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.

2 ¶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.

3 ¶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.

4 ¶ 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

5 ¶ 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,

(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,

(2010) (citing People v.

Piatkowski,

(2007)); People v. Williams,

(1990). The

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

Hudson,

(2008).

¶ 18 In People v. Brocksmith,

(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

6 decision to plead guilty.

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.”

¶ 19 Five years later, in People v. Garcia,

(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.

. 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.

.

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.

The jury

subsequently found the defendant guilty of possession of a controlled substance.

On appeal,

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

lesser-included offenses.

. Finding the defendant’s reliance on Brocksmith misplaced,

the supreme court rejected this argument.

.

¶ 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.

. Rather, Brocksmith’s holding was limited to the specific

scenario where the defense tenders the lesser-included offense instruction.

. 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

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

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

.

¶ 21 Finally, in People v. Medina,

(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.”

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.”

¶ 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

8 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.

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.”

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,

.

¶ 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,

(1990) (defense counsel’s concession of the

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

9 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,

(2003). In conducting our review, we presume that

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

v. Marlow,

(1999). The trial court’s sentencing determination is

10 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,

(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,

(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.

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,

. It is not our duty to reweigh the factors

involved in the court’s sentencing decision. People v. Lake,

. As

11 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.

12