*1 ILLINOIS, Plaintiff-Appellee, v. OF OF THE STATE THE PEOPLE LINDSEY,Defendant-Appellant. L. DERRICK 4—99—0014 District No. Fourth August Opinion 2001. filed *2 COOK, J., specially concurring part dissenting part. and Hart, Daniel D. Appellate Yuhas and Catherine K. of both State Defender’s Office, Springfield, appellant. of for (Norbert Piland, Attorney, Goett'en, John C. of State’s Urbana J. J. Robert Biderman, Hibben, Attorneys Appellate and David A. all of State’s Prosecutor’s Office, counsel), People. for opinion
JUSTICE KNECHT delivered the of the court: August 1998, In police defendant and the arrested (720 him with weapons by unlawful a felon ILCS 5/24— (West 1.1(a) 1998)) and unlawful use of ILCS 5/24— (West 1(a)(4) 1996)). In jury November convicted defendant of charges. both In December the trial court sentenced defendant prison arguing 10- and 3-year appeals, concurrent terms. Defendant (1) stipu- ineffective assistance of counsel due to failure to counsel’s late prior felony to defendant’s convictions and failure to file a motion (2) to vacate his for and violation weapons; unlawful use of (U.S. Const., process right of his fourteenth amendment due amend. could XIV) argued defendant the State occurred when to a fair trial sup- did not the evidence theory as accountability guilty on an found directions. affirm remand with modified and port theory. We such BACKGROUND I. defendant, Lind- Derrick convicted jury
On November , use of a felon and unlawful sey, of unlawful Rein, and Jim David Griffet August On Officers weapons. driving were an unmarked police department, Champaign both of the pedestrian, A stopped a car the road. police they car when noticed Washington, leaning into the driver’s was later identified as Johnnie nervously recognized he unmarked and acted when side window vehicle, defendant, got exited the car and police car. The driver of the and Washington got into the driver’s seat into the backseat pulled behind pull the car to the curb. officers proceeded over officers. got car and Washington approached the car and out and, when driver’s license Washington’s Officer Griffet asked for license, gave Griffet false name. produce Washington he could not Griffet, passenger, and another Washington As talked to Washing- McFarland, discovering After Gary remained in vehicle. Washington driving without a identity, ton’s true Griffet arrested arrested, defendant and McFar- Washington valid license. When Washington squad car, placed Griffet in the land exited *3 car, away from the car. Officer Rein defendant and McFarland walked keys, previously then to to look for the which he went defendant’s car seat, the passengers noted on the front but one of had taken were vehicle, performed them. Rein then a search of the incident to Washington’s arrest. it was open glove compartment,
Rein tried to the but locked. He enough handgun point, At this pried open then to observe a inside. open glove to he a he found the car break the used screwdriver guns the revealing handguns. more One of was 9 compartment, two millimeter, empty magazine inserted. The second bolstered with an handgun. glove gun semi-automatic Also in the was .25-caliber empty magazine. and The compartment six .25-caliber bullets an were handgun, fully loaded with round the gun third was a .25-caliber following items: an The of trunk revealed the chamber. search the a black and white magazine wrapped unloaded 9 millimeter name. handkerchief and a bank book defendant’s McFarland, search, but the Rein looked defendant and After for walking alley an had left scene. Rein saw McFarland down the they under Defendant was placed and he followed him and him arrest. following day. and the found arrested
During trial, judicial the the court took notice of defendant’s three prior jury ag- felonies and informed the he had been convicted of gravated justice. and battery obstructing objected Defense counsel to the prior convictions, introduction of evidence of defendant’s but the objection was overruled because defendant’s el- felonies were an ement possession by charge. of unlawful of felon presented
The defense the stipulated testimony of a forensic scien- tist fingerprints who found four latent one handguns. on Those prints belonged to Gary prints McFarland and no latent were found on weapons. During arguments, other closing the State presented two First, to jury. theories the State argued defendant of guilty was charged offenses because he was in possession constructive handguns car, Second, found inside the which was under his control. argued the State one the weapons Gary because of was connected to through McFarland fingerprint evidence, of guilty offenses because was legally responsible he for McFar- “defendant, land’s argue actions: I’d you, guilty, else, to if nothing responsible McFarland!,] because he’s for the clearly action of who was in guns.” of one those jury guilty returned verdicts on both counts. On December 1998, the trial posttrial court denied defendant’s motion and sentenced him years years, to concurrent terms of 10 and 3 respectively, for unlawful by a felon and unlawful use weapons. On December the trial court denied defendant’s motion sentence, to appeal reconsider and this followed.
II. ANALYSIS (1) presents Defendant two issues for review: he was denied his right sixth amendment to the effective assistance of counsel when (a) defense counsel failed to offer to (b)
status failed to file motion to vacate his unlaw- (2) ful of weapons; use process his fourteenth amendment due right fair trial was improper violated State’s use an ac- countability theory. Right
A. Sixth Amendment Counsel Assistance of to0Effective 1. To Stipulate Failure *4 stipulate his Defendant first contends counsel’s failure to to status the of range professionally competent was error outside assis- and, result, proceedings prej- tance as a below were unreliable and udicial him. disagree. to We
(cid:127)1 The ef- guarantees sixth amendment a criminal defendant Const., prove VI. counsel amend. To of counsel. U.S. assistance fective satisfy the two- assistance, must a defendant ineffective rendered 668, L. U.S. Washington, v. in Strickland pronged test set forth (1984). two-pronged of the 674, The foundation S. Ct. 2052 Ed. 2d the adversarial so undermined performance counsel’s is whether test unjust, unreliable, and possibly be process as cause the result to to right People to counsel. amendment of defendant’s sixth violative (1993). 1304, 1309 525, 608 Whitamore, 519, 3d N.E.2d App. performance counsel’s must establish prong, Under first Under second objective of reasonableness. fell below an standard performance resulted must show counsel’s deficient prong, defendant errors, of the and, the outcome prejudice in actual but counsel’s Whitamore, at App. 241 Ill. different. proceedings would have been 525, at 608 N.E.2d 1309. application principles guide analysis
(cid:127)2 Several
our
trial
strong presumption
exists that
“[A]
Strickland
standard.
range
profes
of reasonable
performance falls within the wide
counsel’s
given to
and, therefore,
deference is
sional assistance”
substantial
Whitamore,
525,
performance.
App.
241 Ill.
at
N.E.2d
counsel’s
performance
A
when
reviewing
at 1309.
court will not review counsel’s
Whitamore,
App.
241 Ill.
judgment, strategy,
involves
or trial tactics.
hindsighted
525,
of
3d at
Illinois case law
no
on whether counsel’s failure
convictions,
prior felony
prior
to defendant’s
when those
offense,
proved
convictions must
an element
case in
presents
results
ineffective assistance. Defendant
which
court abuses
discre-
Supreme
the United States
Court held
trial
its
stipulate to the fact of a
tion when it refuses a defendant’s offer to
conviction,
disclosing
prior
the nature
conviction without
solely
the element of
purpose
the evidence is
States,
as a felon. Old
519 U.S.
status
United
Chief
191-92,
594-95,
136 Ed. 2d
117 S.
655-56
L.
Ct.
made it unlawful for a
The federal statute involved in Old Chief
imprisonment
for more
person
punishable by
convicted of an offense
at
Chief,
Old
519 U.S.
year
than one
to have
firearm.
174-75,
Supreme
Ct.
647. The
Court
198 (see looked to Federal Rule Evidence 403 28 opp. U.S.C. Fed. R. (1994)) that, Evid. 403 and determined is where status an ele- offense, ment of the disclosing the nature of the offense can be more prejudicial probative, than and defendant’s stipulate offer to should be by trial allowed the court. points
Defendant out the statute involved in the present case, (West unlawful a weapon a felon ILCS 5/24—1.1 1998)), is similar to the federal statute in Old Illinois has also Chief. adopted a common-law version of Rule Federal of Evidence 403 in case Lewis, 305, 329, See law. 165 Ill. 2d recognizes, however, Defendant Old situation, involves factual Chief case, unlike the present proffered where a defendant and the trial court to accept stipulation his felony to status. Neverthe refused less, urges defendant apply us to the Supreme reasoning Court’s and analysis present to the discretion, case: “If a trial court abuses its due prejudice accused, to the to the stipulate when refuses to to the fact prior conviction, of a surely it error attorney is for defendant’s not stipulate.” to offer to so Supreme the analysis reasoning
While
Court’s
might
ap-
propriate under the
in
specific facts Old Chief,
apply
we cannot
same
Supreme
standard here. The
Court reviewed the trial
ac-
court’s
tion under an abuse of discretion standard. This
an
case
inef-
involves
challenge
fective assistance of counsel
and we review the effectiveness
representation
of defense counsel’s
under the standard set forth in
differences,
minimal
Strickland. Given these
we find Old
to be of
Chief
proceed
with
analysis.
assistance
the Strickland
jurisdictions,
In our review of case law from other
we found one
that provides
guidance
case
some
on this issue. United
States Col-
(1st
lins,
1995),
Prior to prior felony stipulation of accept State to a defendant’s offense. required is a element when such conviction *6 969, 961, court, Peete, App. 318 Ill. 3d People This (2001), Supreme Court’s rationale 689, followed the United States “approve stipulation a in Old and held the trial court should Chief whereby parties acknowledge that requested by the defendant elaboration, is, prior further convicted felon.” defendant without Tavares, suggests original.) note in the First Circuit (Emphasis We the trial court to request stipulation does not have to defendant prior conviction. exclude evidence of the nature of his required to conviction was prior Tavares held evidence of the nature of simply all, balancing of Federal at unless it survived the test not admissible Tavares, 21 at 5. Rule of Evidence 403. F.3d State to Peete, general practice has been to allow the Prior to prior accept stipulate to to a choose whether to a defendant’s offer concerning felony This court has allowed evidence conviction. that conviction prior felony conviction when nature of a defendant’s current section 24—1.1 statutory predecessor an to element (Ill. 1987, 38, 1.1), par. ch. of the Criminal Code of 1961 Rev. Stat. 24— the crime felony prior for a convicted felon to commit which made conviction or release years five of his of unlawful use of within 164, App. 3d Jennings, 185 Ill. penitentiary. People from the See (1989). App. 185 Ill. 3d at 171-72, Jennings, In 541 N.E.2d stipulate to 171-72, refused to 541 N.E.2d at defense counsel found, stipulation because no prior felony defendant’s record and we testimony of a former occurred, present for the State to proper it was prior defendant’s Department employee to Corrections identity. conviction case, where Jennings present
In as and the factual situations such conviction, prior felony stipulate does not offer to to the trial court to require not exception Peete has carved an does prior convic- of the nature of the automatically any exclude evidence exception, tians. Given this we cannot find defense counsel renders ineffective assistance when counsel does not offer stipulate to to a prior defendant’s felony conviction when that conviction anis element charged offense. (cid:127)3 Because the law at the time of defendant’s trial did require the trial court accept stipulation of his prior felony prior when the conviction is an element of the of fense, we follow the rationale of the First Circuit Collins and find defense counsel’s failure to offer to defendant’s felony convictions did not rise to the level of ineffective assistance of Further, counsel under Strickland. because defendant did not offer to stipulate in present case, finding our supported by our decision Peete, App. 318 Ill. at 743 N.E.2d at specifi in which we cally held a trial accept stipulation court must requested by de fendant.
2. Failure To File Motion To Vacate Defendant next contends defense counsel was ineffective because he did not file a motion to vacate defendant’s conviction for unlawful use of an included offense of unlawful weapons by a disagree. felon. We preliminary matter,
As a defendant concedes this issue was not preserved However, for review. due prejudicial to the improper effect convictions for included may defendant, offenses have on a we have previously reviewed this issue plain under the error doctrine. Barraza, 626 N.E.2d We will, therefore, consider this issue.
(cid:127)4 Multiple closely convictions for prohibited related conduct are when the convictions are “carved physical from the same act” or *7 when one conviction is for an included People offense of the other. v. 551, King, 566, 838, 66 Ill. 2d (1977); 363 N.E.2d People 844-45 v. Rod (1996). riguez, 183, 186, 169 Ill. 2d 305, 661 N.E.2d 306 Defendant “[bjecause contends, the conviction for possession unlawful of a weapon by a felon is carved out of the same physical act as unlawful use of a weapon conviction for the lesser possession offense must —the be vacated.”
(cid:127)5 To determine whether one offense is an included offense of an other, we alleged look to the facts charging the “[A]n instrument. offense is deemed to be a lesser by included offense if it is described charging People Novak, 93, 107, instrument.” 163 Ill. 2d 643 (1994). 762, 769 Under the charging-instrument approach, “the lesser need only greater crime relate to the to the extent that the charging Novak, 107, instrument describes the lesser.” 163 Ill. 2d at
201
identified,
may
it
if
offense is
an included
defendants their own handgun, they time were not on namely: a at a business, land, abode, in violation place in their own or fixed or 1(a)(4).” of 720 ILCS 5/24 — Felony, Weapons Possession of Felons—Class
“Unlawful defendant, felony of a person that the said who has been convicted Illinois, namely: Aggravated Battery, in the Circuit under the law of Illinois, County, 95—CF— Champaign Court of cause number 734, firearm, knowingly namely: on or possessed person, about 1.1(a).” handgun, in violation of 720 ILCS 24— case, alleged charging (cid:127)6 In this the facts as in the instrument for greater possession weapon by offense of unlawful of a a felon do necessary not describe the facts to fulfill the elements of the of- lesser fense weapons. of unlawful use of out,
As the State points to obtain a conviction on an unlawful use weapons charge, prove it must defendant was not on his own land Navarrete, place People App. or his fixed 258 Ill. business. (1994). 742, case, present 629 N.E.2d In the the State had prove knowingly possessed a firearm in a motor vehicle. pos The situs of the not a material of unlawful is element Hester, weapons by session of a felon. N.E,2d Therefore, because State is
required an additional to obtain a on the element conviction weapons charge alleged unlawful use of and this element in the instrument, charging pos cannot be an included offense of unlawful by a Accordingly, session of felon. defense counsel was not ineffective when counsel failed to file a motion to vacate defendant’s for weapons. unlawful use of
(cid:127)7 Defendant next contends if the use of even unlawful charge weapons by is not an included offense of unlawful (Pub. felon, Act unconstitutionality due to the of Public Act 88—680 2750)), must vacate January eff. Laws we 88— 4 impose defendant’s Class conviction and a misdemeanor agree. conviction. We unconstitutional violating
Public Act 88—680 was declared *8 202 (Ill.
single subject rule of 1970, the Illinois Constitution Const. art. IV 8(d)). § People Cervantes, 91, v. 80, 265, 189 Ill. 2d 723 N.E.2d 270 (1999). (Pub. An amendment in Public Act 680, 88—680 Act art. 88— 50, 5, 2826-29)) § 1, January eff. Ill. Laws 50— increased the class of offense for a first time unlawful use of conviction from a misdemeanor to a 4 felony, Class but the elements of the offense remained unchanged. “The effect of an enactment of an unconstitutional amendment to a statute is to leave the law in force as it was adoption before the of the unconstitutional amendment.” People Brown, v. App. 599, 609, 309 Ill. 3d 723 N.E.2d (1999), citing (1990). People Gersch, 384, 390, 135 Ill. 2d 553 N.E.2d Ac cordingly, we reduce defendant’s conviction for unlawful use of a firearm as a Class 4 to that of a A Class misdemeanor and reduce the sentence to 364 days jail.
B. State’s Accountability Theory (cid:127)8 Defendant next contends he was denied his fourteenth amend- process ment right due to a fair State, trial because the as an alternate theory guilt, argued jury guilty by could find defendant account- ability on the charge of unlawful aby felon for Gary McFarland’s actions but did not Gary McFarland awas felon. findWe this issue was properly preserved for review and we decline to consider it plain under the error doctrine.
Again, defendant concedes this issue not preserved for review because the objected evidence was not during trial, and defendant dispute did not the State’s accountability argument posttrial motion for a However, new trial. urges defendant us to consider the is- “[wjhether sue plain under the error doctrine: or not the erroneous evidence objected or remarks trial, were to at the a court of review grant will if relief the trial prejudicial justice error is so that real has been denied or the verdict of the jury may have resulted from such er- ror.” plain
The error rule only applied should when the evidence is closely balanced alleged by or the error defendant rises to the level of denying defendant a fair People Helm, 32, 34, trial. App. 282 Ill. (1996). 669 N.E.2d
Both the State and agree defendant did present evidence of another theory guilt: possession. defendant’s constructive To sup port a conviction under the possession theory, constructive the State must show defendant had knowledge presence of the weapon, and he had immediate and exclusive control over the area in which weapon Hill, was found. presented during evidence clearly First, trial supports theory. his conviction under this vehicle, was the presented driver of evidence at defendant’s trial driving Second, showed he was often seen this vehicle. the police found a magazine belonged the trunk of the car that to one of the *9 handguns trunk, found in the and defendant’s bank book was also found in the Finally, trunk. defendant’s speak own actions also to his knowledge of presence weapons: of the he left the scene while the police searching were the vehicle. though
Even presented both jury, theories to the evi- dence constructive was established. The jury could have found, beyond doubt, a reasonable guilty defendant was of these offen- ses based on possession. constructive presented Because the State alternate theories of guilt entirely pos- and because it is any sible rational trier of fact could have found the essential elements charged of the beyond offenses a reasonable doubt based on the possession argument, constructive any potential we find error in the presentation State’s of its accountability theory does not rise to the level of plain and, therefore, error the issue is forfeited.
III. CONCLUSION We find defense counsel’s failure to to defendant’s felony convictions and his failure to file a motion to vacate defendant’s conviction for unlawful weapons use of did not rise to the level of inef- fective assistance of counsel. Defendant forfeited the issue of whether he was denied his fourteenth process amendment due right ato fair trial, and we decline to apply the plain error doctrine because suf- ficient presented evidence was to convict defendant beyond a reason- able doubt under a constructive theory. We reduce defendant’s Class 4 felony conviction of unlawful use of to a A misdemeanor, Class modify the sentence jail, therefor to days in and remand for issuance of an judgment amended of sentence so reflecting.
Affirmed as modified and remanded with directions.
MYERSCOUGH, J., concurs. COOK,
JUSTICE specially concurring part in dissenting in part:
I respectfully dissent portion from that majority opinion which affirms the defendant’s conviction of weapons. unlawful use of
After searching the car in located, which defendant police found handguns three glove compartment: one 9 millimeter and felon, convicted previously Because defendant was a
two .25 calibers. possession weapons by charged one count of unlawful he was with 1.1(a) (West 1998)). (720 He was also with felon ILCS 5/24 — (West 1(a)(4) unlawful use of ILCS one count of 24— 1996)). language, alleging possession used identical Each information handgun.” of “a appeal on that his trial counsel was ineffective
Defendant claims
one of his convictions under the
failing
to file a motion to vacate
under
one-act,
majority properly
rule. The
reviews this claim
one-crime
However,
at
error doctrine. 324 Ill.
202-03.
plain
one-act,
rule is
majority’s analysis
incomplete.
one-crime
one-act,
Ill.
developed People King,
one-crime rule was
purpose
prevent
Its
was to
sentencing.
recognized
prejudice
that
will result
pyramiding
King
than one offense is carved from the same
to a defendant where more
2d at
This case type problem. the same say Should we that Lindsey committed separate acts, three but being simultaneous each that possessing single gun? Or say Lindsey should we that com- only mitted one possessing guns? three From a standpoint of act — comparative culpability, the former approach may preferable. seem Possessing, e.g., a crate of weapons greater seems to deserve punish- ment possessing than merely single gun, if only because the infer- ence arises that the defendant may trafficking However, arms. such reasoning quickly type leads back to the of extreme pyramiding (Should considered hypothetical cocaine above. we then allow multiple convictions possesses where a felon only a few guns, but not great many?)
The supreme court recently
one-act,
addressed the
rule,
one-crime
although unfortunately not in possessory
context. In
v. Cres
po,
(2001),
Ill. 2d
the defendant
with and
convicted multiple offenses,
stemming from the stabbing of one of
his victims. He had stabbed that victim three times. Crespo, 203 Ill. 2d
at 339. The court
that,
reiterated
according
precedent,
separate
each
stab could be
separate act,
considered a
supporting
separate
offense.
Crespo, 203 Ill. 2d at
However,
341-42.
the court noted that the counts
charging the defendant had not differentiated between the separate
stab wounds. The court found that to apportion the acts for the first
time on appeal would be profoundly unfair. Crespo,
Similarly, the instruments charging Lindsey here do not differenti- ate handguns between the found in glove box. Each speaks only of handgun.” “a Therefore, Crespo, Lindsey’s under conviction for unlaw- ful use of a weapon must be vacated as the less But, serious offense. unlike situations such as presented that by Crespo, involving “truly” physical acts such as remains stabbing, it also to be seen under what circumstances, if any, the may charge separate “acts” the various physical components of purely possessory offenses. See People (1999) (si Williams, single act which gun drugs was but
multaneous posses armed violence and unlawful support charges of both could not felon). by a weapon sion of a BURWELL, BURWELL, Plaintiff-Appellant, LLOYD C.
BONNIE JEAN Defendant-Appellee. 4—00—0407
Fourth District No. Opinion August 2001. filed COOK, J, dissenting.