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First Division
November 4, 2002

JUSTICE COHEN delivered the opinion of the court:

On April 1, 1998, defendant David Lundy was charged by information (98 CR 9709) withone count of possession of cocaine and one count of possession of heroin. 720 ILCS 570/402(c)(West 1992). While on pretrial release, defendant was also charged by information (00 CR17110) with one count of possession of cocaine with intent to deliver and one count ofpossession of heroin with intent to deliver. 720 ILCS 570/401(d) (West 1992). On February 5,2001, a bench trial was held in case number 00 CR 17110.⁽¹⁾ The trial court found defendantguilty of both counts of possession of a controlled substance with intent to deliver and set March8, 2001, as both the trial date in case number 98 CR 9709 as well as the sentencing date for bothcases. On March 8, 2001, following a bench trial in case number 98 CR 9709, defendant wasfound guilty of both counts of possession of a controlled substance. Defendant subsequentlymade an oral motion for a new trial. The trial court denied the motion. The trial court thensentenced defendant to concurrent prison terms of one year for possession of cocaine and oneyear for possession of heroin (98 CR 9709). Defendant was also sentenced to concurrent prisonterms of seven years for possession of cocaine with intent to deliver and seven years forpossession of heroin with intent to deliver (00 CR 17110). Defendant's seven-year sentence forpossession of a controlled substance with intent to deliver was predicated on his status as a ClassX offender (730 ILCS 5/5-5-3(c)(8) (West 1998)). The trial court ordered defendant's possessionsentences and sentences for possession with intent to deliver to be served consecutively.

On March 29, 2001, defendant filed two separate notices of appeal of his convictions andsentences in both case number 98 CR 9709 and case number 00 CR 17110. Both appeals wereassigned separate appellate court numbers. On December 26, 2001, the two appeals wereconsolidated. On appeal, defendant argues that: (1) the State failed to prove him guilty beyond areasonable doubt in case number 98 CR 9709 as the State failed to establish that the narcoticsrecovered from defendant were the same narcotics that were admitted at trial; (2) the trial courtimproperly shifted the burden of proof to defendant in case number 98 CR 9709, therebyviolating defendant's due process rights; (3) defendant was denied the effective assistance ofcounsel predicated on counsel's failure to file a motion to quash defendant's arrest and suppressevidence in case numbers 98 CR 9709 and 00 CR 17110; and (4) both the imposition of a ClassX sentence based on prior felony convictions (730 ILCS 5/5-5-3(c)(8) (West 1998)) andconsecutive sentences (730 ILCS 5/5-8-4(h) (West 2000)) are unconstitutional based on the ruleannounced in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). For the reasons that follow, we vacate defendant's convictions and sentences for possession of acontrolled substance (98 CR 9709) but otherwise affirm.

BACKGROUND

A. Case Number 00 CR 17110

Officer Robert Kujawski testified that on May 31, 2000, at approximately 10:35 p.m., heset up surveillance near 602 North Central Park Avenue in Chicago, Illinois. According toOfficer Kujawski, the area surrounding 602 North Central Park Avenue was a "known locationfor high narcotics sales." While conducting surveillance from a distance of approximately 75feet, Officer Kujawski observed defendant engage in what he suspected to be three separatenarcotics transactions. Officer Kujawski testified that the lighting conditions were "artificial"and that he had a clear view of defendant.

Officer Kujawski observed defendant standing on the corner of 602 North Central ParkAvenue yelling "Rocks, blows." Officer Kujawski testified that on three separate occasionsdefendant would engage in brief conversation with an unknown individual, accept an unknownamount of United States currency, bend down, pick up a small box, remove an item, replace thebox and hand the item to the unknown individual. Officer Kujawski further testified thatdefendant would then walk northbound and hand the United States currency to a black malewearing a black jacket and blue jeans. According to Officer Kujawski, the box that defendantpicked up and from which he removed items during the suspected narcotics transactions waslocated near the base of the sidewalk next to the grass, approximately a foot to two feet fromwhere defendant was standing.

After observing defendant engage in the third such transaction, Officer Kujawski radioedhis partner, Officer Bora, to detain both defendant and the man wearing the black jacket and bluejeans. Officer Kujawski remained at the surveillance location and observed Officer Bora detaindefendant. The man wearing the black jacket and blue jeans fled on foot, evading police custody. Officer Kujawski then left the surveillance location and recovered the box at the base of thesidewalk next to the grass. Upon opening the box, Officer Kujawski found five plastic "baggies"containing "white rocks" and six tinfoil packets containing "white powder." A custodial searchof defendant's person recovered $10. At the police station, Officer Kujawski inventoried the fiveplastic bags and the six tinfoil packets under inventory number 2362677. Officer Kujawski didnot inventory the $10 recovered from defendant.

On cross-examination, Officer Kujawski was asked a series of questions with respect tohis surveillance location. Officer Kujawski testified that he was conducting surveillance from aslightly elevated porch located approximately four or five houses down from where defendantwas standing. Officer Kujawski also testified that he had no knowledge of Officer Bora'slocation prior to detaining defendant. Officer Kujawski admitted that he was unable to describethe clothing defendant was wearing at the time of the incident. He further admitted that he wasunable to remember the sex or the clothing of the three unknown individuals who approacheddefendant and purchased narcotics.

The parties then stipulated that Melissa McCann, a forensic scientist employed by theIllinois State Police Crime Lab, received six items containing suspected heroin and five itemscontaining suspected cocaine under inventory number 2362677. After chemical analysis,McCann determined that one of the items containing suspected heroin weighed 0.1 gram andtested positive for heroin. The other items containing suspected heroin weighed an estimated 0.5gram and were not analyzed. McCann further determined that one of the items containingsuspected cocaine weighed 0.1 gram and tested positive for cocaine. The other four itemscontaining suspected cocaine weighed an estimated 0.7 gram and also were not analyzed. Theparties further stipulated that McCann "employed proper means in testing the items, *** herfindings were within a reasonable degree of scientific certainty, and the chain of custody wasintact at all times." Defendant neither testified nor called witnesses on his behalf.

After closing arguments, the trial court found defendant guilty of both counts ofpossession of a controlled substance with intent to deliver. The trial court then set March 8,2001, as both the trial date for case number 98 CR 9709 and the sentencing date for each case. B. Case Number 98 CR 9709

Officer Brian Hansen testified that on March 1, 1998, around 5:15 p.m., he and hispartner, Officer Frenzel, received a radio call while in their squad car in the vicinity of 1014South Racine Avenue in Chicago, Illinois. The call described a black male suspected ofpurchasing narcotics and reported that the suspect was walking northbound through a ChicagoHouse Authority (CHA) courtyard toward 1014 South Racine Avenue. As Officer Hansen wasdriving, he observed a man fitting the radio description walking across the CHA courtyardtoward 1014 South Racine Avenue. Officer Hansen immediately made a U-turn travelingnorthbound on South Racine Avenue to an alley located at 1014 South Racine Avenue. OfficerHansen then headed westbound down the alley when he observed defendant exiting the CHAproperty.

Officer Hansen parked his vehicle, exited and approached the suspect, later identified asdefendant, and ordered him to stop. Defendant continued to walk northbound asking, "What doyou want with me?" Officer Hansen testified that from a distance of 20 to 25 feet, he thenobserved defendant "place his right hand into his right jacket pocket and toss a clear plastic bagcontaining numerous multi-colored plastic bags and a shiny metal object to the ground." OfficerHansen again ordered defendant to stop, but defendant once again ignored the officer's command. Officer Hansen then chased after defendant and detained him. In response to the prosecutor'scharacterization of the evidence, Officer Hansen testified that after he detained defendant herecovered the "item" that defendant had tossed to the ground. He later inventoried that "item"under inventory number 1951630.

On cross-examination, Officer Hansen admitted that he could not remember the specificdescription of the man reported in the radio call. Officer Hansen further testified that defendantwas with a woman at the time of his arrest.

The parties then stipulated that Clifford T. McCurdy, a forensic scientist employed by theIllinois State Police Crime Lab, received six "packages" containing a "chunky substance" and one"package" containing "powder" under inventory number 1951630. After chemical analysis,McCurdy determined that the six "packages" containing a "chunky substance" weighed 1.06grams and tested positive for cocaine. McCurdy further determined that the single "package"containing "powder" weighed 0.1 gram and tested positive for heroin.

Defendant then called his cousin, Haveard Welch, to testify on his behalf. Haveardprovided a contrary account of what occurred on the afternoon of March 1, 1998. Haveardtestified that on the date in question, at approximately 4 p.m., he was driving with defendant nearthe intersection of Racine Avenue and Taylor Street when they were pulled over by a policevehicle. According to Haveard, a police officer asked him to exit the vehicle and another officerasked defendant to exit the vehicle. Both Haveard and defendant complied with the officers'commands. Haveard was then searched by the same police officer who ordered him to exit thevehicle. After the officer failed to find anything, Haveard testified that the officer "told him toget lost." Haveard further testified that he had no independent knowledge of what happened todefendant after he left, but he later discovered that defendant was incarcerated.

On cross-examination, Haveard admitted that he did not remember whether the officerswere in uniform. He further admitted that he did not remember whether the officers were drivinga marked or unmarked police vehicle or whether the officers activated their flashing lights andsirens.

After closing arguments, the trial court found defendant guilty of both counts ofpossession of a controlled substance. Defendant made an oral motion for a new trial which thetrial court subsequently denied. The court then sentenced defendant for both his possessionconvictions (98 CR 9709) and his earlier convictions for possession with intent to deliver (00 CR17110). Defendant was sentenced to concurrent prison terms of one year for possession ofcocaine and one year for possession of heroin (98 CR 9709). Defendant was also sentenced toconcurrent prison terms of seven years for possession of cocaine with intent to deliver and sevenyears for possession of heroin with intent to deliver (00 CR 17110). Defendant's seven-yearsentence for possession of a controlled substance with intent to deliver was predicated on hisstatus as a Class X offender (730 ILCS 5/5-5-3(c)(8) (West 1998)). The trial court then ordereddefendant's possession sentences and sentences for possession with intent to deliver to be servedconsecutively. This appeal followed.

ANALYSIS

A. 98 CR 9709

Defendant first argues that the State failed to prove him guilty beyond a reasonable doubtof possession of a controlled substance in case number 98 CR 9709 because the State failed toestablish that the narcotics recovered from defendant were the same narcotics that were admittedat trial.

"Generally speaking, a defendant is precluded from attacking or otherwisecontradicting any facts to which he has previously stipulated. [Citation.] Here,defendant did stipulate to certain facts at trial. However, defendant does not nowattempt to attack or otherwise contradict those specific facts but, rather simplycontends that given all of those stipulated facts as well as their plain, natural andordinary meaning [citation], the State nevertheless failed to establish a sufficientlycomplete chain of custody. [Citation.]" People v. Gibson, 287 Ill. App. 3d 878,880 (1997).

"A criminal conviction will not be set aside unless the evidence is so improbable orunsatisfactory that it creates a reasonable doubt of the defendant's guilt." People v. Clemons, 277Ill. App. 3d 911, 923 (1996). "In addressing the question of the sufficiency of the evidence it isnot the court's role to reweigh the evidence." People v. Hendricks, 325 Ill. App. 3d 1097, 1110(2001). Rather, the relevant question on review is whether, after considering the evidence in thelight most favorable to the State, any rational trier of fact could have found the essential elementsof the crime beyond a reasonable doubt. People v. Jimerson, 127 Ill. 2d 12, 43-44 (1989)."Evidence of a proper chain of custody is required where physical evidence is notreadily identifiable or is susceptible to tampering or contamination. The chain ofcustody must be sufficiently complete to make it improbable that the evidence hasbeen subject to tampering or accidental substitution. [Citation.] In the absence ofevidence that the sample has been compromised, the State need not exclude everypossibility of tampering or contamination, only that it took reasonable protectivemeasures after the evidence was seized and that it is unlikely that the evidence hasbeen altered. [Citation.]

Once the State has established the probability that the evidence was notcompromised, and unless the defendant shows actual evidence of tampering orsubstitution, deficiencies in the chain of custody go to the weight, notadmissibility, of the evidence. [Citation.] Thus, even where there is a missinglink in the chain of custody, trial courts have properly admitted evidence wherethere was testimony which sufficiently described the condition of the evidencewhen delivered which matched the description of the evidence when examined. [Citations.]" People v. Bynum, 257 Ill. App. 3d 502, 510 (1994).

Defendant asserts that because the State failed to present any evidence as to whatsafekeeping procedures, if any, were utilized to assure that the narcotics taken from defendanthad not been contaminated, altered or substituted, defendant's conviction for possession of acontrolled substance should be reversed. Specifically, defendant asserts that "[Officer]Kujawski⁽²⁾ did not testify that he placed the items in any kind of sealed container or bag, nor thatthe state crime lab received the items in a sealed condition; *** [Officer] Kujawski did not testifythat he kept the items in any kind of locked container or compartment, nor that the items werestored separate from any other items of suspected contraband; and *** there was no testimony asto who stored the items, who had access to the items, or where the items were stored." Defendant cites to People v. Rhodes, 81 Ill. App. 3d 339 (1980), People v. Valentin, 66 Ill. App.3d 488 (1978), and People v. Pagliara, 47 Ill. App. 3d 708 (1977) to support his contention thatthe State must present evidence of the extensive measures noted above in order to establish aproper chain of custody.

At trial, Officer Hansen presented the following testimony on the issue of chain ofcustody:

"Q. [PROSECUTOR:] What did [defendant] do?

A. [OFFICER HANSEN:] He looked in my direction saying, 'What do youwant with me[?]' He then continued to walk northbound. At that time he placedhis right hand into his right jacket pocket and tossed to the ground a clear plasticbag containing numerous multi-colored plastic bags and a shiny metal object ***.

* * *

Q. [PROSECUTOR:] Did you recover the item that he had dropped to theground?

A. [OFFICER HANSEN:] Yes.

Q. [PROSECUTOR:] And did you subsequently inventory that item thatyou found the defendant to have?

A. [OFFICER HANSEN:] Yes.

Q. [PROSECUTOR:] And did you inventory it under Inventory Number1951630?

A. [OFFICER HANSEN:] Yes." (Emphasis added.)

Following Officer Hansen's testimony, a stipulation was entered into between the parties:

"[PROSECUTOR]: Your Honor, at this time we seek leave to receive astipulation. That stipulation, by and between the parties, is that Inventory Number1951630 was received by Forensic Scientist Clifford T. McCurdy, of the IllinoisState Police Crime Lab, Division of Forensic Services, that Clifford T. McCurdywould be qualified to testify as an expert in the area of forensic science; that hereceived *** 6 packages of a chunky substance and he tested those 6 packagesand found it [sic] to contain 1.06 grams of cocaine. He also received one packageand found it to contain 0.1 grams [sic] of powder *** which was heroin; andthere were two plastic bags with residue where there was no analysis done.

DEFENSE COUNSEL: So stipulated, Your Honor, that that would be thetestimony of the chemist.

THE COURT: All right. That stipulation will be accepted as part of theevidence." (Emphasis added.)

The State does not dispute that it failed to present specific evidence as to what detailedsafekeeping procedures took place. Rather, the State asserts that the "combined testimony of[Officer Hansen] and the stipulation from the forensic scientist [McCurdy] who performed thelaboratory analysis was sufficient to establish the chain of custody."

While we agree that Rhodes, Valentin and Pagliara do not establish a steadfast rule thatthe State must demonstrate such extensive measures in order to sustain its burden of establishinga proper chain of custody, the State was required to prove that it was improbable that thenarcotics recovered from defendant had been compromised. Bynum, 257 Ill. App. 3d at 510. Therefore, the State was required to show, at the very least, that the condition of the narcoticsdelivered by Officer Hansen matched the description of the narcotics examined by McCurdy. Bynum, 257 Ill. App. 3d at 510. On the record presented, the State has failed to do so. The onlytestimony provided by Officer Hansen with respect to chain of custody was that he recoveredfrom defendant "a clear plastic bag containing numerous multi-colored plastic bags and a shinymetal object" and that he subsequently inventoried this item under inventory number 1951630. Officer Hansen did not testify as to the exact number of multicolored plastic bags he recovered. Officer Hansen did not provide a description of what he found inside the multicolored plasticbags or what he believed the shiny metal object to be. Additionally, Officer Hansen did nottestify as to the weight of the multi-colored plastic bags or the shiny metal object he recovered.

Because Officer Hansen did not provide this testimony, the only description that matchesbetween Officer Hansen's testimony and McCurdy's stipulated testimony is the inventorynumber-1951630. Moreover, there are inconsistencies between Officer Hansen's description ofwhat he recovered from defendant and the stipulation entered describing what McCurdyexamined. Officer Hansen testified that he recovered and inventoried numerous multicolored"bags." The stipulation, on the other hand, states that McCurdy received and tested a total ofseven "packages."

Most important, however, is the failure of the stipulation to describe the "packages" at all. We would be willing to discount the bags/packages distinction if other evidence provided acertain indicia of reliability that the "bags" obtained by Officer Hansen were the same as the"packages" examined and tested by McCurdy. The State could have easily demonstrated this bywording the stipulation to state that McCurdy received and tested six multicolored "packages"and one tinfoil or shiny metal "package." Instead, the only evidence the State provided todemonstrate that the narcotics recovered by Officer Hansen were the same as those examined andtested by McCurdy was the inventory number. We hold that the State cannot demonstrate areasonable probability that the narcotics used to convict a defendant have not been altered orsubstituted-thus establishing a complete chain of custody-by merely providing an inventorynumber without other corroborating evidence.

Furthermore, we do not find that defendant's failure to argue, either at trial or on appeal,that the narcotics recovered by Officer Hansen were contaminated, tampered with or substitutedmilitates against reversal of defendant's conviction. Based on our determination that the Statehas failed to sustain its burden of proof, defendant's burden to show actual evidence of tamperingor substitution was never triggered. See Bynum, 257 Ill. App. 3d at 510 (defendant is notrequired to show actual evidence of tampering or substitution unless the State has firstestablished the probability that the evidence was not compromised).

Here, the State has failed to demonstrate a reasonable probability that the narcoticsevidence used to convict defendant had not been altered or substituted. Due to this failure, thenarcotics evidence should not have been admitted at trial. Without the narcotics evidence, therecan be no crime. Accordingly, pursuant to our authority under Supreme Court Rule 615(b)(4),we vacate defendant's convictions and sentences on the possession charges (98 CR 9709). 134Ill. 2d R. 615(b)(4); People v. Crisp, 242 Ill. App. 3d 652, 665 (1992). Because this issue isdispositive, we need not address the remaining arguments defendant asserts on appeal as to casenumber 98 CR 9709. We now address defendant's arguments with respect to case number 00CR17110.

B. 00 CR 17110

1. Ineffective Assistance of Counsel

Defendant next argues that his trial counsel was ineffective in case number 00 CR 17110for failing to file a motion to quash his arrest and suppress the fruits of that arrest.

We review claims of ineffectiveness of counsel under the two-pronged test set forth inStrickland v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068(1984), which our supreme court recognized in People v. Albanese, 104 Ill. 2d 504, 526-27(1984). To determine whether there has been a violation of the defendant's sixth amendmentright to effective assistance of counsel, the defendant must show: (1) that his counsel's"representation fell below an objective standard of reasonableness"; and (2) that there is a"reasonable probability that, but for counsel's unprofessional errors, the result of the proceedingwould have been different." Strickland, 466 U.S. at 694, 80 L. Ed .2d at 698, 104 S. Ct. at 2068;People v. Shatner, 174 Ill. 2d 133, 144 (1996); People v. Consago, 170 Ill. App. 3d 982, 987(1988). "If an ineffective-assistance claim can be disposed of on the ground that defendant didnot suffer sufficient prejudice, the court need not decide whether counsel's errors were seriousenough to constitute less than reasonably effective assistance under the deficiency prong." People v. Pacheco, 281 Ill. App. 3d 179, 183 (1996), citing People v. Eddmonds, 143 Ill. 2d 501,512 (1991).

"A trial counsel's failure to file a motion to [quash arrest or] suppress [evidence] does notestablish incompetent representation when that motion would be futile; as it is a matter of trialstrategy to file such a motion, counsel's decision will be accorded great deference. [Citation.]Such decisions by counsel are thus not ordinarily challengeable on review as ineffective-assistance claims. [Citation.]" Pacheco, 281 Ill. App. 3d at 183. "To establish the prejudiceprong of Strickland in the context of a motion to [quash arrest or] suppress [evidence], adefendant must show that a reasonable probability exists both that the motion would have beengranted and that the outcome of the trial would have been different had the evidence beensuppressed." People v. Nunez, 325 Ill. App. 3d 35, 42 (2001), citing People v. Orange, 168 Ill.2d 138, 153 (1995); People v. Myers, 246 Ill. App. 3d 542, 545 (1993). " ' "A reasonableprobability is a probability sufficient to undermine confidence in the outcome." ' " Nunez, 325 Ill.App. 3d at 42, quoting People v. Erickson, 183 Ill. 2d 213, 224 (1998), quoting Strickland, 466U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

Defendant first argues that his trial counsel was ineffective for failing to file a motion toquash his arrest where the testimony of the surveillance officer demonstrating that his partner hadprobable cause to arrest defendant was "unbelievable."

At trial, the surveillance officer, Officer Kujawski, was the only witness to testify. Officer Kujawski testified that he set up surveillance near 602 North Central Park Avenue--a"known location for high narcotics sales." While conducting surveillance, Officer Kujawskiobserved defendant engage in what he suspected to be three separate narcotics transactions. Officer Kujawski testified that he overheard defendant yelling "Rocks, blows."⁽³⁾ Defendantwould then engage in brief conversation with an unknown individual, accept an unknown amountof United States currency, bend down, pick up a small box, remove an item, place the box backdown and hand the item to the unknown individual. Officer Kujawski further testified thatbetween transactions he observed defendant walk northbound and hand the United Statescurrency to a black male wearing a black jacket and blue jeans. After observing defendantengage in the third such transaction, Officer Kujawski radioed his partner, Officer Bora, to detainboth defendant and the man wearing the black jacket and blue jeans. Officer Kujawski remainedat the surveillance location and observed Officer Bora detain defendant. The man wearing theblack jacket and blue jeans fled on foot evading police custody.

Defendant claims, in a conclusory fashion, that Officer Kujawski's testimony is"unbelievable." We note, however, that in order to establish that his trial counsel was ineffective,defendant is required to show that if his trial counsel had filed a motion to quash defendant'sarrest there is a reasonable probability that the motion would have been granted. People v.Nunez, 325 Ill. App. 3d at 42. Here, in light of the fact that the trial court found defendant guilty,it implicitly found Officer Kujawski's testimony to be credible. See People v. Brisbon, 106 Ill.2d 342, 360 (1985) (it is the responsibility of the trier of fact to determine the credibility of thewitnesses, the weight to be given to their testimony and the reasonable inferences to be drawntherefrom). Therefore, we find that it would have been futile for defendant's trial counsel to file amotion to quash defendant's arrest based on the "unbelievability" of Officer Kujawski'stestimony.

Furthermore, we find that any motion filed by defendant's trial counsel to quashdefendant's arrest would have been futile because Officer Bora clearly had probable cause toarrest defendant.

"Probable cause to arrest exists where the facts and circumstances known to thepolice officer at the time of the arrest, are sufficient to warrant a person ofreasonable caution to believe that an offense had been committed *** by theperson arrested. [Citation.] The existence of probable cause is determined by thetotality of the circumstances at the time of the arrest. [Citation.] A determinationof probable cause is governed by commonsense, practical considerations and notby technical legal rules. [Citation.]" People v. Metcalfe, 326 Ill. App. 3d 1008,1012 (2001).

"When officers are working in concert, probable cause can be establishedfrom all the information collectively received by the officers even if thatinformation is not specifically known to the officer who makes the arrest.[Citation.] Certainly, arresting officers may rely upon dispatches to make arrestseven if they are unaware of specific facts that established probable cause to makethe arrest. [Citation.] In such a case, however, the State must demonstrate thatthe officer who directed the dispatch to be issued possessed facts sufficient toestablish probable cause to make the arrest. [Citation.]" People v. Bascom, 286Ill. App. 3d 124, 127-28 (1997).

Based on the totality of the circumstances at the time of defendant's arrest, we find thatOfficer Kujawski, who radioed Officer Bora to arrest defendant, possessed facts sufficient toestablish probable cause to arrest defendant as a person of reasonable caution could believe thatdefendant had committed three separate illegal narcotics transactions. As Officer Bora wasproperly relying on Officer Kujawski's radio dispatch when arresting defendant, the State was notrequired to independently establish probable cause for Officer Bora's arrest of defendant.

Defendant further asserts, however, that his trial counsel was ineffective for failing to filea motion to suppress the box recovered and subsequently searched by Officer Kujawski. According to defendant, he had a "reasonable expectation of privacy in his box" and "becausenone of the exceptions to the warrant requirement appl[y] * * *, the search of it was illegal."

The State does not dispute that defendant had a privacy interest in the box. Rather, theState asserts that Officer Kujawski's search of the box was a valid warrantless search incident toarrest pursuant to section 108-1(d) of the Illinois Code of Criminal Procedure of 1963 (725 ILCS5/108-1(d) (West 2000)). Section 108-1(d) states: "When a lawful arrest is effected a peaceofficer may reasonably search the person arrested and the area within such person's immediatepresence for the purpose of *** [d]iscovering any instruments, articles, or things which may havebeen used in the commission of, or which may constitute evidence of, an offense." 725 ILCS5/108-1(d) (West 2000). Because we have already determined that defendant's arrest was valid,we find that Officer Kujawski similarly had probable cause to seize the box. We therefore focusour analysis solely on whether Officer Kujawski's warrantless "search" of the box was valid.

"The fourth amendment to the United States Constitution protects peoplefrom unreasonable searches and seizures of their persons, houses, papers andeffects. (U.S. Const., amend. IV.) A search conducted without a warrant is per seunreasonable unless it is a search conducted pursuant to consent, a search incidentto arrest, or a search predicated upon probable cause where there are exigentcircumstances which make it impractical to obtain a warrant. [Citation.] Awarrantless search incident to arrest is valid, provided that the search wascontemporaneous with the arrest, was conducted to prevent the arrestee's seizureof a weapon or his destruction of evidence, and was limited to the area within thearrestee's immediate control. [Citations.]" People v. Alexander, 272 Ill. App. 3d698, 704 (1995).

We find that the record presented on appeal fails to support the conclusion that if trialcounsel had filed a motion to suppress the box and its contents, the motion would have beengranted. The record clearly demonstrates that Officer Kujawski's search of the box wascontemporaneous with defendant's arrest and that the search was limited to an area withindefendant's immediate control. Officer Kujawski testified that he left his surveillance positionimmediately after Officer Bora detained defendant and that it took him 30 to 40 seconds to reachthe scene of the crime and recover the box. Additionally, Officer Kujawski testified that, duringthe course of the narcotics transactions, defendant stood one to two feet from the box and that onthree separate occasions defendant bent down, picked up the box, removed an item and placedthe box back down.

What the record does not demonstrate, however, is whether Officer Kujawski's search ofthe box was conducted in order to prevent defendant's seizure of a weapon or his destruction ofthe box and/or its contents. The only testimony Officer Kujawski provided with respect to hissearch of the box was that he left his surveillance location after Officer Bora detained defendant,walked to the scene of the crime and recovered the box at the base of the sidewalk next to thegrass, and that upon opening the box he discovered five plastic "baggies" containing "whiterocks" and six tinfoil packets containing "white powder." The record is devoid of evidence withrespect to defendant's exact location at time of the search. For example, the record fails toaddress such questions as: Was defendant handcuffed at the time of the search? Was defendantlocked in the squad car at the time of the search? In what direction did the man wearing theblack jacket and blue jeans who took the money from defendant run as Officer Bora approached? Was there a threat that this other man could return to the scene of the crime and destroy the boxor its contents? Absent answers to these questions, we cannot say that had defendant's trialcounsel filed a motion to suppress the box and its contents, there was a reasonable probabilitythat the motion would have been granted.

It is defendant's burden to demonstrate that he has received ineffective assistance ofcounsel. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; People v. Shatner,174 Ill. 2d 133, 144 (1996); People v. Consago, 170 Ill. App. 3d 982, 987 (1988). To prevail onhis claim that his trial counsel was ineffective for failing to file a motion to quash arrest orsuppress evidence, defendant was required to prove that "a reasonable probability exist[ed] boththat the motion would have been granted and that the outcome of the trial would have beendifferent had the evidence been suppressed." People v. Nunez, 325 Ill. App. 3d 35, 42 (2001). Based on the record, defendant has failed to sustain this burden. See People v. Willis, 235 Ill.App. 3d 1060, 1069 (1992) (finding that defendant failed to satisfy the prejudice prong ofStrickland where the record did not support the conclusion that his trial counsel was ineffectivefor filing an improper speedy trial motion).

Because defendant is unable to demonstrate sufficient prejudice resulting from his trialcounsel's failure to file either a motion to quash defendant's arrest or to suppress the box and itscontents, we need not reach the first prong of Strickland, i.e., whether counsel's errors wereserious enough to constitute less than reasonable effective assistance. Pacheco, 281 Ill. App. 3dat 183.

2. Apprendi

Finally, defendant argues that his sentence in case number 00 CR 17110 as a Class Xoffender pursuant to section 5-5-3(c)(8) of the Unified Code of Corrections (730 ILCS 5/5-5-3(c)(8) (West 1998)) (the Code) predicated on his prior felony convictions is unconstitutionalunder Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348,2362-63 (2000). We disagree.

In Apprendi, the United States Supreme Court held that, "[o]ther than the fact of a priorconviction, any fact that increases the penalty for a crime beyond the prescribed statutorymaximum must be submitted to a jury, and proved beyond a reasonable doubt." (Emphasisadded.) Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. By its ownterms, the Apprendi rule does not extend to recidivist statutes. We decline to depart from settledprecedent finding section 5-5-3(c)(8) of the Code constitutional under Apprendi. People v.Young, No. 1-00-3525, slip op. at 14-16 (September 23, 2002); People v. Echols, 325 Ill. App. 3d515, 517 (2001); People v. Childress, 321 Ill. App. 3d 13, 27 (2001); People v. Roberts, 318 Ill.App. 3d 719, 729 (2000); People v. Ramos, 318 Ill. App. 3d 181, 193 (2000); People v. Lathon,317 Ill. App. 3d 573, 587 (2000).

CONCLUSION

Because the State failed to demonstrate a reasonable probability that the narcoticsevidence used to convict defendant in case number 98 CR 9709 had not been altered orsubstituted, we vacate defendant's convictions and sentences for possession of a controlledsubstance. Defendant's convictions and sentences for possession of a controlled substance withintent to deliver (number 00 CR 17110) is affirmed.

Vacated in part; affirmed in part.

McNULTY, J., and GORDON, P.J., concur.

1. The record is unclear as to why defendant's subsequent charges of possession with intentto deliver (allegedly committed while defendant was on pretrial release) were tried beforedefendant's initial charge of simple possession.

2. We note that the arresting officer in case number 98 CR 9709 was Officer Hansen. Officer Kujawski was the surveillance officer in case number 00 CR 17110. In case number 00CR 17110, the parties stipulated that "the chain of custody was intact at all times." Chain ofcustody, therefore, cannot be at issue in that case. However, in its response brief, the Stateaddresses defendant's chain of custody argument as if defendant properly named Officer Hansenas the arresting officer. Because defendant's error in naming the wrong officer appears to be dueto inadvertence and the State will not be prejudiced by our review of the issue, we will addressdefendant's argument as it pertains to case number 98 CR 9709.

3. "Rock" is the street term for cocaine in rock form. People v. Trotter, 293 Ill. App. 3d617, 618 (1997). "Blow" is the street term for white heroin. People v. Durdin, 312 Ill. App. 3d4, 5 (2000).