No. 2--02--0491

JUSTICE GROMETER delivered the opinion of the court:

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 andheroin within 1,000 feet of a church. Three counts were related to the delivery of less than one gramof a substance containing cocaine to an undercover officer, and the other three were related todelivery of less than one gram of a substance containing heroin. Defendant was sentenced to 10years' imprisonment. Defendant now appeals, alleging three errors. First, he contends that trialcounsel was ineffective for failing to move for the disclosure of an informant until after defendanttestified at trial. Second, he argues that several of the counts of which he was convicted should bevacated 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 preservesentencing 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 theevidence 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 disclosureof 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). Defendantcontends 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 leadingto 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 hisattraction to her to induce him to procure drugs for Mark Nachman. She told defendant thatNachman was her brother. Nachman was, in fact, an undercover police officer.

According to defendant, the woman accompanied him and Nachman on the day of theincident. Before asking him to get drugs for Nachman, she joked with defendant, hugged him, andkissed him. She then directed defendant to places where drugs could be acquired. They were unableto 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 hecould keep a piece of cocaine, which he intended to smoke later. He acknowledged that the heroinwas his and that he had acquired it before meeting Nachman that day. He denied having anything todo with the cutting or testing of the drugs. Defendant testified that he had stopped dealing drugsprior to the day of the incident. He acknowledged that he had a previous conviction of unlawfuldelivery of a controlled substance and also admitted prior drug use. Nachman asked defendant if hecould contact defendant again, and defendant replied affirmatively. In resolving this issue, for reasonsthat we will explain below, we will accept defendant's version of the facts, as well as other evidencefavorable to him adduced from other sources. We note that the testimony of the State's witnessesdiffered significantly from defendant's.

Defendant argues that he received ineffective assistance of counsel because his attorney failedto seek to ascertain the identity of the informant and to present her testimony at trial. To establisha claim of ineffective assistance of counsel, a defendant must show both that counsel's performancefell below an objective standard of reasonableness and that, but for counsel's errors, a reasonableprobability 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 undermineconfidence in the result of the proceeding. People v. Morris, 335 Ill. App. 3d 70, 84 (2002). A claimof ineffective assistance of counsel may be disposed of on the prejudice prong of the test without firstaddressing 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 allegedineffectiveness in terms of how it could have affected this defense. Defendant's claim of entrapmentis based upon the informant's use of his attraction to her, which, defendant asserts, allowed theinformant to manipulate him into obtaining drugs. Entrapment requires that a defendant show boththat the State improperly induced him or her to commit a crime and that he or she was not otherwisepredisposed to commit the offense. Placek, 184 Ill. 2d at 380-81. In resolving this appeal, we willfocus on the issue of predisposition. Several factors are relevant in assessing predisposition in drugcases, including the following: (1) the defendant's initial reluctance or willingness to commit thecrime; (2) the defendant's familiarity with drugs; (3) the defendant's willingness to accommodate theneeds of drug users; (4) the defendant's willingness to profit from the offense; (5) the defendant'scurrent or prior drug use; (6) the defendant's participation in cutting or testing the drugs; and (7) thedefendant'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 wouldnormally 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 therecord 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 failureto investigate and prepare for trial in a case where the informant is so pivotal should constitute therequisite prejudice." We do not agree. Prejudice simply cannot be presumed under ordinarycircumstances (Johnson, 128 Ill. 2d at 271), and defendant's request, in essence, is that we presumeprejudice from counsel's conduct. Furthermore, defendant's reliance on People v. Woods, 139 Ill. 2d369 (1990), is misplaced. In that case, the court found prejudice despite having only limited detailregarding the potential testimony of an undisclosed informant. Woods, 139 Ill. 2d at 384-85. Wenote that the burdens of proof in Woods and this case are dramatically different. In Woods, theburden was on the State to demonstrate that the error in question was harmless beyond a reasonabledoubt. Woods, 139 Ill. 2d at 382, citing Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87S. Ct. 824 (1967). Here, the burden is on defendant to show a reasonable probability that a differentresult would have been obtained. In the absence of information, the burden of proof is typicallydispositive.

Defendant also attempts to show prejudice by asserting that the testimony of the informantmay have corroborated his testimony and contradicted that of Nachman. As such, it might haveenhanced 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 realprobability 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 defendantsuggests, his entrapment defense still would have failed. To demonstrate this, we will acceptdefendant's testimony as true and consider the issue of predisposition.

The first factor we must consider when assessing whether a defendant was predisposed tocommit an offense, such that an entrapment defense is unavailable, is the defendant's reluctance orwillingness to commit the crime. Placek, 184 Ill. 2d at 381. At trial, defendant testified that he hadstopped dealing drugs prior to May 17, 2001. Nachman and the informant approached him on thatday, and he told the two that he was done with dealing drugs. Defendant testified that he was initiallyunwilling to help them get drugs. However, shortly after introducing defendant and Nachman, theinformant asked if defendant could "score" for her, and he replied "sure." Additionally, defendanttold 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 acquiredrugs.

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 beenconvicted of delivery of a controlled substance. He also testified that he was in possession of heroinprior to meeting Nachman.

Third, his willingness to accommodate the needs of other users is demonstrated by the samefacts that go to the first prong of the test. Placek, 184 Ill. 2d at 381. Upon being asked by theinformant to "score," he agreed. Moreover, he at least accompanied Nachman and the informant tothe source and actually went in to make the purchase. He told the officer that it was all right to callhim in the future. Additionally, he testified that he might have intended to give the piece of crack hegot from Nachman to someone else to smoke.

The fourth factor is whether defendant was willing to profit from the offense. Placek, 184Ill. 2d at 381. Defendant did not receive any monetary profit from the transaction. However, he didask for and receive a piece of crack cocaine. While this is minimal evidence of a willingness to profit,it does weigh against defendant.

Fifth, we must consider defendant's prior and current drug use. Placek, 184 Ill. 2d at 381. He wanted a piece of crack to smoke, and he acknowledged having been a user. He also was inpossession of heroin prior to meeting Nachman on the day of the incident.

The sixth factor to consider is whether defendant participated in cutting or testing the drugs. Placek, 184 Ill. 2d at 381. He did not. This factor would seem to weigh heavily in favor ofpredisposition where a defendant does participate in cutting or testing. However, its absence doesnot necessarily militate strongly for an opposite conclusion, particularly where, as here, there was noopportunity for defendant to engage in such actions.

Finally, the seventh factor is whether defendant had ready access to a supply of drugs. Wenote that defendant had heroin before his encounter with Nachman, which he presumably got fromsomewhere. Further, he stated that Nachman could call him again, indicating that he would be ableto provide drugs in the future.

In sum, only the first and sixth factors weigh in favor of defendant. As explained above, giventhe circumstances of this case, neither is very compelling. Regarding the first, defendant apparentlydisplayed some reluctance to help Nachman obtain drugs; however, even on defendant's owntestimony, this reluctance was minimal. Perhaps the sixth could be dispositive in a close case, but itis insufficient to prevail on its own. As the trial court noted, "the fact that [defendant] was trying toimpress a girl by getting her cocaine certainly is not entrapment." Beyond the fact that the informant"preyed" on his attraction to her, defendant points to nothing to sustain his claim of entrapment, andhe even acknowledges, "I wouldn't actually say she talked me into it."

Accordingly, we find that, assuming that counsel's performance was deficient in failing tomove for disclosure of the informant's identity in a timely fashion, defendant has not shown that hesuffered prejudice as a result. Defendant cannot, therefore, make out a claim of ineffective assistanceof counsel. Johnson, 128 Ill. 2d at 271.

II. WHETHER ALL SIX CONVICTIONS CAN STAND

Defendant next argues that he was improperly convicted of six drug-related offenses as aresult of his encounter with Nachman. Count I charged that defendant committed the offense ofunlawful delivery of cocaine. 720 ILCS 570/401(d) (West 2000). Count II alleged that defendantdelivered cocaine within 1,000 feet of a church. 720 ILCS 570/407(b)(2) (West 2000). Count IIIalleged that defendant possessed less than 15 grams of a substance containing cocaine. 720 ILCS570/402(c) (West 2000). Count IV charged that defendant delivered a substance containing heroin. 720 ILCS 570/401(d) (West 2000). Count V alleged that defendant delivered heroin within 1,000feet of a church. 720 ILCS 570/407(b)(2) (West 2000). Count VI charged defendant withpossession of less than 15 grams of a substance containing heroin. 720 ILCS 570/402(c) (West2000). Defendant contends that counts I, III, IV, and VI are, in fact, lesser included offenses in thecrime of delivery of a controlled substance within 1,000 feet of a church. 720 ILCS 570/407(b)(2)(West 2000). Thus, according to defendant, they must be vacated. The State does not contestdefendant's argument as it pertains to count VI.

In determining whether these offenses must be vacated, the first step is to inquire as towhether defendant's conduct constituted separate acts or a single act. People v. Rodriguez, 169 Ill.2d 183, 186 (1996). If the conduct compromised more than one act, the next step is to determinewhether any of the offenses that defendant was convicted of constitute lesser included offenses. Rodriguez, 169 Ill. 2d at 186; see also People v. King, 66 Ill. 2d 551, 566 (1977) ("Prejudice, withregard to multiple acts, exists only when the defendant is convicted of more than one offense, someof which are, by definition, lesser included offenses"). If either step yields an affirmative answer, theconviction in question cannot stand. Rodriguez, 169 Ill. 2d at 186. Moreover, it is well establishedthat possession of a controlled substance is a lesser included offense of delivery of a controlledsubstance. People v. Lewis, 83 Ill. 2d 296, 302 (1980).

The State contends that convictions of both the possession and delivery of the cocaine canstand because defendant asked for a piece of the cocaine, which he retained, while the rest wasdelivered to Nachman. Such an interpretation ignores the reality that this was one transaction wheredefendant acquired some cocaine and delivered the bulk of it to Nachman. Obviously, defendantpossessed all of the cocaine prior to giving it to Nachman. After the transaction, he continued topossess a small portion of it. We attach no significance to the fact that defendant briefly turned overall of it to Nachman and then, almost immediately, a small quantity was returned to him. It was thesame cocaine, it was one transaction, and therefore it was one act.

The State also argues that delivery within 1,000 feet of a church (720 ILCS 570/407(b)(2)(West 2000)) is a sentence enhancer of the crime of delivery of a controlled substance (720 ILCS570/401(d) (West 2000)), rather than a separate offense. Assuming, for the sake of argument, thatthe State is correct, this argument is beside the point. Defendant stands convicted of six counts, twoof which are of delivery and two of which are of delivery within 1,000 feet of a church for the twosubstances delivered. As such, the lesser counts cannot stand.

Therefore, we vacate defendant's convictions of counts I, III, IV, and VI and the sentencesimposed on them. We remand this cause so the trial court may enter an appropriate order reflectingtwo convictions of delivery of a controlled substance within 1,000 feet of a church.

III. SUPREME COURT RULE 605(a)

Defendant's final argument is that he was not properly admonished as to how to preservesentencing issues in accordance with Supreme Court Rule 605(a). Official Reports Advance SheetNo. 21 (October 17, 2001), R. 605(a), eff. October 1, 2001. If a defendant is not properlyadmonished regarding his or her appellate rights, the proper remedy is to remand the cause to allowthe defendant to be admonished and, if desired, to file a motion to reconsider sentence. People v.Gonzalez, 339 Ill. App. 3d 914, 926 (2003). The State does not contend that the admonishmentsdefendant received complied with the rule; nevertheless, it asks that we affirm. The State argues thatdefendant was not prejudiced by the trial court's omission, the sentence was proper, and a remandwould be a waste of judicial resources. Because this issue concerns compliance with a supreme courtrule, review is de novo. People v. Lloyd, 338 Ill. App. 3d 379, 384 (2003).

Rule 605(a)(3) reads, in pertinent part, as follows:

"(3) At the time of imposing sentence or modifying the conditions of the sentence, thetrial court shall also advise the defendant as follows:

A. that the right to appeal the judgment of conviction, excluding the sentenceimposed or modified, will be preserved only if a notice of appeal is filed in the trialcourt within thirty (30) days from the date on which sentence is imposed;

B. that prior to taking an appeal, if the defendant seeks to challenge thecorrectness of the sentence, or any aspect of the sentencing hearing, the defendantmust file in the trial court within 30 days of the date on which sentence is imposed awritten motion asking to have the trial court reconsider the sentence imposed, orconsider any challenges to the sentencing hearing, setting forth in the motion all issuesor claims of error regarding the sentence imposed or the sentencing hearing;

C. that any issue or claim of error regarding the sentence imposed or anyaspect of the sentencing hearing not raised in the written motion shall be deemedwaived; and

D. that in order to preserve the right to appeal following the disposition of themotion to reconsider sentence, or any challenges regarding the sentencing hearing, thedefendant must file a notice of appeal in the trial court within 30 days from the entryof the order disposing of the defendant's motion to reconsider sentence or orderdisposing of any challenges to the sentencing hearing." Official Reports AdvanceSheet No. 21 (October 17, 2001), R. 605(a)(3), eff. October 1, 2001.

This rule was amended in 2001, and the above-quoted material was added. Official Reports AdvanceSheet No. 21 (October 17, 2001), R. 605(a)(3), eff. October 1, 2001. Defendant was sentenced onApril 16, 2002. Notably, the rule now requires that a defendant be admonished regardingpostsentencing motions.

In People v. Mazar, 333 Ill. App. 3d 244, 257-59 (2002), the First District relied upon thenew version of Rule 605(a) in finding that fundamental fairness "requires that defendant be alloweda remand for proper admonishments pursuant to the current version of Rule 605(a) and in order tofile a motion to reconsider sentence." Mazar, 333 Ill. App. 3d at 259. The Third District, however,came to a different result in People v. Williams, No. 3--02--0168 (November 14, 2003). TheWilliams court observed, "[t]he failure of a trial court to properly admonish a defendant as requiredby supreme court rule, standing alone, does not automatically establish grounds for reversing thejudgment or vacating a plea." Williams, slip op. at 6. According to the Third District, reversal isnecessary only if " 'real justice has been denied or [if the] defendant has been prejudiced by theinadequate admonishment.' " (Emphasis in original.) Williams, slip op. at 6, quoting People v. Davis,145 Ill. 2d 240, 250 (1991). A well-reasoned dissent pointed out that the cases that the majorityrelied upon involved Supreme Court Rule 402 (177 Ill. 2d R. 402), which sets forth theadmonishments a defendant must be given before a guilty plea is accepted. Williams, slip op. at 3(McDade, P.J., concurring in part and dissenting in part). The policy underlying the substantialcompliance rationale pertaining to Rule 402(a) was stated by the supreme court in the followingmanner: " ' "It is not the policy of this court to reverse a judgment of conviction merely because errorwas committed unless it appears that real justice has been denied." ' " (Emphasis in original.) Williams, slip op. at 4 (McDade, P.J., concurring in part and dissenting in part), quoting People v.Dudley, 58 Ill. 2d 57, 61 (1974), quoting People v. Morehead, 45 Ill. 2d 326, 332 (1970).

Obviously, the same policy concerns do not apply to Rule 605(a). A remand for compliancewith Rule 605(a) does not undo a conviction. Williams, slip op. at 4 (McDade, P.J., concurring inpart and dissenting in part). Instead, a remand merely requires that the defendant be properlyadmonished and afforded the opportunity to file appropriate postsentencing motions. The Williamsdissent likened Rule 605(a) to Rule 605(b), which sets forth the admonishments a defendant mustreceive following a guilty plea, and noted that the two rules serve similar functions. Williams, slipop. at 2 (McDade, P.J., concurring in part and dissenting in part). Strict compliance with Rule 605(b)is required and remand is not discretionary. People v. Jamison, 181 Ill. 2d 24, 31 (1998). We agreewith the dissent that "[t]here is no reason to think that identical language in Rule 605(a) would notalso be interpreted as requiring strict compliance with the admonitions it sets out." Williams, slip op.at 2 (McDade, P.J., concurring in part and dissenting in part).

Accordingly, we hold that Rule 605(a) requires strict compliance and that the remedy forfailing to comply with the rule is to remand the matter so that the defendant may receive the properadmonishments and be given an opportunity to file a motion to reconsider sentence. The State'sarguments about prejudice are inapposite. We remand this cause for these purposes.

III. CONCLUSION

In light of the foregoing, we affirm defendant's two convictions of delivery of a controlledsubstance within 1,000 feet of a church and we vacate the remainder of the convictions. This causeis remanded so that the trial court may enter an appropriate judgment order reflecting twoconvictions, admonish defendant in compliance with Rule 605(a), and afford him the opportunity tofile a motion to reconsider sentence.

Affirmed in part and vacated in part; cause remanded with directions.

BYRNE and KAPALA, JJ., concur.