People v. Colon

• Decision Date: 22 March 2007
• Docket Number: No. 102003.,102003.
• Parties: The PEOPLE of the State of Illinois, Appellant, v. Danny COLON, Appellee.
• Court: Illinois Supreme Court

866 N.E.2d 207

225 Ill.2d 125

The PEOPLE of the State of Illinois, Appellant, v. Danny COLON, Appellee.

No. 102003.

Supreme Court of Illinois.

March 22, 2007.

Lisa Madigan, Attorney General, Springfield, Richard A. Devine, State's Attorney, Chicago (Linda D. Woloshin, Michael Glick, Assistant Attorneys General, Chicago, James E. Fitzgerald, Peter D. Fischer, Assistant State's Attorneys, of counsel), for the People.

Frederick F. Cohn, Chicago, for appellee.

Justice GARMAN delivered the judgment of the court, with opinion:

Defendant, Danny Colon, pleaded guilty in the circuit court of Cook County to one count of aggravated unlawful use of a weapon (720 ILCS 5/24-1.6 (West 2002)) and was sentenced to 12 months' probation (730 ILCS 5/5-6-2(b)(2) (West 2002)). Subsequently, the State charged defendant with unlawful use of a weapon by a felon (720 ILCS 5/24-1.1 (West 2002)) and filed a petition to revoke his probation (730 ILCS 5/5-6-4 (West 2002)). At defense counsel's request, the trial court consolidated defendant's bench trial on the unlawful use of a weapon charge with his probation revocation hearing. The court found defendant not guilty of unlawful use of a weapon by a felon, but determined that he violated his probation. In a post-trial motion, defense counsel argued that requesting consolidation of the proceedings constituted ineffective assistance of counsel. The trial court denied the motion and sentenced defendant to 20 months' imprisonment. Defendant appealed, and the appellate court reversed and remanded with one justice dissenting. No. 1-04-2778 (unpublished order under Supreme Court Rule 23). For the reasons that follow, we reverse the judgment of the appellate court and affirm the judgment of the circuit court.

BACKGROUND

On February 19, 2004, defendant pleaded guilty to one count of aggravated unlawful use of a weapon (720 ILCS 5/24-1.6 (West 2002)) and was sentenced to 12 months' probation (730 ILCS 5/5-6-2(b)(2) (West 2002)). On April 19, 2004, defendant was placed under arrest after a police officer allegedly saw him in possession of a handgun. He was subsequently charged with unlawful use of a weapon by a felon (720 ILCS 5/24-1.1 (West 2002)) and with violating his probation (730 ILCS 5/5-6-4 (West 2002)).

When defendant appeared in court on July 8, 2004, defense counsel informed the court that defendant was prepared to proceed simultaneously with his bench trial on the unlawful use of a weapon charge and his probation revocation hearing. The State consented to consolidation, and the court allowed the parties to proceed.

The State called Sergeant Charles Glynn and Officer Scott Blasz of the Chicago police department to testify. Sergeant Glynn stated that he had been a Chicago police officer for 18 years. On April 19, 2004, at approximately 1:45 a.m., he was approaching a building at 2803 North Kedzie Avenue in Chicago to use its porch for surveillance purposes. As Sergeant Glynn approached the building, he saw defendant standing in the building's archway with a black, semiautomatic pistol in his right hand. Sergeant Glynn was approximately 10 feet away from defendant when he made this observation, and the surrounding area was well lit. While he could not see the pistol's handle, he could see its barrel.

According to Sergeant Glynn, when he saw the pistol, he drew his weapon, announced that he was a police officer, and ordered defendant to drop the pistol. Defendant turned and faced him and fled out of the archway onto Kedzie Avenue. Sergeant Glynn chased defendant. While in pursuit, he described defendant and his direction of flight over the police radio.

Defendant ran through a gangway and into an alley, at which point he hopped over a waist-high fence and entered another gangway. Sergeant Glynn was unable to pursue defendant over the fence, but he watched defendant enter the gangway from a distance of approximately 20 feet. Under the alley lighting, which extended into the gangway, he saw defendant hold up the gun and depress the magazine release. The magazine fell to the ground, and defendant continued to flee.

Sergeant Glynn subsequently recovered the magazine and determined that it contained nine-millimeter rounds. Shortly thereafter, he was notified over the police radio that defendant had been apprehended. The pistol was never recovered.

Officer Blasz testified that on April 19, 2004, he was in a squad car with his partner Mark DuBose when they received the description of defendant and his direction of flight over the police radio. After driving a short distance, they passed an alley and saw a person fitting the description they received over the radio. When the person, defendant, began to run, they cut him off with their squad car and placed him under arrest. At that point, Sergeant Glynn arrived on the scene.

Following Officer Blasz's testimony, the parties stipulated that defendant was convicted of aggravated unlawful use of a weapon on February 19, 2004. The State and the defense then rested.

After brief closing arguments, the trial court reviewed the differing burdens of proof for the substantive charge and the probation violation. The court determined that the State had failed to prove beyond a reasonable doubt that defendant had committed the offense of unlawful use of a weapon by a felon, but that the State had met its burden of proving by a preponderance of the evidence that defendant had possessed firearm ammunition in violation of the terms of his probation. Accordingly, the court set a date to sentence defendant for his probation violation.

On September 7, 2004, prior to sentencing, defense counsel presented an oral posttrial motion arguing that his request to consolidate the bench trial with the probation revocation hearing constituted ineffective assistance of counsel. Defense counsel asserted that if he had not requested consolidation, the court's probation violation finding would have been barred by principles of collateral estoppel and double jeopardy, because it would have been impermissible to relitigate the same issue of fact decided in a bench trial on the substantive charge at a subsequent probation revocation hearing.

During the course of the hearing on defendant's posttrial motion, the following colloquy occurred:

"COURT: Is it not the State's election as to whether they want to proceed—you make that argument as if you had the benefit of choosing to go to the underlying case or to the probation violation. And, in fact, you do not. It's the State's choice.

DEFENSE COUNSEL: But in this case, the State choose [sic] to go on the main case, and I said[,] your Honor, why don't we just try them together. We could get a transcript and see that's what happened. That's what happened.

COURT: Did the State elect on the underlying case?

STATE: I think we had—let me check. The State had elected on the case in chief.

COURT: I agree with you. And we don't have the transcript because nobody got it?

DEFENSE COUNSEL: As to that portion of it, nobody got it."

Ultimately, the court denied defendant's posttrial motion and sentenced him to 20 months' imprisonment.

Defendant appealed, and the appellate court reversed the judgment of the circuit court with one justice dissenting. No. 1-04-2778 (unpublished order under Supreme Court Rule 23). Initially, the appellate court majority rejected defendant's argument that the evidence presented at trial was insufficient to prove that he violated his probation by unlawfully possessing firearm ammunition as a felon. The majority held that, based on the observations of Sergeant Glynn, an 18-year veteran of the Chicago police department, it was reasonable for the trial court to infer that the 9-millimeter rounds ejected from the semiautomatic pistol defendant was carrying were "firearm ammunition" as defined by section 1.1 of the Firearm Owners Identification Card Act (430 ILCS 65/1.1 (West 2002)).

Next, the majority rejected defendant's argument that the trial court's finding that he violated his probation was barred by principles of collateral estoppel and double jeopardy based on his acquittal of the substantive charge. Citing this court's decision in People v. Grayson, 58 Ill.2d 260, 265, 319 N.E.2d 43 (1974), the court noted that Grayson prohibits the relitigation of an issue in a probation revocation hearing that has been litigated in a previous trial, regardless of the differences in the burdens of proof in the two proceedings. The court observed, however, that where a defendant's trial and probation revocation hearing are consolidated, concerns of collateral estoppel and double jeopardy do not arise, and the defendant may be acquitted of the substantive charge but still be found to have violated the terms of his probation. Accordingly, the court held that because defendant's trial and probation revocation hearing were consolidated, the trial court's finding that defendant violated his probation was not barred by principles of collateral estoppel and double jeopardy.

Finally, the appellate court addressed defendant's argument that defense counsel provided ineffective assistance of counsel by requesting consolidation of the bench trial and probation revocation hearing. The court noted that if defendant had been acquitted of the substantive charge in an earlier, separate proceeding, instead of in a consolidated proceeding, Grayson would have barred the trial court's violation-of-probation finding. Accordingly, the court determined that there was a reasonable probability that, but for defense counsel's request for consolidation, the outcome would have differed for defendant. The court acknowledged that there was nothing in the record to indicate that defense counsel was aware prior to his request for consolidation that the State had elected to try defendant on the substantive charge before proceeding with his probation revocation hearing. However, the court found this fact immaterial to the ineffectiveness...