People v. McCottry

2021 IL App (1st) 172504-U

• Court: Appellate Court of Illinois
• Decided: March 22, 2021
• Docket: 1-17-2504
• Status: Unpublished

Opinion

2021 IL App (1st) 172504-U No. 1-17-2504 Order filed March 22, 2021 First Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent 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 ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 16 CR 13449 ) ANDRE McCOTTRY, ) Honorable ) James M. Obbish, Defendant-Appellant. ) Judge, presiding.

JUSTICE PIERCE delivered the judgment of the court. Justices Hyman and Coghlan concurred in the judgment.

ORDER

¶1 Held: Defendant’s conviction for unlawful use of a weapon by a felon affirmed over his contention that the State failed to establish that he was previously convicted of a felony.

¶2 Following a bench trial, defendant Andre McCottry was found guilty of two counts of

unlawful use of a weapon by a felon (UUWF) and three counts of aggravated unlawful use of a

weapon (AUUW). The trial court merged the counts and sentenced defendant to three years in No. 1-17-2504

prison for UUWF. On appeal, he contends that he was not proven guilty beyond a reasonable

doubt when the State failed to prove that he had a prior felony conviction. We affirm.

¶3 Defendant was charged with two counts of UUWF (720 ILCS 5/24-1.1(a) (West 2016)),

and three counts of AAUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(B); (a)(1), (a)(3)(C); (a)(1),

(a)(3)(H) (West 2016)) following his August 17, 2016, arrest.

¶4 Immediately prior to trial, the prosecutor told the court that she showed a certified copy

of conviction to defense counsel. After a brief pause, defense counsel responded that the defense

was ready for trial.

¶5 Eduardo Fuentes, the owner of a used car dealership, testified that when he arrived at

work on the morning of August 17, 2016, a truck was blocking the driveway. He exited his

vehicle and was approached by defendant, who asked if Fuentes owned the business. Defendant

had a guitar bag on his left shoulder. Defendant complained about the truck he purchased and

asked for a refund. Fuentes asked why and defendant stated that the power steering leaked. When

Fuentes stated that he had to “check it out,” defendant began screaming “bad words.” Fuentes

told defendant to leave. Defendant replied that Fuentes would return the money, or he would

regret it. Defendant then stood the bag upright and opened it. Fuentes saw a black object, like a

pipe or a bat, inside. Fuentes walked closer to defendant, who zipped the bag, and told defendant

to leave or the police would be called. Defendant did not leave, so Fuentes called the police.

When the police arrived, Fuentes said he wanted defendant to leave and that defendant had

something in the bag.

-2- No. 1-17-2504

¶6 Chicago police officer John Lepowski testified that he responded to the scene with his

partner, Officer Jesionowski, and spoke to Fuentes. 1 Then Lepowski stopped defendant and

asked him to put down the black guitar bag. As defendant began to open the bag, Lepowski

observed the barrel of a shotgun, so he told defendant to step away from the bag. Defendant put

the bag down and stated that there was a shotgun inside. Jesionowski handcuffed defendant.

Lepowski recovered a shotgun wrapped in a purple towel and a can containing ammunition from

the guitar bag.

¶7 Chicago police detective Anthony Amato testified that after defendant was advised of the

Miranda rights, he stated that he had the shotgun “in case something happened” as he tried to

return his vehicle. Defendant added he found the shotgun and ammunition in an alley the

previous year.

¶8 At the close of the State’s case, the following exchange took place:

“[THE STATE]: And, Judge, the final piece [of evidence] is [that] the State is

submitting a certified copy of conviction from the Superior Court of California, County

of Los Angeles showing that the defendant is a convicted felon for inflicting corporal

punishment or injury to a spouse slash cohabitant under PC 273.5, that’s the penal code

for California. That would be People’s Exhibit 3.

[DEFENSE COUNSEL]: Judge, we do have a copy. Judge, we’re objecting to it,

we’re objecting for the record as to it being a felony conviction.

THE COURT: What do you mean? You’re objecting saying it’s not a felony

conviction?

1 The report of proceedings does not contain Officer Jesionowski’s given name.

-3- No. 1-17-2504

[DEFENSE COUNSEL]: Yes, Judge, that would be our objection.

THE COURT: A certified copy of disposition of that particular case for Andre

McCottry, there was a finding—conviction on Count 1. Certified copy, itself, lists Count

1 as a felony under 273.5 of the penal code. How is it not a felony conviction?

[DEFENSE COUNSEL]: Judge, that’s just based on conversation with my

client.”

¶9 Counsel explained that defendant asserted “he was found guilty of not a felony.” The

court admitted the certified copy of conviction into evidence over the defense’s objection

because it was a certified copy, and, therefore, a self-authenticating document.

¶ 10 The certified copy of conviction, which appears in the record on appeal, is for “Andre

LaMont McCottry” in case number SA 060305, with a filing date of June 16, 2006, for the

information containing one count of willful infliction of corporal injury (“273.5(A) PC FEL”)

and one count of robbery (“211 PC FEL”). The document also states that the case was called for

arraignment on June 16, 2006, before the Honorable James R. Brandlin, defendant entered a plea

of no contest to count I for willful infliction of corporal injury, and the court accepted the plea,

found defendant guilty, and sentenced defendant to 365 days in jail and three years of probation.

¶ 11 In the certified document’s notes, it states:

“THE DEFENDANT WITH THE COURT’S APPROVAL, PLEADS NOLO

CONTENDERE TO COUNT 01 A VIOLATION OF SECTION 273.5(A) PC. THE

COURT FINDS THE DEFENDANT GUILTY.

COUNT (01): DISPOSITION: CONVICTED”

-4- No. 1-17-2504

The notes section further states that after defendant was advised of his constitutional rights and

the consequences of his guilty plea, “THE DEFENDANT ENTERS A NO CONTEST PLEA AS

TO COUNT 1 ONLY.” The document also states “COUNT (01): DISPOSITION:

CONVICTED” and that “COUNT (02): DISMISSED DUE TO PLEA NEGOTIATION.”

¶ 12 Defendant testified that he did not “knowingly” possess the shotgun because he believed

that the bag only contained a guitar and denied threatening Fuentes with anything in the bag.

During cross-examination, defendant testified that he did know notice that the bag was heavier

than it should be because the guitar is “pretty heavy.” Defendant approached Fuentes in a “nice

mannerable way” to get his money back. However, Fuentes would not take the truck back and

became belligerent after defendant said he was sold a “lemon” and wanted his money back.

Defendant did not raise his voice, complied with the officers’ instructions to open the bag, and

denied being advised of the Miranda warnings.

¶ 13 When making its findings, the trial court stated that “defendant is *** guilty of Count 1”

and that “[a]ll other counts of the indictment would all merge into Count 1.” Following a

hearing, the trial court sentenced defendant to three years in prison for UUWF.

¶ 14 On appeal, defendant contends that he was not proven guilty beyond a reasonable doubt

of UUWF because the evidence at trial failed to establish that the prior California conviction

relied upon by the State was a felony.

¶ 15 When considering the sufficiency of the evidence, the issue is whether, viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. People v. Brown, 2013 IL 114196,

¶ 48. All reasonable inferences from the record must be allowed in favor of the State. People v.

-5- No. 1-17-2504

Lloyd, 2013 IL 113510, ¶ 42. It is the responsibility of the trier of fact to resolve conflicts in the

testimony, to weigh evidence, and to draw reasonable inferences from the facts. Brown, 2013 IL

114196, ¶ 48. A reviewing court will not substitute its judgment for that of the trier of fact on

issues involving the weight of the evidence or the credibility of the witnesses. Id. A defendant’s

conviction will not be overturned unless the evidence is so unreasonable, improbable, or

unsatisfactory that there remains a reasonable doubt of his guilt. Id.

¶ 16 To prove defendant guilty of UUWF, the State had to show defendant knowingly

possessed a firearm after being convicted of a felony under the laws of this state or any other

jurisdiction. See 720 ILCS 5/24-1.1(a) (West 2016). Here, defendant contests only his felon

status, arguing that the certified statement of his California conviction was insufficient to prove

that he had been convicted of a felony.

¶ 17 “In Illinois, the traditional method of proving a prior conviction is by the certified record

of the prior conviction or an authenticated copy of the conviction, and proof of identity between

the name on the record and the defendant on trial.” People v. White, 311 Ill. App. 3d 374, 380

(2000) (citing People v. Davis, 65 Ill. 2d 157, 164 (1976)). Generally, a certified copy of a

conviction is a self-authenticating document. See People v. Gober, 146 Ill. App. 3d 499, 502

(1986) (a prior conviction can be proved by either the record or an authenticated copy); Ill. R.

Evid. 902(4) (eff. Jan. 1, 2011) (to be self-authenticating under the rule, the document must be

“[a] copy of an official record or report or entry therein, or of a document authorized by law to

be recorded or filed and actually recorded or filed in a public office”).

¶ 18 Here, the State introduced a certified copy of conviction for “Andre LaMont McCottry,”

which lists the case number and the filing date for the information containing one count of

-6- No. 1-17-2504

willful infliction of corporal injury (“273.5(A) PC FEL”) and one count of robbery (“211 PC

FEL”). The document also lists the date that the case was called for arraignment, the name of the

judge presiding, and that defendant entered a plea of no contest to count I, which the trial court

accepted. As this court has previously held, in order to prove that a defendant has a prior felony

conviction from another jurisdiction as an element of UUWF, “the State must establish the

conviction by the record or by an authenticated copy of the conviction showing the caption,

return of indictment in open court by the grand jury or the filing of the information, the

arraignment of the defendant, *** and the final judgment of the court.” See Gober, 146 Ill. App.

3d at 503. Accordingly, the certified copy of conviction contains the information required to

prove a prior felony conviction.

¶ 19 Defendant, however, contends that the certified copy of conviction is not sufficient to

establish beyond a reasonable doubt that he was previously convicted of a felony because willful

infliction of corporal injury can be either a misdemeanor or a felony. See Cal. Penal Code §§ 17,

237.5(a) (West 2006). He notes that his sentence in that case could be consistent with either

classification and that defense counsel objected to the admission of the certified copy of

conviction on the basis that defendant was not guilty of a felony. Defense counsel offered no

basis for the objection other than the objection was based on a conversation with defendant.

¶ 20 Under California law, an offense that can be either a felony or misdemeanor is “deemed a

felony unless charged as a misdemeanor by the [State] or reduced to a misdemeanor by the

sentencing court under Penal Code [17(b)].” People v. Statum, 122 Cal. Rptr. 2d 572 (Ca. 2002).

The certified copy of conviction states that count I is a charge of willful infliction of corporal

injury (“273.5(A) PC FEL”) and that defendant entered a plea of no contest to count I. While

-7- No. 1-17-2504

defendant is correct that that the notes on the certified copy of conviction state that defendant

entered a plea of nollo contendere to “COUNT 01 A VIOLATION OF SECTION 273.5(A) PC,”

we cannot agree with his conclusion that the fact that the statutory citation contained in the notes

does not include “FEL” means he pled guilty to a misdemeanor rather than a felony. The

certified copy of conviction states in three different sections that defendant entered a plea of no

contest or nollo contendere to count I, and count I was certified as “273.5(A) PC FEL.” Nothing

in the certified notes identifies that count I was charged as a misdemeanor.

¶ 21 Further, nothing in the certified notes demonstrates that count I was reduced from a

felony to a misdemeanor by the sentencing court under Penal Code 17(b). Defendant was

sentenced to three years of probation and 365 days in jail. This sentence is consistent with a

felony under California law. See Cal. Penal Code § 17. In addition, an offense carrying this

sentence would constitute a felony in Illinois, where a felony is classified as an offense for which

a sentence of “imprisonment in a penitentiary for one year or more is provided.” 720 ILCS 5/2-7

(West 2018).

¶ 22 Moreover, we reject defendant’s theory that the State was required to disprove

circumstances that could have rendered the California offense a misdemeanor or that the State’s

failure to do so inappropriately shifted the burden of proof to defendant. Our supreme court has

held that the State need not dispel all reasonable hypotheses of innocence to sustain a conviction.

People v. Pintos, 133 Ill. 2d 286, 291 (1989). Ultimately, a trier of fact is not required to

disregard the inferences that normally flow from the evidence or to seek out all possible

explanations consistent with a defendant’s innocence and elevate them to reasonable doubt. In re

Jonathon C.B., 2011 IL 107750, ¶ 60. Despite defendant’s argument regarding the certified copy

-8- No. 1-17-2504

of conviction, taking the evidence in the light most favorable to the State, we find that the

certified copy of conviction established that defendant was previously convicted of a felony.

Accordingly, we affirm his conviction for UUWF.

¶ 23 For the forgoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 24 Affirmed.

-9-