                                         2019 IL App (3d) 170153

                               Opinion filed September 9, 2019
     ____________________________________________________________________________

                                                IN THE

                                     APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                                  2019

     THE PEOPLE OF THE STATE OF             )     Appeal from the Circuit Court
     ILLINOIS,                              )     of the 14th Judicial Circuit,
                                            )     Whiteside County, Illinois.
           Plaintiff-Appellee,              )
                                            )     Appeal No. 3-17-0153
           v.                               )     Circuit No. 07-CF-188
                                            )
     JAMES R. TODD,                         )
                                            )     Honorable Trish A. Joyce,
           Defendant-Appellant.             )     Judge, Presiding.
     ____________________________________________________________________________

            PRESIDING JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
            Justices Carter and Lytton concurred in the judgment and opinion.

                                               OPINION

¶1          Defendant, James R. Todd, appeals from the Whiteside County circuit court’s summary

     dismissal of his pro se postconviction petition. Defendant argues that the court erred in

     dismissing his petition because it presented an arguable claim of ineffective assistance of

     appellate counsel. We affirm.

¶2                                         I. BACKGROUND

¶3          On February 25, 2008, defendant entered an open guilty plea to one count of unlawful

     delivery of a controlled substance (720 ILCS 570/401(a)(2)(A) (West 2006)). The factual basis
     for the plea reported that an undercover officer purchased an ounce of cocaine from defendant

     for $1000. The court accepted defendant’s guilty plea and released defendant on bond.

¶4          Before the sentencing hearing, the State prepared a presentence investigation report

     (PSI). The criminal history section of the PSI stated that defendant had five prior felony

     convictions.

¶5          On May 27, 2010, defendant appeared with counsel for the sentencing hearing. Before

     the court pronounced defendant’s sentence, the court found, in aggravation, that (1) defendant

     had a significant history of criminal activity and (2) a prison sentence was necessary to deter

     others from committing the same crime. The court further said:

                            “The other factor that I simply can’t ignore is the, is the, frankly

                    the significant amount of cocaine that was sold here, and I’m not going to

                    ignore it. That, that tells me that this is something more than just a casual,

                    a casual deal, and especially in light of the history, and you can read into

                    that whatever you feel you need to read into it.”

     The court sentenced defendant to 25 years’ imprisonment.

¶6          On direct appeal, private attorney Demitrus Evans filed a brief on behalf of defendant.

     Counsel raised four issues: (1) defendant received ineffective assistance of trial counsel where

     counsel led him to believe that his plea agreement included a 10-year sentencing cap,

     (2) defendant’s guilty plea was not knowingly or voluntarily entered, (3) defendant was denied

     the benefit of the bargain that he made with the State, and (4) the court violated defendant’s right

     to due process when it denied his motion to vacate a directed finding. People v. Todd, 2012 IL

     App (3d) 110624-U, ¶ 2. We affirmed defendant’s conviction and sentence. Id. ¶ 26.




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¶7            On December 19, 2016, defendant filed a pro se postconviction petition. The petition

       alleged four claims: (1) posttrial counsel provided ineffective assistance, (2) appellate counsel

       was ineffective, (3) the court violated defendant’s right to due process, and (4) the court deprived

       defendant of his right to due process when it considered the amount of cocaine as an aggravating

       factor at sentencing. The court found the claims in defendant’s petition to be frivolous and

       patently without merit. The court entered a written order summarily dismissing defendant’s

       pro se petition. Defendant appeals.

¶8                                               II. ANALYSIS

¶9            Defendant argues that the court erroneously dismissed his pro se postconviction petition

       because it presented an arguable claim of ineffective assistance of appellate counsel who did not

       argue on direct appeal that the court relied on an improper factor—the weight of the cocaine—at

       sentencing. We find that the court did not err because its consideration of the weight of the

       cocaine was not an improper double enhancement.

¶ 10          To advance from the first to second stage of postconviction proceedings, a petition must

       allege a violation of the petitioner’s constitutional rights and that violation must have an arguable

       basis in fact or law. People v. Hodges, 234 Ill. 2d 1, 11-12 (2009). Dismissal is appropriate

       where the petition alleges a claim that is frivolous or patently without merit. 725 ILCS 5/122-

       2.1(a)(2) (West 2016); see also Hodges, 234 Ill. 2d at 11. Any claim raised and decided on direct

       appeal is barred by res judicata. People v. Pitsonbarger, 205 Ill. 2d 444, 456 (2002). Claims that

       could have been raised, but were not, are considered waived. Id. We review the court’s summary

       dismissal de novo. Id.

¶ 11          At the outset, we find that the court properly dismissed defendant’s claims of ineffective

       assistance of trial counsel, as well as the two due process claims, as these claims are barred by


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       res judicata and waiver. See id. However, defendant’s ineffective assistance of appellate counsel

       claim is not subject to waiver because he could not raise the issue in his direct appeal. People v.

       Flores, 153 Ill. 2d 264, 281-82 (1992).

¶ 12          At the first stage of postconviction proceedings, an ineffective assistance of appellate

       counsel claim must make an arguable assertion that (1) counsel’s performance fell below an

       objective standard of reasonableness and (2) defendant was prejudiced. Hodges, 234 Ill. 2d at 17.

       Defendant’s contention that appellate counsel was ineffective for failing to raise a double

       enhancement issue required defendant to allege facts and law to show that counsel’s failure was

       objectively unreasonable and counsel’s decision prejudiced defendant. See People v. Easley, 192

       Ill. 2d 307, 328-29 (2000). Appellate counsel is not required to brief every conceivable issue and

       is not incompetent for refraining from raising an issue that is without merit, unless counsel’s

       appraisal of the merits is patently wrong. Id. at 329.

¶ 13          Turning first to defendant’s allegation of deficient performance, defendant alleged that

       appellate counsel’s performance was deficient for failing to raise an issue regarding the court’s

       comment at sentencing that it could not ignore the “significant amount of cocaine that was sold

       here.” Generally, “a factor implicit in the offense for which a defendant has been convicted

       cannot be used as an aggravating factor in sentencing for that offense, absent a clear legislative

       intent to allow such use of the factor.” People v. Milka, 211 Ill. 2d 150, 184 (2004). “The

       prohibition against double enhancements is based on the assumption that, in designating the

       appropriate range of punishment for a criminal offense, the legislature necessarily considered the

       factors inherent in the offense.” People v. Phelps, 211 Ill. 2d 1, 12 (2004). To determine if the

       legislature permitted the court to consider a factor inherent in the offense at sentencing, we look

       first to the plain language of the statute. See People v. Guevara, 216 Ill. 2d 533, 545-46 (2005).


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¶ 14          The State charged defendant, under section 401 of the Illinois Controlled Substances Act

       (Act), with unlawful delivery of a controlled substance. 720 ILCS 570/401(a)(2)(A) (West

       2006). Subsection 401(a)(2)(A) criminalizes the offense of possessing with an intent to deliver a

       substance containing cocaine. Id. Applicable to this case, the subsection provides a sentence

       range of “not less than 6 years and not more than 30 years with respect to 15 grams or more but

       less than 100 grams of a substance containing cocaine, or an analog thereof.” Id. Section 100 of

       the Act explains:

                      “It is the intent of the General Assembly [to] *** penalize most heavily

                      the illicit traffickers or profiteers of controlled substances, who propagate

                      and perpetuate the abuse of such substances with reckless disregard for its

                      consumptive consequences upon every element of society ***.

                             *** To this end, guidelines have been provided, along with a wide

                      latitude in sentencing discretion, to enable the sentencing court to order

                      penalties in each case which are appropriate for the purposes of this Act.”

                      (Emphasis added.) Id. § 100.

       The sentencing section of the Act further provides that

                      “In determining the appropriate sentence for any conviction under this

                      Act, the sentencing court may consider the following as indicative of the

                      type of offenses which the legislature deems most damaging to the peace

                      and welfare of the citizens of Illinois and which warrants the most severe

                      penalties:

                             (1) the unlawful delivery of the most highly toxic controlled

                      substances, as reflected by their inclusion in Schedule I or II of this Act;


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                              (2) offenses involving unusually large quantities of controlled

                      substances, as measured by their wholesale value at the time of the

                      offense;

                                                     ***

                              (5) offenses involving the large-scale manufacture of controlled

                      substances;

                                                     ***

                              Nothing in this section shall be construed as limiting in any way

                      the discretion of the court to impose any sentence authorized by this Act.”

                      (Emphasis added.) Id. § 411.

       Together, the plain language of these sections establishes that the legislature intended for the

       courts to have broad discretion to consider the amount of drugs as an aggravating factor at

       sentencing. See People v. Garcia, 2018 IL App (4th) 170339, ¶ 40. More specifically, the

       sentencing section of the Act expressly allows a circuit court to consider the amount of a drug

       when sentencing a defendant. See id.

¶ 15          Applied to this case, defendant possessed with an intent to deliver approximately 28

       grams of cocaine. This amount corresponded to a sentence range of 6 to 30 years’ imprisonment.

       See 720 ILCS 570/401(a)(2)(A) (West 2006). To select defendant’s sentence from this range, the

       Act required the court to consider the amount of cocaine that defendant delivered to the

       undercover police officer. While this amount was less than the 100-gram maximum for the

       range, it was an appropriate factor for the court to consider in aggravation. Additionally, this was

       not the only factor in aggravation, as the PSI established that defendant had several prior

       criminal convictions. Notably, defendant also does not challenge the overall length of his


                                                      -6-
       sentence. Therefore, we conclude that the court properly considered the amount of cocaine

       during sentencing, and appellate counsel did not have a duty to raise this meritless double

       enhancement issue. Accordingly, the court did not err when it summarily dismissed defendant’s

       pro se postconviction petition.

¶ 16                                        III. CONCLUSION

¶ 17          For the foregoing reasons, we affirm the judgment of the circuit court of Whiteside

       County.

¶ 18          Affirmed.




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                                  No. 3-17-0153


Cite as:                 People v. Todd, 2019 IL App (3d) 170153


Decision Under Review:   Appeal from the Circuit Court of Whiteside County, No. 07-CF-
                         188; the Hon. Trish A. Joyce, Judge, presiding.


Attorneys                James E. Chadd, Peter A. Carusona, Nathaniel A. Nieman, of
for                      State Appellate Defender’s Office, of Ottawa, for appellant.
Appellant:


Attorneys                Terry A. Costello, State’s Attorney, of Morrison (Patrick Delfino
for                      and Thomas D. Arado, of State’s Attorneys Appellate
Appellee:                Prosecutor’s Office, of counsel), for the People.




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