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The defendant, Joanne Phillips, was convicted by a jury ofunlawful possession of a controlled substance with intent todeliver (720 ILCS 570/401(c)(2) (West 1998)), unlawful possessionof a controlled substance (720 ILCS 570/402(c) (West 1998)),unlawful possession of cannabis (720 ILCS 550/4(a) (West 1998)),and driving while license suspended (625 ILCS 5/6--303 (West1998)). The court sentenced the defendant to four years'imprisonment.

On appeal, the defendant argues that (1) the admission intoevidence of lab reports violated her constitutional right to beconfronted with the witnesses against her, and (2) her mandatoryprison sentence violated the principles of Apprendi v. NewJersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). For the reasons that follow, we affirm.

In the early morning hours of November 5, 1999, a HenryCounty sheriff's deputy, Glenn Hampton, stopped the defendant'svehicle on Interstate 80 because the vehicle had veered off theroadway. Hampton asked the defendant for her license,registration, and proof of insurance. The defendant produced adriver's license and Hampton escorted her to his squad car, whilethe defendant's two passengers remained in her vehicle. Thedefendant indicated that she thought her license was suspendedafter which Hampton received radio confirmation that thedefendant's license was indeed suspended. Hampton placed thedefendant under arrest for driving with a suspended license andreturned to the defendant's vehicle.

After asking the two passengers to step out, Hamptonsearched the interior of the vehicle. Underneath the driver'sseat near the transmission hump, Hampton discovered wrapped in apaper towel 25 individual plastic bags of a white substance thatappeared to be crack cocaine. In the front ashtray, he found ahalf-burnt marijuana cigarette.

Hampton walked back to his squad car and showed thedefendant the substance he recovered from her vehicle. She askedwhat it was. After Hampton read the defendant her Mirandarights, he returned to her vehicle to speak with the passengers.Hampton then walked back to his squad car and told the defendantthat the passengers denied knowledge of the cocaine. He told thedefendant that they needed to discuss the matter and then noticedthe defendant becoming teary-eyed. The defendant told Hamptonthat she needed money to pay bills and feed her children. Shesaid that the two passengers in her car did not know anythingabout the cocaine and that she had picked it up in Chicago. Hampton transported the defendant to the county jail and againread the defendant her Miranda rights. The defendant signed awritten statement which was consistent with the oral admissionsshe made to Hampton.

At trial, the State introduced the defendant's writtenstatement and an Illinois State Police Lab Report signed byDenise Hanley, a forensic scientist, which revealed 5.4 grams ofoff-white chunks containing cocaine and 7.1 grams of untested,off-white chunks. A second report signed by Robert Streight, anemployee of the Henry County Sheriff's office, revealing .1 gramof a plant material containing of cannabis, was also introduced.

In her defense, the defendant testified that Hamptonbadgered her into confessing. She indicated that Hamptoninformed her that if she cooperated the judge would be notified,she would be home with her kids the next day, and Hampton wouldnot notify the Department of Children and Family Services. Inaddition, the defendant testified that only when Hamptonthreatened to charge her with drug trafficking and possession ofa stolen vehicle and indicated that she would never see herchildren again, did she admit knowledge of the drugs. Thedefendant admitted signing the written statement, but testifiedat trial that it was untrue. She maintained that she did notknow of any drugs in the car except the marijuana and she hadtold the passenger smoking the marijuana to stop. At trial,Hampton denied making any promises to the defendant to induce herconfession.

The defendant was convicted of all counts. At sentencing,the trial judge indicated that he would have placed the defendanton probation, but that the legislature had stripped him of hisdiscretion to do so. The defendant was sentenced to four years'imprisonment for the unlawful possession of a controlledsubstance with intent to deliver. The court vacated the unlawfulpossession of a controlled substance count, gave the defendantcredit for time served on the cannabis count, and enteredjudgment on the conviction for driving while license suspended.The defendant appeals from her convictions and sentences.

Relying significantly on the recent case of People v.McClanahan, 191 Ill. 2d 127, 729 N.E.2d 470 (2000), the defendantargues that because an element of her alleged drug-relatedoffenses was proven through lab reports, she was denied her sixthamendment right to be confronted by the witnesses against her.

Section 115--15(c) of the Code of Criminal Procedure of 1963(Code) (725 ILCS 5/115--15 (West 1998)) provides that a statepolice lab report with a supporting affidavit is considered primafacie evidence of the contents, identity, and weight of thesubstance being analyzed in prosecutions for violation of eitherthe Cannabis Control Act (720 ILCS 550/1 et seq. (West 1998)) orthe Illinois Controlled Substances Act (720 ILCS 570/100 et seq.(West 1998)). Section 115--15(c) of the Code further providesthat the report will not be prima facie evidence if the accusedor her attorney demands the testimony of the person signing thereport by serving the demand upon the State's Attorney withinseven days of receipt of the report. 725 ILCS 5/115--15(c) (West1998).

Our supreme court held in McClanahan that section 115--15 ofthe Code is unconstitutional because it impermissibly requires adefendant to take a procedural step to secure his constitutionalright of confrontation and does not require a knowing,intelligent, and voluntary waiver of this right. McClanahan, 191Ill. 2d at 140, 729 N.E.2d at 478. The defense attorney inMcClanahan objected to the admission of the report at trial buthad failed to demand the testimony of the lab analyst withinseven days of receipt of the report. McClanahan, 191 Ill. 2d at129, 131, 729 N.E.2d at 472-73.

Subsequent to the Supreme Court's decision in McClanahan,the Fourth District of the Illinois Appellate Court held that,absent the defendant's objection at trial, the trial court couldproperly consider hearsay lab reports regardless of the existenceor application of section 115--15. People v. Avery, 321 Ill.App. 3d 414, 418, 749 N.E.2d 386, 390 (2001). The court reasonedthat testimony based on hearsay that is not objected to at trialshould be given appropriate consideration. Avery, 321 Ill. App.3d at 418, 749 N.E.2d at 390.

Not only did the instant defendant fail to object to theadmission of the lab reports at trial, it is apparent from therecord that she stipulated to them. While the record does notcontain the defendant's express stipulation to the lab reports,the record clearly supports the State's contention that thedefendant did indeed enter into such a stipulation with theState.

In his opening statement, the prosecutor informed the jurythat there was "an agreement" between the State and defensecounsel as to the testimony of the persons who handled and testedthe cocaine and cannabis. The prosecutor further revealed theresults of the lab tests and informed the jury that the labreports would be introduced pursuant to the "stipulation" of theparties. The defendant did not object to these statements of theprosecutor. Later, when the State offered the lab reports intoevidence during trial, defense counsel said he had "noobjection." Again during closing arguments, the prosecutorreferred without objection to the "stipulations."

The defendant's challenge to the admission of the labreports is raised for the first time on appeal. The waiver issueaside, we conclude that the lab reports were properly admittedinto evidence in this case pursuant to the stipulation of theparties, and not pursuant to the provisions of section 115--15 ofthe Code. Therefore, the holding in McClanahan is inapposite tothis appeal, and the defendant's argument that she was denied herright to be confronted with the witnesses against her by theapplication of section 115--15 of the Code is unavailing.

As noted, the defendant was convicted of possession of acontrolled substance with the intent to deliver (720 ILCS570/401(c)(2) (West 1998)). The information alleged that thedefendant possessed more than 1 gram but less than 15 grams ofcocaine. The trial court sentenced the defendant according tosection 5--5--3(c)(2)(D) of the Unified Code of Corrections,which requires a mandatory minimum prison sentence of four yearsfor possession with intent to deliver more than five grams ofcocaine. See 730 ILCS 5/5--5--3(c)(2)(D) (West 1998). Thedefendant argues that this sentencing statute violated herconstitutional right to due process, a jury trial, an indictment,and notice because the element of "more than 5 grams" was notpled in the indictment, submitted to a jury, or proven beyond areasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 147L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The State counters thatApprendi has no application to the instant case because thedefendant did not receive a penalty for a crime beyond thestatutory maximum. See Apprendi, 530 U.S. at 490, 147 L. Ed. 2dat 455, 120 S.Ct. at 2362-63.

While there appear to be no reported Illinois cases thatconstrue the applicability of Apprendi to mandatory minimumsentences imposed under section 5--5--3(c)(2)(D), federal courtshave addressed analogous federal sentencing provisions. InUnited States v. Ramirez, 242 F.3d 348 (6th Cir. 2001), the SixthCircuit Court of Appeals was confronted by a factual scenariosimilar to that facing this court. In Ramirez, the defendant wasconvicted of conspiracy to distribute cocaine and attempt topossess cocaine with the intent to distribute. The defendant wassentenced to a mandatory minimum of 20 years' imprisonment afterthe trial judge concluded that the quantity of drugs involved wasmore than five kilograms. On appeal, the Ramirez court appliedApprendi, holding that the assessment of facts that increase themandatory minimum sentence invokes the full range ofconstitutional protections required for elements of the crime. Ramirez, 242 F.3d at 351. In other words, in order to enforcethe mandatory minimum statutory penalty provision, the amount ofthe drugs involved had to be proven beyond a reasonable doubt.

The Sixth Circuit's approach was criticized by the SeventhCircuit Court of Appeals in United States v. Hill, 252 F.3d 919(7th Cir. 2001). The Hill court refused to grant a defendant anew sentencing hearing based on Apprendi where his sentenceremained within the range of the sentencing statute. At leastfour other circuit courts of appeal disagree with the SixthCircuit's interpretation of Apprendi. See United States v.Harris, 243 F.3d 806 (4th Cir. 2001); United States v. Robinson,241 F.3d 115 (1st Cir. 2001); United States v. Keith, 230 F.3d784 (5th Cir. 2000); United States v. Aguayo-Delgado, 220 F.3d926 (8th Cir. 2000). Moreover, the United States Supreme Courtheld in McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67,106 S. Ct. 4211 (1986), that judges may find the existence offacts which trigger mandatory minimum sentences by apreponderance of the evidence. Furthermore, the Illinois SupremeCourt recently stated that "Apprendi does not proscribe alljudicial fact finding at sentencing, even though it may result inan increase in a defendant's punishment, provided the statutorymaximum sentence for the offense is not exceeded." People v.Carney, 196 Ill. 2d 518, 526, 752 N.E.2d 1137, 1142 (2001).

Accordingly, we hold that section 5--5--3(c)(2)(D) of theUnified Code of Corrections is a sentencing factor, rather thanan element of the offense, and may be found to exist by judicialfact finding at sentencing. In the instant case, the trial courtproperly found that the quantity of the cocaine was in excess offive grams based upon the lab report which was admitted intoevidence by stipulation of the parties; thus, the mandatoryminimum statutory provision was applicable.

For the reasons stated, we hold that trial court'simposition of the mandatory minimum four-year prison sentence didnot offend Apprendi or violate the defendant's constitutionalrights.

For the foregoing reasons, the judgment and sentence of thecircuit court of Henry County is affirmed.

Affirmed.

LYTTON, J. concurred.

MCDADE, J. dissenting in part and concurring in part

          JUSTICE McDADE, dissenting in part and concurring in part



On appeal, defendant argues that she was denied her constitutional right to be confronted by the witnesses against her, and that her sentence should be vacated due to an Apprendi violation. The majority has held the defendant's constitutional argument lacks merit because she did not object to the admission of the lab reports, and there were references to a stipulation to the reports in the record. Because I believe that neither the defendant's failure to object, either personally or by counsel, nor the references in the State's argument to the stipulation amount to a knowing and voluntary waiver by the defendant of her constitutional rights, I respectfully dissent from that portion of the majority opinion.
In support of her constitutional argument, defendant relies heavily on the Supreme Court decision in People v. McClanahan, 191 Ill. 2d 127, 729 N.E.2d 470 (2000). In that decision, which was entered only two weeks before defendant's trial, the court noted that for there to be a valid waiver of a constitutional right, the waiver must be an intentional relinquishment or abandonment of a known right. The court went on to explain that this required the waiver to be a voluntary, knowing, and intelligent act made by the defendant, with an awareness of the consequences and relevant circumstances. McClanahan, 191 Ill. 2d at 134, 729 N.E.2d at 476.
The McClanahan court considered and rejected the constitutionality of section 115-15(c) of the Code of Criminal Procedure of 1963 (725 ILCS 5-115-15 (West 1998)). The Supreme Court's focus was whether the statute's process for the stipulated admission of lab reports as evidence satisfied the constitutional protections of the Confrontation Clause. Its analysis was grounded in constitutional principles surrounding the right to confront accusers and witnesses. The safeguards of the Confrontation Clause, as noted by the court, include, but are not limited to, ensuring the reliability of the evidence by subjecting it to rigorous testing during an adversary proceeding before the trier of fact and restraining the prosecution by regulating how it presents the case against the accused. McClanahan, 191 Ill. 2d 127, 729 N.E.2d 470.
The McClanahan court did recognize that parties may stipulate to evidence that is to be presented to the trier of fact. However, that stipulation must be made in a manner that protects the defendant's rights under the constitution. The court noted that without section 115-15 the State would have been required to get a stipulation from the defendant to the admission of the reports. That stipulation would then constitute the defendant's voluntary and knowing waiver of his or her right to confront the State's witness.
As the majority points out, the McClanahan case had the benefit of a defendant who had objected to the presentation of the reports by the State. In this case, the defendant did not object to the presentation of the lab reports. However, defense counsel's failure to object cannot operate as an affirmative waiver of the defendant's constitutional rights under the Confrontation Clause, as it does not clearly reflect an intentional relinquishment or abandonment by the defendant of a known right. Brookhart v. Janis, 384 U.S. 1, 86 S. Ct. 1245 (1966). I am aware that this position is contrary to that recently taken by the Fourth District of the Illinois Appellate Court in People v. Avery, No. 4 -- 99 -- 0952 (April 26, 2001), however, for the reasons set out above, I disagree with its analysis.
The majority also points out that the record reflects a reference to a stipulation to the evidence by the prosecution in opening statements and closing arguments, in addition to an absence of any objection to the submission of the reports by defense counsel. However, there is no signed stipulation in the record, nor is there any admonishment by the trial court to the defendant that by stipulating to the reports she is waiving her constitutional right to confront the State's witnesses. In the absence of such a written stipulation in the record, or an admonishment by the trial court and affirmative acknowledgment by Ms. Phillips, it cannot be shown that she was aware of her constitutional right and that she knowingly and voluntarily waived it. Based on this analysis, I would reverse the judgment of the circuit court, and remand this matter for a new trial. 
The second issue raised by the defendant was whether her four year sentence should be vacated due to an Apprendi violation. Although under my analysis, we would not need to reach this issue because the matter would be remanded for a new trial, I agree with the majority that, under the facts of this case, the amount of the drug possessed by the defendant is a sentencing factor which may be found to exist by judicial fact finding at sentencing.