People v. Jones

2022 IL App (4th) 220154-U

Opinion

2022 IL App (4th) 220154-U NOTICE FILED This Order was filed under December 20, 2022 Supreme Court Rule 23 and is NO. 4-22-0154 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed IN THE APPELLATE COURT under Rule 23(e)(1). Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Knox County GAVIN P. JONES, ) No. 20TR3104 Defendant-Appellant. ) ) Honorable ) Raymond A. Cavanaugh, ) Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court. Presiding Justice Knecht and Justice Zenoff concurred in the judgment.

ORDER

¶1 Held: Pursuant to Anders v. California, 386 U.S. 738 (1967), the appellate court granted the Office of the State Appellate Defender’s motion to withdraw because no meritorious issues could be raised on appeal.

¶2 In May 2021, a jury found defendant, Gavin P. Jones, guilty of driving while his

license was suspended (625 ILCS 5/6-303 (West 2020)). On July 14, 2021, the trial court

sentenced him to 180 days in jail, with credit for time served. Defendant appealed, and this court

appointed the Office of the State Appellate Defender (OSAD) as appellate counsel. In June 2022,

OSAD filed a motion to withdraw with an accompanying Memorandum of Law, pursuant to both

state and federal law. OSAD confirmed it reviewed the record, identified three potential issues,

and explained why it believed this case presented no potentially meritorious issues for review.

As required, OSAD notified defendant, providing him with a copy of the motion and

memorandum. We granted defendant 35 days to respond, and he submitted a timely handwritten response opposing OSAD’s motion. We agree with OSAD’s analysis, grant OSAD’s motion to

withdraw as counsel, and affirm the trial court’s judgment.

¶3 I. BACKGROUND

¶4 In September 2020, defendant was charged with unlawful possession of

methamphetamine (720 ILCS 646/60 (West 2020)) (Knox County case No. 20-CF-528),

unlawful possession of methamphetamine with intent to deliver (720 ILCS 646/55 (West 2020))

(Knox County case No. 20-CF-528), and driving while his license was suspended (625 ILCS

5/6-303 (West 2020)) (Knox County case No. 20-TR-3104). Issues related to case No.

20-CF-528 are under separate appellate review.

¶5 The State presented testimony from Officer Dan Williams. Williams testified on

September 17, 2020, at approximately 2 p.m., he observed defendant driving a yellow Mustang.

Williams had previously run defendant’s license plates and knew defendant’s driver’s license

was suspended. Williams followed the vehicle and activated his emergency lights. Williams

testified defendant proceeded to make a wide left turn into a church parking lot before coming to

a stop. As defendant turned into the parking lot, defendant “leaned across the passenger’s seat

and threw an item out the passenger window.” The item was later identified as a bag containing

8.4 grams of methamphetamine. Williams approached the vehicle and asked defendant for his

driver’s license and proof of insurance. Defendant told Williams his driver’s license was

suspended and that he did not have insurance. The State introduced into evidence a certified copy

of defendant’s driving abstract, which indicated defendant had a suspended license on September

17, 2020.

¶6 At the close of the State’s evidence, the defense rested. During closing arguments,

defense counsel stated, “[T]here are some things that are absolutely not in dispute right now, and

-2- one of those is that, yes, my client was driving and he was suspended, but that’s the only thing

that isn’t in dispute right now.” Based upon the evidence presented, the jury found defendant

guilty of unlawful possession of methamphetamine with intent to deliver, unlawful possession of

methamphetamine, and driving while license suspended.

¶7 On July 14, 2021, the trial court sentenced defendant to 180 days’ imprisonment

in the county jail, with credit for time served in case No. 20-TR-3104. Defendant, pro se, filed a

notice of appeal, and on February 24, 2022, his late notice of appeal was allowed.

¶8 This appeal followed.

¶9 II. ANALYSIS

¶ 10 In its memorandum, OSAD addresses several potential arguments defendant

could raise, including (1) whether trial counsel was ineffective for not moving to suppress

Officer Williams’s traffic stop of defendant, (2) whether defendant was proven guilty beyond a

reasonable doubt, and (3) whether trial counsel provided ineffective assistance when he

conceded during his closing argument defendant was guilty of driving while license suspended.

However, OSAD contends appeal of this case would be frivolous. Defendant argues in his

response to the motion that his trial counsel was ineffective for “not getting the case thrown out

due to there being no probable cause to pull [him] over in this case.” We agree with OSAD, grant

its motion to withdraw as counsel, and affirm the trial court’s judgment.

¶ 11 A. Motion to Suppress

¶ 12 OSAD first contends no meritorious argument can be made trial counsel provided

ineffective assistance for not moving to suppress defendant’s traffic stop. Defendant argues trial

counsel was ineffective for failing to “get[ ] the case thrown out due to there being no probable

cause to pull [him] over.” We agree with OSAD.

-3- ¶ 13 Claims of ineffective assistance of counsel are analyzed under the two-pronged

test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). People v. Veach, 2017 IL

120649, ¶ 29, 89 N.E.3d 366. To prevail, “a defendant must show that counsel’s performance

was (1) deficient and (2) prejudicial.” People v. Westfall, 2018 IL App (4th) 150997, ¶ 61, 115

N.E.3d 1148. “Failure to satisfy either prong negates a claim of ineffective assistance of

counsel.” People v. Hibbler, 2019 IL App (4th) 160897, ¶ 88, 129 N.E.3d 755.

¶ 14 To establish deficient performance, the defendant must show “counsel’s

performance ‘fell below an objective standard of reasonableness.’ ” People v. Valdez, 2016 IL

119860, ¶ 14, 67 N.E.3d 233 (quoting Strickland, 466 U.S. at 688). “ ‘[A] court must indulge a

strong presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption that, under the circumstances,

the challenged action might be considered sound trial strategy. [Citation.]’ ” People v. Manning,

241 Ill. 2d 319, 334, 948 N.E.2d 542, 551 (2011) (quoting Strickland, 466 U.S. at 689). Defense

counsel need not make futile motions to be considered effective. People v. Bradford, 2019 IL

App (4th) 170148, ¶ 14, 123 N.E.3d 1285. Decisions whether to move to suppress evidence are

matters of trial strategy, and “counsel enjoys the strong presumption” that decisions not to file

suppression motions are proper. People v. Spann, 332 Ill. App. 3d 425, 432, 773 N.E.2d 59, 66

(2002).

¶ 15 In order for a defendant to establish he was prejudiced by counsel’s failure to file

a motion to suppress, he must show a reasonable probability the motion would have been granted

and the outcome of the trial would have been different if the evidence at issue had been

suppressed. People v. Henderson, 2013 IL 114040, ¶ 15, 989 N.E.2d 192. “[Terry v. Ohio, 392

U.S. 1, 21-22 (1968)] authorizes a police officer to effect a limited investigatory stop where there

-4- exists a reasonable suspicion, based upon specific and articulable facts, that the person detained

has committed or is about to commit a crime.” People v. Galvez, 401 Ill. App. 3d 716, 718, 930

N.E.2d 473, 474 (2010). “Illinois courts have held that a police officer may pull over a vehicle

upon learning that the vehicle’s registered owner has a license that has been suspended or

revoked.” Galvez, 401 Ill. App. 3d at 718. Admittedly, in Galvez, the court distinguished

between one-owner and multi-owner vehicles when finding it was reasonable for an officer to

infer the person actually driving the vehicle was the owner. Galvez, 401 Ill. App. 3d at 719. They

cited, however, our case, People v. Barnes, 152 Ill. App. 3d 1004, 505 N.E.2d 427 (1987), and

their own case, Village of Lake in the Hills v. Lloyd, 227 Ill. App. 3d 351, 591 N.E.2d 524 (1992)

(both one-owner cases), as justification for the conclusion that “when the police are aware that an

owner of a vehicle has a revoked driver’s license, ‘[c]ommon sense dictates such information,

even alone, is enough to provide a constitutional basis for stopping a vehicle or its occupants.’ ”

Galvez, 401 Ill. App. 3d at 718 (quoting Lloyd, 227 Ill. App. 3d. at 354).

¶ 16 Here, Williams testified he was familiar with defendant’s vehicle because he had

previously run defendant’s license plates and knew defendant’s license was suspended. Williams

observed defendant driving the vehicle and initiated a traffic stop. Knowing defendant’s license

was suspended, Williams observed defendant committing a traffic violation in his presence, and

therefore, he had not merely a reasonable suspicion, but probable cause to stop and effect an

arrest. Although not relevant to the basis for the stop, Defendant admitted to Williams his license

was suspended. In addition, defendant’s certified driving abstract indicated his driver’s license

was suspended on September 17, 2020. Defendant cannot establish prejudice because he cannot

show a reasonable probability the motion to suppress would have been granted. Therefore, we

-5- agree with OSAD no argument can be made defense counsel was ineffective for not filing a

motion to suppress the traffic stop.

¶ 17 B. Sufficiency of the Evidence

¶ 18 OSAD next contends no meritorious argument can be made to challenge the

sufficiency of the evidence to sustain defendant’s conviction for driving while license suspended.

¶ 19 When considering a defendant’s challenge to the sufficiency of the evidence to

convict, we will not disturb the fact finder’s decision if any rational trier of fact could have found

the State proved the essential elements of the crime beyond a reasonable doubt when the

evidence is viewed in a light most favorable to the State. People v. Wheeler, 226 Ill. 2d 92, 114,

871 N.E.2d 728, 740 (2007). The State was required to prove beyond a reasonable doubt

defendant drove or was in actual physical control of a motor vehicle on any Illinois highway at a

time when his driver’s license was suspended. 625 ILCS 5/6-303(a) (West 2020).

¶ 20 In this case, the State presented testimony from Officer Williams indicating he

initiated the traffic stop because he was familiar with defendant and knew defendant’s driver’s

license was suspended. Defendant admitted his license was suspended during the traffic stop, and

the State presented a certified copy of defendant’s driving abstract, confirming defendant’s

driver’s license was suspended on September 17, 2020. Based on the evidence presented, we

agree with OSAD and find no reasonable argument could be made to challenge the sufficiency of

the evidence to sustain defendant’s conviction for driving on a suspended license.

¶ 21 C. Closing Argument

¶ 22 Finally, OSAD contends no meritorious argument can be made defense counsel

provided ineffective assistance when he conceded during his closing argument defendant was

guilty of driving while his license was suspended.

-6- ¶ 23 A claim of ineffective assistance of counsel typically requires a defendant to meet

the two-part test of Strickland. People v. Nieves, 192 Ill. 2d 487, 494, 737 N.E.2d 150, 154

(2000). A defendant must show (1) his counsel’s performance was deficient as measured against

an objective standard of reasonableness under prevailing professional norms and (2) defense

counsel’s deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687-88.

¶ 24 Where, as here, counsel concedes defendant’s guilt, the defendant need not

always show defense counsel’s performance prejudiced the defendant. People v. Hattery, 109 Ill.

2d 449, 461, 488 N.E.2d 513, 517 (1985). Prejudice to the defendant will be presumed “[w]here

‘counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.’ ”

Hattery, 109 Ill. 2d at 461 (quoting United States v. Cronic, 466 U.S. 648, 659 (1984)). It is not,

however, per se ineffectiveness where defense counsel concedes his client’s guilt to offenses on

which there is overwhelming evidence against the defendant, especially “when counsel presents

a strong defense to the other charges.” People v. Johnson, 128 Ill. 2d 253, 269, 538 N.E.2d 1118,

1124-25 (1989).

¶ 25 The evidence against defendant on the driving while license suspended charge

was overwhelming. Defense counsel apparently developed a strategy in which counsel would

concede and admit the driving on a suspended license charge to gain credibility with the jury to

fight the unlawful possession of methamphetamine and unlawful possession of

methamphetamine with intent to deliver charges. Williams testified defendant admitted his

license was suspended during the traffic stop. In addition, Williams had previously run

defendant’s license plates and knew defendant’s license was suspended. Further, the State

introduced a certified copy of defendant’s driving abstract indicating defendant’s driver’s license

was suspended on the day of the traffic stop. The evidence strongly corroborated the concession.

-7- We find defense counsel’s decision to concede the traffic offense was a matter of trial strategy.

Therefore, we agree with OSAD no argument can be made defendant received ineffective

assistance of counsel regarding the driving while license suspended charge.

¶ 26 III. CONCLUSION

¶ 27 For the reasons stated, we grant OSAD’s motion to withdraw as counsel and

affirm the trial court’s judgment.

¶ 28 Affirmed.

-8-