Docket No. 109184.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant,

 v. CHARLES E. CLENDENIN, Appellee.

Opinion filed September 23, 2010.

JUSTICE FREEMAN delivered the judgment of the court, with

opinion.

Chief Justice Fitzgerald and Justices Thomas, Kilbride, Garman,

Karmeier, and Burke concurred in the judgment and opinion.

OPINION

Following a bench trial in the circuit court of Kane County,

defendant, Charles E. Clendenin, was convicted of unlawful

possession of child pornography (720 ILCS 5/11–20.1(a)(6) (West

2002)). The appellate court reversed and remanded. 395 Ill. App. 3d

412. We granted the State’s petition for leave to appeal. 210 Ill. 2d R.

315(a). For the reasons that follow, we reverse the judgment of the

appellate court and remand this cause to that court for further

proceedings consistent with this opinion.

BACKGROUND

On September 5, 2003, defendant was charged by information

with unlawful possession of child pornography, in that he knowingly
 

1Defendant also makes citation to the search and seizure provisions of

article I, section 6, of the Illinois Constitution of 1970 (Ill. Const. 1970, art.

I, §6), but does not contend that these provisions offer broader protection

than the fourth amendment.

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possessed a video clip of a female child under the age of 18 years

engaged in an act of sexual penetration (720 ILCS 5/11–20.1(a)(6)

(West 2002)).

A. Defendant’s Motion to Quash and Suppress

Defendant filed a motion to quash his arrest and suppress

evidence. He argued that his right to be free from unreasonable

searches and seizures guaranteed under the fourth amendment to the

United States Constitution (U.S. Const., amend. IV)1 was violated

when his girlfriend, Ellen Bailey, removed items from his home and

gave them to police for further investigation, ultimately resulting in

his arrest. 

At the hearing on defendant’s motion, Bailey testified that

defendant lived next door to her in St. Charles, and they had a

romantic relationship. The couple had exchanged keys to their

residences with the understanding that each could enter when the

other was not present. On August 29, 2003, Bailey entered

defendant’s home while he was on vacation to water his plants and to

retrieve a vacuum cleaner she had previously left there. During her

visit, Bailey saw four wires next to defendant’s computer which had

small camera lenses attached to the ends. She became concerned

because defendant had recently purchased a webcam for her

daughters, and questioned whether these cameras were somehow

related to it. Her suspicions prompted her to look behind the

computer, and she discovered a closed, zippered case which

contained approximately 50 computer discs, some labeled with

handwritten dates. Unsure whether there was a connection between

what was recorded on the discs and the small cameras, Bailey took

the case and the cameras back to her home. Upon playing a few of the

discs in her computer, she discovered one with a list of titles that

were “very disturbing,” including “ ‘mother f***s 8-year-old.’ ”

Bailey viewed one of the disc’s image files, which depicted a “grown
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man having sex with a 13-year-old.” Believing the disc to contain

child pornography, Bailey kept it, along with the cameras. She

returned the remainder of the discs and the case to defendant’s home.

On September 1, 2003, Bailey met with Bruce Malkin, a

commander with the West Chicago police department and a personal

friend. Bailey recounted to Malkin the circumstances of her discovery

of the cameras and computer discs, and told him that the images on

the disc caused her great concern. She then gave the items to Malkin.

Bailey was thereafter contacted by St. Charles police officer Andrew

Lamela. Bailey provided Lamela with the same information that she

had given to Malkin regarding the circumstances of her discovery of

the disc and its contents.

Commander Malkin’s testimony mirrored Bailey’s regarding her

discovery and viewing of the disc. Bailey told him that the disc

contained “what she suspected to be child pornography.” Malkin

used his own computer to view the disc, which was marked with the

handwritten date of “20 November 2,” and discovered a video clip

he believed to be child pornography. 

The final witness was Detective Lamela, who spoke with Bailey

on September 2, 2003, and received the same background information

she had provided to Malkin. The next day, Lamela met with Malkin,

who gave him the disc and cameras Bailey removed from defendant’s

residence. After viewing the disc,Lamela determined that it contained

child pornography. He contacted the State’s Attorney’s office, which

advised him that he had probable cause to arrest defendant. After

Lamela took defendant into custody, defendant gave an oral

statement, which Lamela summarized in a police report. Defendant

thereafter provided a second statement, which Lamela recorded on

audiotape and had transcribed. Defendant also consented to a police

search of his home and computer media. 

The circuit court denied defendant’s motion to quash and

suppress. Because Bailey was not acting as an agent of the police

when she removed the disc and cameras from defendant’s home, the

court held that there was no state action involved in the police’s

acquisition of those items which implicated the fourth amendment.

The court further held that the content of the disc provided police

with probable cause to arrest defendant. Defendant filed a motion to

reconsider, which the circuit court denied.
 

2The record on appeal contains defendant’s signed waiver of trial by

jury. 

 

3A copy of this stipulation is not included in the record on appeal.

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B. Stipulated Bench Trial

During a September 2004 pretrial hearing, defense counsel

informed the circuit court that defendant wished to “waive the right

to a jury and present a stipulation to you and have you decide the

defendant’s guilt on the basis of our stipulated evidence.”2 Defense

counsel also stated for the record that within the stipulation he was

“renewing” his objection to the circuit court’s denial of the

suppression motion and “requesting the court to reconsider *** as if

we were having all the witnesses come to court.” The circuit court

took the stipulation under advisement.

The court informed the parties on January 13, 2005, that it would

not accept the stipulation as drafted.3 The parties then submitted the

following amended stipulation on March 16, 2005:

“STIPULATION

NOW COME the parties to this cause and hereby stipulate

to the availability of the following evidence for purposes of

proceeding with a bench trial of the charge of unlawful

possession of child pornography alleged in the Complaint for

Preliminary Hearing.

The parties agree that the witnesses called at the hearing

on the defense Motion to Quash Arrest and Suppress

Evidence held on January 23, 2004 would provide the same

testimony that was presented on that date, including the

introduction of the same exhibits. The State moves for

admission of photographs of the video clip referred to in the

Complaint for Preliminary Hearing, markedPeople’s Exhibits

# 1 & 2. The photographs portray a portion of one of the

video clips contained on the computer disk taken from

[defendant’s] apartment by Ellen Bailey on August 29, 2003

and delivered to the West Chicago Police by Ellen Bailey on

September 1, 2003. [Defendant] objects to the introduction

into evidence of People’s Exhibits # 1 & 2 on the same
 

4The testimony of Detective Lamela referred to in the stipulation is

contained in a police report written by Lamela, file stamped September 9,

2003, which is part of the record on appeal. 

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grounds presented at the hearing on the defense Motion to

Quash Arrest and Suppress Evidence and the subsequent

Motion to Reconsider. [Defendant] requests the Court to

reconsider and reverse its previous rulings concerning the

admissibility of this evidence.

If called as a witness, [Detective Lamela] would testify that he

interviewed [defendant] on September 3, 2003 following his

arrest in this case. After waiving his Miranda rights,

[defendant] stated that he logs on to the internet to a website

from which he downloads music and pornography. He typed

[sic] in keywords for the pornography in the search engine

and then downloads all the files to his hard drive. Later, he

transfers the files to a disk and then views them. He does not

know what he downloads until the file has been viewed. He

admitted to possessing six disks containing pornography in

his apartment. When asked if he knew how many video clips

of child pornography were contained on the disks, he stated,

‘Not very many.’ He last downloaded pornography from the

website on the preceding weekend. He stated that he did not

have time to transfer those files to a disk and did not know

what files were downloaded. [Defendant] identified the disk

provided to the West Chicago Police Department by Ellen

Bailey as belonging to him. [Defendant] denied

manufacturing or distributing the child pornography video

clips. The police seized seventy-seven (77) compact disks

from [defendant’s] residence, of which five (5) contained

pornography, including adult pornography. The remainder of

the disks contained music and information from [defendant’s]

employment.[4]

The introduction of the testimony of Detective Lamela

would be subject to [defendant’s] objection on the same

grounds presented in the defense Motion to Quash Arrest and

Suppress Evidence and the subsequent Motion to Reconsider.

[Defendant] requests the Court to reconsider and reverse its
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previous rulings concerning the admissibilityofthis evidence.

[Defendant] objects to all evidence seized by the St. Charles

Police Department from [defendant’s] residence and to the

statements made by [defendant] to the police because the

evidence constitutes the illegal fruit of the unlawful search

and seizure of the computer disk delivered to the police by

Ellen Bailey.

[Defendant] does not stipulate to the sufficiency of the

evidence to convict him of the offense charged.” 

Upon the tender of this document to the court, the following

exchange occurred between defendant and the circuit judge: 

“THE COURT: All right. And so Mr. Clendenin, you

wish to be bound by the stipulation; is that correct?

THE DEFENDANT: Yes, it is, Your Honor.

THE COURT: All right. And I will review that along with

the evidence and have a ruling for you then.”

C. Circuit Court Ruling

On April 27, 2005, the circuit court found defendant guilty of

possession of child pornography. The court initially noted that the

stipulation contained defendant’s continued objection “to the

admission of People’s Exhibits 1 and 2 on the same grounds that were

presented on the motion to quash arrest and suppress evidence.” The

court adhered to its prior ruling and again rejected defendant’s

arguments regarding the suppression issue. 

The court then ruled that the State had proven the elements of the

offense beyond a reasonable doubt. Defendant admitted that he

possessed several discs containing pornography, and when asked how

many contained child pornography, replied, “Not very many.”

Defendant’s knowledge that the discs contained child pornography

was further supported by the explicit titles of some of the images

found on the disc. The court also held that an adult viewing People’s

Exhibits 1 and 2 “should reasonably know that the child depicted is

under 18.” Finally, the court found it “very clear” that the exhibits

showed the child engaged in actual or simulated acts of sexual

intercourse.

D. Posttrial Proceedings
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On May 2, 2005, defendant filed a posttrial motion requesting the

circuit court vacate his conviction on two grounds: (1) it was error to

deny his motion to quash and suppress; and (2) the evidence was

insufficient to support the guilty finding. Shortly thereafter,

defendant’s counsel, Larry Wechter, moved to withdraw, stating he

and defendant had “recently *** developed differences of opinion

concerning the future defense of the case, which renders it

unreasonably difficult *** to effectively represent defendant.” On

May 26, 2005, Wechter was allowed to withdraw, and Stephen

Brundage entered his substitute appearance on defendant’s behalf.

On August 4, 2005, defendant filed an amended posttrial motion,

repeating the claims of error set forth in the original motion, and

adding two new claims: (1) that the State committed discovery

violations by untimely producing the audiotape of defendant’s

statement to Detective Lamela, and by providing a transcript of that

interview which contained mistakes; and (2) that Wechter had

provided ineffective assistance of counsel by advising defendant to

proceed by stipulated bench trial and by failing to alert the court to

the discovery violations. The circuit court denied the motion with

respect to the suppression issue. However, it ordered an evidentiary

hearing on the remaining claims.

Defendant testified that at the start of his representation by

Wechter, he met with him once in his law office. Thereafter, they

communicated by phone and in person at the courthouse before

and/or after every court hearing. Wechter also regularly spoke with

defendant’s father, an attorney in Ohio. Wechter offered defendant

four options: enter a guilty plea, request a jury trial, pursue a bench

trial, or agree to a stipulated bench trial. Wechter recommended a

stipulated bench trial, and although defendant stated that Wechter did

not “thoroughly” explain this procedure, defendant understood that

its purpose was to preserve the suppression issue for appeal. When

Wechter told defendant that he planned to discuss his

recommendation with defendant’s father, defendant responded that

“whatever my father agrees, whatever is okay.” 

Defendant was then questioned by the prosecutor regarding an

exchange which occurred between defendant and the circuit judge

during the March 16, 2005, hearing: 

“Q. *** [D]id you tell the court that you wished to be
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bound by the stipulation that Mr. Wechter had presented to

the court?

A. If I remember correctly, it says, ‘Yes, it is,’ on that.

Q. So your answer is yes?

A. The phrase. It’s not just a yes or no, if I remember

correctly. I’m not sure.

Q. Is your memory vague?

A. Certain areas.” 

In a subsequent exchange with his own counsel, defendant

testified that he had not seen either version of the stipulation before

it was presented to the court, was unaware of its contents, and did not

want to be bound by it.

Defendant also denied that he said “Not very many,” when asked

by Detective Lamela if he knew how many video clips of child

pornography he had downloaded. Defendant testified that he was

unaware of child pornography on the discs, and that the stipulation

was supposed to include his claim of innocence. Defendant further

stated that the transcript of his second interview with Lamela was

inaccurate, and he repeatedly asked Wechter to obtain the tape so that

they could compare it to the transcript. According to defendant, he

wanted a contested trial in order to cross-examine witnesses. 

Detective Lamela testified that after he took defendant into

custody, he interviewed him twice. During the first interview, which

was not taped, Lamela asked defendant if he knew how many clips of

child pornography were included in the material he downloaded, and

defendant responded, “Not very many.” Lamela included this

statement in his police report. Lamela then conducted a second

interview, which was audiotaped. Because Lamela did not ask the

exact same questions of defendant during the second interview, the

statement “Not very many” does not appear in the transcript of the

second interview. Lamela followed police department protocol by

having an administrative assistant prepare a transcript of the tape.

Lamela stated that Wechter had called him several times to hear the

tape, but scheduling conflicts delayed their meeting. 

Defendant’s father, Charles Clendenin, Sr., testified that he was

a lawyer and former prosecutor in Clairmont County, Ohio. He was

in contact with Wechter during defendant’s case, and, in a July 2004
 

5Several of these letters were admitted into evidence and are part of the

record.

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phone call, Wechter suggested that defendant plead guilty. Clendenin

disagreed, contending that defendant was innocent. Wechter then

suggested proceeding by stipulation. Clendenin found this

“ridiculous,” even though he did not know what a stipulation was.

Clendenin told Wechter that defendant would enter a stipulation only

if the State “c[a]me to [its] senses that [defendant] was not guilty.”

Clendenin never saw the stipulation and was surprised to learn of its

content after the trial.

Clendenin further testified that he had the audiotape of

defendant’s interview with Lamela transcribed by a certified court

reporter. Comparing that transcript to the one provided by police,

Clendenin found discrepancies, including that the statement “Not

very many” did not appear. In addition, the police transcript states

that in response to Lamela asking defendant how many of the images

on the disc contain child pornography, defendant replied that there

“[s]hould be very few,” because “normally everything is labeled with

twenty different keywords and *** several times they threw it in

there.” By contrast, the certified transcript contains the same

exchange, except that it concludes with the statement that “sometimes

they throw it in there.” Wechter also testified. His trial

strategy, as explained to defendant, was to suppress the disc removed

from defendant’s home by Bailey. Wechter believed that successful

suppression of this evidence would lead to suppression of defendant’s

statements to police, leaving the State with virtually no evidence

against defendant to support the charge. Wechter regularly

communicated with defendant, either in person at the courthouse

before and after every court hearing, or by telephone. Wechter also

wrote defendant letters after each court appearance, describing in

detail what had happened that day and what was expected to happen

in the future.5

Wechter presented defendant with two options after the

suppression motion was denied: (1) proceed by nonstipulated jury or

bench trial; or (2) proceed by stipulated bench trial with the purpose

of preserving the suppression issue for appeal.Wechterrecommended
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the latter option, and explained the mechanics of this procedure to

defendant. According to Wechter, defendant appeared to understand

the trial strategy, and he asked no questions about it. Although

defendant occasionally expressed hesitation about the stipulation, he

ultimately wished to follow that course of action. 

Wechter believed that he had offered to show defendant the

stipulation, and may have shown it to him, but defendant “did not

express much interest in looking at it.” Wechter included in the

stipulation the minimum factual basis he thought the State would

accept, and omitted several details he believed would be harmful to

the defense, including portions of defendant’s statement to the police.

Wechter also included facts that “left the door open to argument,”

including that “the evidence was not sufficient to convict [defendant]

of the charge,” as well as preserving the challenge to the ruling on

the suppression motion. Wechter had reviewed the transcript of

defendant’s interview with Lamela, and listened to the audiotape a

day or two prior to submitting the March 2005 stipulation to the

court. He found only minor, immaterial discrepancies between the

tape and the transcript. 

On July 21, 2006, the circuit court issued a written decision

denying the remainder of defendant’s posttrial motion. First, the court

found no discovery violation by the State, observing that prior to

submitting the March 2005 stipulation, Wechter had listened to the

tape and compared it to the transcript provided by police, finding only

minor errors. In addition, the errors alleged between the two versions

of the transcript were not material in relation to the elements of the

offense. Second, the court held that defense counsel was not

ineffective. The court found that Wechter kept defendant

appropriately informed of the court proceedings and of his suggested

trial strategy, and his advice to proceed with a stipulated bench trial

to preserve the suppression issue was not error. 

In addition, the court held that defendant’s confrontation rights

were not violated by the stipulated bench trial, noting he had agreed

in open court to proceed by stipulation after consulting with Wechter.

The circuit court was unpersuaded by defendant’s posttrial testimony

claiming he objected to the stipulation, finding it “vague” and

observing that he had “no clear memory of key points and

conversations.” Further, the circuit court held that “this stipulated
 

6Due to its disposition, the appellate court did not address defendant’s

remaining contentions of error. 

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bench trial was no[t] a plea of guilty requiring proper

admonishments,” as “the defense did not agree that the proof was

sufficient to meet the State’s burden of proof.” Moreover, the circuit

court doubted that the result would have been different had defendant

not followed Wechter’s advice, as “defendant’s [posttrial] testimony

lacks even an assertion that he wished to testify.” Finally, the court

held there was sufficient evidence to prove defendant guilty beyond

a reasonable doubt. 

E. Appellate Court Opinion

Defendant raised several claims of error in the appellate court.

The court rejected defendant’s challenge to the circuit court’s denial

of his motion to quash arrest and suppress evidence, but found merit

in his contention that his attorney provided ineffective assistance of

counsel with regard to the entry of the stipulation. Finding it “tacit”

in our precedent that “no stipulation (regardless of its tactical or

strategical worth) may be validly accepted by the court unless the

defendant is apprised of the specific content” (395 Ill. App. 3d at

439), the panel held that Wechter’s performance was deficient

because he did not validly waive defendant’s right of confrontation

due to his failure to inform defendant of the specific content of the

stipulation. 395 Ill. App. 3d at 444, 447. Further, the court held that

this deficiency prejudiced defendant. 395 Ill. App. 3d at 447.

Accordingly, the court reversed and remanded.6

ANALYSIS

The State contends that the appellate court erred in reversing

defendant’s conviction by holding that he was denied effective

assistance of counsel because Wechter failed to apprise defendant of

the specific content of the stipulation. Citing to People v. Campbell,

208 Ill. 2d 203 (2003), People v. Phillips, 217 Ill. 2d 270 (2005), and

People v. Rowell, 229 Ill. 2d 82 (2008), the State argues that counsel

may generally enter into a stipulation without a defendant’s knowing

consent–and also absent admonishment by the court–so long as the
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stipulation is part of a reasonable trial strategy and the defendant does

not object. The State contends that both elements were satisfied here:

the stipulation was part of counsel’s reasonable trial strategy to

preserve a defense by securing appellate review of the suppression

issue, and defendant did not object to the stipulation; in fact,

defendant explicitly agreed to it. Therefore, the State maintains that

Wechter’s performance cannot be deemed deficient.

Defendant does not quarrel with the State’s primary argument that

our prior decisions in Campbell, Phillips and Rowell establish that

generally defense counsel may validly waive a defendant’s

confrontation right by entering into a stipulation without ensuring that

defendant is aware of its content so long as the stipulation is part of

a reasonable trial strategy and the defendant does not object. Further,

defendant does not address the State’s assertion that the appellate

court departed from this precedent by requiring that in every case

where a stipulation is entered, the record must clearly show that a

defendant has been informed of the specific content of the stipulation

in order for it to be valid. Instead, defendant contends that Wechter’s

performance was deficient because the stipulation was the functional

equivalent of a guilty plea. Therefore, defendant maintains, the

stipulation was not part of a reasonable trial strategy and defendant

was entitled to admonishments and to decide whether to personally

waive his right of confrontation. Defendant further contends that the

record reflects that he objected to the stipulation. Defendant thus

concludes that Wechter’s performance was deficient and that the

judgment of the appellate court should be affirmed. We disagree.

To establish ineffective assistance of trial counsel, a defendant

must meet the familiar two-part standard of Strickland v. Washington,

466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v.

Albanese, 104 Ill. 2d 504, 525-27 (1984). A defendant must first

demonstrate that his counsel’s performance was deficient in that

“counsel made errors so serious that counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064;

People v. Wiley, 205 Ill. 2d 212, 230 (2001). In so doing, a defendant

must overcome the strong presumption that the challenged action or

inaction of counsel was the product of sound trial strategy and not of

incompetence. People v. Barrow, 133 Ill. 2d 226, 247 (1989).
 

7This right is guaranteed under the sixth amendment to the United States

Constitution (U.S. Const., amend. VI) and under article I, section 8, of the

Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §8), which provide: “In

all criminal prosecutions, the accused shall enjoy the right *** to be

confronted with the witnesses against him ***.”

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Secondly, a defendant must demonstrate that, but for counsel’s

deficient performance, there is a reasonable probability that the result

of the proceeding would have been different. Strickland, 466 U.S. at

694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; Wiley, 205 Ill. 2d at 230.

Because a defendant must satisfy both prongs of this test, the failure

to establish either prong is fatal to the claim. Strickland, 466 U.S. at

697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; see People v. Bannister,

232 Ill. 2d 52, 80 (2008).

In People v. Campbell, 208 Ill. 2d 203 (2003), we addressed an

issue of first impression: “whether defense counsel, by stipulating to

the admission of evidence, can waive a defendant’s constitutional

right to confront the source of the evidence without the defendant’s

knowing consent to the stipulation.” Campbell, 208 Ill. 2d at 205.

Campbell argued that because the constitutional right of

confrontation7 belongs exclusively to the accused, a waiver of this

right is valid only when it is personally and knowingly made by the

defendant. Campbell, 208 Ill. 2d at 209-10. We disagreed.

We first observed in Campbell that our ruling in People v. Ramey,

152 Ill. 2d 41 (1992), established that only four decisions ultimately

belong to a defendant after consultation with his attorney: (1) what

plea to enter; (2) whether to waive a jury trial; (3) whether defendant

will testify on his own behalf; and (4) whether to appeal. Campbell,

208 Ill. 2d at 210, citing Ramey, 152 Ill. 2d at 54. We further noted

that, subsequent to Ramey, we held there is a fifth decision which

belongs to a defendant. In People v. Brocksmith, 162 Ill. 2d 224

(1994), we established that a defendant has the exclusive right to

decide whether to submit an instruction on a lesser-included offense

at the conclusion of the evidence, finding this analogous to the

decision of what plea to enter. Campbell, 208 Ill. 2d at 210, citing

Brocksmith, 162 Ill. 2d at 229. We explained in Campbell that apart

from these decisions, which are to be personally made by a defendant,

trial counsel has the right to make the ultimate decision with respect
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to matters of tactics and strategy after consulting with his client,

including “ ‘what witnesses to call, whether and how to conduct

cross-examination, what jurors to accept or strike[,] *** what trial

motions should be made[,] *** [and] the defense to be presented at

trial.’ ” Campbell, 208 Ill. 2d at 210, quoting Ramey, 152 Ill. 2d at 54.

In holding that the waiver of the right to confrontation does not

belong exclusively to a defendant, we aligned with the majority of

federal and state courts which had already addressed this issue.

Campbell, 208 Ill. 2d at 217. Relying upon those rulings as guidance,

we held that defense counsel may generally waive a defendant’s right

of confrontation by entering into an evidentiary stipulation where two

elements are met: (1) the defendant does not object; and (2) the

decision to stipulate is a matter of trial tactics and strategy. Campbell,

208 Ill. 2d at 217. We carved a limited exception to this general rule,

however, where a stipulation is the practical equivalent of a plea of

guilty, holding that “defense counsel cannot stipulate to facts which

establish the guilt of the accused because the constitutional right

implicated in that situation is the right of a defendant in a criminal

case to plead not guilty.” Campbell, 208 Ill. 2d at 219. Based upon

this rationale, we held that departure from the general rule that

defense counsel may waive a defendant’s right of confrontation is

warranted only in those instances where: (1) the State’s entire case is

presented by stipulation and defendant fails to preserve a defense; or

(2) the stipulation concedes the sufficiency of the evidence to support

a conviction. Campbell, 208 Ill. 2d at 218. Because these specific

circumstances effectively transform a stipulation into a plea of guilty,

Campbell established that a defendant in such instances must be

personally admonished about a stipulation and must personally agree

to it. Campbell, 208 Ill. 2d at 218.

In People v. Phillips, 217 Ill. 2d 270, 288 (2005), we reaffirmed

Campbell’s holding that apart from the five decisions that ultimately

belong to a defendant in a criminal case, trial counsel has the right to

make the ultimate decision with respect to matters of tactics and

strategy after consultation with the client. Phillips, 217 Ill. 2d at 281,

quotingCampbell, 208 Ill. 2d at 210. Accordingly, we also reaffirmed

the general rule that defense counsel validly waives a defendant’s

confrontation right by agreeing to a stipulation as long as the

stipulation is part of counsel’s trial tactics and strategy, and the
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defendant does not object. Phillips, 217 Ill. 2d at 283, quoting

Campbell, 208 Ill. 2d at 217.

We made it clear in Phillips, however, that Campbell “attached

no other restrictions to defense counsel’s authority to stipulate to the

admission of evidence,” and, except in those limited cases where the

stipulation is “tantamount to a guilty plea,” Campbell “imposed no

obligations on the trial court or counsel to admonish the defendant

and ensure that the advisement is made a part of the record.” Phillips,

217 Ill. 2d at 283. We repeated our holding in Campbell that a

stipulation is considered tantamount to a guilty plea–and therefore

requires defendant’s admonishment and personal waiver–in only two

specific circumstances: (1) the State presents its entire case by

stipulation and the defendant does not preserve a defense; or (2) the

stipulation states that the evidence is sufficient to convict the

defendant. Phillips, 217 Ill. 2d at 283, quoting Campbell, 208 Ill. 2d

at 218.

We recently revisited this issue in People v. Rowell, 229 Ill. 2d

82 (2008). We again reaffirmedCampbell’s general rule that defense

counsel may waive a defendant’s right of confrontation as long as the

defendant does not object and the decision to stipulate is a matter of

trial tactics and strategy. Rowell, 229 Ill. 2d at 102, quoting Campbell,

208 Ill. 2d at 217. We also reaffirmed that it is only when the

stipulation is tantamount to a guilty plea that departure is made from

this general rule and a defendant must receive admonishments and

personally waive his right of confrontation. Rowell, 229 Ill. 2d at 102.

Rowell also provided the opportunity, however, for us to clarify

what it means for a stipulation to be tantamount to a guilty plea.

There, the defendant argued he was entitled to receive an

admonishment and personally waive his confrontation right because

the State’s entire case against him was presented by stipulation. In

rejecting the assertion that this alone rendered the stipulation

equivalent to a plea of guilty, we repeated that a stipulation may be

tantamount to a guilty plea in two instances: (1) when the State’s

entire case is to be presented by stipulation and the defendant does

not present or preserve a defense; or (2) the stipulation includes a

statement that the evidence is sufficient to convict the defendant.

Rowell, 229 Ill. 2d at 102, quoting Campbell, 208 Ill. 2d at 218.

Focusing on the first instance, we made it clear that the test is
 

8The second instance under which a stipulation may be considered

tantamount to a guilty plea, i.e. that the stipulation includes a statement that

the evidence is sufficient to convict the defendant, was not at issue. 

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conjunctive, requiring both elements to be present before

admonishments and a personal waiver are required. Although the

State’s entire case in Rowell was presented by stipulation, the

defendant also preserved a defense by arguing that the evidence was

insufficient to support a conviction and that the charging instrument

was deficient. Rowell, 229 Ill. 2d at 102, citing People v. Rowell, 375

Ill. App. 3d 421, 434 (2006). Because the defendant preserved a

defense, the stipulation was not tantamount to a guilty plea,8 and

“Campbell did not require the trial court or counsel to admonish

defendant and ensure that the stipulation was part of the record.”

Rowell, 229 Ill. 2d at 102. 

In the instant appeal, defendant contends that because the

stipulation was the functional equivalent of a guilty plea, the limited

exception to the general rule set forth in Campbell was triggered, and

he therefore should have received personal admonishments and

personally agreed to its entry. We reject defendant’s assertion, and

hold that this case does not present the circumstance where the

stipulation was tantamount to a guilty plea, which would remove it

from the ambit of the Campbell general rule. As we have repeatedly

held, a stipulation is tantamount to a guilty plea–and therefore

requires a defendant’s personal admonishment and agreement–in only

two instances: (1) the State’s entire case is to be presented by

stipulation and the defendant does not present or preserve a defense;

or (2) the stipulation includes a statement that the evidence is

sufficient to convict the defendant. Rowell, 229 Ill. 2d at 102;

Phillips, 217 Ill. 2d at 283; Campbell, 208 Ill. 2d at 218. 

Applying this rule to the instant appeal, it is clear that neither

instance is met. Although the State’s entire case was presented by

stipulation, defense counsel adequately preserved a defense by

preserving the suppression issue for appellate review. The stipulation

twice objected to evidence and testimony “on the same grounds

presented” in the earlier suppression motion, twice requested the

circuit court to reverse its denial of the suppression motion, and
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objected to all evidence seized from defendant’s home and his

statements to police “as the illegal fruit of the unlawful search and

seizure of the computer disk delivered to the police by Ellen Bailey.”

Moreover, the stipulation explicitly stated that it did not concede the

sufficiency of the evidence to support a conviction. Accordingly, the

stipulation was not tantamount to a guilty plea requiring that

defendant receive personal admonishments and that he agree to its

entry.

Nevertheless, the appellate court determined that the stipulation

was invalid pursuant to its holding that in all instances where a

defendant enters into a stipulation–whether it is functionally

equivalent to a guilty plea or not–the record must clearly show that

the defendant was apprised of its specific content. 395 Ill. App. 3d at

444. Applying this rule, the appellate court held that Wechter’s

performance was deficient because the record failed to show that

defendant was advised of the specific content of the stipulation,

reasoning that defendant’s “ignorance” of the stipulation’s content

violated his confrontation right because he could not meaningfully

object. 395 Ill. App. 3d at 437. We observe, however, that in the

course of its opinion, the appellate court readily acknowledged that

our decisions in Campbell and Phillips “stresse[d]” that where a

stipulation “is a matter of sound trial tactics or strategy, a defendant

need not be advised about the procedural ramifications of stipulations

in general or about the consequences of a proposed stipulation for that

particular case” (395 Ill. App. 3d at 438-39), noted that neither

Campbell nor Phillips “expressly” held that a court may not validly

accept a stipulation unless the defendant is apprised of its content

(395 Ill. App. 3d at 439), and admitted that Phillips established that

counsel and the circuit court need not admonish the defendant of the

implications and consequences of a stipulation (395 Ill. App. 3d at

441). We therefore question how the appellate court–in light of the

above-referenced passages–could nevertheless conclude that it is

“implicit” in Phillips and Campbell that a defendant must “be

informed of the specific content of the stipulation” in every instance.

395 Ill. App. 3d at 442. The appellate court departed from the

holdings in our prior opinions that foreclosed the reasoning it

adopted. 

Contrary to the belief of the appellate court, Campbell did not
-18-

impliedly adopt a rule requiring counsel to inform a defendant of the

specific content of evidentiary stipulations in all circumstances. We

repeat that Campbell sets forth the general rule that defense counsel

may validly waive a defendant’s right of confrontation where two

elements are met: (1) the defendant does not object to the stipulation;

and (2) the decision to stipulate is a matter of trial tactics and

strategy. Campbell, 208 Ill. 2d at 217; see also Rowell, 229 Ill. 2d at

102; Phillips, 217 Ill. 2d at 283. 

We further repeat that Campbell carved out a limited exception

to this general rule in only those instances where the stipulation is the

functional equivalent of a guilty plea, on the basis that “counsel

cannot stipulate to facts which establish the guilt of the accused”

(Campbell, 208 Ill. 2d at 219) because such actions implicate a

separate and distinct constitutional right that belongs exclusively to

a defendant: the right to plead not guilty. Campbell, 208 Ill. 2d at 219.

Campbell and its progeny establish that a stipulation is tantamount to

a guilty plea when one of two conditions is met: (1) the State presents

its entire case by stipulation and defendant fails to preserve a defense;

or (2) the stipulation concedes that the evidence is sufficient to

support a guilty verdict. Campbell, 208 Ill. 2d at 218; see also Rowell,

229 Ill. 2d at 102; Phillips, 217 Ill. 2d at 283. We also repeat our

holding in Phillips that except in those specified instances where the

stipulation is tantamount to a guilty plea, Campbell “attached no other

restrictions to defense counsel’s authority to stipulate to the

admission of evidence,” and “we imposed no obligations on the trial

court or counsel to admonish the defendant and ensure that the

advisement is made a part of the record.” Phillips, 217 Ill. 2d at 283.

Applying the rule we first developed in Campbell–and reaffirmed

in Phillips and Rowell– to the instant appeal, it is clear that Wechter

validly waived defendant’s confrontation right by entering into the

stipulation: defendant did not object to its entry and the decision to

stipulate was a matter of trial tactics and strategy. 

First, the record clearly establishes that defendant did not object

to the stipulation. As noted earlier, defendant was present in open

court when the stipulation was presented, and the court asked

defendant directly if he wished to be bound by the stipulation.

Defendant responded in the affirmative. We note that despite

defendant’s response being a clear and unequivocal statement of
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agreement, defendant now contends that the record shows he

“obviously objected” to the entry of the stipulation. Defendant’s

efforts to disavow his agreement are unavailing. In fact, although

Campbell “impose[s] no obligations on the trial court or counsel to

admonish the defendant and ensure that the advisement is made a part

of the record” (Phillips, 217 Ill. 2d at 283), defendant nevertheless

received the benefit of the circuit court inquiring if he agreed to the

stipulation. At no time did defendant express disapproval, concern or

confusion when the stipulation was discussed during the court

proceedings. Accordingly, we conclude that defendant did not object

to the entry of the stipulation. 

In addition, we hold that the decision to proceed by stipulation

was a matter of trial tactics and strategy. From the outset of this case,

Wechter believed that the best strategy was to suppress the disc

removed from defendant’s home by Bailey. If successful, this would,

in Wechter’s view, also lead to the suppression of defendant’s

statements to Lamela, leaving the State with little–if any–evidence to

support the charge. To this end, the parties immediately litigated the

suppression issue. During that hearing, defendant had the opportunity

to confront the same witnesses who would likely be the main

witnesses at defendant’s trial. Although defendant did not prevail on

themotion, Wechter preserved the suppression issue at every juncture

in the case.

After filing an unsuccessful motion to reconsider, Wechter

included the suppression issue in the stipulation, and made numerous,

specific objections to the introduction of evidence from the computer

disc taken from defendant’s home by Bailey, to the testimony of

Detective Lamela, to the evidence seized from defendant’s residence

and computer, and to the statements defendant made to police.

Wechter also preserved the suppression issue in the posttrial motion.

In addition, Wechter also stated that while preserving the suppression

issue for appeal, his strategy was also to craft the stipulation in such

a way as to keep as much incriminating evidence out of it as possible.

The record therefore supports Wechter’s claim that the stipulation

was part of the defense strategy he pursued throughout the

proceedings. 

The record also reveals that, contrary to defendant’s assertion that

he and Wechter had “limited consultations,” Wechter regularly
 

9Rule 318(a) (155 Ill. 2d R. 318(a)) provides that in all appeals “any

appellee, respondent, or coparty may seek and obtain any relief warranted

by the record on appeal without having filed a separate petition for leave

to appeal or notice or cross-appeal or separate appeal.” See alsoPoindexter

v. State of Illinois, 229 Ill. 2d 194, 205 n.4 (2008) (“This court has invoked

Rule 318(a) in finding that allowance of one party’s petition for leave to

appeal brings before this court the other party’s requests for cross-relief.”)

We note, however, that the cover of defendant’s brief did not request crossrelief. Rule 315(h) provides: “If the brief of the appellee contains

arguments in support of cross-relief, the cover of the brief shall be

captioned: ‘Brief of Appellee. Cross-Relief Requested.’ ” 210 Ill. 2d R.

315(h).

-20-

consulted with defendant about this strategy, communicating with

him over the phone, in person at the courthouse, and by written

correspondence. In a letter dated September 2, 2004,sent to defendant

prior to the presentation of the original stipulation, Wechter provided

three pages of detailed explanation, outlining the option of preserving

the suppression issue by proceeding by stipulation, and discussing the

likelihood of success. One would reasonably believe that defendant,

a college-educated professional, would read this correspondence and

pose questions, if necessary. Based upon defendant’s testimony at the

posttrial hearing, however, it appears that he was relatively

uninterested and disengaged in the process, repeatedly stating that he

would agree to whatever his father decided. 

Thus, because both prongs of the general rule set forth in

Campbell were met, Wechter validly waived defendant’s right of

confrontation by entering into the stipulation. Accordingly, Wechter’s

actions in this regard were not deficient, and the first prong of the

Strickland ineffectiveness inquiry has not been satisfied. Because

both prongs of the Strickland two-part test must be satisfied to

establish an ineffective assistance of counsel claim, failure to

establish deficient performance is fatal to defendant’s claim.

Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069;

see also Bannister, 232 Ill. 2d at 80. 

As an alternative basis for reversing his conviction, defendant

contends that the appellate court erred in holding that the circuit court

correctly denied his motion to quash arrest and suppress evidence.9
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Although defendant acknowledges that the fourth amendment

protection against unreasonable searches and seizures does not

generally apply to private individuals, he contends that the police

violated this guarantee because their search of the disc given to them

by Bailey exceeded the scope of the private search which she

conducted. The State counters that the police search remained within

the scope of the initial private search and, therefore, pursuant to this

court’s decision in People v. Phillips, 215 Ill. 2d 554 (2005), the

appellate court’s holding should be upheld. We agree with the State.

A circuit court’s ruling on a motion to suppress is reviewed under

the two-part test adopted by the Supreme Court in Ornelas v. United

States, 517 U.S. 690, 699, 134 L. Ed. 2d 911, 920, 116 S. Ct. 1657,

1663 (1996). People v. Harris, 228 Ill. 2d 222, 230 (2008). The

circuit court’s factual findings may be rejected only if they are against

the manifest weight of the evidence. People v. Sorenson, 196 Ill. 2d

425, 431 (2001). The reviewing court then assesses the established

facts in relation to the issues presented and may draw its own

conclusions in deciding what relief, if any, should be granted. Harris,

228 Ill. 2d at 230. Accordingly, this court reviews de novo the

ultimate legal question of whether suppression is warranted. People

v. Luedemann, 222 Ill. 2d 530, 542-43 (2006). 

In Phillips, the defendant took his computer to have it repaired.

After making the repairs, the technician tested the computer by

playing a video clip stored on its hard drive. The video clip depicted

what appeared to be a young girl engaged in a sexual act. The

technician immediately contacted a police officer acquaintance, told

him what he had seen, and asked him to come to the shop. When the

officer arrived, he had the technician play the video clip without first

seeking a warrant. The officer agreed that the video depicted child

pornography and informed other officers who also came to the shop

and viewed the video. Phillips, 215 Ill. 2d at 559. The defendant was

thereafter arrested and provided a voluntary statement admitting that

he possessed child pornography. Phillips, 215 Ill. 2d at 560.

The circuit court denied defendant’s motion to quash arrest and

suppress evidence, holding that the fourth amendment did not apply

to the technician’s initial search of the computer, as it was the act of

a private citizen, not of an agent of law enforcement. Phillips, 215 Ill.

2d at 560-61. The court further found that the police viewed the same
-22-

video as the technician, and, by doing so, they acquired probable

cause to arrest the defendant. Phillips, 215 Ill. 2d at 561.

We affirmed. Relying upon United States v. Jacobsen, 466 U.S.

109, 113, 80 L. Ed. 2d 85, 94, 104 S. Ct. 1652, 1656 (1984), we noted

that “the fourth amendment applies only to government action” and,

therefore, “[a] search by a private person does not violate the fourth

amendment.” Phillips, 215 Ill. 2d at 566. We further held that the

fourth amendment does not prohibit the government from using

information discovered by a private search, because “the private

search has already frustrated any expectation that the information will

remain private.” Phillips, 215 Ill. 2d at 566. Therefore, we explained

that where the government uses privately discovered information to

investigate a crime without first obtaining a warrant, “the fourth

amendment question is whether the investigation ‘exceeded the scope

of the private search.’ ” Phillips, 215 Ill. 2d at 566-67, quoting

Jacobsen, 466 U.S. at 115, 80 L. Ed. 2d at 95, 104 S. Ct. at 1657.

The defendant in Phillips argued that the police exceeded the

scope of the initial private search by the computer technician because

the technician did not provide the police with a “particular

description” of the contents of the file that he had viewed. In

rejecting this argument, we held that the technician’s statement to the

first officer at the scene that the video appeared to be child

pornography provided a sufficient description of the file’s contents.

Therefore, when the officers viewed that file, they “gained no new

material information,” but “merely confirmed [the technician’s]

report that it appeared to be child pornography.” Phillips, 215 Ill. 2d

at 567. Thus, “learning with more precision what the video depicted”

did not expand the police investigation beyond the scope of the

technician’s search. Phillips, 215 Ill. 2d at 567.

Here, defendant concedes that there is no fourth amendment issue

with regard to Bailey, who acted in her private capacity when she

took defendant’s computer disc into her own home. There, she

viewed the titles of the files on the disc and watched one video clip

in which a minor girl appeared to engage in sexual activity with an

adult man. This discovery caused Bailey to contact Malkin, who in

turn, contacted Lamela. 

Defendant contends that Malkin and Lamela, however,

impermissibly exceeded the scope of Bailey’s private search.
-23-

According to defendant, the incriminating nature of the disc was not

readily apparent to Malkin or Lamela, as it was not marked as

containing child pornography. In addition, defendant claims that the

testimony of Malkin and Lamela does not indicate that their searches

were limited to the same areas of the disc that Bailey had searched.

Although the officers both claimed to have viewed a video file from

the disc, the testimony did not establish that they viewed the same file

Bailey viewed. We reject defendant’s arguments. 

Bailey testified that in addition to viewing a video file containing

apparent child pornography, she also searched the disc widely enough

to discover several file names she found “disturbing” and suggestive

of child pornography, such as “ ‘mother f***s 8-year-old.’ ” Thus,

Bailey’s own search was of sufficient scope to allow police to

perform a general review of the files on the disc for the presence of

child pornography. Defendant has pointed to nothing in support of the

claim that Malkin and Lamela searched anywhere on the disc that by

its file name likely would not contain child pornography. Although

defendant contends that the disc “could have contained vast amounts

of personal information” belonging to him, he fails to point to any

evidence in the record supporting this assertion. 

 In sum, Bailey’s seizure and viewing of the disc were not state

action implicating the fourth amendment. When Bailey presented the

disc to Malkin and Lamela, she had already frustrated defendant’s

expectation of privacy. Phillips, 215 Ill. 2d at 566. There is no

evidence to support defendant’s contention that the scope of the

investigation of the disc by Malkin and Lamela exceeded Bailey’s

prior, private search; it merely confirmed the results of the private

search. Therefore, we conclude that the circuit court properly denied

defendant’s motion to quash and suppress.

C. Defendant’s Remaining Claims of Error

In his brief, defendant also raises the following claims of error

which the appellate court declined to address in its opinion: (1) the

State committed a discovery violation by failing to timely produce the

audiotape of Detective Lamela’s interview of defendant; (2) defense

counsel was ineffective in failing to challenge the State’s late

production of the audiotape; (3) counsel was also ineffective because
-24-

he incorrectly advised defendant regarding the period of sex offender

registration; and (4) the evidence was insufficient to sustain

defendant’s conviction. Because the appellate court declined to reach

the remainder of the issues raised in defendant’s brief, we remand this

cause to the appellate court to dispose of those claims raised before

that court, but not previously ruled upon. People v. Lowery, 178 Ill.

2d 462, 473 (1997) (it is appropriate to remand an issue raised but not

decided in the appellate court). 

CONCLUSION

For the foregoing reasons, we reverse the judgment of the

appellate court. We remand this cause to the appellate court for

resolution of the remaining issues.

Appellate court judgment reversed;

cause remanded.