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April 26, 2001

PRESIDING JUSTICE STEIGMANN delivered the opinion ofthe court:

In July 1999, the trial court convicted defendant,Charles L. Avery, in a bench trial in McLean County case No. 98-CF-894 of (1) making a false report of a motor vehicle theft (625ILCS 5/4-103(a)(6) (West 1998)) and (2) possession of acontrolled substance (less than 15 grams of a substancecontaining cocaine) (720 ILCS 570/402(c) (West 1998)) and latersentenced him to nine and six years in prison, respectively. Also in July 1999, defendant pleaded guilty in McLean County caseNo. 98-CF-1275 (a case unrelated to case No. 98-CF-894) toobstructing justice (720 ILCS 5/31-4(a) (West 1998)). The trialcourt later sentenced him to six years in prison, with thatsentence to run consecutively to the six-year sentence defendantreceived in case No. 98-CF-894, pursuant to section 5-8-4(h) ofthe Unified Code of Corrections (Unified Code) (730 ILCS 5/5-8-4(h) (West 1998)). Defendant appeals, arguing that (1)his possession of a controlled substance conviction must bereversed because he was denied his constitutional right toconfront a key prosecution witness under People v. McClanahan,191 Ill. 2d 127, 729 N.E.2d 470 (2000), and (2) his mandatoryconsecutive sentence is unconstitutional under Apprendi v. NewJersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We affirm.

In September 1998, the State charged defendant in caseNo. 98-CF-894 with (1) making a false report of a motor vehicletheft (625 ILCS 5/4-103(a)(6) (West 1998)) (count I), (2)possession of a controlled substance (more than 1 gram but lessthan 15 grams of a substance containing cocaine) with intent todeliver (720 ILCS 570/401(c)(2) (West 1998)) (count II), and (3)possession of a controlled substance (less than 15 grams of asubstance containing cocaine) (720 ILCS 570/402(c) (West 1998))(count III). Also in September 1998, defendant posted a cashbond and was released pending further proceedings.

In December 1998, the State charged defendant in caseNo. 98-CF-1275 with (1) obstructing justice (720 ILCS 5/31-4(a)(West 1998)) (count I), and (2) resisting a peace officer (720ILCS 5/31-1(a) (West 1998)) (count II).

After a June 1999 bench trial in case No. 98-CF-894,the trial court found defendant guilty of counts I and III. InJuly 1999, before he was sentenced on those convictions,defendant pleaded guilty to both counts in case No. 98-CF-1275.

In August 1999, the trial court conducted a jointsentencing hearing on both cases. In case No. 98-CF-894, thecourt sentenced defendant to nine years in prison on count I(false report of a motor vehicle theft) and six years in prisonon count III (possession of a controlled substance), with thosesentences to run concurrently. In case No. 98-CF-1275, the courtsentenced defendant to six years in prison on count I(obstructing justice) and ordered that sentence to runconsecutively to the nine- and six-year sentences imposed in caseNo. 98-CF-894. In doing so, the court stated its belief thatsection 5-8-4(h) of the Unified Code mandated consecutivesentences under the circumstances of this case. The court didnot impose any sentence on count II in case No. 98-CF-1275. Thisappeal followed.

Defendant first argues that under the supreme court'srecent decision in McClanahan, this court must reverse hispossession of a controlled substance conviction because he wasdenied his constitutional right to confront a key prosecutionwitness when the trial court admitted evidence pursuant tosection 115-15 of the Code of Criminal Procedure of 1963(Procedural Code) (725 ILCS 5/115-15 (West 1998)). The Stateconcedes this argument, but we reject the State's concession.

At defendant's bench trial in case No. 98-CF-894, theevidence established that defendant was arrested on the charge ofmaking a false report of a motor vehicle theft and transported tothe county jail in the backseat of a police car. Once the policecar arrived at the jail, the arresting officer got out of the carand noticed that defendant, whose hands were cuffed behind hisback, had his fingers underneath the back of the seat and kepttrying to push them in further. The officer got defendant out ofthe car and then checked underneath the rear seat, as he did eachtime he transported someone in custody. As the officer examinedthe seat, but before he found anything, defendant began saying,"That ain't mine, man; that ain't mine."

The officer then felt a package and pulled it out fromunder the seat. He opened it and saw what he believed to be 14individually wrapped "rocks" of crack cocaine. He later sealedthe package and had his department send it to the Illinois StatePolice crime lab.

After the arresting officer testified, the followingdiscussion took place between the trial court and counsel:

"[THE PROSECUTOR]: Judge, if I can byway of proffer at this time, and I would notefor the record that State's [e]xhibits 2 and3 are--2 is the lab report corresponding tothe People's [exhibit No.] 1, and State's[e]xhibit [No.] 3 is an affidavit in lieu ofcourt appearance of the forensic scientist,Joni Little, and after discussing with[defense] counsel by way of stipulation[,] ifcalled to testify[,] Detective Tommy Sanderswould indicate that he did, in fact,--that hetransported the sealed People's [exhibit No.]1 to the Morton Crime Lab and it was, infact, turned over to the forensic scientistin that condition for the forensic analysis. Given that, I would move to admit at thistime People's [exhibit Nos.] 1 through 6.

THE COURT: All right, any objection tothose exhibits?

[DEFENSE COUNSEL]: No, [Y]our Honor.

THE COURT: Okay, they'll be admitted,People's [exhibit Nos.] 1 through 6."

On appeal, defendant does not challenge the sufficiencyof the evidence to sustain his conviction. That is, he does notargue that People's exhibit Nos. 1 through 6 (the lab reports andthe lab analyst's affidavit), along with the trial testimony,were not sufficient to prove him guilty beyond a reasonable doubtof possession of a controlled substance. Instead, citingMcClanahan, he contends that the trial court erred by consideringthose exhibits and, without them, the State's case fails. In McClanahan, the supreme court considered whethersection 115-15 of the Procedural Code (725 ILCS 5/115-15 (West1998)) passed constitutional muster. As the supreme courtexplained, that section:

"allows the State, in prosecutions under theCannabis Control Act (720 ILCS 550/1 et seq.(West 1998)) or the Illinois ControlledSubstances Act (720 ILCS 570/100 et seq.(West 1998)), to use lab reports in lieu ofactual testimony as prima facie evidence ofthe contents of the substance at issue unlessthe defendant files a demand for thetestimony of the witness who prepared thereport. The demand must be filed withinseven days of the defense's receipt of thereport." McClanahan, 191 Ill. 2d at 129, 729N.E.2d at 472.

The supreme court concluded that section 115-15 wasunconstitutional because it violated a defendant's right toconfront the witnesses against him under both the United Statesand Illinois Constitutions. McClanahan, 191 Ill. 2d at 140, 729N.E.2d at 478.

Nonetheless, Illinois law has long required that"'"[a]n accused may not sit idly by and allow irregularproceedings to occur without objection and afterwards seek toreverse his conviction by reason of those same irregularities."' [Citations.]" People v. Bull, 185 Ill. 2d 179, 200, 705 N.E.2d824, 835 (1998). Nothing in the supreme court's decision inMcClanahan has changed this rule of law.

McClanahan is distinguishable from the case before usin that defendant on appeal is not in the same position as wasthe defendant in McClanahan. In McClanahan, when the Statesought to rely upon section 115-15 of the Procedural Code, thedefendant objected and insisted that the State was required tocall the person who prepared the lab report to testify and thatsection 115-15, which permitted the person's affidavit tosuffice, was unconstitutional. The trial court disagreed andadmitted the lab report and affidavit into evidence overdefendant's objection. McClanahan, 191 Ill. 2d at 129-30, 729N.E.2d at 473.

In the present case, defendant did not object to theState's use of the lab report and affidavit as part of its casein chief. The earlier quoted portion of the trial recordindicates that (1) the prosecutor and defense counsel haddiscussed the exhibits that established the identity of theseized items as cocaine, and (2) the State's proffer of them intoevidence came as no surprise to defense counsel. Under thesecircumstances, defendant has forfeited on appeal any argumentthat the trial court erred by admitting the exhibits in question. See People v. Corrie, 294 Ill. App. 3d 496, 508, 690 N.E.2d 128,135 (1998).

Further, "testimony based on hearsay that is notobjected to at trial should be given appropriate consideration." People v. Becerril, 307 Ill. App. 3d 518, 526, 718 N.E.2d 1025,1030 (1999). Thus, absent defendant's objection, the trial courtcould properly consider the hearsay documents pertaining to theidentification of the substances seized from defendant regardlessof the existence or application of section 115-15 of theProcedural Code. Based on that evidence and the trial testimony,the court could then find that the State had proved defendantguilty beyond a reasonable doubt of possession of a controlledsubstance.

Last, defendant argues that section 5-8-4(h) of theUnified Code (730 ILCS 5/5-8-4(h) (West 1998)), which requiresthat if a person charged with a felony commits a separate felonywhile on pretrial release, the sentences imposed upon convictionof those felonies shall be served consecutively, isunconstitutional under the Supreme Court's recent decision inApprendi. (In Apprendi, the Supreme Court held that "any factthat increases the penalty beyond the prescribed statutorymaximum must be submitted to a jury, and proved beyond areasonable doubt." Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at455, 120 S. Ct. at 2362-63.) Specifically, defendant contendsthat section 5-8-4(h) of the Unified Code contains the sameconstitutional defects as the New Jersey statute invalidated inApprendi because that section does not provide the defendant withthe right to a jury determination of facts that allow theimposition of consecutive sentences. However, this courtrecently addressed the application of Apprendi to consecutivesentences, albeit in a different context, and rejected thisargument.

In People v. Ransom, No. 4-99-0951, slip op. at 13-19(April 5, 2001), ___ Ill. App. 3d ___, ___, ___ N.E.2d ___, ___,this court considered the defendant's argument that section 5-8-4(a) of the Unified Code--which requires a trial court to imposeconsecutive sentences when (1) the defendant commits multipleoffenses within a single course of conduct, (2) one of theoffenses was a Class X felony, and (3) the defendant inflictedsevere bodily injury--was unconstitutional under Apprendi. InRansom, we concluded that section 5-8-4(a) of the Unified Codewas not unconstitutional under Apprendi because consecutivesentences do not increase the penalty beyond the prescribedstatutory range, and explained as follows:

"Section 5-8-4(a) merely addresses themanner in which the sentence for eachindividual offense is to be served. Thatsection has nothing to do with the length ofeach discrete sentence. 730 ILCS 5/5-8-4(a)(West 1998); see also People v. Primm, 319Ill. App. 3d 411, 427-28, ___ N.E.2d ___, ___(2000) (consecutive sentencing affects onlythe manner in which each sentence is to beserved and has nothing to do with the lengthof each sentence). Our supreme court madethis clear in Thomas v. Greer, 143 Ill. 2d271, 278, 573 N.E.2d 814, 817 (1991), whereit held that when sentences are 'madeconsecutive to one another, a new singlesentence [is] not formed.' The Thomas courtsupported its holding by noting, in part,that '"[t]he term 'consecutive sentences'means sentences following in a train,succeeding one another in a regular order,with an uninterrupted course of succession,and having no interval or break."' (Emphasisin original.) Thomas, 143 Ill. 2d at 278,573 N.E.2d at 817, quoting 21 Am. Jur. 2dCriminal Law