People v. Miramontes , 2018 IL App (1st) 160410 ( 2019 )

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Appellate Court Date: 2019.01.02
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People v. Miramontes, 2018 IL App (1st) 160410Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption CARLOS MIRAMONTES, Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1-16-0410
Filed September 28, 2018
Decision Under Appeal from the Circuit Court of Cook County, No. 13-CR-4699; the
Review Hon. Matthew E. Coghlan, Judge, presiding.
Judgment Reversed and remanded.
Counsel on James E. Chadd, Patricia Mysza, and Daniel T. Mallon, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Annette Collins, and Whitney Bond, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
Presiding Justice Delort and Justice Hoffman concurred in the
judgment and opinion.
OPINION
¶1 Following a 2015 bench trial, the defendant-appellant, Carlos Miramontes, was convicted
of possession of between 400 and 900 grams of methamphetamine (720 ILCS 646/60(b)(5)
(West 2012)) and sentenced to nine years’ imprisonment. On appeal, the defendant contends
that his conviction should be reduced from a Class X to a Class 3 felony because the State
failed to prove that he possessed between 400 and 900 grams of a substance containing
methamphetamine. He also contends that his defense counsel was ineffective for stipulating
to the weight of the substance containing methamphetamine. Both contentions rest upon trial
testimony that the nonhomogenous substance recovered by police was commingled prior to
testing. For the reasons stated below, we reverse the defendant’s conviction and sentence and
remand the case to the circuit court of Cook County for a new trial.
¶2 BACKGROUND
¶3 On or about February 11, 2013, the defendant was charged with possession of 400 or
more grams, but less than 900 grams, of a substance containing methamphetamine with the
intent to deliver.
¶4 At trial, the State offered evidence that customs authorities told the police of a parcel
being shipped, according to the label, to “Carlos Montes” at a particular address in Illinois.
The police took the parcel to the police station, where a drug-sniffing dog “made a positive
alert.” The police opened the parcel, which contained a saddle of leather and plaster. Police
sawed open the saddle, revealing three taped-up plastic bags imbedded in the plaster. The
bags contained “clear with a tint of whitish” crystallized rocks that police believed to be
methamphetamine. In sawing open the saddle, the bags were destroyed, so police put the
substance from all three bags into a single plastic bag that they then placed in the parcel
under the saddle. They inserted a device in the parcel that would send a radio signal when a
wire was broken by opening the parcel. They then resealed the parcel.
¶5 An officer in a parcel-delivery uniform delivered the parcel to the address on the label,
which was a single-family home. The defendant took the parcel from the officer at the front
gate of the home and returned inside the home. A little over an hour later, the device signaled
that the wire had been broken, and police entered the home. An officer saw the defendant try
to hide the parcel under the back porch of the home. The defendant then ran back into the
home, where he was arrested. Police recovered the parcel, which had only one flap open. The
saddle and suspected methamphetamine were still inside.
¶6 The parties stipulated that police recovered and inventoried a parcel holding a saddle that
“contained a white crystalline substance, suspect methamphetamine.” They further stipulated
that a forensic chemist at the Illinois State Police crime laboratory received the sealed item,
weighed and tested the crystalline substance, and found it to be 415 grams of a substance
containing methamphetamine.
¶7 At trial, defense counsel repeatedly argued that there was no evidence that the defendant
knowingly possessed methamphetamine. The court subsequently found the defendant guilty
of possession of between 400 and 900 grams of methamphetamine, a Class X felony due to
the weight of the methamphetamine.
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¶8 In his posttrial motion, defense counsel again argued that there was no evidence that the
defendant knowingly possessed methamphetamine. Following arguments, the court denied
the motion and sentenced the defendant to nine years’ imprisonment.
¶9 The defendant filed a notice of appeal, alleging that the State failed to prove he possessed
between 400 and 900 grams of a substance containing methamphetamine and that his defense
counsel rendered ineffective assistance of counsel when he stipulated to the weight of the
substance. Both contentions rested upon witness testimony that the nonhomogenous
substance recovered by police, which was originally in three separate bags, was commingled
into one bag prior to testing, making it “impossible to know whether each of the bags
contained methamphetamine, or whether the officers mixed what was mostly a legal
substance with a small amount of methamphetamine to create 415 grams of a ‘substance
containing methamphetamine.’ ” In an unpublished order in accordance with Illinois
Supreme Court Rule 23 (eff. Apr. 1, 2018), this court affirmed the judgment of the trial court,
holding that the State did not fail to prove beyond a reasonable doubt that the defendant
possessed between 400 and 900 grams of methamphetamine. In that order, we declined to
consider the defendant’s ineffective assistance of counsel claim as we found there was an
insufficient record. The defendant subsequently filed a petition for rehearing, requesting that
this court remand his case to the circuit court of Cook County for an evidentiary hearing to
determine whether his trial counsel rendered ineffective assistance. We granted the
defendant’s petition for rehearing, withdrew our Rule 23 order, and requested that the parties
submit supplemental briefing, which we have now considered.
¶ 10 ANALYSIS
¶ 11 We note that we have jurisdiction to review this matter, as the defendant filed a timely
notice of appeal and a timely petition for rehearing. Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); R.
606 (eff. July 1, 2017); R. 367 (eff. Nov. 1, 2017); R. 612(b)(14) (eff. July 1, 2017).
¶ 12 On appeal, the defendant contends that his conviction should be reduced from a Class X
to a Class 3 felony, the lowest class of possessory offenses for methamphetamine, because
the State failed to prove that he possessed between 400 and 900 grams of a substance
containing methamphetamine. He bases that claim on testimony that the nonhomogenous
substance recovered by police in three separate bags was commingled into one bag prior to
testing, making it impossible to determine the exact amount of methamphetamine present.
The defendant also contends that his trial counsel rendered ineffective assistance by
stipulating to the weight of the substance despite knowing that the substance had been
commingled before testing. The defendant requests that this court either reduce his
conviction to a Class 3 felony or remand his case to the trial court for an evidentiary hearing
to determine whether his defense counsel was ineffective. Because we find the ineffective
assistance of counsel issue to be dispositive, we turn to it first.
¶ 13 Claims of ineffective assistance of counsel are reviewed through a two-part test that was
announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668(1984), and adopted by our supreme court. People v. Burrows, 148 Ill. 2d 196, 232 (1992).
To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate both
that (1) counsel’s performance was objectively unreasonable under prevailing professional
norms and (2) the defendant was prejudiced thereby. People v. Veach, 2017 IL 120649, ¶ 30
(citing People v. Domagala, 2013 IL 113688, ¶ 36). A defendant must overcome the strong
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presumption that the challenged action or inaction of counsel was the product of sound trial
strategy and not incompetence. People v. King, 316 Ill. App. 3d 901, 913 (2000). We review
claims of ineffective assistance of counsel de novo. People v. Demus, 2016 IL App (1st)
140420, ¶ 21.
¶ 14 In support of his argument, the defendant stresses that in People v. Jones, 174 Ill. 2d 427,
429 (1996), our supreme court held that when substance samples are not sufficiently
homogenous, a portion from each container or sample must be tested in order to determine
the contents of each container or sample. In arguing that his defense counsel failed to hold
the State to that burden of proof, he directs us to People v. Coleman, 2015 IL App (4th)
131045. In Coleman, an officer tested the contents of only 1 of 15 bags and found it to be
cocaine before dumping the contents of the 15 bags into a single evidence bag. Id. ¶ 2.
However, the parties stipulated that the content of the evidence bag was 926 grams of
cocaine. Id. The defendant was then convicted of delivering more than 900 grams or more of
a substance containing cocaine. Id. ¶ 1. On appeal, this court reversed the third-stage
dismissal of his petition for postconviction relief in which he alleged ineffective assistance of
counsel. We held that defense counsel rendered ineffective representation by stipulating to
the contents of all 15 bags when only 1 had been tested. Id. ¶¶ 83-86. In so holding, we
stated:
“In short, to prove, beyond a reasonable doubt, that each of the 15 bags contained
cocaine, there was no way around Jones’s requirement of chemically testing the
contents of each bag—unless a stipulation freed the State from that requirement. That
is what the stipulation did, and it was prejudicial to the defense.” Id. ¶ 83.
¶ 15 The State counters that defense counsel here had a clear strategy of challenging the
knowledge element of the offense and that the stipulation fell squarely into that strategy. We
are not persuaded by this argument. While it is clear from the record that defense counsel’s
strategy was to challenge whether the defendant knowingly possessed the methamphetamine,
that strategy did not require defense counsel to stipulate to the weight of the substance. The
knowledge element of the offense is an entirely separate element from the weight of the
substance, and challenging one of those elements did not preclude defense counsel from
challenging the other. Had defense counsel not stipulated to the weight, but had instead
compelled the State to prove the weight by calling the chemist to testify to the details of
testing the substance, it would not have interfered with his strategy of challenging the
knowledge element.
¶ 16 Although we cannot preclude the possibility that the chemist here would testify to testing
all or most of the entire crystalline substance, our focus is on the defense counsel’s failure to
require the State to prove an important element of its case by providing the chemist’s
testimony. The record clearly establishes that defense counsel was aware of the commingling
before entering into the stipulation. In fact, he elicited testimony regarding the commingling
in cross-examining two police officers before the stipulation was entered into evidence.
Accordingly, defense counsel had a duty to at least raise the defense that the State had failed
to test each bag individually. There is no reasonable trial strategy which would support
defense counsel’s stipulation that freed the State from proving the most important element of
its case. Accordingly, we conclude that entering into the stipulation was representation that
fell below an objective standard of reasonableness.
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¶ 17 Having determined that defense counsel’s performance fell below the reasonable
standard, we now consider whether it prejudiced the defendant. Prejudice is a reasonable
probability of a different result of the proceeding absent counsel’s deficiency, and a
reasonable probability is a probability sufficient to undermine confidence in the outcome.
Veach, 2017 IL 120649, ¶ 30.
¶ 18 In urging us to find that the defendant was not prejudiced here, the State asserts that the
weight of the substance was not an issue in the case, stating that the stipulation
“placed the [State] in a position of believing that the amount and the type of
substance delivered by defendant was not at issue in this case. Without question, had
the instant challenge been raised below it would have been addressed by the [State]
by simply calling the chemist as a witness.”
The State’s argument underscores the defendant’s point. A stipulation is conclusive as to all
matters included in it, and no proof of stipulated facts is necessary because a stipulation is a
substitute for proof that dispenses with the need for evidence. People v. Woods, 214 Ill. 2d
455, 469 (2005). And so by stipulating to the weight of the substance, defense counsel
effectively relieved the State of its burden to prove an essential element of the offense. This
clearly prejudiced the defendant. See People v. Wilkerson, 2016 IL App (1st) 151913, ¶ 53
(the greater the amount of illegal substance possessed by a defendant, the higher the offense,
and so the State must prove beyond a reasonable doubt the weight of the substance
containing the drug).
¶ 19 We find this case to be analogous to Coleman, where this court found that by testing only
1 of the 15 bags before commingling, there could only be speculation about the contents of
the remaining 14 bags. Coleman, 2015 IL App (4th) 131045, ¶ 84. Similarly here, without
the chemist’s testimony regarding testing the substance, it would have been impossible to
prove, beyond a reasonable doubt, that all three bags had contained methamphetamine before
there was commingling. Although the substance unquestionably contained an amount of
methamphetamine, exactly how much is pure speculation at this point. If the chemist had
testified that he or she was unable to determine how much of the 415 grams contained
methamphetamine, it is likely the defendant would have been convicted of a lesser offense.
Stated another way, if defense counsel had not stipulated to the weight of the substance, it is
reasonably likely that there would have been a different outcome in the defendant’s trial.
Consequently, the stipulation prejudiced the defendant.
¶ 20 Although we initially considered the record to be insufficient for us to consider the
defendant’s ineffective assistance claim, a deeper analysis, including our review of Coleman,
has led us to a different conclusion. Moreover, upon further consideration, we find there is no
need for the trial court to hold an evidentiary hearing on whether there was ineffective
assistance of counsel. Even without the lab reports or the chemist’s testimony, it is evident
that defense counsel should not have stipulated to the weight of the substance, and his doing
so prejudiced the defendant. Therefore, we hold that defense counsel rendered ineffective
assistance here.
¶ 21 We do not believe, however, that the proper remedy is to simply reduce the defendant’s
conviction to a Class 3 felony as he requests us to do. The methamphetamine possession
statute contains six different offenses addressing varying levels of possession, with the Class
3 felony being the lowest offense and designated for “[a] person who possesses less than 5
grams.” 720 ILCS 646/60(b)(1)-(b)(6) (West 2012). As discussed supra, without the
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chemist’s testimony regarding testing the substance, it is pure speculation at this point how
much of the substance contained methamphetamine. If we were to reduce the defendant’s
sentence to that of a lesser offense, it would be based upon complete conjecture as to the
appropriate “lesser” offense.
¶ 22 Indeed, the proper remedy is to grant the defendant a new trial. See People v. Young, 306
Ill. App. 3d 350, 356 (1999) (where a defendant was deprived of effective assistance of
counsel, the proper remedy is to reverse the defendant’s conviction and remand the matter for
a new trial); People v. Graham, 179 Ill. App. 3d 496, 509 (1989) (where prejudicial error
infected the verdict, the defendant is entitled to a new trial). At the new trial, the State will be
required to prove each and every element of its case without the stipulation. We note that
double jeopardy does not attach here, as there was evidence that the defendant possessed a
substance that contained some amount of methamphetamine; it is only a question of how
much methamphetamine. See People v. Wilson, 392 Ill. App. 3d 189, 202 (2009) (where the
evidence was sufficient to find the defendant guilty, but the defendant is entitled to a new
trial because of ineffective assistance of counsel, double jeopardy does not bar a retrial).
Accordingly, because defense counsel rendered ineffective assistance, we reverse the
defendant’s conviction and sentence and remand his case for a new trial.
¶ 23 In light of the foregoing analysis, we need not address the defendant’s additional
challenge that the State failed to prove he possessed between 400 and 900 grams of a
substance containing methamphetamine.
¶ 24 CONCLUSION
¶ 25 For the foregoing reasons, we reverse the defendant’s conviction and sentence, and we
remand the case to the circuit court of Cook County for a new trial.
¶ 26 Reversed and remanded.
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