People v. GaydenPeople v. Gayden
ORDER
¶ 1 Held: The State presented sufficient evidence to prove defendant guilty beyond a reasonable doubt of unlawful use or possession of a weapon. The record is insufficient to determine whether trial counsel was ineffective for failing to file a motion to quash arrest and suppress evidence. Fines, fees, and costs order modified.
¶ 2 Following a bench trial, defendant Lanard Gayden was convicted of unlawful use or possession of a weapon (UUW) and sentenced to two years’ imprisonment. On appeal, he argues
¶ 3 Defendant was charged with one count of UUW for possessing a shotgun that had a barrel that was less than 18 inches in length.
¶ 4 At trial, Chicago police officer Patrick Glinski testified that, at around 12:40 p.m. on February 15, 2014, he responded to “a call of a man with a shotgun” at 8952 South Burley Avenue. He went to “the north side of the three-flat building to enter.” Glinski knocked on the exterior door, entered, and took a staircase to the third floor. There, he saw a man, identified in court as defendant, standing five feet away “in the doorway [and] holding a shotgun.” Defendant made eye contact with Glinski and then defendant “threw the shotgun on the ground and slammed the door on [Glinski].” Glinski “knocked in the door.” Defendant was “right on the other side of the door when [Glinski] knocked it in,” i.e., “five or six feet” away. The shotgun Glinski had seen defendant holding was on the floor a few feet from the door. Other police officers arrived and defendant was arrested.
¶ 5 Chicago police officer Schaffer testified that, around 12:50 p.m. on February 15, 2014, he responded to a report of “a person with a shotgun in front of the location” at 8952 South Burley. There were already police officers at the scene when he arrived. Schaffer went to the third floor and saw a shotgun on the floor “immediately upon entering the apartment.” He recovered the shotgun and ejected three live shells. He took the shotgun to the police station to inventory it and to get “a measurement of the barrel.” Schaffer used a measuring tape and found the shotgun’s
¶ 6 The State rested its case, and defendant made a motion for a directed finding, which the court denied.
¶ 7 Shavonnetay Carpenter testified that she was defendant’s friend. She arrived at 8952 South Burley at 9 p.m. on February 15, 2014, to pick up defendant’s children to “take them out.” Others were present, including two women named Sierra and Evelyn, a man, Ray, and “somebody else” who Carpenter could not recall. At about 10:10 p.m., everyone was in the living room when the police “bum rushed the door.” Three police officers entered, aimed their guns at defendant, and “had him on the ground.” Carpenter was with defendant at all times that night and she never saw him with a gun or saw a gun anywhere in the front room or hallway. Defendant never stepped out of the apartment. After defendant was arrested, Carpenter took his children to their mother’s home.
¶ 8 On cross-examination, Carpenter testified that she had known defendant 10 years. She had dated defendant years earlier. She planned to take defendant’s two children, ages five and six, to sleep at her home that night. Carpenter never saw a shotgun.
¶ 9 Defendant testified that, at about 10 p.m. on February 15, 2017, he was in his “three bedroom duplex apartment” at 8952 South Burley with Carpenter, Sierra, Evelyn, his two kids, and his roommates, Raymond and Anthony. Everyone was in the front room, except for the children and Anthony. The door to the unit was unlocked because Sierra and her parents lived “right next door” and there was “a lot of in and out between both apartments.” Sierra’s sister and her boyfriend were “back and forth” that night.
¶ 10 At about 10:15 p.m., defendant heard a “large commotion” in the hallway and “marched” to his door to lock it. Before he could do so, the doorknob turned and the door began to open. Defendant stated, “it’s like a tug of war which I’m pushing my door in, he’s pushing it from the outside.” Defendant shut the door, but it was “forced back open with a hand sticking out, blue sleeve color and a gun waving.” Seeing this, defendant backed off the door and a police officer “fell into [his] apartment. The officer was “waiving [sic] the gun around.” Raymond dropped to the floor and defendant put his hands in the air. Defendant was arrested. Two more police officers followed soon after.
¶ 11 Defendant denied holding and throwing a gun that night, or ever seeing a gun. He did not see the officers recover a gun from the apartment and “was long gone before anything, they even say anything to [him] about a gun.”
¶ 12 On cross-examination, defendant answered in the negative when asked if the police knocked or announced their office before entering the apartment.
¶ 13 The trial court found defendant guilty. Defendant filed a motion for new trial and motion to reconsider the guilty finding, arguing that the State failed to prove defendant was guilty beyond a reasonable doubt because it did not present sufficient evidence to establish that he ever “had possession of the sawed off shotgun that was recovered.” The court denied the motion and sentenced defendant to two years’ imprisonment.
¶ 14 This timely appeal followed.
¶ 15 Defendant first argues that the evidence at trial was insufficient to prove him guilty of UUW because the State failed to prove beyond a reasonable doubt that the barrel of the shotgun
¶ 16 As a preliminary matter, defendant asks us to take judicial notice of information readily available on government websites to bolster his challenge to the sufficiency of the evidence of the length of the shotgun’s barrel. The first website, that of the United States mint, details the size of a dime, which defendant offers as an example of how small the half-inch difference between the legal length of a shotgun barrel and the length of his shotgun’s barrel was. The second website sets out the procedure used by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to measure the barrel length of a shotgun, which differs from the method used in this case. “Courts may take judicial notice of facts proven by ‘immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy.’ ” Central Austin Neighborhood Ass‘n v. City of Chicago, 2013 IL App (1st) 123041, ¶ 13 (quoting Vulcan Materials Co. v. Bee Construction, 96 Ill. 2d 159, 166 (1983)). “However, courts ‘will not take judicial notice of critical evidentiary material not presented in the court below, and this is especially true of evidence which may be significant in the proper determination of the issues between the parties.’ ” Id. (quoting Vulcan Materials Co., 96 Ill. 2d at 166). As the information was not presented to the trier of fact, we decline to consider it on appeal.
¶ 17 On a challenge to the sufficiency of the evidence, we inquire “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis omitted.) People v. Davison, 233 Ill. 2d 30, 43 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In so doing, we draw all reasonable inferences in favor of the State (Davison, 233 Ill. 2d at 43) and we do not retry the defendant (People v. Collins, 106 Ill. 2d 237, 261 (1985)). The State must prove each element of an offense beyond a reasonable doubt. People v. Siguenza-Brito, 235 Ill. 2d 213, 224 (2009). It is within the province of the trier of fact “to determine the credibility of witnesses, to weigh the evidence and draw reasonable inferences therefrom, and to resolve any conflicts in the evidence.” Id. at 228. A defendant’s claim that a witness was not credible, standing alone, is insufficient to reverse a conviction. Id. We will not overturn a criminal conviction “unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt.” People v. Givens, 237 Ill. 2d 311, 334 (2010).
¶ 18 To prove defendant was guilty of UUW, the State had to prove that he knowingly possessed “a shotgun having one or more barrels less than 18 inches in length.”
¶ 19 We conclude that, viewing the evidence in a light most favorable to the State, a trier of fact could find defendant guilty of UUW. Officer Glinski testified he responded to a call of a man with a shotgun at 8952 South Burley. He went up to the third floor, and saw defendant on the threshold of the doorway holding a shotgun, which he threw to the ground before shutting the door. Glinski “knocked in the door” and saw defendant and the shotgun. Officer Schaffer testified that he measured the barrel to be 17 1/2 inches and that the end of the barrel “looked uneven” and felt “gritty,” like it had been “sawed off or somehow manipulated from its original state.” Given this evidence, we find that a rational trier of fact could have concluded that the barrel of the recovered shotgun was less than 18 inches.
¶ 20 Nevertheless, defendant argues that the State failed to prove him guilty of UUW beyond a reasonable doubt because “the only evidence regarding the length of the shotgun was the
¶ 21 The testimony of a single witness is sufficient to establish guilt beyond a reasonable doubt, so long as the testimony is positive and the witness credible. People v. Smith, 185 Ill. 2d 532, 541 (1999). Based on the record, it was not unreasonable for the trial court to conclude beyond a reasonable doubt that Schaffer properly measured the gun and that his measurement was accurate. There is nothing in the record indicating that Schaffer improperly measured the shotgun’s barrel length. Schaffer not only measured the barrel’s length, but noted signs indicating that the barrel had been purposefully shortened. Therefore, we cannot conclude that no rational trier of fact could have found beyond a reasonable doubt that defendant was in possession of a shotgun with a barrel less than 18 inches in length.
¶ 22 Next, defendant contends he was denied the effective assistance of trial counsel where counsel failed to file a motion to quash his arrest and suppress the recovered shotgun. Defendant argues that the motion would have been granted because “the police clearly violated [defendant’s] rights under the Fourth amendment” when they entered his property “without a warrant, probable cause, or exigent circumstances” and recovered the shotgun. The State argues that the failure to file a motion to quash cannot support a claim of ineffective assistance of counsel because the motion would have been denied where the police’s warrantless entry into defendant’s apartment was lawful because there was probable cause to arrest him and, additionally, exigent circumstances existed that excused the need for a warrant.
¶ 23 A criminal defendant has a constitutional right to the effective assistance of counsel.
¶ 24 A reviewing court, however, should not simply proceed to the merits of every ineffective assistance of counsel claim. When a claim of ineffective assistance of counsel is based on the failure to file a motion to suppress evidence, the record may be inadequate for a reviewing court to make a conclusion on the issue and the better resolution may be to raise the issue in a collateral challenge under the Post-Conviction Hearing Act (
¶ 25 Here, after a careful review of the record on appeal, we decline to consider defendant’s claim of ineffective assistance of trial counsel because the record is devoid of evidence that would allow this court to determine whether a motion to quash arrest would have been granted or whether police acted lawfully under the circumstances. The record reflects that Officer Glinski responded to “a call of a man with a shotgun.” Upon arriving at the address, he approached the “three-flat,” knocked on the “exterior” door, and entered. Glinski went to the third floor, where he saw defendant “in the doorway [and] holding a shotgun.” Defendant made eye contact with Glinski, “threw the shotgun on the ground and slammed the door.” Glinski “knocked in the door” and arrested defendant.
¶ 26 There are numerous unanswered factual questions that preclude us from deciding the substantive fourth amendment claims that underlie defendant’s claim of ineffective assistance of counsel. Presumably the State is relying on the plain-view doctrine to justify the seizure. A warrantless seizure of evidence in plain view does not violate the fourth amendment. People v. Garcia, 2012 IL App (1st) 102940, ¶ 4. This exception allows a police officer to seize an object without a search warrant if the object is in plain view, the object’s incriminating nature is immediately apparent, and the officer is lawfully located in the place where he observed the object. Id. The third factor can be satisfied by the exigent circumstances exception to the warrant requirement. Id.
¶ 27 The record in this case is devoid of information necessary to fully address and resolve defendant’s fourth amendment claim that the police entered into his property without lawful
¶ 28 We note that, subsequent to the filing of our original order, defendant filed a petition for rehearing, in which he asserted our finding that there was an insufficient record to analyze his claim of ineffective assistance of counsel was erroneous. In this manner, defendant’s petition contains impermissible reargument. See
¶ 29 Therefore, we decline to address defendant’s ineffective assistance of counsel claim because the record, as it exists, is insufficient for us to determine whether defendant was lawfully arrested, whether trial counsel’s decision to file a motion to quash arrest and suppress was strategic, or whether such a motion would likely have succeeded. Veach, 2017 IL 120649, ¶ 46.
¶ 30 Defendant next argues that the trial court improperly assessed the $5 electronic citation and the $5 court system fee against him and that it failed to give him $5 per day of presentence
¶ 31 Defendant did not challenge these assessments at trial and acknowledges his claims are, therefore, forfeited. See People v. Hillier, 237 Ill. 2d 539, 544 (2010). He contends, however, that we may review his claims under plain error or, alternatively, that trial counsel was ineffective for failing to object to the assessments. The State agrees with defendant in that, even though he forfeited his claims by failing to raise them in the trial court, the plain error doctrine permits the reviewing court to review the issues under the plain error doctrine.
¶ 32 We disagree that defendant’s challenge is reviewable under plain error. People v. Grigorov, 2017 IL App (1st) 143274, ¶ 15; People v. Griffin, 2017 IL App (1st) 143800, ¶ 9, pet. for leave to appeal granted, No. 122549 (Nov. 22, 2017); contra People v. Cox, 2017 IL App (1st) 151536, ¶ 102 (holding that the improper imposition of fines and fees affects “substantial rights” and thus may be reviewed under the second prong of the plain error doctrine). Nevertheless, because the State does not argue forfeiture on appeal, it has thus forfeited that argument and we will address the merits of defendant’s claims. See People v. Brown, 2017 IL App (1st) 142877, ¶ 70 (rules of waiver and forfeiture apply to the State). We review the
¶ 33 Defendant first claims, and the State properly concedes, that the $5 electronic citation fee (
¶ 34 Defendant also claims, and the State again properly concedes, that the $5 court system fee (
¶ 35 Defendant also argues that he is entitled to presentence custody credit toward the following assessments imposed by the trial court, which he argues are fines and, therefore, subject to offset: a $15 State Police operations fee (
¶ 36 A defendant is entitled to a $5 credit toward the fines levied against him for each day he is incarcerated prior to sentencing.
¶ 37 We agree with the parties that the $15 State Police operations fee and $50 court system fee are fines subject to presentence custody credit. See People v. Brown, 2017 IL App (1st) 150146, ¶ 36 (State Police operations assessment is a fine); People v. Reed, 2016 IL App (1st) 140498, ¶ 15 (court system fee is a fine). Accordingly, defendant is entitled to offset the State Police operations fee and court system fee with presentence custody credit.
¶ 38 We agree with the State that the remaining assessments that defendant challenges are not fines subject to offset by presentence custody credit. Contrary to defendant’s argument, this court has previously considered challenges to these assessments and found them to be fees, not fines. See People v. Tolliver, 363 Ill. App. 3d 94, 97 (2006); People v. Bingham, 2017 IL App (1st) 143150, ¶¶ 41-42 (relying on Tolliver and finding the $190 felony complaint filing fee is not a
¶ 39 For the foregoing reasons, we vacate the $5 court system fee and $5 electronic citation fee. We direct the clerk of the circuit court to further amend that order to reflect a credit of $65 to offset the $15 State Police operations fee and $50 court system fee, which leaves a total of $729 in fines and fees due. We affirm defendant’s conviction and sentence in all other respects.
¶ 40 Affirmed; fines and fees order modified.