2023 IL App (1st) 221586 Opinion filed: November 22, 2023
FIRST DISTRICT FOURTH DIVISION
No. 1-22-1586
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 08 CR 11453 ) ALFONZO CALDWELL, ) Honorable ) Adrienne Davis, Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE ROCHFORD delivered the judgment of the court, with opinion. Justices Martin and Ocasio III concurred in the judgment and opinion.
OPINION
¶1 A jury convicted defendant, Alfonzo Caldwell, of armed violence predicated on aggravated
fleeing or attempting to elude a police officer, aggravated discharge of a firearm, and unlawful use
of a weapon by a felon (UUWF). On direct appeal, we affirmed. People v. Caldwell, 2013 IL App
(1st) 112999-U. Defendant subsequently filed a postconviction petition asserting that his appellate
counsel provided ineffective assistance on direct appeal for failing to raise a meritorious issue
regarding the insufficiency of the evidence. The postconviction court summarily dismissed
defendant’s petition at the first stage as frivolous and patently without merit. We reversed and
remanded. People v. Caldwell, 2017 IL App (1st) 150738-U. The cause proceeded to a third-stage
hearing, after which the postconviction court denied defendant’s petition, finding no ineffective
assistance. The instant appeal is from the denial of his petition. We reverse the order denying No. 1-22-1586
defendant’s postconviction petition; reverse his conviction for armed violence; and vacate his
sentence for armed violence.
¶2 A person commits the offense of armed violence when, while armed with a dangerous
weapon, he commits any felony defined by Illinois law that is not excepted by statute. 720 ILCS
5/33A-2(a) (West 2022). In the case at bar, the indictment charged defendant with armed violence
for arming himself with a dangerous weapon while committing the felony offense of aggravated
fleeing or attempting to elude a police officer (aggravated fleeing). A person commits the offense
of aggravated fleeing when he, having been given a visual or audible signal to stop by a peace
officer in police uniform, flees from or attempts to elude the officer and drives at a rate of speed
at least 21 miles per hour over the speed limit. 625 ILCS 5/11-204(a), 11-204.1(a)(1) (West 2022).
Aggravated fleeing is a Class 4 felony. Id. § 11-204.1(b). Fleeing or attempting to flee a peace
officer under 21 miles per hour is a Class A misdemeanor (id. § 11-204(a)) and, thus, may not be
used as the predicate crime for an armed violence conviction.
¶3 At the jury trial, the evidence established that on May 7, 2008, officers were engaged in a
field interview in the area of 454 South Lockwood Avenue when they heard gunshots. Officer
John Frano testified that he observed a black sports utility vehicle (SUV) following a white vehicle.
The vehicles turned from West Congress Parkway southbound on to South Lockwood Avenue.
Officer Frano entered his police vehicle and immediately activated the siren and emergency lights.
He then pursued the vehicles as they traveled southbound on Lockwood Avenue and turned
westbound on to West Harrison Street. Sergeant Jeff Siwek saw two persons in the white vehicle
and two persons in the SUV, and he estimated that the vehicles were traveling 35 miles per hour
when they turned onto Lockwood Avenue, which had a speed limit of 30 miles per hour The side
streets in the area had a speed limit of 25 miles per hour. -2- No. 1-22-1586
¶4 The white vehicle pulled over at the intersection of Lotus Avenue and Harrison Street. The
SUV pulled up alongside the white vehicle, and Officer Frano heard gunshots and observed muzzle
flashes in the interior of the SUV. The SUV then fled westbound on Harrison Street, turned
southbound on to South Central Avenue, and merged on to westbound Interstate 290 with the
officers in pursuit. Officer Frano estimated that after the shooting, the SUV was traveling over 50
miles per hour on Harrison Street between Lotus Avenue and Central Avenue, which had a posted
speed limit of 30 miles per hour. Upon entering Interstate 290, which had a speed limit of 55 miles
per hour, the SUV was traveling about 85 or 90 miles per hour. Officer Frano eventually stopped
the SUV, and defendant exited from the driver’s side door.
¶5 No one testified to seeing defendant throw the gun from the SUV. However, evidence
technician Thomas Pierce testified that he recovered a pistol loaded with six live rounds and a
piece of a fired bullet from the intersection of Harrison Street and Lotus Avenue. Pierce also
recovered a pistol grip to the left of the gun and another pistol grip to the right in the westbound
lane near the gutter at 5432 West Harrison Street. He recovered a fired cartridge case on the floor
near the driver’s seat of the SUV, and he also recovered fired cartridge cases at the 5200 block of
West Congress Parkway. Tracy Konior of the Illinois State Police Forensic Science Laboratory
testified that the cartridge case found in the SUV had been fired by the gun found at the intersection
of Harrison Street and Lotus Avenue. Three additional shell casings and the fired bullet jacket
fragment also were fired from the same gun.
¶6 The State presented a certified copy of defendant’s conviction for possession of a
controlled substance to substantiate his UUWF charge.
¶7 During closing arguments, defendant argued for acquittal because the gun came from the
white vehicle and he never had the gun in his possession. Defendant made no argument that the -3- No. 1-22-1586
State failed to prove his guilt of armed violence because he discarded the weapon prior to
committing the predicate felony of aggravated fleeing.
¶8 The jury convicted defendant of armed violence, aggravated discharge of a firearm, and
UUWF. The trial court sentenced defendant to 15 years’ imprisonment on the armed violence
count, to run consecutively with two concurrent 6-year terms for the aggravated discharge of a
firearm and UUWF.
¶9 On direct appeal, defendant challenged his armed violence conviction, arguing that the
evidence did not support some of the requisite elements of the predicate offense of aggravated
fleeing. Specifically, defendant argued that the evidence failed to show that Officer Frano was in
police uniform when he signaled to stop the SUV or that defendant’s flight was at a rate of speed
at least 21 miles per hour over the speed limit. We affirmed. Caldwell, 2013 IL App (1st) 112999-
U.
¶ 10 Defendant filed a pro se postconviction petition alleging that his appellate counsel
(counsel) rendered ineffective assistance on direct appeal for not arguing for reversal of his armed
violence conviction based on the evidence showing that he had abandoned the gun before he
committed the underlying felony offense of aggravated fleeing. Specifically, Officer Pierce
testified the gun was recovered at the scene of the shooting at Harrison Street and Lotus Avenue.
Officer Frano testified that defendant reached a speed of at least 21 miles per hour over the speed
limit (raising his offense from misdemeanor fleeing to aggravated fleeing) only upon driving away
from Harrison Street and Lotus Avenue after the shooting. Defendant contended that his counsel
should have argued that the officers’ testimony showed he was not guilty of armed violence
because by the time he reached a speed of at least 21 miles per hour over the speed limit to qualify
as aggravated fleeing, he no longer was armed with the gun. To rightfully convict defendant of -4- No. 1-22-1586
armed violence, the State was required to prove he possessed the gun while committing aggravated
fleeing.
¶ 11 The postconviction court summarily dismissed defendant’s petition. On appeal, we
reversed and remanded for second-stage proceedings, finding that defendant had made an arguable
claim of ineffectiveness of counsel. Caldwell, 2017 IL App (1st) 150738-U.
¶ 12 On remand, defendant filed a supplemental petition again alleging that counsel rendered
ineffective assistance on direct appeal for failing to argue for reversal of his armed violence
conviction based on his discarding of the gun prior to committing the aggravated fleeing.
Defendant attached an affidavit from his appellate counsel stating: “Upon further review and
reflection, I should have raised a reasonable doubt issue on direct appeal that the evidence was
insufficient to support [defendant’s] armed violence conviction because [defendant] did not
possess a firearm while he was committing the underlying felony of aggravated fleeing.”
¶ 13 The State filed an answer with a general denial, and the case was set for a third-stage
evidentiary hearing. At the hearing, counsel testified that, in 2012, he was an experienced appellate
attorney who worked at the Office of the State Appellate Defender. Counsel represented defendant
in his direct appeal, and he argued those issues that he “thought had the strongest chance of
success.” Counsel was aware that following the direct appeal, defendant filed a postconviction
claim alleging he provided ineffective assistance for failing to argue for reversal of defendant’s
armed violence conviction based on the lack of any evidence that he possessed the gun at the time
of his aggravated fleeing. Counsel also was aware that the appellate court had reversed the first-
stage dismissal of the petition and remanded for further proceedings. Counsel testified:
“Q. In light of that, what is your current position on whether you should have raised
this issue? -5- No. 1-22-1586
A. Yes. I should have raised the issue. I mean the appellate court found that it was
a viable issue that should have been raised.”
¶ 14 The postconviction court denied defendant’s petition, noting that counsel’s testimony
showed that he “put forth those issues that his experience and expertise led him to believe provided
[defendant] the best opportunity to succeed.” Counsel’s representation of defendant on direct
appeal was not “lackluster, irresponsible, or unprofessional.”
¶ 15 The postconviction court acknowledged defendant’s contention that counsel should have
argued for reversal of his armed violence conviction based on the evidence showing that when
driving away from Officer Frano, he was not armed with a gun at the time he reached a speed of
at least 21 miles per hour over the speed limit, i.e., at the time he committed the predicate felony
of aggravated fleeing. The court determined, though, that counsel reasonably could have concluded
that defendant was engaged in one continuous flight from Officer Frano, and that since defendant
reached a speed of 21 miles per hour over the speed limit at some point during that flight, the entire
flight must be considered an “aggravated fleeing.” In other words, counsel could have concluded
that the actual timing of defendant’s possession of the gun was irrelevant for purposes of his armed
violence conviction; as long as he was in possession of the gun at some point during the flight, and
as long as he reached a speed 21 miles per hour over the speed limit during the flight (regardless
of whether he still had the gun), he was guilty of armed violence. Defendant also was not
prejudiced by counsel’s alleged ineffectiveness. Even if the issue of defendant’s discarding of the
gun prior to reaching a speed of 21 miles per hour over the speed limit had been raised on direct
appeal, the appellate court still would have affirmed his armed violence conviction on the basis
that a rational jury could find he was guilty of armed violence for possessing the gun at some point
during the course of the continuous flight. Accordingly, the postconviction court found that -6- No. 1-22-1586
counsel committed no ineffectiveness on direct appeal as his decision not to raise the argument
regarding defendant’s discarding of the gun prior to reaching a speed of 21 miles per hour over the
speed limit was objectively reasonable and not prejudicial.
¶ 16 Defendant filed a motion for reconsideration, which the postconviction court denied.
Defendant appeals.
¶ 17 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2020)) provides a three-
stage procedure for criminal defendants to raise constitutional issues about their trial or sentencing
that could not have been raised on direct appeal. People v. Morales, 2019 IL App (1st) 160225,
¶ 17. At the first stage, the postconviction court evaluates the petition and determines whether it is
frivolous or patently without merit. Id. If the court determines that the petition is not frivolous or
patently without merit, it is docketed for second-stage proceedings, during which counsel can be
retained or appointed, and defendant must make a substantial showing of a constitutional violation.
Id. If the petition makes a substantial showing of a constitutional violation, it advances to the third-
stage evidentiary hearing, where the court acts as a factfinder, making credibility findings,
determining the admissibility of evidence, and weighing the evidence. People v. Reed, 2020 IL
124940, ¶ 51; People v. Velasco, 2018 IL App (1st) 161683, ¶ 118. Where factfinding and
credibility determinations are involved, we review the court’s decision for manifest error. People
v. English, 2013 IL 112890, ¶ 23.
¶ 18 To prevail on a claim of ineffective assistance of counsel, defendant must show that his
counsel’s performance was objectively unreasonable and that he was prejudiced thereby such that
there is a reasonable probability that but for counsel’s deficient performance, the result of the
proceeding would have been different. People v. Domagala, 2013 IL 113688, ¶ 36 (citing
Strickland v. Washington, 466 U.S. 668, 694 (1984)). The Strickland standard applies to claims of -7- No. 1-22-1586
ineffectiveness of appellate counsel. A defendant raising such a claim must show that his appellate
counsel’s performance was deficient and that there is a reasonable probability that the appeal
would have been successful. People v. Papaleo, 2016 IL App (1st) 150947, ¶ 21. “Appellate
counsel is not obligated to brief every conceivable issue on appeal, and it is not incompetence of
counsel to refrain from raising issues which, in his or her judgment, are without merit, unless
counsel’s appraisal of the merits is patently wrong.” People v. Simms, 192 Ill. 2d 348, 362 (2000).
¶ 19 Initially, defendant argues that we should apply a de novo standard of review to the denial
of his petition because no credibility determinations were necessary for the postconviction court
to rule on his claim of ineffectiveness of counsel. See English, 2013 IL 112890, ¶ 23 (where no
credibility determinations are made at the third-stage hearing and the issues presented are pure
questions of law, our review is de novo). However, review of the record shows that defendant
argued his counsel’s credibility when he stated that counsel was “honest enough to admit that he
made an error.” Further, the postconviction court specifically commented on counsel’s credibility
as a witness. Accordingly, our review is for manifest error. Id. However, our result would be the
same here even under a de novo standard of review.
¶ 20 The State largely adopts the postconviction court’s reasoning for why counsel was not
ineffective on direct appeal. Specifically, the State contends that counsel reasonably could have
determined that defendant’s flight from Officer Frano was one continuous act of fleeing and
eluding, and that when he reached a speed of 21 miles per hour over the speed limit, the entire
flight was converted into the felony offense of “aggravated fleeing.” The State contends that such
a determination is bolstered by the “one-act, one-crime” doctrine, which prevents multiple
convictions resulting from a single act and requires that the lesser act be merged into the greater.
People v. Shines, 2015 IL App (1st) 121070, ¶¶ 44-45. Here, according to the State, defendant -8- No. 1-22-1586
could not have been convicted of both the lesser, misdemeanor offense of fleeing and the greater,
felony offense of aggravated fleeing arising out of the same continuous course of conduct, but only
could have been convicted of the greater offense, meaning that the entire flight must be considered
one aggravated fleeing. Since defendant was in possession of a gun at some point during the flight,
and since the entire flight is considered the felony of aggravated fleeing, he was guilty of armed
violence. Accordingly, counsel did not act unreasonably in failing to raise the issue of defendant’s
discarding of the gun prior to reaching a speed of 21 miles per hour over the speed limit, and the
result on appeal would have been the same even if the issue had been raised.
¶ 21 We disagree with the postconviction court’s reasoning, which was adopted by the State
here, as it relies on an interpretation of the armed violence statute at odds with the clear legislative
intent. The primary rule of statutory construction is to ascertain and give effect to the intent of the
legislature. People v. Castillo, 2022 IL 127894, ¶ 24. The most reliable indicator of legislative
intent is the statutory language, given its plain and ordinary meaning. Id. A dictionary may be used
to determine the plain and ordinary meaning of a statutory term. Id.
¶ 22 The armed violence statute specifically states: “A person commits armed violence when,
while armed with a dangerous weapon, he commits any felony defined by Illinois Law [subject to
certain exceptions not applicable here].” (Emphasis added.) 720 ILCS 5/33A-2 (West 2022). The
American Heritage College Dictionary defines “while” as “at the same time that.” American
Heritage College Dictionary (4th ed. 2004). The clear legislative intent, then, is that defendant’s
armed violence conviction here is sustainable only if he was armed with the gun at the same time
he was committing the felony of aggravated fleeing by driving away from Officer Frano at 21
miles per hour over the speed limit. See People v. Brown, 362 Ill. App. 3d 374, 381 (2005)
(affirming defendant’s armed violence conviction where he possessed a loaded handgun at the -9- No. 1-22-1586
same time he was fleeing from police at over 21 miles per hour over the speed limit). There is no
dispute here that based on the evidence at trial, defendant only was in possession of the gun while
fleeing from Officer Frano at a speed less than 21 miles per hour over the speed limit; he discarded
his gun prior to reaching a speed of 21 miles per hour over the speed limit, that is, prior to
committing the felony offense of aggravated fleeing. As such, defendant was not guilty of armed
violence because he was not in possession of a deadly weapon at the same time he was committing
the predicate felony.
¶ 23 Counsel’s decision on direct appeal not to argue for the reversal of defendant’s armed
violence conviction based on his discarding of the gun prior to reaching a speed of 21 miles per
hour over the speed limit constituted ineffective assistance, as it was objectively unreasonable
under the facts of the case and any reasonable interpretation of the armed violence statute.
Counsel’s failure to raise the issue on direct appeal also was prejudicial because, had the argument
been made, only one outcome was reasonably probable: we would have found that even viewing
the evidence in the light most favorable to the State, no rational jury could find defendant guilty
of armed violence for possessing a gun while committing aggravated fleeing. See Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979) (discussing the standard of review for a sufficiency of the
evidence claim). Therefore, we would have reversed defendant’s conviction for armed violence
and vacated his sentence.
¶ 24 The State is wrong in arguing that defendant’s “single act of fleeing from Officer Frano
cannot be compartmentalized into a misdemeanor fleeing and eluding up until the point he discards
the handgun and then [turned into] an aggravated fleeing and eluding [only] after he attains speeds
of 21 mph over the posted speed limit.” Such a compartmentalization is exactly what the legislature
intended when it specifically defined misdemeanor fleeing from officers as being below speeds of -10- No. 1-22-1586
21 miles per hour over the speed limit and aggravated fleeing as being 21 miles per hour over the
speed limit or faster. Under the undisputed facts of this case, defendant only was in possession of
the gun while fleeing from Officer Frano at a speed less than 21 miles per hour over the speed
limit, i.e., he was in possession of the gun only while committing the misdemeanor offense of
fleeing, not while committing the felony offense of aggravated fleeing. However, the armed
violence statute requires that defendant be in possession of the gun while he commits a felony. As
defendant was not in possession of the gun while committing a felony, his conviction for armed
violence cannot stand. Counsel was ineffective for failing to make this argument on direct appeal.
¶ 25 The State argues, though, that counsel cannot be deemed ineffective because the issues he
chose to raise on direct appeal involved the exercise of his professional judgment and provided a
“thorough review of the evidence of [defendant’s] guilt.” The State further notes that the right to
effective assistance refers to competent, not perfect, representation (People v. West, 187 Ill. 2d
418, 432 (1999)) and that errors in judgment or strategy generally do not establish ineffective
assistance (see People v. Hattery, 109 Ill. 2d 449, 460-61 (1985)).
¶ 26 However, although counsel is not required to brief every conceivable issue on appeal, he
renders ineffective assistance where his appraisal of the merits of an issue is patently wrong, such
that the raising of the issue would have resulted in a different result on appeal. See Simms, 192 Ill.
2d at 362. Counsel candidly admitted in his postconviction affidavit and in his testimony at the
evidentiary hearing that his appraisal of the merits of the issue involving defendant’s discarding of
the weapon prior to reaching a speed of 21 miles per hour over the speed limit was patently wrong.
For the reasons already discussed in this opinion, we agree with counsel’s postconviction
assessment.
-11- No. 1-22-1586
¶ 27 The State also argues that because we affirmed defendant’s armed violence conviction on
direct appeal, we necessarily found that all elements thereof had been proven, including the
element that defendant was in possession of the gun while committing the predicate felony of
aggravated fleeing; thus, defendant’s claim of ineffective assistance based on counsel’s failure to
raise this issue on direct appeal is without merit as it already has been considered and rejected. We
disagree. No argument was made, either at trial or on direct appeal, that defendant was not guilty
of armed violence because he possessed the gun only while committing the misdemeanor offense
of fleeing from the officer at a rate of speed less than 21 miles per hour over the speed limit, but
had discarded the weapon prior to committing aggravated fleeing at a rate of speed 21 miles per
hour over the speed limit. Thus, we were never confronted with the issue of whether defendant’s
discarding of the gun prior to the commission of the aggravated fleeing rendered the finding of
guilt for armed violence unsustainable. As already noted, had the issue been raised on direct appeal,
we would have reversed defendant’s conviction for armed violence and vacated his sentence.
¶ 28 The State also argues that the issue of whether defendant discarded his gun prior to
speeding away from Officer Frano at 21 miles per hour over the speed limit is so “novel” that
counsel cannot be deemed ineffective for failing to raise it on direct appeal. We disagree. As
correctly noted by defendant, this is a simple sufficiency of the evidence issue. There is nothing
novel about it.
¶ 29 For all the foregoing reasons, the postconviction court was manifestly erroneous in finding
that counsel provided effective assistance on direct appeal when he failed to argue for reversal of
defendant’s armed violence conviction on the basis that he was not in possession of the gun while
he committed the predicate felony of aggravated fleeing. The court also was manifestly erroneous
in finding that even if the issue had been raised on direct appeal, the result would have been the -12- No. 1-22-1586
same because we would have found that a rational jury (viewing the evidence in the light most
favorable to the State) still would have convicted defendant of armed violence predicated on
aggravated fleeing. To the contrary, on the undisputed facts of this case, a rational jury never could
have convicted defendant of armed violence where he was not in possession of the dangerous
weapon at the same time as he was committing the predicate felony of aggravated fleeing. Simply
put, the State did not prove defendant guilty of armed violence beyond a reasonable doubt.
¶ 30 Therefore, we reverse the denial of defendant’s postconviction petition. Pursuant to our
authority under Illinois Supreme Court Rule 615(b) (eff. Jan. 1, 1967), we reverse defendant’s
conviction for armed violence predicated on aggravated fleeing and vacate his sentence thereon.
¶ 31 Reversed in part and vacated in part.
-13- No. 1-22-1586
People v. Caldwell, 2023 IL App (1st) 221586
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 08-CR-11453; the Hon. Adrienne Davis, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Adrienne E. Sloan, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Tasha-Marie Kelly, and Sarah L. Simpson, Assistant Appellee: State’s Attorneys, of counsel), for the People.
-14-