                                          2016 IL App (3d) 140112

                                Opinion filed March 24, 2016
     _____________________________________________________________________________

                                                   IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                    2016

     THE PEOPLE OF THE STATE OF                        )       Appeal from the Circuit Court
     ILLINOIS,                                         )       of the 13th Judicial Circuit,
                                                       )       La Salle County, Illinois.
            Plaintiff-Appellee,                        )
                                                       )       Appeal No. 3-14-0112
            v.                                         )       Circuit No. 13-CF-51
                                                       )
     THOMAS J. HIGGINS,                                )
                                                       )       Honorable H. Chris Ryan,
            Defendant-Appellant.                       )       Judge, Presiding.
     _____________________________________________________________________________

            JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
            Justices McDade and Wright concurred in the judgment and opinion.

                                                 OPINION

¶1          A La Salle County jury found defendant, Thomas J. Higgins, guilty of unlawful delivery

     of a controlled substance. The trial court sentenced defendant to 12 years’ imprisonment.

     Defendant appeals, arguing: (1) the trial court’s failure to determine whether he agreed with

     defense counsel’s decision to concede that he delivered heroin and to then tender a jury

     instruction on unlawful delivery of a controlled substance denied him a fair trial and his right to

     decide how to plead; and (2) the trial court imposed an excessive sentence. We affirm.

¶2                                            BACKGROUND
¶3          Following a January 17, 2013, sale of heroin to police informant, Jerome Shorkey, the

     State charged defendant by indictment with armed violence predicated on unlawful delivery of a

     controlled substance (720 ILCS 5/33A-2(a), 570/401(d) (West 2012)). As a result of a prior

     Class X felony conviction, defendant faced an extended-term sentencing range of 15 to 60 years’

     imprisonment if convicted.

¶4          During a hearing on defendant’s motion in limine to keep out evidence of drugs found on

     defendant at the time of arrest, defense counsel indicated to the court that there was “no contest

     over the delivery. We’re not trying to contest the delivery. *** The State intends to prove that a

     delivery occurred, and quite frankly, there’s no contest over that.” During his opening statement

     at trial, defense counsel argued to the jury that while there was no question defendant delivered

     heroin to Shorkey, the State could not prove defendant was armed with a dangerous weapon at

     the time he delivered the heroin. Defense counsel specifically stated, “[t]he facts of the case

     aren’t whether or not Tommy Higgins delivered four baggies of heroin to Jerome Shorkey in

     exchange for $80, in essence. No one’s going to dispute that. It happened. It’s a fact of life.”

¶5          At trial, Shorkey testified he was a prior heroin addict and had known defendant for 20

     years. On January 17, 2013, Shorkey contacted the police about working with them to purchase

     heroin from defendant. After thoroughly searching Shorkey for drugs and contraband, a police

     officer provided Shorkey with $80 in marked bills to purchase heroin from defendant. Shorkey

     called defendant to set up the buy, and defendant asked him to pick up a pack of Newport

     cigarettes on his way over. One of the police officers bought a pack of cigarettes with one of the

     prerecorded bills, recorded the serial numbers on the change, and gave the change ($73) and

     cigarettes to Shorkey.




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¶6          When Shorkey arrived at defendant’s father’s home, a small, second-floor efficiency

     apartment, defendant already had four baggies of heroin sitting out on the table. Shorkey gave

     defendant the cigarettes and the $73 and turned his hat around, which was the prearranged signal

     with the police that the sale had taken place. Shorkey was only in the apartment for three or four

     minutes and never saw defendant with a gun. Shorkey and defendant left the apartment together.

     Shorkey did not see defendant grab anything on his way out the door; he was pretty sure

     defendant walked out ahead of him. Defendant might have zipped up his jacket, but Shorkey

     could not recall minor details. As the two men were walking toward the street, the police

     officers stepped out of the bushes and identified themselves. The officers searched Shorkey and

     recovered four baggies of suspected heroin. The officers then searched defendant and recovered

     $73 in prerecorded bills, a pack of Newport cigarettes, a gun, and two gun magazines. The

     parties stipulated that two forensic scientists would testify that the four baggies contained heroin,

     with a total weight of less than one gram.

¶7          Upon his arrest, defendant confessed to selling heroin to Shorkey. The State played

     defendant’s recorded statement to the jury. In the statement, defendant told the officers he had

     been selling heroin for about a year and a half. His suppliers, the Latin Kings, gave him pre-

     bagged drugs and told him to sell them for $20 a bag. On the morning of January 17, defendant

     grabbed a gun that belonged to his friend Max because he planned to meet one of his suppliers

     and was scared of them. His suppliers told him to always keep the drugs safe. After meeting

     with one of his suppliers, defendant met with Shorkey at his father’s house and gave Shorkey

     four baggies of heroin for approximately $80, less the cost of a pack of cigarettes. Defendant

     explained he had the gun on him at the time of his arrest because Max wanted it back and

     defendant planned to take it to him.



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¶8            Following presentation of the State’s evidence, defendant testified on his own behalf.

       Defendant’s testimony was mostly consistent with both Shorkey’s testimony and his prior

       recorded statement. Defendant explained he took Max’s gun from a safe at his sister’s house.

       He was going to meet his suppliers that day and was scared of them. Defendant met with one of

       his suppliers in an alley at approximately 10:15 a.m. that morning and wore the gun for

       protection. When defendant got back to his father’s house, he put the gun in a duffle bag by the

       door; he would never carry a gun around his father’s house.

¶9            Later that morning, Shorkey, defendant’s life-long friend, called him and asked if he had

       any drugs. Defendant said yes and asked Shorkey to bring him a pack of cigarettes. When

       Shorkey got to the apartment, defendant gave him four baggies of heroin in exchange for the

       cigarettes and approximately $80. Defendant asked Shorkey for a ride to his sister’s house.

       Defendant explained to the jury that Max was at his sister’s house and wanted his gun back. As

       he followed Shorkey out the door, defendant grabbed the gun and two clips from the duffle bag

       and shoved them in his waistband. Defendant zipped up his jacket on his way downstairs. When

       defendant and Shorkey got outside, several police officers stepped out and arrested him.

¶ 10          At the jury instruction conference, the State requested an instruction on unlawful delivery

       of a controlled substance as a lesser-included offense of armed violence. Defense counsel

       indicated his agreement with the State’s request. The court inquired whether defense counsel

       had spoken with defendant about giving the instruction; defense counsel assured the court that he

       had. The court instructed the jury on both armed violence and unlawful delivery of a controlled

       substance. After deliberations, the jury found defendant guilty of unlawful delivery of a

       controlled substance.




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¶ 11          After reviewing defendant’s presentence investigation report and multiple letters of

       reference, the court held a sentencing hearing. At the hearing, the court noted that defendant was

       in good physical health and had obtained a beginning welding certificate from Illinois Valley

       Community College. Defendant had an extensive juvenile criminal history and an adult criminal

       history beginning in 1996. Based on a 2002 Class X conviction for manufacture/delivery of

       more than 15 grams of cocaine, defendant was extended-term eligible, and faced a sentence in

       the range of 3 to 14 years’ imprisonment. In the years following his release from prison on the

       Class X offense, defendant was convicted of driving on a suspended license and possession of a

       controlled substance. While the court understood and respected that a jury had found defendant

       not guilty of armed violence, it explained that defendant was a convicted felon and should not

       have had a weapon, let alone while being involved in the drug business.

¶ 12          In mitigation, the court noted the lack of harm, other than the arguable harm to society

       that accompanies the sale of controlled substances. The court also noted that defendant had

       several dependants, although he was not current on any type of support for those dependants.

       The court concluded that defendant had very little redeeming value; he was going to sell drugs

       and was bound to use firearms while doing so. The court declined defense counsel’s request for

       a finding that the offense was committed as a result of his use or abuse of controlled substances

       so that defendant could get treatment. The court explained, defendant “just makes money on it.”

       Based on defendant’s extensive criminal history and the need to protect society and deter others,

       the court sentenced defendant to 12 years’ imprisonment.

¶ 13          Defendant did not file any posttrial motions. This appeal followed.

¶ 14                                              ANALYSIS

¶ 15                                 I. Lesser-Included Offense Instruction



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¶ 16           Defendant first argues the trial court erred by failing to inquire whether he understood the

       ramifications of defense counsel’s decision to concede delivery of heroin and to then tender a

       separate jury instruction on unlawful delivery of a controlled substance. Defendant claims,

       because defense counsel’s strategy was the equivalent of him pleading guilty, it was incumbent

       upon the trial court to confirm that he agreed with defense counsel’s decision, just as it is

       incumbent upon a trial court to admonish a defendant when he pleads guilty. Defendant

       concedes that he forfeited this issue on appeal by failing to file a timely posttrial motion. People

       v. Johnson, 218 Ill. 2d 125, 138 (2005) (a defendant forfeits an issue on appeal by failing to

       timely object at trial and raise the issue in a posttrial motion). However, defendant requests that

       we consider his argument under the second prong of the plain-error doctrine.

¶ 17           A reviewing court may consider a forfeited issue under the plain-error doctrine when “(1)

       a clear or obvious error occurred and the evidence is so closely balanced that the error alone

       threatened to tip the scales of justice against the defendant, regardless of the seriousness of the

       error, or (2) a clear or obvious error occurred and that error is so serious that it affected the

       fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of

       the closeness of the evidence.” People v. Sargent, 239 Ill. 2d 166, 189 (2010) (citing People v.

       Piatkowski, 225 Ill. 2d 551, 565 (2007)); People v. Williams, 139 Ill. 2d 1, 14-15 (1990). The

       first step in plain-error review is to determine whether an error occurred at all. People v.

       Hudson, 228 Ill. 2d 181, 191 (2008).

¶ 18           In People v. Brocksmith, 162 Ill. 2d 224, 229 (1994), the Illinois Supreme Court held that

       the decision to submit a lesser-included offense instruction is one of five decisions belonging

       exclusively to a criminal defendant, as opposed to defense counsel. In so holding, the court

       recognized that the decision to tender a lesser-included offense instruction is analogous to the



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       decision to plead guilty. Id. It reasoned, “[b]ecause it is defendant’s decision whether to initially

       plead guilty to a lesser charge, it should also be defendant’s decision to submit an instruction on

       a lesser charge at the conclusion of the evidence. In both instances the decisions directly relate

       to the potential loss of liberty on an initially uncharged offense.” Id.

¶ 19          Five years later, in People v. Garcia, 188 Ill. 2d 265, 278-79 (1999), the supreme court

       clarified its holding in Brocksmith. There, the State had charged the defendant with possession

       of a controlled substance with intent to deliver. Id. at 267. Upon conclusion of the evidence, the

       defendant informed the trial court that he agreed with his attorney’s decision not to request an

       instruction on the lesser-included offense of possession of a controlled substance. Id. at 269.

       The trial court reviewed the evidence and concluded it had a responsibility to give the jury the

       lesser-included offense instruction sua sponte, despite the defendant’s objection. Id. The jury

       subsequently found the defendant guilty of possession of a controlled substance. Id. On appeal,

       the defendant claimed the holding in Brocksmith gave him unfettered control over instructions on

       lesser-included offenses. Id. at 278. Finding the defendant’s reliance on Brocksmith misplaced,

       the supreme court rejected this argument. Id. at 278-79.

¶ 20          The Garcia court explained that nothing in Brocksmith’s holding took away a trial court’s

       discretionary authority to tender a lesser-included offense instruction sua sponte, nor did it take

       away the State’s right to have the jury instructed on a lesser-included offense over the

       defendant’s objection. Id. at 277, 279. Rather, Brocksmith’s holding was limited to the specific

       scenario where the defense tenders the lesser-included offense instruction. Id. at 277. The court

       reasoned, “[c]learly the State has no legitimate interest in obtaining a conviction for a crime

       greater than that warranted by the evidence, but neither does the defendant have a right to an




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       acquittal when the evidence, although not sufficient to establish the greater crime, is sufficient to

       establish a lesser[-]included offense.” (Internal quotation marks omitted.) Id. at 282.

¶ 21          Finally, in People v. Medina, 221 Ill. 2d 394, 409 (2006), the supreme court laid out a

       procedural framework to ensure that a criminal defendant understands the risks associated with

       tendering a lesser-included offense instruction. The Medina court recognized that, “[w]here a

       lesser-included offense instruction is tendered [by the defense], a defendant is exposing himself

       to potential criminal liability, which he otherwise might avoid, and is in essence stipulating that

       the evidence is such that a jury could rationally convict him of the lesser-included offense.” Id.

       Consequently, the court concluded that, when defense counsel tenders a lesser-included offense

       instruction, “the trial court should conduct an inquiry of defense counsel, in defendant’s

       presence, to determine whether counsel has advised defendant of the potential penalties

       associated with the lesser-included offense, and the court should thereafter ask defendant

       whether he agrees with the tender.” Id.

¶ 22          Here, defendant makes two arguments with regard to the lesser-included offense

       instruction tendered in this case. First, defendant claims the trial court was required to admonish

       him of the risks associated with admitting he delivered heroin as soon as that strategy became

       clear to the court. Second, defendant claims that since the trial court failed to ask him whether

       he agreed with defense counsel’s decision to tender the lesser-included offense instruction, he

       was denied a fair trial. We find both arguments meritless.

¶ 23          With regard to defendant’s first argument—that the trial court was required to admonish

       him of the risks associated with his concession as soon as defense counsel’s strategy became

       clear—the supreme court explicitly rejected this argument in Medina. Recognizing that “the

       decision whether to tender a lesser-included offense instruction partakes of, and is unavoidably



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       intertwined with, strategic trial calculations,” the Medina court concluded that a trial court need

       only inquire into defense counsel’s advice regarding potential penalties associated with a lesser-

       included offense if defense counsel actually tenders the lesser-included offense instruction. Id.

       It explained, where defense counsel chooses not to tender the lesser-included offense instruction,

       the court runs of risk of “improperly intruding on the attorney-client relation and interfering with

       the defense strategy counsel has pursued.” Id. In other words, where defense counsel does not

       tender a lesser-included offense instruction, the trial court generally should not interfere with

       what might very well be a defense strategy and need not give generalized admonishments to the

       defendant. Ergo, defendant’s argument that the trial court should have admonished him as soon

       as his attorney’s strategy became clear (in this case, at the hearing on defendant’s motion in

       limine) is without merit.

¶ 24          As for defendant’s second argument—that the court’s failure to confirm he agreed with

       tendering the lesser-included offense instruction denied him a fair trial—we find defendant’s

       reliance on Medina misplaced. As explained above, Medina laid out a procedural framework for

       trial courts to follow when defense counsel tenders a jury instruction on a lesser-included

       offense. Here, it was the State that requested the lesser-included offense instruction for unlawful

       delivery of a controlled substance. Thus, the procedure outlined in Medina is inapplicable, and

       the trial court in this case was not required to ensure defendant agreed with the decision not to

       object to the State’s tender of the instruction. See Garcia, 188 Ill. 2d at 279.

¶ 25          Defendant’s admission of guilt to unlawful delivery of a controlled substance in this case

       appears to have been nothing more than what turned out to be an effective trial strategy. See

       People v. Siverly, 194 Ill. App. 3d 981, 991 (1990) (defense counsel’s concession of the

       defendant’s guilt only to the lesser-included offense of voluntary manslaughter in the hope of



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       avoiding a murder conviction was viewed as good defense strategy). The State charged

       defendant with armed violence, a Class X felony with a sentencing range of 15 to 60 years’

       imprisonment. By not objecting to the State’s tender of the jury instruction for unlawful delivery

       of a controlled substance, defendant avoided the more serious felony conviction. Also, in light

       of the evidence, with or without defendant’s testimony, the trial court would likely have given

       the instruction over the objection. The court sentenced defendant to 12 years’ imprisonment—3

       years less than the minimum sentence he could have received had the jury convicted him of

       armed violence. Based upon the trial court’s comments at sentencing, it appears likely that any

       sentence given on the more serious offense would have exceeded the minimum.

¶ 26          Because we find no error, plain or otherwise, we affirm defendant’s conviction for

       unlawful delivery of a controlled substance.

¶ 27                                              II. Sentencing

¶ 28          Defendant’s final argument is that his sentence was excessive in light of his personal

       background, the nonviolent nature of the offense, the extremely small amount of drugs involved,

       and the relatively minor nature of the drug offense that allowed for extended-term sentencing.

       Defendant asks that this court review his sentence as a matter of plain error and either reduce his

       sentence or remand for a new sentencing hearing. We find no error in the court’s sentencing

       determination.

¶ 29          It is well settled that a trial court has wide latitude in sentencing a criminal defendant, so

       long as it neither considers improper aggravating factors nor ignores relevant mitigating factors.

       People v. Roberts, 338 Ill. App. 3d 245, 251 (2003). In conducting our review, we presume that

       the trial court considered all mitigating evidence absent some indication to the contrary. People

       v. Marlow, 303 Ill. App. 3d 568, 572 (1999). The trial court’s sentencing determination is



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       granted great deference by reviewing courts because the trial court is generally in a better

       position weigh factors such as “the defendant’s credibility, demeanor, general moral character,

       mentality, social environment, habits, and age.” People v. Stacey, 193 Ill. 2d 203, 209 (2000).

       A sentence within the statutory limits will not be deemed excessive unless it is greatly at

       variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the

       offense. People v. Alexander, 239 Ill. 2d 205, 212 (2010).

¶ 30          The sentencing range for unlawful delivery of a controlled substance, a Class 2 felony, is

       three to seven years’ imprisonment. 730 ILCS 5/5-4.5-35 (West 2012). Because defendant had

       a prior Class X felony conviction for manufacture/delivery of more than 15 grams of cocaine

       (the conviction defendant refers to on appeal as “relatively minor”), defendant was extended-

       term eligible, subjecting him to a sentencing range of 7 to 14 years’ imprisonment. Id. The

       midpoint of this range is 10½ years. While defendant’s 12-year sentence is near the top of the

       sentencing range, defendant has failed to establish that it is manifestly disproportionate to the

       nature of the offense, or that it is greatly at variance with the spirit or purpose of the law. In

       announcing defendant’s sentence, the trial court put specific emphasis on defendant’s lengthy

       criminal history and his possession and use of a weapon while being involved in the drug

       industry. Defendant has multiple drug convictions, and he openly admitted to conducting drug

       business while in possession of a firearm.

¶ 31          While defendant argues the trial court failed to seriously consider his history of physical

       and sexual abuse, mental illness, and drug and alcohol abuse, each of these potentially mitigating

       factors was a part of defendant’s presentence investigation report, which the court noted it had

       considered. See Marlow, 303 Ill. App. 3d at 572. It is not our duty to reweigh the factors

       involved in the court’s sentencing decision. People v. Lake, 2015 IL App (3d) 140031, ¶ 23. As



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       such, we conclude that the trial court considered all the relevant factors and fashioned a sentence

       that was proportionate to the offense and justified in light of defendant’s criminal history, the

       need to protect society, and the need to deter others from committing similar crimes.

¶ 32                                             CONCLUSION

¶ 33          For the foregoing reasons, we affirm the judgment of the circuit court of La Salle County.

¶ 34          Affirmed.




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