Appeal from the Circuit Court OF ILLINOIS of Winnebago County.Honorable Ronald J. White, Judge, Presiding No. 06--CF--581
PRESIDING JUSTICE JORGENSEN delivered the opinion of the court: Following a bench trial, the court found defendant, Jerry N. Clark, guilty of possession with intent to deliver between 1 and 15 grams of heroin (720 ILCS 570/401(c)(1) (West 2006)) within 1,000 feet of a public park (720 ILCS 570/407(b)(1) (West 2006)), a Class X felony. The trial court initially sentenced Clark to a 40-year, extended-term sentence but, following a motion-to-reconsider hearing, reduced the sentence to 25 years' imprisonment. Clark appeals, alleging: (1) insufficient evidence; (2) a due process violation; and (3) ineffective assistance of counsel during the plea negotiation process. We affirm.
On February 17, 2006, in what defense counsel later characterized as a preliminary hearing, defendant appeared before Judge Fernando L. Englesma. Judge Englesma informed him of the charges against him and the potential sentences. Regarding count I, on which defendant ultimately was convicted, Judge Englesma stated:
"I have [count I], a criminal complaint charging that on February 10 *** [defendant] within 1,000 [feet] of [Bressler Park], knowingly and unlawfully possessed, with the intent to deliver, in violation of [section 401(c)(1)], one gram or more but less than 15 grams of a substance containing heroin ***.
It's charged as a class X felony, punishable anywhere from six to thirty years in the Department of Corrections, six to sixty years if extended term applies ***."
Regarding count II, which the State ultimately dismissed following the close of evidence at trial, Judge Englesma stated:
"In [count II], there is a criminal complaint charging that *** [defendant] *** within 1,000 feet of [Bressler Park], knowingly and unlawfully delivered to Tyrone Williams less than 10 grams of a substance containing heroin, *** a Class 1 felony punishable from four to fifteen years ***, four to thirty years if extended term applies."
Judge Englesma asked defendant if he understood the charges and defendant replied "yes." Judge Englesma then asked, "Plea of not guilty?" and defense counsel answered "yes." Judge Englesma then directed the case to a new courtroom and set the next hearing for March 31, 2006. Although it was not mentioned at the preliminary hearing, defendant also was charged with unlawful use of a weapon, a Class X felony, in case No. 05--CF--2827.
On March 31, 2006, in what defense counsel later characterized as an arraignment, defendant appeared before Judge Edward Prochaska. Judge Prochaska stated, "On [counts I and II], *** I have an indictment for you." Defense counsel replied, "Receive and acknowledge, your Honor, waive a reading, enter a plea of not guilty."
On September 6, 2006, defense counsel asked the trial court for a Rule 402 conference. 177 Ill. 2d R. 402. On December 7, 2006, approximately one month before the case was set to go to trial, the court held a Rule 402 conference. The court first addressed defendant regarding the matter:
"Your attorney *** is asking that, and the prosecutor also is asking, that we do what we call a 402 conference. It's from Supreme Court Rule 402. What your attorney is asking on your behalf and the prosecutor, that we go back in chambers, and you have a number of cases pending, and we're going to try to resolve it.
They'll tell me about the cases, tell me about your background, tell me about your history, and we're going to try to resolve that. Do you have any objection if we do that?" The defendant stated that he did not object.
Following the Rule 402 conference and following a subsequent, private discussion with defendant, defense counsel stated, "I've talked with [defendant], and I've uncovered a bit of recalcitrance, so I left him to stew about it. I pointed out all the advantages and disadvantages of his situation, and he can think about it." Defense counsel did not state on the record what, exactly, he told defendant regarding the State's plea offer. The court stated, "If there's no agreement, we'll be ready to try the case on January 8." The parties did not reach an agreement.
At a hearing on January 8, 2010, defense counsel answered ready for trial and indicated that defendant would be electing a bench trial. The trial court accepted defendant's jury waiver. There was no discussion regarding defendant's potential sentences.
On January 16, 2007, the case proceeded to a bench trial. Several officers testified to the following facts regarding a hand-to-hand drug transaction and defendant's subsequent flight and ultimate arrest. During the early morning hours of February 10, 2006, several Rockford police officers were involved in a narcotics investigation, the target of which was a known drug dealer, Tyrone Williams. The officers anticipated that Williams would sell illegal drugs to a hired informant. However, presumably before Williams interacted with the informant, the officers observed him accept what they took to be illegal drugs from defendant in a hand-to-hand transaction. The hand-to-hand transaction took place on the corner of Auburn and Furman Streets. Although minimal evidence was disclosed at trial regarding the hand-to-hand transaction, count II alleged that defendant delivered heroin to Williams.
Rockford police detective Robert Reffet was stationed close to the Auburn and Furman intersection and witnessed the hand-to-hand transaction from the nearby vantage point of Wayne's Feed Store. Rockford police detective Richard Gambini received word of the transaction from Reffet and drove to the intersection. Apparently upon seeing Gambini, defendant began to run south down Furman Street. Williams had already departed to the north, toward the Central Park Tap. Rockford police sergeant Mark Welsh pulled across a sidewalk in front of defendant in an attempt to stop defendant's escape. At that point, Gambini saw defendant throw something to the ground. Welsh and several other officers physically struggled with defendant before arresting him. While Welsh and the other officers struggled with defendant, Gambini searched for the item that he saw defendant discard. Gambini found a bag containing 24 small Ziplock baggies, each of which contained a substance later determined to be heroin. Additionally, the officers recovered from defendant's person $163 in cash and a cellular telephone. Welsh testified that, in Rockford, heroin was typically sold for $100 per gram, in packets ranging from 0.1 grams to 0.5 grams, and that street level dealers typically used cellular telephones to communicate with their clients and their sources.
At one point in the trial, as relevant to defendant's due process claim on appeal, defense counsel sought to establish whether defendant was right- or left-handed. The purpose of this seems to have been to show that it may have been awkward for defendant to discard the plastic baggies in the manner described by police. In order to demonstrate his handedness, defense counsel requested that defendant's handcuffs be temporarily removed so that he could write his name with both his right and his left hand. This is the only reference in the record that defendant was shackled during his trial.
After defendant's arrest, Welsh returned to the scene to measure the distance from the spot of arrest to Bressler Park. As is critical to defendant's sufficiency claim on appeal, Welsh testified:
"A. I wanted to use a rolling measure tape to determine the exact distance from the location where we arrested the defendant to *** Bressler *** Park, [a public park].
Q. Okay. And what was that distance?
A. It was about 920 feet." (Emphasis added.)
On cross-examination, defense counsel elicited from Welsh that, in his written police report, he had stated that he began his measurement from the corner of Auburn and Furman Streets, not, as he testified at trial, from the 100 or so feet south of that intersection on Furman where defendant had been arrested.
At closing argument, defense counsel again noted the inconsistency between Welsh's written police report and his testimony at trial regarding the starting position of his measurement. The State responded that the inconsistency was immaterial.
The State then informed the trial court that it would be dismissing count II, regarding the (unconfirmed) substance that defendant delivered to Williams before he fled from police and dropped the packets of heroin that he was charged in count I with possessing with intent to deliver .
In ruling, the trial court recited certain facts of the case. The trial court noted the discrepancy between Welsh's police report and Welsh's testimony and stated that it would make its ruling based on the measurement to Bressler Park from the spot of the arrest, not from the spot of the hand-to-hand transaction. In recounting the various landmarks to which the officers had testified in describing the location of the crime (i.e., Wayne's Feed Store, the intersection of Auburn and Furman Streets, and Central Park Tap), the trial court stated that it was "familiar with that location." Based on the evidence presented, the trial court found defendant guilty of count I, possession with intent to deliver within 1,000 feet of a public park. The court later sentenced defendant to 40 years' imprisonment, finding that defendant's criminal history qualified him for extended-term sentencing.
On August 2, 2007, defendant, still represented by the same attorney, moved to reconsider his sentence. On January 17, 2008, at a status hearing prior to the hearing on the motion to reconsider the sentence, defense counsel requested transcripts of the earlier proceedings because he had some concern as to whether defendant had ever been admonished concerning the possibility of extended-term sentencing. On March 20, 2008, at another status hearing, defense counsel again raised the issue of defendant's apparent lack of awareness that he would be subject to an extended-term sentence, referencing in particular the Rule 402 conference:
"COUNSEL: If we could just sit down, I might remind the Court of its comments following *** that 402 conference.
THE COURT: You understand a 402 conference is an attempt to resolve the issues. And the defendant chose not to resolve it in that manner. The defendant had a right to a jury trial and he waived that right to a jury trial and had a bench trial, and that's the purpose of a 402 conference. An agreement couldn't be reached.
COUNSEL: *** Now, the Court should understand that when these conferences do take place the Court--put it this way, the judge; let's not be so impersonal. The judge will frequently say I think this is a good offer; I think this is a bad offer and here is what I would do in the event of; that such a conversation did take place. I advised the defendant of what took--of the conversations.
THE COURT: Based on a plea agreement?
COUNSEL: No, based upon the sum total of that conference. And the defendant made his decision as to whether or not he would accept a recommendation or that he would pursue his fortunes at trial.
I am just asking for the opportunity to and in a private setting to remind the Court of what it said. There is no record of what the Court said. I am an officer of this court. I am not going to misrepresent anything which I believe I heard from you. And I think that in all fairness this should take place.
THE COURT: That's up to [the State].
COUNSEL: *** Certain representations were made; certain things were said. I have a pretty good recollection of what was said and I will just simply file an ...