People v. Clendenin (395 Ill. App. 3d 412, 2009)

JUSTICE O’MALLEY

delivered the opinion of the court:

Following a stipulated bench trial, defendant, Charles E. Clendenin, was convicted of unlawful possession of child pornography (720 ILCS 5/11 — 20.1(a)(6) (West 2002)). He appeals, arguing that the trial court erroneously denied his motion to quash arrest and suppress evidence, that his trial counsel provided him with ineffective assistance, and that the evidence was insufficient to support his conviction. For the reasons explained below, we reverse and remand.

I. BACKGROUND

On September 5, 2003, defendant was charged with unlawful possession of child pornography. The information alleged that defendant possessed a video clip of a female child under the age of 18 years engaged in an act of sexual penetration. On September 19, 2003, defendant’s counsel, Larry Wechter, filed a motion for discovery, seeking relevant materials concerning defendant’s prosecution.

A. Evidence Pertaining to the Motion to Quash and Suppress

In October 2003, defendant filed a motion to quash arrest and suppress evidence. Defendant sought suppression of items that Ellen Bailey took from his home on August 29, 2003, and later gave to police, as well as all items obtained during a subsequent search of his home by police. Defendant also sought to quash his arrest, which transpired after the police examined the items Bailey had given them. On January 23, 2004, the trial court held a hearing on the motion to quash and suppress.

Ellen Bailey was the first witness. She testified that she was defendant’s neighbor in St. Charles, Illinois. She and defendant had become romantically involved in the three months Bailey had known defendant. The two had exchanged keys to their residences and visited each other from time to time. Defendant traveled occasionally and had asked Bailey to check on his residence and clean it when he was absent. Defendant also allowed Bailey to use his washing machine.

Bailey testified that, on August 29, 2003, defendant was on vacation in Russia, and Bailey entered defendant’s residence to retrieve a vacuum cleaner she had left there. While in defendant’s residence, Bailey noticed what she believed might be four pinhole cameras next to defendant’s computer. Bailey testified that, because she had young children, she became concerned upon seeing easily hidden cameras. Bailey decided to look around to see if she could find any recordings defendant might have made. Bailey discovered a zipper case containing compact discs (CDs) on a shelf behind defendant’s computer. Bailey opened the case and observed around 50 CDs, only some of which were labeled. Bailey testified that the discs that were labeled had handwritten dates on them; she could not recall any other information being written on the case or the discs. Bailey took the cameras and the discs back to her residence.

Bailey testified that she placed several of the discs into her own computer. Bailey testified that she looked at the content of only one of the discs, however. The files on that disc had “very disturbing” titles such as “ ‘mother f — s 8-year-old’ ” and “something about toddler daycare.” Bailey viewed one of the files, which depicted what appeared to be a “grown man having sex with a 13-year-old.” Bailey kept the disc, believing it to contain child pornography. Bailey returned the remainder of the CDs and the case to defendant’s residence, but kept the pinhole cameras.

Bailey testified that, on September 1, 2003, she called West Chicago police officer Bruce Malkin, a friend she had known for a long time. Bailey met with Malkin at the West Chicago police department and gave him the cameras and the CD she had taken from defendant’s residence. Bailey testified that she told Malkin the circumstances of her discovery of the disc, including that defendant was out of the country and had not given her permission to investigate or take any of his belongings. Bailey testified that she told Malkin that she had permission only to clean defendant’s residence and water his plants. Bailey then told Malkin “what she saw on the disc” she had viewed.

Bailey testified that, on the following day, she met with police officer Andrew Lamela at the St. Charles police department. Bailey gave Lamela the same information that she had provided to Malkin about the circumstances under which she discovered the disc and its contents.

Malkin testified next. His testimony corroborated and mirrored Bailey’s about the circumstances under which Bailey had taken the CD. Malkin testified that Bailey told him that she had previously viewed the contents of the disc at her residence. Bailey told Malkin that the disc contained “what she suspected to be child pornography.” Malkin testified that Bailey was very upset and had difficulty describing the contents of the disc. Malkin accepted the disc from Bailey and noticed that the external label on the disc contained only a date, “ ‘20 November 2.’ ” Malkin used his own computer to view the contents of the disc but did not seek a search warrant before doing so. Malkin found several images and video files on the disc. He viewed one of the video clips and believed it depicted child pornography. Malkin then placed the disc and the pinhole cameras into evidence at the West Chicago police department until he turned them over to the St. Charles police department.

Lamela was the final witness at the hearing. Lamela testified that, on September 2, 2003, he spoke with Bailey, receiving the same background information that Bailey had recounted to Malkin. Lamela testified that, after speaking with Bailey, he wanted to investigate the CDs in defendant’s residence as well as to look at the disc Bailey gave to Malkin. Lamela testified that he did not seek a search warrant at this time.

Lamela testified that, on September 3, 2003, he met with Malkin and received the CD and cameras that Bailey had provided. Malkin told Lamela that these were the items that Bailey had taken from defendant’s residence. Malkin also informed Lamela that Bailey admitted that she did not have defendant’s permission to take anything from his residence. Lamela testified that there was nothing on the outside of the items to indicate that they contained child pornography. Lamela viewed the disc for himself without first seeking a search warrant. He determined that the disc contained child pornography.

Lamela testified that, later on September 3, 2003, he arrested defendant at his place of employment. At the police station, Lamela advised defendant of his Miranda rights. Defendant agreed to give a statement. Defendant first gave a nonrecorded oral statement, which Lamela summarized in a police report. Defendant later gave a second statement, which Lamela recorded on audiotape. After he took the statements, Lamela asked defendant for permission to search his home, and defendant gave his consent. While searching defendant’s home with fellow officers, Lamela seized a case containing several CDs.

On February 25, 2004, the trial court issued its decision denying defendant’s motion to quash and suppress. The trial court found that Bailey was not acting as an agent of the State when she removed the disc and cameras from defendant’s home, and hence there was no state action involved in the police’s acquisition of those items. The court further found that, when the police examined the items Bailey gave them, they had probable cause to arrest defendant. Defendant filed a motion to reconsider, which the trial court denied.

B. Stipulated Bench Trial

On September 23, 2004, the parties appeared before the trial court for a bench trial based on stipulated evidence. This exchange took place:

“MR. WECHTER: We are here this morning because we want to waive the right to a jury and present a stipulation to you and have you decide the defendant’s guilt on the basis of our stipulated evidence. ***

THE COURT: All right. Mr. Clendenin, you have, I am sure, spoken with Mr. Wechter?

MR. CLENDENIN: Yes.

THE COURT: In reference to the fact that if you give up your right to a jury trial it is a permanent waiver and that you are the only one that can do it? Most things legally that are done can be undone. A jury waiver cannot. Do you understand if you have a jury trial 12 people have to be unanimous about a verdict? The burden of proof is always beyond a reasonable doubt. That would apply to a jury trial or a trial before a judge called a bench trial. Do you understand that?

MR. CLENDENIN: Yes, I do.

THE COURT: You are a high school graduate, sir?

MR. CLENDENIN: College graduate.

THE COURT: And, Mr. Clendenin, has anyone threatened you to

make you waive the jury?

MR. CLENDENIN: No.

THE COURT: Anyone promise you anything other than you won’t have a jury trial? You will have a trial before a judge.

MR. CLENDENIN: No.

THE COURT: Do you have any questions of me?

MR. CLENDENIN: No, I don’t.

THE COURT: Has he executed [the stipulation], Mr. Wechter?

MR. WECHTER: I am going to have him do that right now. I have signed it as a witness, Judge.

THE COURT: All right. Thank you very much. And with that, you wish to proceed instanter?

MR. WECHTER: Yes. We have a written stipulation for you that both counsel have signed, and there are the two exhibits that are referred to in the stipulation.

* * * THE COURT: Did you have a preliminary hearing, or did I get ahead of myself?

MR. WECHTER: If I recall, we waived some time ago, but I could be mistaken.

THE COURT: Let me see if I can readily find it.

MR. WECHTER: If not, we would have no problem doing that today, obviously.

THE COURT: I think that it is possible that we went right into the motion to suppress, although I would be glad to have you look at this and you might readily find it faster than I did.

MR. WECHTER: If you would like.

I don’t see one either, Judge. We are certainly prepared to do that today.

THE COURT: All right. So, Mr. Clendenin, you are entitled to either [sic] have a preliminary hearing where you would have a right to cross-examine any witness that the State will call. The State can use hearsay evidence, and so they can use one witness to testify about their knowledge about the case, for instance[,] but you would have a right to cross-examine any witnesses called. Sometimes the State proceeds to an indictment where you would not be present and have the right to cross-examine usually and— well, usually that would apply. At this time, it’s my understanding that you are waiving the preliminary hearing, which means that that procedure would not occur and we would go into the issue that is presented by way of stipulation?

MR. CLENDENIN: Yes.

THE COURT: That’s what you wish to do?

MR. CLENDENIN: Yes.

THE COURT: Are you doing that voluntarily?

MR. CLENDENIN: Yes, I am.

MR. WECHTER: I might add, Judge, that you certainly heard quite a bit of testimony to the motion to suppress that would suffice for probable cause.

THE COURT: I did. Although, that wasn’t the purpose of it.

MR. WECHTER: Right.

THE COURT: Yes, that’s true. I find that he has sufficiently waived.”

The stipulation was not recited on the record nor was its specific content described in any way. The court took the stipulation under advisement.

On January 13, 2005, the trial court announced that it could not accept the stipulation because it did not identify the source of the evidence upon which it was based:

“This comes on for status on the stipulation and evidence which I received on September 23rd. On that date I received a two-page stipulation which was given to me along with People’s Exhibit[s] 1 and 2. People’s Exhibits 1 and 2 are described in the stipulation as photographs of the video clip referred to in the complaint for preliminary hearing. In the complaint for the preliminary hearing it refers to ‘video clip with a file name of R@YGOLDREELKIDDYMO.MPG.’ People’s Exhibit[s] 1 and 2 do not have any file name on them. People’s Exhibits 1 and 2 appear to portray a female child whom the defendant knew, or reasonably should have known, was under the age of 18 years which showed the female child actually or by simulation engaged in the act of sexual penetration.

I have some questions which are not readily apparent from the stipulation and from the evidence. They are: What is a video clip? Where did the video clip come from? Did it come from a disk? Did it come from the disk that Ellen Bailey delivered to the West Chicago Police Department?”

The court set the matter for status on February 17, apparently to allow the parties to refashion the stipulation if they desired. On February 17, Wechter informed the court that an item of discovery had just become available from the State the previous day and that the parties needed additional time to rework the stipulation. The court continued the matter.

On March 16, 2005, Wechter announced to the court that the parties had agreed on a “new stipulation.” This stipulation was not read into the record nor was its content related in any way on the record. The record on appeal contains the stipulation, and this is the entirety of it:

“STIPULATION

NOW COME the parties to this cause and hereby stipulate to the availability of the following evidence for purposes of proceeding with a bench trial of the charge of unlawful possession of child pornography alleged in the Complaint for Preliminary Hearing.

The parties agree that the witnesses called at the hearing on the defense Motion to Quash Arrest and Suppress Evidence held on January 23, 2004[,] would provide the same testimony that was presented on that date, including the introduction of the same exhibits. The State moves for admission of photographs of the video clip referred to in the Complaint for Preliminary Hearing, marked People’s Exhibits # 1 & 2. The photographs portray a portion of one of the video clips contained on the computer disk taken from [defendant’s] apartment by Ellen Bailey on August 29, 2003 [,] and delivered to the West Chicago Police by Ellen Bailey on September 1, 2003. [Defendant] objects to the introduction into evidence of People’s Exhibits # 1 & 2 on the same grounds presented at the hearing on the defense Motion to Quash Arrest and Suppress Evidence and the subsequent Motion to Reconsider. [Defendant] requests the Court to reconsider and reverse its previous rulings concerning the admissibility of this evidence.

If called as a witness, [Lamela] would testify that he interviewed [defendant] on September 3, 2003[,] following his arrest in this case. After waiving his Miranda rights, [defendant] stated that he logs on to the internet to a website from which he downloads music and pornography. He typed in key words for the pornography in the search engine and then downloads all the files to his hard drive. Later, he transfers the files to a disk and then views them. He does not know what he downloads until the file has been viewed. He admitted to possessing six disks containing pornography in his apartment. When asked if he knew how many video clips of child pornography were contained on the disks, he stated, ‘Not very many.’ He last downloaded pornography from the website on the preceding weekend. He stated that he did not have time to transfer those files to a disk and did not know what files were downloaded. [Defendant] identified the disk provided to the West Chicago Police Department by Ellen Bailey as belonging to him. [Defendant] denied manufacturing or distributing the child pornography video clips. The police seized seventy-seven (77) compact disks from [defendant’s] residence, of which five (5) contained pornography, including adult pornography. The remainder of the disks contained music and information from [defendant’s] employment.

The introduction of the testimony of Detective Lamela would be subject to [defendant’s] objection on the same grounds presented in the defense Motion to Quash Arrest and Suppress Evidence and the subsequent Motion to Reconsider. [Defendant] requests the Court to reconsider and reverse its previous rulings concerning the admissibility of this evidence. [Defendant] objects to all evidence seized by the St. Charles Police Department from [defendant’s] residence and to the statements made by [defendant] to the police because the evidence constitutes the illegal fruit of the unlawful search and seizure of the computer disk delivered to the police by Ellen Bailey.

[Defendant] does not stipulate to the sufficiency of the evidence to convict him of the offense charged.”

The stipulation was signed by counsel for both parties but not by defendant. When the stipulation was given to the court, this exchange followed:

“THE COURT: The record should reflect that there appears to be a two-page stipulation, and Mr. Wechter, your client has not signed this.

MR. WECHTER: I have signed it on his behalf and [sic] special prosecutor for the State.

THE COURT: All right. And so Mr. Clendenin, you wish to be bound by the stipulation; is that correct?

THE DEFENDANT: Yes, it is, Your Honor.”

The court took the matter under advisement.

On April 27, 2005, the court issued its decision and found defendant guilty of possession of child pornography.

C. Posttrial Proceedings

On May 2, 2005, defendant, via his attorney Wechter, filed a post-trial motion reasserting that the trial court erroneously denied his motion to quash and suppress and arguing that the March 2005 stipulation was insufficient to support a conviction of possession of child pornography. On May 26, 2005, defendant dismissed Wechter as his attorney and Stephen Brundage was allowed to enter his substitute appearance on defendant’s behalf.

On August 4, 2005, defendant, now represented by Brundage, filed his amended posttrial motion, adding two new claims. First, defendant asserted that the State breached its discovery duties by failing to timely disclose the audiotape of defendant’s September 3, 2005, statement to Pamela and by providing defendant a materially inaccurate transcription of that statement several months prior to disclosing the audiotape. Second, defendant alleged that Wechter provided ineffective assistance of counsel in that he acquiesced to the State’s discovery violation and did not challenge the State’s case on the basis of the inaccuracies in the transcript. Wechter instead wrongly advised defendant to agree to a stipulated bench trial where he was not permitted to cross-examine the State’s witnesses.

Defendant attached to the amended motion the transcript provided by the State (police transcript). The police transcript was prepared by Shari Lotito, a secretary at the St. Charles police department. To show the inaccuracies in the police transcript, defendant attached a transcript he arranged from another source (certified transcript), namely, a certified court reporter in Ohio. Defendant also attached an affidavit supporting his claim regarding the stipulated bench trial. In his affidavit, defendant averred that he was unaware of the content of either the September 2004 or the March 2005 stipulation until after he was found guilty in April 2005. Defendant stated that he “did not fully understand or agree with the process involved with the stipulation^] filed with the Court because [he] wanted the opportunity to cross-examine witnesses who may testify against [him] and [he] wanted to present a defense on [his] behalf with the benefit of a full adversarial hearing.”

The trial court denied the amended posttrial motion with respect to the suppression issue. The court held an evidentiary hearing on the remaining claims. The witnesses at that hearing included Wechter, defendant, Lamela, Lotito, and defendant’s father, Charles Clendenin, Sr. (Clendenin). The evidence adduced covered these topics: the September 2004 and March 2005 stipulations, the timing of the disclosure of the audiotape to the defense, the discrepancies between the audiotape and the police transcript of the tape, the discrepancies between both transcripts and Lamela’s stipulated testimony, and the adequacy of Wechter’s communication with defendant during the course of the case. We arrange the evidence by topic.

1. The Stipulations

Defendant, Clendenin, and Wechter testified regarding the September 2004 and March 2005 stipulations and the discussions among the three that led up to each stipulation. Defendant testified that, after the trial court denied his motion to quash and suppress, he and Wechter discussed how to proceed in the case. Wechter recommended that defendant agree to a stipulated bench trial. Wechter did not “thoroughly” explain what a stipulated bench trial was or use “definitions” in describing it. As defendant understood it, a stipulated bench trial “would preserve for appeal, I guess, an option. I’m not sure.” Wechter also told defendant that he was going to call Clendenin, a former criminal defense attorney, to discuss defendant’s options. Defendant told Wechter, “[W]hatever my father agrees, whatever is okay.” Defendant ultimately agreed to a stipulated bench trial because he was not familiar with the legal system and “left it between [Clendenin and Wechter] to decide.”

Defendant testified that, to his knowledge, the September 2004 stipulation “was supposed to include that [he] did not know that there was any child pornography whatsoever.” The March 2005 stipulation, as he understood it, was to “add[ ] a clarification” to the September 2004 stipulation. Defendant never read, or otherwise learned the content of, either the September 2004 or the March 2005 stipulation until after he was found guilty by the court in April 2005. After the guilty finding, he obtained copies of both stipulations from the court file, read them, and became “furious” because the stipulations “basically admitted] guilt” and he believed he was not guilty. Defendant testified that he had wanted a “trial in this case to determine [his] guilt or innocence” and the opportunity “to cross-examine witnesses that would have testified against [him] or the evidence that the State allegedly had.” When asked if he “discuss[ed] the contents” of the September 2004 stipulation prior to April 2005, defendant replied, “Not the contents that were in that stipulation.” Likewise, when asked if he “ever talk[ed] about what was in” the March 2005 stipulation prior to April 2005, defendant responded, “Not what was in this stipulation.” Defendant testified that neither stipulation contained what defendant and Clendenin had “requested” of Wechter. For instance, the stipulation stated that defendant replied, “ ‘Not very many’ ” when asked by Lamela “if [defendant] knew how many video clips of child pornography were contained on the disks.” Defendant denied ever making this remark to the police and noted that it is not in the police transcript.

Defendant was asked about his colloquy with the court at the March 2005 stipulated bench trial:

“Q. *** Do you remember being asked this question by the Court: ‘Mr Clendenin, you wish to be bound by the stipulation; is that correct?’

A. Yes.

Q. You recall that question?

A. I’m pretty sure.

Q. And do you recall what your answer was?

A. It was, ‘Yes it is.’

Q. What did you mean, ‘Yes it is’?

A. A stipulation, I guess. I don’t know. I really don’t — I am...

Q. Did you intend to be bound by a stipulation you had never seen?

A. I did not want to be bound by something with those contents.

Q. The contents of which you found out later when you went to the Clerk’s office?

A. Yes. I was under the impression it was a different content.”

Clendenin testified that, in July 2004, after the denial of the motion to quash and suppress, he and Wechter discussed possible courses of action. Wechter initially suggested that defendant change his plea to guilty. Clendenin described his reaction:

“[A]fter I told him there was no way, I said ‘First off, have you talked to [defendant] about changing his plea,’ and he said ‘Yes, I did talk to him and there’s no way, he didn’t want to change his plea.’ I said — well, I just really got upset with him and I said, ‘Well, what — what are you doing calling me, trying to get me talking him into changing his plea?’ I said, you know, ‘He’s not guilty’ and then — and then he says, ‘Well — ’ uhm — uhm—T think we should enter into a [stipulation, then,’ and I never heard what a [stipulation was. I had prosecuted — prosecuted for 3 years and he’s talking about an entire stipulation of a case, and I said — I just don’t— that’s ridiculous.

Q. How did the conversation end?

A. Well, I told him, I said, ‘If the State wants to basically come to their senses and realize that my son told him over and over again that he did not possess any child pornography, didn’t have a clue what they were talking about, if they wanted to agree to something like that, if they wanted to agree to that,’ I mean, ‘he’s not changing his plea, he’s — he’s,’ you know, ‘He’s told you he’s going to keep his plea not guilty.’ He’s not changing it to guilty, and he’s not stipulating to anything that is going to mean that he’s guilty.’

Q. Did you — uhm—did that conversation then end?

A. Yes, basically, at that point, that’s — that was if he could get the State to stipulate, come to their senses that [defendant] was not guilty, basically, and end the whole thing with that [stipulation, that was fine, or fine with me.”

Clendenin testified that the “only [stipulation that we would accept was one where the State admitted that they were wrong, that they had — my son never possessed any child pornography and he didn’t have a clue what was on there.” Clendenin did not see either the September 2004 or the March 2005 stipulation until after defendant was found guilty, and only then because defendant got copies of the stipulations from the court file. Clendenin was “flabbergasted” at what the stipulations said. Clendenin testified that Wechter “never once told [defendant] what was in those [stipulations” and “totally blind-sided” defendant.

Wechter testified that, after the motion to suppress was denied, he discussed with defendant how to proceed. They had discussions in person, by mail, and over the phone. One of the options Wechter mentioned to defendant was a stipulated bench trial. Wechter said that he explained that procedure to defendant as follows:

“I explained to him that the primary purpose of a stipulated bench trial would be to preserve the Fourth Amendment issue that we had lost at the hearing on the motion to suppress.

That the parties would agree as to certain basic facts that would be presented if there were live testimony at a trial. That he should anticipate being found guilty at the conclusion of the stipulated bench trial.

And again, the primary purpose of it would be to then take an appeal to the appellate court on the legal issue we had presented to Judge Golden, *** trying to get her ruling overturned.

And if that succeeded, then the case would come back here with virtually all the evidence in the case suppressed, and the prosecution then being unable to prove him guilty of the charge.”

Wechter also explained to defendant that a stipulation “include[s] certain facts pertaining to the case that would have been presented by live testimony before the Judge in court, [and] that this [is] a substitute for [the testimony].” Defendant had no questions of Wechter regarding the “mechanics” of a stipulated bench trial, and from what Wechter could tell, defendant understood the procedure. Wechter testified that he and defendant discussed the stipulation option over several months. “From time to time [defendant] would express some hesitation about it,” but eventually he agreed to a stipulated bench trial.

Wechter explained how he decided on the content of the stipulation:

“I decided to include in the stipulation as minimal a factual basis for the State as I thought [the State] would be willing to accept. In other words, I did not include the entirety of the statement [defendant] gave to the police.

Instead, I selected certain portions from it to include in the stipulation. And I omitted a number of details that I thought would be harmful to his defense, but still enough that [the State] would accept the contents of the stipulation and present it to the Judge.

I also included some facts that I thought left the door open to argument, that the evidence was not sufficient to convict [defendant] of the charge.”

Wechter was then asked what occurred after he and the State agreed on the initial, September 2004 stipulation:

“Q. Now once it was agreed upon — either before you prepared the — before you sent the stipulation to [the State], and before it was presented to the court, did you have occasion to meet with your client to show him the stipulation?

A. As far as the initial stipulation is concerned or the initial proposal to [the State] is concerned, I don’t recall showing it to [defendant] beforehand.

Q. Had you ever shown [defendant] the stipulation that was presented to Judge Golden back in September of ’04?

A. You know I am not certain, I am not certain whether I showed it to him or not. I’m thinking that I offered to show it to him, may have shown it to him, but that he didn’t express much interest in looking at it. But I cannot tell you that for certain.”

Regarding his conversations with defendant after the September 2004 stipulation was rejected, Wechter testified:

“Q. *** At the time that the second, the amended stipulation was submitted to Judge Golden, did you have occasion to sit down with your client and go over the contents of that stipulation, the amended one?

A. We discussed the nature of the change that was being made, with regard to some clarification about the exhibit or chain of custody, something along those lines. And we had a very long conversation outside this courtroom about whether he still wanted to proceed.

Q. And his response after that conversation or during that conversation was what?

A. He wanted to have a stipulated bench trial.

Q. Did you at any time show him that stipulation and identify what was concluded [sic] in it?

A. I would just have to give you the same answer I did last time about disclosing it to him. My last answer encompassed all the conversations we had about the document.

$ ^ ^ Q. You never showed the written stipulation to [defendant] before you entered it with the court, did you?

A. Again, I’m not certain whether I offered to have him view it and he wasn’t interested or whether he just didn’t view it. I don’t recall specifically.

Q. You didn’t offer to have [defendant] sign the stipulation before you entered it with the court, did you?

A. I don’t think so.

❖ * * Q. You had never provided a copy of that second stipulation to [defendant] before it was entered into with Judge Golden, did you?

A. I don’t think I sent him a copy of it, no.

Q. Well, okay. Did you provide him a copy, whether you sent it or not or handed it to him in person?

A. As I indicated before, I am not certain whether he had an opportunity to view it before court, declined to view, or just did not have an opportunity to look at it. I don’t recall. * :K *

*** rphg morning that the second stipulation was entered into, we had a very lengthy conversation outside this courtroom and about whether he should enter into a stipulation or not.

Q. And the upshot of that conversation was what?

A. He did not want a contested trial of this case. He preferred to have a stipulation.

Q. That’s in fact what you did ***?

A. After a lengthy conversation with him about whether he really wanted to do this or not, it was his decision to go ahead and to stipulate.

At that point, after having discussed everything with him that I thought was pertinent to the decision, it was no longer a question of my choice. It was his choice, and I was obligated as his lawyer to go ahead and do it. * * *

Q. And during that lengthy discussion, you do not recall whether you had showed him the stipulation?

A. I don’t recall, no.”

To show that Wechter adequately advised defendant with respect to a stipulated bench trial, the State introduced a series of letters Wechter sent defendant between May 2004 and March 2005. None of the letters, however, describe the content of either the September 2004 or the March 2005 stipulation. On September 2, 2004, Wechter wrote:

“I recommend that you consider a stipulated trial because of our poor chances of success if we participate in a full jury or bench trial. Since the State is now allowed to introduce the evidence of the film clips contained on your computer and computer disks, I do not think you have any realistic chance of success at trial. The only conceivable issue to be raised would be the question of your knowledge of the contents of the one film clip alleged in the State’s complaint. In my opinion, this is not a viable issue because the police officer who interrogated you will testify that you admitted knowing the presence of at least some child pornography on the clips. In addition, I think it will be very difficult for a jury or a judge to objectively evaluate this defense after viewing the clips themselves.

*** [0]nce again, I do not think much will be gained for you by proceeding to trial.

On the other hand, if we succeed in reversing Judge Golden’s ruling concerning the search and seizure on appeal, then the State will not have any evidence of child pornography that would be admissible at a re-trial.

If we proceed with the stipulated bench trial, then you should assume that the judge will find you guilty and sentence you for this felony offense.

$ $ *** After the judge makes a guilty finding, the case will be continued for a sentencing hearing. ***

As I noted, the purpose of the stipulated proceeding is to preserve our search and seizure claim for appeal. ***”

On March 17, 2005, the day after the second stipulation was presented to the trial court, Wechter wrote:

“Yesterday, we appeared in court again regarding your felony case. ***

Initially, you indicated that you had some reservations about proceeding with the stipulated bench trial. *** I repeated my earlier opinion that the contents of your statement and the nature of the charge would make it difficult to obtain an acquittal. I made sure you understood that you could defend the case on the basis of your lack of knowledge of the presence of child pornography on your computer disk. In addition, we could raise the search and seizure issue on appeal of any verdict of guilty. In other words, our previous strategy of staking the outcome of the case solely on an appeal of the search and seizure issue did not preclude you from also trying for an acquittal at a contested trial. I raised these concerns with you again on the morning of the court appearance before presenting the case to Judge Golden.

In both of our conversations, you repeatedly told me that you wanted to enter an amended stipulation to the evidence that would doubtless result in a guilty finding by the judge. You stated your desire to stake your chances of success in the case solely on the search and seizure issue.”

2. The Audiotape and Transcripts

Defendant testified that, when he reviewed the police transcript, he noticed that it ascribed to him words and phrases he did not remember saying in his statements to police. Defendant asked Wechter “many times” to obtain the audiotape from the State so that Wechter and defendant could assess the accuracy of the police transcript. Wechter, however, did not obtain the audiotape until shortly before the presentation of the second stipulation on March 16, 2005 — 18 months after defendant’s initial discovery requests in September 2003. Defendant first listened to the audiotape on March 17, 2005, and it confirmed his suspicion that the police transcript was inaccurate in material respects.

Clendenin testified that he received the audiotape from Wechter in the mail on March 17, 2005. The tape was indecipherable; the speakers sounded like “the Chipmunks.” Clendenin took the tape to an audio professional who was able to make an intelligible copy for him. Clendenin then took the intelligible copy to a certified court reporter for a transcription. Clendenin found a discrepancy between the March 2005 stipulation and both transcripts in that neither of the latter relates defendant as saying “not very many” in response to a question from Lamela. Clendenin also found a discrepancy between the certified transcript and the police transcript. The police transcript contains the following exchange:

“Lamela: O.K. and approximately to your knowledge how much of the images on the disks contain child pornography? Which would be anyone under the age of seventeen engaging in active sexual penetration.

[Defendant]: Should be very few.

Lamela: Very few? O.K.

[Defendant]: Because normally they everything [sic] is labeled with twenty different keywords and. [sic]

Lamela: O.K.

[Defendant]: And um several times they threw it in there.” (Emphasis added.)

By contrast, the certified transcript contains the following exchange:

“Q. Okay and approximately to your knowledge, how much of the images on the disks contain child pornography? Which would be anyone under the age of seventeen engaging in active sexual penetration?

A. Should be very few.

Q. Very few? Okay.

A. Because normally they — everything is labeled with twenty different keywords and—

Q. Okay. Have you—

A. —sometimes they throw it in there.” (Emphasis added.)

Clendenin considered “significant” the contrast between the phrases “several times they threw it in there” and “sometimes they throw it in there.”

Lamela testified that, after he completed the tape-recorded interview with defendant on September 3, 2003, he gave the tape to Lotito, an administrative assistant with the St. Charles police department. Lamela received the police transcript on September 19, 2003. Lamela did not listen to the entire audiotape, but to his knowledge the police transcript was accurate. Lamela was asked whether, in any of the interviews on September 3, 2003, he asked how many video clips of child pornography defendant possessed and defendant answered “not very many.” Lamela testified that this exchange occurred not in the audiotaped interview but in the prior, unrecorded, interview. Lame-la’s report of the unrecorded interview states in relevant part:

“I asked [defendant] how many compact disks he had in his apartment with pornography on it [sic], [Defendant] stated that he has approximately 6 including the disk that I had possession of. I asked [defendant] if he knew how many video clips of child pornography he had on the disks and he stated, ‘Not very many.’ ” (Emphasis in original.)

Lamela’s report was included in discovery disclosures to defendant.

Lamela also testified that the evidence log for the audiotape shows a notation, “listened by Larry Wechter,” with a date of March 15, 2005.

Lotito testified that she routinely transcribed taped statements as a courtesy to the police officers. Lotito was neither a certified court reporter nor had she taken any courses in transcription. Lotito acknowledged that it was possible that the transcription she made of defendant’s taped statement could contain errors.

Wechter testified to his efforts in obtaining the audiotape of defendant’s statement to Lamela. On September 19, 2003, Wechter filed a general discovery motion. During the next four months, the State provided discovery to Wechter, including the police transcript of defendant’s taped statement to Lamela. On September 2, 2004, Wechter wrote the prosecutor on the case, Michael Vujovich of the Office of the State’s Attorneys Appellate Prosecutor, requesting that the State provide, prior to the trial date of September 23, 2004, the audiotape of defendant’s statement. Wechter did not receive the audiotape by that date. Wechter made an appointment to listen to the tape on March 16, 2005. Later, he received a copy of the tape and mailed it to Clendenin. Wechter admitted that, in the 18 months between the initial discovery request and his appointment to listen to the tape, he never filed a motion to compel production of the tape. Wechter testified that, when he finally listened to the tape and compared it to the police transcript, he found “minor” discrepancies that “appeared *** not to have any impact of the thrust of the comments [defendant] made to the police.”

3. Other Evidence of Ineffectiveness

Defendant testified that Wechter made little contact with him about the case. Defendant testified that, during the 2 k years Wechter represented him, he met only once with Wechter in Wechter’s office. Any other meetings were conducted in the few minutes before or after a court appearance, in the hallway, and they lasted about 15 minutes each. Defendant also testified that he talked to Wechter on the phone a few times. Defendant noted that Wechter erroneously advised him that, if he were convicted, he would have to register as a sex offender for a period of 10 years. Actually, a conviction of possession of child pornography qualifies one as a “sexual predator” (730 ILCS 150/ 2(E)(1) (West 2002)), who must register as a sex offender for life (730 ILCS 150/7 (West 2002)).

Following the testimony, the trial court issued a written decision denying the rest of defendant’s posttrial motion. First, the trial court found no discovery violation by the State. The trial court reasoned that any undue delay in the release of the audiotape could not have prejudiced defendant, because the discrepancies between the police transcript and the certified transcript were “not dispositive on the element of [defendant’s knowledge in light of other disclosures in the case,” particularly defendant’s response, “not very many,” to Lame-la’s question how many discs in defendant’s possession contained child pornography. Second, the court held that defendant agreed to a stipulated bench trial with full awareness of relevant considerations. The court specifically found:

“[Defendant], after being advised by competent counsel, decided to dispose of his case through a stipulated bench trial. Defendant made this decision twice and indicated to the Court on both September 23, 2004, and March 16, 2005. Defendant did so on the latter date after a lengthy and exhaustive discussion with Attorney Wechter even though the Defendant’s father, a retired attorney from a different state[,] did not agree before or after that date. Defendant now attempts with the aid of another attorney and hindsight after a finding of guilty to excise almost two years of this legal proceeding. Defendant was not deprived of his right to testify in his own defense. *** In the case at hand, Defendant’s testimony lacks even an assertion that he wished to testify. Instead he is vague and has no clear memory of key points and conversations. Further, as ruled before, this stipulated bench trial was no [sic] a plea of guilty requiring proper admonishments. Although a finding of guilty was possible as with any trial, the defense did not agree that the proof was sufficient to meet the State’s burden of proof.”

The court rejected the remaining grounds on which defendant alleged ineffectiveness. The court found that Wechter “kept his client [defendant appropriately appri[s]ed of the court proceedings and his suggested strategy in written correspondence.” In these letters, the court found, Wechter “clearly set forth *** what had happened in court, what the suggested next step might be and thoroughly laid out the positive and negative of suggested strategies, most specifically the recommended stipulated bench trial.”

Last, the court found that the stipulation contained proof beyond a reasonable doubt of defendant’s possession of child pornography.

The matter moved to sentencing. Defendant received a sentence of 24 months of specialized sex offender probation, a $2,000 fine plus costs, and 62 days of incarceration in the county jail. Defendant filed a motion to reconsider his sentence, which was denied. He timely appeals.

II. ANALYSIS

On appeal, defendant raises three issues. First, defendant contends that the trial court erred in denying his motion to quash and suppress. Second, defendant contends that Wechter provided ineffective assistance by: (1) preparing a stipulation with factual errors and that defendant never agreed to; (2) failing to challenge the State’s discovery violations; and (3) misinforming defendant of the period of time he would be required to register as a sex offender. Third, defendant contends that the evidence presented by the stipulation was insufficient to support a conviction, because it failed to establish that he knowingly possessed child pornography.

A. Motion to Quash and Suppress

When a reviewing court passes upon a trial court’s ruling on a motion to suppress, it will reverse the trial court’s findings of historical fact only if they are against the manifest weight of the evidence. People v. Phillips, 215 Ill. 2d 554, 566 (2005). The ultimate question of whether the facts require the evidence to be suppressed, however, is reviewed de novo. Phillips, 215 Ill. 2d at 566.

The facts are undisputed. Bailey, who had limited authority to enter defendant’s residence, took defendant’s property, namely a CD and pinhole cameras, and, without defendant’s permission, viewed video files on the disc. Bailey informed Malkin that she believed that defendant possessed child pornography and she gave Malkin the disc. Malkin, without a warrant and without defendant’s consent, looked at the contents of the disc and determined that several of the files contained child pornography. Malkin contacted Lamela and provided him with the disc. Lamela too, without a warrant and without defendant’s consent, viewed the contents of the disc and determined that it contained child pornography. Defendant asserts that these warrantless seizures and searches violated his constitutional right to be free from unreasonable searches and seizures. See U.S. Const., amends. IV XIV; Ill. Const. 1970, art. I, §6. We disagree.

The State relies extensively on Phillips, and we agree that it controls the outcome here. In Phillips, the defendant took his computer to have it repaired. Phillips, 215 Ill. 2d at 559. The technician who repaired the computer tested the repair by playing a video clip stored on the computer’s hard drive. The video clip depicted what appeared to be a young girl engaged in a sexual act with a man while a woman looked on. The technician immediately contacted a police officer acquaintance, told him what he had seen, and asked him to come and look at it. Phillips, 215 Ill. 2d at 559.

When he arrived at the technician’s shop, the officer, without first seeking a search warrant, had the technician play the video clip for him. The officer agreed that the video depicted child pornography and he informed other officers. Phillips, 215 Ill. 2d at 559. Two more officers arrived and, without a warrant, had the technician play the video for them, too. Phillips, 215 Ill. 2d at 559. The defendant was arrested when he returned to pick up his computer. Phillips, 215 Ill. 2d at 560.

The defendant gave to the police a voluntary statement admitting that he possessed child pornography, and he also consented to a police search of his home. The police discovered more child pornography, and, eventually, the defendant was indicted. Phillips, 215 Ill. 2d at 560.

The defendant filed a motion to suppress, arguing that the warrantless searches of his computer were illegal because the technician lacked the authority to consent to them. Phillips, 215 Ill. 2d at 560. The trial court found, as an initial matter, that the technician’s initial search of the computer was the act of a private citizen, not of an agent of law enforcement. Phillips, 215 Ill. 2d at 560-61. The trial court further found that the police viewed the same video as the technician, and, by doing so, the police acquired probable cause to arrest the defendant. The trial court denied the defendant’s motion. Phillips, 215 Ill. 2d at 561.

The supreme court affirmed. Relying upon United States v. Jacobsen, 466 U.S. 109, 80 L. Ed. 2d 85, 104 S. Ct. 1652 (1984), the court noted that “[a] search by a private person does not violate the fourth amendment.” Phillips, 215 Ill. 2d at 566. The court also noted that the “fourth amendment does not prohibit the government from using information discovered by a private search, because the private search has already frustrated any expectation that the information will remain private.” Phillips, 215 Ill. 2d at 566. “[W]here the government uses privately discovered information to investigate a crime without first obtaining a warrant, the fourth amendment question is whether the investigation ‘exceeded the scope of the private search.’ ” Phillips, 215 Ill. 2d at 566-67, quoting Jacobsen, 466 U.S. at 115, 80 L. Ed. 2d at 95, 104 S. Ct. at 1657.

The defendant argued that the police exceeded the scope of the private search by the computer technician because the technician did not provide the police with a “ ‘particular description’ ” of the contents of the file that he had viewed. The supreme court held that the technician’s report to the initial officer at the scene, that the file contained what he considered child pornography, was description enough of the file’s contents. In viewing the file, the police “gained no new material information” but “merely confirmed [the technician’s] report that it appeared to be child pornography.” Phillips, 215 Ill. 2d at 567. Thus, “learning with more precision what the video depicted did not take [the police] beyond the scope of [the technician’s] search.” Phillips, 215 Ill. 2d at 567.

In the case at hand, Bailey, acting privately and with no prompting from any government agent, took defendant’s CD to her own home. There, she viewed the titles of the files on the disc and, in particular, watched one video clip in which a minor girl appeared to engage in sexual activity with an adult man. Under Phillips, Bailey’s seizure of the disc and search of its contents were the acts of a purely private person and did not themselves implicate the fourth amendment. Phillips, 215 Ill. 2d at 566.

The issue rather is whether Malkin or Lamela exceeded the ambit of Bailey’s private search. Phillips, 215 Ill. 2d at 566-67. Defendant first argues that the incriminating nature of the disc was not readily apparent to Malkin or Lamela. Defendant notes that the disc was not marked or otherwise distinguished as containing child pornography. This point has no merit. The computer in Phillips was similarly devoid of any external sign that it contained child pornography on its hard drive, but the police searches there were valid nonetheless.

Defendant’s next point is more subtle. He argues that Malkin’s and Lamela’s searches of the disc were “fishing expeditions” not restricted to the areas Bailey had searched. Here defendant and the State both rely on Jacobsen. There, Federal Express (FedEx) employees opened a damaged container pursuant to company policy and found a tube made of duct tape packed in crumpled newspaper. The FedEx employees opened the tube and found plastic bags containing white powder, which they believed to be contraband. They placed the tube and packaging back into the box and contacted the Drug Enforcement Agency (DEA). Jacobsen, 466 U.S. at 111, 80 L. Ed. 2d at 92, 104 S. Ct. at 1655. A DEA agent arrived and took the tube from the package, removed the plastic bags through the slit that had been made in the tube by FedEx employees, and field-tested the white powder for the presence of cocaine. Other agents then arrived. Jacobsen, 466 U.S. at 111-12, 80 L. Ed. 2d at 93, 104 S. Ct. at 1655.

The Supreme Court held that, while the DEA’s assertion of control over the package constituted a seizure, it was reasonable. The Court recognized that it was “not entirely clear that the powder was visible to [the agent] before he removed the tube from the box.” Jacobsen, 466 U.S. at 118, 80 L. Ed. 2d at 97, 104 S. Ct. at 1659. This, however, did not invalidate the search:

“Even if the white powder was not itself in ‘plain view’ because it was still enclosed in so many containers and covered with papers, there was a virtual certainty that nothing else of significance was in the package and that a manual inspection of the tube and its contents would not tell him anything more than he already had been told.” Jacobsen, 466 U.S. at 118-19, 80 L. Ed. 2d at 97-98, 104 S. Ct. at 1659.

The Court further noted that “[t]he agents had already learned a great deal about the contents of the package from the Federal Express employees, all of which was consistent with what [the agents] could see.” Jacobsen, 466 U.S. at 121, 80 L. Ed. 2d at 99, 104 S. Ct. at 1660. Thus, “[i]t hardly infringed [the defendants’] privacy for the agents to reexamine the contents of the open package by brushing aside a crumpled newspaper and picking up the tube.”. Jacobsen, 466 U.S. at 119, 80 L. Ed. 2d at 98, 104 S. Ct. at 1659. “Similarly, the removal of the plastic bags from the tube and the agent’s visual inspection of their contents enabled the agent to learn nothing that had not previously been learned during the private search.” Jacobsen, 466 U.S. at 120, 80 L. Ed. 2d at 98, 104 S. Ct. at 1660.

Applying Jacobsen to this case, defendant claims that the testimony of Malkin and Lamela does not indicate that their searches were limited to the areas of the disc that Bailey had searched. Defendant notes that Malkin and Lamela both claimed to have viewed a video file from the disc but neither indicated that they viewed the same file Bailey viewed. This contrasts with Phillips, defendant contends, because in that case the police viewed the same video file the technician viewed. Defendant stresses that, unlike in Jacobsen, there was not “a virtual certainty that nothing *** of significance” besides child pornography was contained on the disc.

We question defendant’s premises. First, defendant appears not to appreciate the full scope of Bailey’s search. Bailey’s testimony suggests that, in addition to viewing a video file containing apparent child pornography, she searched the disc widely enough to ascertain several “disturbing” file names also suggestive of child pornography, such as “ ‘mother f — s 8-year-old’ ” and “something about toddler daycare.” We are not persuaded that Bailey’s search lacked sufficient scope to warrant the police conducting a general review of the files on the disc for the presence of child pornography. Defendant certainly has not convinced us that Malkin and Lamela searched anywhere on the disc that by designation (e.g., file name) likely would not contain child pornography. Second, defendant maintains that the disc “could have contained vast amounts of personal information” belonging to him, but he does not point to any evidence in the record suggesting so. Under these facts, Jacobsen supports the State, not defendant.

Defendant also argues that Bailey had to have actual authority or apparent authority to consent to a police search of defendant’s disc, and since she undisputably had neither, Malkin’s and Lamela’s actions were improper. Defendant misconceives the requirement of consent. As we determined above, Bailey’s seizure and review of the disc were not state action. When Bailey presented the disc to Malkin and Lamela, she had already frustrated defendant’s expectation of privacy. Phillips, 215 Ill. 2d at 566; see Jacobsen, 466 U.S. at 117, 80 L. Ed. 2d at 96, 104 S. Ct. at 1658-59 (“The Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated”). The question, therefore, is not whether Bailey had authority to give Malkin and Lamela the disc but whether their searches of the disc exceeded her prior, private search. We determined above that their searches were proper.

Based on the foregoing, we conclude that the trial court properly denied defendant’s motion to quash and suppress. The police action here did not exceed the scope of the private search conducted by Bailey; it only confirmed the results of Bailey’s private search.

B. Ineffective Assistance

Defendant next argues that Wechter provided ineffective assistance. Whether counsel provided ineffective assistance is a mixed question of fact and law. People v. Davis, 353 Ill. App. 3d 790, 794 (2004). We review the trial court’s findings of fact to determine whether they are against the manifest weight of the evidence; we review de novo the ultimate question of whether counsel’s actions support the ineffectiveness claim. People v. Bailey, 375 Ill. App. 3d 1055, 1059 (2007). We consider the ineffectiveness claim under the familiar two-part standard enunciated in Strickland v. Washington, 466 U.S. 688, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984): to prevail on a claim of ineffective assistance, a defendant must show (1) that counsel’s performance 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 proceeding would have been different. Bailey, 375 Ill. App. 3d at 1059. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome of the proceeding. Davis, 353 Ill. App. 3d at 795-96.

Defendant first contends that Wechter was ineffective for failing to present the March 2005 stipulation to him for approval prior to its submission to the court. Defendant insists that he would not have approved the stipulation had he known its content, particularly the statement that, if called as a witness, Lamela would testify that defendant admitted to possessing “not very many” files of child pornography. Defendant asserts that he never intended to waive his right to cross-examine State witnesses such as Lamela. He contends that Wechter’s failure to disclose the content of the stipulation beforehand was not ameliorated by any aspect of the March 16, 2005, hearing because the content of the stipulation was not discussed at all in open court. Defendant argues that the March 2005 stipulation effected a waiver of his right of confrontation, and that the waiver was involuntary and unknowing on two scores: (1) defendant was unaware of what the stipulation contained, and (2) the stipulation was tantamount to a plea of guilty yet the court did not admonish him per Supreme Court Rule 402 (177 Ill. 2d R. 402).

In response, the State contends: (1) the stipulation was not tantamount to a plea of guilty and thus no admonishments were needed; and (2) the evidence at the posttrial hearing showed that Wechter adequately informed defendant of the nature of a stipulated bench trial and its consequences.

We agree with defendant that the record shows that he was never apprised of the specific content of the stipulation. Defendant, therefore, could not have meaningfully decided whether to object to the stipulation, as he had a right to do under People v. Campbell, 208 Ill. 2d 203 (2003), aff’g People v. Campbell, 332 Ill. App. 3d 808 (2002). As we explain below, for defendant to have been left in ignorance of the specific content of the stipulation was a violation of his constitutional right of confrontation as construed in Campbell and other cases. This error is sufficient in itself to require reversal of defendant’s conviction. Defendant additionally argues, as we noted, that the March 2005 stipulation was tantamount to a guilty plea and that he did not receive proper plea admonitions. Campbell and its progeny, we believe, have fundamentally altered the criteria for determining when a stipulation is of such consequence that it necessitates admonitions under Rule 402. Below, we offer some observations on Campbell’s impact.

1. Whether Defendant Knew the Specific Content of the March 2005 Stipulation

Both the United States and Illinois Constitutions preserve the right of an accused to confront the witnesses against him. See U.S. Const., amend. VI; Ill. Const. 1970,