The Illinois statute under which Solorzano-Patlan was convicted, defines "burglary" broadly, encompassing both conduct that does involve a substantial risk that physical force may be used and conduct that does not involve a substantial risk that physical force may be used. See 720 Ill. Comp. Stats. 5/19-1(a); compare People v. Frey, 467 N.E.2d 302, 303 (Ill.App.Ct. 1984) (affirming the burglary conviction of a defendant who took a sledgehammer from the open bed of an unattended pickup truck) with State v. Stone, 653 N.E.2d 1311 [ 953 N.E.2d 1311], 1312 (Ill.App.Ct. 1995) (affirming the burglary conviction of a defendant who smashed the driver's side window and "busted out" the steering column of a Toyota sedan in order to hot-wire the car). Because different levels of criminal conduct will result in a conviction under 720 Ill. Comp. Stats. 5/19-1(a), the statute is a "divisible statute," and "[w]hen the statutory definition of a criminal offense encompasses conduct that does not constitute a crime of violence as well as conduct that does constitute a crime of violence, an [IJ] may not simply categorize all conduct covered by the offense as crime of violence conduct."
Although we have not inquired into counsel's performance, we find it worth noting that counsel was under no duty to make specious arguments or " 'create a defense where none existed.' " See People v. Montanez, 281 Ill. App. 3d 558, 564 (1996), quoting People v. Stone, 274 Ill. App. 3d 94, 99 (1995). ΒΆ 23 Defendant, nevertheless, argues that an entrapment defense would likely have changed the outcome of the trial. Section 7-12 of the Criminal Code of 2012 (720 ILCS 5/7-12 (West 2012)) defines entrapment as follows:
Where, as here, there was not much more counsel could do, his performance will not be deemed constitutionally defective under Cronic. People v. Stone, 274 Ill. App. 3d 94, 99 (1995). Accordingly, we conclude that defendant has not shown that his trial counsel was presumptively ineffective under Hattery and Cronic.
Defense counsel subjected the prosecution's case to meaningful adversarial testing. See People v. Johnson, 128 Ill.2d 253, 538 N.E.2d 1118 (1989); Barfield, 187 Ill. App.3d 190, 543 N.E.2d 812; Shatner, 174 Ill.2d 133, 673 N.E.2d 258; People v. Stone, 274 Ill. App.3d 94, 653 N.E.2d 1311 (1995). In People v. Johnson, 128 Ill.2d 253, 538 N.E.2d 1118 (1989), defendant was convicted of intentional murder, knowing murder, felony murder, attempted murder, armed violence, aggravated battery, armed robbery, theft, and unlawful restraint.
Counsel had "no duty to create a defense where none existed." People v. Stone, 274 Ill. App.3d 94, 99, 653 N.E.2d 1311 (1995). Juries have the power to return verdicts which defy the facts and the law.