FIRST DIVISION
February 2, 2004

No. 1-01-3617

 

JUSTICE McBRIDE delivered the modified opinion of the courtupon denial of rehearing:

Patrick Rucker (Rucker) was charged by information with onecount of possession of a controlled substance with intent todeliver within 1,000 feet of a school and one count of possessionof a controlled substance with intent to deliver. The courtentered a directed finding in favor of Rucker on the first countand, after a bench trial, convicted Rucker of possession of acontrolled substance with intent to deliver and sentenced him to 12years' imprisonment. In this appeal, he argues (1) that thecircuit court improperly failed to consider his posttrial pro semotion for reduction of his sentence; (2) that the circuit courtshould have conducted an inquiry into his allegations ofineffective assistance of counsel; (3) that the State failed toprove his guilt beyond a reasonable doubt; (4) that his trialcounsel was ineffective; and (5) that he was improperly sentencedas a Class X offender.

The evidence at trial was as follows. Officer Golosinskitestified for the State that in the evening of February 8, 2001, hewas part of a narcotics surveillance operation at 3909 West JacksonStreet in Chicago, Cook County, Illinois. From approximately 70 to100 feet away, Golosinski saw Rucker standing alone on the southside of Jackson Street just west of Springfield Avenue. Golosinskiwas in uniform and used binoculars to aid his vision. He describedthat he saw a black male approach Rucker, engage in a conversationwith him, and then exchange "what appeared to be United Statescurrency in the form of green paper." Rucker accepted the money,stuffed it in the front of his pants, reached into his right jacketpocket and withdrew an item, which he gave to the individual, whothen departed. Golosinski observed two similar transactions withother individuals who approached Rucker. Golosinski lost sight ofRucker, who walked away momentarily, but returned several minuteslater, at which time Golosinski saw a black two-door vehicle pullup on the north side of Jackson Street just west of SpringfieldAvenue. Rucker approached the driver of the vehicle and had abrief conversation with him. The individual then handed whatGolosinski believed was United States currency to Rucker, who tookit, shoved it down the front of his pants, reached into his rightjacket pocket, removed an item, and gave it to the driver of thevehicle.

After observing the fourth transaction, Golosinski radioed hisenforcement team with a description of Rucker and his location. Golosinski saw one of the enforcement officers, Officer Carroll,approach Rucker. At Golosinski's request, Carroll checked thecontents of Rucker's right jacket pocket. Carroll informedGolosinski that the pocket contained "three capsules containing awhite chunky substance," which was later "found to be cocaine." Rucker was then arrested and searched. One hundred thirty dollarsUnited States currency was recovered from his person. Golosinskiinventoried the three capsules removed from Rucker's jacket pocketunder number 2479442. On cross-examination, Golosinski explainedthat he was conducting surveillance at the particular locationwhere Rucker was apprehended because he "knew the location fromprior arrests."

Carroll also testified for the State. He stated that he wasan enforcement officer at the narcotics surveillance operation inthe area of 3909 West Jackson Street on February 8, 2001. Duringthe operation, he was directed to 3909 West Jackson, where heapprehended Rucker. Upon instruction by Golosinski, Carrollreached into Rucker's right front jacket pocket, where hediscovered "[t]hree small capsules containing a chunky rocksubstance." Rucker was then arrested.

The State and defense entered into two stipulations. Thefirst, which is at issue in this appeal, concerned the capsulesrecovered from Rucker's jacket pocket:

"[I]t would be stipulated by and between the partiesthat Officer Golosinski inventoried the recovered threeitems of suspect cocaine under inventory number 2479442. That there was a proper chain of custody maintained atall times.

That forensic chemist Gwendolyn Brister is employedby the Chicago -- Illinois State Police and is qualifiedto testify as an expert in the area of forensicchemistry.

That the chemist received the three items describedabove in a sealed condition. That the chemist weighedthe three items and found the total estimated weight tobe .6 grams. That the chemist performed tests commonlyaccepted in the area of forensic chemistry forascertaining the presence of a controlled substance. Andthat after testing one of the three items the chemist'sopinion within a reasonable degree of scientificcertainty is that the tested item was positive for thepresence of cocaine in the amount of .2 grams."

The parties also stipulated:

"[I]nvestigator E.J. Tansy is employed by the CookCounty State's Attorney as an investigator.

That he received a request to measure the distancefrom 3909 West Jackson to the Delano Grammar Schoollocated at 3905 West Wilcox. That Investigator Tansywent to 3909 West Jackson and measured the distance fromthe Delano Grammar School and found that distance to be424 feet."

The State rested, and Rucker moved for a directed finding. The court granted the motion with regard the charge of possessionof a controlled substance with intent to deliver within 1,000 feetof a public school and denied the motion with regard to theremaining charge. The defense rested without presenting anyevidence. The court found Rucker guilty of possession of acontrolled substance with intent to deliver.

On August 30, 2001, the trial court denied Rucker's motion fora new trial. Also, the parties and the court agreed that Ruckerwas Class X eligible because of at least two previous Class 2felony convictions. After hearing aggravation and mitigation, thecourt sentenced Rucker to 12 years' imprisonment.

On September 18, 2001, Rucker's attorney, identified as the"State Appellate Defender/Public Defender of Cook County," filedthe notice of appeal in this case. The trial court grantedRucker's attorney's requests to appoint counsel for Rucker onappeal and to provide copies of the record and report ofproceedings without cost, which were filed simultaneously with thenotice of appeal. That same day, the clerk file stamped three prose motions, which were mailed by Rucker on September 10, 2001: (1)a motion for common law record and trial transcript; (2) anapplication to proceed as a poor person and for appointment ofcounsel; and (3) a motion for reduction of sentence. In his motionfor reduction of sentence, Rucker claimed that his sentence shouldbe reduced because he "had inadequate representation by counsel"and "[t]he facts were not sufficient to support the finding ofguilt." On September 26, 2001, the court denied Rucker's pro semotion for common law record and trial transcript. The trial courtnever ruled on Rucker's pro se motion for reduction of sentence.Rucker requests that we remand his case for the court to considerhis motion and to conduct a preliminary inquiry into hisallegations of ineffective assistance of counsel. We note,however, that there are no specific allegations in the motion as tohow defense counsel was ineffective.

The State argues that the court had no obligation to considerRucker's pro se motion because Rucker was represented by counselwhen he filed the motion. It further argues that Rucker is notentitled to a hearing on his allegations of ineffective assistanceof counsel because his claim was not properly raised. Finally, theState argues that it would be a waste of judicial resources toremand this case because Rucker has separately raised the issue ofineffective assistance of counsel in this appeal and his claim ismeritless.

In reply, Rucker argues that he was not represented by counselat the time he filed his pro se motion, and it was properly beforethe court. Rucker also claims that while he has raised the issueof ineffective assistance of counsel in this appeal, unless thiscourt is inclined to reverse on that ground, it should remand thismatter to the trial court for further inquiry on Rucker's claimbecause "Rucker may [now] only raise those ineffective assistanceclaims that are apparent on the face of the record," whereas remandwould allow him the opportunity "to create a record regardingcounsel's alleged ineffectiveness." (Emphasis in original.)

Rucker also claims that we have jurisdiction over this appealdespite his unresolved pro se motion for reduction of sentencebecause "the trial court did not rule on the motion to reducesentence and thus no order was entered disposing of it." SupremeCourt Rule 606 provides that where a defendant's attorney or adefendant not represented by counsel files a motion directedagainst the judgment, a notice of appeal filed before dispositionof that motion has no effect and should be stricken by the trialcourt, regardless of whether the postjudgment motion was filedbefore or after the notice of appeal was filed. 188 Ill. 2d R.606(b). In its response brief, the State did not address Rule 606or Rucker's contention that we have jurisdiction over this appeal. However, where there is a question of our jurisdiction, we have aduty to consider it and dismiss the appeal if we find jurisdictionlacking. People v. Jenkins, 303 Ill. App. 3d 854, 856 (1999).Accordingly, we consider what effect Rucker's pro se motion forreduction of sentence has on our jurisdiction over this appeal.

In People v. Jenkins, 303 Ill. App. 3d at 856, which wasdecided before the current version of Rule 606 was adopted, thecourt held that it had jurisdiction over an appeal despite anunresolved posttrial motion, filed seven days after the notice ofappeal. It cited two supreme court cases, People v. Bounds, 182Ill. 2d 1 (1998), and People v. Laurie, 106 Ill. 2d 33 (1985), asestablishing a rule that " '[w]hen the notice of appeal is filed,the appellate court's jurisdiction attaches instanter, and thecause is beyond the jurisdiction of the trial court.'" Jenkins, 303Ill. App. 3d at 857, quoting Bounds, 182 Ill. 2d at 3. UnlikeJenkins, however, Rucker's pro se motion for reduction of sentencewas filed before the notice of appeal.

The court in People v. Everage, 303 Ill. App. 3d 1082, 1084(1999), also decided before the current version of Rule 606 wasadopted, considered its jurisdiction when a motion to reconsidersentence was filed before the notice of appeal. It held that thecircuit court retained jurisdiction over the motion, and theappellate court lacked jurisdiction until the circuit courtdisposed of the motion. Everage, 303 Ill. App. 3d at 1084. Thedefendant's counsel filed a motion to reconsider and the defendantsubsequently filed a pro se notice of appeal, which the courtultimately held was premature because of the pending motion toreconsider. Everage, 303 Ill. App. 3d at 1083, 1086. The courtwas concerned with eager defendants who filed pro se notices ofappeal to preserve their appeal rights after being admonished thatthey must do so within 30 days of entry of judgment while theirattorneys took alternative measures to preserve additional issuesfor appeal. Everage, 303 Ill. App. 3d at 1086-87.

In this case, Rucker's attorney filed the notice of appealafter Rucker filed his pro se motion for reduction of sentence. See, People v. Jennings, 279 Ill. App. 3d 406, 413 (1996)(pleadingsare considered timely filed on the day they are placed in prisonmail system by incarcerated defendant). Rucker's attorney chosenot to file a motion to reconsider sentence, and Rucker'sconclusory statements in his pro se motion have not preserved anyadditional issues for appeal that are not raised in this appeal. Thus, the court's concern in Everage is not an issue in this case.

After Jenkins and Everage were decided, Supreme Court Rule 606was amended to provide, in part:

"[T]he notice of appeal must be filed with the clerkof the circuit court within 30 days after the entry ofthe final judgment appealed from or if a motion directedagainst the judgment is timely filed, within 30 daysafter the entry of the order disposing of the motion. When a timely post-trial or post-sentencing motiondirected against the judgment has been filed by counselor by defendant, if not represented by counsel, anynotice of appeal filed before the entry of the orderdisposing of all pending post-judgment motions shall haveno effect and shall be stricken by the trial court. ***This rule applies whether the timely post-judgment motionwas filed before or after the date on which the notice ofappeal was filed." 188 Ill. 2d R. 606(b).

Thus, under the rule, our inquiry is whether Rucker's pro se motionfor reduction of sentence makes the notice of appeal ineffectiveand deprives us of jurisdiction over this appeal.

Rule 606 clearly states that when a timely posttrial orpostsentencing motion has been filed by "counsel or by defendant,if not represented by counsel, any notice of appeal filed beforeentry of the order *** shall have no effect." 188 Ill. 2d R.606(b). Contrary to his assertions otherwise, the record revealsthat Rucker was represented by counsel at the time he filed his prose motion for reduction of sentence. The notice of appeal, filedthe same day his pro se motion for reduction of sentence wasstamped by the clerk, identified his attorney as the "StateAppellate Defender/Public Defender of Cook County," and was in factsigned by his trial attorney. The record shows that Rucker wasrepresented by this same attorney at trial and in posttrialproceedings, including sentencing and a motion for a new trial. Rucker never discharged his counsel or requested that new counselbe appointed on his behalf. Accordingly, there is no merit toRucker's claim that he was not represented by counsel when he filedhis pro se motion for reduction of sentence.

As the State properly points out, when a defendant isrepresented by counsel, he generally has no authority to file prose motions, and the court should not consider them. See People v.Handy, 278 Ill. App. 3d 829, 836 (1996); People v. Neal, 286 Ill.App. 3d 353, 355 (1996). " 'An accused has either the right to havecounsel represent him or the right to represent himself; however,a defendant has no right to both self-representation and theassistance of counsel.' " Handy, 278 Ill. App. 3d at 836, quotingPeople v. Pondexter, 214 Ill. App 3d 79, 87 (1991). In otherwords, he is not entitled to "hybrid representation, whereby hewould receive the services of counsel and still be permitted tofile pro se motions." Handy, 278 Ill. App. 3d at 836. Thus, ourresolution of this issue would seem complete to say that Rucker wasrepresented by counsel when he filed his motion; therefore, it wasnot properly before the trial court, should not have beenconsidered, and does not invalidate the notice of appeal under Rule606. Under the unique circumstances of this case, however, ourdecision is not so simple.

The State concedes that there is an exception to the generalrule that prevents defendants from filing pro se motions when theyare represented by counsel. This exception allows defendants toraise pro se claims of ineffective assistance of counsel even whenthey are represented by counsel. See People v. White, 322 Ill. App.3d 982, 987 (2001)("[I]t contravenes human nature to expect counselto adequately argue his own ineffectiveness"). The State argues,however, that Rucker's claim was not a proper claim of ineffectiveassistance of counsel because it was "addressed solely in his prose Motion for Reduction of Sentence," rather than in a separatemotion directed to his attorney's representation. It furtherargues that it would be inefficient to remand this case forconsideration of Rucker's claims of ineffective assistance ofcounsel when that issue is raised in this appeal. Before we canconsider Rucker's claims of ineffective assistance of counsel,however, we must determine whether Rucker's pro se motion forreduction of sentence adequately raised an issue of ineffectiveassistance of counsel, in which case it would be an exception tothe general rule that defendants are not entitled to file pro semotions while represented by counsel and, under Rule 606 would makethe notice of appeal ineffective.

We find that Rucker's pro se motion for reduction of sentencedoes not fall within the exception for pro se motions allegingineffective assistance of counsel because his motion fails to raiseany issue of ineffectiveness. Instead, it baldly asserts thatRucker "had inadequate representation by counsel," withoutproviding any supporting facts or specific claims ofineffectiveness. Such a motion fails to sufficiently raise anyissue of ineffective assistance of counsel for the trial court toconsider. In People v. Hampton, 242 Ill. App. 3d 194, 199 (1992),for example, the defendant alleged that his counsel was ineffectivebecause "the public defender's office's case load was too heavy." The court found that the trial court could not be expected "toformulate a specific ineffectiveness claim from such ambiguouslanguage" and was not required to conduct a hearing on whether newcounsel should be appointed to investigate the defendant's claim. Hampton, 242 Ill. App. 3d at 199. In this case, Rucker'sallegations are even more conclusory and ambiguous than in Hampton. Thus, he did not effectively raise any claim of ineffectiveassistance of counsel that should have been considered by the trialcourt, and he is not entitled to remand for consideration of hisclaim of ineffective assistance of counsel. Further, because hispro se motion did not raise an issue of ineffective assistance ofcounsel, the exception to the general rule that defendants may notfile pro se motions when they are represented by counsel does notapply. Thus, the motion was not properly before the trial court,and it had no obligation to consider the motion. Additionally,Rucker never brought his pro se motion for reduction of sentence tothe attention of the trial court or requested that it rule on hismotion, and "[m]erely filing a motion with the office of the clerk"is not enough to put a motion before the court. People v. Jennings,279 Ill. App. 3d 406, 413 (1996). Thus, Rucker's pro se motion forreduction of sentence had no effect on the notice of appeal underRule 606, and we have jurisdiction.

In his petition for rehearing Rucker argues that we neglectedcontrolling precedent and erroneously decided that the trial courthad no obligation to further consider his pro se motion. He relieson People v. Robinson, 157 Ill. 2d 68, (1993), and People v. Moore,207 Ill. 2d 68 (2003). In Robinson, the court wrote:

"While a pro se motion for a new trial allegingineffective assistance of counsel does not per se requireappointment of new counsel to assist in the motion, thetrial court must at least examine the factual mattersunderlying the defendant's claim. If after examining thefactual matters, the trial court determines that theclaim lacks merit or pertains only to matters of trialstrategy, then new counsel does not need to be appointedand the pro se motion can be denied. If, however, theallegations show possible neglect of the case, newcounsel should be appointed." Robinson, 157 Ill. 2d at86.

In Moore, the court similarly announced that "when a defendantpresents a pro se posttrial claim of ineffective assistance ofcounsel, the trial court should first examine the factual basis ofthe defendant's claim." Moore, 207 Ill. 2d at 77-8. We do notdisagree with these cases. However, the circumstances presented inthis case differ substantially, rendering Robinson and Mooreinapplicable to our analysis.

In Robinson, the defendant, prior to sentencing, "filed a prose post-trial motion in which he raised the issue of ineffectiveassistance of counsel." Robinson, 157 Ill. 2d at 85. The trialjudge "refused to allow the defendant to specify his complaints andto present supporting evidence and documentation." Robinson, 157Ill. 2d at 86. The trial court made no such refusal in this case,nor was it presented with the opportunity to do so, because Ruckernever brought his post-sentencing motion to the trial court'sattention. Furthermore, the court in Robinson did not addresswhether the defendant was represented by counsel at the time hefiled his pro se motion. Thus, the issue in that case wasdifferent than the issue in this case. The issue there was whetherthe trial court improperly denied the defendant's "motion withoutmaking a preliminary inquiry into his claims." Robinson, 157 Ill.2d at 86. In this case, the issue is whether Rucker's motion wassufficient to constitute an exception to the general rule that adefendant represented by counsel has no authority to file pro semotions. We have concluded that it was not. Robinson does notchange our conclusion.

In Moore, the defendant was represented by counsel when hefiled his posttrial pro se motion for appointment of counsel otherthan the public defender. Moore, 207 Ill. 2d at 73-4. However,unlike Rucker's motion, that motion stated factual allegationssupporting the defendant's claims. Specifically, the motionalleged that " 'no line of meaningful communication wasestablished' between defendant and trial counsel, whose 'entireattitude' showed that counsel was unconcerned with the defense ofthe case"; that trial counsel "wrongly advised defendant to waivea jury trial for trial and for sentencing and not to testify on hisown behalf at trial; and failed to adequately cross-examine theState's witnesses where their testimony conflicted with policereports." Moore, 207 Ill. 2d at 77. In this case, the allegationsof Rucker's motion were simply that his sentence should be reducedbecause he "had inadequate representation by counsel." Moreover,unlike this case, the defendant in Moore brought his claim to thetrial court's attention. Moore, 207 Ill. 2d at 79. For thesereasons, we find both Robinson and Moore unpersuasive under thecircumstances of this case.

Turning to the merits, Rucker alleges in this appeal that histrial counsel was ineffective for failing to file a motion to quashhis arrest and suppress the physical evidence. In order to succeedin his claim of ineffective assistance, Rucker must show: "(1) thathis counsel's 'representation fell below an objective standard ofreasonableness'; and (2) that there is a 'reasonable probabilitythat, but for counsel's unprofessional errors, the result of theproceeding would have been different.' Strickland [v. Washington],466 U.S. [668,] 694, 80 L.Ed. 2d [674,] 698, 104 S.Ct. [2052,] 2068[(1984)]." People v. Lundy, 334 Ill. App. 3d 819, 829 (2002). "Itis [a] defendant's burden to demonstrate that he has receivedineffective assistance of counsel." Lundy, 334 Ill. App. 3d at833. If the defendant fails to show prejudice, the court need notconsider whether his attorney's representation fell below anobjective standard of reasonableness. Lundy, 334 Ill. App. 3d at829-30.

An attorney's decision whether to file a motion to quasharrest and suppress evidence is a matter of trial strategy thatshould be accorded great deference and is not ordinarilychallengeable as ineffective assistance of counsel. Lundy, 334Ill. App. 3d at 830. To succeed on a claim of ineffectiveassistance of counsel based upon the failure to file a motion toquash arrest and suppress evidence, " 'a defendant must show thata reasonable probability exists both that the motion would havebeen granted and that the outcome of the trial would have beendifferent had the evidence been suppressed.' [Citations.]" Lundy,334 Ill. App. 3d at 830. An attorney will not be deemedineffective for a failure to file a futile motion. Lundy, 334 Ill.App. 3d at 830.

Rucker contends that it is likely that a motion to quash hisarrest and suppress the narcotics recovered from him would havebeen granted because the search was warrantless and "did notqualify as a 'search incident to arrest' since the police did notarrest Mr. Rucker until after they recovered the narcotics from hisjacket pocket." Rucker further contends that there wasinsufficient probable cause to search or arrest him. Specifically,he claims that "[e]ven if the surveillance officer suspected thatnarcotics transactions had occurred, testimony that a policeofficer witnessed what he suspected to be criminal activity withoutmore is insufficient to establish probable cause." (Emphasis inoriginal.)

"Probable cause to arrest exists when circumstances within thearresting officer's knowledge are sufficient to warrant a man ofreasonable caution to believe an offense has been committed andthat the individual arrested has committed it." People v. Rainey,302 Ill. App. 3d 1011, 1013 (1999). It depends on the "totality ofthe circumstances known to the officer at the time of the arrest[citation], including the officer's factual knowledge and his priorlaw enforcement expertise" (Rainey, 302 Ill. App. 3d at 1013),requires a "case-specific analysis" (People v. Little, 322 Ill.App. 3d 607, 612 (2001)), and is governed by " 'commonsense,practical considerations and not by technical legal rules' "(Lundy, 334 Ill. App. 3d at 831, quoting People v. Metcalfe, 326Ill. App. 3d 1008, 1012 (2001)). Probable cause is a mixedquestion of law and fact, except where the facts and credibility ofthe witnesses are not contested, in which case, probable cause isa question of law subject to de novo review. Rainey, 302 Ill. App.3d at 1014.

A search incident to a valid arrest is valid if madecontemporaneously with the arrest. Lundy, 334 Ill. App. 3d at 832. A search conducted immediately prior to a valid arrest isconsidered contemporaneous with that arrest. See Little, 322 Ill.App. 3d at 612. Moreover, once an officer has probable cause tobelieve that items are contraband, the items are subject to seizureeven in the absence of a warrant. People v. Hill, 169 Ill. App. 3d901, 909 (1988).

Rucker relies on People v. Stewart, 217 Ill. App. 3d 373(1991), in support of his argument that a motion to quash hisarrest and suppress the evidence recovered from him would have beenlikely to succeed. In Stewart, two police officers observed twoindividuals, standing on a sidewalk, engaged in conversation. Stewart, 217 Ill. App. 3d at 374. When the officers were about 50to 75 feet away from the individuals, they saw one of the men handsomething to the other, but could not identify what was exchangedor who gave what to whom. Stewart, 217 Ill. App. 3d at 374-75. The defendant then placed his right hand in his front pants pocket. Stewart, 217 Ill. App. 3d at 375. The officers drove towards thetwo men, who ran into a nearby building. Stewart, 217 Ill. App. 3dat 375. The officers apprehended the defendant inside thebuilding, placed him under arrest, and handcuffed him. Stewart,217 Ill. App. 3d at 375. The officers searched the defendant,uncovering 17 bags, each containing a white powdery substance. Stewart, 217 Ill. App. 3d at 375. The defendant argued on appealthat his counsel was ineffective for failing to file a motion toquash the cocaine found on his person. Stewart, 217 Ill. App. 3dat 375. The court agreed, finding that "the question of probablecause [to arrest] was a close one" because "[t]he officers concededthat they did not see what was transferred between the defendantand the other man." Stewart, 217 Ill. App. 3d at 376.

Rucker argues that his case presents a similarly close call onthe issue of probable cause, which requires reversal of hisconviction. Specifically, he contends, "[t]he officer's inabilityto see or even describe what was being exchanged duringobservations made in the dark and from a distance of 70 to 100 feetmake it possible that Patrick Rucker was doing nothing more thanengaging in innocent transactions." Rucker fails to recognize,however, that in this case, unlike Stewart, Golosinski identifiedone of the items exchanged -- money. He also observed fourdifferent transactions rather than just one as was observed inStewart, and, further unlike Stewart, he was able to describe whogave and received the exchanged objects.

The State distinguishes Stewart in much the same way we haveand relies instead on Lundy. In Lundy, a police officer wasconducting surveillance in an area, which was a " 'known locationfor high narcotics sales,' " when he observed the defendant takepart in three different transactions, which he believed to involvethe sale of narcotics. Lundy, 334 Ill. App. 3d at 822. Thetransactions were described as follows:

"[D]efendant would engage in brief conversation withan unknown individual, accept an unknown amount of UnitedStates currency, bend down, pick up a small box, removean item, replace the box and hand the item to the unknownindividual." Lundy, 334 Ill. App. 3d at 822.

The defendant was apprehended after the third transaction, and thebox was recovered and found to contain "white rocks" and "whitepowder," which were later identified as heroin and cocaine. Lundy,334 Ill. App. 3d at 822. On appeal, the defendant claimed that histrial counsel was ineffective for not filing a motion to quash hisarrest and suppress the recovered narcotics. The court found thatthe arresting officer had probable cause to arrest the defendantbecause the dispatching officer had witnessed the threetransactions and "possessed facts sufficient to establish probablecause to arrest defendant as a person of reasonable caution couldbelieve that defendant had committed three separate illegalnarcotics transactions." Lundy, 334 Ill. App. 3d at 831-32. Thus, it found that any motion to quash arrest and suppress theevidence would have been futile because the officer had probablecause to arrest the defendant. Lundy, 334 Ill. App. 3d at 831.

Rucker argues that Lundy is distinguishable because thedefendant in that case was heard yelling "Rocks, blows," which thecourt recognized as street slang for cocaine and white heroin(Lundy, 334 Ill. App. 3d at 830 n.3), whereas Rucker was not seenor heard advertising in any similar manner. Rucker's distinctionof the facts does not show lack of probable cause in this casebecause, as noted above, probable cause determinations are basedupon the totality of the circumstances at the time of arrest andmust be made on a case-by-case basis. Further, in this case,Golosinski observed one more transaction than the officer in Lundy.

Rucker also relies on Little for support. In Little, 322 Ill.App. 3d at 611, a police officer saw the defendant engage in twotransactions, whereby unidentified individuals approached thedefendant and gave him money, which he accepted and placed into hispants pocket. The officer then saw the defendant reach intoanother pocket, retrieve an item, and give it to the person who hadgiven him the money. Little, 322 Ill. App. 3d at 611. On appeal,the defendant argued that his trial counsel was ineffective forfailing to file a motion to quash his arrest and suppress evidence. Little, 322 Ill. App. 3d at 609-10. The appellate court agreed,finding that such a motion would have had a reasonable probabilityof success based on the facts of the defendant's case, but it neverexplained what made the motion to quash arrest or suppress evidencelikely to succeed. Little, 322 Ill. App. 3d at 613. Thus, Littleis not persuasive on the facts before us.

In this case, Golosinski observed four different transactionsin which he saw Rucker accept money from four different individualsin exchange for something that he removed from his jacket pocket.The number of transactions alone makes it unlikely that thetransactions were innocent exchanges such as "paying off of a bet,splitting the cost of dinner or even a simple shake of hands." People v. Moore, 286 Ill. App. 3d 649, 653 (1997); see also Peoplev. Taylor, 165 Ill. App. 3d 64, 67 (1987)("Although an isolated actmay appear innocent, a series of similar transactions, by virtue ofthe repetition, may be sufficient to support an arrest"). And,unlike Stewart, one of the items exchanged was identified as UnitedStates currency and the defendant was identified as receiving themoney and transferring the other object. Moreover, thetransactions were conducted both with individuals who approachedthe defendant on foot and in an automobile in an area that wasknown to Golosinski from previous arrests.

In determining that the totality of these circumstancesestablishes probable cause for Rucker's arrest at the time of hisarrest, we note that our courts have never conditioned probablecause in narcotics cases on prior visual identification of anarcotic substance. In People v. Love, 199 Ill. 2d 269, 280(2002), for example, the supreme court found that probable causeexisted for a warrantless arrest and search of the contents of thedefendant's mouth where an officer "saw the man trade currency tothe person on the bicycle for something[, which the officer couldnot identify,] in the defendant's mouth" and the officer "receiveda garbled response" upon asking the defendant her name. In Peoplev. O'Neal, 176 Ill. App. 3d 823, 828 (1988), the officers overheardwhat they believed to be a narcotics transaction and subsequentlysaw the defendant with a plastic bag, which they believed containednarcotics, and the court found probable cause even though theofficers did not see the contents of the plastic bag. Similarly,in Taylor, 165 Ill. App. 3d at 67, the officer did not identify theobjects exchanged during five brief exchanges he witnessed betweenthe defendant and persons who approached the defendant's car. Yet,the court found probable cause based on the officer's observationsand his previous knowledge of drug transactions in the area. Taylor, 165 Ill. App. 3d at 67. While none of those cases involvedineffective assistance of counsel claims for failure to filemotions to quash arrest or suppress evidence, they involveddeterminations of probable cause and support our finding that therewas probable cause to arrest Rucker. Therefore, a motion to quashthe arrest and suppress the evidence would have been futile, and itwas not ineffective assistance of counsel not to file the motion.

Rucker also claims that the evidence was insufficient tosupport a finding of guilt beyond a reasonable doubt. Whenconsidering an attack on the sufficiency of the evidence supportinga conviction, we do not reweigh the evidence; instead, we considerit in the light most favorable to the State to determine whether"any rational trier of fact could have found the essential elementsof the crime beyond a reasonable doubt." People v. Gibson, 287 Ill.App. 3d 878, 880 (1997). We may not substitute our judgment forthat of the trial court "on questions of the weight of theevidence, the credibility of the witnesses, or resolution ofconflicting testimony" (People v. Raney, 324 Ill. App. 3d 703, 706(2001)), and we will not reverse a conviction on appeal " 'unlessthe evidence is so improbable or unsatisfactory that it creates areasonable doubt of the defendant's guilt' " (People v. Lundy, 334Ill. App. 3d 819, 825 (2002), quoting People v. Clemons, 277 Ill.App. 3d 911, 923 (1996)). The defendant bears the burden ofproving insufficiency of the evidence. Raney, 324 Ill. App. 3d at706.

To sustain a conviction for possession of a controlledsubstance with intent to deliver, the State is required to provethat "the substance at issue is in fact a controlled substance." Raney, 324 Ill. App. at 705-06; People v. Hagberg, 192 Ill. 2d 29,34 (2000). Rucker contends that the evidence in his case wasinsufficient to support such a finding beyond a reasonable doubt.Specifically, he claims that the State failed to lay a properfoundation for admission of the chemist's findings. He argues thatthe stipulation is deficient because the State failed to "(1)identify what tests were performed; (2) indicate that any equipmentused in performing the tests was functioning properly at the timeof the testing; or (3) explain why the chemist knew that hisresults were accurate." Thus, he concludes, the State failed toprove that the substance he possessed was a controlled substance,and his conviction should be overturned.

In response, the State argues that Rucker waived his objectionto lack of foundation for the stipulation by not objecting attrial. A party may waive an objection to lack of foundation if itis not raised at trial (People v. Bynum, 257 Ill. App. 3d 502, 514-15 (1994)); however, where an alleged error, even though based upona stipulation, goes to the sufficiency of evidence to establishguilt in a criminal trial, it is not subject to the waiver rule(People v. Cowans, 336 Ill. App. 3d 173, 175-76 (2002)). Thus, wewill consider the merits of Rucker's claim.

An adequate foundation for expert testimony requires proof:

"[T]he facts or data relied upon by the expert are of atype reasonably relied upon by experts in that particularfield in forming opinions or inferences. [Citation.] Inaddition, when expert testimony is based upon anelectronic or mechanical device *** the expert must offersome foundation proof as to the method of recording theinformation and proof that the device was functioningproperly at the time it was used." Bynum, 257 Ill. App.3d at 513-14.

A chemist, however, is not required to "determine for himself thereliability of the instrument being used in the evaluation of thesuspected controlled substance." People v. Hill, 169 Ill. App. 3d901, 911 (1988). A chemical analysis is not improper evidencebecause there exists a "speculative possibility that test samplesbeing analyzed could have been contaminated" (Hill, 169 Ill. App.3d at 911), and the failure to lay a proper technical foundation isnot necessarily a violation of a defendant's substantial rightsthat automatically warrants reversal (Bynum, 257 Ill. App. 3d at515).

A stipulation has "the effect of eliminating proof whichotherwise might have been required. The law is well establishedthat an accused may, by stipulation, waive the necessity of proofof all or part of the case which the People have alleged againsthim." People v. Polk, 19 Ill. 2d 310, 315 (1960). In narcoticscases, a stipulation may also serve to "remove from the case anyissue of the expert's qualifications, the chain of custody, or theweight and chemical composition of the suspect materials." Peoplev. Williams, 200 Ill. App. 3d 503, 516 (1990). "Generallyspeaking, a defendant is precluded from attacking or otherwisecontradicting any facts to which he has previously stipulated."Gibson, 287 Ill. App. 3d at 880.

In Williams, 200 Ill. App. 3d at 508, the parties entered intoa stipulation regarding the results of "a series of chemicalanalyses" performed by the police chemist, which identified twosubstances recovered from the defendant as cannabis and cocaine. The question before the court was whether the tests on the whitepowder were sufficient to prove that the entire weight of eachsubstance was cocaine. Williams, 200 Ill. App. 3d at 516. Thestipulation described that the chemist "tested 'the white powder,'which he had described as consisting of 'a total of 102 packets.'" Williams, 200 Ill. App. 3d at 516. The court found that theapparent "intention of the agreement between the parties could onlyhave been to stipulate to undisputed and unrebutted experttestimony that the entire amount of the green plant materialconfiscated (i.e., 88.67 grams) was in fact cannabis and that theentire amount of the white powder confiscated (i.e., 48.7 grams)was in fact cocaine." Williams, 200 Ill. App. 3d at 516. Thecourt further explained its holding:

"First, we do not believe that the State reasonably wouldhave agreed to [the chemist's] stipulated testimony,thereby foregoing the opportunity to place the chemist onthe witness stand, where he could have described indetail the number and type of tests performed onindividual packets, were not the stipulation intended, inpart, to eliminate the need for defending his testimonyagainst a challenge to its sufficiency. Furthermore, wecan only assume that defendant's trial counsel, havingreceived notice during discovery, prior to trial, that[the chemist] was a potential State's witness, and havingalso received a copy of the laboratory report, decided toforego the opportunity to cross-examine the expert and tosubmit the report into evidence, in order to focus onother theories and aspects of the defense." Williams,200 Ill. App. 3d at 516.

Similarly in People v. Black, 264 Ill. App. 3d 875 (1994),another possession with intent to deliver case, the court was facedwith a stipulation that did not explicitly address the contestedissue -- whether the test establishing that the recovered substancewas cocaine was conducted on a random sample. The court recognizedthat "if the chemist here had testified that her expert opinion wasbased upon a random sample, it would be permissible *** to draw theinference that all the packets, including those not tested,contained cocaine." Black, 264 Ill. App. 3d at 877. Thestipulation, however, did not explicitly state that the sample wasrandom; nor did it state that the sample was not random. Black,264 Ill. App. 3d at 877. Accordingly, the court examined thestipulation, by which the parties stipulated to the expertise ofthe chemist, and found that "it is fair to conclude from thestipulation that the expert analyst followed basic scientificprocedure such as random sampling." Black, 264 Ill. App. 3d at877.

In this case, the parties stipulated not only that the chemistwas "qualified to testify as an expert in the area of forensicchemistry," but also that she "performed tests commonly accepted inthe area of forensic chemistry for ascertaining the presence of acontrolled substance." Thus, Rucker's first and third claimeddeficiencies are without merit. Also, based on the strength ofthese agreed facts, it was reasonable and fair for the trier offact to conclude that the chemist followed basic scientificprocedure, such as testing the proper functioning of any mechanicaldevices she used, and that it was the intent of the parties tostipulate to this fact. If it had not been the intent of theparties to stipulate to this fact, it would have been in their bestinterests not to agree to the stipulation. Then, the State couldhave put the chemist on the stand to provide additional facts, andthe defense could have exercised its option to cross-examine thechemist on the details of the tests, but the parties chose toforego these options. The parties stipulated to an adequatefoundation, and the stipulated evidence was sufficient to supportthe finding that the substance possessed by Rucker was cocaine.

Rucker cites a number of cases in support of his claim thatthe stipulated evidence was insufficient to establish beyond areasonable doubt that the substance with which he was found wascocaine. These cases, however, are all distinguishable. NeitherPeople v. Ayala, 96 Ill. App. 3d 880 (1981), Hill, 169 Ill. App. 3d901, Hagberg, 192 Ill. 2d 29, or Raney, 324 Ill. App. 3d 703,involved any stipulated evidence. Further, in People v. Hill, 169Ill. App. 3d at 911, the court found the evidence sufficient toprove beyond a reasonable doubt that the substances possessed bythe defendant were cocaine and heroin despite the defendant'sclaims that the calibration of the spectrophotometer was notchecked on a sufficiently regular basis to guarantee accuracy. Thecourt described the defendant's claims as "entirely speculative and*** not substantiated by any facts in the record." Hill, 169 Ill.App. 3d at 911. Similarly, Rucker's claims of lack of foundationare not substantiated by any facts in the record. The only relatedfacts in the record show an adequate foundation; they reveal thatthe chemist was "qualified to testify as an expert in the area offorensic chemistry," that the tests she performed were "commonlyaccepted in the area of forensic chemistry for ascertaining thepresence of a controlled substance, and that it was her opinion"within a reasonable degree of scientific certainty *** that thetested item was positive for the presence of cocaine."

People v. Zazzetta, 27 Ill. 2d 302 (1963), and People v.Potts, 74 Ill. App. 2d 301 (1966), involved stipulations to theadmission of polygraph test results. In Potts, the court found the"evidence highly prejudicial to defendant [because it] was admittedwithout inquiry as to the qualifications of the operator of themachine by means of which the test was given." Potts, 74 Ill. App.2d at 305. Similarly in Zazzetta, the report of the examiner was"admitted without foundation" and "[n]o evidence was introducedregarding the method of testing or the qualification of theoperator." Zazzetta, 27 Ill. 2d at 309. To the contrary, in thiscase, there was evidence, by stipulation, that the chemist was"qualified to testify as an expert in the area of forensicchemistry" and that the tests she performed were "commonly acceptedin the area of forensic chemistry for ascertaining the presence ofa controlled substance."

In People v. Young, 220 Ill. App. 3d 488, 491-92 (1991), theparties stipulated to the chemist's test results, which showed that1.86 grams of powder were positive for the presence of cocaine. The conflict on appeal was not over whether the evidence wassufficient to show that the substance was cocaine; instead, it wasover how much of the 16.87 grams of substance recovered from thedefendant's home was shown to be cocaine. The court found, thatthe "defendant was not proved guilty beyond a reasonable doubt ofpossession with intent to deliver more than 10 but not more than 30grams of cocaine [citation], but was proved guilty of possessionwith intent to deliver less than 10 grams of cocaine." Young, 220Ill. App. 3d at 497-98. There was no objection the foundation forthe stipulated testimony, and from the facts as recited in Young,it is unclear whether the stipulation entered into by the partiescontained any description of the chemist's qualifications or thetests performed. See Young, 220 Ill. App. 3d 491-92. Thus, Young does not support Rucker's argument.

Finally, in People v. Ortega, 83 Ill. App. 2d 49, 51 (1967),the court considered the propriety of convictions for sale andpossession of narcotics in light of the stipulated testimony of thechemist. The court considered "whether proof [by stipulation] thata substance 'purports to be' narcotic constitutes proof beyond areasonable doubt that it is narcotic" for purposes of sustaining aconviction for sale of narcotics and found that it did not. Ortega, 83 Ill. App. 2d at 51. However, the court also consideredwhether a stipulation that a substance "was 'found to be' heroin"was sufficient to support a conviction for possession of narcoticsand found that it was. Ortega, 83 Ill. App. 2d at 51. In thiscase, the stipulation provides that "the tested item was positivefor the presence of cocaine in the amount of .2 grams." Thus, itis more like the stipulation found sufficient to support convictionin Ortega than the stipulation found inadequate. Consequently,Ortega actually supports the sufficiency of the evidence in thiscase, and Rucker's claim of error fails.

Finally, Rucker claims that his sentence is unconstitutionalunder Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed. 2d 435, 120S.Ct. 2348 (2000). He argues that section 5-5-3(c)(8) of theUnified Code of Corrections (730 ILCS 5/5-5-3(c)(8)(West 2000)),under which he was sentenced as a Class X offender, is the type ofstatute that was declared unconstitutional under Apprendi. Thestatute allows for sentencing of a defendant as a Class X offenderif the defendant is over 21 years of age, is convicted of a Class1 or Class 2 felony, and has been previously convicted of two Class2 or greater Class felonies. 730 ILCS 5/5-5-3(c)(8)(West 2000).Our courts have considered the constitutionality of the thisprovision under Apprendi and the Illinois Constitution and found itconstitutional. See People v. Wallace, 331 Ill. App. 3d 822, 838(2002); People v. Dixon, 319 Ill. App. 3d 881, 885-86 (2001); People v. Jones, 322 Ill. App. 3d 236, 242-43 (2001); People v.Roberts, 318 Ill. App. 3d 719, 728-29 (2000); People v. Lathon, 317Ill. App. 3d 573, 585-87 (2000). Rucker raises no new argumentsthat would require us to reconsider or question the reasoning ofthose decisions. Therefore, we hold that the circuit court'simposition of sentence upon Rucker as a Class X offender wasconstitutional.

For the foregoing reasons, we affirm the conviction andsentence.

Affirmed.

BURKE and GARCIA, JJ., concur.