People v. Brown

2018 IL App (3d) 150070-B

Opinion filed July 23, 2018

____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2018

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court

ILLINOIS, ) of the 10th Judicial Circuit,

) Peoria County, Illinois.

Plaintiff-Appellee, )

) Appeal No. 3-15-0070

v. ) Circuit No. 13-CF-300

)

DIEUSEUL BROWN, ) Honorable

) David A. Brown

Defendant-Appellant. ) Judge, Presiding

_____________________________________________________________________________

JUSTICE O’BRIEN delivered the judgment of the court, with opinion.

Justices Holdridge and Wright concurred in the judgment and opinion.

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OPINION

¶1 Defendant Dieuseul Brown was convicted after a bench trial of armed violence, unlawful

possession of a weapon by a felon, and unlawful possession of a controlled substance. The trial

court sentenced him to an 18-year term on the armed violence count and an 8-year term on the

weapon charge and found the unlawful possession of a controlled substance conviction merged

with the other judgments. Brown appealed, challenging his convictions on one-act, one-crime

principles. We affirm.

¶ 2 FACTS

¶3 Defendant Dieuseul Brown was charged with armed violence (count I), unlawful

possession of a weapon by a felon (count II), and unlawful possession of a controlled substance,

cocaine (count III). Count I alleged that Brown committed armed violence by committing

unlawful possession of a controlled substance while armed with a handgun. Count II alleged

Brown committed unlawful possession of a weapon by a felon by possessing a firearm after

having been previously convicted of a felony. Count III alleged Brown possessed less than 15

grams of cocaine.

¶4 Brown moved to quash the indictment, pointing to the inconsistencies in a detective’s

grand jury testimony that the cocaine was discovered on Brown when he was arrested. Discovery

revealed that the drugs were not found until several hours after Brown’s arrest when he was

searched again at the police station prior to transport to the county jail. The State reindicted

Brown and corrected the misstatements to the grand jury. In the supplemental indictment, the

armed violence count became count IV and the cocaine possession charge became count V. The

trial court denied Brown’s motion to quash.

¶5 The cause proceeded to a bench trial. Two Peoria County detectives testified that Brown

had a gun on his person when they arrested him for an unrelated first degree murder. An officer

patted down Brown prior to bringing him to the police station and conducted another pat down

search before uncuffing Brown at the station. Brown was interviewed, used the bathroom, and

was again searched prior to transport to the county jail. During this search, a small baggie of

cocaine was found in the watchpocket in Brown’s jeans.

¶6 On the State’s motion, the trial court accepted into evidence portions of the transcripts

from Brown’s murder trial where he admitted that he was a drug dealer, he owned the gun

discovered on his person, and he kept a gun on him at all times. Also admitted into evidence was

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a certified copy of Brown’s prior conviction. The parties stipulated to descriptions of the

physical layout of the police station and a timeline of Brown’s arrival, interview, and departure.

Brown argued in closing arguments that the police searches were sloppy and that he could have

found the cocaine at the police station. The State argued that the drugs were not discovered in the

earlier searches because the package was small and soft and the police were looking for weapons

and that it proved Brown possessed both the gun and the cocaine simultaneously.

¶7 The trial court found that the State proved Brown guilty beyond a reasonable doubt of all

three counts, that he possessed the cocaine and drugs at the same time, and that it could be

reasonably inferred that Brown did not find the cocaine at the police station. Brown moved for a

new trial, which motion was heard and denied.

¶8 A sentencing hearing took place. The State sought a 44-year sentence and agreed that the

unlawful possession of a controlled substance conviction would merge with the other judgments.

It argued that the unlawful possession of a weapon by a felon would not merge because it has the

“separate element being the felony conviction which would be the separate act.” Brown agreed

that the weapon conviction would not merge with the armed violence conviction because it was

not a lesser included offense and sought concurrent sentences.

¶9 The trial court imposed an 18-year term of imprisonment for the armed violence

conviction and an 8-year term for unlawful possession of a weapon by a felony with the

sentences to be served consecutively to each other and at 85%. The trial court merged the

conviction for unlawful possession of a controlled substance into the other judgments. Brown

filed a motion to reconsider his sentence, which was heard and granted, with the trial court

finding Brown was eligible for day-for-day good time credit. Brown appealed. This court

vacated Brown’s conviction for unlawful possession of a weapon by a felon under one-act, one­

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crime principles, finding it was based on the same physical act of gun possession as used in his

armed violence conviction. The State filed a petition for leave to appeal. The Illinois Supreme

Court denied the petition and, in its supervisory authority, vacated this court’s judgment. People

v. Brown, No. 122507 (Ill. Mar. 21, 2018) (supervisory order). It ordered this court to reconsider

in light of its decision in People v. Coats, 2018 IL 121926, whether Brown’s convictions violated

one-act, one-crime principles.

¶ 10 ANALYSIS

¶ 11 The issue on appeal is whether the trial court’s sentencing determination violated one-act,

one-crime principles. Brown argues that his conviction for unlawful possession of a weapon by a

felon must be vacated under one-act, one-crime principles because it was based on the same

physical act of gun possession as used in his armed violence conviction.

¶ 12 Brown did not raise this issue below, but violation of one-act, one-crime principles

“affects the integrity of the judicial process” and is appropriate for plain error review under

doctrine’s substantial rights prong. In re Samantha V., 234 Ill. 2d 359, 378-79 (2009). To employ

a plain error analysis, a plain or obvious error must have occurred. People v. Thompson, 238 Ill.

2d 598, 613 (2010).

¶ 13 Courts employ a two-step analysis in applying one-act, one-crime principles. See People

v. King, 66 Ill. 2d 551, 566 (1977). First, the court decides whether the defendant’s conduct was

a single physical act or multiple acts. People v. Rodriguez, 169 Ill. 2d 183, 186 (1996). If a single

act, multiple convictions based on the act are prohibited. Id. Second, where the conduct consisted

of multiple acts, the court must determine whether any of the offenses are lesser-included

offenses. Id. This court reviews whether a conviction violates one-act, one-crime principles

de novo. People v. Boyd, 307 Ill. App. 3d 991, 998 (1999).

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¶ 14 We first decide whether Brown’s conduct constituted a single act or multiple acts. In

People v. Coats, 2018 IL 121926, ¶ 1, the defendant was convicted of multiple offenses,

including armed habitual criminal and armed violence. He appealed his convictions, arguing they

violated one-act, one-crime principals. Id. The appellate court affirmed and Coats appealed. Id.

¶¶ 6-7. The Coats court first acknowledged that plain error review was appropriate because a

one-act, one-crime violation is an obvious error that challenges the integrity of the justice

system. Id. ¶ 10. It then considered whether a one-act, one-crime error occurred. Id. ¶ 11. The

court found that the conduct of the defendant consisted of two physical acts: possession of a

handgun and possession of drugs. Id. ¶ 17. The court recognized that although possession of a

handgun was a common act shared by both offenses, the armed violence conviction included the

separate act of drug possession. Id.

¶ 15 The Coats court resolved the conflict between the Second District case of People v.

Williams, 302 Ill. App. 3d 975 (1999), and the Fourth District decision in People v. White, 311

Ill. App. 3d 374 (2000). Coats, 2018 IL 121926, ¶ 26. In Williams, the defendant was convicted

of armed violence based on possession of a controlled substance, unlawful possession of a

weapon by a felon, and unlawful use of a weapon and sentenced on the armed violence and

unlawful possession of a weapon by a felon convictions. Williams, 302 Ill. App. 3d at 976. He

appealed on one-act, one-crime principles. Id. at 977. The reviewing court determined that there

were no separate acts and that the “common act is a felon possessing a gun and drugs

simultaneously.” Id. at 978.

¶ 16 In White, the defendant was convicted, in part, of one count each of aggravated discharge

of a firearm, armed violence, and unlawful possession of a weapon by a felon and sentenced on

all three convictions. White, 311 Ill. App. 3d at 379. When he appealed on one-act, one-crime

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grounds, the reviewing court determined that, although the defendant simultaneously possessed

both the gun and drugs, they were distinct acts. Id. at 385. The White court rejected Williams,

finding it was wrongly decided. Id. The court concluded that the defendant’s convictions for

armed violence and unlawful possession of a weapon by a felon were based on separate acts and

held that multiple convictions did not violate one-act, one-crime principles. Id. at 386. The White

court found that despite the commonality of the gun, armed violence required an additional act of

drug possession and unlawful possession of a weapon by a felon required an additional element

of the defendant’s felon status. Id.

¶ 17 The Coats court found that Williams misapplied the one-act, one-crime rule and expressly

overruled it. Coats, 2018 IL 121926, ¶ 26. It also recognized that White “created some

confusion” regarding what constitutes an act. Id. ¶ 27. The King court defined “act” as “any overt

or outward manifestation which will support a different offense.” King, 66 Ill. 2d at 566.

Brown’s felon status is not an “overt or outward manifestation” but “a state of being.” (Internal

quotation marks omitted.) Coats, 2018 IL 121926, ¶¶ 15, 27. Nevertheless, per Coats, we find

that Brown’s acts of armed violence based on drug possession and possession of a weapon by a

felon are separate acts. Despite that both offenses involve possession of a gun, the armed

violence count also includes the separate act of simultaneously possessing drugs. See Rodriguez,

169 Ill. 2d at 188 (citing People v. Lobdell, 121 Ill. App. 3d 248, 252 (1983) (where there is an

additional act that can support an additional offense defendant may be convicted on both

offenses even if they share a common act)). We find that Brown’s conduct consisted of separate

acts.

¶ 18 Having determined that Brown’s convictions were not based on a single act, we must

address the second step in the King analysis, whether any of the offenses are lesser included. A

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lesser-included offense is an offense “established by proof of the same or less than all of the facts

or a less culpable mental state (or both), than that which is required to establish the commission

of the offense charged.” 720 ILCS 5/2-9(a) (West 2016). To determine that question, we apply

the abstract elements approach. See People v. Miller, 238 Ill. 2d 161, 173 (2010). The abstract

elements approach compares the statutory elements of the two offenses, and if all of the elements

of the first offense are included in the second offense and do not contain any elements not

included in the second offense, the first offense is a lesser-included offense. Id. at 166.

¶ 19 To sustain a conviction for unlawful possession of a weapon by a felon, the State must

prove beyond a reasonable doubt that the defendant knowingly possessed a weapon or any

firearm and has been convicted of a prior felony. 720 ILCS 5/24-1.1(a) (West 2016). To sustain a

conviction for armed violence, the State must prove beyond a reasonable doubt that the

defendant was armed with a firearm while he committed a felony offense, that being unlawful

possession of a controlled substance. Id. § 33A-2(a). To sustain a conviction for unlawful

possession of a controlled substance, the State must prove beyond a reasonable doubt that the

defendant knowingly and unlawfully possessed less than 15 grams of a controlled substance,

cocaine. 720 ILCS 570/402(c) (West 2016).

¶ 20 Unlawful possession of a gun by a felon is not a lesser-included offense of armed

violence. Both counts include the possession of a weapon. The possession of a weapon count

contains the additional element of felon status. The armed violence count includes the additional

element of drug possession. We find entry of judgment on both convictions did not violate one-

act, one-crime principles and was not error. Because there was no error, we conclude plain error

review is not applicable and affirm Brown’s convictions.

¶ 21 For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed.

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¶ 22 Affirmed.

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