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        "text": "JUSTICE MYERSCOUGH\ndelivered the opinion of the court:\nOn October 17, 2002, a jury convicted defendant, Shurese Yvette Bailey, of felony first degree murder (720 ILCS 5/9 \u2014 1(a)(3) (West 2000)), concealment of a homicidal death (720 ILCS 5/9 \u2014 3.1(a) (West 2000)), and robbery (720 ILCS 5/18 \u2014 1(a) (West 2000)). The trial court sentenced her to 30 years\u2019 imprisonment for murder, 5 years\u2019 imprisonment for concealment, and 5 years\u2019 imprisonment for robbery. Defendant appeals, arguing (1) her conviction and sentence for robbery must be vacated under the one-act, one-crime rule; (2) counsel was ineffective for filing a perfunctory postsentencing motion that failed to assert or preserve any sentencing issues for appeal; (3) her sentence should be reduced because it is excessively disparate to that of her more culpable codefendants; and (4) she is owed a day of sentence credit. We affirm as modified.\nI. BACKGROUND\nIn April 2001, Danny Nelson\u2019s body was found in a drainage ditch on Windsor Road in Champaign. The State charged defendant, Jamie Boyd, Misty Dawn Marie Moreman Blandin, and Nathan Adams with various offenses related to Nelson\u2019s murder. Specifically, defendant was indicted on 14 counts of first degree murder, concealment of a homicidal death, and two counts of armed robbery. The facts of the crime are set out in detail in our decision in People v. Adams, No. 4 \u2014 02\u20140684 (May 14, 2004) (unpublished order under Supreme Court Rule 23).\nAs part of an agreement with the State, defendant (1) provided police with a statement concerning her knowledge of Nelson\u2019s death, (2) agreed to testify against Boyd, Blandin, and Adams, and (3) agreed to plead guilty to first degree murder. In exchange, the State would recommend 20 years\u2019 imprisonment. Defendant testified for the State at Adams\u2019 trial, and Adams was convicted of first degree murder, concealment of a homicidal death, and robbery. The trial court sentenced him to consecutive terms of 60 years for the murder, 5 years for the concealment, and 30 years for the robbery. This court affirmed Adams\u2019 conviction and sentence.\nDefendant also testified for the State at Boyd\u2019s trial. After the jury convicted Boyd of concealment and robbery but hung on the murder charge, Boyd entered a negotiated guilty plea in which she received 35 years for murder and 5 years for concealment.\nBlandin pleaded guilty to first degree murder and was sentenced to 30 years\u2019 imprisonment.\nDefendant did not plead guilty as per her agreement with the State and proceeded to a jury trial. Following the trial, the jury found defendant guilty of felony first degree murder, robbery, and concealment of a homicidal death, the only three charges on which the State proceeded to trial.\nFollowing denial of defendant\u2019s motion for a new trial, the trial court proceeded to a sentencing hearing. In mitigation, defendant presented a stipulation that, if called, Lieutenant Veda Barrett, a correctional officer at the Champaign County Correctional Center, would testify that during her period of incarceration, defendant had been a cooperative and peaceful inmate. Defendant also identified various family members who were present at sentencing in support of her. As a third piece of mitigation evidence, defendant presented a letter from defendant\u2019s family expressing their regrets regarding Nelson\u2019s murder.\nFollowing arguments and a statement from defendant, the trial court stated that it had considered the presentence investigation report, which indicated both misdemeanor and felony retail-theft convictions, a felony resisting-a-peace-officer conviction, and a federal conviction for theft of mail. The court stated it had considered in mitigation defendant\u2019s assistance to the State in the prosecution of her codefendants. The court then sentenced defendant as stated, granting her 557 days of sentence credit. That same day, counsel filed a motion to reduce sentence, which the court denied. This appeal followed.\nII. ANALYSIS\nA. Ineffective Assistance\n1. Per Se\nOn appeal, defendant claims she received ineffective assistance of counsel in that counsel filed a perfunctory postsentencing motion that failed to assert or preserve any sentencing issues for appeal.\nWhere \u201ccounsel entirely fails to subject the prosecution\u2019s case to meaningful adversarial testing, then there has been a denial of [sjixth [ajmendment rights that makes the adversary process itself presumptively unreliable.\u201d United States v. Cronic, 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047 (1984). We will not presume prejudice unless the attorney completely failed, \u201cthroughout\u201d the proceeding \u201cas a whole,\u201d to oppose the prosecution\u2019s case. See Bell v. Cone, 535 U.S. 685, 697, 152 L. Ed. 2d 914, 928, 122 S. Ct. 1843, 1851 (2002). It is not enough that the attorney \u201cfailed to do so at specific points.\u201d Bell, 535 U.S. at 697, 152 L. Ed. 2d at 928, 122 S. Ct. at 1851.\nHere, defendant argues counsel\u2019s perfunctory motion amounted to no representation at all and prejudice should be presumed. On appeal, defendant raises three sentencing issues that she claims were waived because of counsel\u2019s inadequate representation: (1) her sentence was disparate to that of her more culpable codefendants; (2) her conviction and sentence for robbery violate the one-act, one-crime rule; and (3) she is entitled to an extra day of sentence credit.\nWe agree that a motion to reconsider sentence is a critical stage of the criminal proceeding at which a defendant is entitled to counsel. People v. Williams, 358 Ill. App. 3d 1098, 1105, 833 N.E.2d 10, 16 (2005); People v. Brasseaux, 254 Ill. App. 3d 283, 288, 660 N.E.2d 1321, 1324-25 (1996). However, we decline to presume prejudice in a situation where the filing of the motion is a matter of discretion. Clearly, general failure to file a motion to reconsider sentence does not per se amount to ineffective assistance of counsel, as some basis must exist to make the motion. Accordingly, counsel\u2019s failure to raise the disparate sentence issue constitutes ineffective assistance only where such failure prejudiced defendant.\n2. Performance and Prejudice\nDefendant argues that because her sentence was excessively disparate to that of her more culpable codefendants, it should be reduced. Defendant did not raise this challenge to her sentence by written motion filed in the trial court and has waived it. 730 ILCS 5/5 \u2014 8\u20141(c) (West 2004); People v. Reed, 177 Ill. 2d 389, 395, 686 N.E.2d 584, 586-87 (1997). However, we will consider this argument in the context of her ineffective-assistance claim.\nA defendant establishes ineffective assistance of counsel by showing (1) his counsel\u2019s representation fell below an objective standard of reasonableness and (2) but for counsel\u2019s shortcomings, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Albanese, 104 Ill. 2d 504, 525, 473 N.E.2d 1246, 1255 (1984). A defendant must overcome the strong presumption that the challenged action or inaction of counsel was the product of sound trial strategy and not incompetence. People v. Coleman, 183 Ill. 2d 366, 397, 701 N.E.2d 1063, 1079 (1998).\nIt is not the function of a reviewing court to serve as a sentencing court, and, absent an abuse of discretion, a sentence will not be disturbed upon review. People v. Davis, 319 Ill. App. 3d 572, 577-78, 746 N.E.2d 758, 763 (2001). However, an arbitrary and unreasonable disparity between the sentences of similarly situated codefendants is impermissible. People v. Caballero, 179 Ill. 2d 205, 216, 688 N.E.2d 658, 663 (1997). The mere disparity by itself does not establish a violation of fundamental fairness. Caballero, 179 Ill. 2d at 216, 688 N.E.2d at 663. A disparity of sentences will not be disturbed where warranted by differences in the nature and extent of the concerned defendant\u2019s participation in the crime. Caballero, 179 Ill. 2d at 216, 688 N.E.2d at 663. Additionally, a plea of guilty is a relevant mitigating factor. People v. Banks, 241 Ill. App. 3d 966, 984, 609 N.E.2d 864, 876 (1993).\nFollowing a jury trial, codefendant Adams was sentenced to consecutive terms of 60 years for murder, 5 years for concealment, and 30 years for robbery, a total of 95 years\u2019 imprisonment. The record indicates codefendant Boyd was sentenced pursuant to a negotiated guilty plea following a mistrial on the murder charge to 35 years for murder and 5 years for concealment. Codefendant Blandin pleaded guilty to first degree murder and received a sentence of 30 years\u2019 imprisonment.\nHere, defendant\u2019s sentence for first degree murder was less than codefendant Adams\u2019 and codefendant Boyd\u2019s and identical to that of Blandin, who entered a guilty plea. All received five years for concealment, except for Blandin because that charge was dismissed per plea. In sum, defendant\u2019s total sentence was less than that of two of her three codefendants. This does not constitute a sentencing disparity.\nAdditionally, defendant\u2019s sentences are within the statutory ranges, as first degree murder is punishable by between 20 and 60 years\u2019 imprisonment (730 ILCS 5/5 \u2014 8\u20141(a)(1)(a) (West 2004)) and concealment, a Class 3 felony, is punishable by between 2 and 5 years\u2019 imprisonment (730 ILCS 5/5 \u2014 8\u20141(a)(6) (West 2004)). In fact, her 30-year sentence for murder is at the low end of the available sentencing range.\nBecause defendant\u2019s sentence was not impermissibly disparate to that of her codefendants, she was not prejudiced by counsel\u2019s failure to raise the issue in a motion to reconsider sentence, and such failure did not constitute ineffective assistance of counsel.\nB. Other Sentencing Issues\n1. One Act, One Crime\nOne-act, one-crime and sentence-credit issues are frequently not raised in the trial court. See People v. James, 362 Ill. App. 3d 250, 255-56, 839 N.E.2d 1135, 1140 (2005) (one act, one crime); People v. Hestand, 362 Ill. App. 3d 272, 277, 838 N.E.2d 318, 322-23 (2005) (one act, one crime); People v. Harvey, 211 Ill. 2d 368, 388-89, 813 N.E.2d 181, 194 (2004) (one act, one crime); People v. White, 311 Ill. App. 3d 374, 384, 724 N.E.2d 572, 580 (2000) (one act, one crime); People v. Donnelly, 226 Ill. App. 3d 771, 778, 589 N.E.2d 975, 980 (1992) (sentence credit); People v. Reed, 361 Ill. App. 3d 995, 1004, 838 N.E.2d 328, 335 (2005) (sentence credit); People v. Kelly, 361 Ill. App. 3d 515, 527, 838 N.E.2d 236, 247 (2005) (sentence credit); People v. Peacock, 359 Ill. App. 3d 326, 340, 833 N.E.2d 396, 408 (2005) (sentence credit). Defendant argues her conviction and sentence for robbery violate the one-act, one-crime rule. Specifically, she claims that robbery served as the predicate offense for her felony murder conviction. The State concedes the issue.\nWhile defendant did not raise this issue in a postsentencing motion, we will nevertheless address the lesser-included claim because the conviction and sentence for robbery affect substantial rights. People v. Hicks, 181 Ill. 2d 541, 544-45, 693 N.E.2d 373, 375 (1998). Multiple convictions are improper if they are based on lesser-included offenses. People v. King, 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844 (1977). In People v. Smith, 183 Ill. 2d 425, 432, 701 N.E.2d 1097, 1100 (1998), the defendant was convicted of felony murder predicated on armed robbery and armed robbery. The court found that armed robbery was a lesser-included offense of felony murder in that case and could not support a separate conviction and sentence.\nHere, defendant was charged with felony murder in that she \u201cor one for whose conduct she is legally responsible, without legal justification, while committing a forcible felony, Robbery *** [citation], repeatedly struck Danny Nelson about the head and face, choked Danny Nelson, and cut Danny Nelson\u2019s throat with a knife, and thereby caused the death of Danny Nelson *** [citation].\u201d She was charged with robbery in that she \u201cor one for whose conduct she is legally responsible, knowingly took property, being United States Currency and a wallet, from the person of Danny Nelson, by the use of force *** [citation].\u201d Here, defendant was convicted of felony murder and robbery. She was sentenced to concurrent terms of 30 years\u2019 imprisonment for felony murder and 5 years\u2019 imprisonment for robbery. Because the robbery was a lesser-included offense of felony murder, it cannot support a separate conviction and sentence. See People v. Washington, 272 Ill. App. 3d 913, 919, 651 N.E.2d 625, 630 (1995) (conviction and sentence for aggravated arson vacated where aggravated arson was predicate offense for felony murder conviction); People v. Coady, 156 Ill. 2d 531, 537, 622 N.E.2d 798, 801 (1993) (conviction and sentence for armed robbery were improper where armed robbery was predicate offense for felony murder conviction); People v. Martinez, 342 Ill. App. 3d 849, 862, 795 N.E.2d 870, 881 (2003) (conviction and sentence for home invasion vacated where home invasion was predicate offense for felony murder conviction). Accordingly, we vacate defendant\u2019s conviction and sentence for robbery.\n2. Presentence Credit\nDefendant next argues she is entitled to an additional day of sentence credit. See 730 ILCS 5/5 \u2014 8\u20147(b) (West 2004). The State agrees. While defendant did not raise this issue in the trial court, the normal rules of forfeiture do not apply to sentence-credit issues, and defendant may raise it for the first time on appeal. People v. Woodard, 175 Ill. 2d 435, 457, 677 N.E.2d 935, 945-46 (1997).\nDefendant was in pretrial custody from May 4, 2001, until her sentencing on November 12, 2002 \u2014 a total of 558 days. However, defendant was given credit for 557 days. Because this court has authority to directly order the clerk of the circuit court to make the necessary corrections, remand to the trial judge is unnecessary. See 134 Ill. 2d R. 615(b)(1); People v. Hernandez, 345 Ill. App. 3d 163, 171, 803 N.E.2d 577, 583 (2004), appeal denied, 213 Ill. 2d 567, 829 N.E.2d 791 (2005).\nIII. CONCLUSION\nFor the reasons stated, we affirm the trial court\u2019s judgment as modified.\nAffirmed as modified.\nMcCullough, j., concurs.",
        "type": "majority",
        "author": "JUSTICE MYERSCOUGH"
      },
      {
        "text": "JUSTICE KNECHT,\nspecially concurring in part and dissenting in part:\nI concur except as to the postsentencing motion. The motion to reduce sentence in this case is meaningless. Defendant was denied the effective assistance of counsel at the postsentencing stage of her trial. Counsel missed two viable issues and appears to have given no consideration to any issues because the motion was prepared the same day as the sentencing hearing \u2014 whether before or after the hearing we do not know. While Rule 604(d) (188 Ill. 2d R. 604(d)) (effective November 1, 2000) does not apply here, the reasoning of People v. Little, 337 Ill. App. 3d 619, 786 N.E.2d 636 (2003), is applicable.\nAll defendants deserve a measure of respect and attention from their counsel lest they believe \u2014 wrongly, I hope \u2014 that we are on an assembly line. Caseload and busy calendars are no justification for filing such a motion.\nI am not mollified because the majority has done a more thorough job than trial counsel and provided defendant some relief. Counsel should not manufacture issues that are frivolous, but something more meaningful than what occurred here is necessary to fulfill the professional obligation of counsel.\nThe denial of the motion to reconsider or reduce sentence ought to be reversed and the case remanded so a new motion can be filed and a meaningful hearing conducted.",
        "type": "concurring-in-part-and-dissenting-in-part",
        "author": "JUSTICE KNECHT,"
      }
    ],
    "attorneys": [
      "Daniel D. Yuhas and Keleigh L. Biggins, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.",
      "Julia Rietz, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Thomas R. Ewick, 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. SHURESE YVETTE BAILEY, Defendant-Appellant.\nFourth District\nNo. 4\u201402\u20140967\nOpinion filed March 28, 2006.\nKNECHT, J., specially concurring in part and dissenting in part.\nDaniel D. Yuhas and Keleigh L. Biggins, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nJulia Rietz, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Thomas R. Ewick, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
  },
  "file_name": "0404-01",
  "first_page_order": 420,
  "last_page_order": 428
}