People v. MitchellPeople v. Mitchell
¶ 1 Held: The trial court did not abuse its discretion in joining certain cases. Moreover, because the trial court did not abuse its discretion in joining the cases, defendant cannot establish that trial counsel‘s failure to object to the joinder deprived him of the effective assistance of counsel. When two of defendant‘s convictions are based upon the same physical act, one must be vacated pursuant to the one-act, one-crime rule.
¶ 3 On appeal, defendant contends that the trial court erred when it joined case numbers 12 CR 5221 and 12 CR 5222 with case number 12 CR 5225 because there was no legal basis to do so. Defendant further contends that he was denied the effective assistance of counsel when counsel failed to object to the joinder. In the alternative, defendant contends that his conviction for armed robbery in case number 12 CR 5221 must be vacated pursuant to the one-act, one-crime rule because it was based upon the same physical act as his conviction for aggravated vehicular hijacking. Defendant finally contests the imposition of certain fines and fees. We affirm in part, vacate in part and correct the fines and fees orders.
¶ 4 In case number 12 CR 5221, defendant was charged by indictment with, inter alia, aggravated vehicular hijacking and armed robbery. Specifically, defendant was charged with aggravated vehicular hijacking in that he took a vehicle from the person or immediate presence of Joshua Barksdale on February 5, 2012 by the use of force or by threatening the imminent use of force and carried upon his person a dangerous weapon other than a firearm. Defendant was also charged with armed robbery in that he took property, that is, keys and a car title, from the person or immediate presence of Joshua Barksdale by the use of force or by threatening the imminent use of force while carrying a dangerous weapon other than a firearm.
¶ 6 At a September 13, 2012 court date, the State indicated that it wished to consolidate case numbers 12 CR 5221, 12 CR 5222 and 12 CR 5226. The trial court asked if there was any objection to the consolidation. Codefendant‘s counsel asked if she could “address that on a future court date,” as she was “not prepared to address it at this point.” The State then explained that the allegation was that defendant and codefendant “carjacked” the victim in case number 12 CR 5221 and that the vehicle was then sold in case number 12 CR 5222. The State further explained that codefendant was arrested in a car that defendant and codefendant were alleged to have carjacked in case number 12 CR 5226. The court then asked whether there was anything defense counsel needed to see or review first. Codefendant‘s counsel stated that she “would like to review those files *** and come back” to the court with a response. The trial court granted the motion to consolidate without prejudice.
¶ 8 The matter proceeded to a joint bench trial. In its opening statement, the State stated that a motion to consolidate was granted because defendant and codefendant were involved in “a pre-organized and complicated business,” that is, defendant and codefendant were in the business of selling cars and “went about obtaining their supply of cars, *** by force, by attacking victims and by displaying guns to obtain cars.”
¶ 9 Joshua Barksdale, who had two prior felony narcotics convictions, testified that in February 2012 he worked as a wholesale car dealer. On February 5, 2012, he received a phone call regarding a 2003 Impala, and set up a meeting with a potential buyer. He identified defendant in court as the potential buyer. Defendant and Barksdale then went for a test drive with defendant driving. At one point, defendant pulled into an alley between 61st Street and California Avenue and “hit the brakes.” A man then appeared from between the garbage cans in the alley. Barksdale identified codefendant in court as this person. Codefendant opened the passenger door and tried to swing something at Barksdale. Barksdale described the item as a sock with something heavy in it. He caught codefendant‘s arm and pulled himself out of the car. The two men then “got to tussling.” Defendant exited the vehicle and pulled out a gun. Barksdale raised his hands, said “take the vehicle,” and released codefendant. Codefendant then hit him twice on the head with the sock. Barksdale described the blows “like somebody hit you in the head with a brick.” He fell to the ground. Defendant and codefendant got into the vehicle and “took off.” Inside the vehicle at this time were the title, a bill of sale and information about the vehicle.
¶ 11 Cristofer Franco testified through an interpreter that on January 30, 2012, he was driving his 2004 Chrysler Sebring down the 6100 block of California Avenue looking for a tire shop. At one point, two people were crossing the street “like normal people” when one man pulled out a gun. The man with the gun approached the driver‘s side of the vehicle and pointed the gun at Franco. He indentified defendant in court as this person. The second person went to the passenger‘s side of the vehicle. Franco identified codefendant in court as this person. Codefendant entered the vehicle and began to hit Franco on the head. Franco was hit “[m]aybe like eight times” with something hard. Defendant then pulled Franco out of the vehicle by his hoody. Once Franco was pulled out of the vehicle, codefendant went through his pockets and took his wallet and phone. Defendant and codefendant then got into the vehicle and defendant drove it away. After approximately 25 to 30 feet, the vehicle stopped, defendant exited, pointed a gun at Franco and said “amigo.” Franco ran away. He was able to borrow a phone and called his brother-in-law, who took him to a police station. He was then taken to a hospital where his head wounds were treated with staples. Franco went to a police station on February 13, 2012, and was able to get his empty wallet back. He also identified defendant and codefendant in line-ups.
¶ 13 Officer John Stanley testified that on February 13, 2012, he responded to a vehicle accident. Once there, he observed a bronze Impala “crashed into a tree.” Stanley ran the vehicle identification number (VIN), and the vehicle “came back stolen.” He then spoke to Terner and Freemen, and received certain paperwork from Terner. The paperwork included a “reassignment of a vehicle by registered dealer,” a bill of sale, and a Wisconsin certificate and title for the vehicle. During cross-examination, Stanley testified that at the scene of the accident, Terner stated that Freeman had suffered a fainting spell while driving the vehicle. During redirect, Stanley testified that Terner and Freeman indicated that they had purchased the vehicle from “Laylow” and Mohammed.
¶ 14 Officer Lule testified that in February 2012, he was assigned to “robbery missions,” and that as part of this assignment, he was aware of vehicles that were the subject of certain vehicular hijackings. On the evening of February 12, 2012, he and his partner were on patrol when Lule observed a Chrysler Sebring that matched the description of one of the vehicles that had been taken in a carjacking. When the vehicle failed to signal before turning, Lule curbed it. He then approached and asked the driver for a driver‘s license. Lule identified codefendant in court as the driver. After codefendant failed to produce a driver‘s license, Lule asked him to exit the car and took him into custody. Lule “ran” the vehicle‘s VIN and learned that “the vehicle had been taken in a vehicular hijacking.” Codefendant was taken to a police station and “processed.” Lule learned that codefendant‘s home address was 5751 South California. Lule searched a police database and learned that defendant had previously been stopped in codefendant‘s company and also lived at 5751 South California.
¶ 16 Detective Gary Wisniewski testified that on February 13, 2012, he compiled a photographic array containing defendant‘s photograph and showed it to Barksdale. Barksdale identified defendant. He later assembled line-ups, one containing codefendant and one containing defendant. Barksdale and Franco both identified defendant and codefendant.
¶ 18 At sentencing, the State indicated that defendant was eligible for extended-term sentences because of his criminal background. In case number 12 CR 5221, defendant was sentenced to an extended-term sentence of 55 years in prison for aggravated vehicular hijacking and to a consecutive extended-term 55-year sentence for armed robbery. In case number 12 CR 2222, defendant was sentenced to an extended-term sentence of 30 years in prison for possession of a stolen motor vehicle. In case number 12 CR 5225, defendant was sentenced to extended-term sentence of 50 years in prison for aggravated vehicular hijacking and to a consecutive extended-term 50-year sentence for armed robbery. The sentences for each of the three cases were to be served concurrent to each other. The trial court denied defendant‘s motion to reconsider sentences.
¶ 19 On appeal, defendant first contends that the trial court improperly joined case number 12 CR 5225 to case numbers 12 CR 5221 and 12 CR 5222 because there was “no legal basis” to do so. Defendant argues that joinder of the cases was improper because case number 12 CR 5225, which involved the “alleged carjacking” of Franco “did not result from the same comprehensive transaction” as the carjacking of Barksdale and subsequent sale of that vehicle. In other words, “neither Barksdale‘s nor Franco‘s testimony regarding their respective carjackings or the weapons used was relevant in the other‘s case or needed to prove the other‘s case.” Defendant therefore concludes that because there was “no link” connecting the carjacking of Barksdale and the sale of that vehicle to the carjacking of Franco, the trial court erred when it granted the State‘s motion to join case number 12 CR 5225 to case numbers 12 CR 5221 and 12 CR 5222.
¶ 21 The plain error doctrine permits this court to consider unpreserved error when (1) the evidence was so closely balanced that the error alone threatened to tip the scales of justice against the defendant; or (2) the error was so serious that it affected the fairness of the defendant‘s trial and challenged the integrity of the judicial process. People v. Herron, 215 Ill. 2d 167, 178-79 (2005). The defendant has the burden of persuasion under both prongs of the plain error doctrine, and if he fails to meet the burden of persuasion, this court must honor his forfeiture. People v. Naylor, 229 Ill. 2d 584, 593 (2008). Before applying either prong of the plain error doctrine, we must first determine whether an error occurred. People v. Cosby, 231 Ill. 2d 262, 273 (2008). If there is no reversible error, there can be no plain error. Id.
¶ 22 The trial court has discretion to join charges against a defendant if the offenses are based on two or more acts that are part of the same comprehensive transaction, unless the defendant will be prejudiced by the joinder of separate charges. People v. Patterson, 245 Ill. App. 3d 586, 587 (1993). If the trial court, in its sound discretion, determines that the joinder will prejudice the defendant, the court can order separate trials or provide any other relief justice requires. Id. When joining cases, the factors to be considered are: (1) proximity in time and location; (2) the identity of evidence needed to demonstrate a link between the offenses and to establish elements of the offenses; and (3) whether there exists a common method of perpetrating the offenses. Id. at 588. A trial court‘s decision will not be overturned absent an abuse of discretion. People v. Fleming, 2014 IL App (1st) 113004, ¶ 38. A trial court abuses its discretion when its decision is arbitrary, fanciful, or where no reasonable person would take the trial court‘s view. Id.
¶ 24 “The second factor, common evidence, ‘asks not whether evidence of the two crimes is similar or identical but rather whether the court can identify evidence linking the crimes.’ ” (Emphases in original.) Fleming, 2014 IL App (1st) 113004, ¶ 42 (quoting People v. Walston, 386 Ill. App. 3d 598, 605 (2008)). In case number 12 CR 5221, defendant and codefendant were alleged to have taken Barksdale‘s vehicle by force, that is, defendant had a gun and codefendant approached the passenger side of the vehicle and struck Barksdale on the head. In case number 12 CR 5225, defendant and codefendant were alleged to have taken a vehicle from Franco by force, that is, defendant had a gun and codefendant entered the passenger side of the vehicle and hit Franco on the head. A search of the home defendant and codefendant shared recovered a sock containing a padlock and an object that looked like a gun. In other words, evidence common to both cases was recovered from defendant‘s home.
¶ 26 Alternatively, defendant argues that his counsel was ineffective for failing to object to the joining of the cases. “To show ineffective assistance of counsel, a defendant must demonstrate that ‘his attorney‘s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel‘s errors, the result of the proceeding would have been different.’ ” People v. Simpson, 2015 IL 116512, ¶ 35 (quoting People v. Patterson, 192 Ill. 2d 93, 107 (2000)). A reasonable probability is defined as ” ‘a probability sufficient to undermine confidence in the outcome.’ ” Id. (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). A defendant must satisfy both prongs of Strickland test, and a failure to satisfy either prong is fatal to a claim of ineffective assistance of counsel. Id.
¶ 28 Defendant next contends that his convictions for aggravated vehicular hijacking and armed robbery in case number 12 CR 5221 violate the one-act, one-crime rule. Defendant argues that the conviction for armed robbery should be vacated because it arose out of the same act, the taking of a vehicle by use of force or the threat of force from Barksdale, as the conviction for aggravated vehicular hijacking. Defendant acknowledges that he failed to raise this issue before the trial court and asks this court to review it pursuant to the plain error doctrine.
¶ 29 Although defendant failed to preserve this claim of error for review, plain-error review is appropriate. See People v. Artis, 232 Ill. 2d 156, 167-68 (2009) (quoting People v. Harvey, 211 Ill. 2d 368, 389 (2004)) (” ‘an alleged one-act, one-crime violation and the potential for a surplus conviction and sentence affects the integrity of the judicial process, thus satisfying the second prong of the plain error rule’ “).
¶ 31 First, we must decide whether defendant‘s conduct consisted of a single physical act or multiple acts. Miller, 238 Ill. 2d at 165. In King, our supreme court defined an “act” as “any overt or outward manifestation which will support a different offense.” Id. at 566. Interrelated acts, however, may give rise to multiple acts. People v. Dixon, 91 Ill. 2d 346, 355-56 (1982) (finding that individual blows with a mop handle during a beating constituted multiple acts under King); People v. Crespo, 203 Ill. 2d 335, 342-43 (2001) (noting that each of the victim‘s three stab wounds from a single attack could potentially support individual charges).
¶ 32 In the case at bar, we conclude that defendant‘s convictions for aggravated vehicular hijacking and armed robbery were based on the same physical act, i.e., taking the vehicle from Barksdale. At trial, Barksdale testified that when defendant exited the vehicle and pulled out a gun, he raised his hands and said “take the vehicle.” At this point, defendant and codefendant entered the vehicle and drove away. Barksdale further testified the vehicle‘s title was inside the vehicle at this time. Thus, the act of taking the vehicle and the act of taking the title and keys were not separate or overt manifestations. See King, 66 Ill. 2d at 566. Rather, the act of taking the vehicle also served to simultaneously take the keys and title which were located inside the vehicle. See People v. Depner, 89 Ill. App. 3d 689, 694 (1980) (pursuant to the one-act, one crime doctrine, the defendant could not be convicted of two counts of felony theft of a boat and a trailer when defendant committed “a single physical act in taking the trailer with the boat on it“). People v. Thomas, 163 Ill. App. 3d 670, 681 (1987) (“Because the armed robbery and theft convictions here were founded on a single act of defendants’ taking the van and its contents, the judgment finding defendant guilty of theft must be vacated.“)
¶ 34 Our supreme court explained, however, that ” ‘one-act, one-crime principles apply only if the statute is construed as permitting multiple convictions for simultaneous possession.’ ” Id. ¶ 33 (quoting People v. Carter, 213 Ill. 2d 295, 301 (2004)). The court noted that the UUWF statute provided that ” ‘[t]he possession of each firearm or firearm ammunition in violation of this Section constitutes a single and separate violation.’ ” Id. ¶ 35 (quoting
¶ 36 In the case at bar, however, defendant‘s taking of the vehicle and the items inside the vehicle are not defined by statute as interrelated, yet separate acts, which support two different convictions. See Almond, 2015 IL 113817, ¶¶ 48, 50. Although the State is correct that the legislature “separated” the offense of vehicular hijacking from the general robbery statute, the legislature did not include specific language stating that the taking of any items inside a vehicle at the time that the vehicle is taken supports a separate robbery conviction. If, as the State appears to argue, the legislature intended that a defendant who commits a vehicular hijacking simultaneously commits the offense of robbery in those cases where items are inside the vehicle at the time that the vehicle is taken, it stands to reason that the legislature would have said so unambiguously. See Id. ¶ 39 (“the legislative intent to permit separate convictions for simultaneous possession of a firearm and ammunition under the UUW by a felon statute could not be clearer“). The State‘s argument must therefore fail.
¶ 38 In the case at bar, both aggravated vehicular hijacking and armed robbery are class X felonies. See
¶ 40 It is well settled, however, that a defendant forfeits a sentencing issue that he fails to raise in the trial court through both a contemporaneous objection and a written postsentencing motion. People v. Hillier, 237 Ill. 2d 539, 544 (2010). Moreover, the plain error doctrine is not “an appropriate vehicle for review in cases where the complained-of error does not stem from the failure to provide a fair process for determining the imposition of the fine or fee at issue but [is] a mere clerical mistake.” See People v. Griffin, 2017 IL App (1st) 143800, ¶ 9 (quoting
¶ 41 Although defendant did not challenge the fines and fees orders before the trial court, the State does not argue that he forfeited appellate review of his challenge to the fines and fees orders, and has therefore forfeited any forfeiture argument. See People v. Williams, 193 Ill. 2d 306, 347-48 (2000) (rules of waiver and forfeiture apply to the State). Therefore, although defendant did not raise these issues in the trial court, we will consider his claims. The propriety of court-ordered fines and fees is reviewed de novo. People v. Price, 375 Ill. App. 3d 684, 697 (2007).
¶ 43 Additionally, defendant‘s 781 days of presentence custody entitle him to up to $3,905 credit against his fines.
¶ 44 Finally, defendant contends that despite the fact that his three cases were joined and tried together, the State‘s Attorney trial fee was imposed against him in each case.
¶ 45 For the foregoing reasons, we vacate defendant‘s conviction and sentence for armed robbery in case number 12 CR 5221. We direct the clerk of the circuit court to correct the fines and fees order in case number 12 CR 5221 to reflect the vacation of the $5 Electronic Citation fee, and that the $15 State Police Operations Fee is offset by defendant‘s presentence custody credit for a new total due of $409. We further direct the clerk of the circuit court to correct the fines and fees order in case numbers 12 CR 5222 and 12 CR 5225 to reflect the vacation of the $5 Electronic Citation fee and the $100 State‘s Attorney Per Day of Trial Fee, and that the $15 State Police Operations Fee is offset by defendant‘s presentence custody credit for a new total due of $309 in each case. We affirm the judgment of the circuit court of Cook County in all other aspects.