Opinion
5-20-0080
12-29-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLIFTON BARDO, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Randolph County. No. 13-CF-109 Honorable Richard A. Brown, Judge, presiding.
JUSTICE WHARTON delivered the judgment of the court. Presiding Justice Boie and Justice Welch concurred in the judgment.
ORDER
WHARTON, JUSTICE
¶ 1 Held: The court's decision to deny the defendant's pro se claims of ineffective a assistance of counsel without appointing new counsel was not manifestly erroneous where both claims were legally insufficient. The court's inquiry was adequate where the defendant was given ample opportunity to present his claims. The court did not abuse its discretion in sentencing the defendant where the record indicates that the court did not consider a factor inherent in the offense as a factor in aggravation and the court's midrange sentences indicate that the court considered the mitigating evidence before it.
¶ 2 The defendant, Clifton Bardo, appeals the trial court's denial of his pro se claims of ineffective assistance of counsel after holding a preliminary Krankel inquiry. See People v. Krankel, 102 Ill.2d 181 (1984). He also appeals his sentence. The defendant argues that (1) the court erred in refusing to appoint counsel to represent him on his claims of ineffective assistance of counsel, (2) the court conducted an inadequate Krankel inquiry, (3) the court considered a factor inherent in the offense as a factor in aggravation in sentencing him, and (4) the court failed to consider mitigating factors, resulting in an excessive sentence. We affirm.
¶ 3 I. BACKGROUND
¶ 4 This is the third time this case has been before this court. The charges at issue stemmed from two controlled drug buys that took place in September and October of 2012 in Sparta, Illinois. Jodie Tanner, working as a confidential informant for the Sparta Police Department, purchased cocaine from the defendant at two locations in Sparta on two different dates.
¶ 5 In June 2013, the defendant was charged with one count of unlawful delivery of 1 to 15 grams of a controlled substance within 1000 feet of a place of worship (720 ILCS 570/407(b) (1) (West 2010)). The State subsequently filed an amended information, adding one count of unlawful delivery of less than one gram of a controlled substance within 1000 feet of a place of worship (id. § 407(b)(2)). The amended information alleged that both offenses took place within 1000 feet of a building known as the New Hope Baptist Church.
¶ 6 The matter proceeded to trial in October 2013. At the start of the trial, the defendant's attorney, Jordan Gremmels, moved to withdraw as counsel. Gremmels explained that difficulties in communicating with the defendant had made it difficult for him to adequately prepare for trial and that the defendant had expressed a desire to retain a more experienced attorney to represent him. The court asked Gremmels when the defendant had expressed a desire to be represented by a different attorney. Gremmels replied, "We had some conversations last week where he said he was searching for other attorneys." Gremmels further explained that he did not immediately withdraw as counsel because he did not believe the defendant intended to represent himself. Rather, he told the defendant that he would withdraw once the defendant retained a different attorney. Gremmels told the court that the defendant informed him that morning that the defendant had retained substitute counsel. The court denied the motion to withdraw, explaining that the right to be represented by the counsel of a defendant's choice does not allow a defendant to wait until the day of trial to change attorneys.
¶ 7 The evidence presented at the defendant's trial is set forth in our decisions on the defendant's two previous appeals and we need not repeat that evidence here. After a two-day trial, a jury returned verdicts of guilty on both charges. The court subsequently sentenced the defendant to concurrent sentences of 24 years on each charge.
¶ 8 The defendant appealed his convictions. He raised several arguments, four of which are relevant here. First, the defendant argued that he was deprived of the right to the counsel of his choice and that the court abused its discretion in denying his attorney's motion to withdraw. This court rejected that argument, emphasizing that defense counsel waited until the day trial was set to begin to move to withdraw and that substitute counsel requested a two-month continuance to prepare for trial. See People v. Bardo, 2016 IL App (5th) 140031-U, ¶¶ 19-26.
¶ 9 Second, the defendant argued that there was insufficient evidence to prove that the buys took place within 1000 feet of a place of worship because the State presented no evidence to show that the New Hope Baptist Church was used as a church when the buys took place. Id. ¶ 35. We agreed. We therefore reduced both charges to unlawful delivery and remanded the case for resentencing. Id. ¶ 36.
¶ 10 Third, the defendant argued that the State did not provide sufficient evidence to establish a chain of custody for the cocaine at issue in count II of the amended information. He contended that, as such, there was insufficient evidence to convict him of that charge. Id. ¶ 39. We rejected the defendant's attempt to frame the issue as a sufficiency-of-the-evidence argument. We explained that an error in establishing a proper chain of custody is an evidentiary matter which, unlike a sufficiency-of-the-evidence argument, is subject to forfeiture through failure to object at trial. Id. ¶¶ 40-42. We found that the defendant forfeited his claim by failing to object at trial. We declined to consider his argument under the plain error doctrine, finding that the defendant did not meet his burden of persuading us that plain error review was appropriate because he did not argue that the plain error doctrine was applicable. Id. ¶ 44.
¶ 11 Fourth, the defendant argued that his trial attorney provided ineffective assistance because he did not adequately cross-examine State witnesses about discrepancies in their testimony, including discrepancies in testimony concerning the chain of custody over the cocaine at issue in count I. Id. ¶¶ 68, 71. We recognized that there was a discrepancy in the testimony concerning who transported evidence from the police station to the crime lab. Id. ¶ 72. Specifically, Officer Ralph Jones testified at a preliminary hearing that he transported the evidence, but he testified at trial that Sparta Police Chief Thomas Ashley did so. Id. ¶ 71. However, we rejected the defendant's claim, emphasizing that absent any indication of tampering or substitution of evidence, such discrepancies go to the weight of the evidence, not its admissibility. Id. ¶ 72. We concluded that counsel's decision not to cross-examine Jones about his earlier inconsistent testimony was not objectively unreasonable. Id.
¶ 12 After remand, the court held a sentencing hearing on August 31, 2016. The defendant was represented by Christian Baril, the same attorney who represented him on his first appeal. As evidence in aggravation, the State presented a certified copy of the defendant's felony conviction in a previous case and a financial impact statement from the Illinois Department of Corrections. As evidence in mitigation, the defendant provided letters from 13 individuals who had known him, including one who wrote that the defendant would have a job with his company upon release from prison. The defendant also presented his own testimony. He testified that he had six children and that he paid child support for the three children who were still minors. The defendant further testified that he had participated in numerous programs offered to him in the Department of Corrections, including a reentry program, self-esteem classes, an anger management program, and a drug counseling program. On cross-examination, the defendant acknowledged that he had nine prior felony convictions.
¶ 13 The State argued that several factors in aggravation were present, including the fact that the defendant's conduct caused or threatened serious harm (730 ILCS 5/5-5-3.2(a)(1) (West 2014)), his lengthy history of prior crimes (id. § 5-5-3.2(a)(3)), and the need to deter others (id. § 5-5-3.2(a)(7)). In mitigation, the defense argued that a lengthy incarceration would have an adverse impact on the defendant's dependents (id. § 5-5-3.1(a)(11)) and that the character and attitudes of the defendant indicated that he was unlikely to reoffend (id. § 5-5-3.1(a) (9)). Both parties recognized that the defendant was eligible for extended-term sentencing.
¶ 14 Prior to pronouncing sentence, the court gave the defendant an opportunity to offer a statement in allocution. The defendant expressed remorse and insisted that he was a changed man.
¶ 15 In ruling from the bench, the court stated that it found two factors in aggravation-the need to deter others from committing the same crime (id. § 5-5-3.2(a) (7)) and the defendant's long history of prior crimes (id. § 5-5-3.2(a) (3)). The court stated that it found no factors in mitigation to be relevant.
¶ 16 The trial judge stated that he had read the letters the defendant entered into evidence. Then, addressing the defendant, he stated:
"Clifton, I'm sure that you are helpful perhaps as-I have no reason to believe that everything written in those statements isn't truthful, but we can't allow you out in the
community because you sell these drugs to your citizens of the other communities who become addicted, and we have to deal with it. We have to deal with the-with the overdoses when we're told."
The judge went on to speak at length about the problems caused by drug abuse in Randolph County. He explained that it was important to keep people who sell drugs "away from the community so our communities can be safe."
¶ 17 The court next addressed the defendant's "terrible prior record." The court noted that even after four previous prison sentences, the defendant had not been reformed, as evidenced by the fact that he continued to sell drugs and commit other crimes.
¶ 18 The court sentenced the defendant to 18 years on count I (alleging the sale of 1 to 15 grams) and 5 years on count II (alleging the sale of less than 1 gram). The court ordered the sentences to be served concurrently.
¶ 19 On September 19, 2016, attorney Baril filed a motion to reconsider the defendant's sentence. He argued that the court failed to consider the defendant's rehabilitative potential and the mitigating evidence he presented. On September 30, the defendant filed a pro se motion to reconsider his sentence. In it, he alleged that counsel failed to set up a telephone conference with the defendant after stating that he would do so. He further alleged that he attempted to present counsel with legal authority pertaining to sentencing prior to the resentencing hearing, but counsel told him that he did not have enough time to review it.
¶ 20 The court held a hearing on both motions on November 15, 2016. The court denied both motions and declined to consider the defendant's allegations about Baril.
¶ 21 The defendant then filed his second appeal to this court. He argued that the trial court erred by (1) failing to conduct a Krankel inquiry into his allegations concerning Baril's performance, (2) improperly considering a factor inherent in the offenses as a factor in aggravation, and (3) failing to consider mitigating factors. We held that the court erred in failing to conduct any inquiry into the defendant's pro se claims of ineffective assistance. See People v. Bardo, 2019 IL App (5th) 160511-U, ¶ 25. We therefore remanded the matter to the trial court for a preliminary Krankel inquiry and declined to consider the other claims raised by the defendant. Id. ¶¶ 25-26.
¶ 22 On February 21, 2020, the court held a preliminary Krankel hearing. The court began by allowing the defendant to present his claims. The defendant first stated that he tried to present his attorney, Baril, with three cases on the issue of his eligibility for extended-term sentencing, but that Baril told him he did not have time to review the cases. According to the defendant, these cases supported his belief that he was not eligible for an extended-term sentence.
¶ 23 The defendant next addressed the claim Baril raised unsuccessfully in the defendant's first appeal regarding the chain of custody of the cocaine at issue in count II. We note that in explaining his claim, the defendant discussed testimony related to the chains of custody over the cocaine involved in both counts. He first pointed to inconsistencies in the testimony that he believed supported his claim that the chain of custody was "broken." The defendant stated that Officer Ralph Jones testified at the preliminary hearing that he transported the drugs to the crime lab, but that he testified at trial that he did not take the drugs to the crime lab. The defendant also pointed to an inconsistency between the trial testimony of Jones and that of the confidential informant, Jodie Tanner. The defendant stated although Jones testified that he received the drugs directly from Tanner, Tanner testified that she gave them to another officer involved in the investigation, Officer Jeremy Kempfer, who then gave them to Jones.
We note that the preliminary hearing testimony referenced by the defendant related only to the cocaine involved in count I, and we reiterate that this court considered this issue in the defendant's first appeal.
We note that Tanner testified that she handed the cocaine she purchased in both sales directly to Jones. Jones, however, testified that after the first buy, Tanner handed the drugs to Officer Steven Larimore, who then handed them to Jones. Kempfer testified that he received the drugs involved in the first sale from Tanner and he handed them to Jones.
¶ 24 The defendant asserted that the inconsistencies in Jones's testimony indicated that it was perjured testimony that should never have been admitted at trial. He further asserted that Baril should have raised the plain error doctrine during his first appeal so the appeals court would have reviewed his claim.
¶ 25 The court stated, "So let's review the allegations you make against Mr. Baril. I'm hearing allegation number one is that you don't think he challenged the chain of custody" of the cocaine. The defendant replied, "Yes. The chain of custody *** was broken on numerous occasions." Asked to clarify this statement, the defendant said, "It was conflicting statements through the whole thing."
¶ 26 The court then asked, "Okay. What's next?" The defendant asserted that his right to counsel was violated when his first attorney, Gremmels, was not allowed to withdraw even though he "openly admitted" he was not prepared for trial. The following exchange then took place:
"THE COURT: I thought the appellate court's already discussed that issue.
DEFENDANT BARDO: Well, that issue wasn't addressed in the fashion of the violation under the Sixth Amendment right, because I was penalized for my attorney not reporting to you in advance that he was fired. ***
[ASSISTANT STATE'S ATTORNEY] MR. WALKER: Your Honor, the State's not allowed to participate in a Krankel hearing, and I'm not, but just-you may want to look back at the Rule 23 Order that the appellate court-
DEFENDANT BARDO: Your Honor, I object. Your Honor-
MR. WALKER: You got the mandate in May of 2016. Both of the issues that Mr. Bardo is bringing up are addressed in that order.
DEFENDANT BARDO: Your Honor, can I say something first? Because if he's not supposed to intervene in a Krankel hearing, he's still-he's still doing it as he's trying to proceed to tell you what you should and what you should not do, and I object to what he's saying.
THE COURT: Well, let me ask you this. Did you hire Jordan Gremmels to represent you?
DEFENDANT BARDO: Yes, I did. Yes, I did. And that's-that was my whole argument that I had fired him prior to trial, and *** that's when he submitted his withdrawal as counsel, on the day of trial, but I had fired him, it was more than a week prior. *** And then I was forced to go to trial with him after he admitted that he wasn't ready. And that's on the record, too, as well.
THE COURT: I think that was discussed in your direct appeal.
DEFENDANT BARDO: Uh-huh. This is something-
THE COURT: So let's go onto the next issue.
DEFENDANT BARDO: This is something that wasn't raised properly by Mr. Baril, that's why I'm reiterating this again to you, Your Honor."
¶ 27 The court asked the defendant to explain his next issue. The defendant replied, "The extended term." He explained that Baril failed to argue at sentencing that he was not eligible for extended-term sentencing. The court explained that it had already ruled that the defendant was extended-term eligible and that the extended-term sentence on count I was therefore proper. The defendant next addressed the fact that the court found no mitigating factors. However, he did not make any specific allegations or claims related to Baril's performance.
¶ 28 The court next asked Baril to address the defendant's claims. Baril addressed the issue of extended-term sentencing. He explained that the defendant told him he did not believe he was eligible for extended-term sentencing because he did not receive notice of his eligibility for extended-term sentences and because a defendant's sentence cannot be increased on remand. Baril explained that he did not agree with the defendant because notice of extended-term sentencing eligibility is not required and the defendant's sentence on remand was lower than his original sentence.
We note that there may have been some confusion because although the defendant's original 24-year sentence on count I was longer than his 18-year sentence after remand, it was not an extended-term sentence. Unlawful delivery of 1 to 15 grams of cocaine within 1000 feet of a place of worship is a Class X felony (720 ILCS 570/407(b)(1) (West 2010)) carrying a nonextended sentence of 6 to 30 years (730 ILCS 5/5-4.5-25(a) (West 2014)).
¶ 29 The court asked Baril, "What about his allegation that he attempted to speak with you about the statute pertaining to his resentencing and you declined to review it saying you didn't have enough time?" In response, Baril stated that he did not recall saying this, although he acknowledged that he did not recall everything he said to the defendant. He stated that he had extensive discussions with the defendant concerning the issue of extended-term sentencing.
¶ 30 The court also admitted into evidence two affidavits written by the defendant in support of his claims. In pertinent part, the defendant alleged that counsel failed to argue at the resentencing hearing that the harm of drugs in the community could not be considered as a factor in aggravation because it is inherent in the offense. He further alleged that his first attorney, Gremmels, was ineffective for failing to argue that inconsistent testimony about the chain of custody gave rise to "a reasonable inference" that the evidence had been tampered with. Specifically, he alleged that there was conflicting testimony as to whether one bag or three were recovered during the first buy. We note that although three bags were recovered and sent to the lab, only two were tested. The defendant was charged with unlawful delivery of 1.9 grams of cocaine, which is the combined weight of the substance in the two bags that were tested. These two allegations from the affidavits were not discussed at the Krankel inquiry, although the defendant did call the court's attention to his affidavits during the hearing, and they were admitted into evidence.
¶ 31 In ruling from the bench, the court found that all of the issues raised by the defendant either lacked merit or involved matters of trial strategy. The court therefore declined to appoint a new attorney. This appeal followed.
¶ 32 II. ANALYSIS
¶ 33 The defendant raises two related issues concerning the court's Krankel inquiry. First, he argues that the court erred in not appointing counsel to help him present his claims because two of his allegations indicated possible neglect of the case by Baril. Alternatively, he argues that the inquiry conducted by the court was inadequate. The defendant also challenges his sentences. He argues that the court erroneously considered the harm of drugs in the community-a factor inherent in the offense-as a factor in aggravation. He further argues that the court ignored mitigating factors, which led to an excessive sentence. We find none of his arguments persuasive.
¶ 34 A. Decision Not to Appoint Counsel
¶ 35 The defendant first argues that the court erred by deciding not to appoint counsel to help him further develop his claims of ineffective assistance of counsel because he showed possible neglect of his case by Baril. We disagree.
¶ 36 A defendant is not automatically entitled to the appointment of new counsel to help him present pro se claims of ineffective assistance. People v. Roddis, 2020 IL 124352, ¶ 35. To be entitled to new counsel and additional hearings on his claims, a defendant must make "sufficiently detailed" allegations about his attorney's performance, and he must challenge something other than the attorney's strategic decisions. People v. Fields, 2013 IL App (2d) 120945, ¶ 21. If the court determines that the defendant's claims are without merit or pertain solely to matters of trial strategy, the court may deny the defendant's pro se motion without appointing a new attorney. Roddis, 2020 IL 124352, ¶ 35. If, however, it appears that counsel may have neglected the defendant's case, the court should appoint new counsel and hold further hearings. People v. Nitz, 143 Ill.2d 82, 134 (1991).
¶ 37 When a defendant challenges a court's determination that his claims of ineffective assistance do not require the appointment of new counsel, we will overturn that decision only if we find that it is manifestly erroneous. People v. Crutchfield, 2015 IL App (5th) 120371, ¶ 20. "Manifest error is error that is clearly evident, plain, and indisputable." People v. Jackson, 2020 IL 124112, ¶ 98.
¶ 38 The defendant argues that the court's decision was manifestly erroneous because two of his claims demonstrated possible neglect of his case by Baril-(1) Baril's failure to argue on appeal that plain error review was applicable to his chain-of-custody argument and (2) Baril's failure to argue at resentencing that consideration of the general harm to society from drugs as an aggravating factor would constitute an improper double enhancement. We address these arguments in turn.
¶ 39 1. Failure to Urge Plain Error Review on Appeal
¶ 40 The defendant's first argument concerns his claim that Baril provided ineffective assistance during the defendant's first appeal by failing to urge this court to review his chain-of-custody argument under the plain error doctrine. The defendant contends that he showed possible neglect of the case by Baril because there was no sound strategic reason for him not to argue that plain error review of this claim was appropriate. In response, the State argues that Krankel does not require a trial court to consider claims of ineffective assistance of appellate counsel, even under the unusual circumstances of this case, where a former appellate attorney continues to represent a defendant in trial court proceedings on remand. We note that Krankel provides "a means for defendants to assert posttrial claims that trial counsel provided ineffective assistance" (emphasis in original) (People v. Custer, 2019 IL 123339, ¶ 25), and we are aware of no cases in which Krankel was expanded to include claims of ineffective assistance of appellate counsel. We need not resolve this question, however. We find that the court properly denied the defendant's claim because it lacked merit.
¶ 41 On appeal, the defendant points to two inconsistencies in the testimony establishing the chain of custody of People's Exhibit 3-the cocaine from the second buy, which was at issue in count II. First, he asserts that although Chief Ashley testified that he transported the evidence to the crime lab, Assistant Chief Sean Lukes testified that he transported the cocaine from the second buy both to and from the lab. Second, the defendant points out that although Jones testified that the cocaine from the second buy had a preliminary weight of a little over a gram, the forensic scientist who tested the substance testified that it weighed only .9 grams. The defendant argues that these inconsistencies demonstrate that "it is arguable that the State did not make a prima facie showing that the chain of custody was sufficiently complete to warrant the admissibility of" the cocaine at issue in count II.
¶ 42 Before addressing the defendant's arguments, we must point out that the defendant's argument mischaracterizes the testimony of Assistant Chief Sean Lukes. Lukes's testimony was somewhat confusing. When asked when he first took possession People's Exhibit 3, Lukes initially stated that Ashley handed it to him in Ashley's office. During redirect examination, however, he clarified that he did not transport the exhibit to the crime lab; he only picked it up and transported it back to the police station. This was consistent with Ashley's testimony.
¶ 43 It is also important to emphasize that Jones never testified to a precise weight. We further note that while the defendant points to a discrepancy between Jones's testimony that the substance seized after the second buy weighed some unspecified amount that was "a little over a gram" and the forensic scientist's testimony about the precise weight determined using a digital scale at the crime lab, the defendant did not address this discrepancy during the Krankel inquiry. We do not believe the court has a duty to inquire into any and all possible areas of neglect when conducting a Krankel inquiry. The court need only provide the defendant with an adequate opportunity to present a factual basis for the claims he raises.
¶ 44 In support of his claim that "it is arguable" the State failed to make a prima facie showing demonstrating a sufficiently reliable chain of custody to admit Exhibit 3 into evidence, the defendant cites People v. Woods, 214 Ill.2d 455 (2005). There, the supreme court discussed the special care necessary in establishing a chain of custody in narcotics cases. The court explained that narcotics evidence, unlike many other types of physical evidence, "is often not readily identifiable or may be susceptible to tampering, contamination or exchange." Id. at 466-67. The State is therefore required to establish a chain of custody "that is sufficiently complete to make it improbable that the evidence has been subject to tampering or accidental substitution." Id. at 467. To do so, the court explained, the State must demonstrate "that the police took reasonable protective measures to ensure that the substance recovered from the defendant was the same substance tested by the forensic chemist." Id. Stated differently, it is the State's burden to show that police took reasonable protective measures and that it was unlikely that the evidence had been substituted or tampered with between the time it was seized and the time it was tested. See id. at 472. Once the State satisfies this burden, any" 'deficiencies in the chain of custody go to the weight, not admissibility, of the evidence.'" Id. at 467 (quoting People v. Bynum, 257 Ill.App.3d 502, 510 (1994)).
¶ 45 The supreme court recognized "that under limited circumstances," flaws in the chain of custody may rise to the level of plain error. Id. at 471. The court explained that "[w]hen there is a complete failure of proof, there is no link between the substance tested by the [forensic] chemist and the substance recovered at the time of the defendant's arrest." (Emphasis added.) Id. at 472. Thus, the court further explained, "in those rare instances where a complete breakdown in the chain of custody occurs-e.g., the inventory number or description of the recovered and tested items do not match-raising the probability that the evidence sought to be introduced into evidence at trial was not the same substance recovered from the defendant, a challenge to the chain of custody may be brought under the plain error doctrine." Id. at 471-72.
¶ 46 It is worth emphasizing that application of the forfeiture rule to claims involving the chain of custody is particularly appropriate because an objection at trial would have allowed the State to cure any defects by filling in gaps in the chain of custody. See People v. Hamerlinck, 2018 IL App (1st) 152759, ¶ 42. Thus, as the supreme court emphasized in Woods, the plain error doctrine applies to chain-of-custody arguments only in limited circumstances. See Woods, 214 Ill.2d at 471. With these principles in mind, we turn our attention to the chain-of-custody evidence presented in this case.
¶ 47 Jones testified that after receiving the suspected cocaine from Tanner, he placed it in an evidence bag, sealed and marked the bag, and placed the sealed evidence bag into an evidence locker at the police department. Ashley described the protective measures used by the Sparta Police Department once officers placed evidence in the department's evidence lockers. He explained that each locker came with a padlock and a key. He testified that after placing evidence in a locker, the officer locked the padlock and placed the key in a lock box located in the squad room. Only Ashley and Lukes had keys to the lock box. Ashley testified that when he retrieved the evidence involved in this case to transport it to the crime lab for testing, he followed these procedures. Both Ashley (who transported the cocaine at issue in count II to the crime lab) and Lukes (who transported it back to the police station) testified that the evidence remained within their sight the entire time they were transporting it. All three officers testified that they recognized People's Exhibit 3.
¶ 48 Joel Gray, the forensic scientist who tested the substance in Exhibit 3, likewise testified that he recognized the exhibit. He also described the crime lab's procedures for protecting evidence. He explained that when evidence arrives, it is checked to be sure it is in a sealed condition. Then it is logged into the system and assigned a case number. He noted that the crime lab and the police department both assign their own case numbers to the evidence. Gray explained that the computer generates a bar code label when evidence is logged in, which crime lab personnel then place on the evidence bag. Evidence is then stored in a locked vault until it is tested. Gray testified that he followed this procedure when he received People's Exhibit 3. He identified a copy of the evidence receipt for the exhibit, which was introduced into evidence. The evidence receipt showed both the police department's case number and the crime lab's case number for the evidence.
¶ 49 We note that none of the police officers who testified identified the number placed on the evidence bag. Matching testimony as to the number assigned to evidence is often used to help establish that the evidence tested was the same evidence seized from the defendant. See, e.g., People v. Alsup, 241 Ill.2d 266, 278 (2011); Woods, 214 Ill.2d at 472; People v. Paige, 378 Ill.App.3d 95, 99 (2007). However, the absence of such testimony "is not the same as the mismatched inventory numbers that concerned the court in Woods." People v. Coger, 2019 IL App (1st) 163250, ¶ 24. Here, Ashley and Gray testified to the protective procedures followed by the Sparta Police Department and the crime lab, respectively. They each testified that these procedures were followed. Jones testified that he sealed the evidence bag, and Gray testified that he checked to be sure the bag was sealed when he received it. Both of the officers who transported the evidence testified that it never left their sight while it was in their possession. Although there was no testimony about the evidence number assigned to Exhibit 3 by the police, the evidence receipt and the bag itself were entered into evidence. We therefore conclude that the State met its burden of establishing that proper protective measures were taken and that the evidence tested by Gray was the evidence recovered from the defendant after the second controlled buy. The apparent discrepancy between Gray's testimony about the precise weight of the cocaine and Jones's testimony about the approximate preliminary weight is not sufficient to alter this conclusion. See id. ¶ 25 (rejecting an argument that a discrepancy between the approximate weight noted in a police report and the precise weight testified to by the forensic scientist raised questions about the chain of custody). As such, had Baril urged this court to have considered his challenge under the plain error doctrine, we would have declined to do so.
¶ 50 We recognize, of course, that a defendant is not required to conclusively prove his claims of ineffective assistance to be entitled to the appointment of new counsel and further proceedings. Rather, as we explained earlier, he need only demonstrate possible neglect of his case. See Roddis, 2020 IL 124352, ¶ 35; Nitz, 143 Ill.2d at 134. However, as we also stated previously, a court may deny a defendant's pro se claim of ineffective assistance of counsel if it can be determined that the claim lacks merit. See Roddis, 2020 IL 124352, ¶ 35. To prevail on a claim of ineffective assistance, a defendant must demonstrate both that counsel's performance was deficient because "it fell below an objective level of reasonableness," and that the defendant was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Demonstrating prejudice requires a defendant to show that there is a reasonable probability of a more favorable outcome "but for counsel's unprofessional errors." Id. at 694. Because the defendant must satisfy both parts of the Strickland'test (People v. Coleman, 183 Ill.2d 366, 397 (1998)), if we find that the defendant is unable to demonstrate prejudice, we may reject his claim on this basis alone (Strickland, 466 U.S. at 697; Coleman, 183 Ill.2d at 397-98). Here, the defendant cannot demonstrate prejudice. The court therefore properly rejected his claim on the basis that it was legally insufficient.
¶ 51 2. Failure to Argue Against Consideration of an Improper Sentencing Factor
¶ 52 The defendant next contends that Baril neglected his case by failing to argue at the resentencing hearing that consideration of the general harm of drugs in the community was improper. He argues that this harm is a factor inherent in the offense of unlawful delivery and that, therefore, it may not be considered as a factor in aggravation. He notes that raising this argument would have been particularly important in this case because the State specifically asked the court to consider the harm to the community as a factor in aggravation. As we will explain in more detail when we address the defendant's sentencing claims, however, this claim is refuted by the record. Our review indicates that while the court did discuss the general harm of drugs to the communities of Randolph County at the resentencing hearing, the court did not consider this as a factor in aggravation. Because the court did not consider the improper factor, the defendant cannot show prejudice, as required under Strickland, and his claim of ineffective assistance therefore lacks merit. See Strickland, 466 U.S. at 697; Coleman, 183 Ill.2d at 397-98. The court's decision to deny this legally insufficient claim without appointing new counsel was not manifestly erroneous.
¶ 53 B. Adequacy of Krankel Inquiry
¶ 54 Alternatively, the defendant contends that the court did not conduct an adequate inquiry into the claims he asserted. We disagree.
¶ 55 The procedure the trial court must follow during a preliminary Krankel inquiry "is somewhat flexible." Fields, 2013 IL App (2d) 120945, ¶ 40. It is appropriate for the court to consider its own recollections of counsel's performance. It is also appropriate-and in most cases necessary-for the court to discuss the allegations with the defendant and to ask questions of defense counsel. Id. ¶ 39. The question for a reviewing court is whether the trial court's inquiry was "sufficient to determine the factual basis of the claim." People v. Banks, 237 Ill.2d 154, 213 (2010) (citing People v. Johnson, 159 Ill.2d 97, 124 (1994)). The adequacy of a Krankel inquiry essentially depends on whether the defendant had an opportunity to explain his claims. People v. Ayres, 2017 IL 120071, ¶ 24. The court must provide this opportunity to the defendant with respect to each of his pro se claims. Id. ¶ 13. Our review is de novo. People v. Thomas, 2017 IL App (4th) 150815, ¶ 24.
¶ 56 Here, as we have already discussed, the court gave the defendant ample opportunity to present his allegations in detail. The court questioned the defendant about his assertions, giving him the opportunity to clarify them; asked the defendant multiple times whether he had any other allegations to present; and allowed defense counsel Baril to respond to the defendant's allegations. Thus, the court provided the defendant with an opportunity to present his claims as required by our supreme court. See Ayres, 2017 IL 120071, ¶ 24.
¶ 57 The defendant argues, however, that this inquiry was inadequate for two reasons. First, he complains that the court did not ask Baril specific questions concerning the defendant's allegation that he provided ineffective assistance during the defendant's first direct appeal. Second, he asserts that the court allowed the State to participate in an adversarial manner by telling the court to look at this court's order in his first appeal. He argues that the State's participation deprived him of an opportunity to present his claim concerning Baril's performance in handling the appeal. We reject both claims.
¶ 58 We first consider the defendant's claim that the court's inquiry was inadequate because the court did not question Baril concerning his representation of the defendant during the first appeal. As the defendant acknowledges, there is no specific requirement that the court question defense counsel about each and every issue raised. Here, the court gave Baril an opportunity to respond to all of the defendant's allegations. Moreover, we have already found that this claim was legally insufficient. It was possible for the court to reject this claim based on its own recollections of the trial and/or a review of the record. We cannot find the court's inquiry inadequate merely because the court did not ask Baril specific questions related to the appeal.
¶ 59 We turn our attention to the defendant's claim that the State's participation deprived him of the opportunity to present his claims. We are not persuaded.
¶ 60 The Illinois Supreme Court has held that a preliminary Krankel inquiry must be "a neutral and nonadversarial proceeding." People v. Jolly, 2014 IL 117142, ¶ 38. "Because a defendant is not appointed new counsel at the preliminary Krankel inquiry, it is critical that the State's participation at that proceeding, if any, be de minimis." Id.
¶ 61 Here, as discussed previously, the prosecutor interrupted the defendant to point out that a claim he was discussing had been addressed during the defendant's direct appeal-his claim that he was denied the right to counsel because his first attorney was not allowed to withdraw. Generally, when a prosecutor does no more than offer "concrete and easily verifiable facts," the State's participation is deemed to be de minimis. (Emphasis in original.) Fields, 2013 IL App (2d) 120945, ¶ 40. Although the prosecutor's statements in this case were relatively brief and related to an easily verifiable fact, they can also be seen as an adversarial argument that the defendant's claim had already been decided and was barred by res judicata. As both our supreme court and this court have held, the State's participation in a preliminary Krankel inquiry is not considered de minimis when prosecutors make adversarial arguments. See Jolly, 2014 IL 117142, ¶ 38 (stating that "the State should never be permitted to take an adversarial role against a pro se defendant at the preliminary Krankel inquiry"); People v. Jackson, 2018 IL App (5th) 150274, ¶ 91 (concluding that the State's participation was not de minimis where the prosecution offered arguments that amounted to "adversarial advocacy"), aff'd, 2020 IL 124112.
¶ 62 While we do not condone the prosecutor's interjection at the Krankel inquiry in this case, we need not determine whether his comments amounted to more than de minimis participation. Even assuming the State's participation in this case was more than de minimis, our supreme court recently held that the State's participation in a Krankel inquiry is subject to harmless error analysis. Jackson, 2020 IL 124112, ¶¶ 119-120. Earlier, we set forth in detail the exchange during which the prosecutor commented. During that exchange, the court pointed out that the claim had been addressed in the prior appeal before the prosecutor did so. Thus, the prosecutor's comments did not draw the judge's attention to anything he was not already considering. In addition, the court appears to have ignored the comments of the prosecutor. After the prosecutor commented, the court continued to question the defendant about his allegation. Although the defendant argues on appeal that the State's comments deprived him of an opportunity to explain to the court that he was raising a claim of ineffective assistance of appellate counsel, the record shows that the defendant did, in fact, explain this to the court. We thus find that any error in the State's participation was harmless. For these reasons, we conclude that the court's inquiry was adequate.
¶ 63 C. Factor Inherent in the Offense
¶ 64 The defendant next argues that the court considered a factor inherent in the offense of unlawful delivery-the general harm to the community caused by drug abuse-as a factor in aggravation. We reject his contention.
¶ 65 The defendant correctly contends that the general harm to the community caused by the sale of illegal drugs is a factor inherent in the offense of unlawful delivery. See People v. Maxwell, 167 Ill.App.3d 849, 852 (1988). The defendant is also correct in arguing that a sentencing court may not consider a factor that is inherent in the offense as an aggravating factor. People v. Morrow, 2014 IL App (2d) 130718, ¶ 13. "Stated differently, a single factor cannot be used both as an element of an offense and as a basis for imposing' a harsher sentence than might otherwise have been imposed.'" Id. (quoting People v. Gonzalez, 151 Ill.2d 79, 83-84 (1992)). Such "double enhancements" are improper because we assume that the legislature considered factors inherent in the offense when it decided upon the appropriate sentencing range. Id.
¶ 66 In determining whether the trial court considered an improper factor in aggravation, we must view the record in its entirety rather than focusing on isolated statements by the court. Id. ¶ 14. We must also presume that the trial court employed sound legal reasoning in its sentencing decisions. Id. The defendant has the burden of demonstrating that his sentence was based on an improper factor. People v. Dowding, 388 Ill.App.3d 936, 943 (2009). Our review of this question is de novo. Morrow, 2014 IL App (2d) 130718, ¶ 14.
¶ 67 Here, the court explicitly stated that it found only two factors in aggravation-the need to deter others and the fact that the defendant had a lengthy criminal history. As the defendant emphasizes, the court also spoke at length about the harms caused to the communities of Randolph County by illegal drugs. However, while it is improper for the court to consider the general societal harm caused by the sales of illicit drugs as a factor in aggravation, it is not improper for the court to comment on this harm when addressing the defendant. People v. McCain, 248 Ill.App.3d 844, 852 (1993). Courts should "attempt to segregate such general commentary from the balancing of sentencing factors." Id. Here, the court did just that by explicitly stating that it found two factors in aggravation before going on to provide a more general commentary. Moreover, the court also emphasized the defendant's prior record, particularly the fact that the defendant had previously committed similar offenses. The court further emphasized that the defendant apparently had not been reformed even after serving four previous prison terms. Viewing the record of the resentencing hearing in its entirety, we are not convinced that the court considered the harm inherent in the unlawful delivery of drugs as a factor in aggravation.
¶ 68 D. Mitigating Evidence and Excessive Sentence
¶ 69 The defendant's final argument is that the court overlooked "significant mitigating factors." He contends that the court's failure to "properly consider" mitigating evidence resulted in an excessive sentence of 18 years. We disagree.
¶ 70 The trial court has broad discretion in determining the appropriate sentence to impose. People v. Alexander, 239 Ill.2d 205, 212 (2010). The trial court is in a better position than we are to assess the defendant's credibility, demeanor, general moral character, and other relevant considerations. People v. Calhoun, 404 Ill.App.3d 362, 385 (2010). Where the defendant's sentence is within the statutorily prescribed sentencing range, we will not alter the sentence absent an abuse of the trial court's discretion. Id. An abuse of discretion occurs only if the defendant's sentence is" 'greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense.'" Alexander, 239 Ill.2d at 212 (quoting People v. Stacey, 93 Ill.2d 203, 210 (2000)).
¶ 71 The Illinois Constitution mandates that sentences be determined by taking into account both the seriousness of the offense and the goal of rehabilitating the defendant. Calhoun, 404 Ill.App.3d at 385 (citing Ill. Const. 1970, art. I, § 11). Courts therefore "must carefully consider all of the factors in aggravation and mitigation." Id. However, courts are not required to specify how much weight they give to each pertinent factor. People v. Busse, 2016 IL App (1st) 142941, ¶ 24. Further, we must presume that the trial court considered any mitigating evidence in the record absent affirmative evidence to the contrary other than the sentence itself. Id. ¶¶ 22-23.
¶ 72 In arguing that the court overlooked significant mitigating evidence, the defendant highlights the fact that he expressed remorse at the resentencing hearing and the numerous letters of support that were admitted into the record. He also notes that he was 39 years old when sentenced, and asserts that studies show that older to middle-aged offenders tend to "age out" of crime, thereby making it unlikely that he will reoffend. We are not persuaded.
¶ 73 To resolve the question before us, it is necessary to consider both the full extent of the defendant's prior criminal history and the sentencing ranges available to the trial court. The presentence investigation report filed with the court in this case reveals that the defendant had 9 prior felony convictions, 3 of which were for drug-related offenses; 9 misdemeanor convictions, 3 of which were for drug-related offenses; and 11 traffic violations, including reckless driving and driving with a suspended license. In addition, he received court supervision on three separate occasions for charges of driving under the influence, reckless driving, and unlawful possession of cannabis, and he was adjudicated delinquent on a theft charge as a juvenile. In the face of this extensive criminal history, we do not believe the court was required to find that the defendant had rehabilitative potential or that his character and attitudes were such that he was unlikely to reoffend.
¶ 74 It is also significant that the court imposed sentences toward the middle of the available ranges. The charge in count I was reduced to unlawful delivery of 1 to 15 grams of a controlled substance (cocaine). See 720 ILCS 570/401(c)(2) (West 2010). That offense is a Class 1 felony (id.), carrying a sentence of 4 to 15 years or an extended-term sentence of 15 to 30 years (730 ILCS 5/5-4.5-30 (West 2014)). The defendant's prior convictions made him extended-term eligible (id. § 5-5-3.2(b)(1)), and he does not argue to the contrary in this appeal. The defendant's 18-year sentence on count I was thus in the middle of the overall range permissible. Count II was reduced to unlawful delivery of less than one gram of a controlled substance (cocaine), a Class 3 felony (720 ILCS 570/401 (e) (West 2010)), carrying a sentencing range of 2 to 5 years with an extended-term range of 5 to 10 years (730 ILCS 5/5-4.5-40 (West 2014)). The defendant's five-year sentence was likewise in the middle of the available sentencing range. These midrange sentences in the face of the defendant's significant criminal history indicate that, while the court did not expressly find any statutory factors in mitigation to be applicable, the court did give at least some weight to the mitigating evidence the defendant presented. We find no abuse of discretion.
¶ 75 III. CONCLUSION
¶ 76 For the foregoing reasons, we affirm the defendant's convictions and sentences.
¶ 77 Affirmed.