                                                  SECOND DIVISION
                                                  FILED: August 31, 2010




No. 1-08-3458



THE PEOPLE OF THE STATE OF                  )     APPEAL FROM THE
ILLINOIS,                                   )     CIRCUIT COURT OF
                                            )     COOK COUNTY
     Plaintiff-Appellee,                    )
                                            )     No.   07 CR 10541
v.                                          )
                                            )
DAVID SANCHEZ,                              )     THE HONORABLE
                                            )     LAWRENCE P. FOX,
     Defendant-Appellant.                   )     JUDGE PRESIDING.



     JUSTICE HOFFMAN delivered the opinion of the court:

     Following a bench trial, the defendant, David Sanchez, was

convicted   of    possession   of   a     controlled    substance     (720   ILCS

570/402(a)(2)(A) (West      2006)) and sentenced to nine years in

prison. On appeal, the defendant contends that: (1) trial counsel

was ineffective for allowing the State to impeach him with an

inadmissible prior conviction, (2)           the trial court's findings in
announcing the verdict indicate that he was denied the right to a

fair trial, (3) the trial court improperly increased his sentence

from seven to nine years, and (4) the mittimus must be corrected to

reflect   the    proper   credit    for    the   time   he   served   prior   to

sentencing.      Because we conclude that the defendant was denied the

effective assistance of counsel, we reverse his conviction and

remand the cause for a new trial.

     The defendant was charged with possession of a controlled
No. 1-08-3458

substance with the intent to deliver (720 ILCS 570/401(a)(2)(A)

(West 2006)).   At trial, Chicago Police Detective Patrick Johnson

testified that, at around 12:30 a.m. on April 24, 2007, he and his

partner, Detective Anthony Amado, were on patrol in the vicinity of

3320 West 38th Place. Detective Johnson observed John Repel, a man

he knew had a history of gang and narcotics activity, leaving the

rear gate of that address.   After Repel was unable to explain his

presence in the area, the two detectives entered the apartment
building located at 3320 West 38th Place, through an open side door

that led to a common stairwell.

     According to Detective Johnson, he and his partner received no

response after knocking on the apartment door located on the first

floor, so they proceeded to the second floor.       The detectives

knocked on a door on the second floor and, after identifying

themselves as police officers, were told by a man inside to "hold

on a minute."   Detective Johnson testified that he heard the sound

of water being turned on and heavy objects being moved.    Believing
that an individual in the apartment might jump or throw something

out of a window, he went to the building's west gangway.

     Detective Johnson testified that he heard the sound of a storm

window opening from the second floor and then saw the defendant

lean out of the window and throw a plastic bag.   The bag landed on

the roof of the adjacent building, rolled off, and fell to the

ground.   Detective Johnson testified that he recovered the bag,

which he believed contained brown heroin.


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No. 1-08-3458

     According to Detective Johnson, he returned to the second

floor and arrested the defendant.        When the defendant was later

questioned at the police station, he told the detectives that

someone had left "that item" at his apartment and that he threw it

out the window because he did not want to get caught.

     The parties stipulated to the chain of custody for the bag

recovered by Detective Johnson in the gangway.             Testing by the

Illinois State Police showed that the bag contained a substance
which weighed 46.8 grams and tested positive for cocaine.

     Testifying on his own behalf, the defendant stated that, at

approximately 12:30 a.m. on April 24, 2007, he was awakened by the

barking of his dogs.   His back door was kicked in, a police officer

entered his apartment, and arrested him. The defendant denied that

he had any cocaine in his apartment or that he threw a bag of

cocaine out of a window.   He also denied telling the police that he

was just holding the bag and that it did not belong to him.

     The defendant testified that there are two apartments on the
second floor of his building.     He further stated that the screens

on the windows in his apartment have screws and clips, which

require a screw driver to remove.

     The   parties   stipulated   that   in   1996   the   defendant   was

convicted of possession of a controlled substance with the intent

to deliver.   No evidence was introduced at trial as to the specific

date of this conviction or the date of the defendant's release from

prison.

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No. 1-08-3458

     Following      closing   arguments,     the    trial      court    found    the

defendant guilty of the lesser included offense of possession of a

controlled   substance.       At   first,    the    court   imposed      a   prison

sentence of seven years, but vacated the sentence, and later

imposed a nine-year prison term.         This appeal followed.

     Initially, we address the defendant's argument that he was

denied effective assistance of counsel at his trial. The defendant

contends that trial counsel was ineffective for allowing the State
to impeach him with his 1996 prior conviction.                 According to the

defendant,   this    conviction    was     more    than   10    years    old    and,

therefore, inadmissible.

     Claims of ineffective assistance of counsel are evaluated

under the two-prong test announced in Strickland v. Washington, 466

U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).                            Under

Strickland, a defendant must show that his counsel's representation

fell below an objective standard of reasonableness and that the

deficient performance prejudiced his defense. Strickland, 466 U.S.
at 687; People v. Albanese, 104 Ill. 2d 504, 525, 473 N.E.2d 1246

(1984).   The defendant has the burden of establishing both prongs

of the Strickland test.        People v. Burks, 343 Ill. App. 3d 765,

775, 799 N.E.2d 745 (2003).

     In Illinois, evidence that a witness has been convicted of a

crime is not admissible for impeachment purposes "if a period of

more than 10 years has elapsed since the date of conviction or of

the release of the witness from confinement, whichever is the later

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No. 1-08-3458

date."      People v. Montgomery, 47 Ill. 2d 510, 516, 268 N.E.2d 695

(1971), adopting the 1971 proposed draft of Rule 609 of the Federal

Rules of Evidence.        The 10-year time limit is calculated by

measuring the age of the prior conviction in relation to the date

of the trial.      People v. Naylor, 229 Ill. 2d 584, 602, 893 N.E.2d

653 (2008).

       Although the details of the defendant's 1996 prior conviction

were not elicited at trial, both the defendant and the State agree
that this court may take judicial notice of the public records of

the Illinois Department of Corrections.               See People v. Peterson,

372 Ill. App. 3d 1010, 1019, 868 N.E.2d 329 (2007); People v.

DuPree, 353 Ill. App. 3d 1037, 1047, 820 N.E.2d 560 (2004).                 These

records reveal that the defendant was released from prison on

November 26, 1997, and completed his mandatory supervised release

(MSR) on November 28, 1999.         The defendant's trial for the current

offense was held on May 6, 2008.

       The State asserts that the defendant's 1996 conviction was
admissible because the defendant was not released from the custody

of the Illinois Department of Corrections until he completed his

MSR on November 28, 1999, less than 10 years before the May 6,

2008, trial.     See People v. Moss, 217 Ill. 2d 511, 522, 842 N.E.2d

699 (2005) ("During MSR, the Department of Corrections retains

custody of the defendant"). Contrary to the State's arguments, the

time requirements for admissibility are calculated based on "the

date   of    conviction   or   of    the    release    of   the   witness   from

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No. 1-08-3458

confinement," (emphasis added) (Montgomery, 47 Ill. 2d at 516), not

the date of release from the custody of the Illinois Department of

Corrections.

       In the past, Illinois courts consistently held that a witness'

parole period was not to be considered in calculating the 10-year

time limit.       People v. Warmack, 83 Ill. 2d 112, 124, 413 N.E.2d

1254 (1980); People v. Yost, 78 Ill. 2d 292, 296-97, 399 N.E.2d

1283 (1980); People v. Norwood, 164 Ill. App. 3d 699, 703, 518
N.E.2d 246 (1987).              As parole is now termed MSR (People v.

Wilson, 228 Ill. 2d 35, 37 n.1, 885 N.E.2d 1033 (2008)), it follows

that the       defendant's     MSR   period      can   also   not   be   considered.

Rather, the 10-year time limit began with the defendant's release

from prison on November 26, 1997.             See Norwood, 164 Ill. App. 3d at

703. Because the defendant was released from confinement more than

10    years    before   the   trial    in    the    instant    matter,    his   prior

conviction was not admissible to impeach his credibility.                          See

Montgomery, 47 Ill. 2d at 516.
       We     acknowledge     that   the    decision     whether    to    object    is

generally a matter of trial strategy, which may not be challenged

on the grounds of ineffectiveness of counsel. People v. Perry, 224

Ill. 2d 312, 344, 864 N.E.2d 196 (2007).               In this case, however, we

are    unable    to   discern    any   valid       strategic   reason     for   trial

counsel's failure to object to the admission of the defendant's

1996 prior conviction.          The prior conviction was inadmissible and

only served to damage the defendant's credibility as a witness.

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No. 1-08-3458

Instead, it appears that trial counsel failed to investigate the

details of the defendant's 1996 conviction or was aware of those

details and misapprehended the law.             A finding of ineffectiveness

can be supported under either scenario.            See People v. Patterson,

192 Ill. 2d 93, 121, 735 N.E.2d 616 (2000) (attorney's mistake as

to the law); People v. Brown, 309 Ill. App. 3d 599, 605, 723 N.E.2d

362 (1999) (attorney's failure to investigate relevant facts).                  As

a   result,   we   conclude   that     trial    counsel      rendered   deficient
representation     in   failing   to   object     to   the    admission   of   the

defendant's prior conviction.

       Having determined that trial counsel breached his obligation

to provide effective representation, we next consider whether this

breach prejudiced the defendant.               To establish prejudice under

Strickland, the defendant must show that there is a reasonable

probability that, but for counsel's errors, the outcome of the

proceedings would have been different.              Strickland, 466 U.S. at

694.
       As correctly noted by the defendant, the trial in this case

amounted to a credibility contest.              Detective Johnson testified

that he observed the defendant lean out of a window and throw a

plastic bag, which was later found to contain cocaine.                         The

defendant, however, denied that he had any cocaine in his apartment

or that he threw a bag of cocaine out of a window.                Given the two

different accounts, the trial court was required to decide whether

the defendant's testimony was more credible than that of Detective

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No. 1-08-3458

Johnson.   In reaching its conclusion in this regard, the trial

court expressly relied upon the defendant's prior conviction, twice

stating that the conviction weighed against his credibility. Based

on the importance of the issue of credibility in this case and the

specific findings of the trial court regarding the 1996 prior

conviction, we believe that there is a reasonable probability that

the outcome of the defendant's trial would have been different had

he not been improperly impeached with his prior conviction.
     Because we conclude that both prongs of the Strickland test

have been satisfied, we reverse the defendant's conviction and

remand the matter to the circuit court for a new trial.       In so

holding, we find that the evidence was sufficient to support the

defendant's conviction for possession of a controlled substance, so

that double jeopardy considerations do not prevent retrial.     See

People v. Olivera, 164 Ill. 2d 382, 393, 647 N.E.2d 926 (1995).

Due to our resolution of this issue, we need not address the

remaining arguments raised by the defendant on appeal.
     Reversed and remanded.


     CUNNINGHAM, P.J., and THEIS, J., concur.




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