from the Circuit Court of Livingston County No. 13CF233
Honorable Jennifer H. Bauknecht, Judge Presiding.
Attorneys for Appellant: James E. Chadd, Patricia Mysza, and
Bridget Geraghty, of State Appellate Defender's Office,
of Chicago, for appellant.
Attorneys for Appellee: Randy Yedinak, State's Attorney,
of Pontiac (Patrick Delfino, David J. Robinson, and Luke
McNeill, of State's Attorneys Ap- pellate
Prosecutor's Office, of counsel), for the People.
JUSTICE HARRIS delivered the judgment of the court, with
opinion. Justices Turner and Cavanagh concurred in the
judgment and opinion.
1 Defendant, Esmeralda Pina, pleaded guilty to unlawful
delivery of a controlled substance (720 ILCS 570/401(d)(i)
(West 2012)), and the trial court sentenced her to 30
months' probation. The court later revoked
defendant's probation and resentenced her to five years
in prison. Defendant appeals, arguing (1) the court imposed
an excessive sentence and (2) her probation-revocation
counsel was ineffective for not objecting to the State's
failure to cap its sentencing recommendation at three years
as it had agreed to do in connection with defendant's
original plea agreement. We affirm.
2 I. BACKGROUND
3 In September 2013, the State charged defendant with three
counts of unlawful delivery of a controlled substance
(id. § 401(c)(2), (d)(i)). In January 2016,
defendant pleaded guilty to one count of that offense in
exchange for the State's dismissal of the two remaining
counts and its agreement to cap its sentencing recommendation
at three years' imprisonment. At the plea agreement
hearing, the State presented its factual basis, asserting
that, if the matter proceeded to trial, it would present
evidence showing defendant sold a gram of cocaine to a
confidential police informant during a controlled drug buy.
Defendant's counsel asserted he had no objection to the
State's factual basis but noted that the lab weight of
the controlled substance at issue "was .70
grams." The trial court accepted defendant's guilty
4 In March 2016, the trial court conducted defendant's
sentencing hearing. Defendant's presentence investigation
report was submitted to the court. It showed that defendant
was 44 years old, and aside from a 1998 misdemeanor
conviction for disorderly conduct, she had no criminal
history. Regarding defendant's history of substance
abuse, the report stated defendant initially reported that
she first used cocaine in 2001 and last used on the date of
her arrest for the underlying charges in September 2013.
According to defendant, she had been using two times a week.
When asked to submit to a drug test, defendant behaved
suspiciously and failed to follow directions. Subsequently,
the author of the report learned that defendant provided
different information about her cocaine use during a February
2016 substance abuse evaluation. Specifically, during her
evaluation, defendant reported using cocaine three to six
times a day from 2011 to her arrest in 2013 and that she last
used cocaine in October 2015. When confronted with the
discrepancies in her reports, defendant asserted that she did
not remember what answers she gave during her substance abuse
evaluation but admitted using cocaine as recently as February
5 The State presented no further evidence and recommended
that the trial court impose a three-year prison sentence.
Defendant's evidence included letters from various
individuals that described good character. Her counsel then
asked that the court impose a sentence of probation.
Ultimately, the court sentenced defendant to 30 months'
probation and 180 days in jail. The court ordered that
defendant would receive credit for 2 days served and that 164
days of her jail sentence would be stayed.
6 In September 2016, the State filed a petition to revoke
defendant's probation. It alleged defendant violated her
probation by either using or testing positive for cocaine on
May 29, June 2, June 6, June 9, June 16, June 17, June 18,
July 4, and September 30, 2016. In October 2016, the State
filed a supplemental petition to revoke defendant's
probation, alleging defendant violated her probation by
testing positive for cocaine on five additional instances in
October 2016, failing to report to her probation officer on
October 17, 2016, and failing to comply with drug treatment
recommendations. Following a hearing on the matter, the trial
court ordered that defendant serve her previously stayed jail
sentence of 164 days. While incarcerated, defendant was
furloughed to participate in a residential substance abuse
treatment program. She completed that program and was
returned to the jail to complete her sentence. In December
2016, the State moved to withdraw its petitions to revoke
defendant's probation. The court granted the motion, and
defendant remained on probation.
7 In April 2017, the State filed a third petition to revoke.
It alleged defendant violated the terms of her probation by
failing to report to her probation officer on two occasions
in April 2017, by using cocaine on four occasions in March
and April 2017, and because her "whereabouts [were]
unknown." In May 2017, defendant admitted the
State's allegations, and the trial court set the matter
8 In June 2017, the State filed a fourth petition to revoke
defendant's probation. It alleged defendant failed to
report to the probation department on two occasions in May
2017 and that she used cocaine on or about May 20, May 29,
and June 5, 2017. Following a hearing that same month, the
trial court found the State proved the allegations in its
fourth petition by a preponderance of the evidence.
9 In July 2017, the trial court conducted defendant's
resentencing hearing. The court noted it had received a
presentence investigation report filed on June 28, 2017. The
report contained much of the same information as in
defendant's first presentence investigation report. It
also detailed what occurred in her case following her
original sentencing and contained the following information
regarding defendant's cocaine use and conduct while on
"There has not been any significant period of time
throughout [defendant's] Probation in which she was not
using cocaine, with the exception of when she was in
residential treatment or incarcerated. [Defendant] was
sentenced to Probation on 03-29-16. She began using cocaine
again on 05-07-16. She continued using cocaine until entering
residential treatment in July of 2016. She was released from
treatment on 08-16-16. She tested positive and was arrested
on 09-30-2016. She bonded out of jail that same day and
continued to use cocaine while out on bond until [the stay
was lifted on her 164-day jail sentence] on 10-20-2016. She
was released from jail on 01-28-2017. She used cocaine on
03-13-2017. She has used cocaine regularly since while ***
the current [petitions to revoke were pending].
What is most concerning is *** defendant's increase of
use in the most recent months while facing resentencing. ***
It should be brought to the Court's attention *** the
extent in which *** defendant is using. The following are a
few tests in which to take note:
04-12-17-level of 4072 ng/mL
05-31-17-level of 4387 ...