{ "id": 256255, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DERRICK L. LINDSEY, Defendant-Appellant", "name_abbreviation": "People v. Lindsey", "decision_date": "2001-08-03", "docket_number": "No. 4 \u2014 99\u20140014", "first_page": "193", "last_page": "206", "citations": [ { "type": "official", "cite": "324 Ill. App. 3d 193" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "589 N.E.2d 1087", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1088" } ], "opinion_index": 0 }, { "cite": "226 Ill. App. 3d 670", "category": "reporters:state", "reporter": "Ill. 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App. 3d 519", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2435180 ], "weight": 5, "year": 1993, "pin_cites": [ { "page": "525" }, { "page": "525" }, { "page": "525" }, { "page": "525" }, { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/241/0519-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "707 N.E.2d 980", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "982", "parenthetical": "simultaneous possession of gun and drugs was but a single act which could not support charges of both armed violence and unlawful possession of a weapon by a felon" } ], "opinion_index": 1 }, { "cite": "302 Ill. App. 3d 975", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1352945 ], "year": 1999, "pin_cites": [ { "page": "978", "parenthetical": "simultaneous possession of gun and drugs was but a single act which could not support charges of both armed violence and unlawful possession of a weapon by a felon" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/302/0975-01" ] }, { "cite": "203 Ill. 2d 344", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 1 }, { "cite": "203 Ill. 2d 335", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799372 ], "weight": 6, "year": 2001, "pin_cites": [ { "page": "337" }, { "page": "339" }, { "page": "341-42" }, { "page": "343" }, { "page": "345" }, { "page": "345-46" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/203/0335-01" ] }, { "cite": "557 N.E.2d 939", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "942", "parenthetical": "cocaine held in different pockets may support separate charges" } ], "opinion_index": 1 }, { "cite": "199 Ill. App. 3d 927", "category": "reporters:state", "reporter": "Ill. 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DERRICK L. LINDSEY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE KNECHT\ndelivered the opinion of the court:\nIn August 1998, police arrested defendant and the State charged him with unlawful possession of weapons by a felon (720 ILCS 5/24\u2014 1.1(a) (West 1998)) and unlawful use of weapons (720 ILCS 5/24\u2014 1(a)(4) (West 1996)). In November 1998, a jury convicted defendant of both charges. In December 1998, the trial court sentenced defendant to concurrent 10- and 3-year prison terms. Defendant appeals, arguing (1) ineffective assistance of counsel due to counsel\u2019s failure to stipulate to defendant\u2019s prior felony convictions and failure to file a motion to vacate his conviction for unlawful use of weapons; and (2) violation of his fourteenth amendment due process right (U.S. Const., amend. XIV) to a fair trial occurred when the State argued defendant could be found guilty on an accountability theory as the evidence did not support such theory. We affirm as modified and remand with directions.\nI. BACKGROUND\nOn November 4, 1998, a jury convicted defendant, Derrick Lindsey, of unlawful possession of weapons by a felon , and unlawful use of weapons. On August 4, 1998, Officers David Griffet and Jim Rein, both of the Champaign police department, were driving an unmarked police car when they noticed a car stopped in the road. A pedestrian, later identified as Johnnie Washington, was leaning into the driver\u2019s side window and acted nervously when he recognized the unmarked police car. The driver of the vehicle, defendant, exited the car and got into the backseat and Washington got into the driver\u2019s seat and proceeded to pull the car over to the curb. The officers pulled behind the car and Washington got out of the car and approached the officers.\nOfficer Griffet asked for Washington\u2019s driver\u2019s license and, when he could not produce a license, Washington gave Griffet a false name. As Washington talked to Griffet, defendant and another passenger, Gary McFarland, remained in the vehicle. After discovering Washington\u2019s true identity, Griffet arrested Washington for driving without a valid license. When Washington was arrested, defendant and McFarland exited the car, and when Griffet placed Washington in the squad car, defendant and McFarland walked away from the car. Officer Rein then went to defendant\u2019s car to look for the keys, which he previously noted were on the front seat, but one of the passengers had taken them. Rein then performed a search of the vehicle, incident to Washington\u2019s arrest.\nRein tried to open the glove compartment, but it was locked. He then pried it open enough to observe a handgun inside. At this point, he used a screwdriver he found in the car to break open the glove compartment, revealing two more handguns. One of the guns was a 9 millimeter, bolstered with an empty magazine inserted. The second gun was a .25-caliber semi-automatic handgun. Also in the glove compartment were six .25-caliber bullets and an empty magazine. The third gun was a .25-caliber handgun, fully loaded with a round in the chamber. The search of the trunk revealed the following items: an unloaded 9 millimeter magazine wrapped in a black and white handkerchief and a bank book in defendant\u2019s name.\nAfter the search, Rein looked for defendant and McFarland, but they had left the scene. Rein saw McFarland walking down an alley and he followed him and placed him under arrest. Defendant was found and arrested the following day.\nDuring the trial, the court took judicial notice of defendant\u2019s three prior felonies and informed the jury he had been convicted of aggravated battery and obstructing justice. Defense counsel objected to the introduction of evidence of defendant\u2019s prior convictions, but the objection was overruled because defendant\u2019s prior felonies were an element of the unlawful possession of weapons by a felon charge.\nThe defense presented the stipulated testimony of a forensic scientist who found four latent fingerprints on one of the handguns. Those prints belonged to Gary McFarland and no latent prints were found on the other weapons. During closing arguments, the State presented two theories to the jury. First, the State argued defendant was guilty of the charged offenses because he was in constructive possession of the handguns found inside the car, which was under his control. Second, the State argued because one of the weapons was connected to Gary McFarland through the fingerprint evidence, defendant was guilty of the charged offenses because he was legally responsible for McFarland\u2019s actions: \u201cdefendant, I\u2019d argue to you, is guilty, if nothing else, because he\u2019s responsible for the action of McFarland!,] who clearly was in possession of one of those guns.\u201d\nThe jury returned guilty verdicts on both counts. On December 7, 1998, the trial court denied defendant\u2019s posttrial motion and sentenced him to concurrent terms of 10 years and 3 years, respectively, for unlawful possession of weapons by a felon and unlawful use of weapons. On December 17, the trial court denied defendant\u2019s motion to reconsider sentence, and this appeal followed.\nII. ANALYSIS\nDefendant presents two issues for review: (1) he was denied his sixth amendment right to the effective assistance of counsel when defense counsel (a) failed to offer to stipulate to defendant\u2019s felony status and (b) failed to file a motion to vacate his conviction for unlawful use of weapons; and (2) his fourteenth amendment due process right to a fair trial was violated by the State\u2019s improper use of an accountability theory.\nA. Sixth Amendment Right to0Effective Assistance of Counsel\n1. Failure To Stipulate\nDefendant first contends counsel\u2019s failure to stipulate to his felony status was error outside the range of professionally competent assistance and, as a result, the proceedings below were unreliable and prejudicial to him. We disagree.\n\u20221 The sixth amendment guarantees a criminal defendant the effective assistance of counsel. U.S. Const., amend. VI. To prove counsel rendered ineffective assistance, a defendant must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The foundation of the two-pronged test is whether counsel\u2019s performance so undermined the adversarial process as to cause the result to be unreliable, possibly unjust, and violative of defendant\u2019s sixth amendment right to counsel. People v. Whitamore, 241 Ill. App. 3d 519, 525, 608 N.E.2d 1304, 1309 (1993). Under the first prong, defendant must establish counsel\u2019s performance fell below an objective standard of reasonableness. Under the second prong, defendant must show counsel\u2019s deficient performance resulted in actual prejudice and, but for counsel\u2019s errors, the outcome of the proceedings would have been different. Whitamore, 241 Ill. App. 3d at 525, 608 N.E.2d at 1309.\n\u20222 Several principles guide our analysis and application of the Strickland standard. \u201c[A] strong presumption exists that trial counsel\u2019s performance falls within the wide range of reasonable professional assistance\u201d and, therefore, substantial deference is given to counsel\u2019s performance. Whitamore, 241 Ill. App. 3d at 525, 608 N.E.2d at 1309. A reviewing court will not review counsel\u2019s performance when it involves judgment, strategy, or trial tactics. Whitamore, 241 Ill. App. 3d at 525, 608 N.E.2d at 1309. \u201cDefendant\u2019s hindsighted review of his trial counsel\u2019s performance and strategies merely speculates that some other trial counsel might have done things differently and better. Such speculation cannot support a finding of ineffective assistance of counsel under Strickland.\u201d Whitamore, 241 Ill. App. 3d at 526, 608 N.E.2d at 1310. Finally, a defendant is entitled to competent, but not perfect, counsel. People v. Odie, 151 Ill. 2d 168, 173, 601 N.E.2d 732, 735 (1992).\nIllinois case law provides no insight on whether counsel\u2019s failure to stipulate to defendant\u2019s prior felony convictions, when those prior convictions must be proved as an element of the charged offense, results in ineffective assistance. Defendant presents a case in which the United States Supreme Court held a trial court abuses its discretion when it refuses a defendant\u2019s offer to stipulate to the fact of a prior conviction without disclosing the nature of the prior conviction, when the purpose of the evidence is solely to prove the element of the defendant\u2019s status as a felon. Old Chief v. United States, 519 U.S. 172, 191-92, 136 L. Ed. 2d 574, 594-95, 117 S. Ct. 644, 655-56 (1997).\nThe federal statute involved in Old Chief made it unlawful for a person convicted of an offense punishable by imprisonment for more than one year to have possession of a firearm. Old Chief, 519 U.S. at 174-75, 136 L. Ed. 2d at 584, 117 S. Ct. at 647. The Supreme Court looked to Federal Rule of Evidence 403 (see 28 U.S.C. opp. Fed. R. Evid. 403 (1994)) and determined that, where felony status is an element of the offense, disclosing the nature of the offense can be more prejudicial than probative, and defendant\u2019s offer to stipulate should be allowed by the trial court.\nDefendant points out the statute involved in the present case, unlawful possession of a weapon by a felon (720 ILCS 5/24 \u2014 1.1 (West 1998)), is similar to the federal statute in Old Chief. Illinois has also adopted a common-law version of Federal Rule of Evidence 403 in case law. See People v. Lewis, 165 Ill. 2d 305, 329, 651 N.E.2d 72, 83 (1995). Defendant recognizes, however, Old Chief involves a factual situation, unlike the present case, where a defendant proffered and the trial court refused to accept his stipulation to his felony status. Nevertheless, defendant urges us to apply the Supreme Court\u2019s reasoning and analysis to the present case: \u201cIf a trial court abuses its discretion, due to the prejudice to the accused, when it refuses to stipulate to the fact of a prior conviction, surely it is error for a defendant\u2019s attorney not to offer to so stipulate.\u201d\nWhile the Supreme Court\u2019s analysis and reasoning might be appropriate under the specific facts in Old Chief, we cannot apply the same standard here. The Supreme Court reviewed the trial court\u2019s action under an abuse of discretion standard. This case involves an ineffective assistance of counsel challenge and we review the effectiveness of defense counsel\u2019s representation under the standard set forth in Strickland. Given these differences, we find Old Chief to be of minimal assistance and proceed with the Strickland analysis.\nIn our review of case law from other jurisdictions, we found one case that provides some guidance on this issue. United States v. Collins, 60 F.3d 4 (1st Cir. 1995), involved a defendant convicted of being a felon in possession of a firearm. On appeal, defendant claimed defense counsel was ineffective in failing to stipulate to his prior manslaughter conviction, which was the basis of his felony possession charge. The First Circuit Court of Appeals held defense counsel was not ineffective in failing to offer to stipulate because, under the law of the circuit at the time of defendant\u2019s trial, the government would not have been required to accept such a stipulation. Collins, 60 F.3d at 6-7.\nAt the time of defendant\u2019s trial, the law of the circuit was that, \u201ceven in the face of an offer to stipulate, the government may choose to present evidence on the one felony necessary to prove the crime charged.\u201d United States v. Collamore, 868 F.2d 24, 28 (1st Cir. 1989), citing United States v. Bruton, 647 F.2d 818, 825 (8th Cir. 1981).\nSeveral months after Collins\u2019 trial but before his appeal was heard, the First Circuit decided United States v. Tavares, 21 F.3d 1 (1st Cir. 1994), which changed the rule set forth in Collamore. The Tavares court held that, when a defendant is charged with being a felon in possession of a firearm, evidence of the nature of the prior conviction is not admissible unless special circumstances establish the relevance of the evidence is \u201csufficiently compelling to survive the balancing test of [Federal Rule of Evidence 403].\u201d Tavares, 21 F.3d at 5. Under the pre-Tavares rule in effect during Collins\u2019 trial, the First Circuit held \u201ccounsel made no error in light of the law at the time. The test for an ineffective assistance of counsel claim as articulated in [Strickland] is not met.\u201d Collins, 60 F.3d at 7.\nPrior to January 26, 2001, Illinois case law did not require the State to accept a defendant\u2019s stipulation of a prior felony conviction when such conviction is a required element of the charged offense. This court, in People v. Peete, 318 Ill. App. 3d 961, 969, 743 N.E.2d 689, 695 (2001), followed the United States Supreme Court\u2019s rationale in Old Chief and held the trial court should \u201capprove a stipulation requested by the defendant whereby the parties acknowledge that the defendant is, without further elaboration, a prior convicted felon.\u201d (Emphasis in original.) We note in Tavares, the First Circuit suggests a defendant does not have to request a stipulation for the trial court to be required to exclude evidence of the nature of his prior conviction. Tavares simply held evidence of the nature of the prior conviction was not admissible at all, unless it survived the balancing test of Federal Rule of Evidence 403. Tavares, 21 F.3d at 5.\nPrior to Peete, the general practice has been to allow the State to choose whether to accept a defendant\u2019s offer to stipulate to a prior felony conviction. This court has allowed evidence concerning the nature of a defendant\u2019s prior felony conviction when that conviction was an element of the statutory predecessor to current section 24 \u2014 1.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 24 \u2014 1.1), which made it a felony for a prior convicted felon to commit the crime of unlawful use of weapons within five years of his conviction or release from the penitentiary. See People v. Jennings, 185 Ill. App. 3d 164, 171-72, 541 N.E.2d 155, 160 (1989). In Jennings, 185 Ill. App. 3d at 171-72, 541 N.E.2d at 160, defense counsel refused to stipulate to defendant\u2019s prior felony record and we found, because no stipulation occurred, it was proper for the State to present testimony of a former Department of Corrections employee to prove defendant\u2019s prior felony conviction and identity.\nIn factual situations such as Jennings and the present case, where the defendant does not offer to stipulate to his prior felony conviction, Peete has carved an exception and does not require the trial court to automatically exclude any evidence of the nature of the prior convic-tians. Given this exception, we cannot find defense counsel renders ineffective assistance when counsel does not offer to stipulate to a defendant\u2019s prior felony conviction when that conviction is an element of the charged offense.\n\u20223 Because the law at the time of defendant\u2019s trial did not require the trial court to accept a defendant\u2019s stipulation of his prior felony conviction when the prior conviction is an element of the charged offense, we follow the rationale of the First Circuit in Collins and find defense counsel\u2019s failure to offer to stipulate to defendant\u2019s prior felony convictions did not rise to the level of ineffective assistance of counsel under Strickland. Further, because defendant did not offer to stipulate in the present case, our finding is supported by our decision in Peete, 318 Ill. App. 3d at 969, 743 N.E.2d at 695, in which we specifically held a trial court must accept a stipulation when requested by defendant.\n2. Failure To File Motion To Vacate\nDefendant next contends defense counsel was ineffective because he did not file a motion to vacate defendant\u2019s conviction for unlawful use of weapons as an included offense of unlawful possession of weapons by a felon. We disagree.\nAs a preliminary matter, defendant concedes this issue was not preserved for review. However, due to the prejudicial effect improper convictions for included offenses may have on a defendant, we have previously reviewed this issue under the plain error doctrine. People v. Barraza, 253 Ill. App. 3d 850, 857, 626 N.E.2d 275, 280 (1993). We will, therefore, consider this issue.\n\u20224 Multiple convictions for closely related conduct are prohibited when the convictions are \u201ccarved from the same physical act\u201d or when one conviction is for an included offense of the other. People v. King, 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45 (1977); People v. Rodriguez, 169 Ill. 2d 183, 186, 661 N.E.2d 305, 306 (1996). Defendant contends, \u201c[bjecause the conviction for unlawful possession of a weapon by a felon is carved out of the same physical act as unlawful use of a weapon \u2014 the conviction for the lesser possession offense must be vacated.\u201d\n\u20225 To determine whether one offense is an included offense of another, we look to the facts alleged in the charging instrument. \u201c[A]n offense is deemed to be a lesser included offense if it is described by the charging instrument.\u201d People v. Novak, 163 Ill. 2d 93, 107, 643 N.E.2d 762, 769 (1994). Under the charging-instrument approach, \u201cthe lesser crime need only relate to the greater to the extent that the charging instrument describes the lesser.\u201d Novak, 163 Ill. 2d at 107, 643 N.E.2d at 770. Even if an included offense is identified, it may not be proper to instruct the jury on the lesser offense. \u201cA lesser included offense instruction is proper only where the charged greater offense requires the jury to find a disputed factual element that is not required for conviction of the lesser included offense.\u201d Novak, 163 Ill. 2d at 108, 643 N.E.2d at 770.\nThe State charged defendant as follows:\n\u201cUnlawful Use of Weapons \u2014 Class 4 Felony, in that the said defendants knowingly possessed in a motor vehicle, a firearm, namely: a handgun, at a time when they were not on their own land, or in their own abode, or fixed place of business, in violation of 720 ILCS 5/24 \u2014 1(a)(4).\u201d\n\u201cUnlawful Possession of Weapons by Felons \u2014 Class 3 Felony, in that the said defendant, a person who has been convicted of a felony under the law of Illinois, namely: Aggravated Battery, in the Circuit Court of Champaign County, Illinois, in cause number 95 \u2014 CF\u2014 734, knowingly possessed on or about his person, a firearm, namely: a handgun, in violation of 720 ILCS 24 \u2014 1.1(a).\u201d\n\u20226 In this case, the facts as alleged in the charging instrument for the greater offense of unlawful possession of a weapon by a felon do not describe the facts necessary to fulfill the elements of the lesser offense of unlawful use of weapons.\nAs the State points out, to obtain a conviction on an unlawful use of weapons charge, it must prove defendant was not on his own land or in his fixed place of business. People v. Navarrete, 258 Ill. App. 3d 39, 44, 629 N.E.2d 742, 745 (1994). In the present case, the State had to prove defendant knowingly possessed a firearm in a motor vehicle. The situs of the possession is not a material element of unlawful possession of weapons by a felon. People v. Hester, 271 Ill. App. 3d 954, 956, 649 N.E,2d 1351, 1354 (1995). Therefore, because the State is required to prove an additional element to obtain a conviction on the unlawful use of weapons charge and this element is alleged in the charging instrument, it cannot be an included offense of unlawful possession of weapons by a felon. Accordingly, defense counsel was not ineffective when counsel failed to file a motion to vacate defendant\u2019s conviction for unlawful use of weapons.\n\u20227 Defendant next contends even if the unlawful use of weapons charge is not an included offense of unlawful possession of weapons by a felon, due to the unconstitutionality of Public Act 88 \u2014 680 (Pub. Act 88 \u2014 680, eff. January 1, 1995 (1994 Ill. Laws 2750)), we must vacate defendant\u2019s Class 4 felony conviction and impose a misdemeanor conviction. We agree.\nPublic Act 88 \u2014 680 was declared unconstitutional for violating the single subject rule of the Illinois Constitution (Ill. Const. 1970, art. IV \u00a7 8(d)). People v. Cervantes, 189 Ill. 2d 80, 91, 723 N.E.2d 265, 270 (1999). An amendment in Public Act 88 \u2014 680 (Pub. Act 88 \u2014 680, art. 50, \u00a7 50 \u2014 5, eff. January 1, 1995 (1994 Ill. Laws 2750, 2826-29)) increased the class of offense for a first time unlawful use of weapons conviction from a misdemeanor to a Class 4 felony, but the elements of the offense remained unchanged. \u201cThe effect of an enactment of an unconstitutional amendment to a statute is to leave the law in force as it was before the adoption of the unconstitutional amendment.\u201d People v. Brown, 309 Ill. App. 3d 599, 609, 723 N.E.2d 362, 369 (1999), citing People v. Gersch, 135 Ill. 2d 384, 390, 553 N.E.2d 281, 283 (1990). Accordingly, we reduce defendant\u2019s conviction for unlawful use of a firearm as a Class 4 felony to that of a Class A misdemeanor and reduce the sentence to 364 days in jail.\nB. State\u2019s Accountability Theory\n\u20228 Defendant next contends he was denied his fourteenth amendment due process right to a fair trial because the State, as an alternate theory of guilt, argued the jury could find defendant guilty by accountability on the charge of unlawful possession of weapons by a felon for Gary McFarland\u2019s actions but did not prove Gary McFarland was a felon. We find this issue was not properly preserved for review and we decline to consider it under the plain error doctrine.\nAgain, defendant concedes this issue was not preserved for review because the evidence was not objected to during trial, and defendant did not dispute the State\u2019s accountability argument in his posttrial motion for a new trial. However, defendant urges us to consider the issue under the plain error doctrine: \u201c[wjhether or not the erroneous evidence or remarks were objected to at the trial, a court of review will grant relief if the trial error is so prejudicial that real justice has been denied or the verdict of the jury may have resulted from such error.\u201d\nThe plain error rule should only be applied when the evidence is closely balanced or the error alleged by defendant rises to the level of denying defendant a fair trial. People v. Helm, 282 Ill. App. 3d 32, 34, 669 N.E.2d 111, 113 (1996).\nBoth the State and defendant agree the State did present evidence of another theory of defendant\u2019s guilt: constructive possession. To support a conviction under the constructive possession theory, the State must show defendant had knowledge of the presence of the weapon, and he had immediate and exclusive control over the area in which the weapon was found. People v. Hill, 226 Ill. App. 3d 670, 672, 589 N.E.2d 1087, 1088 (1992). The evidence presented during defendant\u2019s trial clearly supports his conviction under this theory. First, defendant was the driver of the vehicle, and evidence presented at defendant\u2019s trial showed he was often seen driving this vehicle. Second, the police found a magazine in the trunk of the car that belonged to one of the handguns found in the trunk, and defendant\u2019s bank book was also found in the trunk. Finally, defendant\u2019s own actions also speak to his knowledge of the presence of the weapons: he left the scene while the police were searching the vehicle.\nEven though the State presented both theories to the jury, evidence of constructive possession was established. The jury could have found, beyond a reasonable doubt, defendant was guilty of these offenses based on constructive possession. Because the State presented alternate theories of defendant\u2019s guilt and because it is entirely possible any rational trier of fact could have found the essential elements of the charged offenses beyond a reasonable doubt based on the constructive possession argument, we find any potential error in the State\u2019s presentation of its accountability theory does not rise to the level of plain error and, therefore, the issue is forfeited.\nIII. CONCLUSION\nWe find defense counsel\u2019s failure to stipulate to defendant\u2019s prior felony convictions and his failure to file a motion to vacate defendant\u2019s conviction for unlawful use of weapons did not rise to the level of ineffective assistance of counsel. Defendant forfeited the issue of whether he was denied his fourteenth amendment due process right to a fair trial, and we decline to apply the plain error doctrine because sufficient evidence was presented to convict defendant beyond a reasonable doubt under a constructive possession theory. We reduce defendant\u2019s Class 4 felony conviction of unlawful use of weapons to a Class A misdemeanor, modify the sentence therefor to 364 days in jail, and remand for issuance of an amended judgment of sentence so reflecting.\nAffirmed as modified and remanded with directions.\nMYERSCOUGH, J., concurs.", "type": "majority", "author": "JUSTICE KNECHT" }, { "text": "JUSTICE COOK,\nspecially concurring in part and dissenting in part:\nI respectfully dissent from that portion of the majority opinion which affirms the defendant\u2019s conviction of unlawful use of weapons.\nAfter searching the car in which defendant was located, the police found three handguns in the glove compartment: one 9 millimeter and two .25 calibers. Because defendant was a previously convicted felon, he was charged with one count of unlawful possession of weapons by a felon (720 ILCS 5/24 \u2014 1.1(a) (West 1998)). He was also charged with one count of unlawful use of weapons (720 ILCS 24 \u2014 1(a)(4) (West 1996)). Each information used identical language, alleging possession of \u201ca handgun.\u201d\nDefendant claims on appeal that his trial counsel was ineffective for failing to file a motion to vacate one of his convictions under the one-act, one-crime rule. The majority properly reviews this claim under the plain error doctrine. 324 Ill. App. 3d at 202-03. However, the majority\u2019s analysis of the one-act, one-crime rule is incomplete.\nThe one-act, one-crime rule was developed in People v. King, 66 Ill. 2d 551, 566, 363 N.E.2d 838, 845 (1977). Its purpose was to prevent pyramiding in sentencing. King recognized that prejudice will result to a defendant where more than one offense is carved from the same physical act. King, 66 Ill. 2d at 566, 363 N.E.2d at 844. It also recognized that, in the case of multiple acts, prejudice may result where one offense is a lesser included offense of another. King, 66 Ill. 2d at 566, 363 N.E.2d at 844. Therefore, analysis under the one-act, one-crime rule is a two-step process: we ask whether multiple charges were based upon the same physical act and, if not, we go on to ask whether one charge is a lesser included offense of another. The majority opinion, however, neglects to undertake the primary, single-act inquiry, instead launching immediately into a discussion of whether one of the charges was a lesser included offense of the other.\nPossessory offenses, like those at issue here, have always posed a special problem under the single-act component of the one-act, one-crime rule. According to King, a physical act means \u201cany overt or outward manifestation which will support a different offense.\u201d King, 66 Ill. 2d at 566, 363 N.E.2d at 844-45. Under that definition, however, complications arise when the acts alleged are possessory in nature. Consider the case of a defendant apprehended while in possession of one kilogram of cocaine. Charged as such, the offense carries a penalty of between 15 years\u2019 and 60 years\u2019 imprisonment. 720 ILCS 570/ 401(a)(2)(D) (West Supp. 1999). But suppose the prosecutor chooses to charge the offense in another way. Suppose the prosecutor decides to charge the defendant with 66 separate counts of possession of cocaine between 15 and 100 grams (720 ILCS 570/401(a) (2) (A) (West Supp. 1999)). The prosecutor may even draw some support from the case law for so doing. See People v. Green, 199 Ill. App. 3d 927, 932, 557 N.E.2d 939, 942 (1990) (cocaine held in different pockets may support separate charges). Now each of these 66 separate counts of possession will carry a term of between 6 years\u2019 and 30 years\u2019 imprisonment. 720 ILCS 570/401(a)(2)(A) (West Supp. 1999). But because of the nature of the offense, each of these sentences must be served consecutively (730 ILCS 5/5 \u2014 8\u20144(a)(iii) (West Supp. 1999)), resulting in a minimum overall term of 396 years\u2019 imprisonment. Clearly, it is this type of arbitrary charging and sentencing treatment which the King rule seeks to forestall.\nThis case presents the same type of problem. Should we say that Lindsey committed three separate but simultaneous acts, each being that of possessing a single gun? Or should we say that Lindsey committed only one act \u2014 possessing three guns? From a standpoint of comparative culpability, the former approach may seem preferable. Possessing, e.g., a crate of weapons seems to deserve greater punishment than possessing merely a single gun, if only because the inference arises that the defendant may be trafficking arms. However, such reasoning quickly leads back to the type of extreme pyramiding considered in the cocaine hypothetical above. (Should we then allow multiple convictions where a felon possesses only a few guns, but not a great many?)\nThe supreme court recently addressed the one-act, one-crime rule, although unfortunately not in a possessory context. In People v. Crespo, 203 Ill. 2d 335, 337 (2001), the defendant was charged with and convicted of multiple offenses, stemming from the stabbing of one of his victims. He had stabbed that victim three times. Crespo, 203 Ill. 2d at 339. The court reiterated that, according to precedent, each separate stab could be considered a separate act, supporting a separate offense. Crespo, 203 Ill. 2d at 341-42. However, the court noted that the counts charging the defendant had not differentiated between the separate stab wounds. The court found that to apportion the acts for the first time on appeal would be profoundly unfair. Crespo, 203 Ill. 2d at 343. It therefore held that to sustain multiple convictions, an indictment must indicate that the State intends to treat the conduct of the defendant as multiple acts. Crespo, 203 Ill. 2d at 345. Thus, while the State could have obtained multiple convictions by differentiating between acts in the charging instruments, in fact it had not. Crespo, 203 Ill. 2d 344. One of the defendant\u2019s convictions was reversed. Crespo, 203 Ill. 2d at 345-46.\nSimilarly, the instruments charging Lindsey here do not differentiate between the handguns found in the glove box. Each speaks only of \u201ca handgun.\u201d Therefore, under Crespo, Lindsey\u2019s conviction for unlawful use of a weapon must be vacated as the less serious offense. But, unlike situations such as that presented by Crespo, involving \u201ctruly\u201d physical acts such as stabbing, it also remains to be seen under what circumstances, if any, the State may charge as separate \u201cacts\u201d the various physical components of purely possessory offenses. See People v. Williams, 302 Ill. App. 3d 975, 978, 707 N.E.2d 980, 982 (1999) (simultaneous possession of gun and drugs was but a single act which could not support charges of both armed violence and unlawful possession of a weapon by a felon).", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE COOK," } ], "attorneys": [ "Daniel D. Yuhas and Catherine K. Hart, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "John C. Piland, State\u2019s Attorney, of Urbana (Norbert J. Goett'en, Robert J. Biderman, and David A. Hibben, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DERRICK L. LINDSEY, Defendant-Appellant.\nFourth District\nNo. 4 \u2014 99\u20140014\nOpinion filed August 3, 2001.\nCOOK, J., specially concurring in part and dissenting in part.\nDaniel D. Yuhas and Catherine K. Hart, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nJohn C. Piland, State\u2019s Attorney, of Urbana (Norbert J. Goett'en, Robert J. Biderman, and David A. Hibben, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0193-01", "first_page_order": 211, "last_page_order": 224 }