Filed 10/22/08                       NO. 4-07-0565

                              IN THE APPELLATE COURT

                                      OF ILLINOIS

                                  FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,                    )     Appeal from
          Plaintiff-Appellee,                           )     Circuit Court of
          v.                                            )     Champaign County
LEONARD E. STUMP,                                       )     No. 07CF20
          Defendant-Appellant.                          )
                                                        )     Honorable
                                                        )     Heidi Ladd,
                                                        )     Judge Presiding.


              PRESIDING JUSTICE APPLETON delivered the opinion of the court:

              In May 2007, a jury convicted defendant, Leonard E. Stump, of unlawful

possession with intent to deliver less than 1 gram of heroin (720 ILCS 570/401(d) (West

2006)), a Class 2 felony. The trial court sentenced defendant to 18 years in prison.

Defendant appeals, claiming the court erred in failing to question the jurors during voir

dire in compliance with Illinois Supreme Court Rule 431(b) (Official Reports Advance

Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007) regarding the jurors' under-

standing of the four basic constitutional guarantees afforded criminal defendants at

trial. He also appeals his sentence as being excessive. We affirm.

                                   I. BACKGROUND

              On January 4, 2007, the State charged defendant with (1) unlawful

possession with intent to deliver between 1 and 15 grams of heroin (720 ILCS

570/401(c)(1) (West 2006)), a Class 1 felony (count I), and (2) unlawful possession with

intent to deliver less than 1 gram of heroin (720 ILCS 570/401(d) (West 2006)), a Class
2 felony (count II).

              On May 7, 2007, defendant's jury trial began. The State informed the trial

court that it was dismissing count I and proceeding against defendant only on count II.

After addressing preliminary matters and conducting jury selection, the court recessed

the trial for the day. Portions of voir dire are relevant to this disposition and will be

discussed in the analysis below.

              On May 8, 2007, the State presented the testimony of Matthew Quinley

and Jay Loschen, Urbana police officers, who testified that on January 3, 2007, they had

received "information" that a pickup truck would soon arrive at a grocery store with

heroin inside. The officers spotted a truck matching the description provided by the

informant and initiated a stop. Officer Loschen, a canine officer, conducted a drug sniff

of the outside of the vehicle. The dog alerted. Officer Loschen asked the driver, Alfred

Ferro, to exit the vehicle. Loschen found $131 in cash, a "tooter straw," and four "tins"

(foil wrapped packets) of heroin on Ferro's person.

              Officer Quinley approached the passenger side of the vehicle where

defendant sat and asked him to exit the vehicle. After receiving defendant's consent,

Quinley searched him. He found $486 in cash and a cellular telephone. The officers

searched the vehicle and found 10 tins of heroin on the floorboard.

              Officer Quinley advised defendant of his Miranda rights (see Miranda v.

Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)). Initially, defendant told

Quinley that the heroin was Ferro's, but he then admitted that he and Ferro purchase,

sell, and use heroin together.

              Defendant did not present any evidence at trial. After considering the

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State's evidence, closing arguments, and jury instructions, the jury found defendant

guilty of unlawful possession with intent to deliver less than one gram of heroin.

              On May 17, 2007, defendant filed a motion for a new trial, claiming (1) the

trial court erred in denying his motion for a directed verdict, and (2) the evidence was

insufficient to sustain his conviction. On May 24, 2007, the court denied defendant's

posttrial motion and proceeded to sentencing.

              The trial court noted that it would be imposing a sentence on a Class 2

felony with mandatory Class X sentencing. It also noted that it had received and

reviewed defendant's presentence investigation report (PSI). The court took judicial

notice of defendant's Champaign County case No. 06-CF-985, which indicated that

defendant was released on bond in that case when he committed the offense subject to

this case. Neither party presented evidence in aggravation or mitigation; however,

defendant made a statement in allocution. He admitted he had "been a drug addict"

since the age of seven, but he maintained his innocence with regard to the instant

offense.

              After considering the PSI, the relevant statutory factors, defendant's

statement, and arguments of counsel, the trial court sentenced defendant to 18 years in

prison. The court noted defendant's "significant prior record," which included (1) five

prior drug convictions, four of which involved the manufacture or delivery of a con-

trolled substance; (2) one conviction for violation of bail bond; and (3) one conviction

for disorderly conduct.

              With regard to defendant's rehabilitative potential, the trial court noted

that defendant was convicted of one drug offense only 10 days after he was discharged

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from parole for a previous drug-related conviction. Defendant later violated the terms

of the drug-court program by failing to complete treatment. He then served a seven-

year sentence on a drug-related conviction. However, he committed another drug-

related offense, posted bond, and committed this offense while released on bond. The

court stated that "nothing has deterred him or even slowed him down; none of the

sentences imposed, no court orders, no treatment, no prospect of answering to the court

on yet another conviction have dissuaded him from continuing to commit the very same

offense."

              With regard to a deterrence factor, the trial court noted that "it must be

clear this is not an option as a means to raise money." The court stated: "[T]his court

has an absolute responsibility to deliver a resounding message that it will be a costly

choice as a career path, particularly for someone who chooses to do it over and over

again."

              On June 12, 2007, defendant filed a motion to reconsider his sentence,

claiming it was excessive given certain factors in mitigation. On July 2, 2007, the trial

court denied defendant's motion to reconsider sentence, finding that it had "made

detailed findings for the record at the time [it] imposed sentence as well as noting those

factors in aggravation and mitigation that apply. [The court] believe[s] those were

appropriate, and *** will stand on those at this time." This appeal followed.




                                      II. ANALYSIS

                                       A. Voir Dire

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              Defendant first claims the trial court failed to comply with the mandates of

Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R.

431(b), eff. May 1, 2007). The rule was amended effective May 1, 2007 (six days prior to

the start of defendant's jury trial). The amendment imposed upon the trial court a sua

sponte duty to question the potential jurors during voir dire of their understanding and

acceptance of the principles set forth in People v. Zehr, 103 Ill. 2d 472, 469 N.E.2d 1062

(1984), principles related to the basic constitutional guarantees of a criminal defendant

during his trial.

              The amended version of Rule 431(b) provides as follows:

                     "(b) The court shall ask each potential juror, individu-

              ally or in a group, whether that juror understands and ac-

              cepts the following principles: (1) that the defendant is pre-

              sumed innocent of the charge(s) against him or her; (2) that

              before a defendant can be convicted the State must prove the

              defendant guilty beyond a reasonable doubt; (3) that the

              defendant is not required to offer any evidence on his or her

              own behalf; and (4) that the defendant's failure to testify

              cannot be held against him or her; however, no inquiry of a

              prospective juror shall be made into the defendant's failure

              to testify when the defendant objects.

                     The court's method of inquiry shall provide each juror

              an opportunity to respond to specific questions concerning

              the principles set out in this section."

                                            -5-
              The State concedes that the trial court failed to specifically comply with

this rule by failing to question the prospective jurors, either individually or in a group, as

to whether the jurors understood and accepted all of the Zehr principles, as required by

amended Rule 431(b). We accept the State's concession and hold that the court's failure

to specifically comply with the rule was error.

              However, the State claims that the error was harmless, given the weight of

the evidence against defendant and the fact that the trial court sufficiently complied with

the gist of the amended rule, even though it did not pose the specific questions of

whether the jurors understood and accepted the principles.

              There is no doubt that the amended rule applies to defendant's trial here.

See People v. Gilbert, 379 Ill. App. 3d 106, 111, 882 N.E.2d 1140, 1146 (2008) ("The trial

court's sua sponte duty to question each potential juror regarding his understanding and

acceptance of the Zehr principles applies only to voir dire conducted on or after the

amended rule's effective date of May 1, 2007"). The question is whether the court's

failure to strictly comply with the amendment requires reversal.

              Defendant argues that the amended Rule 431(b) provides that the trial

court "shall" rather than "may" ask the jurors if they understand and accept the Zehr

principles. Thus, he argues that the mandatory nature of the rule precludes any

discretionary or partial compliance and requires that his conviction be reversed and the

case remanded for a new trial.

              Our supreme court has held that the rules of statutory construction apply

with equal force to the interpretation of all Illinois Supreme Court rules. In re Estate of

Rennick, 181 Ill. 2d 395, 404, 692 N.E.2d 1150, 1155 (1998). One such rule is that the

                                            -6-
plain language of the statute or rule should not be interpreted in a way that would

render its terms "meaningless or superfluous." People v. Jones, 168 Ill. 2d 367, 375, 659

N.E.2d 1306, 1309 (1995). Therefore, a finding that the trial court had merely the

discretion (after May 1, 2007) to question potential jurors of their understanding and

acceptance of the Zehr principles would render the term "shall" meaningless and

superfluous. Indeed, prior to the amendment, the court was obligated to question the

jurors as provided only if requested by the defendant. See 177 Ill. 2d R. 431(b). The

language, "[i]f requested by the defendant" was deleted, leaving the court with the

affirmative duty to sua sponte question the jurors accordingly. Given the mandatory

nature of the rule, it would appear that we are required to reverse defendant's conviction

regardless of whether the court's failure to question the jurors as required by Rule

431(b) resulted in prejudice to defendant.

              However, we find guidance in our supreme court's decision in People v.

Houston, 226 Ill. 2d 135, 874 N.E.2d 23 (2007), where the court failed to give full effect

to the principle of strict compliance with the mandatory nature of the Illinois Supreme

Court rules. In Houston, the defendant claimed that his trial counsel was ineffective for

waiving a court reporter during voir dire. The supreme court found that counsel's

waiver constituted deficient performance because it violated Supreme Court Rule

608(a)(9) (210 Ill. 2d R. 608(a)(9)), a rule that provides that voir dire "shall" be

recorded. Houston, 226 Ill. 2d at 148, 874 N.E.2d at 32. Although the court specifically

noted that the supreme court rules must be obeyed and enforced, it remanded the case

with directions to conduct a hearing to reconstruct the voir dire record so that the

defendant's claim of prejudice could be further examined. Houston, 226 Ill. 2d at 152-

                                             -7-
53, 874 N.E.2d at 34. The court did not find that the failure to comply with Rule

608(a)(9) resulted in automatic reversal; but rather, the court held that the prejudice

prong of the Strickland analysis (see Strickland v. Washington, 466 U.S. 668, 80 L. Ed.

2d 674, 104 S. Ct. 2052 (1984)) needed to be further examined.

             Similar to a Strickland analysis, prejudice is inherent in a harmless-error

analysis. See People v. Allen, 222 Ill. 2d 340, 369, 856 N.E.2d 349, 365-66 (2006) (in a

plain-error analysis, prejudice is presumed; in a harmless-error analysis, the defendant

must demonstrate prejudice). Because the court in Houston sought to have the preju-

dice to the defendant further examined before reversing on the basis of an ineffective-

assistance-of-counsel claim, this court will likewise engage in a harmless-error analysis

and search the record for a demonstration that defendant was prejudiced by the trial

court's failure to comply with Rule 431(b).

             At the beginning of voir dire, when the prospective jurors as a group were

gathered before the trial court, the presiding judge addressed the pool as follows:

                    "The [d]efendant is presumed to be innocent, and that

             presumption remains throughout the case. And is not over-

             come, unless from all the evidence you are convinced beyond

             a reasonable doubt that the [d]efendant is guilty. Before the

             [d]efendant may be convicted, the State must prove him

             guilty beyond a reasonable doubt. The burden of proof is on

             the State and that burden never shifts. The [d]efendant is

             not required to present evidence, and the [d]efendant is not

             required to prove his innocence. The [d]efendant is not

                                              -8-
              required to testify. If the [d]efendant does not testify, the

              fact that he did not testify may not be considered by you in

              any way."

The trial court addressed all four Zehr principles, albeit not in question form, to

ascertain the jurors' individual understanding and acceptance of them, but as an

admonition of defendant's constitutional guarantees associated with his trial.

              However, the trial court specifically addressed and questioned each

individual juror as follows:

                       "THE COURT: Do you understand and accept the

              principle of law, that before the [d]efendant can be convicted

              the State must prove him guilty beyond a reasonable doubt?

                       JUROR ***: Yes.

                       THE COURT: Do you understand and are you in

              agreement with the presumption of innocence that applies?

                       JUROR ***: Yes."

              With this questioning, the trial court sua sponte complied with two of the

four provisions of Rule 431(b). Defense counsel followed the court's inquiry with the

following questions:

                       "MR. ORTEGA [(defense attorney)]: Thank you. And

              you--all of you also understand that Mr. Stump isn't required

              to present any evidence?

                       FOUR JURORS: (Indicating in the affirmative).

                       MR. ORTEGA: In other words, Mr. Stump doesn't

                                            -9-
              have to testify?

                     FOUR JURORS: (Indicating in the affirmative).

                     MR. ORTEGA: If Mr. Stump chose not to testify,

              would you hold that against him?

                     FOUR JURORS: (Indicating in the negative)."

Defense counsel asked 8 of the 12 impaneled jury members the above questions. For the

last four jury members, counsel asked only if the jurors presumed defendant innocent, if

they understood the State's burden, and if they would hold the State to that burden. The

jurors, as a group, answered in the affirmative.

              Pursuant to Rule 431(b), the trial court, not defense counsel, was obligated

to pose the specific questions set forth in the rule to the jurors to ascertain their under-

standing and acceptance of the constitutional principles. The court did not fully comply

with this mandate and that failure to comply does constitute error. However, we find

the error was harmless because (1) all four Zehr principles were addressed to each juror

at some point during voir dire, and (2) the evidence presented at trial against defendant

was overwhelming. See People v. Smith, 38 Ill. 2d 13, 17, 230 N.E.2d 188, 191 (1967)

(harmless error is that which did not contribute to the defendant's conviction). We

cannot reasonably find that the jury's verdict was affected by the court's error.

                                       B. Sentencing

              Defendant next argues that the trial court abused its discretion in sentenc-

ing defendant to 18 years in prison, claiming the sentence was disproportionate to the

seriousness of the offense. In this court's view, defendant claims his sentence is

excessive, an argument he made in his motion to reconsider. Therefore, we disagree

                                            - 10 -
with the State that defendant has forfeited review of the issue for the purposes of this

appeal.

              It is a well-established principle of law that a trial court has broad discre-

tionary powers and great deference in fashioning a sentence for a defendant. People v.

Stacey, 193 Ill. 2d 203, 209, 737 N.E.2d 626, 629 (2000). This is so because the trial

court is in a better position to determine the appropriate sentence given the court's

"opportunity to weigh such factors as the defendant's credibility, demeanor, general

moral character, mentality, social environment, habits, and age." Stacey, 193 Ill. 2d at

209, 737 N.E.2d at 629.

              Defendant was convicted of a Class 2 felony; however, due to his criminal

record, the trial court was required to sentence him as a Class X felon. 730 ILCS 5/5-5-

3(c)(8) (West 2006). The sentence imposed upon a conviction of a Class X felony shall

be not less than 6 nor more than 30 years in prison. 730 ILCS 5/5-8-1(a)(3) (West

2006). Defendant's sentence of 18 years clearly falls within the permissible range.

              The trial court here did an excellent job of providing this court with an

accurate and thorough record of its sentencing decision. The court carefully and

meticulously considered its responsibility and authority in light of the nature of the

crime, the statutory factors, and the eligible range of punishment. It fashioned a

sentence which, in its discretion, was appropriate. Defendant's extensive criminal

history, his demonstrated failed attempts at rehabilitation, and the court's responsibility

to deter future conduct of this sort all support the court's imposition of an 18-year

prison sentence. The court noted that "the last time [defendant] appeared before the

court for sentencing on this very same offense, but in another case, he received a

                                            - 11 -
sentence of 15 years" in prison. The court's intent was to impose a sentence no less than

the sentence defendant received for the same offense previously. Defendant committed

the current offense while out on bond for the offense for which he received a 15-year

sentence. Obviously, previous sentences and attempts at treatment had no effect on

defendant' ability to refrain from this conduct. As such, we find the court did not abuse

its discretion in sentencing defendant to 18 years in prison.

                                   III. CONCLUSION

              For the foregoing reasons, we affirm the trial court's judgment. As part of

our judgment, we award the State its $50 statutory assessment against defendant as

costs of this appeal.

              Affirmed.

              MYERSCOUGH and TURNER, JJ., concur.




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