the State’s evidence was insufficient to prove defendant guilty beyond a reasonable

doubt. Counsel argued there were “so many unanswered questions, so many inconsistencies,

so many flaws in the State’s evidence,” and he encouraged the jury to “strictly scrutinize the

evidence.” Apparently, the jury ultimately rejected counsel’s argument regarding the

sufficiency of the State’s evidence. Nonetheless, counsel had “wide latitude” regarding the

style and substance of his closing argument. Gentry, 540 U.S. at 5-6. We conclude that

defendant falls far short of demonstrating that his attorney’s performance during closing

argument fell below an objective standard of reasonableness.

¶ 93 In passing, we note that the jury found defendant not guilty of count I (unlawful

participation in methamphetamine manufacturing in that defendant knowingly participated in

the manufacture of 900 grams or more of a substance containing methamphetamine). This not

guilty verdict on count I is evidence that counsel’s strategy of attacking the credibility of Davis

and Lovelett and arguing that defendant was not the individual responsible for

methamphetamine manufacturing was reasonable.

¶ 94 b. Defendant Fails to Show That He Was Prejudiced by Counsel’s Performance

¶ 95 Second, even if we were to assume that counsel’s performance was deficient, we conclude

that defendant fails to show that he was prejudiced by counsel’s performance. For example, if

counsel would have cross-examined Meister about how he determined distance, the State

would likely have engaged in a lengthy redirect examination in which Meister would have

testified about how he determined the residence was within 1000 feet of a school. Likewise,

had counsel cross-examined Hayes about whether the scale was working accurately, this likely

would have prompted a thorough redirect examination from the State during which Hayes

could have testified about his experience and what efforts he took to ensure that the scale was

working properly. In short, cross-examination as defendant suggests would have almost

certainly resulted in the State introducing further evidence on redirect examination, thereby

“tuckpointing” its case.

¶ 96 An experienced defense counsel might understand and appreciate the deficiencies in the

State’s presentation of the testimony of Hayes and Meister (which deficiencies we have

already discussed) and choose—entirely appropriately—to not pursue cross-examination of

these witnesses that would give the State the opportunity to present the additional information

to the jury that the State should have provided in the first place. Accordingly, defendant’s

ineffective assistance of counsel claim fails.

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¶ 97 Defendant’s ineffective assistance of counsel claim also fails because defendant’s claim of

prejudice is entirely speculative. That is, defendant’s argument is premised upon the claim that

had defense counsel “appropriately” cross-examined Hayes and Meister, he would have forced

them to disclose that their respective testimonies about weight and distance had flawed or no

foundation. However, nothing in this record supports this claim. And, indeed, as we noted

earlier, we suspect that counsel’s efforts in this regard would have served only to “tuckpoint”

the State’s case.

¶ 98 We emphasize again that to establish prejudice, a defendant must show that, but for

counsel’s errors, there is a reasonable probability that the result of the proceeding would have

been different. Westfall, 2018 IL App (4th) 150997, ¶ 63. The sort of speculation that

defendant asks this court to engage in here falls far short of that requirement.

¶ 99 C. Defendant’s Drug Addiction

¶ 100 Defendant next argues that the trial court erred during sentencing because it considered his

drug addiction as an “aggravating factor” rather than a “mitigating factor.” We categorically

reject defendant’s argument.

¶ 101 1. The Applicable Law

¶ 102 “All penalties shall be determined both according to the seriousness of the offense and with

the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. “The

trial court has broad discretionary powers when selecting an appropriate sentence.” People v.

Garcia, 2018 IL App (4th) 170339, ¶ 37, 99 N.E.3d 571. The trial court’s sentence must be

based upon the particular circumstances of the case, including (1) the defendant’s history,

character, and rehabilitative potential; (2) the seriousness of the offense; (3) the need to protect

society; and (4) the need for punishment and deterrence. Id.

¶ 103 Whether the trial court relied upon an improper factor at sentencing is a question of law

reviewed de novo. People v. Arbuckle, 2016 IL App (3d) 121014-B, ¶ 39, 60 N.E.3d 185.

“There is a strong presumption that the trial court based its sentencing determination on proper

legal reasoning, and a court of review should consider the record as a whole, rather than

focusing on a few words or statements by the trial court.” People v. Canizalez-Cardena, 2012

IL App (4th) 110720, ¶ 22, 979 N.E.2d 1014. The defendant bears the burden to affirmatively

establish that the sentence was based on an improper factor. People v. Williams, 2018 IL App

(4th) 150759, ¶ 18, 99 N.E.3d 590. The appellate court will not reverse a sentence unless it is

evident that the trial court relied upon an improper factor. People v. Bowen, 2015 IL App (1st)

132046, ¶ 49, 38 N.E.3d 98.

¶ 104 The weight to be given to any proper factor, however, is left to the sound discretion of the

trial court and will not be disturbed on appeal absent an abuse of discretion. Id. A sentence

imposed within the statutory range provided by the legislature is presumed to be proper.

People v. Charleston, 2018 IL App (1st) 161323, ¶ 16. A trial court’s sentence is an abuse of

discretion only if it is greatly at odds with the spirit and purpose of the law or is manifestly

disproportionate to the nature of the offense. Arbuckle, 2016 IL App (3d) 121014-B, ¶ 47.

¶ 105 The Unified Code of Corrections (Unified Code) (730 ILCS 5/1-1-1 et seq. (West 2016))

prescribes mitigating and aggravating factors that the trial court must consider when

determining an appropriate sentence. People v. Brunner, 2012 IL App (4th) 100708, ¶¶ 43-45,

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976 N.E.2d 27. Under the Unified Code, drug addiction is not an explicit factor in mitigation or

aggravation. 730 ILCS 5/5-5-3.1, 5-5-3.2 (West 2016). Thus, the trial court is not required to

view drug addiction as a mitigating factor. People v. Madej, 177 Ill. 2d 116, 139, 685 N.E.2d

908, 920 (1997). Instead, a history of substance abuse is a “double-edged sword” that the trial

court may view as a mitigating or aggravating factor. People v. Mertz, 218 Ill. 2d 1, 83, 842

N.E.2d 618, 662 (2005). To this point, the Illinois Supreme Court has explained as follows:

“[Defendant’s] premise is that since drugs are partly to blame for his actions, the

defendant is somehow less culpable and should not suffer the ultimate penalty for his

criminal behavior. Simply stated, the sentencing judge was under no legal obligation to

subscribe to this suggestion. To the contrary, the sentencing judge was free to

conclude, under the circumstances, that defendant’s drug history simply had no

mitigating value but was, in fact, aggravating.” People v. Shatner, 174 Ill. 2d 133, 160,

673 N.E.2d 258, 270 (1996).

¶ 106 2. This Case

¶ 107 In hyperbolic language, defendant argues that the trial court’s “reliance on [defendant’s]

criminal history without acknowledging the patently obvious connection of these offenses to

his substance abuse problem weaponized his addiction against him. It turned a mitigating

factor into an aggravating factor.” We reject defendant’s argument.

¶ 108 First, we conclude that defendant’s drug addiction is not a per se mitigating factor. See 730

ILCS 5/5-5-3.1 (West 2016). Instead, the trial court may view drug addiction as an aggravating

factor, if it is so inclined. Shatner, 174 Ill. 2d at 160. Accordingly, the trial court did not

“weaponize” defendant’s addiction while sentencing him. Instead, the court could have

properly concluded that defendant’s drug addiction lessened his rehabilitative potential,

increased the seriousness of the offense, increased the need to protect society, and increased

the need for deterrence. Id.; see Garcia, 2018 IL App (4th) 170339, ¶ 37. Thus, we conclude

that the trial court did not consider an improper factor when sentencing defendant. Arbuckle,

2016 IL App (3d) 121014-B, ¶ 39.

¶ 109 Second, although the trial court’s sentence exceeded the State’s request, the sentence was

still within the statutory range provided by the legislature. See 720 ILCS 646/15(a)(2)(D)

(West 2016). We also note that the trial court was not bound by the State’s sentencing

recommendation. People v. Means, 2017 IL App (1st) 142613, ¶ 16, 74 N.E.3d 43. Further, the

court reasoned that defendant’s prior criminal history and the need for deterrence required a

longer criminal sentence. See Garcia, 2018 IL App (4th) 170339, ¶ 37. Based upon all of this,

we conclude that the trial court’s sentence was not an abuse of discretion. Charleston, 2018 IL

App (1st) 161323, ¶ 16.

¶ 110 D. The “Trial Tax”

¶ 111 Defendant next argues that the trial court “improperly punished” him for exercising his

right to trial. We disagree.

¶ 112 1. The Applicable Law

¶ 113 A trial court may not punish a defendant for exercising his right to a trial. People v.

Johnson, 2018 IL App (1st) 153634, ¶ 18, 107 N.E.3d 333. It must be “clearly evident” that a

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harsher sentence resulted from a defendant’s demand for a trial. People v. Jones-Beard, 2019

IL App (1st) 162005, ¶ 26. “This evidence can come when a trial court makes explicit remarks

concerning the harsher sentence [citations], or where the actual sentence is outrageously higher

than the one offered during plea negotiations [citation].” Id. However, “the mere fact that the

defendant was given a greater sentence than that offered during plea bargaining does not, in

and of itself, support an inference that the greater sentence was imposed as a punishment for

demanding a trial.” People v. Carroll, 260 Ill. App. 3d 319, 348, 631 N.E.2d 1155, 1174

(1992). In determining whether it is clearly evident that a harsher sentence resulted from a

defendant’s demand for a trial, the appellate court considers the record as a whole instead of

focusing on isolated statements made by the trial court. Jones-Beard, 2019 IL App (1st)

162005, ¶ 26.

¶ 114 Illinois Supreme Court Rule 402(d)(1) (eff. July 1, 2012) states that the trial court “shall

not initiate plea discussions.” However, at the request of both the State and the defendant, the

rule provides that the trial court “may participate in plea discussions.” Id. At the end of the

Rule 402(d) conference, the trial court “may make a recommendation as to what an appropriate

sentence would be.” Id.

¶ 115 2. This Case

¶ 116 Here, the trial court conducted a conference pursuant to Illinois Supreme Court Rule

402(d) (eff. July 1, 2012), in which in exchange for defendant’s pleading guilty to count I, the

State offered to dismiss counts II, III, and IV and agreed to a 25-year prison sentence. The trial

court noted that based upon the information in the complaint and defendant’s prior criminal

history, the court was “more inclined to sentence [defendant] in the extended term range of at

least 30 years, if not more.” Ultimately, defendant rejected the State’s offer and proceeded to

trial. The trial court later sentenced defendant to 45 years in prison for count II, 45 years in

prison for count III, and 14 years in prison for count IV and ordered the sentences to run

concurrently.

¶ 117 We conclude that it is not “clearly evident” that the trial court punished defendant for

exercising his right to a trial. See Jones-Beard, 2019 IL App (1st) 162005, ¶ 26. First, the trial

court was not bound by the State’s sentencing recommendation. Means, 2017 IL App (1st)

142613, ¶ 16. Second, it is not clearly evident that the trial court imposed a harsher sentence

because of defendant’s jury demand. Regarding the Rule 402(d) conference, the trial court

stated that it was “inclined to sentence [defendant] in the extended term range of at least 30

years, if not more.” The phrase “if not more” certainly includes the trial court’s ultimate

sentence of 45 years. Defendant fails to cite any other statement which could establish that the

trial court punished him for exercising his right to a trial. Accordingly, we conclude that the

trial court did not impose a harsher sentence as a result of defendant’s demand for a jury trial.

See Jones-Beard, 2019 IL App (1st) 162005, ¶ 26.

¶ 118 In passing, we note that trial courts may avoid the issue raised in this appeal by declining to

engage in Rule 402(d) conferences. Ill. S. Ct. R. 402(d) (eff. July 1, 2012). Rule 402(d) permits

but does not require trial courts to engage in such conferences, and many experienced trial

judges refuse to engage in such conferences because those judges deem them both unseemly

and unnecessary. Experience also shows that the number of negotiated guilty pleas before such

judges is no less than the number of negotiated guilty pleas arising from Rule 402(d)

conferences.

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¶ 119 E. Fines and Fees

¶ 120 Last, defendant argues we “should remand this matter with instructions to the trial court to

identify and specify the elements of the ‘Court Costs’ imposed, as well as the statutory

authority for those elements.” Commendably, the State investigated this matter and concedes

that the trial court improperly fined defendant $240. Defendant has accepted the State’s

concession. However, while this appeal was pending, the Illinois Supreme Court promulgated

Illinois Supreme Court Rule 472 (eff. Mar. 1, 2019). This rule provides that in criminal cases,

the trial court “retains jurisdiction” even during “the pendency of an appeal” to correct

“[e]rrors in the imposition or calculation of fines, fees, assessments, or costs.” Ill. S. Ct. R.

472(a)(1) (eff. Mar. 1, 2019). Accordingly, we decline to address this matter because the trial

court still has jurisdiction to correct the error.

¶ 121 III. CONCLUSION

¶ 122 For the reasons stated, we affirm defendant’s conviction. As a part of our judgment, we

award the State its $75 statutory assessment against defendant as costs of this appeal. 55 ILCS

5/4-2002(a) (West 2016).

¶ 123 Affirmed.

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