2018 IL App (1st) 152616
Ill. App. Ct.2018Background
- Police executed a search warrant at a second-floor apartment; officers saw Jarrod Curry near the back door, observed him reach toward his waistband, and run into the apartment; officers forced entry and chased him.
- Officers testified Curry reached into his waistband and front pocket while fleeing and discarded two items on the landing: a bag with pink-tinted baggies of heroin and a .25-caliber Beretta with six live rounds.
- At the station Curry allegedly admitted selling heroin and crack for “Young Money,” said the drugs and gun were his, and that he carried the gun for protection; Curry denied these statements at trial and denied fleeing or discarding items.
- Forensic testing confirmed 15.2 grams of heroin and 0.1 gram of cocaine among items recovered; additional small quantities and cash were found in the apartment.
- After a bench trial Curry was convicted of armed violence (based on drug trafficking while armed), possession with intent to deliver >15g but <100g heroin, and possession with intent to deliver <1g cocaine within 100 feet of a park; concurrent sentences were imposed.
- On appeal the court affirmed the armed-violence and cocaine convictions, vacated the heroin conviction under the one-act/one-crime rule, corrected the mittimus, and reduced/corrected fines and fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for armed violence (was Curry “armed” while committing the predicate felony?) | State: evidence showed Curry possessed gun while possessing drugs and admitted carrying it for protection; conviction should be upheld. | Curry: he discarded the gun while fleeing and lacked immediate access/timely control when confronted by police, so armed-violence conviction is unsupported. | Affirmed. Court held possession of a gun during the drug transaction supports armed-violence conviction despite quick discarding before arrest. |
| One-act, one-crime: separate convictions for armed violence and underlying drug trafficking (heroin >15g) | State: legislative amendments and sentencing provisions show intent to allow separate convictions and consecutive sentencing in some cases. | Curry: the heroin conviction is the predicate offense to armed violence and thus a lesser-included offense; multiple convictions violate one-act, one-crime. | Vacated heroin conviction. Court held the drug offense was a lesser-included/predicate offense to armed violence and must be vacated despite sentencing statute language. |
| Mittimus language re: Class X offender vs. Class X felony | State concedes error. | Curry requests correction to reflect sentencing for a Class X felony, not as a Class X offender. | Corrected. Court ordered mittimus amended to show sentencing for committing a Class X felony, not as a Class X offender. |
| Fines and fees assessment (electronic citation fee; offsets for presentence custody against state police and court system fees) | State concedes fines/fees were improperly assessed. | Curry seeks vacation of $5 electronic citation fee and presentence-credit offsets against $15 and $50 assessments. | Corrected. $5 fee vacated; $15 and $50 fees offset by presentence credit, leaving total assessment of $679. |
Key Cases Cited
- People v. Smith, 191 Ill.2d 408 (Supreme Court of Illinois) (discusses requirement of immediate access/timely control for armed-violence analysis)
- People v. Harre, 155 Ill.2d 392 (Supreme Court of Illinois) (upheld armed-violence conviction where circumstantial evidence supported possession during drug delivery)
- People v. Condon, 148 Ill.2d 96 (Supreme Court of Illinois) (statutory purpose of armed-violence statute and concept of immediate potential for violence)
- People v. Beauchamp, 241 Ill.2d 1 (Supreme Court of Illinois) (standard for reviewing sufficiency of evidence)
- People v. Johnson, 237 Ill.2d 81 (Supreme Court of Illinois) (one-act, one-crime rule and framework for analysis)
- People v. Donaldson, 91 Ill.2d 164 (Supreme Court of Illinois) (observations on legislative intent regarding separate convictions for armed violence and predicate felonies)
- People v. Anderson, 364 Ill. App.3d 528 (Appellate Court of Illinois) (interpreting when immediate potential for violence exists for armed-violence liability)
- People v. Nunez, 236 Ill.2d 488 (Supreme Court of Illinois) (plain-error review for one-act, one-crime issues)
- People v. Thompson, 238 Ill.2d 598 (Supreme Court of Illinois) (preservation and plain-error standards)