- 1 -

2020 IL App (4th) 180015-U

NO. 4-18-0015

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

LARRY MUMPHREY,

Defendant-Appellant.

)

)

)

)

)

)

)

)

Appeal from

Circuit Court of

Champaign County

No. 16CF1490

Honorable

Roger B. Webber, 

Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court.

Justices Turner and Harris concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed in part and remanded in part, holding (1) defendant 

suffered no prejudice when the State failed to disclose a police detective as an 

expert witness, (2) defendant forfeited his argument that the trial court improperly 

considered in aggravation at sentencing, factors inherent in or that constituted an 

element of his offenses, and (3) remand is necessary to allow the trial court to 

address defendant’s claim regarding the street value fine. 

¶ 2 The State charged defendant, Larry Mumphrey, with being an armed habitual 

criminal (counts I-IV) (720 ILCS 5/24-1.7(a) (West 2018)), unlawful possession with intent to 

deliver a controlled substance (count V) (720 ILCS 570/401(a)(2)(B) (West 2018)), and 

manufacture or delivery of a controlled substance (count VI) (720 ILCS 570/401(a)(2)(A) (West 

2018)). During a bench trial, the State tendered Detective Justin Bouse as an expert regarding 

narcotics sales despite failing to disclose Detective Bouse as an expert witness. When defense 

NOTICE

This order was filed under Supreme 

Court Rule 23 and may not be cited 

as precedent by any party except in 

the limited circumstances allowed 

under Rule 23(e)(1). 

FILED

July 2, 2020

Carla Bender

4th District Appellate

Court, IL
- 2 -

counsel objected, the trial court overruled the objection and permitted the witness to testify as an 

expert based on his training and experience. 

¶ 3 After hearing the evidence, the trial court found defendant guilty on all counts. 

However, prior to imposing sentence, the court vacated the judgment on count VI. Ultimately, 

the court imposed concurrent 20-year sentences to the Department of Corrections, a period of 

mandatory supervised release, and a street value fine. Following sentencing, defendant filed a 

motion to reconsider sentence, which the court denied. This appeal followed. 

¶ 4 Defendant appeals, arguing the trial court (1) erred in permitting Detective Bouse 

to testify as an expert where the State failed to disclose Detective Bouse as an expert witness, 

(2) improperly considered elements inherent in or an element of his offenses as aggravating 

factors, and (3) imposed a street value fine without an evidentiary basis to support the fine 

imposed. For the following reasons, we affirm the trial court’s judgment with the exception of 

the street value fine issue which we decline to consider. Instead, we remand to allow the trial 

court to address the street value fine. 

¶ 5 I. BACKGROUND

¶ 6 Defendant rented storage units N and O from William Schlueter and his wife in 

November 2015. In October 2016, Schlueter watched defendant enter one of the units around 

3:30 a.m. and leave minutes later. Shortly thereafter, Schlueter entered the storage units, found 

four guns in unit N, and contacted the police. Law enforcement obtained a search warrant for 

unit N. A few days later, officers arrested defendant and found him in possession of cocaine. 

After the arrest, officers obtained search warrants for unit O—where officers found 61.7 grams 

of a substance which tested positive for cocaine—and defendant’s residence—where officers 
- 3 -

found two digital scales, two bags of white powder, $1000 in cash, and the lease for storage units

N and O. 

¶ 7 The State charged defendant with being an armed habitual criminal (counts I-IV) 

(720 ILCS 5/24-1.7(a) (West 2018)), unlawful possession with intent to deliver a controlled 

substance (count V) (720 ILCS 570/401(a)(2)(B) (West 2018)), and manufacture or delivery of a 

controlled substance (count VI) (720 ILCS 570/401(a)(2)(A) (West 2018)). 

¶ 8 A. Trial Evidence

¶ 9 After opening statements, the parties stipulated to defendant’s 2005 aggravated 

battery with a firearm conviction and his 2001 unlawful possession of a controlled substance

conviction. 

¶ 10 1. Testimony of William Schlueter

¶ 11 William Schlueter testified he and his wife owned the storage unit warehouse at 

1130 North Century Boulevard in Rantoul. On November 12, 2015, his wife signed the lease 

agreement with defendant for units N and O. Schlueter testified that in late October 2016, around 

3:30 a.m., he watched defendant enter one of the storage units. Schlueter recalled seeing 

defendant enter and leave the units at similar times in the past. This time, after defendant left, 

Schlueter entered the units, found guns in unit N, and contacted the police. 

¶ 12 2. Testimony of Detective Timothy Rivest

¶ 13 Detective Timothy Rivest testified he obtained a search warrant for unit N based 

on information Schlueter provided and found in unit N, four firearms and ammunition for the

weapons. Detective Rivest testified he dealt with firearms, trained in firearms, and carried them 

every day.
- 4 -

¶ 14 On November 2, 2016, officers determined defendant lived at 1038 Ruth Crane 

Drive in Rantoul. They followed defendant from his home to the previously mentioned storage 

units, and back to defendant’s home. After a struggle with defendant in his driveway, officers 

arrested defendant. Immediately following the struggle, arresting officers found, in the same 

driveway, a bag containing a white powdery substance which later tested positive for cocaine. 

Officers interviewed defendant and obtained search warrants for his residence and storage unit 

O. 

¶ 15 3. Testimony of Detective Justin Bouse

¶ 16 Detective Justin Bouse testified that on November 2, 2016, he saw defendant

leaving the house at 1038 Ruth Crane Drive, go to the storage units, and return to the house. 

After a struggle, Detective Bouse arrested defendant in the house’s driveway. In the driveway 

where the struggle occurred, officers found a bag of white powder weighing 61.8 grams, which

tested positive for cocaine. Detective Bouse searched defendant and found, among other things,

another bag of white powder, $779 in cash, and a cell phone. The bag found on defendant

contained 25 smaller bags, each containing white powder. 

¶ 17 Detective Bouse later helped execute search warrants for the house and unit O. In 

unit O, the officers found three bags containing smaller plastic bags filled with white powder. 

One bag sent to the state police tested positive for cocaine and weighed 61.7 grams. Inside the 

house, officers found two digital scales, two bags of white powder, $1000 in cash, and the lease 

for storage units N and O. 

¶ 18 During direct examination, the State asked Detective Bouse about his experience 

in drug investigations; defendant’s trial counsel objected to Detective Bouse providing an 

opinion regarding whether the cocaine and white powder’s packaging indicated anything. The 
- 5 -

State tendered Detective Bouse “as an expert based on his training and experience in the field of 

cocaine sales.” Trial counsel objected to the midtrial, previouslyundisclosed expert testimony: 

“Judge, he was not—we were not given any notice of this prior to this trial starting. I don’t 

believe this is proper expert testimony. The [S]tate cannot just tender him as an expert whenever 

they feel like. They have to give us notice. They have not done that.” The trial court overruled 

the objection: “Well, I think the opinion in question that was asked is something that—this 

requires some additional training and experience, so I’m gonna [sic] note the continuing 

objection, but I will allow him to express the opinions.” 

¶ 19 Detective Bouse testified that “[b]ased on the packaging and the number of 

packaging, the individual bags that were contained within larger bags and, based on the sheer 

quantity, I believe this to be used in the distribution and the sale of cocaine.” Detective Bouse 

noted a person selling cocaine would use digital scales. He testified that in his training and 

experience, “having multiple cell phones is usually indicative of people that are selling drugs.” 

Detective Bouse noted the same regarding the possession of large amounts of money. He also 

mentioned not finding, in defendant’s possession, paraphernalia used to consume cocaine. 

¶ 20 Detective Bouse testified that when interviewed, defendant made the following 

admissions: 

“[Defendant] had received a, a message to—that there was a person 

interested to purchasing cocaine from him. That he then traveled to where 

he keeps the cocaine within the storage unit, traveled to this location, 

retrieved the cocaine, and then traveled back to his residence in order to 

fulfill the transaction. *** He told us that he knew that he had the drugs on 

his person, that he was trying to get away from us to get inside the residence 
- 6 -

to put them down the garbage disposal and get rid of them. *** He said that 

they contained cocaine and that they were the ones that were—he was 

intending to sell to the person that was interested in buying them. *** He 

said that he had not been gainfully employed for the last couple of years 

outside of detailing two to three cars a week for about 20 bucks a piece or 

somewhere around that, that amount. *** He said that that was the one thing 

that he knew from growing up was selling drugs and that to—in order to 

pay bills, have a car, have a certain lifestyle, that he had to sell drugs in 

order to afford that lifestyle. *** He admitted the guns were his, that he had 

accumulated them over the last couple of years. He did not know the history 

of the guns, just that he was able to purchase them and store them there

***.” 

¶ 21 B. Trial Court’s Findings, Posttrial Motion, and Sentencing

¶ 22 After closing arguments, the trial court found defendant guilty on all counts. On 

November 15, 2017, trial counsel filed a motion for new trial, alleging the trial court erred in 

overruling defense counsel’s various trial objections. On November 17, 2017, the court denied 

the motion for new trial but vacated the judgment on count VI. 

¶ 23 Ultimately, the trial court sentenced defendant to concurrent 20-year prison 

sentences. In supporting the sentence imposed, the trial court stated the following:

“Of the statutory factors in aggravation I do find that the behavior 

for which [defendant] is here, caused or threatened serious harm.

[Defendant’s trial counsel], I understand the argument that cocaine is not 

causing death and destruction at the same level as the opioid crisis, but 
- 7 -

cocaine is still a very destructive drug in our society. It may not cause death 

directly, but it certainly ruins its share of lives. And then when we add the 

number of weapons and the type of weapons that were stored with the 

cocaine, certainly there was the threat of serious harm to others. 

The second factor in aggravation under the statute is whether the 

defendant received compensation, and he certainly did. That was the whole 

point of the enterprise. He does have a significant criminal history. It’s 

possibly not as numerous as some that we see, but it does include an 

agg[ravated] battery with a firearm, which is a pretty serious offense, for 

which he received nine years in the Department of Corrections. 

According to the presentence report he was discharged on December 

1st of 2014, and approximately 16 months later, on November 2d of 2016 

is when he committed the offense for which he’s before us today. So, I can’t 

find a long period of law-abiding life. It would appear, even though there’s 

no other convictions during that intervening time period, from the factors 

and the evidence presented in this case it would appear that for a substantial 

part of that [defendant] was engaged in selling drugs. 

Some sentence is always necessary to deter others. And if we look 

at the factors in mitigation, I do have several letters here suggesting that 

[defendant] is a dedicated father, and that he uses the proceeds of his illegal 

activities to support his children. And I suppose in one respect he’s to be 

commended for supporting his children. He’s to be particularly commended 

for obtaining custody of the daughter that had been the victim of a crime 
- 8 -

herself and working to get her into a much better situation. He did obtain 

his GED while he was in the Department the last time. There was not any 

evidence presented that any of the weapons that were found were used in 

this particular offense, or on this occasion, or in fact had been fired recently. 

But I don’t completely accept the argument that he left the violent lifestyle 

behind in Chicago, because those firearms and that ammunition did not get 

to the storage shed in [defendant’s] name by themselves. 

Given the history, and the background presented in the [presentence 

investigation report (PSI)], I cannot find that the conduct was the result of 

circumstances unlikely to recur. The character and attitude as exemplified 

by the statement in allocution would suggest that [defendant] is unlikely to 

commit another crime, but that just doesn’t fit with the facts of his life up 

until this point in time. 

So, the ultimate question is what sentence is appropriate to, and I 

must focus not only on rehabilitative potential for [defendant], and at the 

age that he is currently at, he does still have some rehabilitative potential. 

That’s inherent in being at the age that he is. However, I also must be 

concerned about a sentence that will adequately protect the public from 

further criminal conduct of [defendant’s], and I think that the appropriate 

sentencing for each of these counts is 20 years in the Illinois Department of 

Corrections.”

¶ 24 Additionally, the trial court imposed a $12,000 street value fine. The trial court 

asked the State whether it had any information as to what the street value fine should be. The 
- 9 -

State asserted “normally *** we do—do it by the 10th of the gram, and I believe the evidence at 

trial was 120 grams, so 12,000 dollars, I’d say.” Trial counsel countered, “I don’t know what the 

value is that they calculated, but I don’t—and I—I can’t say with any certainty whether that’s 

accurate.” The court found “[i]n the absence of any contrary evidence I’ll find that the street 

value of the contraband seized was 12,000 dollars, and I will order [defendant] to pay street 

value fine of 12,000 dollars[.]” 

¶ 25 Trial counsel filed a motion to reconsider sentence that alleged the sentences were 

excessive, failed to give sufficient weight to factors in mitigation, and gave too much weight to 

factors in aggravation. The trial court denied the motion. 

¶ 26 This appeal followed.

¶ 27 II. ANALYSIS

¶ 28 Defendant argues the trial court erred by (1) permitting Detective Bouse to testify 

as an expert despite the State’s failure to disclose Detective Bouse as an expert witness, 

(2) considering in aggravation at sentencing, factors inherent in or that constituted elements of 

his offenses, and (3) imposing a $12,000 street value fine without any evidentiary basis to 

support the fine amount. For the following reasons, we affirm the circuit court’s judgment 

regarding Detective Bouse’s testimony and defendant’s aggravating factors sentencing claim. 

However, we remand under Illinois Supreme Court Rules 471(e) and 472(a)(1) to allow the trial 

court to address defendant’s street value fine argument.

¶ 29 A. Supreme Court Rule 412 Claim

¶ 30 Under Illinois Supreme Court Rule 412(a)(iv) (eff. Mar. 1, 2001), the State must 

produce, inter alia, “any reports or statements of experts, made in connection with the particular 

case, including results of physical or mental examinations and of scientific tests, experiments, or 
- 10 -

comparisons, and a statement of qualifications of the expert[.]” Disclosure obligations under

Rule 412 are ongoing; the State must promptly notify defendant of the discovery of any 

additional material or information, up to and during trial. People v. Hendricks, 325 Ill. App. 3d 

1097, 1103 (2001); see Ill. S. Ct. R. 415(b) (eff. Oct. 1, 1971). Compliance with discovery rules 

is mandatory, but failure to comply does not require reversal absent a showing of prejudice.

People v. Robinson, 157 Ill. 2d 68, 78 (1993). A new trial will be granted only if defendant 

proves he was prejudiced by the discovery violation and the trial court fails to eliminate that

prejudice. People v. Pasch, 152 Ill. 2d 133, 193 (1992). 

¶ 31 Here, our analysis in People v. Steffens, 208 Ill. App. 3d 252, 263 (1991), where 

we held the failure to identify a police officer as an expert witness prior to trial was not error, is 

instructive. In Steffens, we concluded defendant was not prejudiced because defendant knew or 

should have known the officers included in the witness list would have expertise regarding the 

crime charged:

“ ‘It is difficult to see how defendant was prejudiced by this failure 

to disclose. He knew that the police officers would be testifying at trial. He 

also knew from other discovery the nature of the items seized from his 

person, his van and his house. It could not have come as a surprise that some 

or all of the officers would have experience in investigating bookmaking 

operations.’ ” Steffens, 208 Ill. App. 3d at 263 (quoting People v. Scheidt, 

142 Ill. App. 3d 844, 847-48 (1986)). 

¶ 32 Defendant’s charges included one count of unlawful possession with intent to 

deliver a controlled substance. Through the discovery process, defendant learned Detectives 

Bouse and Rivest would testify at trial; defendant also knew the nature of the items seized from 
- 11 -

his person, storage units, and residence. It could not have been a surprise that either or both 

Detective Rivest and Detective Bouse would have drug-related crime expertise and that either or 

both would testify using their expertise at trial. See Steffens, 208 Ill. App. 3d at 263. 

¶ 33 Further, in People v. Weaver, 92 Ill. 2d 545 (1982), the Illinois Supreme Court 

laid out several factors a court should consider when determining whether a discovery violation 

worked prejudice.

“The closer the evidence, the stronger is the case for excluding the statement 

or declaring a mistrial. The strength of the undisclosed evidence, the 

likehood [sic] that prior notice could have helped the defense discredit the 

evidence, the feasibility of continuance rather than a more drastic sanction, 

and the wilfulness of the State in failing to disclose are also factors which 

must be considered.” Weaver, 92 Ill. 2d at 560. 

¶ 34 In the instant case, overwhelming evidence, including the amount of cocaine 

found on defendant’s person and in his storage unit, the number of small baggies on defendant’s 

person, the amount of cash on defendant’s person, and defendant’s own statements to law 

enforcement, demonstrated possession with intent to deliver. Moreover, law enforcement found 

61.8 grams of cocaine in the driveway to defendant’s residence where the arrest took place and 

61.7 grams of cocaine in defendant’s storage unit. Also, defendant had a bag containing 25 

smaller bags on his person at the time of the arrest. Additionally, law enforcement found $1700 

in cash on defendant when they arrested him, despite defendant’s later statement to police that he

detailed two or three cars a week earning around $20 per vehicle.

¶ 35 The other Weaver factors, considered individually or in conjunction with each 

other, cannot overcome our Steffens analysis or the substantial evidence proving defendant’s 
- 12 -

intent to deliver. While if given notice, defendant would have received the notice to which he 

was entitled, the extensive evidence demonstrating intent to deliver suggests prior notice would 

not have altered the outcome. 

¶ 36 Finally, the argument that because Detective Bouse conceded suspects do admit 

wrongdoing to protect others fails to convince us defendant suffered prejudice. In testifying, 

Detective Bouse described such instances as rare. Moreover, the record lacks any evidence to 

suggest this case involved such an instance. Frankly, the substantial and overwhelming evidence 

proving possession with intent to deliver was pretty much unassailable.

¶ 37 Because defendant fails to demonstrate any prejudice where the State failed to 

disclose Detective Bouse as an expert witness, we reject defendant’s Rule 412 claim and affirm 

the trial court’s judgment. 

¶ 38 B. Aggravating Factors 

¶ 39 Defendant also argues the trial court improperly considered in aggravation at 

sentencing, factors inherent in or that constituted an element of his offenses. Specifically, 

defendant asserts the court improperly considered defendant caused or threatened serious harm, 

received compensation, and was previously convicted of aggravated battery with a firearm. 

¶ 40 Before moving forward, we note defendant has forfeited these claims. In order to 

preserve a sentencing issue for review, defendant must file a written postsentencing motion 

raising the issue. People v. Bannister, 232 Ill. 2d 52, 76 (2008). Defendant’s motion to 

reconsider sentence contends, in relevant part, that “[t]he Court placed too much significance and 

weight on the statutory aggravating factors present, specifically, the Defendant’s prior history of 

criminal activity and juvenile delinquency, and that the Defendant’s conduct threatened serious 

harm.” Defendant’s motion to reconsider makes no argument, assertion, or contention regarding 
- 13 -

improper consideration of factors inherent in or that constituted an element of defendant’s 

crimes; instead, defendant highlights the extent to which the trial court considered defendant’s 

criminal history and that defendant’s conduct threatened serious harm. 

¶ 41 1. Plain Error Analysis

¶ 42 Defendant argues that if we determine he failed to preserve his improper 

aggravating factors consideration claims, we should review the claims under the plain error 

doctrine. In order to obtain relief under the plain error doctrine, defendant must demonstrate a 

clear or obvious error under circumstances where (1) the evidence was closely balanced or 

(2) the error deprived the defendant of a fair sentencing hearing. People v. Hillier, 237 Ill. 2d 

539, 545 (2010). The plain error doctrine is a narrow, limited exception. Id. Defendant bears the 

burden of proof under both prongs of plain error review, and we will honor the procedural 

default if defendant fails to meet his burden. Id.

¶ 43 The first step in plain error analysis is determining whether a clear or obvious 

error occurred. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). Importantly, when analyzing 

whether the trial court relied on an improper factor at sentencing, we look to the record as a 

whole rather than focusing on a few words or statements by the court. People v. Sturgeon, 2019 

IL App (4th) 170035, ¶ 103. Here, when we view the record as a whole, we find no error in the 

trial court considering the cause or threat of serious harm or defendant’s prior aggravated battery 

with a firearm conviction. 

¶ 44 At sentencing, the State urged the court to consider how drug use impacts not just 

the user but their loved ones, their children, and those trying to help them. In response, defense 

counsel urged the trial court to impose a lesser sentence suggesting the court distinguish between 
- 14 -

selling cocaine and the opioid crisis which, according to defense counsel, constituted a greater 

crisis and leads to more death. 

¶ 45 In explaining why possessing cocaine with intent to deliver failed to entitle 

defendant to some level of mitigation, the court specifically mentioned defense counsel’s 

argument regarding cocaine verses opioids. When we consider the remarks in context, we find no 

error. Further, the court elaborated on the cause or threat of serious harm aggravating factor by 

discussing the weapons defendant possessed in terms of the nature, circumstances, and degree of 

defendant’s conduct. As to the weapons, the court noted the number, the type, and the fact 

defendant chose to store the weapons and his cocaine together. Concern about the potential for 

harm in circumstances like those here justified considering the cause or threat of serious harm

factor in aggravation. Accordingly, no error occurred.

¶ 46 We reach the same conclusion regarding the trial court considering, in 

aggravation at sentencing, defendant’s prior aggravated battery with a firearm conviction. 

While noting what it described as defendant’s significant prior history, the trial court mentioned 

defendant’s prior aggravated battery with a firearm conviction. This same conviction served as 

one of the two prior convictions identified in the information charging defendant with being an 

armed habitual criminal. Thus, the prior aggravated battery with a firearm conviction served as 

an element of the armed habitual offense and as a factor in aggravation during sentencing. 

¶ 47 Generally, an element of an offense may not be used as an aggravating factor in 

sentencing for that offense. People v. Phelps, 211 Ill. 2d 1, 11-12 (2004). However, our supreme 

court has explained, “the legislature did not intend to impede a sentencing court’s discretion in 

fashioning an appropriate sentence, within the Class X range, by precluding consideration of a 
- 15 -

defendant’s criminal history as an aggravating factor.” People v. Thomas, 171 Ill. 2d 207, 227 

(1996). Here, we find the facts and resolution in Thomas instructive. 

¶ 48 In Thomas, the defendant was subjected to Class X sentencing because he was 

convicted of a Class 1 felony and had two prior Class 2 felony convictions. Where the trial court 

considered those same Class 2 felonies in aggravation at sentencing, the defendant argued his 

sentence constituted an improper double enhancement. On appeal, the appellate court reversed, 

finding the 15-year sentence imposed by the trial court was improper because the trial court 

considered the prior felony convictions used to make the defendant eligible for Class X 

sentencing, in aggravation at sentencing. 

¶ 49 Upon review of the matter, our supreme court reversed the appellate court on the 

issue. In finding the absence of a double enhancement, the court held the sentencing judge 

appropriately considered the defendant’s entire criminal history, including the prior offenses. Id.

¶ 50 Here, defendant argues Thomas is limited by People v. Saldivar, 113 Ill. 2d 256, 

271-72 (1986), which held a sentencing judge can consider facts related “to the nature and 

circumstances of a factor inherent in the offense, but not the inherent factor itself.” The context 

of the decision in Saldivar is important. In Saldivar, when sentencing the defendant for 

involuntary manslaughter, the trial court considered in aggravation at sentencing, the fact of the 

victim’s death. In reversing and reducing the defendant’s sentence, the court held that “the circuit 

court’s finding in aggravation was not directed at the degree or gravity of the defendant’s 

conduct, i.e., the force employed and the physical manner in which the victim’s death was 

brought about or the nature and circumstance of the offense, including the nature and extent of 

each element of the offense as committed by the defendant. Rather, the record demonstrates that 

the circuit court focused primarily on the end result of the defendant’s conduct, i.e., the death of 
- 16 -

the victim, a factor which is implicit in the offense of voluntary manslaughter ***.” Saldivar, 

113 Ill. 2d at 271-72.

¶ 51 According to defendant, the Saldivar language quoted above required the trial 

court here to refrain from considering, as part of defendant’s prior criminal history, the prior 

conviction that constituted an element of the armed habitual offender offense. Defendant claims 

that, instead, the court could only consider the nature and circumstances of the prior offense that 

constituted an element of the armed habitual offender offense. We disagree.

¶ 52 Absent in Thomas, which came after Saldivar, is any discussion of the nature and 

circumstances of the two prior convictions used there to classify the defendant a Class X felon 

and considered when scrutinizing the defendant’s prior criminal history. In fact, Thomas found it 

appropriate for the trial court to consider, when sentencing the defendant within the enhanced 

penalty range, the prior offenses used to subject him to the enhanced penalty range. Moreover, 

we see no reason that because in Thomas the prior offenses were used to make the defendant 

eligible for Class X sentencing, and here the prior offense constituted an element of a Class X 

felony, makes any difference. Here, like in Thomas, the court “reconsidered defendant’s prior 

conviction, as part of defendant’s entire criminal history, in performing its constitutionally 

mandated duty to assess defendant’s rehabilitative potential in order to fashion an appropriate

sentence.” Thomas, 171 Ill. 2d at 229. Consequently, we reject defendant’s argument the trial 

court erred by considering the prior offense as part of defendant’s prior history when fashioning 

the sentence in this matter.

¶ 53 Defendant also argues the trial court erred when it considered the receipt of 

compensation in aggravation at sentencing. The receipt of compensation is inherent in the crime 

of possession with intent to deliver. People v. Conover, 84 Ill. 2d 400, 405 (1981). When 
- 17 -

sentencing a defendant for possession with intent to deliver, the trial court should not consider in 

aggravation “the mere fact that compensation is expected by one who possesses a controlled 

substance with intent to deliver.” People v. McCain, 248 Ill. App. 3d 844, 850 (1993).

¶ 54 While imposing sentence, the trial court specifically identified the receipt of 

compensation as an aggravating factor, noted defendant did receive compensation, and described 

receiving compensation as the “whole point of the enterprise.” Under these circumstances, the 

record reveals the court improperly considered in aggravation at sentencing, the receipt of 

compensation, a factor inherent in the crime. Hence, we must determine whether defendant 

satisfies either prong of plain error review. 

¶ 55 Here, defendant fails to prove that absent consideration of the receipt of 

compensation factor, the sentencing hearing was closely balanced. At 37 years old, defendant 

was facing his third period of incarceration in the Illinois Department of Corrections, having 

served prior sentences of four and nine years after receiving multiple probation sentences on 

prior cases. In fact, the PSI reflected criminal involvement by defendant dating back to 1997.

¶ 56 Notably, the cases in which defendant previously received prison sentences 

involved possession of cocaine and weapons. In one prior felony case, defendant failed to 

successfully complete parole and returned to prison. In similar fashion, defendant committed the 

offenses in this matter less than two years after being discharged from parole. Given defendant 

faced sentencing on multiple Class X felonies, probation was not an option. 

¶ 57 Ultimately, defendant’s history and personal choices sealed his fate. Defendant 

fathered eight children and failed to support any of those children for whom he was ordered to 

pay child support. Importantly, we point out defendant’s sentences fall well within the statutorily 

prescribed ranges for his convictions; his 20-year sentences were 10 years less than the 
- 18 -

maximum for being an armed habitual criminal and 20 years less than the maximum for unlawful 

possession with intent to distribute a controlled substance sentence. While the court did mention 

and identify receipt of compensation as a factor in aggravation, the court failed to expand on the 

receipt of compensation or indicate a primary focus on the receipt of compensation as the basis 

for the sentence imposed. See People v. O’Toole, 226 Ill. App. 3d 974, 993 (1992). To the 

contrary, the court focused on defendant’s prior history, his continued involvement in selling 

drugs, and the need to deter others. Thus, defendant has failed to sustain his burden regarding 

first-prong plain error.

¶ 58 Next, defendant contends the trial court’s alleged errors violated his right to 

a fair sentencing hearing by unjustly affecting his fundamental right to liberty. This court 

rejected a similar contention in People v. McGath, where the defendant insisted the trial 

court erred in subjecting him to a double enhancement at sentencing. In holding such 

arguments do not fall under the purview of plain error analysis, we stated:

“Defendant argues plain error applies to his case because the alleged 

error impinged on his fundamental right to liberty. However, we decline to 

undertake such an analysis in this case. A defendant’s claim that the trial 

court’s alleged error in imposing sentence impinged on his ‘fundamental 

right to liberty’ is not subject to plain-error review.” People v. McGath, 

2017 IL App (4th) 150608, ¶ 68. 

¶ 59 Consequently, we reject defendant’s argument for the same reason and note the 

absence of any additional argument regarding second-prong plain error. 

¶ 60 2. Ineffective Assistance of Counsel
- 19 -

¶ 61 Defendant further contends that his trial counsel was ineffective for failing to 

include the aforementioned alleged errors in defendant’s motion to reconsider sentence. Given 

the only error we found involved the trial court’s receipt of compensation consideration, we 

address counsel’s failure to include that claim in the motion to reconsider sentence. “To succeed 

on a claim of ineffective assistance of counsel during sentencing, a defendant must show that 

(1) counsel’s performance fell below minimal professional standards and that (2) a reasonable 

probability exists that the defendant’s sentence was affected.” People v. Hibbler, 2019 IL App 

(4th) 160897, ¶ 88. If defendant fails to satisfy both prongs, his ineffective assistance of counsel 

claim is defeated. Id. Where a claim of ineffective assistance of counsel is raised for the first 

time on appeal, our review is de novo. Id.

¶ 62 Here, defendant fails to show that there exists a reasonable probability that his 

sentence was affected. As explained above, the trial court gave little consideration to the receipt 

of compensation in fashioning defendant’s sentence. Where the primary considerations in 

defendant’s sentence were his prior history, recidivism, and the need to deter others, the 

sentencing was unaffected. Because defendant has not satisfied both prongs, we reject 

defendant’s ineffective assistance of counsel claim. 

¶ 63 C. Street Value Fine Claim

¶ 64 Finally, defendant argues the trial court erred in imposing a $12,000 street value

fine absent any concrete evidentiary basis. Our review of the record shows the claim has 

potential merit. Illinois Supreme Court Rule 472(a)(1) (eff. May 17, 2019) provides that the 

circuit court retains jurisdiction, including during the pendency of an appeal, to address “[e]rrors 

in the imposition or calculation of fines, fees, assessments, or costs.” Further, Rule 472(e) directs 

this court to remand to the circuit court an appeal in which a party has attempted to raise a 
- 20 -

sentencing error for the first time on appeal. Ill. S. Ct. R. 472(e) (eff. May 17, 2019).

Accordingly, we conclude remand is necessary to allow the trial court to address defendant’s 

error claim regarding the $12,000 street value fine.

¶ 65 III. CONCLUSION

¶ 66 For the reasons stated, we affirm the circuit court’s judgment with the exception 

of the street value fine claim, which we decline to address, and instead, remand to allow the trial 

court to address the street value fine claim. 

¶ 67 Affirmed and remanded.