Appeal from the Circuit Court of De Kalb County. No. 01-CF-330 Honorable Douglas R. Engel, Judge, Presiding.
The opinion of the court was delivered by: Justice Grometer
Following a bench trial in the circuit court of De Kalb County, defendant, Demetrius Glenn, was convicted of six counts of drug-related offenses stemming from the delivery of cocaine and heroin within 1,000 feet of a church. Three counts were related to the delivery of less than one gram of a substance containing cocaine to an undercover officer, and the other three were related to delivery of less than one gram of a substance containing heroin. Defendant was sentenced to 10 years' imprisonment. Defendant now appeals, alleging three errors. First, he contends that trial counsel was ineffective for failing to move for the disclosure of an informant until after defendant testified at trial. Second, he argues that several of the counts of which he was convicted should be vacated because they are lesser included offenses and that multiple convictions violate the one-act, one-crime rule. Third, he asserts that he was not properly admonished regarding how to preserve sentencing errors for appeal. We agree with the latter two contentions; therefore, we affirm in part, vacate in part, and remand. Because the issues raised by defendant are discrete, we will discuss the evidence as it pertains to his arguments.
I. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant first argues that trial counsel was ineffective for failing to move for the disclosure of a police informant until after the trial had commenced. Defendant raised an entrapment defense. See 720 ILCS 5/7--12 (West 2000); People v. Placek, 184 Ill. 2d 370, 380-81 (1998). Defendant contends that he was entrapped by a woman he knew who was acting as an informant for the police. Defendant testified that he met the woman through his sister a short time before the incident leading to his arrest. The woman seemed to be attracted to defendant, and they "partied" together. Defendant testified that, on May 17, 2001, the date of the incident, the woman preyed on his attraction to her to induce him to procure drugs for Mark Nachman. She told defendant that Nachman was her brother. Nachman was, in fact, an undercover police officer.
According to defendant, the woman accompanied him and Nachman on the day of the incident. Before asking him to get drugs for Nachman, she joked with defendant, hugged him, and kissed him. She then directed defendant to places where drugs could be acquired. They were unable to obtain drugs at the first two locations, but were successful in obtaining crack cocaine at the third. Defendant testified that he made no profit on the transaction; however, he did ask Nachman if he could keep a piece of cocaine, which he intended to smoke later. He acknowledged that the heroin was his and that he had acquired it before meeting Nachman that day. He denied having anything to do with the cutting or testing of the drugs. Defendant testified that he had stopped dealing drugs prior to the day of the incident. He acknowledged that he had a previous conviction of unlawful delivery of a controlled substance and also admitted prior drug use. Nachman asked defendant if he could contact defendant again, and defendant replied affirmatively. In resolving this issue, for reasons that we will explain below, we will accept defendant's version of the facts, as well as other evidence favorable to him adduced from other sources. We note that the testimony of the State's witnesses differed significantly from defendant's.
Defendant argues that he received ineffective assistance of counsel because his attorney failed to seek to ascertain the identity of the informant and to present her testimony at trial. To establish a claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below an objective standard of reasonableness and that, but for counsel's errors, a reasonable probability exists that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984); People v. Davis, 205 Ill. 2d 349, 364 (2002). A reasonable probability is one sufficient to undermine confidence in the result of the proceeding. People v. Morris, 335 Ill. App. 3d 70, 84 (2002). A claim of ineffective assistance of counsel may be disposed of on the prejudice prong of the test without first addressing whether counsel's performance was deficient. People v. Johnson, 128 Ill. 2d 253, 271 (1989). The burden is on the defendant to establish prejudice. People v. Richardson, 189 Ill. 2d 401, 411 (2000). We conclude that defendant has not sustained this burden.
As defendant raised the defense of entrapment, we must assess counsel's alleged ineffectiveness in terms of how it could have affected this defense. Defendant's claim of entrapment is based upon the informant's use of his attraction to her, which, defendant asserts, allowed the informant to manipulate him into obtaining drugs. Entrapment requires that a defendant show both that the State improperly induced him or her to commit a crime and that he or she was not otherwise predisposed to commit the offense. Placek, 184 Ill. 2d at 380-81. In resolving this appeal, we will focus on the issue of predisposition. Several factors are relevant in assessing predisposition in drug cases, including the following: (1) the defendant's initial reluctance or willingness to commit the crime; (2) the defendant's familiarity with drugs; (3) the defendant's willingness to accommodate the needs of drug users; (4) the defendant's willingness to profit from the offense; (5) the defendant's current or prior drug use; (6) the defendant's participation in cutting or testing the drugs; and (7) the defendant's ready access to a supply of drugs. Placek, 184 Ill. 2d at 381.
Defendant faces a major hurdle in his attempt to establish prejudice. As he acknowledges, the record does not disclose what the informant's testimony would have been. This alone would normally be enough to defeat defendant's claim. See People v. Holman, 132 Ill. 2d 128, 167 (1989) (rejecting ineffectiveness claim where counsel failed to call a witness and there was nothing in the record indicating that the witness's testimony would be favorable to the defendant); People v. Markiewicz, 246 Ill. App. 3d 31, 47 (1993). Defendant argues, nevertheless, that "[t]he very failure to investigate and prepare for trial in a case where the informant is so pivotal should constitute the requisite prejudice." We do not agree. Prejudice simply cannot be presumed under ordinary circumstances (Johnson, 128 Ill. 2d at 271), and defendant's request, in essence, is that we presume prejudice from counsel's conduct. Furthermore, defendant's reliance on People v. Woods, 139 Ill. 2d 369 (1990), is misplaced. In that case, the court found prejudice despite having only limited detail regarding the potential testimony of an undisclosed informant. Woods, 139 Ill. 2d at 384-85. We note that the burdens of proof in Woods and this case are dramatically different. In Woods, the burden was on the State to demonstrate that the error in question was harmless beyond a reasonable doubt. Woods, 139 Ill. 2d at 382, citing Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). Here, the burden is on defendant to show a reasonable probability that a different result would have been obtained. In the absence of information, the burden of proof is typically dispositive.
Defendant also attempts to show prejudice by asserting that the testimony of the informant may have corroborated his testimony and contradicted that of Nachman. As such, it might have enhanced defendant's credibility and diminished Nachman's. This argument is highly speculative, given that we do not know how the informant would have testified, and does not show any real probability that the result of the trial would have been different. See Holman, 132 Ill. 2d at 167. Moreover, assuming, arguendo, that the informant would have testified in the manner defendant suggests, his entrapment defense still would have failed. To demonstrate this, we will accept defendant's testimony as true and consider the issue of predisposition.
The first factor we must consider when assessing whether a defendant was predisposed to commit an offense, such that an entrapment defense is unavailable, is the defendant's reluctance or willingness to commit the crime. Placek, 184 Ill. 2d at 381. At trial, defendant testified that he had stopped dealing drugs prior to May 17, 2001. Nachman and the informant approached him on that day, and he told the two that he was done with dealing drugs. Defendant testified that he was initially unwilling to help them get drugs. However, shortly after introducing defendant and Nachman, the informant asked if defendant could "score" for her, and he replied "sure." Additionally, defendant told Nachman he could call defendant again. At best, this is extremely weak evidence of reluctance. Although he initially stated he was no longer dealing, he quickly agreed to assist the two to acquire drugs.
Second, defendant's familiarity with drugs was well established. Placek, 184 Ill. 2d at 381. He acknowledged that he had used crack cocaine in the past and that he had previously been convicted of delivery of a controlled substance. He also testified that he was in possession of heroin prior to meeting Nachman.
Third, his willingness to accommodate the needs of other users is demonstrated by the same facts that go to the first prong of the test. Placek, 184 Ill. 2d at 381. Upon being asked by the informant to "score," he agreed. Moreover, he at least accompanied Nachman and the informant to the source and actually went in to make the purchase. He told the officer that it was all right to call him in the future. Additionally, he testified that he might have intended to give the piece of crack he got from Nachman to someone else to smoke.
The fourth factor is whether defendant was willing to profit from the offense. Placek, 184 Ill. 2d at 381. Defendant did not receive any monetary profit from the transaction. However, he did ask for and receive a piece of crack cocaine. While this is minimal ...