Docket No. 109184.



### IN THE SUPREME COURT OF THE STA TE OF IL LINOIS

TH E PEOPLE

OF THE ST

ATE OF I

LLINO IS, Ap

pellant, v. CHARLES E. CLENDEN IN, Appellee.

Opinion filed September 23, 2010.

JUSTICE FREEMAN delivered the judgment of the cour t, with opinion. Chief Justice Fitzgerald and Justices Thomas, Kilbride, Garman, Karmeier, and Burke conc urred in the judgment and opinion.

OPINION

Following a bench

trial in th e circu

it court o f Kane Co un ty, defe ndant, Charles E. Clendenin, was convicted of unlawf u l possessio n of child p ornogr aphy (720 I LCS 5/1 1–20.1(a

)(6) (We st 2002)). The appellate court reversed and r emanded. 395 Ill. App. 3d 412. We gran

ted the Sta

te’s peti tion for le ave to ap

peal. 210 Ill. 2d R. 315( a). For the r

easons th at follow , we rev erse the judgmen t of th e appella te court an

d remand this caus e to that court for further proceedings consistent with this opinion.

BACKGROUND OnSeptember 5, 2003, defend ant wa s charged by information with unlawful possession of child pornography , in thathe knowing ly1 Defendant also mak es citati on to th e search

and sei zureprovisions of article I, section 6, of the I llinois Constitution of 1970 (Ill . Cons t. 1970 , art. I, §6), b ut does not contend that these provisions offer broader protection than the fourth amendmen

t.

-2- possessed a video clip of a female child under the ag e of 18 yea rs engaged in an act of sexual p enetra

ti on (720 IL CS 5/11–20.1(a)(6) (West 2002)).

A. Defe ndant’s M otion to Qua sh and Suppress Defe n dant

filed a mo tion to qua sh his arr est and su

ppress evidence. H e ar gued th at his rig ht to be fr

ee from unreasonable searches and seizures guaranteed under the fourth a mendment

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 th e h ea ri ng on de fe nd an t’ s m ot io n, Ba il ey t est ified that defendant lived next door to her in St. Charles, and they had a romantic relation ship. The

couple ha

d exchang ed key

s to their residences with the unders tandi ng that each could enter when the other was not p rese nt. 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. Durin g her visit, Bailey sa

w four wires next to defendant’s computer which had small camera lenses attached to the ends. She bec ame concern e d because defendant had recently purc has ed a webcam for her daught ers, and questione d w hether these cameras were somehow rela ted to it. Her suspicions prompted her to look behind the computer, and sh e discovered a closed, zippered case which contained approxim a tely

50 compute

r discs, s ome labe led with handwritten

dates. Unsure whether there was a connection between what was recor ded on the discs and the small cameras, Bailey took the case an

d the cam eras ba

ck to her home. Upon play ing a few of

the di scs in her co mputer, s he discov ered one with a list o f titles th a t

were “very

disturbing,” including “ ‘mother f***s 8-y ear-old.’ ” Bailey viewed one of the disc’s image files, which de picted a “grown-3- manhaving sex with a 13-ye ar-old.” Believing the disc to contain child po rn og ra ph y, Bail ey kept it, along with the cameras. She returned the rema inder of the discs and the c ase to defendant’s home. OnSeptembe

r 1, 2003, Baile y met wi th Bruce Malkin, a commander

with the West Chicago police department and a personal friend. Bailey r

ecounted to Malkin the circumstances of her discovery of the cameras and co m puter discs, and told him that the images on the disc caused her great c oncern. She thengave the items to Malkin. Bailey was thereafter

contacted by

St. Charles police officer Andrew Lamela. Bailey

provided Lame la with the same information that she had given to Malkin regarding the circumstances of

her discovery

of the disc a nd its cont

ents. Commander

Malkin’s testimony mirrored Bailey’ s regarding

her disco very and viewing of th e disc. B ailey told him tha

t the dis c contained “what she suspected to be child pornogra ph y.” Malkin used his own computer

to view the disc, which was marked with the handwritten

date of “20 November 2
, ” and disc overed a video cli p he believed to be child pornography

. The final witness was Detective La mela, who spoke

with Bailey

on September 2, 20 03, and receiv ed the same background information she had provided to Malkin. The next day, L amela met with Malkin, who gave h

im the disc and

cameras Bailey

removed from defendant’s residence. After viewing the disc, Lame la deter mined that it contained child pornography . He contacted the State’s Attorney ’s office, which advised him that he had pr obab le cause to arrest defendant. Afte r Lame la took defendant into custody, de fendant gave a n oral statemen t, which Lam el a summarized in a police report. Defendant thereafter provi ded a second statement, which L amela recorded on audiotape and had transcribed. Defendant also conse nted to a police search of his home and computer media. The c ircuit court denied defendant’s motion to quash and suppress

. Because Bailey was no t acting as an agent of the police when she removed the disc and cameras from defendant’s home, the court held that there wa s no state

action in volved i n the police’s acquisition of those items which implicated the fourth amend men t. The court further held that the content of the disc p rov ided police with probable cause to arrest d efenda nt. Defendant

filed a mo tion to reconsider, which the circuit court denied.2 The recor d on ap peal co ntains d

efendan t’s sig ned wa iver o f trial b y jury.

3 A copy of thisstipula

tion is n ot inclu ded in t he reco rd on ap

peal.

-4- B. Stipulated Bench Trial Durin g a September 2004 pretrial hearing, de fense couns e l informed the circuit court that defendant wished to “waive theright to a jury and pre sent a stipulation to you and have y ou decide th e defendant’s guilt on the basis of our st ipulated evidence.” 2 Defens e counsel also stated for the record that within t he stipulation he was “re newin g” his objection to the circuit court’s denial of th e suppressionmotion and “requestingthe cour t to reconsi der *** a s if

we were having all the witnesses come to court.” The circui t court took the st

ipulation u

nder adv isement. The court informed the parties on January 13, 2005, that

it would notaccept the stipulation as drafted. 3 The parties then submitted the following amended stipulation on Marc

h 16, 2005: “STIPUL ATION NOW COME the pa

rties to this caus e and he

reby stipulate to the availability of the following evidence for purposes of proce eding with a bench trial of the charge of unlaw fu l possession of child

pornog raphy allege d in

the Complaint for Preli minar y Hearing. The parties agree that the witnesses called at the hearing

on the defe

nse Motion

to Qua sh Arres t and Suppr ess Ev idence h eld on Janua

ry 23, 2004 w ould provi de the sa me testimon y tha t was presented on that date, including the introduction of the same exhibits. The S ta te moves for admission o f photog

raphs of the video clip referred

to in the Complaint fo r P re li mi na ry H earing, marked People’s Exhibits # 1 & 2. The photographs portray a por tion of one of the video clips contained on t h e computer disk taken from [defenda nt’s] apartment by Ellen B ailey on Augu st

29, 2003 and deliver ed to the We st

Chicago Police by Ellen Ba iley on September

1, 2 0 03. [Defendant] objects to the introduction into evidenc e of People ’s Exhibits # 1 & 2 on the same4 The te stimony of Detec tive L amela referred to in the stipul ation is contained in a police report written by Lame la, file stamped September 9, 2003, which is part of the record on appeal.

-5- grounds present

ed at the hearing on the def

ense Moti on to Quash Arrest an d Suppress Evidence and the subsequent Motion to Recons ider. [De fendant ] requests

the Court t

o
recons i der

and reverse its previous rulings concer ning the admissibility of this evidence. If called a s a witnes s, [Detective Lamela] would testify that he interviewed

[defenda nt] on Septe

mber 3, 20 03 followi

ng his arrest in this case. After

w aiving h

is Miranda

rights, [defenda nt] stated tha

t he logs on to the in

ternet to a website fromwhich he download s music and pornography . He typed [ sic ] in keywords for the p ornography in the search engine and then d ownloads 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 pos sessi

ng six d isks c ontaining

pornog raphy in his apartment. When asked if he knew how many video clips of child pornography

were contained on the disks, he stated, ‘Not ver y ma ny. ’ He last

downloaded

pornography

from the website on the preceding weekend. He stated that he did not have ti me to tran sfer tho se files t o a disk an

d did not kno w what files were downloaded. [Defendant] identified the disk provided to the West C hicago Police Department by E llen Bailey as be long ing t o him. [D efenda nt] denie d manufacturing

or dist rib uting the child pornography video clips. The police seized sevent y-seven ( 77) compact disks from[defendant’s] residence, of wh ich five (5) contained po rn og ra ph y, including adult pornography . The remainder of the disks cont

ained mus ic and inf

ormatio n fr om [defendant’s] employ ment. [ 4 ] The introduction of the testimony o f Detective L amela would be subject to [defendant’s] objec tio n on the sa me grounds present

ed in the d

efense Motion to Quash Arrest and Suppress Evidence and the subsequent Motion to Reconsider. [Defenda nt] requests the Court to reconsi der and r everse its-6- previous rulings

concer ning the admis sibility of th is evidence. [Defenda nt] objects

to all evide

nce seize d by

the St. Charles Police Department from [defendant’s] residence and t o the statemen ts made by [defenda

nt] to the police bec aus e the evidence constitute s the illeg al fruit of t he unlawful search and seizure of the computer disk delivered to the police by El le n B ai le y. [Defenda nt] does not stipulate to the sufficiency of the evidence to convict him of the offense charg ed.” Uponthe tender of this document to the cour t, the following exchang e occur

red betw een def

endant a nd the cir cuit judg e: “THE COURT: All right. And so Mr. C l endenin, you wish to be b ound by

the stipula

tion; is that cor

rect? THE DEFENDANT: Yes, it is, Your Honor.
THE COURT: All r

ight. An d I wi ll review

that alon g with the evidence and have a ruling f or you then.”

C. Circuit Court Ruling On April 27, 2 005, the c ircuit co urt found defenda nt guilty o f possession of child p ornogra phy. The cour

t 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 aga in rejected defe ndan t’s arguments regarding

the suppression issue. The court then ruled that

the State had proven the elements of the offense beyond a re asonable doubt. Defendant admitted that he possess ed several discs containing pornogra phy, and when a sked how many contained child pornography, replied, “Not very many

. ” Defendant’s knowledge that the discs contained child pornogr aphy

was further supported by the expli cit 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 depicte d is under 18.” Finally, the c ourt found it “ve ry clea r ” that the

exhibits showed the child

engag ed in act

ual or simu

late d acts of sexual intercourse. D. Po sttr ial P roceed ings-7- OnMay 2, 2005, defe

ndant 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 suppres s; an d (2) the evidence was insufficient

to support the guilty finding . Shortly thereafte r, d efenda nt’s counsel, Larry Wechter, moved to withdraw, stating he and defendant had “recently

*** de veloped differences of opinion concerning the fu ture def ense of t

he case , which r

enders i t

unreasonably

difficult *** to effectively represen t de fendant.” On May 26
, 2005, Wechter was allowed to withdraw, and Stephen Brundage entered his substitute appea rance on defendant’s behalf. OnAugust 4, 2005, defendant filed an amended posttrial motion, repeating the claims of error s et fort h in the original motion, and adding two new claims: (1) that the State committed discovery violations by untimely

produci n g the audiotape of defendant’s statement to Detective Lamela, a

nd by providing a

transcript of

that interviewwhich contained m istak es; and (2) that Wechter had provided ineffe cti ve assistanc e of coun sel by advising defenda nt to proceed by stipulated b enc h trial an d by failing to alert t he court to the discovery violations. The c ircuit court denied th e motion wi th respect to the suppression issue. However, it ordered an evidentiary hearing on the re maining claims. Defenda nt testified that at the start of his representation by Wechter, he met with him on ce i n his law office. Thereafter, they communicated

by phone and in person at the courthouse before and/or after every

court hearing. Wechter also r egular ly spoke with defendant’s fath er, a

n attorney

in Ohi o. We chter o ffered defendant four options: enter a guilty ple a, request a jury trial , pursue a bench trial, or agreeto a stipulated bench trial. Wechter recommended a stipulated bench trial, and altho

ugh def endant st ated tha t Wechter did not“thoroughly

” explain this procedure, defendant un der stood that its purpose was to preserve the suppres sion issue for appeal. When Wechter told def

e ndant tha

t he planned to disc uss his

r ec ommendation with defendant’s father, defendant re sponded that “whatever my

father agrees, wha

tever is okay.” Defendant

was then questioned by the pros ecutor regarding a

n exch ange which occurred between defend ant an d the c ircui t jud ge during t he March 16, 2005, hearing : “Q. *** [D ]i d you tell the court that y ou wished to be-8- bound by the stipula

tion that Mr . Wechter

had pres ented to the cour t? A. If I re member c orrect

ly, it say s, ‘Yes, it is,’ on that. Q. So y our answ er is y

es? A. The phrase. It’s not just a y es or no, if I remem

ber correctly . I’m not sure. Q. Is y our memory vag

ue? A. Certain areas.”
Ina subsequent exchange with h is own counsel, defendant testified that he had not seen

either version of the stipulation before it was pre sented to

the cour t, was unaware of its contents, and did not want to be

bound by it. Defendant

also denied that he said “Not very many,” whe

n asked by Detecti ve La mela if he

knew how

many video cli

ps of chi ld pornography

he had downloade d. Defe ndant t est ified that he was

unaware of child pornography on the discs , and th at the stipulation

was supposed

to inclu de his claim of innocence. Defendant further stated t hat the transcript of his second interview with L amela was inaccurate, and he repeatedly asked Wechter

to obtain the tape so that they could compare it to the transcript. Acc ordin g t o defendant, he wanted a contested trial in order to cross-examine witnesses. Detective Lamela testified t hat after he took defendant into

cu st od y, he interviewed him twice. During the first interview, which

was not taped, Lamela asked de fendant if he knew how many clipsof child pornography

were included

inthe material he downloaded, and defendant responded, “Not very

many.” L

amela included thi s statement in his police report. Lamela then c onducted a s econd interview, which was audiotaped. Because L amela did not ask the exact same que stions of defendant during the second interview, the statem ent “Not very ma

ny” does not appe ar in the transcript of th e
s econd interview. Lamela followed police department protocol by having an admini strative assistant prepar e a tran script of the tape. Lame la stated

that Wech

ter had c alled him s everal times to hear

the tape, but scheduling conflicts delay ed their meeting. Defendant’s father, Charles Clendenin, Sr., testified that he was a lawy er and f ormer pr osecutor inClairmont County, Ohio. He was incontact with Wechter during defendant’s c ase, and, in a July 20045 Several of these letters were ad

mitted into ev idence and are

part of the record.

-9- phone call, Wechter

suggested that defendant plea d guilty . Clenden

in disagreed, contending that defendant was inn o cent. Wechter then suggested proceeding by

stipulation. Cle ndenin fo und this “ridiculous,” even tho ugh he d id not know

what a sti

pulation w as. Clendenin

told Wechter

that defenda nt would e

nter a sti pulation only if the St ate “ c[a]m e to [its] sensesthat [ defe ndan t] was not g

uilty.” Clendenin

never saw the stipulation and was surprised to learn of its content a fter the trial. Clendenin

further testifi ed th at he had the audiotape of defendant’s interview with Lamela transc ribed by a certified court reporter. Comparing

that tran sc ript to the one provided by police
, Clendenin

found discrepancies, including that the statement “ Not very many” did not appea

r. Inadditio n, the police transcript states that in respon se to Lamela asking de fendant how many of the images

on the disc c ontain ch

ild pornog

raphy , defend

ant r epl ied that there “[s]hould be very f ew,” because

“normal ly e

very thing is la beled wit h twenty differe nt key words an d *** seve

ral times they threw it in there.” By contr

ast, the certified transcript contains the sam e
ex change, except that it concludes with the statement that “som etime s they throw it in there.” We ch ter also t estified . His tria l st ra te gy, as explained

to defen dant, wa s to suppre ss the disc removed fromdefendant’s home by Bailey. Wec

hter believed that

successful suppressionof this evidence would lead to suppre ssi on o f defendant’s statemen ts to police, leaving the State with vi rtuall y no evidence aga ins tdefenda

nt to suppor

t the cha

rge. We chter r

egular ly

c o mmunicated

with defe

ndant, ei ther in pe

rson at th e courthouse before and after every

court hearing, or by

telephone. Wech te r also wrotedefenda

nt letter s after e ach cou

rt appea rance, desc ribing in detail what had happened that day and what was expected to happen in the future. 5
Wec hter p resented defendant with two options after the suppressionmotion was denied: (1) proceed by nonstipulated jury or bench trial; or (2) proceed by

stipulated

bench tr ial with the

purpose of preserving the suppression issue fo r appeal. Wechter recomm ended-10- the latter option, and explained the mechanics of th is proce dure to defenda nt. Accord

ing to Wechter, defendant appeared to understand the tr ial strategy , and he asked no questions about it. Althou g h defendant occasionally e

xpressed hesitation about the stipulation, he ultimately wished to follow that course of a ction. Wechter believe d that h e had of fered to show defendant the st ipulation, and may

have sho wn it to him, but defe ndant “did not express much interest in looking at i t.” Wechter included in the stipulation the minimum f actual b asis he thought the State wou

ld accept , and omitte d severa l details h e believ ed would be harmful to the defense, including portions of defendant’s stateme nt to the police. Wechter also included facts that “left the door open to arg ument,” including that “the evidence was not sufficient to convict

[defenda nt] of the char ge,” a s well as preservin g the challenge to the ruling on the suppression motion. Wechter had reviewed the transcript of defendant’s interview with L amela, and listened to the audiotape a day or tw o p rior to submitting the March 2005 stipulation to the

c ourt. He found

only minor, imma

terial di screpa

ncies be tween th e tape and the transcript. OnJuly 2 1, 2006, th e circu it c ourt issued a written decision denying the remainder

of defendant’s posttrial motion. First, the court found no di sc ov er y vi ol at io n b y t he Stat e, obser ving tha t prior to submitting the Marc h 2005 stipulation, Wechter had listened to the tape and compared it to the transcr ipt provid ed by police, f inding on ly minor errors

. In addition, the errors alleged betwee n the two versions of the tran scr ipt 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 defen dant appropr iately informed of the court proceedings and of his sugg ested trial st ra te gy, and his advice to proceed with a stipulated bench trial to preserve the suppression issue was not error.
Inaddi tion, the cour

t held tha t defend ant’s confronta

tion rig hts were not violated by the stipulated bench tr ial, noting he had agreed inopen court to proceed by stipulation after

consulting with Wechter. The circuit court was unpersuaded by defendant’s posttrial testimony claiming he objec ted to the sti pulation , finding it “vague” and observing that h e had “no clear memory of key points and

conver sa tions.” Further, the circuit court held that “this stipulated6 Due to its disp osition, the app ellate c ourt did not add ress def endant’ s remaining co

ntentions of error.

-11- bench trial was no [t] a plea o f guilt y requiri ng p roper admonish ments,” 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 re sult would have been different

had defendant notfollowed Wechter’s advice, as “defendant’s [posttrial] testimony lacks even an asserti on that he wi shed to tes tify.” Fi nally, t he court held there was sufficient evidence to prove defendant guilty beyond a reasonable doubt. E. Appellate Court Opinion Defendant

raised s everal

claims of

error in the appe llate cou

rt. The court rejecte d defend

ant’s ch alleng e to the circuit court’s denial of his motion to

quash ar rest and suppress evidence, but found merit in his contention thathis attorney provided inef fective assistance of counsel with regard

to the ent

ry of the stip

ulation. F inding it

“tacit” inour precedent that “no stipulation (regar dless of its tactical or strategicalworth) may be validly acce

pted by the c our t unless the defendant is apprised of the specific content” (395 Ill. App. 3d at 439), the panel held that Wechter’s pe rforman ce was deficient because he did not validly waive defe ndant’s right of confrontation due to his failure to inform defendant of the specific content of t h e stipulation. 395 Ill. App. 3d at 444, 447. Further, the court held that this de fic iency pre

judiced defendant. 395 Ill. App. 3d a t 447. Accordingly , the court reversed and remanded. 6

ANA LYSIS The State contends that the appellate court erred in reve rsing def endant ’s conviction by holding that he was denied effective assistance of counse l becaus e Wechter failed to apprise defendant of the specific content of the stipulatio n. Citing t o 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 abse nt admon ishment by the court–so long a s the-12- stipulation is part of a reasonable trial strateg y and the def

endant does notobject. The State con

tends tha t both ele ments were satisfied here: the stipulation was part of counsel’s reasonable trial st rateg y to preserve a defen se by

securin g appe llate re view of the suppression issue, and defendant did not object to the stip ulation; in fact, defenda nt explicitly

agree d to it. Therefore, the State maintains that Wechter ’s perf

ormance cannot be

deemed d

eficien t. Defendant

do es no t q ua rr el wi th th e S ta te ’s pr im ar y a rgum ent that

our prior de cisio ns in Campbell
, Phillips and Rowell establish that gener ally de fe ns e c ou ns el ma y v alidly waive a de fendant’s confrontation right b y 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 appellat e court departed from this precedent by req uirin g that in ev ery

case where a stipulat

ion is ente

red, th e record must clea rly show that a defendant has been informed of the specific content of the stipulation inorder for it to be valid. Instead, defenda nt contends that

Wechter’s performance was deficient because the stipulation was the functional equivalent

of a guilty ple a. Therefore, def endant maintains, the stipulation was not par

t of a reasonable trial strategy and defendant

was entitled t

o a dmonishme

nts and to d

ecide w hether t o persona lly waive his right of confrontation. Defendant further contends that the record reflects that he objected to the stipulat ion. Defendant thus concludes that Wechter’s performance was def icient and that the judgment of the appellate court should be affirme d. We disagree. To establish ineffective assistance of trial coun sel, a defendant must meet the familiar two-part standard of S tr ickland v. Washington
, 466 U.S. 668, 80 L. Ed. 2d 6 74, 104 S. Ct. 2052 (1984). People v. Albanese
, 104 Ill. 2d 504, 525- 27 (198 4). A def endant mu st first demonstr ate that his couns el’s performance was deficie nt in that “counsel made errors so serious that counsel was not func tioning as the ‘counsel’ guaranteed the de f endan t 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 de fendant must overcome the strong presumption that the challenged action or inactionof counsel was the pr oduct of sou nd tri al str ategy and not of incompe tence. People v. Barrow , 133 Ill. 2d 226, 247 (1989).7 This right is guarante ed under the sixth am endment to the United States Constitution

(U.S. Const., amend. VI

) and under

article I, section

8, of the Illin ois Constitution of 1970 (Ill. Const. 1970, art. I, §8), whic h pro vide : “In all criminal prosecutions , the accused shal l enjoy the right ** * to be confronted with the witnesses against him ***.”

-13- Se co nd ly, a defen

dant mu st dem onstrate that, but for counsel’s deficient perfor mance, t here is a reasonable probability

that the result of the proceeding would have been dif ferent. Strickland
, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 206 8; Wiley , 205 Ill. 2d at 230. Becau se 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 Pe ople v. Ca mpbell , 208 Ill. 2d 203 (2003), we addre ssed an issue of first impression: “whether defense counsel, by stipulating to the admission of evidence, can waive a defe ndant’s constitutional right to confront the source of the evidence wi th out the defendant’s kno w ing consent to the stipulation.” Campbell, 208 Ill. 2d at 205. Campbell argue d that bec ause the constituti onal rig

ht o f confrontation 7 belongs exclusively to the ac cused, a waiv er of this right is valid only when it is per son ally and knowing ly made by the defendant. Campbell, 208 Ill. 2d at 209-10. We disagree d. We first observed in Campbell

that our ruling in People v. Ramey
, 152 Ill. 2d 41 (1992), established that only four

decision s ultimate ly be long to a defendant after consultation with his attorney : (1) wha t 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, citi ng Ramey , 152 Ill. 2d at 54. We further noted that, subsequ ent to Ramey, we held there is a fifth decision which belon gs to a defe nd ant. In People v . Brocks mith , 162 Ill. 2d 224 (1994), we established that a defendant has th e exclusiv e right to decide whether

to submit an instruction on a lesser-included offense at the conclusion of the evidence, finding this ana lo gous to the decisionof what plea to enter. Campbell, 208 Ill. 2d at 210, citing Brocksm ith
, 162 Ill. 2d

at 22 9. Weexplained in Campbell that apart fromthese decisions, which are to be persona

lly made by

a defen dant, trial counsel has the right to make the ultimate decision with respect-14- to matters of tact ics and stra tegy after c onsulting

with his cl ient, 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 I ll. 2d at 210, quot ing Ramey , 152 Ill. 2d at 54. Inholding t

hat the wa

iver of the right

to confr ontati on d oes not belong ex cl us iv el y to a d ef en da nt , w e a li gn ed wi th th e m aj or it y o f federal and state c ourts which had already addressed this issue. Campbell
, 208 Ill. 2d at 217. Rely ing upon those rulings as guidance,

we held that defense counselmay gener ally waive a defendant’s right of confrontation by e

ntering into an evidentiary stipulation where two elements are met: (1) the d

efenda nt does not o bject; and (2) the decisionto stipulat

e is a m at te r o f t ri al ta ct ic s a nd st ra te gy. Campbell
, 208 Ill. 2d at 217. We carved a limited exception

to this general rule, however, where a

stipulatio n is the pr

actica l equiv a lent of a plea of guilty, holding tha

t “defense counselcannot st ipulate to facts which establish the guil t of the a ccused b ecause

the const

itutional righ t impli cated

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

caseto plead not guilty.” Cam pbell
, 208 Ill. 2d at 219. Based upon this rationale, we h eld that departure from the gene ral rule that defe ns e counsel may

waive a defenda nt’s rig ht of conf

rontation is warranted only

in those instances where: (1) the State’s entire c ase is presented by stipulation and defenda nt 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. Becau se these specific circumstances ef

fe ct iv el y tr an sf

or m a st ip ul at io n i nt o a pl ea of gu il ty, Campbell established that a defen dant in such instances must be persona lly admonished about a stipulationand must pe rsonally agree to it. Campbell, 208 Ill. 2d at 218.
In People v. Phillips , 217 Ill. 2d 270, 288 (2005), we reaffirmed Campbell ’s holding t

hat apar t from the five dec isions that

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

to make the ulti mate de cision with respect to matters of tactics and strat egy after consultation

with the client. Phillips
, 217 Ill. 2d at 281, quoting Campbell, 208 Ill. 2d at 210. Ac cording ly, we alsoreaffirmed the general

rule that defense counsel validly waives a defendant’s confrontation

right by agree ing to a s t ipulat ion as long as the stipulation is part of counsel’s trial tactics and stra te gy, a nd the-15- defendant does not

objec t. Phillips , 217 Ill. 2d at 283, quoting Campbell, 208 Ill. 2d at 217. We made it clear in Phillips , howev er, t hat Campbell “attached

no other restric tions to de fense

counsel’s authority to stipulate to the admission of evidence,” and, except in those limited cases where the stipulation is “tantamount to a gui lt y p lea,” Campbell “imposed no obligations on the tria

l court or counsel t o admonis h 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 there f

ore requires defendant’s admonishment and personal waiver–in only two speci f ic circumstances: (1) the State presents its entire case by stipulation and the defendant does not preserve a defense; or (2) the stipulation states tha

t the evid

ence is s uffic ient to convict the defenda nt. Phillips , 217 Ill. 2d at 283, quot ing Campbell
, 208 Ill. 2d at 218. We recently r

evisited this issue in People v . Rowell , 229 Ill. 2d 82 (200 8). We

again reaffirmed Campbell ’s gene ral rule that def ense 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, q uoti ng Campbell
, 208 Ill. 2d at 21 7. We also re affirme d that it is only when the stipulation is tantamou

nt to a gu ilty plea tha t depart ure is made from this general rule and a def endant must receive adm oni shments and persona lly waive his right

of confrontation. Rowell , 229 Ill. 2d at 102. Rowell also prov ided the o pportunit y, however , for us to clarify what it me ans for a stipulation to be tantamount to a guilty ple a. Th er e, the defendant argued he w as entitled to receive an admonishmentand pers onally waive his confrontation right because the St ate’s entire case aga inst him was presented by stipulation. I n reje cting t he assertion that this alone rendered the stipulation equivalent

t o a plea of guilty , we repeated that a stipulation may be tan tamountto a guilty plea in two instances: (1) when the State’ s entire case is to be presented by stipulation and

the defendan

t doe s notpresent

or prese rve a de fense; or

(2) th e stipula

tion includ

es a statement that the e

vidence is suffic ient to co nvict th e defen dant. Rowell
, 229 Ill. 2d at 1 02, qu otin g Camp bell , 208 Ill. 2d at 218. Focusingon the first in s tance, w e made it c lear tha t the test i s8 The second instance u nder which a stipulation may be considered tantamount

to a guilty plea, i.e. that the stipulation includes a statem ent that the evidence is sufficien

t to convict the de fendant, was not at iss ue.

-16- conjunctive, requiringboth el ements to be present before admonishm ents and a personal waiver are require d. Although the State’s entire case in Rowell was pr es ented by stipulation, the defendant also preserved a defense by arguing that the evidence was insufficient

to supporta conviction and that the charging instrument

was deficient. Rowell , 229 Ill. 2d at 102, citi ng People v . Rowell , 375 Ill. App. 3d 421, 434 (2006). Because the defenda nt preserved a defense, the stipulation was not tantamount to a g ui lt y plea, 8 and

“ C ampbel l did not re quire the

trial cou rt or cou nsel to ad

monish defendant and ensure that the stipulation was part of the record.” Rowell , 229 Ill. 2d at 102.
Inthe instant appeal, defendant co nten ds 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 rece iv ed personal admonishments and persona lly agree d to its entr

y. We reject d efen dant’s assertion, and hold that this case does not present the circumstance whe re the stipulation was tanta

mount to a g

uilty plea, wh ich would remove i t fromthe ambit of the Campbell general rule. As we have repeat edly held, a stipulat

ion is tanta

mount to a g

uil ty plea

–and therefore requires a defen

dant’s personal admonishment and ag reemen t–in only two instances: (1) the St ate’s entire case is to be presented by stipulation and

the defendant

does not present

or preserve a defense;

or (2) the stipulatio n include s a statement that th e eviden ce is sufficient to convict the defendant. Rowell , 229 Ill. 2d at 102 ; Phillips , 217 I ll. 2d at 28 3; Campbell, 208 Ill. 2d at 218. Applying this rule to the ins tant ap peal, it is clear that neither instance is met . Althou gh the State’s entire case was pre sented by stipulation, defense

counse l ad equately pre served a defense by preserving

the suppression issue for appellate review. The stipulation twice objecte d to evide

nce and testimony

“on th e same g rounds presented” in the earlier suppression motion, twi ce requ ested the circuit cou rt to reverse its denial of the suppression motion, and-17- objec ted to all evidence seized from defendant’s home and h i s statemen ts to po lice “ as the ille ga l fruit o f 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 st ipulation was not ta

ntamount to

a guilty plea re quirin g tha t defendant receiv e personal admoni shments a nd that he

agree to its

en tr y. Nevertheless, the appellate court determined that the stipulation

was invalid pu

rsuant to its h oldi ng that in all

instances where a defendant enters in

to a stipula

tion–whether it isfu nctional ly equivalent

to a guilty plea

or not–the record m

ust clea rly show that the defenda

nt was ap prised of its specif ic conte nt. 395 I ll. App. 3d at 444. Applying this rule, the a ppellate co urt held that Wechter’s performance was deficient bec aus e the record failed to show that defendant was advised of the specific content of the stipulation, reasoningthat defendant’s “ignorance ” of the stipulation’s content violat ed his confr ontation r ight bec ause he c ould not me aningf ull y object. 395 Ill. App. 3d at 437. We observe, howeve r , that in the

course of its opinion, the appellate co ur t readily ac knowledged that

our decisions in Campbell

and Phi lli

ps “stresse[d]” that where a stipulation “is a m at te r o f s ou nd tr ia l t ac ti cs or st ra te gy, a defendant need not be advised about the procedural ramificationsof stipulations ingeneral or about

the consequences of

a proposed stipulation for that particular case” (395 Ill. App. 3d a t 438-39 ), noted that neither Campbell nor Phillips “express ly”

held that a court m ay

not validly accept a stipulation unless the defendant is appr ised of its content (395 Ill. App. 3d at 439), and admit ted that Phillips established that counsel and the circuit court need not admonish the defendant of the implication s and con sequences of a stipulation (395 Ill. App. 3d a t 441). We therefore question how the appellate court–in light of the above-referenced

passag es–could

neverth eless conclude th at it is “implicit” in P hillips 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 appella te court departed from the hold ings in our prior opinions that foreclosed the reas oning 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

evidentia ry stipu lations in a

ll cir cumst ance s. We repeat that Campbell

sets fort h the general rule that defense counsel may validly waive a defenda nt’s rig ht of conf

rontati o n where two elements are met: (1) the defendant does not object to the stipulation; and (2) the d ecision to stipulate is a matter of trial tactics and st ra te gy. Campbell, 208 Ill. 2d at 217; see also Rowell , 229 Ill. 2d at 102; Phillips , 217 Ill. 2d at 283. We f urther r epeat th at Campbell

carved out a limite d exceptio n to this general ru

le in only those instances wher e the stipulation is the functional equivalent of a guilty plea, on the basis that “counsel cannot stipulate to facts which

estab lish the guilt of the accused” ( Campbell
, 208 Ill. 2d at 219) because suc h actions implicate a separa te and di stin ct con stit utio nal ri gh t t hat belon gs exclus ively

to

a defenda nt: the rig ht to plead not guilty. Campbell
, 208 Ill. 2d at 219. Campbell and its progeny

establish that a stipulation is tantamo unt to

a guilty plea w

hen one of two conditions is met: (1) the State present s its entire case by

stipulation and

defendant fails to preserve a defense;

or (2) the stipulation concedes that the evidence i s suffi cient to support a guilty ve

rdict. Campbell
, 208 Ill. 2d at 218; see also Rowell
, 229 Ill. 2 d at 102; P hill ips , 217 Ill. 2d at 283. We also repeat our holding in Phillips that exce pt in those specified instances where the stipulation is tantamount to a guilty plea, Campbell “attac hed no other restrictions to d ef

ense counsel’s authority to stipulate to the admission of

evidence,” and “we imposed no obligations on the trial court or counsel to a dmonish t he 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 ins tant appe al, it is clear that Wechter validly waived defendant’s confront ation right by e ntering into the stipulation: defendant did not object to its ent ry and the de cision to stipulate was a matter of trial tactics and strateg y. First, the record clearly

establishes that defendant did not object to the stipula

tion. As no ted ear

lier, de fendant

was pre sent i n open court when the stipulation was presented, and the cour t aske d defendant directly if he w

ished to be b ound by the stipulation. Defendant

responde d in the af

fir mative. We note tha

t despite defendant’s res po nse being a clear and unequivoc al statement of-19- agree ment, defendant now contends that the recor d shows he “obviousl y objected” to the entry

of the stipulation. Defendant’s efforts to disavow his agreement are unava iling. In fact, altho ugh Ca mpb ell “impose[s] no obliga

tions on the

trial cou rt or cou nsel to admonish the defendant and ensure

that the a dvisemen t is made a part of the record” (

Phillips , 217 I ll . 2d at 283 ), defe ndant nev erthele ss received the benefit of the circuit court inquiring if he ag re ed to the stipulation. At no time

did defendant

express disapproval, concern or confusionwhen the stipulat ion was discussed during the court procee dings. Accordingly , we conclude that defendant did not object to the entry of the stipulation.
Inaddition, we hold that the decision to proceed by stipul atio n
was a matter of trial tactics and strategy . From the outset of this case, Wechter belie ved th at the best s trate gy was to s uppress t

he disc removed from def endant’ s home by

Bailey . If s

uccessf ul, this would, inWechter’s view, also lead to the suppression of defendant’s statemen ts to Lame la, leaving the St ate with little

–if any –evidenc e to support the charge. To this end, the parties immediately litigated the suppressionissue. During that hearing, defe ndant had the op

portunity to confront the same witnesses who would like ly b e the main witnesses at defe

ndant’s t rial. Although defendant

did not prevail on the mo tion, Wechter preserved the suppression issue at every juncture in the case. After filing a n unsucc ess fu l motion to reconsider, Wechter included the suppr ession issu

e in the sti pulation, and made

numerous , specific objections to the introduction of evidence from the computer disc taken fr

om d efendant ’s home by Ba iley, 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. Inaddition, Wechter

also stated that while preserving thesuppression issue for appeal, his strategy was also to craft the stipulation in such

a way as to kee p as much i

ncrimina ting evi dence o

ut of it as possible. The record therefore supports Wechter’ s claim that the stipulat io n
was part of the defense strategy he pursued thr ougho ut the proceedings. The record

also rev eals that, contrary to defendant’s assertion that he and Wecht

er had “ limited co nsultation s, ” We chter r egular ly9 Rule 318(a) (155 I ll. 2d R. 318(a)) p

rovides that in all ap

peals “ an y appellee, respondent, or

coparty m

ay seek and

obtain any relief warranted by the record on appeal without having filed a separate petition

for leav e to appeal or notice or cros s-appeal or sep arate appeal.” See also Poindexter

v. State o f Illinoi s , 229 Ill. 2d 194, 205 n.4 (2008) (“This court has invok ed Rule 318(a) in fin ding t

hat a llowanc e of one

party ’s petiti on for l eave t o appeal brings before this court the othe r party’s requests for c

ross-relief.”) We note, howev

er, that the cover of defendant’s brief did not request crossrelief. Rule 315(h) prov ides: “If the brief of the appel lee co ntains argum ents in supp ort of c ro ss-r elief, the cover of the brief shall be captioned: ‘Brief of Appellee. Cross-Relief R equested. ’ ” 210 Ill. 2d R. 315(h).

-20- consulted with def endan t about this

strateg y, c ommunica

ting with him over the phone, in person at the courthouse, and by written correspondence. In a letter dated Septembe r 2, 200 4, 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, anddiscussing the likelihoodof succe ss. One wo uld reasonably

believe that def

endant,

a colleg e-educ ated pro fessiona l, would read this correspondence and pose questions, if necessary . Based upon defendant’s testimony at the posttrial hearing, howe ver, it appea rs that he

was rela

tively uninterested

and disengaged in the

process, repeatedly

stating that

he would agree to whatever his fa ther decided. Thus, because both prongs of the ge ne ral ru le set for

th in Campbell were me t, Wechte r vali dl y waived de fendant’s right of confrontation

by en tering into the stipulati on. Accordingly , Wechter’s actions in this reg ard wer e not def icient, a nd the fir st pro ng o f the Strickland

in e ffectiv eness inq

uiry has not be en satisf

ied. Be cause both pr ongs of the Strickland two-part test must be satisfied t o establish an ineff ective a ssistance

of counse l claim, f

ailure to establish deficie nt perfo rmance

is fatal t

o defend ant’s c la im. Strickland , 466 U.S. at 6 97, 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 convict i on, defendant contends that the a

ppellate court erred

in holding that the circuit court

correc tly denied his motion to quash arrest and s uppress evidence. 9-21- Alth ough defendant acknowledges that the f ourth amendment protection

agains tu nreasonable searches and seizures doe s not gener ally apply to private individuals, he conte nds that the police violated this guarantee because their se arch of the disc given to them by Bailey e

xceeded the sco pe 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 decis ion in People v. Phillips , 215 Ill. 2d 554 (2005), the appella te cour t’s ho lding

shoul d be u

phel d. 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, 6 99, 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 fact ual fi ndin gs may be reje cted only

if they are ag ainst the manifest weight of the evidence. People v. Sorenson
, 196 Ill. 2d 425, 431 (2001). The reviewing court then asse sses the established facts in rela

t ion to the issues presented and may draw its own conclusions in deciding what relief, if any , should be granted. Harris , 2 28 Ill. 2 d at 230. A ccordin gly , this cour

t review s de no vo th e ultimate legal question of whether suppress ion is warranted. People v. Luedemann , 222 Ill. 2d 530, 542-43 (2006).
In Phillips , the defendant took his com pu ter to have it repaired. After making the repairs, the technician tested t he comp uter by playing a video clip stored on its hard drive. The video clip depicted what appea red to be a young

girl engaged in a

sexual act. The technician

immediate ly

contacted a police office

r acqua intance , 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 cli

p without f

irst seeking a warrant. The officer a greed that the vide o depic ted 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 stateme

ntadmitting that he possessed child pornography

. Phillips , 215 Ill. 2d at 560. The circuit court denied defendant’s motion to q uash arrest and suppress evidence, holding that

the fourth a

mendment

did not app ly to the technician’s initial search of the computer, as it was theact of

a private citizen, not of an agent of lawenforcement. Phillips , 215 I ll. 2d at 560-61. The court further found that the police viewed the same-22- video as the te chnicia

n, and, by

doing so , they

acquire d probab le 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 fou rth amendment applies only to gover nment action” and, therefore, “[a] search by

a privat e person does not vi olate the

fourth amendment.” Phillips , 215 Ill. 2d at 566. We further held that the fourth amendment doe s not prohibit the government from using in forma tion discover

ed by a privat e searc h, beca use “the private search has already

frustrated any expectation that the

informat ion will remain private.” Phillips , 215 Ill. 2d at 566. Therefore , we explained that where the government usesprivately discover ed information

to investig ate a crime without first obtaining a w arrant , “the fo urth amendment

quest ion i s whet her th e inve stiga tion ‘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 t he comput

er tech nician be cause the technician did no t provid e the police with a “particular description” of the contents of the file t ha t h e ha d vi ewe d. In rejecting this argument, we held that the technician’s statement to the first officer at the scene that the video app eared t o be child pornography

provided a sufficient

description of

the file’ s content s. Therefore, when the officers viewed that file, t hey “g ained no new material information,” but “merely confirmed [the techni cian’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 bey ond t he scope of the technician’s search. Phillips , 215 Ill. 2d at 567. Here, defendant

conced es that the re is no fourth amendment issue with regard to Bailey

, who acted in h er p rivate capacity when she took defendant’s computer disc into her own h ome. There, she viewed the titles of the files on the disc and watched one video clip inwhich a mi

n o r girl appeared to eng age in sexual activity w ith an adult man. This discovery c aused Bailey to contact Mal ki n, who in turn, contacted Lamela

. Defendant

co nte nds that Malkin and Lamela, however
, impermi s sibly

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

to defendant, the incriminating nature o f the disc

was not readily apparent to Malkin or Lamela , as it was not mar k ed as containing ch il d p or no gr ap hy. In a ddition, de fendant

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. Alth ough 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 vie

wed. We reject defendant’s arg uments. Bailey testified that in ad dition to viewing a video file containing apparent child pornography , she also sea rched th e disc wid

ely enough to discover severalfile names she found “disturbing” and sugg estive of child por nogra phy , such as “

‘ mother f* **s 8-y

ear-ol d.’ ” Thu s, Bailey’ s own search was of sufficient scope to a llow polic e to perform a general review of th e files on the disc for the presence of child pornography . Defendant has pointed to nothing in support of

the claim that Malkin and Lamela sear ched anywher e on the disc that by its file name

li ke ly would not co ntain child porno graphy. Al thou gh defendant contends that

the disc “ could

have co ntained v ast amoun ts of personal information” belonging to him, he fails to p o int to any evidence in the record supporting this assertion. In sum, Bailey ’s seizure and viewing of the disc were no t stat e actionimplicating the fourth amendment. When Bailey presented the disc to Malkin and Lamela, she had already frustrated defendant’s expectation of privac y. Phillips , 215 Ill. 2d at 566. There is no evidence to suppo rt defen dant’s contention that the scope of the investi gat ion of the disc by Malkin and L amela exceeded Bailey ’s prio r, private search; it merely confirmed the results of the pri vat e search. Therefore, we conclude that the circuit court properly denied defenda nt’s motion

to quash a

nd suppre ss.

C. Defendant’s Remaining Claims of Error
Inhis brief, defendant also raises the following cla i m s of error whichthe appel l ate cour

t decline d to addre ss in its opin ion: (1) the State committed a discovery violation by failing to timely produc e the audiotape of Detective Lamela’s intervie w of def endant; (2) defe

nse counsel was ineffective in failing to cha ll enge the State’ s late productionof

the audio tape; (3 ) counse l was also ineffe ctive be cause-24- he incorre ctly

advised defendant regar

ding the period of

sex offender registration; and (4) the evide nce was insuffic ient to sust

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

er of the issues ra ised in de fendant ’s brief

, we rema nd this

cause to the appellate court to dispose of t hos e claims raised before that cour t, but not previously ruled upon. People v. Lowery , 178 I ll. 2d 462, 473 (1997) (it is appropriate to remand an issue raised but not decided in the appellate court).

CONCLUSIO

N For the foregoing reason s, we reverse the judgment of the appella te court. We remand this cause to t he ap pellate court for resolution of the r

emaining issues.

Appellate court judgment reversed;

cause remanded.