People v. Mendoza , 2022 IL App (4th) 210506-U ( 2022 )

NOTICE 2022 IL App (4th) 210506-UThis Order was filed under
FILED
NO. 4-21-0506 August 3, 2022
Supreme Court Rule 23 and is
Carla Bender
not precedent except in the
IN THE APPELLATE COURT 4th District Appellate
limited circumstances allowed
Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
CARLOS MENDOZA, ) No. 19CF113
Defendant-Appellant. )
) Honorable
) Randall B. Rosenbaum,
) Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court.
Justices DeArmond and Harris concurred in the judgment.
ORDER
¶1 Held: (1) Unless other factors raise reasonable doubt, a defendant’s knowledge and
possession of contraband can be inferred from the defendant’s possession of the
premises in which the contraband was found.
(2) A reasonable trier of fact could find, beyond a reasonable doubt, that defendant
knew three of the firearms in his constructive possession had been stolen from
others.
(3) An objection to multiple hearsay in a sentencing hearing is forfeited unless the
defendant objects in the sentencing hearing and raises the issue again in a
postsentencing motion; and unless the consideration of the multiple hearsay was a
clear or obvious error, the doctrine of plain error affords no possibility of averting
the forfeiture.
(4) Absent a clear or obvious error in the consideration of multiple hearsay in the
sentencing hearing, it was within the wide range of reasonable professional
assistance for defense counsel to refrain from objecting to the multiple hearsay.
¶2 In a bench trial, the circuit court of Champaign County found defendant, Carlos
Mendoza, guilty of drug offenses and gun-possession offenses. The court sentenced him to
concurrent terms of imprisonment, the longest of which was 35 years. Also, the court imposed a
street-value fine. Defendant appeals on two grounds.
¶3 First, he contends the evidence was insufficient to support his convictions of count
I of the information, unlawful possession with the intent to deliver methamphetamine (see 720
ILCS 646/55(a)(1) (West 2018)); count X, unlawful possession of a weapon, namely, a “Sten MK
II 1943 ‘grease’ gun,” by a felon (see 720 ILCS 5/24-1.1(a) (West 2018)); and count XI,
aggravated possession of a stolen firearm (see id. § 24-3.9(a)(1)). Specifically, he maintains that,
as a matter of law, the State failed to prove (1) his knowledge of the methamphetamine and the
Sten gun and (2) his knowledge that any of the guns in his possession were stolen. When we view
all the evidence in a light most favorable to the prosecution, we conclude that a rational trier of
fact could find, beyond a reasonable doubt, the guilty knowledge necessary to sustain those
convictions.
¶4 Second, defendant contends that, in the sentencing hearing, the circuit court abused
its discretion by concluding, on the basis of multiple hearsay, that he was an arms dealer. We hold
this contention to be procedurally forfeited. In an attempt to avoid the forfeiture, defendant invokes
the doctrine of plain error. See Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). Because the multiple hearsay,
however, was partially corroborated, we find no error that was clear or obvious. Consequently, the
doctrine of plain error does not avert the forfeiture.
¶5 The alternative claim of ineffective assistance of counsel fails because, absent an
error that was clear or obvious, it was within the wide range of reasonable professional assistance
to refrain from objecting to the asserted error. Besides, whether to object to hearsay is a matter of
strategy, and unless defense counsel failed to subject the State’s case to any meaningful adversarial
-2-
testing, such strategic decisions do not give rise to a valid claim of ineffective assistance. The
transcript of the sentencing hearing reveals meaningful adversarial testing.
¶6 Therefore, we affirm the judgment.
¶7 I. BACKGROUND
¶8 A. What the Police Found in a Search
¶9 On Friday, January 18, 2019, at 11:23 p.m., the police executed a warrant to search
a trailer, or mobile home, at 1928 Country Road 3000 North, Lot 33, in Rantoul, Illinois. Upon
entering the trailer, the police noticed it smelled like cannabis. Defendant and five teenagers were
in the trailer.
¶ 10 In the living room, the police found, tucked into a recliner, a Taurus 9-millimeter
pistol. In the couch, they found the magazine to a Glock pistol. On an end table were defendant’s
wallet and, outside his wallet, his state-issued Illinois identification card. According to the
identification card, his address was 1928 Country Road 3000 North, Rantoul, Illinois (without a
trailer number). Inside the wallet were credit cards in defendant’s name and a McLean County
voter registration card issued to him and showing his address to be 1928 Country Road 3000 North,
Lot 46 (as distinct from lot 33, where the search was performed).
¶ 11 In the kitchen, the police found three digital scales, shotgun shells, a pill bottle the
label of which said the prescription was for Christian Pedro, and what the police suspected to be
cannabis.
¶ 12 The trailer had three bedrooms: the south, middle, and north bedrooms.
¶ 13 While searching the south bedroom, the police found, in a dresser drawer, a manila
envelope. Inside the manila envelope were the following documents, all of which had defendant’s
name on them: a document from the United States Department of State, Chicago Passport Agency,
-3-
dated September 14, 2018, and issued to defendant at the lot 46 address; an accident report and a
McLean County citation, dated November 27, 2018; and defendant’s birth certificate. In that same
dresser drawer was a toiletry bag containing five bags of heroin. Cash in the amount of $427 was
also in the dresser. Elsewhere in the south bedroom was a Chase Bank envelope containing an
additional $500 in cash. On an end table in the south bedroom was a prescription pill bottle of
benzonatate with defendant’s name on the label. People’s exhibit No. 2-AF was a photograph of
the pill bottle sitting on a brown tabletop. In a closet of the south bedroom were a Kriss Vector
9-millimeter rifle, a Ruger precision rifle, and a Smith & Wesson rifle. Those three rifles had been
reported stolen.
¶ 14 In the middle bedroom, which appeared to be used for storage, the police found
93.2 grams of a leafy substance, a large scale, 18 bundles of cannabis, and 2 baggies of
methamphetamine. The methamphetamine was hidden in a floor vent.
¶ 15 In the north bedroom, the police found bank statements and correspondence from
State Farm, all addressed to Jose Rosales at Lot 33. In the closet of the north bedroom were a
Diamondback rifle, an extended magazine for the rifle, and 16 bags of cannabis.
¶ 16 In a hallway closet near the middle and south bedrooms was an unassembled Sten
MKII rifle inside a tool bag.
¶ 17 B. The Body Cam Video
¶ 18 At the time of the search, Detective Cully Schweska had a video camera on his
uniform, and the camera recorded him advising defendant of his Miranda rights. See
Miranda v. Arizona, 384 U.S. 436 (1966). Defendant chose to talk. Although defendant said his
“address” was lot 46, he told Schweska he “stayed” at lot 33 with his “friend,” Rosales. Defendant
-4-
explained that the teenagers—including his stepson, Michael Ramos—had been in the trailer at lot
33 for only five minutes. They had come to pick up some money, defendant said.
¶ 19 Schweska asked defendant:
“Q. Where is your bedroom located at in this house?
A. In the front.
Q. At number 33 here?
A. Yes.”
Schweska asked defendant why, then, he had given lot 46 as his address. Defendant answered that
lot 46 was “my house.” But “I just stay” at lot 33 “off and on,” he told Schweska.
¶ 20 C. The Testimony of Rosales
¶ 21 Rosales testified that although he was not present on January 18, 2019, when the
police searched the trailer at lot 33, he lived in the trailer at the time and had a key to it. Rosales
further testified that defendant, whose brother owned the trailer park and for whom defendant did
maintenance work, also lived in the trailer at lot 33.
¶ 22 When the prosecutor asked Rosales how long defendant had lived in the trailer at
lot 33, Rosales at first answered he did not remember. Then the prosecutor asked Rosales:
“Q. And you remember giving an interview with two detectives, right—
A. Yeah.
Q. —inside the police department?
And do you remember them asking that same question, how long
[defendant] had been living with you?
A. I think so. I don’t remember really.
-5-
Q. And do you remember telling them that they—he had moved in about a
year before?
A. I think so.”
¶ 23 Next, the prosecutor showed Rosales a photograph of the north bedroom of the
trailer at lot 33. After some ambivalence, Rosales admitted he lived in the north bedroom.
¶ 24 Defense counsel asked if, additionally, “an Oscar Perez (phonetic) and another
individual used to live there.” Rosales answered in the affirmative, but he “didn’t pay attention”
when exactly those two “left.” He explained again, “I work and sleep day and I, I don’t really know
what time they, they went to work.”
¶ 25 Rosales testified he had seen defendant sleeping on the living room couch at lot 33.
Defense counsel asked Rosales:
“Q. The middle room, there was a middle room—
A. Yeah.
Q. —that was not [defendant’s]?
A. No.
Q. Okay. Do you know who used that room?
A. He had a dog. I think that he put that dog there or something, put it
outside or inside because I hear him bark when I get home at midnight.”
¶ 26 D. Discoveries of Defendant’s DNA and Fingerprints
¶ 27 Emilie Moore, a forensic scientist with the Bureau of Alcohol, Tobacco, Firearms
and Explosives, tested the Taurus pistol for DNA evidence (that is, the pistol found in the recliner
in the living room). She concluded that the DNA of two persons was on the pistol and that at least
one of the contributors was male. Having been provided a known reference sample of defendant’s
-6-
DNA, Moore concluded that defendant was a “possible contributor” to the DNA on the pistol.
Moore explained the term “possible contributor” as follows: “The likelihood ratio value associated
with this inclusion states that the DNA profile is at least 1 trillion times more likely if it originated
from [defendant] and an unrelated, unknown individual than if it originated from two unrelated,
unknown individuals.”
¶ 28 On the toiletry bag, Moore found the DNA of at least four individuals, at least two
of whom were male. She “determined that there [was] a major component mixture of two
individuals,” at least one of whom was male. “That major component mixture of two individuals,”
she explained, “[was] suitable for comparisons while the minor component [was] not suitable for
comparisons.” She found “evidentiary support for the inclusion of [defendant] to that major
component.” Moore explained the term “evidentiary support” as follows: “The likelihood ratio
value associated with this inclusion states that the DNA profile is 20.9 million times for likely if it
originated from [defendant] as a major contributor with three unrelated, unknown individuals than
if it originated from four unrelated, unknown individuals.”
¶ 29 A fingerprint analyst, Katharine Mayland, examined the digital scale that the police
had found in the closet of the middle bedroom. She had been provided a known standard, the
fingerprints of defendant. On the battery compartment lid of the digital scale, she found a
fingerprint that was a match for defendant’s fingerprint.
¶ 30 E. Stipulations and Street Values
¶ 31 The parties stipulated that 148 grams of heroin; 5350 grams of cannabis; 2754
grams of additional, untested plant material; and 510 grams of methamphetamine were seized from
inside the trailer at lot 33.
-7-
¶ 32 Schweska testified that in January 2019 the street value of cannabis was $10 per
gram, the street value of methamphetamine was $100 per gram, and the street value of heroin also
was $100 per gram.
¶ 33 F. Judicial Notice
¶ 34 At the prosecutor’s request, the circuit court took judicial notice that in Champaign
County case No. 09-CF-93 defendant was convicted of unlawfully possessing cannabis with the
intent to deliver it, a Class 1 felony.
¶ 35 G. Defendant’s Testimony
¶ 36 1. Homes in Texas and Illinois
¶ 37 Defendant chose to take the stand and testify on his own behalf. In his testimony,
he represented essentially as follows.
¶ 38 When defendant was released from prison in 2013, he was “paroled” to lot 46. He
had lived at lot 46 for about 17 years. He had a key to the trailer at lot 46, on an Audi key ring, and
when the police arrested him in January 2019, the utilities at lot 46 were still in his name. He
testified, “[L]ot 46 is my home.” He identified defense exhibit Nos. 5 and 6 as electric and gas
bills for lot 46, and they were in his name. He voted in Rantoul, Illinois, in November 2018. “So[,]
at that point [he] still had residency in Illinois to be able to vote.”
¶ 39 Also, according to defendant’s testimony, he had “had a home all [his] life in
Texas.” In July or August 2018, he moved to Mission, Texas, with his girlfriend.
¶ 40 Lately, defendant had been traveling back and forth between his homes in Texas
and Illinois. Around the time of his arrest, he had flown from Texas to Illinois three times recently:
in November and December 2018 and in January 2019. He identified defense exhibit No. 2 as “the
receipt of the flight that [he] booked on [January 12, 2019].”
-8-
¶ 41 Defendant gave a couple of reasons for these frequent trips back and forth. For one
thing, a court case was pending against him in McLean County, Illinois, for driving on a statutory
summary suspension. He was required to attend hearings, one of which was on January 14, 2019.
For another thing, defendant’s brother owned the trailer park and needed help with maintenance
work.
¶ 42 On January 12, 2019, defendant’s “son” (whose name appears to be unspecified in
defendant’s testimony) picked him up from O’Hare Airport and drove him, in the Audi, to Rantoul.
Upon arriving at lot 46, defendant found that his roommate, Damon Zaragoza, “ha[d] his kids
spending the weekend.” (“[Zaragoza] was going through a hard time,” defendant explained. “Him
and his girlfriend or wife were separated. So I’ve known him since he was nine years old and I
brought him in, gave him a place to stay. And he usually helped with the lot rent.”) Because “three
boys and a girl” were “staying with [Zaragoza]” at lot 46 for the weekend, defendant decided to
stay in the trailer at lot 33.
¶ 43 Defense counsel asked defendant how many times, between his move to Texas and
his arrest in January 2019, he had stayed in the trailer at lot 33. Defendant answered, “Not very
many. I don’t know off the top of my head, but usually when I was using.” He denied ever going
into the middle bedroom or the north bedroom of lot 33. He usually stayed in the living room.
Because Rosales lived in the trailer at lot 33, defendant presumed that Rosales had access to the
hallway, kitchen, and dining room. “I wasn’t there all the time,” defendant reiterated, “only when
I was using.”
¶ 44 2. What Defendant Was Doing in the Trailer at Lot 33
When the Police Arrived There to Execute the Search Warrant
-9-
¶ 45 Defendant described the trailer at lot 33 as “a trap house” where women exchanged
sexual services for drugs and where people were always going in and out. According to defendant,
Rosales, who was a “user,” had a key to the trailer and lived there. Defendant, however, denied
having a key to the trailer at lot 33. The utilities to that trailer were not in defendant’s name.
(Instead, according to defense exhibit No. 8, the gas and electricity for lot 33 were in Perez’s name
from early 2018 to March 2020. The record does not appear to reveal anything else about Perez
other than, according to defendant’s testimony, he used to sleep in the south bedroom.)
¶ 46 Defendant admitted being present in the trailer when the police arrived with their
search warrant. Rosales had just left for work. Other people were in the trailer with defendant:
Maycoll Paredes (to whom defendant was “like a father figure”) and “[s]ome of [Paredes’s]
friends.” All of these juveniles “smoke[d] pot.” No one else was in the trailer. According to
defendant’s testimony, all of them, including defendant, were awaiting the arrival of Christian
“Zorillo” Pedro.
¶ 47 Defense counsel asked defendant:
“Q. And that’s based on—did he send you a mail, did he text you, or what?
A. Yes, he text me and said if I wanted some drugs or—I am an addict. So
I was, I guess, going to score something.
Q. And how long have you been an addict?
***
A. I started drinking when I was 12, 13, so most of my life. I’ve overdosed
a couple times. In Texas once and recently here I had a heroin overdose. I was in
Carle Hospital.”
¶ 48 3. Defendant’s Explanations for Some Items of Forensic Evidence
- 10 -
¶ 49 a. The Digital Scale
¶ 50 Defendant testified that in December 2018 he bought some drugs from Pedro, who
along with his girlfriend “stayed at” lot 33. Usually it was Pedro’s girlfriend, nicknamed Flaca,
who “weighed the stuff out for whoever came and bought, which included [defendant].” Usually,
the drugs that defendant purchased from Pedro were weighed in the kitchen at lot 33. Flaca would
bring out a large, old scale and set it on the kitchen table. Then she would weigh the drugs before
handing them over to defendant.
¶ 51 Defense counsel asked:
“Q. And what—initially when he or she put the drug on the scale, did it
work or didn’t work?
A. It was an older scale so you had to play with it a little bit.
Q. Okay.
A. Get it leveled or whatever to weigh correctly.
Q. Okay. And did you have occasion to touch that scale?
A. Yes, to make sure I was getting what I was paying for.”
¶ 52 b. The Taurus Pistol
¶ 53 The Taurus 9-millimeter pistol, defendant testified, was Pedro’s gun, and Pedro had
offered to sell it to him. During that brief negotiation, defendant handled the gun—inspected it—
but he decided that Pedro wanted too much money for it. Anyway, since defendant would be
“flying” out, he could not have a gun on his person. So, he handed the Taurus pistol back to Pedro,
declining to buy it—but evidently leaving his fingerprint on the pistol.
¶ 54 c. The Toiletry Bag
- 11 -
¶ 55 Defendant slept on the couch in the living room at lot 33. He had blankets and
pillows on the couch. Also, his “wallet was there” and his “coveralls or bibs and coat.” Defendant
explained, “I usually when I’m thawing out the lines I have to get underneath the mobile homes
and put a heater on them to thaw them out.” He had brought this cold-weather clothing from Texas
in his backpack.
¶ 56 Also, in his backpack, he had brought a manila envelope containing documents that,
according to him, he needed for his court case in McLean County:
“My backpack—I had come to court so I had a manilla envelope where I
had my birth certificate, all my legal work—birth certificate and my marriage
license I believe was in there and an application for a—the passport and the legal
documents I was—that I needed for the McLean County Court that I had just gone.”
Because lot 33 was, as defendant put it, a “trap house” with “people in and out,” he wanted to
safeguard his documents. So, he took the manila envelope of documents out of his backpack and
hid the envelope in a dresser drawer in the south bedroom, covering the envelope with items in the
drawer. He must have touched the toiletry bag when moving items aside in the drawer to make
room for the envelope and to cover it up. He denied “touch[ing] anything else on that bag other
than pushing it aside.”
¶ 57 H. The Circuit Court’s Decision in the Guilt Phase of the Bench Trial
¶ 58 After the close of evidence, the circuit court found the police officers and the two
laboratory experts for the State to be credible. The court found Rosales to be credible only with
respect to “some of the most fundamental issues of *** he was living in the north bedroom[ ] and
the defendant had been staying there for some amount of time.” Otherwise, Rosales’s professions
of ignorance—or of his supposedly paying little attention to his surroundings—seemed
- 12 -
implausible to the court. As for defendant, the court “ha[d] a hard time believing most of what [he]
says.”
¶ 59 The circuit court, however, credited an admission that defendant made when the
police arrested him. The court recounted:
“On the body cam, the defendant essentially says that his bedroom where
he was staying was the south bedroom, which is the front one. Said he was living
there with someone off and on. He lived, quote, in the front. The defense argues
that could mean the living room, but, ironically, there are guns in the living room.
But the State’s inference is living in the front meant the front bedroom, which is
the south bedroom, where, in fact, he had personal papers.”
¶ 60 The circuit court found that, except for the north bedroom, which was Rosales’s
bedroom, defendant had been in control of the trailer at lot 33. The middle bedroom, the court
found, was a storage area and, as such, a common area. The hallway closet, the kitchen, and the
living room likewise were common areas. Common areas typically were controlled in common by
the occupants of the premises. Therefore, the court found defendant to have been in control of the
common areas of the trailer at lot 33: the middle bedroom, the hallway closet, the kitchen, and the
living room. Defendant’s personal papers—the kind of papers that normally would have been kept
at home—were found in the south bedroom, tending to confirm that defendant had control of that
bedroom as well. Inferring his constructive possession of contraband from his apparent control of
the areas where the contraband was found, the court found defendant guilty of all counts except
count VIII, which charged him with possessing the firearm seized from Rosales’s bedroom (the
north bedroom).
- 13 -
¶ 61 Because of the one-act, one-crime rule, however, the court did not enter judgment
on count II, concluding that count II should merge into count I.
¶ 62 I. The Posttrial Hearing
¶ 63 The defense filed a motion for a new trial. The motion argued:
“[T]he State did not show that [defendant] constructively possessed all the firearms
and controlled substances in trailer 33 because [defendant] did not live in trailer 33
and the trailer was frequently used by several other people who came and went
when [defendant] lived out of state. As a result, there was zero evidence that
[defendant] was aware of most of the items found in the trailer and, even if it can
be inferred that he knew about some of them, there was no evidence connecting
[him] to the items hidden or stored in the closets and crannies of trailer 33.”
(Why the remedy for the asserted failure by the State to carry its burden of proof would be a new
trial is unclear.) The motion selectively quoted from People v. Tates, 2016 IL App (1st) 140619,
¶ 20: “[P]roof of mere presence, even combined with the presence of narcotics, will not support a
finding of constructive possession unless there is other circumstantial evidence of defendant’s
control over the contraband.” (In full, the sentence from Tates reads, “Where there is no evidence
that the defendant controls the premises, proof of mere presence, even combined with the presence
of narcotics, will not support a finding of constructive possession unless there is other
circumstantial evidence of defendant’s control over the contraband.” (Emphasis added.) Id.)
¶ 64 The circuit court denied the posttrial motion, adhering to its finding of constructive
possession. The court explained:
“I had to look at the totality of the evidence and I had to weigh the credibility of the
witnesses. And, frankly, [defendant] testified, and I judged his credibility the same
- 14 -
way I did everybody else’s, and I didn’t find him believable. And for all those
reasons, despite the few fingerprints and DNA, I did find that he constructively
possessed the items for which he was convicted.”
¶ 65 The circuit court confirmed, however, that, pursuant to the one-act, one-crime rule,
count II had merged into count I.
¶ 66 The circuit court then raised another concern about the one-act, one-crime rule.
Count IX charged defendant with aggravated possession of a stolen firearm in that he possessed
two to five firearms, knowing them to be stolen. At the same time, other counts charged him with
unlawfully possessing single weapons. In the bench trial, Schweska testified that the Kriss Vector
9-millimeter rifle, the Ruger rifle, and the Smith & Wesson rifle had been reported stolen—
evidence relevant to count IX. But those same weapons also were, individually, the subjects of
counts V, VI, and VII, each of which charged defendant with unlawful possession of a weapon by
a felon (see 720 ILCS 5/24-1.1(a) (West 2018)). The court was concerned about the part of the
one-act, one-crime rule providing that “[m]ultiple convictions are improper if they are based on
precisely the same physical act” (People v. Miller, 238 Ill. 2d 161, 165 (2010)). Defense counsel
agreed with the court that, under the one-act, one-crime rule, the convictions on counts V, VI, and
VII should be vacated. The prosecutor likewise agreed. Accordingly, the court vacated the
convictions on those counts.
¶ 67 J. The Sentencing Hearing
¶ 68 The State called Schweska in the sentencing hearing. He testified he drafted the
search warrant after a confidential source reported he had seen more than half a pound of cannabis
and more than two ounces of cocaine in the trailer at lot 33. According to the confidential source,
defendant “was actively selling these narcotics to various individuals.” The confidential source
- 15 -
further reported that defendant had a rifle on the kitchen table in the trailer—a rifle, in fact, that
the confidential source had been selling to him.
¶ 69 Schweska further testified he had reviewed a Rantoul police report dated September
23, 2018, that concerned the arrest of a 14-year-old male for theft. According to the police report
(as Schweska recounted it in his testimony), this juvenile, when apprehended, had on his person a
9-millimeter Taurus pistol. The prosecutor asked Schweska:
“Q. Was the juvenile’s father interviewed in relation to that firearm?
A. Yes, he was.
Q. And was law enforcement given information about how the juvenile
obtained the firearm?
A. Yes.
Q. What information was law enforcement given about how the juvenile
came to be in possession of the firearm?
A. Law enforcement was told that the juvenile who was arrested with the
firearm had been shown the firearm at the Rantoul High School at approximately
three days before his arrest with the firearm. And this was shown to him by an
individual identified as Michael (phonetic) Mendoza, who was later identified as
the Defendant’s son.”
¶ 70 Sometime after being shown the pistol, the juvenile decided to buy it. The
prosecutor asked Schweska what were the circumstances of the purchase. He answered:
“A. According to the father, the—his son met Michael Mendoza and
[defendant] near the Dairy Queen in Rantoul, Illinois, and purchased the Taurus for
approximately $150.
- 16 -
Q. Was law enforcement provided details about [defendant] from the
juvenile or his father?
A. Yes.
Q. What were those specific details that you were given or that law
enforcement was given?
A. That the Defendant Mendoza resided at the Bell (phonetic)—Bell Trailer
Park at 1938 County Road 10 3000 North, Trailer Number 33 in Rantoul. And that,
also, he operated a blue-colored Audi sedan.
Q. Throughout the course of your investigation, were you able to confirm
that the Defendant does, in fact, drive a blue Audi sedan?
A. Yes.”
¶ 71 On cross-examination, defense counsel asked Schweska:
“Q. Officer, do you—do you verify about this Michael Mendoza selling a
weapon? In fact, did you investigate that my client does not have a son by the name
of Michael Mendoza?
A. No, I did not follow up on the Rantoul police report specifically.”
¶ 72 Before announcing the sentence, the circuit court commented on the reported sale
of the pistol to the juvenile:
“There was a report from Rantoul police, and it is hearsay, but hearsay is
allowed at a sentencing hearing, the Defendant was involved in some way, shape,
or form of selling a gun to a juvenile and a juvenile’s father. Those persons
indicated that the Defendant did live at 33.
***
- 17 -
It’s clear to me that [defendant] is a drug dealer. And, now, I’m finding he’s
an arms dealer as well. And selling to the people he shouldn’t be selling it to.
Deterrence has to be heard loud and clearly. [Defendant] cannot commit these
crimes himself in the future.”
See 720 ILCS 5/24-3(A)(a) (West 2018) (providing that a person commits unlawful sale or
delivery of firearms when the person knowingly “[s]ells or gives any firearm of a size which may
be concealed upon the person to any person under 18 years of age”).
¶ 73 The circuit court sentenced defendant to concurrent terms of imprisonment: 35
years for count I, 30 years for count III, 20 years for count IV, 10 years for counts IX and X, and
20 years for count XI. Also, the court imposed street value fines totaling $119,300.
¶ 74 At the conclusion of the sentencing hearing, defense counsel made an oral motion
to reduce the sentence. Defense counsel inquired:
“I don’t know if you accept that or do we have to file something? This way
we—we can file the notice of appeal today if motion to reconsider the sentence.
THE COURT: Well, is there any further argument you would have on your
motion?
[DEFENSE COUNSEL]: Basically the same, Judge. That we think that’s,
basically, almost a life—it is a life sentence for my client. And it should be—it’s
too excessive for the charges.
THE COURT: Well, I would note the oral motion for—to reduce sentence.
That motion is denied.”
¶ 75 II. ANALYSIS
¶ 76 A. The Sufficiency of the Evidence to Prove Counts I and X
- 18 -
¶ 77 Count I charged defendant with unlawfully possessing, with the intent to deliver,
methamphetamine in some amount more than 400 grams and less than 900 grams. See 720 ILCS
646/55(a)(1) (West 2018). Count X charged him, a convicted felon, with unlawfully possessing a
firearm, specifically, a “Sten MK II 1943 ‘grease’ gun.” See 720 ILCS 5/24-1.1(a) (West 2018).
In both of those offenses, the mens rea is knowledge. See id.; 720 ILCS 646/55(a)(1) (West 2018).
To prove defendant guilty of count I, the State had to prove, beyond a reasonable doubt, his
knowledge of the methamphetamine hidden in the floor vent of the middle bedroom. Likewise, to
prove him guilty of count X, the State had to prove his knowledge of the Sten rifle in the hallway
closet. According to defendant, the State failed to prove, beyond a reasonable doubt, his knowledge
of the methamphetamine and the Sten rifle.
¶ 78 In his challenge to the sufficiency of the mens rea evidence, defendant likens
himself to the defendant in People v. Terrell, 2017 IL App (1st) 142726. Terrell, however, is
distinguishable because in that case the State failed to present any evidence that the defendant ever
entered the residence in which the police found contraband, let alone that he lived there. See id.
¶ 31. Habitation would have carried a lot of water in the State’s theory of constructive possession.
See id. ¶ 19.
¶ 79 The appellate court in Terrell described the difference between actually possessing
contraband and constructively possessing it. See id. ¶ 18. Actual possession meant “personal
dominion over the contraband.” Id. By contrast, a person had constructive possession of
contraband if, though lacking personal dominion over the contraband, the person had “control of
the area where the contraband was found.” Id. “Generally,” the appellate court observed,
“habitation of the location where the contraband is found is sufficient evidence of control
constituting constructive possession.” Id. ¶ 19.
- 19 -
¶ 80 Defendant told Schweska, in the body cam video, that he, defendant, “stay[ed]” in
the trailer at lot 33 and that his “bedroom” was “[i]n the front.” In his testimony in the bench trial,
defendant denied telling the police he resided in the trailer at lot 33. To “stay” in a trailer, however,
is to take up residence in the trailer—and defendant even identified a bedroom in the trailer as his
own. By his own admission, then, defendant inhabited the trailer at lot 33. In addition to this
admission by defendant, the record includes the statement by his friend, Rosales, that defendant
had been living in the trailer at lot 33 for a year.
¶ 81 It is not our place, as a reviewing court, to retry defendant by deciding anew such
factual questions as habitation. See People v. Collins, 106 Ill. 2d 237, 261 (1985). Instead, viewing
all the evidence in a light most favorable to the prosecution, we should ask whether “any rational
trier of fact” could find, beyond a reasonable doubt, the elements of counts I and X. (Emphasis in
original and internal quotation marks omitted.) Id. Drawing all defensible inferences in the State’s
favor, we should ask whether it would be possible for any reasonable person (considering the
question reasonably) to conclude that defendant lived in the trailer at lot 33.
¶ 82 Defendant was present in the trailer when the search warrant was executed. Rosales
testified that defendant “had moved in about a year before” and had been sleeping on the couch in
the living room. Rosales’s testimony, if believed, was sufficient evidence in and of itself that
defendant inhabited the trailer at lot 33. See People v. Acklin, 2020 IL App (4th) 180588, ¶ 15
(declining to “judge witness credibility” but instead “defer[ring] to the fact finder’s credibility
determinations”). Perhaps even more significantly, defendant himself admitted to Schweska that
he stayed in the trailer and had a bedroom therein.
¶ 83 In short, then, the circuit court could have reasonably found defendant to be an
inhabitant of the trailer at lot 33 (a finding not inconsistent with his also having homes in Texas
- 20 -
and at lot 46). “A defendant’s proved habitation in the premises where an item is found is sufficient
evidence of control of the location to establish [the defendant’s] constructive possession” of the
item. People v. Davis, 2021 IL App (3d) 190040-U, ¶ 13. Defendant’s admission that he stayed at
lot 33 was supported by other facts, such as the presence of his documents in the dresser drawer,
his fingerprint on the digital scale, and his DNA on the Taurus pistol. It also is telling that,
apparently, he did not have to ask anyone’s permission to (1) spend the night by himself in a trailer
containing over $100,000 of contraband and (2) keep a dog at the trailer. All those facts, together
with his admission in the body cam video, amply justified an inference that he was an inhabitant
of the trailer at lot 33.
¶ 84 Therefore, contraband cases in which the appellate court found no evidence of
habitation by the defendant are inapposite. For example, People v. Maldonado, 2015 IL App (1st)
131874, cited by defendant, is distinguishable for the same reason that Terrell is distinguishable:
“the State fail[ed] to present evidence that [the] defendant was ever inside the building” where the
contraband was found, let alone that he lived in the building. Id. ¶ 41. Significantly, the Maldonado
court acknowledged that “[h]abitation of the location where contraband is found can constitute
sufficient evidence of control to establish constructive possession.” Id. ¶ 29. The Maldonado court
further acknowledged that “a defendant’s control over the premises where contraband is located
gives rise to an inference of knowledge of that contraband.” Id. ¶ 39. But the Maldonado
defendant’s habitation—and, hence, his control—of the premises was unproven, making the
doctrine of constructive possession inapplicable. See id. ¶ 42. By contrast, defendant’s
habitation—and, hence, his control—of lot 33 could reasonably be regarded as proven.
¶ 85 Quoting, however, from People v. Macias, 299 Ill. App. 3d 480, 487 (1998),
defendant points out, “A defendant’s control over an area ‘does not necessarily mean that the
- 21 -
defendant has knowledge of the contraband in that area.’ ” (The appellate court made a similar
point in Maldonado, 2015 IL App (1st) 131874, ¶ 41.) Because of the qualifier “ ‘necessarily,’ ”
we agree. The supreme court has held, “[T]he mere presence of illegal drugs on premises which
are under the control of the defendant gives rise to an inference of knowledge and possession
sufficient to sustain a conviction absent other factors that might create reasonable doubt as to the
defendant’s guilt.” (Emphasis added.) People v. Smith, 191 Ill. 2d 408, 413 (2000). If, as Smith
says, “other factors” “might create reasonable doubt,” the defendant’s knowledge of contraband
on the premises is not automatically inferred, in every case, from the defendant’s control of the
premises. Id.¶ 86 In Macias, for example, the defendant possessed the keys to an apartment in which
contraband was hidden, and thus the apartment was under his control. Macias, 299 Ill. App. 3d at
482. Even so, some factors created reasonable doubt that the defendant in Macias knew of the
contraband: the resident of the apartment, who was hospitalized, had given the keys to the
defendant only so that the defendant could go and fetch him some clothing—and the State never
presented any evidence that the defendant, as of yet, had entered the apartment to perform even
that brief errand. See id. at 483.
¶ 87 In the present case, we see no comparable factors that, as a matter of law, would
preclude the normal inference of knowledge. See Smith, 191 Ill. 2d at 413. Granted, the
methamphetamine was hidden in a floor vent, and the Sten rifle was disassembled and bagged in
a closet. Defendant’s personal documents in the dresser drawer might suggest, however, that he
had access to storage places in the trailer. Arguably, his fingerprint on the digital scale in a closet
suggests he was a participant in the drug trafficking carried on at lot 33 and that, being a participant,
he knew where on the premises an especially lucrative drug, methamphetamine, was hidden.
- 22 -
¶ 88 As the circuit court correctly noted, it does not matter if defendant had associates—
including, perhaps, Ramos, Pedro, and Perez—who had equal access to the drugs and the guns. A
defendant’s constructive possession of contraband “is not diminished by evidence of others[’]
access to the contraband.” People v. Davis, 2021 IL App (3d) 190040-U, ¶ 13; see also People v.
Hill, 226 Ill. App. 3d 670, 672-73 (1992); People v. Williams, 98 Ill. App. 3d 844, 849 (1981).
¶ 89 Defendant argues, however, that “the two elements of constructive possession,”
control of the premises and knowledge of the presence of contraband therein, “are distinct and may
not be collapsed.” He cites People v. Hampton, 358 Ill. App. 3d 1029, 1031 (2005), for the
following proposition: “asking [the] fact-finder to infer that [the] defendant knew of [a] weapon’s
presence because he controlled the location where it was found improperly collapsed the elements
of constructive possession.” To be clear, though, “improperly collaps[ing] the elements of
constructive possession” is language that defendant uses, not language the appellate court used in
Hampton. The inference of knowledge that defendant characterizes, pejoratively, as an “improper
collapse” is the very inference the supreme court repeatedly has approved.
¶ 90 In fact, the Hampton court specifically acknowledged the holdings of the supreme
court in Smith, 191 Ill. 2d at 413, and People v. Nettles, 23 Ill. 2d 306, 308 (1961): that, if
contraband were found on premises under the defendant’s control, an inference could be drawn
that the defendant had knowledge and control of the contraband. See Hampton, 358 Ill. App. 3d at
1031-32. The term “premises,” however, usually meant buildings or land rather than automobiles.
The Hampton court was unconvinced that the logic of Smith and Nettles applied to a case in which
the defendant drove, for the first time, a car belonging to someone else that had a pistol concealed
in a sock in the glove box. See id. at 1030. Given “[t]he factual particulars” of the constructive-
possession cases and “their underlying rationale as explained in Nettles,” the Hampton court held:
- 23 -
“[I]n order for the inference to arise of [the] defendant’s knowledge of the handgun
within the vehicle’s glove compartment, the State had to demonstrate that [the]
defendant had regular, ongoing control over the vehicle that he was driving, similar
to the regular and ongoing control that one has over his own living quarters.” Id. at
1032.
¶ 91 Because, in Hampton, the State “offered no proof that [the] defendant had any
regular, ongoing control over the vehicle in which the weapon was found”—or, for that matter,
that he “had ever driven the vehicle prior to the time of the traffic stop” (id.)—his knowledge of
the weapon could not be reasonably inferred merely from his control of the vehicle (id. at 1032-33).
Therefore, in the jury trial, the State was required to present other circumstantial evidence that the
defendant knew of the pistol in the glove box. Id. at 1033.
¶ 92 The Hampton court consulted the factors in People v. Bailey, 333 Ill. App. 3d 888,
891-92 (2002), “to determine whether the State offered circumstantial evidence from which [the]
defendant’s knowledge could be inferred.” Those factors were as follows:
“(1) the visibility of the weapon from the defendant’s location in the vehicle; (2) the
amount of time in which the defendant had an opportunity to observe the weapon;
(3) gestures or movements by the defendant that would suggest an effort to retrieve
or conceal the weapon; and (4) the size of the weapon.” Hampton, 358 Ill. App. 3d
at 1033.
¶ 93 According to defendant, we should apply those four factors to his own case and
find his knowledge of the methamphetamine and the Sten rifle to be unproven as a matter of law,
just as the appellate court in Hampton found the defendant’s knowledge of the pistol in the glove
box to be unproven as a matter of law (see id.). In Hampton, though, the appellate court consulted
- 24 -
the four factors from Bailey only because, absent evidence of “regular, ongoing control over the
vehicle” by the defendant, Smith and Nettles were inapplicable. In other words, the trier of fact
could not reasonably infer, merely from the defendant’s one-time operation of the vehicle, that he
knew of the pistol in the glove box. See id. at 1032-33. In the present case, by contrast, the State
presented evidence that defendant had been living at lot 33 for a considerable time—for a year,
according to Rosales—and that, except for Rosales’s bedroom, he evidently had the run of the
place. This habitation amounted to regular, ongoing control of lot 33 (see id. at 1032), making the
Bailey factors inapplicable. As we have discussed, the evidence could be reasonably interpreted as
showing that defendant was an established inhabitant who had settled into the trailer at lot 33.
¶ 94 To be sure, defendant gave an explanation for the documents in the dresser just as
he gave explanations for his fingerprint on the digital scale and his DNA on the toiletry bag and
the Taurus pistol. But the circuit court was not required to accept any “possible explanations
consistent with innocence and raise them to a level of reasonable doubt.” People v. Campbell, 146
Ill. 2d 363, 380 (1992). In other words, the court, as the trier of fact, had the right to disbelieve
defendant. “When reviewing the sufficiency of the evidence in a criminal case, it is not the
reviewing court’s function to retry the defendant, nor should it substitute its own judgment for that
of the trier of fact regarding witness credibility or the weight of the evidence.” People v. Anderson,
2022 IL App (5th) 190404-U, ¶ 26. Contrary to the explanation that defendant gave in his
testimony, his birth certificate, his passport, and an old speeding ticket he received in Texas had
no apparent relevance to the hearing in McLean County he had flown in to attend—a hearing about
driving on a suspended license. The court could reasonably disbelieve he had been carrying all
those documents around in his backpack. The court could believe, instead, that the dresser was a
more longstanding storage place for defendant’s important personal documents. To quote again
- 25 -
from one of the cases that defendant cites, “[i]t is well established that a defendant’s control over
the premises where contraband is located gives rise to an inference of knowledge of that
contraband.” Maldonado, 2015 IL App (1st) 131874, ¶ 39. The arguable implausibility of
defendant’s self-portrayal as a transient guest could suggest untruthfulness on his part, which in
turn could suggest a consciousness of guilt. See People v. Shaw, 278 Ill. App. 3d 939, 951 (1996).
¶ 95 In sum, when all the evidence is viewed in a light most favorable to the prosecution,
a rational trier of fact could find, beyond a reasonable doubt, that defendant knew of the
methamphetamine in the floor vent and that he knew of the Sten rifle in the hallway closet. See
Collins, 106 Ill. 2d at 261. An inference of defendant’s knowledge and control of those items is,
under the evidence, reasonably defensible. The record contains enough evidence to support a
finding of constructive possession. Therefore, we affirm the convictions on counts I and X.
¶ 96 B. The Sufficiency of the Evidence to Prove Count XI
¶ 97 Count XI charged defendant with aggravated possession of a stolen firearm in that
he allegedly “possessed at least [two] but not more than [five] firearms at the same time, not being
entitled to the possession of said firearms and knowing the firearms to have been stolen.” See 720
ILCS 5/24-3.9(a)(1) (West 2018). An element of that offense is that defendant “[knew] the firearms
to have been stolen.” Id. That element, he argues, was as a matter of law unproven.
¶ 98 The State disagrees, citing an argument the prosecutor made to the circuit court. In
his argument, the prosecutor acknowledged the State’s burden of proving defendant’s knowledge
that the firearms were stolen. For the following reasons, the prosecutor maintained that the State
had carried that burden:
“[A]s the defendant disclaimed any ownership of the firearms, he was not able to
provide an explanation as to where he received these firearms from. The defendant
- 26 -
clearly did not legally purchase the firearms as he does not have a [firearm owner’s
identification card], and is not able to possess firearms, so the only assumption that
can be made is that the defendant purchased or otherwise obtained the firearms on
the ‘black market’, and when one purchases items in that manner, it can be
reasonably assumed that the items are in fact stolen.”
¶ 99 Under Illinois law, a trier of fact may “infer the defendant’s culpable state of mind
from his exclusive and unexplained possession of recently stolen property.” People v. Nivens, 239
Ill. App. 3d 1, 6 (1992). As the prosecutor observed, defendant’s testimony included no
explanation of how the stolen firearms had come to be in the trailer, which the circuit court found
defendant to inhabit and control (except for Rosales’s bedroom). Although the record does not
appear to reveal when the firearms were stolen, “time is not the only element to be considered, but
attention must also be given to the circumstances and character of the goods.” (Internal quotation
marks omitted.) People v. Funches, 212 Ill. 2d 334, 344 (2004). One of those circumstances was
defendant’s felony record, which prevented him from obtaining firearms through legal means. See
430 ILCS 65/2(a)(1), 4(a)(2)(ii), 8(c) (West 2018); 720 ILCS 5/24-1.1(a), 24-3(A)(k)(i) (West
2018). Another circumstance was the number of stolen firearms, three of them. The more items of
stolen property that are found in a person’s possession, the less plausible is the person’s supposed
unawareness that they were stolen. Finally, a reasonable trier of fact could take into account the
character of the goods: they are firearms, which are widely known to be prime targets of burglaries.
¶ 100 Granted, guns can be purchased through straw men, and probably—especially on
the black market—not everyone asks for a firearm owner’s identification card before selling a gun
(see id. § 24-3(A)(i)). Even so, a defendant can have “knowledge” of a fact without being certain
of the fact. “Knowledge of a material fact includes awareness of the substantial probability that
- 27 -
the fact exists.” Id. § 4-5(a). Realistically, anyone who finds himself in possession of a “trap
house,” as defendant called it, well-stocked with illegal drugs and bristling with guns of obscure
provenance would be aware of a substantial probability that the guns were stolen—or so a
reasonable trier of fact could infer. Because “an inference of defendant’s knowledge can be drawn
from the surrounding facts and circumstances,” we decline to disturb the finding of guilt on count
XI. People v. Ferguson, 204 Ill. App. 3d 146, 151 (1990).
¶ 101 C. Consideration of Hearsay in the Sentencing Hearing
¶ 102 When Schweska testified to what the police report said that the juvenile’s father
had said, his testimony was, defendant argues, triple hearsay. Defendant acknowledges that, in
sentencing hearings, hearsay is “not per se inadmissible *** as unreliable or as denying a
defendant’s right to confront accusers.” People v. Foster, 119 Ill. 2d 69, 98 (1987). Nevertheless,
defendant cites People v. Tigner, 194 Ill. App. 3d 600, 607 (1990), in which the appellate court
remarked that “[d]ouble hearsay” in sentencing hearings “should be corroborated, at least in part,
by other evidence.”
¶ 103 In the sentencing hearing, though, defendant never objected to Schweska’s
testimony on the ground that it was uncorroborated multiple hearsay. “It is well settled that, to
preserve a claim of sentencing error, both a contemporaneous objection and a written
postsentencing motion raising the issue are required.” People v. Hillier, 237 Ill. 2d 539, 544 (2010).
Even if, absent objection, a postsentencing motion could be oral instead of written (see People v.
Davis, 356 Ill. App. 3d 725, 731 (2005)), defendant’s oral motion to reduce his sentence did not
“rais[e] the issue” of multiple hearsay or reliability (Hillier, 237 Ill. 2d at 544).
¶ 104 Recognizing the possibility of a procedural forfeiture, defendant invokes the
doctrine of plain error. He claims that the evidence in the sentencing hearing was closely balanced
- 28 -
(see id. at 545)—meaning that the aggravating and mitigating factors were closely balanced (see
People v. Hall, 195 Ill. 2d 1, 18 (2000))—and that the doctrine of plain error, therefore, should
avert any forfeiture.
¶ 105 Before deciding whether it is true that the mitigating factors offset, or nearly offset,
the aggravating factors, we should decide a different question—a threshold question. To obtain
relief under the plain-error doctrine, a defendant “must first show that a clear or obvious error
occurred.” Id. at 545. The appellate court has explained:
“[U]nder the plain error doctrine, the existence of an error is not enough to avert a
forfeiture, even if the error is genuinely an error. Not even reversible error is
enough. *** The plain error doctrine is not a backdrop to catch merely arguable
issues that could have been raised in the trial court. The error had to be manifest or
patent.” People v. Hammons, 2018 IL App (4th) 160385, ¶ 17.
¶ 106 If indeed the circuit court erred by considering the triple hearsay of Schweska’s
testimony, we are unconvinced that the error was manifest or patent. Arguably, the hearsay was
partly corroborated. Tigner requires not total corroboration but corroboration “at least in part.”
Tigner, 194 Ill. App. 3d at 607. To corroborate a proposition is to support it by evidence. Although
the record does not totally corroborate the police report, the record could be regarded as partly
doing so. Defendant or his “son” (or stepson) had a blue Audi automobile, and defendant occupied
the trailer at lot 33—just as the father of the juvenile stated to the police. As the search revealed,
the trailer was well-stocked with guns. We cannot say it would be unreasonable to infer that the
guns, like the drugs, were inventory to be sold. Given those points of partial corroboration by other
evidence, the asserted error in the consideration of Schweska’s hearsay testimony is less than clear
or obvious. See Hillier, 237 Ill. 2d at 544; Tigner, 194 Ill. App. 3d at 607.
- 29 -
¶ 107 After all, the supreme court has said, “[T]hat the testimony complained of [is]
hearsay [is] not pertinent to its admission” in a sentencing hearing. People v. Brisbon, 106 Ill. 2d
342, 365 (1985). The pertinent question is not whether the testimony is hearsay, double hearsay,
or triple hearsay. The pertinent question is whether the testimony—hearsay or not—is relevant and
reliable. See id. at 365.
¶ 108 On appeal, defendant challenges both relevance and reliability. As for relevance,
he claims the record lacks any evidence that he had anything to do with the sale of the pistol to the
juvenile. We are unconvinced. The father reported that “his son met Michael Mendoza and
[defendant] near the Dairy Queen in Rantoul, Illinois, and purchased the Taurus for approximately
$150.” The implication of the father’s statement is that his son bought the pistol not only from
Michael but also from defendant. In other words, the transaction was with Michael and defendant.
The juvenile met with them both specifically for the purpose of buying the pistol. Arguably, the
armory in the trailer that was under defendant’s control supports the inference that defendant was
one of the sellers of the pistol.
¶ 109 The remaining part of the threshold question, then, is whether the police report and
Schweska’s summary of it on the witness stand clearly or obviously failed the reliability test. See
Hillier, 237 Ill. 2d at 545. The answer is no. See Foster, 119 Ill. 2d at 99 (holding that, although it
was uncorroborated, a police officer’s testimony was “not inherently unreliable,” in part because
“the officer compiled the information during an official investigation”). The information in the
police report, as recounted by Schweska, dovetails with other evidence. Granted, defendant had,
as he points out, a stepson named Michael Ramos instead of a son named Michael Mendoza. But
even this minor discrepancy seems a double-edged sword that is somewhat sharper on defendant’s
side. There was, in fact, a Michael associated with defendant who could have showed the juvenile
- 30 -
a pistol at the school, consistently with the statement the juvenile’s father made to the Rantoul
police.
¶ 110 So, we are unconvinced that the circuit court clearly abused its discretion by relying
on Schweska’s hearsay testimony, together with the other evidence, to conclude that defendant
was not only a drug dealer but also an arms dealer. Abuse of discretion, after all, is the most
deferential standard of review recognized by law (In re D.T., 212 Ill. 2d 347, 356 (2004))—and on
top of that great deference is the clearness requirement of the plain error doctrine. Absent an error
that was clear or obvious, the procedural forfeiture of defendant’s sentencing issue will be honored.
See Hillier, 237 Ill. 2d at 545.
¶ 111 No plain error means no ineffective assistance of counsel. If the error in considering
Schweska’s hearsay testimony was less than clearcut, “it was ‘within the wide range of reasonable
professional assistance’ to refrain from objecting to the testimony.” People v. Banks, 2021 IL App
(4th) 180838-U, ¶ 52 (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)).
¶ 112 The claim of ineffective assistance fails for an additional reason. Decisions as to
which objections to raise are matters of trial strategy, and unless defense counsel failed to subject
the State’s case to “ ‘any meaningful adversarial testing,’ ” matters of strategy cannot serve as the
basis of a claim of ineffective assistance. People v. Tornez-Sanchez, 2022 IL App (2d) 210149-U,
¶ 24 (quoting People v. Patterson, 217 Ill. 2d 407, 441 (2005)). In the sentencing hearing, defense
counsel subjected Schweska’s hearsay testimony to some meaningful adversarial testing. He asked
Schweska on cross-examination:
“Q. Officer, do you—do you verify about this Michael Mendoza selling a
weapon? In fact, did you investigate that my client does not have a son by the name
of Michael Mendoza?
- 31 -
A. No, I did not follow up on the Rantoul police report specifically.”
Thus, through cross-examination, defense counsel impliedly made the same argument that would
have been made by a multiple-hearsay objection: Schweska’s hearsay testimony was unreliable,
and deserved little weight, because Schweska had made no effort to verify the hearsay—Schweska
had even failed to verify that defendant had a son named Michael Mendoza. See Foster, 119 Ill.
2d at 98 (holding that, in a sentencing hearing, a hearsay objection goes to the weight, rather than
the admissibility, of the testimony). Because defense counsel pushed back against Schweska’s
testimony in a meaningful way, the lack of a hearsay objection gives rise to no valid claim of
ineffective assistance. See Tornez-Sanchez, 2022 IL App (2d) 210149-U, ¶ 24.
¶ 113 III. CONCLUSION
¶ 114 For the foregoing reasons, we affirm the circuit court’s judgment.
¶ 115 Affirmed.
- 32 -