People v. Clopton , 2024 IL App (4th) 230213-U ( 2024 )

NOTICE 2024 IL App (4th) 230213-UThis Order was filed under
FILED
Supreme Court Rule 23 and is May 7, 2024
NO. 4-23-0213
not precedent except in the Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Henderson County
TERRANCE L. CLOPTON, ) No. 21CF3
Defendant-Appellant. )
) Honorable
) Nigel D. Graham,
) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court.
Presiding Justice Cavanagh and Justice Steigmann concurred in the judgment.
ORDER
¶1 Held: The appellate court granted appellate counsel’s motion to withdraw and affirmed
the trial court’s judgment as no issue of arguable merit could be raised on appeal.
¶2 Following a bench trial, the trial court acquitted defendant, Terrance L. Clopton, of
attempted first degree murder (720 ILCS 5/8-4(c)(1)(D), 9-1(a)(1) (West 2020)) and convicted
him of home invasion (720 ILCS 5/19-6(a)(3) (West 2020)), aggravated discharge of a firearm
(720 ILCS 5/24-1.2(a)(1) (West 2020)), and unlawful possession of a weapon by a felon (720
ILCS 5/24-1.1(a) (West 2020)). The court sentenced defendant to an aggregate of 37 years in
prison. Defendant timely appealed, and the court appointed appellate counsel to represent him.
¶3 Appellate counsel now seeks to withdraw pursuant to the procedure in Anders v.
California, 386 U.S. 738 (1967), contending any argument she might make would be meritless.
Defendant has filed a response disagreeing with counsel’s assessment of his case and requesting
for new appellate counsel or to proceed pro se. We grant counsel’s motion to withdraw and affirm
the trial court’s judgment.
¶4 I. BACKGROUND
¶5 On January 5, 2021, the State charged defendant by information with four counts.
Count I alleged attempted first degree murder (720 ILCS 5/8-4(c)(1)(D), 9-1(a)(1) (West 2020)),
in that he, with the intent to commit first degree murder, performed a substantial step in the
commission of that offense when he shot Brandon White in the chest with a firearm, which caused
White great bodily injury. Count II alleged home invasion (720 ILCS 5/12-11(a)(4) (West 2020)),
in that he, knowingly and without authority, entered White’s home while knowing White to be
present, and he used force against White by threatening to shoot him while armed with a firearm.
Count III alleged aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2020)), in that
he knowingly discharged a firearm into a residence he knew to be occupied. Count IV alleged
unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2020)), in that he had
previously been convicted of a felony in Illinois and knowingly possessed a .22-caliber handgun.
¶6 On September 7, 2022, defendant signed a jury waiver. The trial court explained to
him the difference between a jury and bench trial, ascertained he discussed the matter with his
counsel and understood the possible penalties in this case, and ensured he was not threatened or
promised anything in exchange for his waiver. The court accepted the waiver.
¶7 A. Bench Trial
¶8 On September 12, 2022, the case was scheduled for a bench trial. The State filed
an amended information to correct the statutory subsection for home invasion (720 ILCS
5/19-6(a)(3) (West 2020)) and add language defendant would be subject to a mandatory 15-year
firearm enhancement if found guilty of that offense (720 ILCS 5/19-6(c) (West 2020)). The State
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also corrected the statutory subsection for aggravated discharge of a firearm (720 ILCS 5/24-
1.2(a)(1) (West 2020)). The trial court informed defendant of each of these changes and noted the
previously pled elements remained the same. Defense counsel stated he did not object.
¶9 The matter proceeded to a bench trial, where various witnesses largely corroborated
the following evidence. On December 31, 2020, Larry and Lora Roberts, along with their son
Christian Doty, were at their home in Gladstone, Illinois. Defendant arrived at Lora and Larry’s
home and waited with Larry while Lora got ready. They planned to leave and get a battery for
Lora’s car. Defendant asked Larry if their mutual coworker, White, paid rent money he owed from
when he stayed with Larry and Lora earlier in the year. Larry said White had not paid them back
and sent White a text message stating Lora was going to stop by and pick up the rent money. White
responded he did not have it and was not home. Larry and White further argued the rent issue
through text messages. The argument escalated, and Larry told White he would see him Monday
at work and take it out on him in front of everyone. Larry said defendant seemed agitated, which
confused him because it was not his money.
¶ 10 Lora, Larry, and defendant left to get the car battery. Either Larry drove to White’s
on his own volition or defendant suggested stopping by White’s home to get the rent money. Larry
and defendant approached the house, and Larry knocked on the door, which had a glass pane on
the front and blinds on the inside. No one answered, and Larry walked back toward his truck.
Defendant told Larry to hold on, approached the door, and pulled out a gun. Defendant broke the
glass pane with the butt of the gun. As defendant reached inside through the broken glass, a two-
by-four came out in his direction. Larry said it looked like defendant cut his thumb because he was
bleeding. Defendant fired into the house, reached through the broken glass, unlocked and opened
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the door, and walked inside. Larry saw White run behind the couch and defendant hit White with
the butt of the gun. Defendant said, “ ‘Where’s my f*** money?’ ”
¶ 11 White stated he did not answer the door because he thought there would be an
altercation if he let them inside. White heard Larry state nobody was home and defendant counter
they were not leaving without anything. White saw defendant break the glass pane on the door
with the butt of a silver gun. White threw a two-by-four through the broken pane, and defendant
shot White in his chest and abdomen. White moved to hide behind the couch, and defendant went
inside and shot White in his abdomen and in the back of each arm. Defendant then held a gun to
White’s head and threatened to kill White’s family if he told anyone. White went to hand $60 from
his wallet to defendant, and defendant directed him to pay Larry. White gave the money to Larry,
and Lora and Larry left. Defendant stayed behind and again threatened White’s family if White
told anyone. Larry and Lora got into the truck and started to leave when defendant joined them.
They proceeded to drive back to Lora and Larry’s home, and defendant said he would kill Lora
and Larry if they told anyone.
¶ 12 White waited until they left and then walked down the road to a neighbor’s home
to call the police. His phone, which was in the front pocket of his overalls, was damaged by the
gunfire. White left the neighbor’s home and walked down the street to meet the ambulance. Deputy
Matthew Link of the Henderson County Sheriff’s Office responded to the call and saw White
walking down the road. White told Deputy Link an unknown person had broken into his home and
shot him. White did not name defendant until later because he had been threatened and was scared.
White handed Deputy Link a bullet that was caught in his overalls. An ambulance transported
White to the hospital, and medical personnel determined he had multiple entry and exit wounds in
his torso and arms and two bullets remained in his body. He had surgery to remove a bullet from
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his abdomen and staple the wounds shut. A bullet remained in his arm, as its removal would cause
more damage.
¶ 13 Once Lora, Larry, and defendant returned to Lora and Larry’s home, Doty was in
the kitchen making food. Doty recalled his mother seemed scared and his father was quiet.
Defendant came inside with a shirt wrapped around his hand, and Lora helped him use tissue paper
to wipe up his blood. Defendant and Lora threw the tissue paper into the kitchen garbage can. Doty
went outside with defendant, and defendant placed the gun under leaves at the side of the house.
Doty and defendant walked to the home of one of defendant’s friends, where Doty smoked
marijuana and became ill. Lora called Doty’s phone and defendant answered. Defendant
threatened to kill Doty if Lora called the police. Defendant left after they noticed police in the area,
and Doty walked home to find police surrounding his house. Police brought Doty to the police
station.
¶ 14 Robert Boughton lived nearby and was defendant’s friend and his girlfriend’s
brother. Robert recalled defendant came over on the afternoon of December 30, 2020, with a
bleeding hand and asked for bandages. Defendant claimed he beat someone up. Meanwhile, Lora
and Larry drove around to look for Doty and were eventually arrested. When Lora and Larry were
first interviewed by police, they denied going to White’s home, but they later pled guilty to lesser
charges in exchange for their testimony against defendant.
¶ 15 Police drove Doty home and searched the house. Doty told police where defendant
discarded the gun, but they did not find it. However, Doty stated they were only using their
flashlights and did not move the leaves. A day or two later, Doty looked for the gun and found it
under the leaves. He contacted the police and placed the gun in his dresser until Deputy Keith
DeJaynes of the Henderson County Sheriff’s Office retrieved it the next day. Deputy DeJaynes
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described the gun as blueish in color. He transported the gun to the police station, sealed it in an
evidence bag, filled out an identification tag, and placed it in a safe. Daniel Hill of the Illinois State
Police retrieved the gun for testing, which was in a safe and sealed in a bag. The State admitted
into evidence a black .22-caliber handgun.
¶ 16 Defendant signed two stipulations. First, defendant signed a stipulation as to the
testimony of a forensic scientist, Mary Meaux, providing she (1) examined the firearm Deputy
DeJaynes recovered from Lora and Larry’s home and bullets found from White’s body and
overalls and (2) concluded the bullets were fired from the firearm. The stipulation further provided
a proper and lawful chain of custody existed for (1) the firearm after it came into Hill’s possession
as long as a chain of custody before the firearm came into Hill’s possession could be proven and
(2) all other referenced items. Second, defendant signed a stipulation as to the testimony of a
forensic scientist, Lyle D. Boicken, providing he performed a DNA analysis on the blood
recovered from White’s front door, White’s living room floor, snow outside of White’s home, and
tissue paper found in Lora and Larry’s garbage can. He concluded defendant’s DNA matched the
DNA profiles obtained from those items. The stipulation further provided a proper and lawful
chain of custody existed for these items and they should be admitted into evidence.
¶ 17 The State admitted a certified copy of defendant’s Iowa felony conviction into
evidence. The defense presented the testimony of Karl Reich, an expert in forensic testing, who
testified there would be no reason not to perform DNA tests on the firearm recovered in this case
and discovering the DNA on the firearm was relevant to the case.
¶ 18 The trial court heard closing arguments and acquitted defendant of attempted first
degree murder, finding the evidence did not demonstrate defendant had a specific intent to kill
White when he shot him in the chest. Specifically, the court found defendant’s view into the home
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from the porch was obscured by blinds, which caused him to not see where White was standing
when he first fired into White’s home and shot White in the chest. The court found the evidence
overwhelming as to defendant’s guilt of home invasion, aggravated discharge of a firearm, and
unlawful possession of a weapon by a felon.
¶ 19 B. Posttrial Motions and Sentencing
¶ 20 On November 7, 2022, defendant filed a motion to vacate his convictions and set
aside sentencing. He argued his convictions were lesser-included offenses of attempted first degree
murder, and since the trial court acquitted him of that charge, the convictions must be vacated.
¶ 21 On November 9, 2022, the trial court held a hearing and denied defendant’s motion,
finding each conviction was supported by different and distinct physical acts. The court proceeded
to sentencing, where it heard evidence of defendant’s difficult upbringing and his tendency to be
a follower. The court noted the following aggravating factors: defendant’s conduct caused or
threatened serious harm, defendant had a history of prior criminal activity, including three weapon
offenses, defendant previously served multiple prison sentences dating back to 2004, and a
sentence was necessary to deter others from committing the same crime. The court found
defendant’s conduct caused “severe bodily injury and great bodily harm,” as White had surgery to
remove a bullet from his abdomen, had multiple entry and exit wounds, and was permanently
disabled due to the bullet that remained in his arm. The court found no applicable mitigating factors
and noted no argument was made in support of any mitigating factor.
¶ 22 As to home invasion, the trial court sentenced defendant to 12 years in prison in
addition to the 15-year enhancement, to be served consecutively to his other sentences. The court
sentenced defendant to 10 years in prison for aggravated discharge of a firearm and 5 years in
prison for unlawful possession of a weapon by a felon, which were ordered to be served
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concurrently. The court ordered defendant to serve 85% of his sentences for home invasion and
aggravated discharge of a firearm. In sum, the court sentenced defendant to an aggregate of 37
years in prison: 12 years in prison for home invasion plus a 15-year-enhancement, to be served
consecutively to concurrent sentences of 10 years for aggravated discharge of a firearm and 5 years
for unlawful possession of a weapon by a felon.
¶ 23 On December 8, 2022, defendant filed a motion to reconsider. He asserted the same
lesser-included argument as in his November 7, 2022, motion and added other contentions. He
argued the evidence was insufficient to support his convictions because (1) Lora, Larry, and White
were all convicted felons, (2) White’s identification of the shooter was inconsistent, (3) the gun
presented at trial was black and White said the gun was silver, (4) Lora and Larry’s testimonies
were unreliable because they originally lied to police, (5) the evidence showed Lora and Larry
precipitated the entire incident, and (6) no DNA or fingerprint analyses were performed to link
him to the gun presented at trial. He also claimed a concurrent sentence for home invasion was
unfounded because the State did not allege severe bodily injury and there was no independent
finding of severe bodily injury. Last, he argued his sentence was excessive when considering Lora
and Larry were proven liars and masterminds of the incident and they only received a sentence of
18 months and 6 years, respectively.
¶ 24 On March 9, 2023, the trial court held a hearing on defendant’s motion. The court
amended its sentencing order to reflect the correct term for mandatory supervised release and its
previous findings of great bodily harm. The court otherwise denied defendant’s motion.
¶ 25 This appeal followed.
¶ 26 II. ANALYSIS
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¶ 27 Appellate counsel moves for leave to withdraw. Counsel supports her motion with
a memorandum, which states she considered raising the following issues on defendant’s behalf:
(1) whether defendant executed a proper jury waiver, (2) whether the State proved defendant guilty
beyond a reasonable doubt, (3) whether the State’s amendment to the information was material or
formal, (4) whether the firearm should have been suppressed where the State failed to establish a
proper chain of custody, (5) whether defendant’s convictions for home invasion and aggravated
discharge of a weapon violated the one-act, one-crime rule, (6) whether defendant received an
excessive sentence, and (7) whether the imposition of a consecutive sentence to be served at 85%
was proper. Counsel explains why she concluded none of these issues has arguable merit.
Defendant filed a response requesting new appellate counsel or to proceed pro se to address the
issues raised by his counsel.
¶ 28 We consider appellate counsel’s motion to withdraw and defendant’s response
under the procedure set out in Anders. As to defendant’s request for the appointment of new
counsel or to proceed pro se, it is improper as it fails to comply with Illinois Supreme Court Rule
361(a) (eff. Feb. 1, 2023), which requires an application for other relief to be made by filing a
motion. Even assuming, arguendo, defendant’s request complied with our procedural rules, we
would nonetheless reject it. First, defendant has already been appointed counsel and has no right
to choose his court-appointed counsel. See People v. Abernathy, 399 Ill. App. 3d 420, 426 (2010)
(holding a criminal defendant has no right to choose his court-appointed counsel or insist on
representation by a particular public defender). Second, allowing his request to proceed pro se
would be futile, as his response addresses his contentions in great length, and after examining the
record, we agree with counsel the issues identified lack arguable merit, and we have identified no
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other issues of arguable merit. For the following reasons, we grant counsel’s motion to withdraw
and affirm the trial court’s judgment.
¶ 29 A. Jury Waiver
¶ 30 A defendant has a constitutional right to a jury trial, and a waiver of that right must
be both knowingly and understandingly made. People v. Bracey, 213 Ill. 2d 265, 269 (2004). The
Code of Criminal Procedure of 1963 contemplates written jury waivers and waivers occurring in
open court. 725 ILCS 5/103-6, 115-1 (West 2022). There is no precise formula to determine
whether a defendant knowingly and understandingly waived the right to a jury trial, and we must
look at the facts and circumstances of each particular case. People v. May, 2021 IL App (4th)
190893, ¶ 44. This presents a question of law, which we review de novo. People v. Bannister, 232
Ill. 2d 52, 66 (2008).
¶ 31 We note defendant failed to question the validity of the jury waiver in the trial court
either by objection or in a posttrial motion. However, we consider this issue under the plain-error
doctrine. Bracey, 213 Ill. 2d at 270. Accordingly, defendant must prove 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) “that
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.” People v. Piatkowski, 225 Ill.
2d 551, 565 (2007). We first determine whether an error occurred. People v. Eppinger, 2013 IL
114121, ¶ 19.
¶ 32 The record demonstrates defendant knowingly and voluntarily waived his right to
a jury trial. The trial court explained to defendant the differences between a jury trial and a bench
trial. The court ensured defendant had an opportunity to discuss the waiver with his counsel,
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understood the possible penalties in this case, and was not threatened or promised anything in
exchange for the waiver. The written waiver further provided defendant voluntarily, knowingly,
and understandingly waived his right to a jury. There is no evidence defendant misunderstood or
ever questioned the jury waiver. Therefore, we find no error and, accordingly, no basis upon which
counsel could formulate a meritorious challenge to defendant’s jury waiver.
¶ 33 B. Sufficiency of the Evidence
¶ 34 When a defendant challenges the sufficiency of the evidence, we must determine
whether, after viewing the evidence in the light most favorable to the State, any rational trier of
fact could have found the essential elements of the offense beyond a reasonable doubt. People v.
Gray, 2017 IL 120958, ¶ 35. It is the function of the trier of fact to determine the credibility of the
witnesses, decide the weight to be given to their testimony, resolve conflicts in the evidence, and
draw reasonable inferences from that evidence. People v. Baker, 2022 IL App (4th) 210713, ¶ 35.
The trier of fact’s credibility determinations are entitled to great weight. People v. Swenson, 2020
IL 124688, ¶ 36. Moreover, this court will not set a criminal conviction aside unless the evidence
is so improbable or unsatisfactory as to create a reasonable doubt of the defendant’s guilt. People
v. Siguenza-Brito, 235 Ill. 2d 213, 225 (2009).
¶ 35 Testimony provided Lora, Larry, and defendant went to White’s home to collect
money. White saw them arrive and decided to not answer the door when he heard a knock.
Defendant knocked out a glass pane on the front door with the butt of his gun. White then threw a
two-by-four through the broken pane and began to move to hide behind the couch. Defendant fired
into the house, reached through the broken glass, unlocked and opened the door, walked inside,
fired more shots at White, held the gun to White’s head, and twice threatened to kill White’s family
if he told anyone. Defendant’s DNA was found on White’s front door, White’s living room floor,
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snow outside of White’s home, and the tissue paper from Lora and Larry’s home. White was shot
several times and sought medical attention. The bullets recovered from White’s body and overalls
were fired from the gun Doty turned over to police.
¶ 36 Viewing the evidence in the light most favorable to the State, we believe a rational
trier of fact could have found defendant guilty of all three counts beyond a reasonable doubt. Thus,
for the following reasons, there appears to be no basis upon which counsel could formulate a
meritorious challenge as to the sufficiency of defendants’ convictions.
¶ 37 1. Home Invasion
¶ 38 A defendant commits home invasion when he knowingly enters the dwelling place
of another without authority, knows or has reason to know that a person is present and, while
armed with a firearm, uses force or threatens the imminent use of force upon any person within
the dwelling, regardless of whether an injury occurs (720 ILCS 5/19-6(a)(3) (West 2020)). The
evidence demonstrated defendant broke the glass on White’s front door and saw a two-by-four
come through the broken glass. At this point, he knew or had reason to know a person was present
within the home. Defendant then reached through the broken glass to unlock the door and entered
the home. After defendant fired multiple shots at White and White paid Larry, defendant used
force and threatened the use of imminent force when he held a gun to White’s head and stated he
would kill his family if he told anyone. Defendant disputes he “threatened” White because White
did not testify defendant threatened to shoot him and White had already been shot at that point.
We disagree. A communication providing one will inflict physical harm on the person threatened
or any others person constitutes a threat. 720 ILCS 5/15-5(a) (West 2020). The fact White had
already been shot does not change this analysis. Moreover, the State was only required to prove
defendant either used force or threatened the imminent use of force. Both were proven here.
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¶ 39 Defendant also argues evidence introduced by the State to prove his guilt of
attempted first degree murder could not be used to support his other convictions because he was
acquitted of that charge. This is an inaccurate statement of law. Finally, he argues the State failed
to identify him as the perpetrator. Based on the evidence presented, we strongly disagree.
¶ 40 2. Aggravated Discharge of a Firearm
¶ 41 A defendant commits the crime of aggravated discharge of a firearm when he
knowingly discharges a firearm into a residence that he knows or reasonably should know to be
occupied (720 ILCS 5/24-1.2(a)(1) (West 2020)). The evidence demonstrated, after defendant
broke the glass on White’s front door, White projected a two-by-four through the broken glass.
Defendant then shot into the home when he knew or should have known it to be occupied. These
facts were corroborated by testimony and physical evidence the State presented at trial.
¶ 42 3. Unlawful Possession of a Weapon by a Felon
¶ 43 “To prove a defendant guilty of unlawful possession of a weapon by a felon, the
State must establish that the defendant (1) knowingly possessed the firearm and (2) had been
convicted of a felony.” People v. McIntyre, 2011 IL App (2d) 100889, ¶ 10; 720 ILCS 5/24-1.1(a)
(West 2020). The evidence demonstrated defendant knowingly possessed a firearm during the
incident at White’s home and afterwards at Lora and Larry’s home. Further, a certified copy of
defendant’s prior felony conviction in Iowa was admitted into evidence. Defendant argues his Iowa
conviction cannot be used to satisfy this offense because the State’s amended information alleged
he was previously convicted of a felony in Illinois—not Iowa. However, where an information is
attacked for the first time posttrial, a defendant must show that he was prejudiced in the preparation
of his defense. People v. Rowell, 229 Ill. 2d 82, 93 (2008). Defendant does not argue he was
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prejudiced in the preparation of his defense, and we fail to see how he would be prejudiced on this
basis.
¶ 44 C. Amended Information
¶ 45 Generally, a charging instrument must state the name of the offense, cite the
statutory provision alleged to have been violated, set forth the nature and the elements of the
offense charged, state the date and county of the offense, and state the name of the accused. 725
ILCS 5/111-3(a)(1)-(5) (West 2020). The State may seek to amend an information at any time due
to formal defects. 725 ILCS 5/111-5 (West 2020). An amendment is permissible as long as the
change is not material or does not alter the nature and elements of the charged offense. People v.
Shipp, 2011 IL App (2d) 100197, ¶ 21. Further, amendments are allowed when there is no resulting
surprise or prejudice to the defendant or where the record shows the defendant was otherwise
aware of the charges against him. People v. Ross, 395 Ill. App. 3d 660, 667 (2009).
¶ 46 Here, the State amended the information to correct two statutory citations and
include language providing defendant was subject to a statutory sentencing enhancement. The
State made no changes to its factual allegations, which aligned with the corrected statutory
citations. Defense counsel stated he had no objection to the amended information. This
acquiescence constitutes a waiver of the issue, and the only challenge available to defendant is
whether he received ineffective assistance of counsel. Baker, 2022 IL App (4th) 210713, ¶ 61; see
People v. Henderson, 2017 IL App (1st) 142259, ¶¶ 208-210 (stating when defense counsel asks
the court to proceed in a certain manner, the invited-error doctrine provides the only appealable
issue is ineffective assistance of counsel). To satisfy a claim of ineffective assistance of counsel, a
two-prong analysis applies where “[a] defendant must show that counsel’s performance fell below
an objective standard of reasonableness and that there is a reasonable probability that, but for
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counsel’s unprofessional errors, the result of the proceeding would have been different.” People v.
Manning, 241 Ill. 2d 319, 326 (2011).
¶ 47 The record demonstrates these amendments were not material, defendant was aware
of the charges against him, the amendments did not alter the nature and elements of the charged
offenses, and there was no resulting surprise or prejudice to defendant. See Shipp, 2011 IL App
(2d) 100197, ¶ 21. Therefore, counsel’s performance did not fall below an objective standard of
reasonableness when he provided he stated he did not object to the amended information, and
defendant cannot satisfy a claim of ineffective assistance of counsel. See People v. Phillips, 2017
IL App (4th) 160557, ¶ 57 (holding failure to satisfy either prong of Strickland v. Washington, 466
U.S. 668 (1984), precludes a finding of ineffective assistance of counsel). Defendant nonetheless
argues the State informed the trial court it was only amending the information as to home invasion
and not also aggravated discharge of a firearm. The record demonstrates the State informed the
court that citations for both counts were corrected in the amended information and the court told
defendant of both citation changes. Accordingly, there appears to be no basis upon which counsel
could formulate a meritorious challenge to the State’s amended information.
¶ 48 D. Chain of Custody
¶ 49 When the State seeks to introduce an object into evidence, it must establish an
adequate foundation by either a witness identifying the object or a sufficient chain of custody.
People v. Woods, 214 Ill. 2d 455, 466 (2005). The method of using a witness to identify the object
is appropriate when the object has readily identifiable and unique characteristics and its
composition is unlikely to change. Woods, 214 Ill. 2d at 466. If the object does not fall within this
description, the State must establish a chain of custody demonstrating reasonable measures were
used to protect the evidence from the time it was seized and it was unlikely the evidence had been
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altered. Woods, 214 Ill. 2d at 467. Once the State satisfies this prima facie case, the burden shifts
to the defendant to show actual evidence of tampering, alteration, or substitution. People v. Alsup,
241 Ill. 2d 266, 274-75 (2011). However, a defendant may waive the requirement of proof of chain
of custody by entering into a stipulation. Woods, 214 Ill. 2d at 468. The admissibility of evidence
is within the trial court’s discretion and will not be disturbed absent an abuse of that discretion.
People v. Pikes, 2013 IL 115171, ¶ 12. “An abuse of discretion occurs when the ruling is arbitrary,
fanciful, unreasonable, or when no reasonable person would adopt the trial court’s view.” People
v. Ward, 2011 IL 108690, ¶ 21. As defendant did not object at trial or raise the issue in a posttrial
motion, we review this issue for plain error and first determine whether any error occurred.
Eppinger, 2013 IL 114121, ¶ 19.
¶ 50 In this case, the State laid its foundation for the firearm by establishing a chain of
custody from the time it was seized. Doty notified police he recovered the gun from underneath
leaves in his yard and kept it in his dresser drawer until Deputy DeJaynes picked it up the next
day. Deputy DeJaynes took the gun to the police station, sealed it in an evidence bag, filled out an
identification tag, and placed it in a safe. Hill came to the police station to retrieve the gun for
testing, which was still in the safe and sealed in the bag. Defendant stipulated a proper and lawful
chain of custody existed for the gun after it came into Hill’s possession as long as a lawful chain
of custody was proven before Hill’s possession. The evidence demonstrates the State established
its burden that reasonable measures were used to protect the gun from the time it was seized by
Deputy DeJaynes and it was unlikely the gun had been altered. The burden then shifted to
defendant to show actual evidence of tampering, alteration, or substitution, and we fail to find any
such evidence in this case.
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¶ 51 Defendant takes issue with the chain of custody because Deputy DeJaynes
described the gun as blueish in color, while the gun admitted into evidence was black. However,
this goes to the weight of the evidence—not its admissibility. See Alsup, 241 Ill. 2d at 275.
Defendant also argues his counsel was ineffective for failing to object to the chain of custody of
the DNA evidence and bullets, but this claim is thwarted by defendant’s own stipulations, which
provided a lawful chain of custody existed for those items. See People v. Harris, 2015 IL App
(4th) 140696, ¶ 36. Thus, we find there is no basis upon which counsel could formulate a
meritorious challenge to the State’s chain of custody.
¶ 52 E. One-Act, One-Crime Rule
¶ 53 The one-act, one-crime rule stands for the proposition that a criminal defendant
may not be convicted of multiple offenses when those offenses are founded on precisely the same
physical act. People v. Coats, 2018 IL 121926, ¶ 11. We employ a two-step analysis to determine
whether a violation of the rule occurred. First, we consider whether the defendant’s conduct
consisted of a single physical act or separate acts. People v. Rodriguez, 169 Ill. 2d 183, 186 (1996).
If we find the defendant committed multiple acts, we move to the second step and determine
whether any of the offenses are lesser-included offenses. Rodriguez, 169 Ill. 2d at 186. A lesser-
included offense is “an offense established by proof of lesser facts or mental state, or both, than
the charged offense.” People v. Miller, 238 Ill. 2d 161, 165-66 (2010). If we find no lesser-included
offenses, then multiple convictions are proper. Rodriguez, 169 Ill. 2d at 186. This presents a
question of law, which we review de novo. People v. Smith, 2019 IL 123901, ¶ 15.
¶ 54 Here, although defendant raised this issue in his posttrial motion, he did not raise
the issue during his trial. See People v. Sebby, 2017 IL 119445, ¶ 48 (holding a defendant preserves
an error for review when he objects to the error in the trial court and raises the error in a posttrial
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motion). Therefore, we review this issue for plain error and first determine whether any error
occurred. Eppinger, 2013 IL 114121, ¶ 19.
¶ 55 The State’s amended information alleged defendant committed home invasion
when he knowingly and without authority entered White’s home while knowing White to be
present and used force against White by threatening to shoot him while armed with a firearm. (720
ILCS 5/19-6(a)(3) (West 2020)). The State alleged defendant committed aggravated discharge of
a firearm when he knowingly discharged a firearm into a residence he knew to be occupied (720
ILCS 5/24-1.2(a)(1) (West 2020)). Finally, the State alleged defendant committed unlawful
possession of a weapon by a felon when he had previously been convicted of a felony and
knowingly possessed a .22-caliber handgun (720 ILCS 5/24-1.1(a) (West 2020)). The language of
the amended information clearly demonstrates the charges were based on multiple acts. The State’s
closing argument provides the same, as it explained the evidence for each count.
¶ 56 Although each count alleged defendant committed an act with a firearm, they were
multiple acts: threatening to shoot White while holding the firearm to his head, discharging the
firearm into White’s home, and possessing the firearm as a felon during and after the incident. It
is evident these allegations are not based on the same physical act and one charge is not a
lesser-included offense of another. See Miller, 238 Ill. 2d at 165-66. Defendant argues his
convictions violate the one-act, one-crime rule because the State’s alleged acts for attempted first
degree murder were precisely the same as those for his other convictions. However, defendant was
not convicted of attempted first degree murder, so no violation of the rule could occur on this basis.
Thus, we find there appears to be no basis upon which counsel could formulate a meritorious
challenge to defendant’s convictions under the one-act, one-crime rule.
¶ 57 F. Sentencing
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¶ 58 When sentencing a defendant, the trial court must carefully consider all factors in
aggravation and mitigation, including “the defendant’s age, demeanor, habits, mentality,
credibility, criminal history, general moral character, social environment, and education, as well
as the nature and circumstances of the crime and of defendant’s conduct in the commission of it.”
People v. Center, 198 Ill. App. 3d 1025, 1033 (1990). A reviewing court will not substitute its
judgment for that of the trial court simply because it might have weighed the factors differently.
People v. Klein, 2022 IL App (4th) 200599, ¶ 37. A sentence imposed within the statutory range
is presumed to be proper, and we review it for an abuse of discretion. People v. Sturgeon, 2019 IL
App (4th) 170035, ¶ 104.
¶ 59 The trial court sentenced defendant within the statutory range for each conviction.
Defendant was subject to a sentencing range of 6 to 30 years for home invasion, a Class X felony
(720 ILCS 5/19-6(a)(3), (c) (West 2020); 730 ILCS 5/5-4.5-25(a) (West 2020)), and the court
sentenced him to 12 years’ imprisonment. Defendant was also subject to the mandatory 15-year
enhancement (720 ILCS 5/19-6(c) (West 2020)), resulting in a 27-year sentence for home invasion.
As to aggravated discharge of a firearm, a Class 1 felony, defendant was subject to a sentencing
range of 4 to 15 years (720 ILCS 5/24-1.2(a)(1), (b) (West 2020); 730 ILCS 5/5-4.5-30(a) (West
2020)), and the court sentenced him to 10 years. Last, defendant was subject to a sentencing range
of 2 to 10 years for unlawful possession of a weapon by a felon, a Class 3 felony (720 ILCS
5/24-1.1(a), (e) (West 2020); 730 ILCS 5/5-4.5-40(a) (West 2020)), and the court sentenced him
to 5 years. The record demonstrates the court considered various statutory factors and the evidence
presented, and we find no evidence of record he received an excessive sentence.
¶ 60 Next, we find the trial court acted within its authority to order defendant’s sentence
for home invasion to be served consecutively to his sentences for aggravated discharge of a firearm
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and unlawful possession of a weapon by a felon. When a defendant is convicted of a Class X or
Class 1 felony and inflicted severe bodily injury during the commission of that felony, the court
shall impose consecutive sentences. People v. Whitney, 188 Ill. 2d 91, 98-99 (1999); 730 ILCS
5/5-8-4(d)(1) (West 2020). Here, defendant was convicted of home invasion, a Class X felony,
and the court found defendant inflicted severe bodily injury during its commission. Therefore, the
court properly imposed a consecutive sentence for home invasion. Defendant argues great bodily
harm was only alleged as to the attempted first degree murder charge, and since he was acquitted
of that charge, it cannot serve as a basis for the court to impose consecutive sentences for his other
convictions. However, our supreme court explicitly rejected the argument that only Class X or
Class 1 felonies in which severe bodily injury is an inherent factor will qualify as triggering
offenses. Whitney, 188 Ill. 2d at 99. The court explained, “any Class X or Class 1 felony that results
in severe bodily injury being inflicted on the victim of that felony triggers consecutive sentences.”
Whitney, 188 Ill. 2d at 99.
¶ 61 Finally, we find the trial court properly ordered defendant to serve 85% of his
sentences for home invasion based on its finding of great bodily harm. When a defendant is
convicted of home invasion, the trial court shall make a finding as to whether the conduct leading
to the conviction resulted in great bodily harm to a victim and enter the finding and the basis for
the finding in the record. 730 ILCS 5/5-4-1(c-1) (West 2020). Here, the court made such a finding
and explained White had surgery to remove a bullet from his abdomen, had multiple entry and exit
wounds, and was permanently disabled due to the bullet that remained in his arm. Further, a
prisoner serving a sentence for various offenses, including home invasion, shall receive no more
than 4.5 days of sentence credit for each month of his prison sentence when the court makes the
aforementioned finding of great bodily harm. 730 ILCS 5/3-6-3(a)(2)(iii) (West 2020). As the
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court made the requisite findings in this case, defendant’s sentence was proper. We conclude there
appears to be no basis upon which counsel could formulate a meritorious challenge to defendant’s
sentence.
¶ 62 III. CONCLUSION
¶ 63 For the reasons stated, we grant appellate counsel’s motion to withdraw and affirm
the trial court’s judgment.
¶ 64 Affirmed.
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