People v. Moore

NOTICE
2023 IL App (5th) 180408-UNOTICE
Decision filed 02/16/23. The
This order was filed under
text of this decision may be NO. 5-18-0408 Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Jefferson County.
)
v. ) No. 17-CF-307
)
RODNEY E. MOORE, ) Honorable
) Jerry E. Crisel,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
PRESIDING JUSTICE BOIE delivered the judgment of the court.
Justices Moore and Vaughan concurred in the judgment.
ORDER
¶1 Held: We affirm in part the trial court’s judgment where the defendant proceeded
pro se at trial and fails to demonstrate ineffective assistance of counsel and
vacate that portion of the trial court’s judgment where the defendant’s
conviction for unlawful possession of a firearm with a defaced serial number
violates the one-act, one-crime rule. We further find that all remaining issues
raised on appeal were forfeited by the defendant for failing to make an
objection at the time of the alleged errors and further failing to raise the issues
in a written posttrial motion.
¶2 On May 4, 2018, after a jury trial, the defendant, Rodney E. Moore, was convicted
of one count each of unlawful possession of a weapon by a felon in violation of section 24-
1.1(a) of the Criminal Code of 2012 (Code) (720 ILCS 5/24-1.1(a) (West 2016)) and
unlawful possession of a firearm with a defaced serial number in violation of section 24-
1
5(b) of the Code (id. § 24-5(b)). On August 3, 2018, the defendant was sentenced to 10
years’ imprisonment for the unlawful possession of a weapon by a felon count, to be served
concurrently with 3 years’ imprisonment for the unlawful possession of a firearm with a
defaced serial number count, followed by 2 years of mandatory supervised release.
¶3 The defendant raises several issues on appeal. He argues that (1) the State
committed misconduct during his grand jury proceedings; (2) his initial trial counsel was
ineffective before being discharged; (3) the trial court judge and the State’s Attorney
wrongfully instructed the jury on the class nature or offense of the crime(s); (4) there was
insufficient evidence to convict; (5) the unlawful possession of a weapon by a felon count
should have been charged as a Class 3 felony as opposed to a Class 2 felony; and (6) his
sentence for unlawful possession of a firearm with a defaced serial number violates the
one-act, one-crime rule. For the following reasons, we vacate the defendant’s conviction
for unlawful possession of a firearm with a defaced serial number for violating the one-act,
one-crime rule and order the defendant’s mittimus to be amended accordingly, and affirm
the trial court’s judgment in all other aspects.
¶4 I. BACKGROUND
¶5 The defendant was charged by information on August 8, 2017, and subsequently by
indictment on August 25, 2017, with one count each of unlawful possession of a weapon
by a felon in violation of section 24-1.1 of the Code (id. § 24-1.1(a)) and unlawful
possession of a firearm with a defaced serial number in violation of section 24-5(b) of the
Code (id. § 24-5(b)). Both charges related to conduct, the defendant’s possession of a single
firearm, that allegedly occurred on August 3, 2017.
2
¶6 On August 29, 2017, the State filed a motion for destructive testing asking the trial
court to enter an order allowing the State to perform DNA testing on a firearm allegedly
possessed by the defendant and a motion for disclosure to the prosecution seeking to obtain
a buccal swab (DNA) from the defendant. Over the defendant’s objections, the trial court
granted both of the State’s motions on September 5, 2017. At the pretrial hearing on
September 13, 2017, after alleging that his counsel would not file “motions” at his request,
the defendant discharged his appointed counsel and elected to proceed pro se.
¶7 Thereafter, on September 20, 2017, October 13, 2017, October 24, 2017, and
December 1, 2017, the defendant filed several different pro se motions to dismiss the
charges against him, arguing that the evidence was insufficient. In its response to each of
the defendant’s motions, the State pointed out that motions to dismiss charges are governed
by section 114-1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/114-1(a) (West
2016)), which enumerates the proper grounds for the dismissal of an indictment,
information, or complaint. The State further pointed out that the Illinois Supreme Court
has stated that “[a] defendant may not challenge an indictment on the ground that it is not
supported by adequate evidence.” People v. Creque, 72 Ill. 2d 515, 527 (1978). “Guilt or
innocence is to be determined at trial.” Id.¶8 The trial court conducted several hearings on the defendant’s pro se motions to
dismiss the charges on October 10, 2017, October 13, 2017, November 15, 2017, December
1, 2017, and December 8, 2017. At each hearing, the trial court denied the defendant’s
motions, stating that it is the role of the jury to decide whether the evidence is sufficient to
3
convict, and that the defendant’s arguments contained in the motions were not a proper
basis for a motion to dismiss.
¶9 On April 24, 2018, the trial court appointed attorney Phillip Butler as stand-by
counsel for the defendant. On May 1, 2018, before the defendant’s trial began, the trial
court clarified that it appointed attorney Butler to assist the defendant if the defendant
requested it, but that attorney Butler would not be representing the defendant. The trial
court further confirmed with the defendant that he would be representing himself; that the
defendant had waived his right to counsel knowingly, voluntarily, and understandingly;
that the defendant’s waiver of counsel was not coerced; that the defendant had
demonstrated to the court that he had the ability to understand the proceedings; and that
the defendant understood the significance and consequences of his decision to proceed pro
se.
¶ 10 A jury trial was conducted on May 1, 2018, through May 4, 2018, and the defendant
was represented pro se with the assistance of stand-by counsel. At trial, Detective Kevin
Jackson with the Mt. Vernon Police Department’s narcotics division testified that on
August 3, 2017, a narcotics investigation led him to a home located in Mt. Vernon, Illinois.
Detective Jackson testified that when he arrived at the home, he attempted to make contact
by knocking on the door twice. According to Detective Jackson’s testimony, he heard
movement inside the home before he heard a female’s voice, later identified as Se’Arra
Alexander, ask who it was. Detective Jackson testified that he identified himself and then
Alexander opened the door. Detective Jackson explained to Alexander the purpose of the
investigation and then asked if he and Sergeant Koontz could come inside to speak further.
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Alexander invited them both inside the residence. Detective Jackson testified that,
thereafter, Alexander signed a consent to search the residence form.
¶ 11 Detective Jackson further testified that after he received the consent to search the
home, he asked Alexander if anyone else was present in the home for officer safety reasons.
Detective Jackson then learned that the defendant and a person by the name of Katelynn
Aultem were also present inside the home. Detective Jackson explained that he and
Sergeant Koontz attempted to gather everyone in the living room area so that they could
inform everyone about what was going to happen with respect to the search and so that
everyone would be in one area and could be watched. However, the defendant was in the
bathroom at this time and did not come out right away, but eventually exited the bathroom
and joined the others in the living room area.
¶ 12 Detective Jackson testified that he and Sergeant Koontz then attempted to identify
all of the people in the home, but the defendant refused to provide his name. According to
Detective Jackson’s testimony, during his contact with the defendant, he noticed a
document that had Rodney Moore’s name on it, so he requested his office to look up that
name to see if he had any active warrants. Detective Jackson was informed that the
defendant had a warrant for failing to appear in court. Consequently, the defendant was
arrested and transported to jail.
¶ 13 Detective Jackson further testified that during the search of the home, and
specifically, in one of the bedrooms, officers located a trash bag with what appeared to be
male clothes in it, and a red duffel bag that had a tag with the defendant’s name written on
it. According to Detective Jackson’s testimony, he located a handgun underneath the trash
5
bag. Detective Jackson stated that he made contact with Sergeant Koontz and together they
contacted the State’s Attorney’s office, and the decision was made to obtain a search
warrant for the home. Detective Jackson testified that when the handgun was collected, the
serial number had been scratched off. Detective Jackson further testified that both the
handgun, and the defendant’s fingerprints for comparison, were submitted for testing.
¶ 14 During the defendant’s cross-examination of Detective Jackson, Detective Jackson
testified that the reason the police came to the home that day was due to a narcotics
investigation on Se’Arra Alexander, whose name was solely on the lease of the home, and
on her boyfriend, Dewayne Moore—the defendant’s brother. According to Detective
Jackson’s testimony, even though it was Alexander’s home, she was not charged in
connection with the firearm because the firearm was found with the defendant’s property
in a bedroom that had nothing else in it other than a bed and some toys in the closet.
Detective Jackson testified that in addition to that, Dewayne Moore called Alexander from
jail the day before the search of the home occurred and told her that he “got that pole for
my brother.” Detective Jackson explained that “pole” is a common street name for a gun.
According to Detective Jackson’s testimony, in addition to the narcotics-related
investigation, this telephone call relating to a “pole” was another reason that led police to
Alexander’s home the next day. Detective Jackson further testified that “weeks or months”
after the search of the home, Alexander had indicated to Detective Jackson that the firearm
was Dewayne’s, but that he had given it to the defendant “to do some work with.”
Alexander also told the police that the defendant had been living at her home for
6
approximately two months, and that the plastic bag of clothes, and all of the other items
around it, belonged to the defendant.
¶ 15 On recross-examination, Detective Jackson clarified that during Dewayne’s
conversation with Alexander while in jail, Dewayne had asked Alexander if “his brother,”
purportedly the defendant, was going to help him put money on his books, and then he got
upset and stated, “I got him a pole. What’s he doing for me?” Thereafter, the State
introduced, without objection, a certified copy of the defendant’s felony conviction for
aggravated unlawful use of a weapon from the circuit court of Marion County, Illinois.
¶ 16 Expert witness Brian Hapack, a forensic biologist DNA analyst with the Illinois
State Police crime laboratory, testified that he tested DNA swabbings from a magazine in
the recovered firearm and detected “a low level mixture of DNA profiles that [were]
unsuitable for comparison.” Hapack explained that it is not unusual to have comparisons
that are unsuitable for comparisons, and what this means is that the DNA that was there
was of a very small amount, and was originating from at least more than one individual.
According to Hapack’s testimony, this is “not an uncommon result that we get with items
that would just merely be handled. The skin cells on your hand do not contain a lot of DNA,
and handling something does not transfer a large amount of DNA ***.” Hapack further
testified that based on his test, he was unable to eliminate the defendant as having handled
the firearm.
¶ 17 Expert witness Melissa Gamboe, a fingerprint examiner for the Illinois State Police
forensic science laboratory, testified that the recovered firearm did not contain any
fingerprints that were suitable for comparison. Gamboe explained that this is not unusual
7
due to the way firearms are carried, stating that “a lot of times they are in a waistband, a
pocket, or a holster. Some people even wrap theirs in things.” Gamboe further explained
that sometimes, firearms have a grip with a “gnarled” surface, which is not a good surface
for a fingerprint to be deposited because “the smoother the surface, the better.” Gamboe
testified that, additionally, if a firearm has been cleaned, they tend to have oil on them,
which is also not ideal when looking for latent fingerprints.
¶ 18 Leon Kemmerling testified for the defendant that he used to live at Alexander’s
home for about two months with her and Dewayne Moore, and that during that time, he
had never heard of or observed a firearm being present in the home. On cross-examination,
Kemmerling testified that he had lived with Alexander and Dewayne “around May to June”
2017, was currently in jail on pending felony retail theft charges, is a convicted felon, and
that he had been in and out of jail since he was 15 years old.
¶ 19 The defendant testified that on the date of his arrest, he was dropped off at his
sister’s home. The defendant’s sister was there using the bathroom, so he walked over to
Alexander’s home, which was situated diagonally behind his sister’s home, to use her
bathroom. Five minutes later, while the defendant was still in the bathroom, officers arrived
at the home, and he was subsequently arrested on a warrant for failing to appear on a pay
or appear court date. The defendant testified that he had no recollection of the recovered
firearm, that it was not on his property, and that he had no control over what was going on
in someone else’s home. The defendant denied that the red duffel bag was his, testifying
that he had never seen the bag before, and further denied that he had been staying at
Alexander’s home any more than one day prior to his arrest.
8
¶ 20 During deliberations, the jury sent out two notes. The first note asked what day of
the week August 3, 2017, was. After some discussion, the parties agreed to send back a
note that said, “August 3, 2017 was a Thursday. Judge Crisel.” About two hours later, the
jury sent out a second note stating, “Please send in (or have a lawyer explain in laymen’s
terms) the meaning of this instruction. This is critical because it bears on the meaning of
‘KNOWS’ in regards to this case.” The trial court indicated that the instruction the jury
was referring to was Illinois Pattern Jury Instructions, Criminal, No. 5.01B, the instruction
defining knowledge, knowingly or acting. Thereafter, the trial court indicated, “As you all
know, the Court can’t monkey with the instructions, and so I propose the following
response: You have all the instructions before you allowed by law as written. Judge Crisel.”
Neither party objected to this response, and it was provided to the jury.
¶ 21 A short time later, the jury returned guilty verdicts on both counts of unlawful
possession of a weapon by a felon and unlawful possession of a firearm with a defaced
serial number. The trial court sentenced the defendant to 10 years’ imprisonment for the
unlawful possession of a weapon by a felon count, to be served concurrently with 3 years’
imprisonment for the unlawful possession of a firearm with a defaced serial number count,
followed by 2 years of mandatory supervised release. No posttrial motions were filed by
the parties.
¶ 22 II. ANALYSIS
¶ 23 The first issue we must address is that the defendant’s pro se brief fails to comply
with many of the requirements of Illinois Supreme Court Rule 341 (eff. Oct. 1, 2020). Rule
341 governs the content of appellate briefs, and is made applicable to criminal cases by
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Illinois Supreme Court Rule 612(b)(9) (eff. July 1, 2017). For example, the defendant’s
statement of facts does not set forth “the facts necessary to an understanding of the case.”
Ill. S. Ct. R. 341(h)(6). Moreover, much of his argument section contains conclusory, vague
allegations with little or no citations to the record on appeal and sporadic citations to legal
authority presumably supporting his claims. See Ill. S. Ct. R. 341(h)(7). The supreme court
rules are not mere suggestions, and we may strike a brief for failure to comply with the
rules. See People v. Williams, 2020 IL App (3d) 180024, ¶ 25. Further, the defendant’s
failure to support his contentions with citation to legal authority or coherent argument
forfeits review of his claims. Ill. S. Ct. R. 341(h)(7); People v. Sprind, 403 Ill. App. 3d 772,
778-79 (2010). Nevertheless, we have the benefit of the State’s cogent brief. As such, as
the issues are evident and the merits of the appeal can be readily ascertained from the record
on appeal, we will proceed to the merits of the appeal. See Twardowski v. Holiday
Hospitality Franchising, Inc., 321 Ill. App. 3d 509, 511 (2001).
¶ 24 The next issue we must address is the defendant’s failure to file a posttrial motion.
It is well-settled that an issue is forfeited on appeal unless a party makes an objection at
the time of a purported error and specifically raises the issue in a written posttrial motion.
People v. Enoch, 122 Ill. 2d 176, 186 (1988). The purpose of this rule is to encourage
parties to raise their concerns in the trial courts so that courts have an opportunity to correct
their errors. 1010 Lake Shore Ass’n v. Deutsche Bank National Trust Co., 2015 IL 118372,
¶ 14. Here, the defendant failed to file a posttrial motion raising any of the issues he now
brings on appeal. We note, however, that a claim of ineffective assistance of counsel may
be raised for the first time on appeal when the basis for the claim can be ascertained from
10
the record (People v. Schaefer, 2020 IL App (5th) 180461, ¶ 16), and that forfeiture is a
limitation on the parties and not on this court (People v. Jackson, 2017 IL App (1st)
151779, ¶ 20; People v. Holmes, 2016 IL App (1st) 132357, ¶ 65). Thus, this court may
choose to overlook the forfeiture, if necessary, in order to obtain a just result or maintain a
sound body of precedent. Holmes, 2016 IL App (1st) 132357, ¶ 65.
¶ 25 Consequently, we find that the defendant has forfeited his claims that the State
committed misconduct during his grand jury proceedings; that the trial court judge and
State’s Attorney wrongfully instructed the jury on the class nature or offense of the
crime(s); that there was insufficient evidence to support his convictions; and that the
unlawful possession of a weapon by a felon count should have been charged as a Class 3
felony as opposed to a Class 2 felony, for failing to make an objection at the time of the
alleged errors and further failing to raise the issues in a written posttrial motion. We will
address the defendant’s claim of ineffective assistance of counsel and, in order to obtain a
just result, choose to overlook the forfeiture regarding the defendant’s claim that his
sentence violated the one-act, one-crime rule.
¶ 26 A. Ineffective Assistance of Trial Counsel
¶ 27 The defendant argues that his trial counsel was ineffective for “failure to file
motions in a timely manner which resulted in prejudice to defendant justice process,” and
that his trial counsel had a conflict of interest because public defender Scott Quinn
“represented co-defendant or Dewayne Moore.” The defendant maintains that due to his
counsel’s failure to file for dismissal of the offenses charged and a motion to stipulate his
prior conviction, it resulted in cruel and unusual punishment, a sixth amendment
11
constitutional violation, and a conflict free interest in representation by counsel. We will
address each issue in turn.
¶ 28 In criminal prosecutions, a defendant has a constitutional right to the effective
assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; People v.
Moore, 2020 IL 124538, ¶ 28. Claims alleging ineffective assistance of counsel are
governed by the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).
People v. Domagala, 2013 IL 113688, ¶ 36. Whether counsel was ineffective is reviewed
de novo. People v. Max, 2012 IL App (3d) 110385, ¶ 64.
¶ 29 To establish ineffective assistance of counsel, the defendant must prove (1) that
counsel’s performance was deficient, in that it fell below an objective standard of
reasonableness, and (2) that he suffered prejudice. Strickland, 466 U.S. at 687. A
defendant’s failure to satisfy either prong of the Strickland test is fatal to his claim of
ineffective assistance of counsel. People v. Albanese, 104 Ill. 2d 504, 527 (1984). Defense
counsel’s conduct is presumed to fall within the wide range of professionally reasonable
assistance. People v. Rodriguez, 364 Ill. App. 3d 304, 312 (2006). Furthermore, there is a
strong presumption that counsel’s action or inaction was a matter of trial strategy (see
People v. Evans, 186 Ill. 2d 83, 93 (1999)), and matters of trial strategy will not support a
claim of ineffective assistance of counsel unless counsel’s strategy is so unsound that he
entirely fails to conduct any meaningful adversarial testing of the State’s case (see People
v. Patterson, 217 Ill. 2d 407, 441 (2005)). To establish prejudice, the defendant must show
that, but for counsel’s deficient performance, there is a reasonable probability that the
outcome of the proceeding would have been different. Strickland, 466 U.S. at 687. “A
12
reasonable probability is a probability sufficient to undermine confidence in the outcome,
namely, that counsel’s deficient performance rendered the result of the trial unreliable or
the proceeding fundamentally unfair.” People v. Enis, 194 Ill. 2d 361, 376 (2000).
¶ 30 First of all, the defendant was appointed assistant public defender Edwin Anderson
on August 10, 2017, and subsequently discharged said counsel a month later on September
13, 2017, after alleging that attorney Anderson would not file “motions” at his request. The
defendant then elected to proceed pro se. Thereafter, on September 20, 2017, October 13,
2017, October 24, 2017, and December 1, 2017, the defendant filed several different
motions to dismiss the charges, arguing that the evidence was insufficient. In its response
to each of the defendant’s motions, the State pointed out that motions to dismiss charges
are governed by section 114-1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/114-
1(a) (West 2016)), which enumerates the proper grounds for the dismissal of an indictment,
information, or complaint. The State further pointed out that the Illinois Supreme Court
has stated that “[a] defendant may not challenge an indictment on the ground that it is not
supported by adequate evidence.” People v. Creque, 72 Ill. 2d 515, 527 (1978). “Guilt or
innocence is to be determined at trial.” Id.¶ 31 The trial court conducted several hearings on the defendant’s pro se motions to
dismiss the charges against him on October 10, 2017, October 13, 2017, November 15,
2017, December 1, 2017, and December 8, 2017. At each hearing, the trial court denied
the defendant’s motions, stating that it is the role of the jury to decide whether the evidence
is sufficient to convict, and that the defendant’s arguments contained in the motions were
not a proper basis for a motion to dismiss. As such, even if attorney Anderson had filed a
13
motion to dismiss the offenses charged on behalf of the defendant before counsel was
discharged, we find that counsel’s performance was not deficient but, rather, reasonable
trial strategy since such motions would have no merit. Because the defendant has failed to
establish the first prong of the Strickland test, we decline to address the prejudice prong
here.
¶ 32 The defendant also argues that counsel’s failure to stipulate to his felony status was
in error and, as a result, the proceedings were unreliable and prejudicial. The right to
represent oneself in a criminal proceeding is constitutionally guaranteed. People v. Scott,
194 Ill. App. 3d 634, 646 (1990); Faretta v. California, 422 U.S. 806, 813-14 (1975).
However, a defendant who knowingly and voluntarily chooses to represent himself cannot
then complain on appeal that his self-representation constituted a denial of effective
assistance of counsel or a fair trial, even where he conducts his defense to his own
detriment. People v. Graves, 134 Ill. App. 3d 473, 477 (1984); People v. O’Neal, 62 Ill.
App. 3d 146, 150 (1978). Moreover, if a defendant’s self-representation is less effective
than if he would have retained counsel, it is attributable to his decision to proceed without
an attorney. Scott, 194 Ill. App. 3d at 646. “To hold otherwise would make a mockery of
judicial process, since a defendant could elect to defend himself and then secure a reversal
because of his own incompetency.” People v. Richardson, 17 Ill. 2d 253, 260 (1959).
¶ 33 Here, the defendant discharged attorney Anderson and elected to proceed pro se on
September 17, 2017, which was over seven months before the trial began on May 1, 2018,
and continued representing himself throughout his trial with attorney Butler as stand-by
counsel. At any point in time before or even during his trial, the defendant could have
14
offered to stipulate to his prior felony conviction, but he chose not to do so. Moreover, the
trial court admonished the defendant at his September 13, 2017, pretrial hearing that if he
wished to proceed pro se, he would not be allowed to complain on appeal about the
competency of his representation “for obvious reasons.” The trial court further indicated to
the defendant that “[t]he effectiveness of your defense may well be diminished by your
dual role of attorney and accused. You will receive no special consideration from the court.
You will be on equal footing with the other side.” Thereafter, the defendant indicated that
he understood. Further, on the morning that trial began, May 1, 2018, the trial court stated:
“[T]he Court wants to make a record clean and clear on this, too, that [the defendant]
has been representing himself in this case for some time, and that the Court did give
him the admonitions. I think I’ve done that more than once. He has filed a number
of motions, pro se motions, throughout the case. He has convinced me that he is
waiving his right to counsel knowingly, voluntarily and understandingly. He has
also shown me he has the ability to understand the proceedings. He knows the
significance and consequences of his decision. I think we’ve gone over that a
number of times, and that his waiver of counsel was not coerced.
[Defendant], I think at the final pretrial, requested standby counsel, and I did
appoint Mr. Butler as standby counsel. Not as counsel for him but as standby
counsel, and to make it clear what the role of Mr. Butler is to everyone is that he is
here to assist you, [defendant], if you request it, if and when you request him to
assist you, but he is not here to represent you. He is simply assisting you in your
representation of yourself. Do you understand that?”
15
The defendant indicated that he understood. Consequently, because the defendant chose to
represent himself, and did so knowingly, voluntarily, and understandingly, he must now
bear the consequences of his decision. As such, the defendant’s claim of ineffective
assistance of counsel fails to meet the first prong of the Strickland analysis in that counsel’s
performance was not deficient, as it did not fall below an objective standard of
reasonableness, and therefore must be rejected. As a final note, because we decline to find
that the defendant’s counsel was ineffective, we further reject the defendant’s argument
that his counsel’s failure to file for dismissal of the offenses charged and a motion to
stipulate his prior conviction resulted in cruel and unusual punishment.
¶ 34 Additionally, we note that the defendant’s brief is unclear about whether he is
alleging ineffective assistance of counsel with respect to his initial trial counsel, attorney
Edwin Anderson, or his stand-by counsel, attorney Phillip Butler. Claims of ineffective
assistance of stand-by counsel are also subject to the standard set forth in Strickland, 466
U.S. at 687. People v. Simpson, 204 Ill. 2d 536, 563 (2001). Stand-by counsel may assist a
pro se defendant “ ‘in overcoming routine procedural or evidentiary obstacles to the
completion of some specific tasks, such as introducing evidence or objecting to testimony,
that the defendant has clearly shown he wishes to complete’ ” and may also help “ ‘ensure
the defendant’s compliance with basic rules of courtroom protocol and procedure.’ ” Id. at
562 (quoting McKaskle v. Wiggins, 465 U.S. 168, 183 (1984)). However, the trial court has
wide discretion to appoint stand-by counsel for such advisory or other limited purposes and
to establish the extent and nature of stand-by counsel’s involvement. People v. Redd, 173
Ill. 2d 1, 38 (1996).
16
¶ 35 As discussed above, the trial court here described the role of stand-by counsel,
stating that he appointed attorney Butler to assist the defendant, if and when the defendant
requested assistance, and not to represent the defendant. The defendant indicated that he
understood. As such, the record reveals that everyone involved in this case understood that
stand-by counsel’s role here was not one of active participation in preparing or presenting
the defendant’s legal defense, nor was the defendant under this belief. The responsibility
of preparing a legal defense remained on the defendant throughout the trial and sentencing.
Consequently, we reject the defendant’s ineffective assistance of counsel argument to the
extent that the defendant may be referring to stand-by counsel, i.e., attorney Butler.
¶ 36 Next, the defendant argues that his trial counsel was ineffective because he had a
conflict of interest since assistant public defender Scott Quinn “represented co-defendant
or Dewayne Moore.” Again, the defendant was appointed attorney Anderson on August
10, 2017. At his pretrial hearing on September 13, 2017, the defendant discharged attorney
Anderson, and elected to proceed pro se, and was represented at trial pro se with the
assistance of stand-by counsel, attorney Butler, who was appointed on April 24, 2018. At
no point in time did assistant public defender Scott Quinn represent the defendant in this
case, nor is there anything in the record that indicates who may have represented Dewayne
Moore in any case, related or otherwise. Further, even if Dewayne Moore had been
represented by another member of the public defender’s office in some capacity at the time
that the defendant’s case was progressing, the Illinois Supreme Court has declined to adopt
a per se rule finding a conflict of interest where different assistant public defenders
17
represent codefendants in a case. People v. Cole, 2017 IL 120997, ¶ 38. Accordingly, we
reject the defendant’s conflict of interest argument.
¶ 37 Finally, we note that the defendant contends that the trial court should have accepted
his stipulation to his prior felony conviction rather than admitting evidence of his
aggravated unlawful use of a weapon conviction. The record is devoid, however, of any
attempt by the defendant offering to stipulate to his prior felony conviction. Thus, there
was nothing for the trial court to accept. Moreover, a pro se defendant’s inability to
competently represent himself does not invest the court with a duty to intervene and assist
in the defense. People v. Hudson, 86 Ill. App. 3d 335, 340 (1980). The defendant was
adamant that he wanted to represent himself, and indicated that he understood the
consequences numerous times. Accordingly, we reject the defendant’s argument that the
trial court should have accepted his stipulation to his prior felony conviction where there
was no stipulation offered and no duty on the trial court to intervene and assist in the
defendant’s defense.
¶ 38 B. One-Act, One-Crime Rule
¶ 39 The defendant appeals his convictions and sentence for the offenses of unlawful
possession of a weapon by a felon and unlawful possession of a firearm with a defaced
serial number, arguing that his conviction for unlawful possession of a firearm with a
defaced serial number violates the one-act, one-crime rule. As stated earlier, this court has
chosen to forgo the defendant’s forfeiture of this claim for failing to raise it in a posttrial
motion, given the seriousness of the claim and the potential for an unjust result (see
Holmes, 2016 IL App (1st) 132357, ¶ 65). Moreover, the State acknowledges that the
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defendant’s convictions are based on a single act of possession of a firearm and concedes
that the less serious conviction of unlawful possession of a firearm with a defaced serial
number must be vacated. We agree.
¶ 40 The one-act, one-crime rule prohibits convictions for multiple offenses based on the
same single physical act. People v. Miller, 238 Ill. 2d 161, 165 (2010); People v. King, 66
Ill. 2d 551, 566 (1977). Pursuant to the one-act, one-crime rule, a trial court should impose
a sentence on the more serious offense and vacate the less serious offense. People v. Smith,
233 Ill. 2d 1, 20 (2009); People v. Artis, 232 Ill. 2d 156, 170 (2009). Whether a conviction
violates the one-act, one-crime rule is a question of law that we review de novo. People v.
Robinson, 232 Ill. 2d 98, 105 (2008); People v. Daniels, 187 Ill. 2d 301, 307 (1999). In
making that determination, the Illinois Supreme Court has laid out a two-step analysis.
People v. Rodriguez, 169 Ill. 2d 183, 186 (1996). First, this court must determine whether
the defendant’s conduct consisted of a single physical act or separate acts. Id. If it is
established that the defendant committed multiple acts, then this court moves to the second
step and determines whether any of the offenses are lesser-included offenses. Id. If there
are no lesser-included offenses, then multiple convictions are proper. Id.¶ 41 As such, we must first determine whether the defendant’s conduct consisted of
separate physical acts or a single physical act. The defendant was convicted of unlawful
possession of a weapon by a felon in violation of section 24-1.1 of the Code (720 ILCS
5/24-1.1(a) (West 2016)) and unlawful possession of a firearm with a defaced serial
number in violation of section 24-5(b) of the Code (id. § 24-5(b)). It is the defendant’s
argument that both convictions were based on the single act of possession of a firearm. The
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definition of an “act,” as stated in King, is “any overt or outward manifestation which will
support a different offense.” King, 66 Ill. 2d at 566. In this case, there was only one firearm
recovered from Alexander’s home, and the firearm was found with the defendant’s
property in a bedroom that had nothing else in it other than a bed and some toys in the
closet. Accordingly, we agree that the defendant’s two convictions were based on the single
physical act of possessing the one recovered firearm.
¶ 42 Thus, the defendant’s Class 3 felony conviction for unlawful possession of a firearm
with a defaced serial number should have merged into the Class 2 felony of unlawful
possession of a weapon by a felon for sentencing purposes and its attendant, concurrent
10-year prison sentence. Pursuant to Illinois Supreme Court Rule 615(b) (eff. Jan. 1, 1967),
this court may amend the judgment to reflect this merger. Accordingly, we vacate the
defendant’s conviction for unlawful possession of a firearm with a defaced serial number
and direct the trial court of Jefferson County to amend the defendant’s mittimus by deleting
the vacated unlawful possession of a firearm with a defaced serial number conviction and
the sentence related thereto. We affirm the trial court’s judgment in all other aspects.
¶ 43 III. CONCLUSION
¶ 44 For the foregoing reasons, we vacate the defendant’s conviction for unlawful
possession of a firearm with a defaced serial number for violating the one-act, one-crime
rule and order the defendant’s mittimus to be amended accordingly. We further affirm the
trial court’s judgment in all other aspects.
¶ 45 Affirmed in part and vacated in part with directions.
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