## Illinois Official Reports

Appellate Court

People v. Sims , 2014 IL App (4th) 130568

Appellate Court Caption THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appe llee, v. JERRY WAYNE SIMS, Defendant-Appellant.

District & No. Fourth District

Docket No. 4-13-0568

Filed Rehearing denied May 6, 2014

June 2, 2014

Held

( Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of

the reader. ) Defendant’s convictions for unlawful delivery of a controlled substance within 1,000 feet of a church were upheld where he was not prejudiced by his trial counsel’s alleged ineffecti ve assistance in failing to file a motion to suppress defendant’s st atement to the police, the provision of the Illinois Controlled Substances Act was not unconstitutionally vague as applied to defendant’s case, the State proved the building was “used primarily for religio us worship,” and the trial court did not err in finding that there w as no reason to appoint new counsel for defendant following the Krankel hearing held on remand from an earlier appeal.

Decision Under

Review Appeal from the Circuit Court of McLean County, No. 11-CF-103; the Hon. Robert L. Freitag, Judge, presiding.

Judgment Affirmed.- 2 -

Counsel on
Appeal Michael J. Pelletier, Jacqueline L. Bullard, and Ry an R. Wilson, all of State Appellate Defender’s Office, of Springfield, for appellant.

Jason Chambers, State’s Attorney, of Bloomington (P atrick Delfino, David J. Robinson, and Thomas R. Dodegge, all of St ate’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Panel PRESIDING JUSTICE APPLETON delivered the judgment o f the court, with opinion. Justices Turner and Steigmann concurred in the judg ment and opinion.

OPINION

¶ 1 A jury found defendant, Jerry Wayne Sims, guilty o f all four counts of the indictment:

counts I and III, which charged him with unlawful d elivery of a controlled substance within 1,000 feet of a church (720 ILCS 570/407(b)(2) (Wes t 2010)), and counts II and IV, which charged him with unlawful delivery of a controlled substance (720 ILCS 570/401(d)(i) (West 2010)). Because counts I and III were based on the same drug sales as counts II and IV, the trial court imposed sentences only for the more serious o ffenses, those in counts I and III. The court sentenced defendant to concurrent prison terms of 2 2 years. ¶ 2 Defendant appeals on four grounds. First, he argue s he received ineffective assistance of

counsel. We find no prejudice, however, from the al legedly deficient performance of which defendant complains.
¶ 3 Second, defendant argues that section 407(b)(2) of the Illinois Controlled Substances Act (720 ILCS 570/407(b)(2) (West 2010)) is unconstitut ionally vague as applied to the facts of his case. We disagree. The language of the statute is u nambiguous. Defendant did not have to guess whether the statute applied to the facts of h is case. ¶ 4 Third, defendant argues the State failed to prove that, at the time of the drug sales, the

building at 411 East Mulberry Street in Bloomington was “used primarily for religious worship.” See 720 ILCS 570/407(b)(2) (West 2010). O n the contrary, when the evidence is regarded in the light most favorable to the prosecu tion, a rational trier of fact could find, beyond a reasonable doubt, that 411 East Mulberry S treet was used primarily for religious worship on the dates of the drug sales. ¶ 5 Fourth, defendant argues that, in the Krankel hearing (see People v. Krankel , 102 Ill. 2d 181 (1984)), which the trial court held on remand f rom the previous appeal in this case, the court should have appointed new counsel to represen t defendant in a posttrial hearing on his

claims of ineffective assistance. We find no manife st error in the court’s decision that there- 3 -

was no possible neglect of the case by trial counse l and that the appointment of new counsel

was unnecessary. ¶ 6 Therefore, we affirm the trial court’s judgment.

¶ 7 I. BACKGROUND ¶ 8 A. The Indictment
¶ 9 On February 16, 2011, a grand jury returned an ind ictment against defendant. The

indictment consisted of four counts. ¶ 10 Count I charged that on February 4, 2011, defendan t committed the Class 1 felony of

unlawful delivery of a controlled substance within 1,000 feet of a church (720 ILCS 570/407(b)(2) (West 2010))–a transaction the indict ment calls “Buy One”–in that, while within 1,000 feet of “The Joyful Gospel Church loca ted at 411 East Mulberry Street,” he delivered cocaine, in an amount less than 1 gram, t o confidential source No. 652 of the Bloomington police department. ¶ 11 Count II charged that on February 4, 2011, defenda nt committed the Class 2 felony of

unlawful delivery of a controlled substance (720 IL CS 570/401(d)(i) (West 2010))–the same transaction, “Buy One”–in that he delivered cocaine , in an amount less than 1 gram, to

confidential source No. 652. ¶ 12 Count III charged that on February 8, 2011, defend ant committed the Class 1 felony of

unlawful delivery of a controlled substance within 1,000 feet of a church (720 ILCS 570/407(b)(2) (West 2010))–“Buy Two”–in that, while within 1,000 feet of “The Joyful Gospel Church located at 411 East Mulberry Street,” he delivered cocaine, in an amount less than 1 gram, to confidential source No. 652.
¶ 13 Count IV charged that on February 8, 2011, defenda nt committed the Class 2 felony of

unlawful delivery of a controlled substance (720 IL CS 570/401(d)(i) (West 2010))–“Buy Two”–in that he delivered cocaine, in an amount les s than 1 gram, to confidential source

No. 652. ¶ 14 All four counts of the indictment alleged that, de spite the classification of the offenses,

defendant was subject to “mandatory Class X sentenc ing due to [his] prior record.”

¶ 15 B. The Jury Trial (May 2011)
¶ 16 1. The Testimony of Theresa Hall ¶ 17 a. The First Controlled Purchase ¶ 18 Theresa Hall, otherwise known as Theresa Pichon, t estified she was a confidential

informant for the Bloomington police department and that her “handler” was a Bloomington detective, Todd McClusky. She was paid $200 to $300 for each case. ¶ 19 On February 4, 2011, Hall told McClusky she though t she could buy cocaine from

defendant, who lived in apartment B at 510 East Loc ust Street. That same day, McClusky gave Hall $100 in buy money and drove her to within one block of defendant’s residence. She walked the rest of the way to the apartment buildin g, went upstairs to apartment B, told defendant she had $100, and asked him “if he would give [her] anything.” Defendant answered he could indeed give her something. He made a telep hone call and asked the person on the other end of the line, “ ‘Samuel, are you available [?’] ” Hall then gave defendant the $100, and he left the apartment.- 4 - ¶ 20 About 15 or 20 minutes later, defendant returned t o the apartment and told Hall “his guy

was on the way.” Defendant then left the apartment again after grabbing a Family Video bag. ¶ 21 Another 15 or 20 minutes went by, and defendant re turned to his apartment a second time.

This time he went into the bathroom, and he soon ca me back out and handed Hall some unpackaged cocaine. Because the cocaine was unpacka ged, Hall assumed he had skimmed

some of it off. ¶ 22 Hall left defendant’s apartment, returned to McClu sky’s car, gave him the unpackaged

cocaine, and told him about her encounter with defe ndant.

¶ 23 b. The Second Controlled Purchase ¶ 24 On February 8, 2011, Hall returned to defendant’s apartment to make a second controlled

purchase of cocaine. She gave defendant $150, previ ously provided to her by McClusky. Defendant left the apartment and returned 30 to 40 minutes later with cocaine packaged in a Baggie. Hall then left the apartment and gave McClu sky the cocaine she had bought from defendant. In her opinion, this cocaine was worth n o more than $50, although she had paid $150 for it.

¶ 25 c. The Attempt To Make a Third Controlled Purch ase ¶ 26 Later in the evening on February 8, 2011, Hall ret urned to defendant’s apartment to make a

third controlled purchase. She gave him $95, previo usly provided to her by McClusky, and defendant left the apartment. This time, however, h e did not return. Eventually, McClusky telephoned Hall and told her to leave the apartment . She did so.

¶ 27 d. Hall’s Own Use of Cocaine While Working as a Confidential Informant ¶ 28 On cross-examination, Hall admitted using cocaine while working as a confidential

informant, even though her agreement with the Bloom ington police department required her to abstain from using narcotics.

¶ 29 e. Hall’s Legal Troubles ¶ 30 Hall had been convicted of forgery. A drug problem , crack cocaine, had led to that

misconduct.
¶ 31 After her forgery conviction, alcoholism got her i n further trouble. In 2010, the State

charged her with driving under the influence, and t hat case was still pending. She also had a pending misdemeanor charge for resisting arrest. ¶ 32 McClusky had done nothing to help her with these c harges, and she did not expect any help

from the State.

¶ 33 2. The Testimony of Edward Shumaker
¶ 34 A Bloomington detective, Edward Shumaker, testifie d that on February 8, 2011, he

assisted McClusky with a search of defendant’s apar tment. During the search, Shumaker seized a digital scale from defendant’s bathroom. H e testified that such scales typically were used to weigh narcotics.- 5 - ¶ 35 3. The Testimony of Kevin Raisbeck ¶ 36 A Bloomington detective, Kevin Raisbeck, testified that on February 8, 2011, he assisted

with the investigation of defendant by performing a surveillance. ¶ 37 During the surveillance, another police officer in formed Raisbeck that defendant had left

his apartment and was walking to a nearby gas stati on. Raisbeck saw defendant at the gas station talking on his cell phone. He then saw defe ndant leave the gas station, meet with someone a few blocks away, and walk toward his apar tment. ¶ 38 Later that same day, during the surveillance, Rais beck saw defendant walk to the gas

station and enter a vehicle. Then he saw defendant go to a Laundromat a few blocks away and get into a white Buick. ¶ 39 Soon afterward, defendant was arrested. Nothing of evidentiary value was found on his

person.

¶ 40 4. The Testimony of Brian Brown ¶ 41 A sergeant with the Bloomington police department, Brian Brown, testified that on

February 4, 2011, he was a member of the surveillan ce team investigating defendant. ¶ 42 At 1:55 p.m., Brown saw the confidential informant , Theresa Hall, enter defendant’s

apartment. Then he saw defendant leave his apartmen t and go to a nearby gas station, where he talked on his cell phone.
¶ 43 Brown saw defendant leave the gas station and retu rn to his apartment. When defendant

came out of his apartment again, Brown saw he was c arrying a bag. He saw defendant walk to a Family Video store and go inside. ¶ 44 He then saw defendant leave the Family Video store and get into a white Buick, which

drove around the block. He then saw defendant get o ut of the Buick and return to his apartment. Shortly afterward, Hall left defendant’s apartment and met up with McClusky. ¶ 45 Brown testified he also helped with the surveillan ce on February 8, 2011. He saw Hall

enter defendant’s apartment at 1:48 p.m., and he sa w defendant leave his apartment at 1:55 p.m., walk to the gas station, go inside the gas st ation, and come out talking on his cell phone. Defendant then walked south, and Brown lost sight o f him (but there were other detectives in the area). At 2:25 p.m., Brown saw defendant return to his apartment. A minute later, Hall left the apartment.

¶ 46 5. The Testimony of Steven Brown ¶ 47 A Bloomington detective, Steven Brown, testified h e likewise helped with the surveillance

on February 4, 2011. At 2:20 p.m., he saw defendant walk into a Family Video store. When a white Buick arrived at the store, he saw defendant leave the store and get into the Buick. He videotaped defendant getting into the Buick (the vi deo was played for the jury). Then he saw the Buick leave the Family Video parking lot and dr op defendant off in front of his residence. The Buick was registered to Warren Locket. ¶ 48 Steven Brown also assisted with the surveillance o n February 8, 2011. He testified that at

5:10 p.m. he saw Hall enter defendant’s apartment a nd defendant leave his apartment shortly

thereafter. Defendant then was arrested.- 6 - ¶ 49 6. The Testimony of Todd McClusky ¶ 50 a. The First Controlled Purchase ¶ 51 McClusky testified he had been a police officer fo r 11 years and that he currently was

assigned to the narcotics unit of the Bloomington p olice department, an assignment he had held for 51⁄2 years. Part of his job was to work with conf idential informants, including Hall. In return for compensation, Hall had been working as a confid ential informant for the Bloomington police department since 2007. McClusky had worked w ith her in a number of cases, and he had found her to be very productive, although he suspec ted she used drugs during the three- or four-year period she had been a confidential inform ant. He did not think, however, that she used alcohol or controlled substances during the dr ug purchases at issue in the present case. ¶ 52 On February 4, 2011, Hall told McClusky she believ ed she could purchase cocaine at

defendant’s apartment, at 510 East Locust Street. M cClusky agreed it was worth a try, so he

assembled a team of narcotics detectives. ¶ 53 In preparation for the controlled purchase, McClus ky searched the police vehicle he would

use, and he also searched Hall. He had her remove h er coat. He had her turn out her pockets and remove her shoes and socks. Then he requested her t o turn out her shirt and bra so that any

concealed contraband would fall out. He found no co ntraband on her person. McClusky testified that because all the police officers in h is unit were male, Hall was not strip searched. He explained, however: “Theresa doesn’t usually–the way she dresses, spec ific to her, there is not a whole lot of places to hide anything other than if she we re to hide something, and we check their mouths and whatnot when we search them, but a s a male police officer and working with all males, it’s–the only place that co uld possibl[y] conceal any kind of dope that size would be in some sort of body part a nd so and I will give you that, yes.” In McClusky’s experience, if drugs were concealed i n someone’s body cavity, the drugs would

have an odor. He was aware of no evidence that the cocaine in the two controlled purchases from defendant had been concealed in a body cavity. He had never found any drugs or money on Hall that she had attempted to conceal or steal. If he had, he would have never again used

her as a confidential informant. ¶ 54 After these searches, McClusky gave Hall $100 for the first controlled purchase. Other

detectives performed a surveillance. Hall left the police vehicle at 1:53 p.m. on February 4, 2011, and walked to defendant’s apartment. Accordin g to McClusky, she was in view at all times except when she was inside defendant’s apartm ent. She returned to McClusky at 2:40 p.m. and gave him some unpackaged cocaine. He searc hed her in the same manner as before

and found no other contraband.

¶ 55 b. The Second Controlled Purchase ¶ 56 There was a second controlled purchase on February 8, 2011. McClusky searched his car and Hall, as before. Other detectives performed a s urveillance, as before. ¶ 57 This time, McClusky gave Hall $150 in buy money. A t 1:45 p.m., he dropped her off in the

vicinity of defendant’s apartment. At 2:26 p.m., sh e returned with some crack cocaine.- 7 - ¶ 58 c. The Attempt To Make a Third Controlled Purch ase,

Terminated by Defendant’s Arrest and

the Execution of a Search Warrant ¶ 59 Around 5 p.m. on February 8, 2011, after obtaining a warrant to search defendant’s

apartment, McClusky sent Hall back to the apartment to attempt to make a third controlled purchase of cocaine. After Hall entered the apartme nt, however, and defendant left the apartment, McClusky telephoned Hall and called off the controlled purchase because the police had decided to go ahead and arrest defendant and execute the search warrant.

¶ 60 d. Statements Defendant Made While Under Arrest ¶ 61 The police arrested defendant, and McClusky interv iewed him in the police station. When

McClusky explained to him why he was under arrest, defendant made an unsolicited statement. The prosecutor asked McClusky: “Q. [D]id you tell him what he was charged with?

A. Yes. Q. What did you tell him? A. I told him it was a drug investigation, and it was over–we were speaking over

some deliveries of cocaine. Q. How did he respond to that? A. He was very upset. He actually had cried at one point and stated that he just–he’d do anything to get out of trouble. Q. Now, at that point you hadn’t asked him any que stions, correct? A. No questions at all. Q. Did you go over his Miranda rights with him?
A. Yes, I did.” ¶ 62 Actually, it appears, from the recording of the in terview, that McClusky omitted a Miranda

warning. See Miranda v. Arizona , 384 U.S. 436 (1966). Although McClusky advised defendant of his right to remain silent and his rig ht to an attorney, he forgot to warn defendant that anything he said could be used against him in court. ¶ 63 The recording of the solicited statement was playe d to the jury, or rather, a portion of it

was. In the recording, defendant confessed to McClu sky that he and his girlfriend had a problem with cocaine and that he had been obtaining cocaine for people in order to support his and his girlfriend’s habit. He said that his girlfr iend, however, was not involved in any sales of

cocaine. ¶ 64 After the video camera was turned off, defendant t old McClusky that his supplier, the

owner of the white Buick, was nicknamed Red. McClus ky testified that Red was Warren

Locket.

¶ 65 e. Joyful Gospel Church
¶ 66 McClusky testified he was familiar with the neighb orhood of defendant’s apartment and

that there was a church in the neighborhood. The pr osecutor asked him: “Q. What is one that’s close by?- 8 - A. 411 East Mulberry. At the time it was Joyful Go spel Church. It has since changed names to Living Word Ministries, but it’s a church at the corner of Evans and Mulberry, again 411 East Mulberry. Q. Just so it’s clear, on February 4, 2011 that ch urch was there?

A. Correct. Q. Been there a long time? A. As long as I can remember being a police office r in Bloomington. Q. How long have you been a police officer? A. Ten years in Bloomington, one year in Normal, e leven years. Q. So that church was open back when you started? A. I can’t remember, but as long as I can remember it’s been a church. Q. Certainly was open the day we’re talking about?

A. Correct. Q. And it changed its name, right?

A. That is correct.”
¶ 67 The prosecutor then showed McClusky some photograp hs. McClusky identified People’s

exhibit No. 8 as a photograph of the north side of the church. He testified the photograph was an accurate representation of the way the building looked on February 4, 2011, even though he took the photograph “about a week ago,” that is, ab out a week before the trial. People’s exhibit No. 8 is in the record, and it shows the entrance t o an old brick building. The door is framed by a wooden portico painted white: 2 round columns abo ut 10 feet tall holding up an entablature surmounted by a pediment. The number 411 is tacked to one of the columns. To the right of the columns a normal-sized window is partly visible. It has clear glass panes divided into right triangles. The sill of the window is a thick stone slab, and the window also has a large stone head, painted white, with an ornamental capstone ca rved in relief. This photograph contains no obvious religious symbol or imagery.
¶ 68 The next photograph the prosecutor handed McClusky was People’s exhibit No. 9. McClusky testified: “A. This is the–just a little bit, probably about ten feet to the east. That’s the sign for the Living Words Ministries Church that’s in place to be little bit further off where the

numerics were.
Q. That’s recent? A. Same day, yes, about a week ago. Q. As far as that goes, that used to be the Joyful Gospel Church it says on there?

A. That’s correct.”
¶ 69 People’s exhibit No. 9 likewise is in the record. It shows a monument sign: a freestanding

brick structure surrounding a display window framed in aluminum. Behind the glass of the display window are white plastic letters and number s affixed to a black board. They say “THE

LIVING WORD MINISTRIES” and announce that “WORSHIP” is at 10 a.m. and that “BIBLE STUDY” is at 6:30 p.m. on Wednesdays. They a lso give the name of the pastor. Beyond the monument sign, another side of the brick building can be seen.
¶ 70 McClusky testified that, using a measuring wheel, which had been calibrated for accuracy,

he had measured the distance from the church to def endant’s apartment. The distance was 696- 9 -

feet.

¶ 71 7. The Verdicts ¶ 72 On May 17, 2011, the jury found defendant guilty o f all four counts of the indictment. The

trial court entered judgment on the verdicts.

¶ 73 C. The Presentence Investigation Report ¶ 74 It appears from the presentence investigation repo rt that defendant, born on December 30,

1969, has the following criminal history (we omit t he numerous traffic violations, including several convictions of driving while his driver’s l icense was suspended):

DATE OF CONVICTION OFFENSE April 1988 Burglary

October 1989 Retail theft March 1990 Robbery May 1992 Delivery of a controlled substance January 1995 Resisting a peace officer July 1996 Domestic battery June 1998 Criminal damage to property December 1997 Resisting a peace officer December 2000 Resisting a peace officer September 2001 Criminal trespass to land January 2002 Possession of drug paraphernalia March 2002 Resisting a peace officer July 2002 Criminal trespass to land July 2003 Armed robbery with a firearm

December 2008 Possession of cannabis.

¶ 75 D. The Sentences in This Case
¶ 76 On July 1, 2011, the trial court sentenced defenda nt only for counts I and III, imposing

concurrent prison terms of 22 years for those count s. ¶ 77 The sentencing order says: “Convicted of a class 1 offense but sentenced as a Class X

offender pursuant to 730 ILCS 5/5-5-3(c)(8).” (Emph asis in original.) Actually, as of February 2011, when defendant committed the charged offenses , section 5-5-3(c)(8) of the Unified Code of Corrections (730 ILCS 5/5-5-3(c)(8) (West 2 010)) was blank; the provisions of that section had been moved to section 5-4.5-95(b) of th e Unified Code of Corrections (730 ILCS 5/5-4.5-95(b) (West 2010)).

¶ 78 E. The Striking of the Pro Se Motion for a New Trial
¶ 79 On August 1, 2011, defendant filed a pro se motion for a new trial on the ground of

ineffective assistance. ¶ 80 On August 18, 2011, the trial court struck the pro se motion because the court concluded it

lacked subject-matter jurisdiction to consider the motion.- 10 - ¶ 81 F. The Direct Appeal ¶ 82 Defendant took a direct appeal. One of his argumen ts was that the trial court had erred by

concluding it lacked subject-matter jurisdiction to investigate his pro se posttrial claims of

ineffective assistance. People v. Sims , 2013 IL App (4th) 110915-U, ¶ 3. We agreed with t hat argument, and we remanded the case for a preliminar y inquiry pursuant to Krankel and its

progeny. Id. ¶ 8.

¶ 83 G. The Krankel Inquiry on Remand
¶ 84 On June 7, 2013, upon remand, the trial court held a Krankel hearing. In the hearing, defendant argued that if his trial counsel, Brian M cEldowney, had performed a reasonable investigation, he would have discovered that, contr ary to the indictment and contrary to McClusky’s testimony in the trial, there was no “Jo yful Gospel Church” at 411 East Mulberry Street at the time of the charged offenses. Rather, according to county records, “Joyful Gospel Church” sold the building in 2009. Defendant told t he court:

“THE DEFENDANT: And I told him that the church was sold in 2009. THE COURT: So you told Mr. McEldowney.

THE DEFENDANT: I told him–I didn’t tell him that t he church was sold. I told him that the–the church that they got me under, the Joyful Gospel Church, that church is not there, and if he would have investigated the minister, the minister, John Brown, is right there in the audience. He would verify that. He sold the church in 2009. THE COURT: Okay. All right. As I said, we’re not h ere for a full-blown hearing. We’re just here to see if we are going further toda y, okay?” (The record contains a warranty deed showing that o n November 4, 2009, Joy Full Gospel Community Church sold 411 East Mulberry Street to T he Living Word Ministries. On October 30, 2013, we granted a motion by defendant to suppl ement the record with this warranty deed, although it was not presented as evidence in the tr ial.) ¶ 85 Defendant also alleged ineffective assistance in t hat McEldowney had failed to file a

motion for suppression premised on McClusky’s omiss ion of a Miranda warning, namely, the warning that anything he said could be used against him in court. ¶ 86 McEldowney was present for the Krankel hearing, and the trial court asked him if he had any response to defendant’s allegations of ineffect ive assistance. McEldowney said: “With regard[ ] to the allegation that the church h ad changed hands, that was disclosed to me in discovery in the State’s fifth discovery c ompliance, that the church was formerly known as the Joyful Gospel Church and was doing business at the time as the Living Word Ministries. ***

* * * Now, [defendant] did not indicate to me that the c hurch had been sold. This is news that I am learning today. And if he had, I may have –I would have had my investigator conduct further investigations to determine whether the church was still functioning. But I believe that it’s an issue, regardless of the factual determination, that would have

had no material difference in the outcome of his se ntencing.” ¶ 87 The trial court asked defendant if he had anything further to add. Again defendant invited

the court to “ask [John Brown] on the stand right n ow [whether] the church was sold in 2009.” The court did not question Brown.- 11 - ¶ 88 At the conclusion of the Krankel hearing, the trial court explained to defendant th at, in order to prove a claim of ineffective assistance of counsel, defendant had to prove not only deficient performance on McEldowney’s part but also resulting prejudice. The court accepted as true everything defendant said about the sale of the church in 2009. Even so, the court

reasoned that the outcome would have been the same because “there was evidence that it was still operating as a church under a different name. ” Therefore, the court found no possible merit

in defendant’s claims of ineffective assistance and saw no need to appoint new counsel to pursue the pro se claims of ineffective assistance.
¶ 89 This appeal followed.

¶ 90 II. ANALYSIS ¶ 91 A. Trial Counsel’s Failure To File a Motion for Suppression ¶ 92 Defendant argues he was in custody when, in respon se to McClusky’s questions, he

admitted selling cocaine to support his and his wif e’s cocaine habit. Defendant further argues that because McClusky failed to warn him, before th e custodial interrogation, that anything he said could be used against him in court, McEldowney should have filed a motion to suppress the solicited custodial statement, a motion that th e trial court surely would have granted (see

Miranda , 384 U.S. at 479). Defendant argues that McEldowne y’s performance was

substandard in that he failed to file a motion for suppression. The State does not dispute defendant’s argument thus far. ¶ 93 Nevertheless, the State disputes the other element of ineffective assistance: prejudice. To

prove ineffective assistance, a defendant must prov e not only substandard performance but also resulting prejudice. People v. Callahan , 334 Ill. App. 3d 636, 641 (2002) (citing Strickland v. Washington , 466 U.S. 668, 687 (1984), and People v. Albanese , 104 Ill. 2d 504, 526-27 (1984)). If the substandard performance was a failure to file a motion for the suppression of certain evidence, the defendant suff ered prejudice only if there is a “reasonable probability” not only that the trial court would ha ve granted the motion but also that suppressing the evidence in question ultimately wou ld have resulted in a better outcome for the

defendant in the trial. In re Marquita M. , 2012 IL App (4th) 110011, ¶ 14. “A reasonable probability is a probability sufficient to undermin e confidence in the outcome.” Strickland

, 466 U.S. at 694. ¶ 94 Defendant argues that when his custodial statement is subtracted from the evidence in the trial, there is a reasonable probability of an acqu ittal because the “the State’s primary evidence against [him]” would have been Hall’s testimony. No police officer actually saw Hall buy

cocaine from defendant. There was no audio or video of the controlled purchases. None of the prerecorded currency was found on defendant’s perso n. To believe that defendant sold cocaine to Hall, one would have to believe Hall’s testimony –and Hall, defendant argues, was an unreliable witness with powerful incentives to lie. Not only was she a convicted felon, but she stood to make money from every controlled purchase of narcotics, and she admitted using narcotics while working as a confidential informant . To continue using narcotics and at the same time keep making money as a confidential infor mant so as to fund her habit, she had to protect her actual source of supply while framing o thers. Also, Hall had criminal charges pending against her, and success as a confidential informant would have only made her look better in her own sentencing hearing. Defendant sug gests that the quantities of cocaine she purportedly bought from him were so “minute”–0.4 gr ams the first time and 0.6 grams the- 12 -

second time–that Hall easily could have concealed t hem “in a fold of her bra or underwear.” And as a male, McClusky necessarily was inhibited i n his search of Hall’s person. ¶ 95 Defendant acknowledges that when McClusky explaine d to him why he had been

arrested–because of a drug investigation–defendant initially made an unsolicited statement that he would do anything to get out of trouble. Defenda nt agrees that Miranda would not bar this

unsolicited statement. See People v. Peo , 391 Ill. App. 3d 815, 819 (2009). Even so, he ins ists that the unsolicited statement is ambiguous because , at the time, he could have “believed that he had been arrested for other drug activity.”
¶ 96 The State responds that, even if, when defendant t earfully said he would do anything to get

out of trouble, he had in mind some “other drug act ivity,” this unsolicited statement

nevertheless confirmed that he was involved in ille gal drugs. According to the State, defendant’s subsequent solicited, inadmissible stat ement merely expressed what was obvious

from all the other evidence: that he was a middlema n in the cocaine trade and that he acted as a

middleman in sales of cocaine to Hall.
¶ 97 The State admits it is possible to come up with ot her explanations–that Hall concealed the

cocaine on her person and McClusky failed to find i t in the prepurchase searches or that Hall went to defendant’s apartment building ahead of tim e and concealed the cocaine in the hallway–but the State argues these explanations are improbable and unreasonable, considering that, during both of the controlled purchases, memb ers of the surveillance team observed defendant behaving in ways characteristic of a midd leman. On both occasions, February 4 and 8, 2011, they observed him leave his apartment shor tly after Hall’s arrival, speak on his cell phone, meet with someone, and then return to his ap artment, where Hall was waiting. Hall then left his apartment shortly after his return, met up again with McClusky, and gave him the

cocaine. ¶ 98 We agree with the State that the only function def endant’s solicited statement served in the trial was to express what was obvious from the othe r evidence. Subtracting the solicited statement creates no reasonable probability of an a cquittal (see Marquita M. , 2012 IL App (4th) 110011, ¶ 14), no “probability sufficient to undermine confidence in” the guilty verdicts (see Strickland , 466 U.S. at 694). Therefore, the defense suffered no prejudice from the failure to file a motion for suppression. See Marquita M. , 2012 IL App (4th) 110011, ¶ 14.

¶ 99 B. The Vagueness Challenge to Section 407(b)(2)
¶ 100 Defendant argues that section 407(b)(2) of the Ill inois Controlled Substances Act (720

ILCS 570/407(b)(2) (West 2010)) is unconstitutional ly vague as applied to the facts of his case. The first step is to make sure we have to decide the constitutionality of the statute. “I f the case may be decided on other grounds, the constitut ionality of a statute should not be

addressed.” In re Barbara H. , 183 Ill. 2d 482, 492 (1998). Because we disagree with defendant’s other arguments, for the reasons we exp lain in this analysis, it is necessary for us to consider his argument that section 407(b)(2) is unc onstitutionally vague as applied to the facts of this case. For purposes of this issue, our stand ard of review is de novo

. People v. Johnson

, 335 Ill. App. 3d 805, 807 (2002). ¶ 101 According to defendant, section 407(b)(2) is not “ sufficiently definite to give [him] notice

that the building located at 411 E[ast] Mulberry [S treet] in Bloomington, Illinois, was a ‘place used primarily for religious worship,’ at the time of the charged acts” (in this context, he is quoting the statute, which lists a “church” as one of the examples of a “building, structure, or- 13 -

place used primarily for religious worship” (720 IL CS 570/407(b)(2) (West 2010))). He compares 411 East Mulberry Street to the boa constr ictor in People v. Fabing , 143 Ill. 2d 48 (1991). ¶ 102 In Fabing , the State charged the defendant with violating a provision of the Illinois

Dangerous Animals Act (Ill. Rev. Stat. 1987, ch. 8, ¶ 240) in that he possessed four “ ‘life-threatening reptile[s],’ ” to quote a term from the statute. (Emphasis omitted.) Fabing

, 143 Ill. 2d at 52-53. He possessed a 4-foot alligat or; a 7-foot boa constrictor; and two Burmese pythons, each of which was 15 to 20 feet long. Id. at 52. The supreme court concluded it was clear enough that the alligator ( id . at 58-59) and the pythons ( id . at 57-58) were life-threatening. ¶ 103 The expert testimony, however, was conflicting as to whether the boa constrictor was

life-threatening. Id. at 58. “[A] person of common intelligence would [h ave been] required to guess as to whether the boa constrictor was life-th reatening,” and therefore the statute was “unconstitutionally vague as applied to [the] defen dant’s possession of the boa constrictor.” Id. A statute violates due process if the statute is “s o vague that men of common intelligence *** necessarily [have to] guess at its meaning or appli cation.” (Internal quotation marks omitted.)

Id. at 53. ¶ 104 In the present case, defendant was not “required” to guess whether 411 East Mulberry

Street was being used primarily as a place for wors hip. Id. at 58. He did not “necessarily” have
to guess. Id. at 53. He could have performed an investigation be fore selling drugs in the area. By “using an objective method,” such as observation , he could have ascertained whether the building was being used primarily as a church. State v. Davis , 970 P.2d 336, 338-39 (Wash. Ct. App. 1999). He could have watched the building on S unday morning to see whether any parishioners went in. See Whatley v. State , 928 N.E.2d 202, 206 (Ind. 2010). He could have consulted the pastor. See id. He demonstrated his ability to reach the pastor by arranging for

him to attend the Krankel hearing. Because there were ways to objectively de termine ahead of time whether 411 East Mulberry Street was a place u sed primarily for religious worship, we disagree that section 407(b)(2) is unconstitutional ly vague as applied to the facts of this case.

¶ 105 C. The Primary Use of 411 East Mulberry Street ¶ 106 To prove the unlawful delivery of a controlled sub stance within 1,000 feet of a church, the

State must prove, beyond a reasonable doubt, that t he building in question was “used primarily for religious worship” on the date of the offense. 720 ILCS 570/407(b)(2) (West 2010). One might think that because several additional years o f imprisonment could be riding on that issue (720 ILCS 570/407(b)(2) (West 2010); 730 ILCS 5/5-4 .5-30(a), 5-4.5-35(a) (West 2010)), the State would “elicit[ ] testimony from someone affil iated with the church,” e.g. , a pastor or parishioner ( People v. Ortiz , 2012 IL App (2d) 101261, ¶ 11). For some reason, however, that does not always happen, and consequently we end up with case law pondering the question of how thin and conclusory a police officer’s testimon y can be and still qualify as proof, beyond a reasonable doubt, that the building in question was used primarily as a place for religious worship (or as a school, park, or the like). ¶ 107 On the one hand, People v. Foster , 354 Ill. App. 3d 564, 568 (2004), holds that

nomenclature is enough. According to Foster , all a police officer has to do is refer to the building by a proper name with the term “church” in it–“New Hope Church,” for example–and- 14 -

that proves, beyond a reasonable doubt, that the bu ilding was used primarily for religious worship on the date of the offense. Id. ¶ 108 On the other hand, cases subsequent to Foster , most notably People v. Cadena , 2013 IL

App (2d) 120285, ¶ 17, and People v. Boykin , 2013 IL App (1st) 112696, ¶ 15, hold that uttering a proper name is not enough: the State mus t present evidence showing how the police officer acquired personal knowledge of how the buil ding was used on the date of the offense. ¶ 109 Let us take a closer look at those three cases: Foster

, Cadena , and Boykin

.

¶ 110 1. Foster ¶ 111 In Foster , the trial court found the defendant guilty, in a bench trial, of unlawful delivery of

a controlled substance within 1,000 feet of a churc h (720 ILCS 570/407(b)(2) (West 2002)).

Foster , 354 Ill. App. 3d at 565. ¶ 112 The defendant appealed, and one of his contentions on appeal was that the State had failed

to present any evidence “that the New Hope Church w as a place used primarily for religious worship.” Id.
¶ 113 In the bench trial, a police officer, Scott Korhon en, testified he had seen the defendant

selling cocaine at 4310 West Crystal Street in Chic ago. Id. Also, the parties stipulated that if Tom Nyhan were called as a witness, he would testif y he had “measured the distance from 4310 West Crystal Street to the New Hope Church loc ated at 4255 Division Street” and that the

distance “measured 580 feet.” Id. at 566. ¶ 114 The defendant argued on appeal that the State had “failed to show New Hope Church was a

place used primarily for religious worship.” Id. at 567. The First District responded: “In viewing the evidence in the light most favorable to the prosecution, we find a rational trier of fact could have inferred New Hope Church was a chur ch used primarily for religious worship

based on its name.” Id. at 568. Thus, according to Foster , nomenclature alone is enough to prove, beyond a reasonable doubt, that a building i s a “ ‘place used primarily for religious worship.’ ” Id. at 567 (quoting 720 ILCS 570/407(b)(2) (West 2002) ).

¶ 115 2. Cadena
¶ 116 In Cadena , a jury found the defendant guilty of unlawful del ivery of a controlled substance

within 1,000 feet of a church (720 ILCS 570/407(b)( 1) (West 2008)). Cadena , 2013 IL App (2d) 120285, ¶ 3. ¶ 117 On appeal, the defendant conceded he had violated section 401(c)(2) of the Illinois

Controlled Substances Act (720 ILCS 570/401(c)(2) ( West 2008)) by delivering a controlled substance, but he challenged the jury’s finding tha t he had delivered the controlled substance within 1,000 feet of a church. Cadena , 2013 IL App (2d) 120285, ¶ 4. Specifically, he contended the State had failed to “present sufficie nt evidence to allow the finder of fact to conclude that the Evangelical Covenant Church was a n active church on the dates of the offenses,” i.e. , that it was “ ‘used primarily for religious worsh ip’ on the dates of the offenses.”

Id. ¶ 10 (quoting 720 ILCS 570/407(b)(1) (West 2008)). ¶ 118 The Second District recounted the evidence in the jury trial. A police officer, David

Dammon, testified that the drug transactions occurr ed in a McDonald’s parking lot in Belvidere and that “[t]he Evangelical Covenant Chur ch was located northeast of the- 15 -

McDonald’s,” 860 feet at the most, according to a l aser measuring device Dammon had used.

Cadena , 2013 IL App (2d) 120285, ¶ 5. ¶ 119 Another witness was Leon Barry, who testified he h ad been a Belvidere police officer for

27 years. Id. ¶ 6. The prosecutor asked Barry:
“ ‘Q. [Prosecutor:] Now, in relation to the McDona ld’s located at 11–sorry–1313 North State Street in Belvidere, Boone County, Illi nois, is it located near the Evangelical Covenant Church locate[d] at 220 East H arrison Street in Belvidere, Boone County, Illinois[?] A. [Officer Barry:] Yes. Q. And in relation to that particular church, is t hat a church that is an active church?

A. Yes.’ ” Id. ¶ 120 For two reasons, the Second District held that thi s testimony by Barry was insufficient to

prove that the Evangelical Covenant Church was bein g used primarily for religious worship on the dates of the offenses. First, the leading quest ion to Barry was couched in the present tense: “ ‘[I]s that a church that is an active church?’ ” Id. ¶ 16. That the church was active at the time of the trial did not prove it was active on the dat es of the offenses. Id. Second, “[e]ven if Officer Barry’s response could be taken to mean that the ch urch was also active on the dates of the offenses two years before the trial, there was no e vidence of how Officer Barry knew this information.” (Emphasis in original.) Id. ¶ 17. The Second District interpreted People v. Morgan , 301 Ill. App. 3d 1026 (1998), as “requir[ing] mor e than the bare facts that the witness [was] a police officer with a certain number of yea rs of service; it require[d] the demonstration and explanation of how the witness [was] familiar w ith the enhancing location (park, school, church, or the like)” ( Cadena , 2013 IL App (2d) 120285, ¶ 17): for example, the police officer had “regularly patrolled the neighborhood” ( id. ¶ 18). ¶ 121 The Second District noted that, even though Foster had relied on Morgan “for the proposition that the nomenclature alone was suffici ent to establish that the church was what its name purported it to be,” nomenclature actually was not enough under Morgan : the police had to demonstrate and explain how he was personally fa miliar with the building’s use on the dates

of the offenses. Id. ¶ 17. ¶ 122 The State conceded, in Cadena , that “nomenclature alone [was] insufficient to pr ove that

the *** church[ ] [was] being used as its name impl ie[d].” Id. ¶ 15. Before even acknowledging the State’s concession, however, the Second District held that “testimony identifying the building as the ‘Evangelical Covena nt Church’ was insufficient to prove that it was operating as a church on the dates of the offen ses.” Id. ¶ 13. Nomenclature was “not enough to prove beyond a reasonable doubt that the building in question was being used as its name implied, that is, as a church, on the dates of the offenses.” Id.

¶ 123 3. Boykin ¶ 124 In Boykin , the trial court convicted the defendant, in a ben ch trial, of unlawful delivery of a

controlled substance within 1,000 feet of a school (720 ILCS 570/407(b)(2) (West 2008)). Boykin , 2013 IL App (1st) 112696, ¶ 1. ¶ 125 On appeal, the defendant did not dispute he was gu ilty of unlawfully delivering a

controlled substance. Id. He contended, however, that the State had failed t o prove, beyond a reasonable doubt, that he delivered the controlled substance within 1,000 feet of a school. Id.- 16 - ¶ 126 Two police officers testified in the bench trial. Jennifer Przybylo testified she was working

as an undercover police officer on December 11, 200 8, and that while she was sitting in an
unmarked car at the intersection of 79th Street and Jeffrey Boulevard in Chicago, the defendant

sold her some cocaine. Id. ¶ 2. She testified there was a school on the north east corner of that intersection, about 100 feet from her vehicle, and that “there was a sign posted[ ] and the school’s name was ‘Our Lady of Peace.’ ” Id.
¶ 127 Another police officer, Derrick Miller, testified he was performing surveillance at the time

of the offense and that he was parked on Jeffrey Bo ulevard, just north of 79th Street. Id. ¶ 3. “As he observed the offense, he was ‘sitting right next to a school, a Catholic school.’ ” Id. He answered yes when the prosecutor asked him “if that school was ‘Our Lady of Peace school,’ ” and he testified the school “was located approximat ely 100 feet from Officer Przybylo’s

vehicle.” Id. ¶ 128 Relying primarily on Cadena , the First District “[found] the evidence insuffic ient to prove

beyond a reasonable doubt that ‘Our Lady of Peace’ was a school on the date of the offense.”

Id. ¶ 16. The First District reasoned: “We find this case analogous to Cadena . In the trial court, Officers Przybylo and Miller testified that the drug transaction took pla ce within 1,000 feet of a ‘school,’ but there was no evidence presented to show how those o fficers had personal knowledge of the operation of that building. The officers did no t testify that they lived in the area or that they regularly patrolled the neighborhood, so as to allow an inference that they had personal knowledge as to whether the school was in operation on the date of the

offense.” Id. ¶ 15.

¶ 129 4. The Parties’ Arguments for and Against

the Sufficiency of Nomenclature ¶ 130 The State argues that Foster is correct in holding that nomenclature alone suff ices. Cadena is distinguishable, according to the State, because in Cadena the State conceded that nomenclature alone was insufficient to prove that a building was used primarily as a place for religious worship ( Cadena , 2013 IL App (2d) 120285, ¶ 15), whereas, in the p resent case, the State makes no such concession. Instead, on the aut hority of Foster , 354 Ill. App. 3d at 568, the State argues that all a police officer has to do is refer to the building by using a proper name containing the word “church,” and such nomenclature is proof, beyond a reasonable doubt, that the building was used primarily as a place for reli gious worship on the date of the offense. ¶ 131 In the State’s view, the deferential standard of r eview applicable to issues of fact requires a

reviewing court to accept nomenclature as sufficien t proof of an enhancing locality. If, from the evidence in the record, an inference could reas onably be drawn in the prosecution’s favor, the reviewing court should draw that inference. People v. Price , 2011 IL App (4th) 100311, ¶ 16. Whenever the proper name of a building includ es the word “church,” one could reasonably infer that the building is used primaril y as a place for religious worship, the State argues. See Foster , 354 Ill. App. 3d at 568. ¶ 132 Defendant responds that, even though McClusky test ified the building at 411 East

Mulberry Street had been a church for as long as he could remember, he did not explain how he knew the building was a church on the dates of the offenses–and Cadena requires such an- 17 -

explanation ( Cadena , 2013 IL App (2d) 120285, ¶ 17). Defendant also po ints out that, under

Cadena , nomenclature alone does not suffice to prove an e nhancing locality. See id. ¶ 13. ¶ 133 Because the State “concede[d],” however, in Cadena , that “nomenclature alone [was]

insufficient to prove that the ‘enhancing locality, ’ *** a church, [was] being used as its name implie[d],” we do not consider Cadena to be reliable authority that nomenclature is

insufficient. Id. ¶ 15. Consequently, we decline to follow the decis ion of the Second District in

Cadena , and we likewise decline to follow the decision of the First District in Boykin , which

relied on Cadena . Instead, we follow Foster , which, “viewing the evidence in the light most favorable to the prosecution, [found that] a ration al trier of fact could have inferred New Hope Church was a church used primarily for religious wo rship based on its name.” Foster , 354 Ill. App. 3d at 568. ¶ 134 McClusky testified that he had been a police offic er in Bloomington for 10 years and that

for the past 51⁄2 years he had been assigned to the n arcotics unit. According to him, 411 East Mulberry Street had been a church for “as long as [ he could] remember,” and “[a]t the time”–by which he evidently meant “at the time of t he drug offenses”–“it was Joyful Gospel Church,” although it had “changed its name” since t hen. He answered yes to the prosecutor’s question of whether the church was “open the day [h e and the prosecutor were] talking about,” February 4, 2011. ¶ 135 Defendant observes that, contrary to McClusky’s te stimony, 411 East Mulberry Street

probably was not called “Joyful Gospel Church” in F ebruary 2011, considering that, according to the recorded warranty deed, Joy Full Gospel Comm unity Church sold the property to the Living Word Ministries in November 2009. Our task, though, is to assess the sufficiency of the evidence presented in the trial ( People v. Courtney , 288 Ill. App. 3d 1025, 1036 (1997); People

v. Summers , 202 Ill. App. 3d 1, 9 (1990)), and even though co urts may take judicial notice of public records ( Lubershane v. Village of Glencoe , 63 Ill. App. 3d 874, 878 n.1 (1978)), judicial notice is incapable of transforming the warranty de ed into evidence presented in the trial. ¶ 136 Defendant contends that the evidence presented in the trial fails to prove, beyond a

reasonable doubt, that 411 East Mulberry Street was used primarily as a church, considering that McClusky never disclosed the basis of his asse rtion that the building was in use as “Joyful Gospel Church” on the dates of the drug offenses: i n other words, he never explained how he knew that assertion to be true. Obviously, any obje ction premised on the lack of a foundation is procedurally forfeited because defense counsel made no such objection at trial. See People v.

Enoch , 122 Ill. 2d 176, 186 (1988). Even so, the lack of a foundational objection did not free the State from its burden of proving, beyond a reas onable doubt, that, on the dates of the drug offenses, 411 East Mulberry Street was used primari ly for religious worship. Testimony can be so conclusory, so weak in its foundation, that no r ational trier of fact would regard it as proof beyond a reasonable doubt. People v. Cowan , 49 Ill. App. 3d 367, 369 (1977) (although, in response to a question by the prosecutor on direct examination, an investigator stated that Spiegel Warehouse owned a shirt that the defendant allegedly stole, “this [was] merely a conclusory statement” and not proof, beyond a reaso nable doubt, that the shirt belonged to

someone other than the defendant–an essential eleme nt of theft). If, in a burglary trial for instance, the only evidence the prosecutor presente d was testimony by a police officer that

“Bart Lawbreaker broke into 123 Elm Street and stol e jewelry,” the testimony would be objectionable because it lacked a foundation. The b asis of the police officer’s reputed knowledge would be unexplained; it would be unclear how he knew what he claimed to know.- 18 -

Defense counsel, however, would not necessarily wan t to make a foundational objection, which would educate the prosecutor and invite him o r her to remedy the fatal deficiency. ¶ 137 Whether the omission of a foundation, without any objection, is fatal to the State’s case

depends on the standard of review that applies to a ll challenges to the sufficiency of the evidence. “In reviewing the sufficiency of the evid ence to sustain a verdict on appeal, the relevant inquiry is ‘whether, after viewing the evi dence in the light most favorable to the prosecution, any rational trier of fact could have found the essent ial elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original .) People v. Cooper , 194 Ill. 2d 419, 430-31 (2000) (quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979)). The lack of a foundational objection means the testimony, for wha tever it is worth, becomes part of the evidence: it is “given its natural probative effect .” People v. Collins , 351 Ill. App. 3d 175, 180 (2004). So, the question is whether McClusky’s test imony, lacking a foundation, could persuade any rational trier of fact, beyond a reasonable doubt, that on February 4 and 8, 2011, the building at 411 East Mulberry Street was used p rimarily as a place for religious worship.

See Cooper , 194 Ill. 2d at 430-31. In answering that question , we should draw any inference in the prosecution’s favor if it would be reasonably d efensible to draw that inference from the evidence presented in the trial. People v. Cunningham , 212 Ill. 2d 274, 280 (2004). ¶ 138 The line between a reasonable inference and specul ation can be difficult to locate, but it

seems reasonable to infer that, in McClusky’s parti cular line of work, one would become familiar with Bloomington, such that one could say whether a given church was active. Bloomington is not so large that such knowledge wou ld be unattainable or implausible. McClusky’s assignment for the past 51⁄2 years had bee n citywide drug interdiction. Because he worked with confidential sources, he evidently did not spend all his time behind a desk. Surely, being in the narcotics unit meant spending a lot of time on the streets, doing controlled purchases and surveillance and keeping an eye on ne ighborhoods. That is the only way one could hope to catch a significant number of drug de alers. How or whether buildings are used would seem to be of particular interest to a police officer on the lookout for crack houses and methamphetamine laboratories. Therefore, when we lo ok at the evidence in the light most favorable to the prosecution, a rational trier of f act could have believed McClusky’s testimony that he was familiar with the neighborhood of 411 E ast Mulberry Street and that the building at

that address was in use as a church on the dates of the drug offenses.

¶ 139 D. Defense Counsel’s Failure To Investigate

the Ownership of 411 East Mulberry Street ¶ 140 Defendant argues that, in the Krankel hearing, he showed possible neglect of the case by

McEldowney and that the trial court therefore shoul d have appointed new counsel to represent him in posttrial proceedings. ¶ 141 As defendant acknowledges, Krankel and its progeny do not require the automatic appointment of new counsel whenever a defendant mak es a claim of ineffective assistance. People v. Moore , 207 Ill. 2d 68, 77 (2003). Instead, the court sho uld “first examine the factual basis of the defendant’s claim,” and if the court “ determines that the claim lacks merit or pertains only to matters of trial strategy, then th e court need not appoint new counsel and may deny the pro se motion.” Id. at 77-78. If, on the other hand, “the allegations show possible neglect of the case, new counsel should be appointe d.” Id. at 78.- 19 - ¶ 142 Because the trial court made a decision on the mer its of defendant’s claim of ineffective

assistance of counsel, we will review the decision for manifest error. See People v. Tolefree

, 2011 IL App (1st) 100689, ¶ 25. “Manifest error” is error that is clear and indisputable. Id.
¶ 143 We are unable to say it is clear and indisputable that McEldowney should have presented

the warranty deed as evidence in the trial. True, t he warranty deed would have proved McClusky was wrong in his testimony that the buildi ng at 411 East Mulberry Street was “Joyful Gospel Church” on the dates of the drug off enses. But one must consider the price the defense would have paid to prove that McClusky was wrong about the name. The warranty deed also would have proved that, on the dates of t he drug offenses, a religious organization, The Living Word Ministries, owned the building–a re ligious organization that, according to a photograph of the monument sign taken a week before the trial, held a worship service on Sundays and Bible study on Wednesdays. Arguably, th e warranty deed would have hurt the defense more than helped it.

¶ 144 III. CONCLUSION ¶ 145 For the foregoing reasons, we affirm the trial cou rt’s judgment. We award the State $50 in

costs against defendant.

¶ 146 Affirmed.