                                     2018 IL App (1st) 160410
                                                                             SIXTH DIVISION
                                                                          SEPTEMBER 28, 2018

No. 1-16-0410


THE PEOPLE OF THE STATE OF ILLINOIS,                          )   Appeal from the
                                                              )   Circuit Court of
          Plaintiff-Appellee,                                 )   Cook County.
                                                              )
     v.                                                       )   No. 13 CR 4699
                                                              )
CARLOS MIRAMONTES,                                            )   Honorable
                                                              )   Matthew E. Coghlan,
          Defendant-Appellant.                                )   Judge Presiding.


          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.
No. 1-16-0410


¶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.




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¶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.

¶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. April 1, 2018), this court affirmed the judgment of the trial court, holding that the State



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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



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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 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



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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



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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.

¶ 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.”




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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

comingling. 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



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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 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



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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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