People v. Brown

2020 IL App (1st) 171793-U

Opinion

2020 IL App (1st) 171793-U No. 1-17-1793 Order filed June 16, 2020 Second Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 14 CR 6405 ) LARRY BROWN, ) Honorable ) Michele M. Pitman, Defendant-Appellant. ) Judge, presiding.

JUSTICE COGHLAN delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment.

ORDER

¶1 Held: When defendant acquiesced to the admission of certain evidence, he could not argue on appeal that its admission violated his right to confrontation. Defendant’s conviction for unlawful use or possession of a weapon by a felon is vacated pursuant to the one-act, one-crime rule, and the cause is remanded for a preliminary inquiry into defendant’s pro se posttrial allegation of ineffective assistance of counsel.

¶2 Following a bench trial, defendant Larry Brown was found guilty of eight counts of

aggravated unlawful use of a weapon (AUUW) and one count of unlawful use or possession of a No. 1-17-1793

weapon by a felon (UUWF). The trial court merged the AUUW counts into a single count of the

Class 2 offense of AUUW (720 ILCS 5/24-1.6(a)(1), (3)(a-5), (d)(3) (West Supp. 2013)) and

sentenced defendant as a Class X offender to 10 years in prison. The court imposed a concurrent

10-year sentence for UUWF (720 ILCS 5/24-1.1(a) (West 2012)). On appeal, defendant contends

that the State violated his right to confrontation by using a certified letter from the Illinois State

Police to establish that he did not have a valid Firearm Owners Identification (FOID) card or a

concealed carry license. He further contends that his conviction for UUWF must be vacated

pursuant to the one-act, one-crime rule because it is based upon on the same physical act as his

conviction for AUUW. Defendant finally contends that the cause should be remanded for a

preliminary inquiry pursuant to People v. Krankel, 102 Ill. 2d 181 (1984), because the trial court

failed to inquire into his posttrial pro se claims of ineffective assistance of counsel. We affirm the

trial court’s guilty findings, vacate defendant’s sentence for UUWF, and remand to the trial court

for a preliminary Krankel inquiry.

¶3 Following his February 6, 2014 arrest, defendant was charged with one count of armed

violence, eight counts of AUUW, one count of UUWF, and one count of aggravated fleeing or

attempting to elude a peace officer. Relevant to this appeal, count II for AUUW alleged that

defendant knowingly carried on or about his person at a time when he was not on his land or in his

abode, legal dwelling or fixed place of business, or on the land or in the legal dwelling of another

person as an invitee with that person’s permission, an uncased, loaded, and immediately accessible

firearm and had not been issued a concealed carry license at the time of the offense. Count II

further alleged that the State sought to sentence defendant as a “Class 2 offender” because he had

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previously been convicted of a felony. Count X for UUWF alleged that defendant knowingly

possessed on or about his person a firearm after having been previously convicted of a felony.

¶4 Prior to trial, the defense filed a motion to suppress defendant’s statements to the police,

which the trial court denied after a hearing. The matter then proceeded to a bench trial.

¶5 Detective John Gipson of the Chicago Heights police department testified that he was on

patrol with Detective Anthony Bruno around 9:16 p.m. on February 6, 2013. Detectives Meder

and Hahn followed in another vehicle. 1 After Gipson observed a seatbelt violation, the officers

curbed a vehicle at 16th Place and Wilson Avenue. Gipson identified defendant in court as the

driver. As Gipson approached the vehicle, he heard Hahn and defendant speaking and smelled

“[f]resh cannabis.” When Hahn asked defendant if there were drugs in the vehicle, defendant drove

away. Defendant was apprehended and taken to a police station. After being given his Miranda

rights, defendant stated that he fled because a firearm was under the passenger seat, and he threw

the firearm and cannabis from the vehicle. Gipson identified photographs of a firearm and testified

that defendant signed them to identify the firearm as the one thrown from the vehicle.

¶6 Hahn testified that he smelled cannabis as he approached the vehicle, so he asked defendant

whether there was contraband inside. Defendant replied that he had just smoked a “blunt.” When

Hahn asked defendant to exit the vehicle, he drove away. Hahn pursued defendant until defendant

stopped and exited his vehicle. Hahn placed him in handcuffs. As he was being handcuffed,

defendant said he fled because “he had thrown some weed.” During a subsequent search of the

chase route, Hahn recovered and photographed a loaded black semiautomatic pistol in a holster.

1 The transcript does not contain the given names of Detectives Meder and Hahn.

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¶7 The State submitted a certified copy of defendant’s conviction for manufacture and

delivery of cannabis in case number 10 C6 60693-01, which was entered into evidence without

objection. The State then submitted a certification from the Illinois State Police stating that as of

October 15, 2015, defendant had not been issued either a FOID card or a concealed carry license.

The court asked whether trial counsel objected, and counsel answered, “No objection.” The court

then entered the certification into evidence.

¶8 Defendant testified that on February 6, 2014, he stopped his vehicle at a stop sign and saw

two squad cars pass. He was wearing a seatbelt and did not have marijuana. As he continued

driving, the squad cars turned and followed him. He did not realize he was “being pulled over”

because the sirens and lights were not activated. He proceeded through two more stop signs,

stopping at each one. At the third stop sign, the squad cars’ lights activated. Defendant did not hear

the sirens because he was wearing “ear plugs” and listening to music. After defendant stopped,

Hahn approached the vehicle, told him to exit, and punched him. Defendant exited the vehicle,

was handcuffed, and was taken to a police station.

¶9 At the police station, defendant was in the “interrogation room” with Hahn, Gipson, and

Meder. Gipson read defendant the Miranda warnings and asked whether he wanted to make a

statement. Defendant did not speak to the officers and declined to sign a statement. He did not

have a firearm in his vehicle, did not throw one from the vehicle, and did not tell anyone he had a

firearm or marijuana or that he had smoked a blunt.

¶ 10 During cross-examination, defendant denied “taking off” after speaking to Hahn. Rather,

Hahn told him to “ ‘get out [of] the car’ ” and punched him through an open window. At the police

station, he did not tell the officers anything and only asked for an attorney. Defendant denied

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stating that he threw a firearm and cannabis from the vehicle, or that someone gave him the firearm

two days prior to his arrest and he had it for protection. The State then showed defendant People’s

Exhibit No. 9 and asked whether he recognized it. Trial counsel objected, and the State explained

that this exhibit was a “handwritten statement” that defendant gave to police but “refused to sign.” 2

The trial court overruled the objection. Defendant testified that the handwriting was not his, and

reiterated that he had declined to make a statement to police and asked for an attorney when he

was given the Miranda warnings. He also denied signing the photographs of the firearm.

¶ 11 The State presented Meder in rebuttal. Meder testified that after Hahn approached

defendant’s vehicle, defendant drove away and disobeyed several stop signs. Meder denied that

Hahn struck defendant or that defendant asked for an attorney. Meder was present when Gipson

transcribed defendant’s statement and the “substance” of the statement came from defendant.

Defendant signed the photographs of the firearm. During cross-examination, Meder testified that

the traffic stop was the first time he saw defendant.

¶ 12 In surrebuttal, defendant testified that he had five previous encounters with Meder dating

back to the early 2000s. Meder had never called defendant by name, but once entered defendant’s

home during a raid. The last encounter before defendant’s arrest in this case was in July 2013, and

Detectives Hahn, Bruno, Gipson, and Naylor were also present.

¶ 13 The trial court found defendant guilty of eight counts of AUUW and one count of UUWF,

and not guilty of armed violence and aggravated fleeing. Trial counsel filed a motion for a new

trial.

2 The record reflects that the State did not ask the court to admit People’s Exhibit No. 9 into evidence.

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¶ 14 On July 19, 2016, trial counsel told the court that defendant’s family had hired a private

attorney. Defendant told the trial court that he wanted a different attorney to “file ineffective

assistance of counsel and certain other things.” On August 16, 2016, defendant told the trial court

that he was unable to hire a private attorney and wanted to proceed pro se. After admonishing

defendant pursuant to Illinois Supreme Court Rule 401 (eff. July 1, 1984), the trial court permitted

defendant to proceed pro se. Defendant stated he had had not prepared a posttrial motion because

trial counsel had not given him “anything” pertaining to the case. The trial court asked defendant

what he was seeking, and he answered “[i]neffective assistance of counsel.” The court repeated

the question, and defendant requested transcripts, the motion to suppress, and discovery.

¶ 15 On September 12, 2016, defendant filed a pro se motion alleging, in pertinent part, that

upon receipt of transcripts and a complete record, his attorney would file a “motion for ineffective

assistance [of] counsel.” 3 At a September 27, 2016 court date, the court acknowledged receipt of

the pro se motion and defendant received copies of the grand jury transcript and discovery.

¶ 16 On March 7, 2017, defendant filed a pro se motion for a new trial. Following argument,

the trial court denied the motion. The court merged the AUUW findings into count II for AUUW,

and sentenced defendant, due to his criminal background, to a Class X term of 10 years in prison

on that count. The court also sentenced defendant to a concurrent 10-year term for UUWF.

Defendant filed a pro se motion to reconsider sentence, which the court denied. On August 3,

2017, this court allowed defendant’s late notice of appeal.

¶ 17 On appeal, defendant first contends that the State violated his right to confrontation by

using an Illinois State Police certification to establish that he did not have a FOID card or a

3 The record does not show that any other attorney entered an appearance for defendant.

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concealed carry license. Defendant acknowledges that he forfeited this issue by failing to raise it

at trial and in a posttrial motion, but asks this court to review it pursuant to the plain error doctrine.

¶ 18 The plain error doctrine permits a reviewing court to address a forfeited claim where a

“clear or obvious error occurred” and either (1) “the evidence is so closely balanced that the error

alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of

the error,” or (2) the “error is so serious that it affected the fairness of the defendant’s trial and

challenged the integrity of the judicial process, regardless of the closeness of the evidence.”

(Internal quotation marks omitted.) People v. Hood, 2016 IL 118581, ¶ 18.

¶ 19 The State responds by invoking the doctrine of invited error, which prevents a party from

“complain[ing] of error which that party induced the court to make or to which that party

consented.” In re Detention of Swope, 213 Ill. 2d 210, 217 (2004). When “a defendant procures,

invites, or acquiesces in the admission of evidence, even though the evidence is improper, [he]

cannot contest the admission on appeal.” People v. Bush, 214 Ill. 2d 318, 332, (2005). “This is

because, by acquiescing in rather than objecting to the admission of allegedly improper evidence,

a defendant deprives the State of the opportunity to cure the alleged defect.” Id. Because invited

errors are not subject to plain-error review, we must determine whether defendant invited the

alleged error at trial before considering his argument under the plain error doctrine. People v.

Sanders, 2012 IL App (1st) 102040, ¶ 30.

¶ 20 The sixth amendment of the United States Constitution provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against

him.” U.S. Const., amend. VI; see also Ill. Const. 1970, art. I, § 8 (“In criminal prosecutions, the

accused shall have the right *** to be confronted with the witnesses against him or her ***.”).

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Therefore, “[t]estimonial statements of witnesses absent from trial have been admitted only where

the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-

examine.” Crawford v. Washington, 541 U.S. 36, 59 (2004). Since the admission of the Illinois

State Police certificate does not involve disputed facts, our review of whether defendant’s right of

confrontation was violated is de novo. See People v. Cox, 2017 IL App (1st) 151536, ¶ 57 (“where

the facts are undisputed and the declarant’s statement and any comments about it are before us, we

apply a de novo standard of review”).

¶ 21 In People v. Diggins, 2016 IL App (1st) 142088, ¶ 16, we found that an Illinois State Police

certification stating that a defendant lacked a FOID card was a testimonial statement under

Crawford which implicated the confrontation clause. There, the State produced an Illinois State

Police certification stating the defendant did not possess a valid FOID card, which was admitted

into evidence over defense counsel’s objection. Id. ¶¶ 6-7. The defendant testified on cross-

examination that he did not possess a FOID card. Id. ¶ 8. Nonetheless, we found that the

certification violated the confrontation clause and warranted a new trial since the State could not

have proven the defendant lacked a FOID card without the certification and the State presented no

arguments on appeal that the error was harmless. Id. ¶¶ 17-19.

¶ 22 In Cox, by contrast, we found no error in the admission of a similar Illinois State Police

certification regarding a FOID card. In that case, the trial court gave trial counsel three chances to

object to the certification’s admission, and trial counsel declined to object each time. Cox, 2017

IL App (1st) 151536, ¶ 26. During closing arguments, the State argued that the fact that defendant

lacked a FOID card was uncontested, and the defense did not object to the certificate. Id. ¶¶ 36,

74. On appeal, we determined that the defendant “invited the trial court to admit the certificate by

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affirmatively responding to the trial court’s questions that it had no objection to its admission.” Id.

¶ 76. In so holding, we distinguished Diggins on the ground that Diggins concerned evidence that

the defense disputed. Id. ¶¶ 80-83.

¶ 23 In this case, the reasoning of Cox applies. The trial court asked whether trial counsel

objected to the admission of the Illinois State Police certification and trial counsel replied, “No

objection.” Nothing prevented trial counsel from making an objection. See Cox, 2017 IL App (1st)

151536, ¶ 75 (“If the defense had objected at any point during trial, *** the State could have easily

remedied the problem by simply calling the State employee to the stand.”). During closing

argument, trial counsel also did not argue that the State failed to prove beyond a reasonable doubt

that defendant lacked a FOID card or concealed carry permit, nor did trial counsel raise this issue

in a posttrial motion. We therefore conclude that the admission of the certification did not violate

defendant’s rights under the confrontation clause. See People v. Johnson, 2019 IL App (1st)

161104, ¶¶ 28-29 (no confrontation clause violation when the defense did not object to the

certification’s admission or the State’s mention of it during closing argument, did not dispute

whether the State proved that the defendant did not have a FOID card, and did not raise the error

in a posttrial motion). Rather, defendant acquiesced in the entry of the Illinois State Police

certification and cannot now contend its admission was error. See Swope, 213 Ill. 2d at 217.

Because invited errors are not subject to plain-error review, we need not consider whether plain

error occurred. Sanders, 2012 IL App (1st) 102040, ¶ 30.

¶ 24 In the alternative, defendant argues he was denied the effective assistance of trial counsel

because counsel failed to object to the admission of the Illinois State Police certification. To

establish ineffective assistance, a defendant must show that “(1) counsel’s performance was

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objectively unreasonable compared to prevailing professional standards and (2) there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” People v. Cherry, 2016 IL 118728, ¶ 30 (citing Strickland v.

Washington, 466 U.S. 668, 688, 694 (1984)). In order to succeed on a claim of ineffective

assistance, a defendant must overcome the strong presumption that counsel’s challenged action or

inaction was the product of sound trial strategy. People v. Manning, 241 Ill. 2d 319, 327 (2011).

“[D]ecisions regarding what matters to object to and when to object are matters of trial strategy,”

and “will typically not support a claim of ineffective representation.” (Internal quotation marks

omitted.) People v. Macias, 2015 IL App (1st) 132039, ¶ 82.

¶ 25 When considering a similar claim in Cox, we found that “the only way that defense

counsel’s decision not to object to the certification could possibly be ineffective assistance was if

defendant actually had a FOID card and the certification was in error.” (Emphasis omitted.) Cox,

2017 IL App (1st) 151536, ¶ 88. In the case at bar, there is nothing in the record on appeal that

suggests defendant had a valid FOID card or a concealed permit, or that the Illinois State Police

certification was erroneous. Further, trial counsel did not argue that defendant possessed a valid

FOID card or concealed carry permit; rather, the defense theory at trial was that defendant did not

possess the firearm at issue and that the detectives assumed it belonged to defendant due to their

prior contact with him. Overall, the record supports the conclusion that trial counsel’s decision not

to object was trial strategy. See People v. Phillips, 217 Ill. 2d 270, 286-87 (2005) (concluding that

trial counsel’s cross-examination of a forensic scientist on a report may not have had “any tactical

advantage” when “such testimony would have been an unnecessary distraction” from the defense’s

theory of the case). Defendant has not overcome the strong presumption that this strategy was

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sound. See Manning, 241 Ill. 2d at 327; see also Johnson, 2019 IL App (1st) 161104, ¶ 32

(concluding that trial counsel’s decision not to object was an intentional strategy because testimony

regarding the defendant’s failure to possess a FOID card would only have emphasized his unlawful

conduct). Accordingly, defendant’s claim of ineffective assistance of counsel must fail.

¶ 26 Defendant next contends, and the State concedes, that his conviction for UUWF should be

vacated under the one-act, one-crime rule because it is based on the same physical act as his

conviction for AUUW. Defendant acknowledges he did not preserve this issue in the trial court

because he failed to raise it in a postsentencing motion. See People v. Hillier, 237 Ill. 2d 539, 544

(2010). However, one-act, one-crime errors are subject to the plain-error exception to the forfeiture

rule because they implicate the integrity of the judicial process. People v. Nunez, 236 Ill. 2d 488,

493 (2010). A one-act, one-crime challenge presents a question of law, which we review de novo.

People v. Almond, 2015 IL 113817, ¶ 47.

¶ 27 Under the one-act, one-crime rule, “a defendant may not be convicted of multiple offenses

that are based upon precisely the same physical act.” People v. Johnson, 237 Ill. 2d 81, 97 (2010).

Accordingly, where two convictions arise from the same physical act, the sentence should be

imposed on the more serious offense, and the sentence on the less serious offense should be

vacated. People v. West, 2017 IL App (1st) 143632, ¶ 24. When “determining which offense is the

more serious, a reviewing court compares the relative punishments prescribed by the legislature

for each offense,” as greater punishment is mandated for the more serious offense. See People v.

Artis, 232 Ill. 2d 156, 170 (2009).

¶ 28 As the State correctly concedes, defendant’s convictions for AUUW and UUWF, as

charged in this case, are both predicated on the same physical act of possession of the same firearm

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and therefore violate the one-act, one-crime rule. Id. ¶¶ 24-25. Defendant was convicted of the

Class 2 felony of AUUW based on a prior felony conviction (720 ILCS 5/24-1.6(a)(1), (3)(a-5),

(d)(3) (West Supp 2013)), and the Class 3 felony of UUWF (720 ILCS 5/24-1.1(a) (West 2012)).

Therefore, UUWF is the less serious offense (Artis, 232 Ill. 2d at 170), and the sentence thereon

must be vacated (West, 2017 IL App (1st) 143632, ¶ 24).

¶ 29 Defendant finally contends that the cause should be remanded for a preliminary Krankel

inquiry into his posttrial pro se oral and written claims of ineffective assistance of trial counsel.

The State agrees, noting that although defendant told the court at a posttrial hearing that he wanted

to hire a new attorney to “file ineffective assistance of counsel,” the court never inquired into his

claims.

¶ 30 The Krankel procedure “is triggered when a defendant raises a pro se posttrial claim of

ineffective assistance of trial counsel.” People v. Jolly, 2014 IL 117142, ¶ 29. “A pro se defendant

need only bring his or her claim to the trial court’s attention.” People v. Jackson, 2020 IL 124112,

¶ 96. A defendant is not required to file a written motion but may raise the issue orally or through

a letter or note to the trial court. People v. Ayres, 2017 IL 120071, ¶ 11. Where the trial court does

not conduct a preliminary examination into the factual basis of a defendant’s pro se allegations of

ineffective assistance, the case must be remanded for the limited purpose of allowing the court to

do so. People v. Craig, 2020 IL App (2d) 170679, ¶ 13. A trial court’s alleged failure to inquire

into a claim of ineffective assistance is reviewed de novo. People v. Bates, 2019 IL 124143, ¶ 14.

¶ 31 We agree with the parties that the trial court’s duty to conduct a preliminary inquiry was

triggered when defendant stated that he wished to retain a new attorney to file an ineffective

assistance of counsel claim. See Ayres, 2017 IL 120071, ¶¶ 14, 24 (a defendant’s bare use of the

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words “ineffective assistance of counsel,” without any further explanation, is sufficient to trigger

the inquiry). Moreover, while representing himself, defendant stated orally and in writing that he

wished to raise claims of ineffective assistance of counsel. The record shows, however, that the

trial court never inquired into the factual basis of defendant’s claims. The case must therefore be

remanded for a preliminary Krankel inquiry. Id. ¶ 26.

¶ 32 For the reasons discussed above, we vacate defendant’s sentence for UUWF and remand

the case to the trial court for a preliminary Krankel inquiry. We affirm the judgment of the trial

court in all other aspects.

¶ 33 Affirmed in part; vacated in part; remanded.

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