People v. McNeil

2025 IL App (2d) 230542-U

• Court: Appellate Court of Illinois
• Decided: January 24, 2025
• Docket: 2-23-0542
• Status: Unpublished

Opinion

2025 IL App (2d) 230542-U No. 2-23-0542 Order filed January 24, 2025

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of De Kalb County. ) Plaintiff-Appellee, ) ) v. ) No. 20-CF-757 ) MICHAEL W. McNEIL, ) Honorable ) Marcy L. Buick, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

PRESIDING JUSTICE KENNEDY delivered the judgment of the court. Justices Jorgensen and Mullen concurred in the judgment.

ORDER

¶1 Held: By pleading guilty, defendant waived his postconviction claims that his separate convictions for possession of the same handgun violated the one-act, one-crime rule and infringed double jeopardy protections. Alternatively, the claims lacked merit because the instances of possession occurred in different counties two weeks apart and were separated by defendant’s intervening act of fleeing the scene of a shooting and transporting the gun to a different county.

¶2 Defendant, Michael W. McNeil, appeals pro se from the summary dismissal of his pro se

petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022)) for

relief from his conviction of armed habitual criminal (AHC) (720 ILCS 5/24-1.7(a)(1) (West

2020)), which was entered per a negotiated guilty plea. For the reasons that follow, we affirm. 2025 IL App (2d) 230542-U

¶3 I. BACKGROUND

¶4 On March 25, 2022, the State indicted defendant on the offenses of AHC (id.), aggravated

discharge of a firearm (id. § 24-1.2(a)(2)), unlawful possession of ammunition by a felon (id. § 24-

1.1(a)), and unlawful possession of a weapon by a felon (UPWF) (id.). The charges stemmed from

an incident in De Kalb County on December 24, 2020.

¶5 On June 7, 2023, the State presented the trial court with the terms of a negotiated plea

agreement. Per the agreement, defendant would plead guilty to AHC in exchange for a nine-year

prison sentence, to be served at 85%, which “would be followed by three years of mandatory

supervised release [(MSR)].” Defendant would receive credit for 468 days served. In addition, the

State would dismiss the remaining charges, along with charges in case Nos. 19-CF-578 and 19-

CM-1003. Also, a pending postsentencing matter in case No. 18-CM-1283 would be “discharged

unsatisfactorily and closed.”

¶6 The trial court admonished defendant as required by Illinois Supreme Court Rule 402(a)

(eff. July 1, 2012). During the admonishments, the court told defendant that he was pleading guilty

to one count of AHC, a Class X felony, that he faced a prison sentence of 6 to 30 years and an

extended term of up to 60 years, and that he was not eligible for probation. The court also told

defendant that (1) the prison term would be served at 85%, (2) he would serve a three-year MSR

term, and (3) he could be fined up to $25,000. Defendant indicated his understanding of the Rule

402(a) admonishments. Defendant further indicated his understanding of and agreement with the

terms of the negotiated plea agreement. At one point, defendant inquired through counsel as to

whether his sentence would run concurrently with a previously imposed sentence in Ogle County

(as the record later indicated, the Ogle County case was No. 21-CF-10, in which defendant

received a seven-year prison sentence for UPWF (the Ogle County case)). The State confirmed

-2- 2025 IL App (2d) 230542-U

that the sentences would be concurrent. Defendant affirmed that he wished to plead guilty, that no

one was forcing him to plead guilty, and that no one promised him anything in exchange for his

guilty plea other than the terms of the agreement as stated.

¶7 The State then presented the factual basis for the guilty plea as follows. Witnesses would

testify that on December 24, 2020, defendant planned to visit his daughter, who was living with

her mother, Josalyn Warfield, and give her a Christmas gift. Warfield was not at home, so she

contacted her boyfriend, Cardell Howard, to let him know that defendant was on his way.

Defendant and Howard had a “prior history,” so Howard intended to leave. Defendant arrived

before Howard could leave, and the two men argued. Defendant pulled out a gun, and Howard ran.

A shot was fired, and police later recovered a .45 caliber casing. Both Howard and Warfield

identified defendant as the person who was present. Later, in Rochelle in Ogle County, defendant

was found with a firearm, which was ballistically matched to the .45 caliber casing found at the

scene in De Kalb County. As for defendant’s prior criminal history, the State stated: “[D]efendant

has previously been convicted *** in 1993 of attempt murder and in 2010 of armed habitual

criminal. *** I can give the [c]ourt additional criminal history. There’s one other felony in 2005,

which was a felon use of [a] firearm.” Defense counsel stipulated to the factual basis and criminal

history.

¶8 The trial court found that the factual basis supported the guilty plea and that the proposed

plea agreement was appropriate given defendant’s criminal history. The court further found that

defendant’s guilty plea was knowingly, understandingly, and voluntarily entered. The court

accepted defendant’s guilty plea, entered judgment on one count of AHC, and sentenced defendant

per the agreement.

-3- 2025 IL App (2d) 230542-U

¶9 The trial court then admonished defendant of his appeal rights under Illinois Supreme Court

Rule 605(c) (eff. Oct. 1, 2001), including that, if he wished to appeal, he must first file, within 30

days, a written motion to withdraw his guilty plea, stating all the reasons that he wished to do so.

The court further explained that any reasons for withdrawing the plea not included in the motion

would be deemed waived for purposes of appeal. Defendant indicated that he understood.

¶ 10 Defendant did not file a motion to withdraw his guilty plea or a notice of appeal.

¶ 11 On July 25, 2023, defendant filed a pro se motion titled “Motion for Order Nunc Pro Tunc,

for a Motion to Reduce Sentence Pursuant [to] 730 ILCS 5/5-4, 50(D) & Supreme Court Rule

604(D), 615(A) Plain Error Doctrine, Due Process Under Illinois State Constitution Article I,

Section 2 of 1970.” Defendant claimed that he was not admonished that the three-year MSR term

would be served in addition to the nine-year sentence to which he agreed. Thus, he argued that the

mittimus must be corrected to reflect a prison sentence of six years.

¶ 12 While that motion was pending, on August 11, 2023, defendant filed a pro se petition under

the Act. In his petition, defendant explained that the Ogle County case stemmed from a January 7,

2021, arrest where defendant was a passenger in a vehicle that was stopped by police. At that time,

there was a warrant for his arrest in De Kalb County related to the offenses in the present case.

The police found a gun in the glove box of the vehicle, and defendant was charged with possession

of that gun. That same gun was the basis of the AHC charge in the present case. As noted,

defendant’s nine-year prison sentence was ordered to run concurrently with the seven-year

sentence imposed in the Ogle County case.

¶ 13 Defendant raised four claims in his petition. First, he claimed that the State violated his

right to be free from double jeopardy by prosecuting defendant for AHC in De Kalb County after

he was charged and sentenced “for the same gun” in the Ogle County case. Second, he claimed

-4- 2025 IL App (2d) 230542-U

that his conviction of AHC violated the one-act, one-crime rule because he was convicted of AHC

and UPWF based on the same gun. Third, he claimed he was subjected to improper double

enhancement because his UPWF charge in Ogle County formed the basis of his AHC offense in

De Kalb County. Finally, defendant claimed that De Kalb County “lacked jurisdiction” to

prosecute him after he was already prosecuted in Ogle County for the same gun. Defendant

attached to his petition three exhibits: (1) a transcript of police officer testimony describing the

January 7, 2021, arrest; (2) documents purportedly showing “The Forensic Testing of [the] Gun

Found”; and (3) judgment orders for the present case and the Ogle County case showing that

concurrent sentences were imposed.

¶ 14 On November 6, 2023, the trial court ruled on both pro se pleadings. The court dismissed

defendant’s postconviction petition after finding it “without legal merit” and “frivolous.” The court

reasoned that (1) defendant’s claims were waived because he was represented by counsel at the

plea hearing, filed no motions regarding any of the issues raised in his petition, and filed no motion

to withdraw his guilty plea; and (2) the claims were “nonfactual, nonspecific and merely

amount[ed] to conclusions.” The court denied defendant’s motion for an order nunc pro tunc,

finding that the mittimus correctly reflected defendant’s sentence.

¶ 15 Defendant timely appealed. The Office of the State Appellate Defender (OSAD) was

appointed to represent defendant. On April 18, 2024, OSAD moved to withdraw as counsel,

asserting that the appeal presented no potentially meritorious issues for review. Defendant filed a

response to the motion, in which he requested to proceed pro se. Thus, based on defendant’s

request, we allowed OSAD to withdraw and granted defendant’s motion to proceed pro se.

¶ 16 II. ANALYSIS

-5- 2025 IL App (2d) 230542-U

¶ 17 Defendant’s pro se appellate brief is confined to three arguments. First, he contends that

his plea counsel was ineffective in that “counsel[’s] erroneous advice lead [sic] [him] to plead

guilty to 9 years plus 3 years MSR” when defendant “believed his sentence was 9 years total,

meaning 6 years at 85% plus 3 years MSR.” According to defendant, counsel’s erroneous advice

rendered the guilty plea invalid. Defendant further argues that counsel compounded his

ineffectiveness by failing to file a motion to withdraw the guilty plea. Second, defendant argues

that his AHC conviction violated his right to be free from double jeopardy. Third, defendant

contends that his AHC conviction violated the one-act, one-crime rule.

¶ 18 In response, the State contends that defendant has forfeited or waived his claims. The State

alternatively argues that defendant’s claims fail on the merits.

¶ 19 The Act provides a statutory remedy for criminal defendants who claim a violation of their

constitutional rights. People v. Edwards, 2012 IL 111711, ¶ 21. Under the Act, the trial court

independently reviews the postconviction petition within 90 days of its filing to determine if it “is

frivolous or is patently without merit” (725 ILCS 5/122-2.1(a)(2) (West 2022)), in which case the

petition shall be summarily dismissed. People v. Edwards, 197 Ill. 2d 239, 244 (2001). “A petition

may be summarily dismissed as frivolous or patently without merit only if the petition has no

arguable basis either in law or in fact.” People v. Tate, 2012 IL 112214, ¶ 9; People v. Hodges,

234 Ill. 2d 1, 16 (2009). “A petition which lacks an arguable basis either in law or in fact is one

which is based on an indisputably meritless legal theory or a fanciful factual allegation.” Hodges,

234 Ill. 2d at 16. The summary dismissal of a postconviction petition is subject to de novo review.

People v. Hatter, 2021 IL 125981, ¶ 24.

¶ 20 We first address the State’s argument that defendant has forfeited his ineffectiveness claim

by failing to raise it in his postconviction petition. We agree. Section 122-3 of the Act provides

-6- 2025 IL App (2d) 230542-U

that “[a]ny claim of substantial denial of constitutional rights not raised in the original or an

amended petition is waived.” 725 ILCS 5/122-3 (West 2022). Our supreme court made clear in

People v. Jones, 213 Ill. 2d 498, 508 (2004), that appellate courts are “not free, as [the supreme]

court is under its supervisory authority, to excuse, in the context of postconviction proceedings, an

appellate [forfeiture] caused by the failure of a defendant to include issues in his or her

postconviction petition.” Thus, we have no authority to overlook a defendant’s forfeiture when he

raises a claim not made in his postconviction petition for the first time on appeal. People v.

Williams, 2015 IL App (1st) 131359, ¶ 14. Accordingly, we do not consider defendant’s claim that

his plea counsel was ineffective.

¶ 21 We turn to defendant’s remaining arguments. The State contends that defendant has waived

these arguments by failing to raise them in the trial court (aside from in his postconviction petition)

or on direct appeal. Again, we agree. By pleading guilty, defendant waived all claims of error,

including constitutional claims. See People v. Jones, 2021 IL 126432, ¶ 20. Moreover, defendant’s

failure to file a motion to withdraw his guilty plea per Rule 604(d) (Ill. S. Ct. R. 604(d) (eff. July

1, 2017)) resulted in a procedural default. Under Rule 604(d), defendant had 30 days from the

imposition of the sentence to challenge the plea by filing a motion to withdraw the plea and vacate

the judgment—and “any issue not raised by the defendant in the motion to *** withdraw the plea

of guilty and vacate the judgment shall be deemed waived.” Id. See People v. Stewart, 123 Ill. 2d

368, 374 (1988) (“[B]y its explicit terms, Rule 604(d) states that issues not preserved in a motion

to vacate a guilty plea are waived. The waiver rule applies to post-conviction proceedings as well

as to appeals.”); see also Jones, 2021 IL 126324, ¶ 26 (postconviction claim that sentence was

unconstitutional under juvenile sentencing norms of Miller v. Alabama, 567 U.S. 460 (2012), was

waived by guilty plea where the defendant had failed to move to withdraw his guilty plea); People

-7- 2025 IL App (2d) 230542-U

v. Thrailkill, 2023 IL App (2d) 210605-U, ¶¶ 21-22 (where the defendant had failed to move to

withdraw his guilty plea, we addressed only those postconviction claims that could not have been

raised in the motion to withdraw) 1; People v. Vilces, 321 Ill. App. 3d 937, 941 (2001).

¶ 22 Waiver aside, defendant’s claims are meritless. Defendant argues that his De Kalb County

AHC conviction (1) infringes double jeopardy protections because he was “formerly prosecuted

for the same offense based upon the same facts” and (2) violates the one-act, one-crime rule

because his “UPWF [conviction] merged into a conviction of AHC, *** [and] both convictions

were based off the same warrant and gun.”

¶ 23 “The double jeopardy clause of the fifth amendment to the United States Constitution,

made applicable to the states through the fourteenth amendment, provides that no person shall ‘be

subject for the same offence to be twice put in jeopardy of life or limb.’ ” People v. Bellmyer, 199

Ill. 2d 529, 536-37 (2002) (quoting U.S. Const., amend. V). The Illinois Constitution similarly

precludes any person from being “twice put in jeopardy for the same offense.” Ill. Const. 1970,

art. I, § 10. The double jeopardy clause bars three specific governmental actions: “(1) prosecution

for the identical offense after an acquittal, (2) prosecution for the identical offense after a

conviction, and (3) the imposition of more than one punishment for the same offense.” People v.

Avendano, 2023 IL App (2d) 220176, ¶ 56.

¶ 24 The one-act, one-crime rule enforces the third double jeopardy prohibition: that a person

should not suffer multiple punishments for the same act. Id. Under the one-act, one-crime rule, a

defendant may not be convicted of more than one offense “carved from the same physical act.”

1 Cited as persuasive authority under Illinois Supreme Court Rule 23(e)(1) (eff. Feb. 1, 2023) (“a nonprecedential order entered under subpart (b) of this rule on or after January 1, 2021, may be cited for persuasive purposes”).

-8- 2025 IL App (2d) 230542-U

People v. King, 66 Ill. 2d 551, 566 (1977). In this context, “act” means “any overt or outward

manifestation which will support a different offense.” Id.

¶ 25 “Our supreme court defines an ‘act’ in the context of double jeopardy the same as it does

in the context of the one-act, one-crime doctrine, that is, an ‘outward manifestation that will

support a different offense.’ ” People v. Flaar, 366 Ill. App. 3d 685, 688 (2006) (quoting People

v. Sienkiewicz, 208 Ill. 2d 1, 7 (2003), and citing King, 66 Ill. at 566). “ ‘If the prosecutions are

predicated on different criminal acts, then the prohibition against double jeopardy is not

violated.’ ” People v. Dinelli, 217 Ill. 2d 387, 404 (2005) (quoting Sienkiewicz, 208 Ill. 2d at 6).

¶ 26 As the State notes, in determining whether a double jeopardy violation has occurred, the

preliminary question is whether the prosecutions are based on different criminal acts. Id. Although

the King approach continues to be the “guiding principle” on the issue of whether there was a

single physical act, the supreme court has recognized the utility of a six-factor test. Sienkiewicz,

208 Ill. 2d at 8. Under that test, the following six factors are “useful in certain circumstances”

when considering whether there was a single act underlying more than one criminal charge:

(1) whether an intervening act interposed the defendant’s acts, (2) the time between the successive

parts of the defendant’s conduct, (3) the identity of the victim, (4) the similarity of the acts

performed, (5) whether the conduct occurred in the same location, and (6) the prosecutorial intent,

as shown by the language of the charging instrument. Dinelli, 217 Ill. 2d at 404.

¶ 27 Here, factors (1), (2), and (5) weigh heavily in favor of finding that the two prosecutions

were predicated upon two separate acts. Defendant committed AHC with the gun during a shooting

on December 24, 2020, in De Kalb County. Two weeks later, on January 7, 2021, he was stopped

in Ogle County and found in possession of the gun. These two instances of possession were

separated by defendant’s intervening act of fleeing the scene of the shooting and transporting the

-9- 2025 IL App (2d) 230542-U

gun from one county to another. To be sure, both charges—AHC and UPWF—stemmed from an

act of possession and, thus, factors (4) and (6) arguably favor defendant. (We note that there was

no victim alleged in either charge, so factor (3) does not lean in either direction.) Nevertheless,

given the extended length of time between the acts, the different locations where each act occurred,

and defendant’s intervening act of fleeing the scene of the AHC offense and transporting the gun

to another county, it is evident that two separate acts of possession—supporting separate

convictions—occurred. Thus, we find no double jeopardy or one-act, one-crime violation.

¶ 28 Accordingly, we hold that (1) defendant has forfeited his claim of ineffective assistance of

counsel by failing to raise it in his postconviction petition and (2) the trial court properly summarily

dismissed defendant’s petition as frivolous and patently without merit.

¶ 29 III. CONCLUSION

¶ 30 For the reasons stated, we affirm the judgment of the circuit court of De Kalb County.

¶ 31 Affirmed.

- 10 -