{ "id": 3363529, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN T. McCLEARY, Defendant-Appellant", "name_abbreviation": "People v. McCleary", "decision_date": "2004-06-23", "docket_number": "No. 4\u201403\u20140759", "first_page": "916", "last_page": "928", "citations": [ { "type": "official", "cite": "353 Ill. App. 3d 916" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "353 N.E.2d 684", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "41 Ill. App. 3d 276", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2491145 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/41/0276-01" ] }, { "cite": "740 N.E.2d 755", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "766-67" }, { "page": "767" }, { "page": "767" } ], "opinion_index": 0 }, { "cite": "194 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1096297 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "24" }, { "page": "24" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/194/0001-01" ] }, { "cite": "709 N.E.2d 1272", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 1999, "pin_cites": [ { "page": "1278" }, { "page": "1278" }, { "page": "1279" }, { "page": "1279" }, { "page": "1278", "parenthetical": "\"[UJnambiguous language of this statute evinces the intent of the legislature that it did not intend to exclude the liquid within which the cocaine is diluted ***\"" } ], "opinion_index": 0 }, { "cite": "304 Ill. App. 3d 750", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564634 ], "weight": 6, "year": 1999, "pin_cites": [ { "page": "758" }, { "page": "758" }, { "page": "759" }, { "page": "759" }, { "page": "758" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/304/0750-01" ] }, { "cite": "478 N.E.2d 1082", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "1089-90", "parenthetical": "a defendant who is not sentenced under a specific sentencing provision cannot challenge the constitutional validity of that sentencing provision because he is not directly affected by the statute" } ], "opinion_index": 0 }, { "cite": "133 Ill. App. 3d 248", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3528119 ], "year": 1985, "pin_cites": [ { "page": "256", "parenthetical": "a defendant who is not sentenced under a specific sentencing provision cannot challenge the constitutional validity of that sentencing provision because he is not directly affected by the statute" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0248-01" ] }, { "cite": "771 N.E.2d 374", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 2002, "pin_cites": [ { "page": "376" }, { "page": "376" }, { "page": "381" }, { "page": "382-83" }, { "page": "383" } ], "opinion_index": 0 }, { "cite": "199 Ill. 2d 440", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58947 ], "weight": 5, "year": 2002, "pin_cites": [ { "page": "443" }, { "page": "443" }, { "page": "452" }, { "page": "454" }, { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0440-01" ] }, { "cite": "713 N.E.2d 210", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "219" }, { "page": "219" }, { "page": "219" } ], "opinion_index": 0 }, { "cite": "305 Ill. App. 3d 840", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1208048 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "852" }, { "page": "852" }, { "page": "852" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/305/0840-01" ] }, { "cite": "634 N.E.2d 1257", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "1261" } ], "opinion_index": 0 }, { "cite": "262 Ill. App. 3d 541", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 521973 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "830" }, { "page": "830" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/0819-01" ] }, { "cite": "718 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "39" }, { "page": "39" } ], "opinion_index": 0 }, { "cite": "187 Ill. 2d 144", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1131032 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "212-13" }, { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/187/0144-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 6, "year": 1984, "pin_cites": [ { "page": "686" }, { "page": "692" }, { "page": "2063" }, { "page": "687" }, { "page": "693" }, { "page": "2064" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "259 N.E.2d 802", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "45 Ill. 2d 549", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2896687 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-2d/45/0549-01" ] }, { "cite": "757 N.E.2d 887", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "891" }, { "page": "891" } ], "opinion_index": 0 }, { "cite": "197 Ill. 2d 358", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259135 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "363" }, { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0358-01" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "1129" }, { "page": "1136" } ], "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "185-86" }, { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "766 N.E.2d 641", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "647" } ], "opinion_index": 1 }, { "cite": "199 Ill. 2d 130", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58928 ], "year": 2002, "pin_cites": [ { "page": "140" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/199/0130-01" ] }, { "cite": "945 F.2d 129", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10521272 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "137" }, { "page": "136" } ], "opinion_index": 1, "case_paths": [ "/f2d/945/0129-01" ] }, { "cite": "806 N.E.2d 683", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "693" } ], "opinion_index": 1 }, { "cite": "346 Ill. App. 3d 655", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3832432 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "667-68" }, { "page": "668" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/346/0655-01" ] }, { "cite": "500 U.S. 453", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6226195 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "465" }, { "page": "538" }, { "page": "1927-28" } ], "opinion_index": 1, "case_paths": [ "/us/500/0453-01" ] }, { "cite": "345 N.E.2d 97", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "page": "101" } ], "opinion_index": 1 }, { "cite": "63 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426412 ], "year": 1976, "pin_cites": [ { "page": "9" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/63/0001-01" ] }, { "cite": "709 N.E.2d 1272", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "cocaine added to wine and placed in champagne bottles" } ], "opinion_index": 1 }, { "cite": "304 Ill. App. 3d 750", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564634 ], "year": 1999, "pin_cites": [ { "parenthetical": "cocaine added to wine and placed in champagne bottles" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/304/0750-01" ] } ], "analysis": { "cardinality": 1206, "char_count": 28356, "ocr_confidence": 0.768, "pagerank": { "raw": 5.595947402746133e-08, "percentile": 0.3507615694969089 }, "sha256": "e7e337465050283101900a02656d0aeabfbc14ca1031a86aef644bf190002151", "simhash": "1:a33a3d6b2b67a54c", "word_count": 4550 }, "last_updated": "2023-07-14T16:37:49.624900+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN T. McCLEARY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nIn January 2002, the State charged defendant, Brian McCleary, with manufacturing a controlled substance (900 grams or more of any substance containing methamphetamine or any salt of an optical isomer of methamphetamine, or an analog thereof) (720 ILCS 570/ 401(a)(6.5)(D) (West 2000)), and possession of a controlled substance (900 grams or more of any substance containing methamphetamine or any salt of an optical isomer of methamphetamine) (720 ILCS 570/ 402(a)(6.5)(D) (West 2000)). Following a January 2003 bench trial, the trial court found defendant guilty of both offenses. In September 2003, the court sentenced defendant to 17 years in prison on the manufacture-of-a-controlled-substance conviction but did not sentence him as to the unlawful-possession conviction.\nDefendant appeals, arguing that (1) he did not effectively waive his right to a jury trial, (2) he was denied his sixth-amendment right to effective assistance of trial counsel (U.S. Const., amend VI), (3) his sentence violated the proportionality clause of the Illinois Constitution (Ill. Const. 1970, art. I, \u00a7 11), and (4) sections 401(a)(6.5)(D) and 402(a)(6.5)(D) of the Illinois Controlled Substances Act (Controlled Substances Act) (720 ILCS 570/401(a)(6.5)(D), 402(a)(6.5)(D) (West 2000)) violate the due-process clauses of the United States and Illinois Constitutions (U.S. Const., amend. V; Ill. Const. 1970, art. I, \u00a7 2). We disagree and affirm.\nI. BACKGROUND\nIn January 2002, defendant was on probation for a misdemeanor domestic-battery conviction, and Pam Pharis was his supervising probation officer. As a condition of his probation, defendant was required to consent to home visits or searches of his residence suggested by Pharis. Evidence at defendant\u2019s January 2003 bench trial showed that around 8:30 p.m. on January 16, 2002, Pharis, along with probation officers Steve Kelly and Jana Pamprin, went to defendant\u2019s residence to conduct a home visit. Kelly went to defendant\u2019s door, and Pharis and Pamprin remained in a car.\nAfter defendant opened his door, Kelly saw cash and several bags of green leafy material on the living room table. Because Kelly suspected the green leafy material was cannabis, he arrested defendant. Kelly then asked Pharis and Pamprin to come into defendant\u2019s residence to assist him.\nThe officers found several items of drug paraphernalia and a methamphetamine laboratory on defendant\u2019s back porch. Pharis called the Mattoon police department for assistance, which then contacted the East Central Illinois Task Force. Task force members seized two liquid substances that weighed 440 grams and 746 grams, respectively, from defendant\u2019s methamphetamine laboratory. They also seized 77 grams of a powder substance from defendant\u2019s trash can. Both the liquids and powder tested positive for the presence of methamphetamine.\nFollowing the bench trial, the trial court found defendant guilty of both charges. Specifically, the court found that (1) the evidence established beyond a reasonable doubt that defendant knowingly possessed and manufactured more than 900 grams of a substance containing methamphetamine, (2) the substances needed further chemical processing before the methamphetamine could be used, and (3) sections 401(a)(6.5)(D) and 402(a)(6.5)(D) of the Controlled Substances Act do not require that the substance containing methamphetamine be usable. The court later sentenced defendant as stated.\nThis appeal followed.\nII. ANALYSIS\nA. Right to a Jury Trial\nDefendant first argues that his jury-trial waiver was ineffective because the trial court incorrectly advised him of the penalties he faced. We disagree.\nInitially, we note that defendant raises this issue for the first time on appeal. A defendant forfeits an issue for review if he fails to object at trial and include the issue in his written posttrial motion. People v. Enoch, 122 Ill. 2d 176, 185-86, 522 N.E.2d 1124, 1129 (1988). A forfeited issue may be reviewed under the plain-error doctrine if the evidence is closely balanced or the alleged error was so serious it deprived the defendant of a fair trial. Enoch, 122 Ill. 2d at 199, 522 N.E.2d at 1136. Because this case concerns the knowing waiver of the fundamental right to a jury trial, we consider this issue under the plain-error doctrine. In re R.A.B., 197 Ill. 2d 358, 363, 757 N.E.2d 887, 891 (2001).\nDefendant claims that this issue is controlled by the supreme court\u2019s decision in People v. Weakley, 45 Ill. 2d 549, 259 N.E.2d 802 (1970). However, defendant\u2019s reliance on Weakley is misplaced. The defendant in Weakley challenged the validity of his guilty plea, not the validity of his jury waiver. Before a defendant can plead guilty, Supreme Court Rule 402(a) (177 Ill. 2d R. 402(a)) requires that the trial court admonish the defendant of the consequences of the plea, the nature of the charges against him, and the maximum sentence he faces. These admonitions are required before a defendant can knowingly and intelligently plead guilty. On the other hand, a trial court is not required to give any particular admonishments to a defendant before he waives his right to a jury trial. The only requirement is that under the particular facts and circumstances of the case, a defendant\u2019s waiver be knowingly and intelligently made. R.A.B., 197 Ill. 2d at 364, 757 N.E.2d at 891.\nAt the beginning of the December 2002 pretrial hearing, the special assistant State\u2019s Attorney informed the trial court that defendant wanted to waive his right to a jury trial. Defense counsel agreed and informed the court that defendant was prepared to sign a written jury waiver. The court then admonished defendant about his right to a jury trial. The court also assured that (1) defendant understood what a jury trial was and (2) defendant\u2019s waiver was voluntary and knowing. The court also mistakenly informed defendant that he faced only 6 to 30 years in prison and a maximum fine of $25,000 if convicted of manufacturing a controlled substance. (Defendant was eligible to be sentenced to between 15 to 60 years in prison.)\nReviewing the particular facts and circumstances of this case, we conclude that defendant knowingly and intelligently waived his right to a jury trial and the trial court\u2019s erroneous sentencing admonition did not influence or prejudice defendant\u2019s decision. In that regard, we note that defense counsel informed the court that defendant wished to sign a written jury waiver before the court misstated the applicable sentencing range. After the misstatement, the court explained both the functions and the workings of a jury trial to defendant. Defendant indicated that (1) he understood what a jury trial was and (2) it was his choice whether to waive that right. Defendant then signed a written jury waiver in the court\u2019s presence. Thus, on this record, we conclude that defendant knowingly and intelligently waived his right to a jury trial.\nB. Ineffective Assistance of Counsel\nDefendant next argues that he was denied effective assistance of trial counsel in that counsel (1) failed to file a motion to suppress evidence found during the search, (2) failed to advise defendant of his right to testify, and (3) ignored his request to testify. We disagree.\nA criminal defendant has the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692, 104 S. Ct. 2052, 2063 (1984). A defendant claiming ineffective assistance of counsel must demonstrate that (1) counsel\u2019s performance fell below an objective standard of reasonableness and (2) a reasonable probability exists that, but for the deficient performance, the outcome of the proceedings would have been different. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; People v. Buss, 187 Ill. 2d 144, 212-13, 718 N.E.2d 1, 39 (1999). If a reviewing court finds that a defendant suffered no or de minimus prejudice, it need not decide whether counsel\u2019s performance was constitutionally deficient. Buss, 187 Ill. 2d at 213, 718 N.E.2d at 39.\n1. Counsel\u2019s Failure To File a Motion To Suppress\nDefendant first contends that he was denied effective assistance of trial counsel when counsel failed to move to suppress evidence found during the search of defendant\u2019s residence. We disagree.\nThe decision to file a motion to suppress is a matter of trial strategy, and counsel\u2019s decision will be accorded great deference. People v. Lundy, 334 Ill. App. 3d 819, 830, 779 N.E.2d 404, 414 (2002). To establish prejudice, a defendant must show a reasonable probability that (1) the motion would have been granted and (2) the outcome of the trial would have been different had the evidence been suppressed. A reasonable probability is one sufficient to undermine confidence in the outcome. Failure to file a motion to suppress does not establish incompetent representation when the motion would be futile. Lundy, 334 Ill. App. 3d at 830, 779 N.E.2d at 414.\nIn People v. Durgan, 346 Ill. App. 3d 1121, 1142, 806 N.E.2d 1233, 1250 (2004), this court recently held that adjudication of a defendant\u2019s claim of ineffective assistance based on trial counsel\u2019s failure to move to suppress evidence is almost never appropriate on direct appeal. In so holding, we reasoned that \u201cabsent a motion to suppress, it is highly unlikely that the State would garner its resources to prove the propriety of the officers\u2019 actions.\u201d Durgan, 346 Ill. App. 3d at 1142, 806 N.E.2d at 1250. However, in this case, the State garnered its resources and presented at defendant\u2019s trial both Pharis\u2019s and Kelly\u2019s detailed testimony as to the circumstances surrounding their search of defendant\u2019s residence. We thus address defendant\u2019s ineffective-assistance claim on the merits.\nA probationer\u2019s home is protected by the fourth amendment\u2019s requirement that searches be reasonable. U.S. Const., amend. IV; People v. Johns, 342 Ill. App. 3d 297, 300, 795 N.E.2d 433, 437 (2003). In determining whether the search was reasonable, courts will balance the level of intrusion on the probationer\u2019s personal privacy against the degree of need for the search to promote legitimate government interests. People v. Lampitok, 207 Ill. 2d 231, 249, 798 N.E.2d 91, 103 (2003). Reasonable suspicion exists when articulable facts and the rational inferences from those facts warrant a reasonably prudent officer to investigate further. Lampitok, 207 Ill. 2d at 255, 798 N.E.2d at 106.\nIn this case, Kelly accompanied Pharis, who was defendant\u2019s supervising probation officer, on a home visit of defendant\u2019s residence. Such a home visit was a mandatory condition of defendant\u2019s probation under section 5 \u2014 6\u20143 of the Unified Code of Corrections (730 ILCS 5/5 \u2014 6\u20143 (West 2002)). After defendant opened the front door but before Kelly entered defendant\u2019s residence, Kelly noticed cash and \u201cseveral bags of green leafy material that [Kelly] suspected to be cannabis on the table in the living room.\u201d Kelly\u2019s observation during the home visit created a reasonable suspicion that defendant had violated his probation order and criminal activity was occurring. Thus, Kelly\u2019s reasonable suspicion was clearly sufficient to justify the search of defendant\u2019s home, and defense counsel\u2019s filing of a motion to suppress would have been futile. We thus conclude that counsel\u2019s performance in that regard was not deficient.\n2. Counsel\u2019s Failure To Advise Defendant Regarding His Right To Testify\nDefendant next contends that he was denied effective assistance of trial counsel when counsel (1) failed to advise him of his right to testify and (2) ignored his request to testify. We disagree.\nIn People v. Kunze, 193 Ill. App. 3d 708, 726, 550 N.E.2d 284, 296 (1990), this court held that adjudication of a claim of ineffective assistance of counsel is often better made in proceedings on a petition for postconviction relief, where a complete record can be made. However, because defendant\u2019s ineffective-assistance-of-counsel claim does not rely on matters outside the record, we address it on the merits.\nThe decision whether to testify on one\u2019s own behalf belongs to the defendant (People v. Thompkins, 161 Ill. 2d 148, 177, 641 N.E.2d 371, 384 (1994)), although this decision should be made with the advice of counsel (People v. Smith, 176 Ill. 2d 217, 235, 680 N.E.2d 291, 303 (1997)). Advice not to testify is a matter of trial strategy and does not constitute ineffective assistance of counsel unless evidence suggests counsel refused to allow the defendant to testify. People v. DeRossett, 262 Ill. App. 3d 541, 546, 634 N.E.2d 1257, 1261 (1994). Further, when on appeal a defendant contends he was precluded from testifying, the conviction will not be reversed unless the defendant contemporaneously informed the trial court that he wished to testify. Smith, 176 Ill. 2d at 234, 680 N.E.2d at 302.\nAt the hearing on defendant\u2019s motion for a new trial, defendant stated that he wanted to testify that the seized liquid was waste and he could only get 5 to 10 more grams of usable methamphetamine out of the liquid. However, he presented no evidence showing that his trial counsel refused to allow him to so testify. Instead, defendant\u2019s sister, who attended a meeting between defendant and his counsel, testified that counsel did not tell defendant not to testify but instead told him he would not talk about defendant testifying at that time. Defendant testified that counsel \u201cdid not say to testify and he did not say not to testify.\u201d In addition, the record shows that defendant failed to inform the trial court that he wished to testify. Accordingly, we conclude that defendant has failed to show that his counsel was ineffective in failing to call him as a witness.\nIn so concluding, we note that this issue could have been avoided entirely if the trial court had followed the suggestion this court made in People v. Frieberg, 305 Ill. App. 3d 840, 852, 713 N.E.2d 210, 219 (1999). In that case, we noted that \u201cbecause the decision whether to testify at trial lies ultimately with a defendant, issues involving how that decision was made lurk \u2014 like an unexploded bomb \u2014 in every case resulting in a conviction.\u201d Frieberg, 305 Ill. App. 3d at 852, 713 N.E.2d at 219. We thus suggested that to \u201cdefuse\u201d this potentially \u201cexplosive situation,\u201d trial courts\n\u201cin every criminal case [should] take the few seconds needed, after the State has rested its case in chief and before the presentation of the defense case, to admonish the defendant personally that he alone possesses the right to choose whether to testify on his own behalf, and that he should make that decision after consulting with counsel. Trial courts should emphasize to the defendant that whatever trial counsel\u2019s advice on this point may be, counsel cannot force the defendant to testify, nor can counsel prevent the defendant from testifying. For good measure, the court should once again inquire of the defendant before he testifies (or the defense rests without his testimony) to ensure that his decision about this matter was his alone and not coerced.\u201d (Emphasis in original.) Frieberg, 305 Ill. App. 3d at 852, 713 N.E.2d at 219.\nWe reaffirm Frieberg and once again urge trial courts to take a few seconds to properly admonish defendants so as to insulate the record from attacks such as the one this case presents.\nC. Constitutionality of Sections 401(a)(6.5)(D) and 402(a)(6.5)(D)\nDefendant next argues that sections 401(a)(6.5)(D) and 402(a)(6.5)(D) of the Controlled Substances Act violate the proportionality clause of the Illinois Constitution and the due-process clause of the United States and Illinois Constitutions.\nLegislative enactments are afforded a presumption of validity. People v. Hill, 199 Ill. 2d 440, 443, 771 N.E.2d 374, 376 (2002). The party challenging the validity of a statute bears the burden of proving its invalidity. Hill, 199 Ill. 2d at 443, 771 N.E.2d at 376.\nInitially, we note that defendant lacks standing to challenge the validity of section 402(a)(6.5)(D) because he was not sentenced under that provision and therefore is not directly affected by it. See People v. Knight, 133 Ill. App. 3d 248, 256, 478 N.E.2d 1082, 1089-90 (1985) (a defendant who is not sentenced under a specific sentencing provision cannot challenge the constitutional validity of that sentencing provision because he is not directly affected by the statute). Thus, our analysis concerns only section 401(a)(6.5)(D) of the Controlled Substances Act (720 ILCS 570/401(a)(6.5)(D) (West 2000)).\n1. Proportionality Clause\nDefendant contends that his sentence violates the proportionality clause because (1) his conviction and sentence were based on the overall weight of the substance he allegedly manufactured, not on the amount of usable methamphetamine that was contained therein, and (2) under section 401(a)(6.5)(C) of the Controlled Substances Act, a defendant who manufactured more usable methamphetamine than defendant could be subject to a possible sentence of only 12 years in prison (720 ILCS 570/401(a)(6.5)(C) (West 2000)).\nThe proportionality clause of the Illinois Constitution requires \u201c[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.\u201d Ill. Const. 1970, art. I, \u00a7 11. A criminal penalty violates the clause if (1) it is so cruel, degrading, or wholly disproportionate to the offense committed as to shock the moral sense of the community; (2) when similar offenses are compared, the conduct that creates a less-serious threat to the public health and safety is punished more severely; or (3) identical offenses are given different sentences. Hill, 199 Ill. 2d at 452, 771 N.E.2d at 381.\nIn People v. Butler, 304 Ill. App. 3d 750, 709 N.E.2d 1272 (1999), the First District considered the proportionality argument defendant now makes, albeit as to section 401(a)(2)(D) of the Controlled Substances Act (720 ILCS 570/401(a)(2)(D) (West 2000)). In that case, the defendant was carrying cocaine diluted in bottles of wine or champagne and was charged based on the overall weight of the liquid, not the pure cocaine. The First District held that the plain language of the statute was clear: \u201c \u2018any substance containing cocaine\u2019 \u201d unequivocally contemplated the inclusion of more than pure cocaine in the weight calculation. Butler, 304 Ill. App. 3d at 758, 709 N.E.2d at 1278, quoting 720 ILCS 570/401(a)(2)(D) (West 1996). The court looked to the definition of \u201csubstance\u201d and then to the definition of \u201cmixture\u201d included within the definition of \u201csubstance.\u201d The court concluded that the \u201cunambiguous language of this statute evinces the intent of the legislature that it did not intend to exclude the liquid within which the cocaine is diluted.\u201d Butler, 304 Ill. App. 3d at 758, 709 N.E.2d at 1278. \u201cIf the legislature intended to exclude the liquid, it could have specifically articulated such an exception.\u201d Butler, 304 Ill. App. 3d at 759, 709 N.E.2d at 1279. Further, the court held that including the liquid in the weight calculation was not cruel, degrading, or wholly disproportionate to the offense. Butler, 304 Ill. App. 3d at 759, 709 N.E.2d at 1279.\nThe plain language of section 401(a)(6.5)(D) of the Controlled Substances Act is also clear. A defendant is guilty of unlawful manufacture of a controlled substance if the defendant manufactures \u201c900 grams or more of any substance containing methamphetamine or any salt of an optical isomer of methamphetamine, or an analog thereof.\u201d (Emphasis added.) 720 ILCS 570/401(a)(6.5)(D) (West 2000). This phrase unequivocally contemplates the inclusion of more than usable methamphetamine in the weight calculation. See Butler, 304 Ill. App. 3d at 758, 709 N.E.2d at 1278 (\u201c[UJnambiguous language of this statute evinces the intent of the legislature that it did not intend to exclude the liquid within which the cocaine is diluted ***\u201d).\nIn addition, when comparing similar offenses, Illinois courts apply a two-step analysis. First, courts consider whether the purposes of the compared offenses are distinct such that comparative proportionality review is not appropriate. Second, if the offenses are related, courts consider whether the offense with the harsher penalty is more serious than the offense with the less-severe penalty. Hill, 199 Ill. 2d at 454, 771 N.E.2d at 382-83.\nSections 401(a)(6.5)(C) and 401(a)(6.5)(D) are related, the only difference being the weight of the substance containing methamphetamine. While we must determine if the more serious of the two offenses has a less-severe penalty, we are mindful that the legislature is in a better position than this court to identify and remedy the evils confronting our society and is more capable of gauging the seriousness of an offense. Hill, 199 Ill. 2d at 454, 771 N.E.2d at 383. Manufacturing methamphetamine is a dangerous activity that not only produces a dangerous controlled substance, but the process itself involves toxic and highly combustible chemicals often used in populated areas. With this understanding, the legislature reasonably could have determined that producing greater amounts of a substance containing methamphetamine created the greater threat to public health and safety. Accordingly, we defer to the legislature\u2019s decision.\n2. Due-Process Clause\nDefendant also contends that section 401(a)(6.5)(D) of the Controlled Substances Act violates the due-process clauses of both the United States and Illinois Constitutions. Specifically, defendant asserts that because the legislature intended to treat \u201cthe unlawful user or occasional petty distributor\u201d differently than \u201cthe large-scale, unlawful purveyors and traffickers,\u201d section 401(a)(6.5)(D) as applied is not rationally related to a legitimate state interest.\nThe legislature possesses wide discretion to classify and prescribe penalties for criminal offenses. People v. Wright, 194 Ill. 2d 1, 24, 740 N.E.2d 755, 766-67 (2000). A statute violates due process when it is not reasonably related to a public interest to be protected and the means adopted are not a reasonable method of accomplishing that goal. Wright, 194 Ill. 2d at 24, 740 N.E.2d at 767. If any set of facts can be reasonably conceived to justify the statute, it will be upheld. See Wright, 194 Ill. 3d at 24, 740 N.E.2d at 767.\nThe desire to punish petty distributors less severely than traffickers is just one of the legislature\u2019s objectives under the Controlled Substances Act. People v. Behnke, 41 Ill. App. 3d 276, 353 N.E.2d 684 (1976). It was the intent of the legislature that the Controlled Substances Act also:\n\u201c(1) limit access of such substances only to those persons who have demonstrated an appropriate sense of responsibility and have a lawful and legitimate reason to possess them; (2) deter the unlawful and destructive abuse of controlled substances; (3) penalize most heavily the illicit traffickers or profiteers of controlled substances, who propagate and perpetuate the abuse of such substances with reckless disregard for its consumptive consequences upon every element of society; (4) acknowledge the functional and consequential differences between the various types of controlled substances and provide for correspondingly different degrees of control over each of the various types; (5) unify where feasible and codify the efforts of this State to conform with the regulatory schemes of the [Qederal government and other states to establish national coordination of efforts to control the abuse of controlled substances; and (6) provide law[-]enforcement authorities with the necessary resources to make this system efficacious.\u201d 720 ILCS 570/100 (West 2000).\nAs earlier noted, the legislature could have reasonably determined that producing greater amounts of a substance containing methamphetamine created the greater threat to public health and safety. The penalty scheme is thus reasonably related to these legislative objectives and does not violate the due-process clauses of either the United States or Illinois Constitution.\nIII. CONCLUSION\nFor the reasons stated, we affirm the trial court\u2019s judgment.\nAffirmed.\nAPPLETON, J., concurs.", "type": "majority", "author": "JUSTICE STEIGMANN" }, { "text": "JUSTICE COOK,\ndissenting:\nI respectfully dissent.\nI have no difficulty with the cases considering the entire weight of the substance where the pure drug is diluted in order to assist in its distribution. The legislature could rationally conclude that a drug can be distributed to a greater number of people in a mixed state and can therefore be considered more dangerous. People v. Mayberry, 63 Ill. 2d 1, 9, 345 N.E.2d 97, 101 (1976); Chapman v. United States, 500 U.S. 453, 465, 114 L. Ed. 2d 524, 538, 111 S. Ct. 1919, 1927-28 (1991). Even apart from distribution, mixing the drug with another substance may make it more difficult to recognize the drug, thereby hampering law enforcement. People v. Butler, 304 Ill. App. 3d 750, 709 N.E.2d 1272 (1999) (cocaine added to wine and placed in champagne bottles); People v. Kucharski, 346 Ill. App. 3d 655, 667-68, 806 N.E.2d 683, 693 (2004). The statute contains broad language: \u201cany substance containing methamphetamine.\u201d 720 ILCS 570/401(a)(6.5)(D) (West 2000). Despite the broad language of the statute, however, where a controlled substance is unintentionally adulterated, the weight of the adulterating agent must be discounted. Kucharski, 346 Ill. App. 3d at 668, 806 N.E.2d at 694 (applying section 401(c)(ll) (720 ILCS 570/401(c)(ll) (West 2000))). In Kucharski, balloons containing drugs were removed from defendant\u2019s digestive tract'. The drugs were weighed while they were wet and adulterated with defendant\u2019s bodily fluids.\nIncluding the full weight of materials that are being processed to produce methamphetamine presents a different question. Defendant argues that methamphetamine is a powder produced from a liquid and a substantial weight of liquid is required to produce a small amount of methamphetamine. No Illinois cases address this question, but the federal cases are informative. Recognizing that other cases had differed, the Sixth Circuit held that using the entire weight would not be in keeping with the legislative intent, that the defendants were not attempting to increase the amount of methamphetamine they had available to sell but were attempting to distill methamphetamine from the otherwise uningestable byproducts of its manufacture. United States v. Jennings, 945 F.2d 129, 137 (6th Cir. 1991). \u201cIt seems fortuitous, and unwarranted by the statute, to hold the defendants punishable for the entire weight of the mixture when they could have neither produced that amount of methamphetamine nor distributed the mixture containing methamphetamine.\u201d Jennings, 945 F.2d at 136. In 1993, the Federal Sentencing Guidelines were amended to make it clear that \u201cmixture or substance\u201d did not include \u201cwaste water from an illicit laboratory used to manufacture a controlled substance.\u201d 18 U.S.C.S. app. \u00a7 2D1.1 (2004).\nI certainly agree that manufacturing and selling methamphetamine are terrible crimes and that severe penalties should be imposed. The legislature, however, has chosen to establish different degrees of these terrible crimes. It runs counter to the legislative intent to impose the most severe punishment on all manufacturers, even those who could not have manufactured or distributed anything close to 900 grams of a substance containing methamphetamine. Where there is some ambiguity, we are constrained by law to interpret a criminal statute in favor of the accused, under the rule of lenity. People v. Davis, 199 Ill. 2d 130, 140, 766 N.E.2d 641, 647 (2002). If defendant\u2019s argument is wrong, the legislature can always amend the statute. If the prosecution\u2019s argument is wrong, that incentive may not exist.", "type": "dissent", "author": "JUSTICE COOK," } ], "attorneys": [ "Ronald F. Tulin (argued) and Christopher Wetzel, both of Ronald Tulin, Ltd., of Charleston, for appellant.", "C. Steve Ferguson, State\u2019s Attorney, of Charleston (Norbert J. Goetten, Robert J. Biderman, and Thomas R. Ewick (argued), all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN T. McCLEARY, Defendant-Appellant.\nFourth District\nNo. 4\u2014 03\u20140759\nArgued June 23, 2004.\nOpinion filed November 16, 2004.\nCOOK, J., dissenting.\nRonald F. Tulin (argued) and Christopher Wetzel, both of Ronald Tulin, Ltd., of Charleston, for appellant.\nC. Steve Ferguson, State\u2019s Attorney, of Charleston (Norbert J. Goetten, Robert J. Biderman, and Thomas R. Ewick (argued), all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0916-01", "first_page_order": 936, "last_page_order": 948 }