People v. Lee

• Decision Date: 20 February 2008
• Docket Number: No. 1-07-0335.,1-07-0335.
• Citation: 379 Ill.App.3d 533,884 N.E.2d 776
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Andy LEE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

884 N.E.2d 776

379 Ill.App.3d 533

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Andy LEE, Defendant-Appellant.

No. 1-07-0335.

Appellate Court of Illinois, First District, Third Division.

February 20, 2008.

Patricia Unsinn, Deputy Defender, Office of the State Appellate Defender, Chicago (Maria A. Harrigan, Assistant Appellate Defender), for Appellant,

Richard A. Devine, State's Attorney of Cook County, Chicago (James E. Fitzgerald, Kathryn Schierl, Robert Kline, of counsel), for Appellee.

Justice GREIMAN delivered the opinion of the court:

Following a jury trial, defendant, Andy Lee, was convicted of two counts of unlawful use of a weapon by a felon and sentenced to concurrent terms of 12 years' imprisonment for each count. On appeal, defendant contends that: (1) the trial court erred in admitting evidence of his prior felony conviction after he refused to stipulate to that conviction; (2) his multiple convictions for unlawful use of a weapon by a felon should be merged based upon the law applicable at the time of his offense; (3) his sentence was excessive in light of mitigating factors; and (4) the trial court erroneously assessed him the Violent Crime Victims Assistance Fund fine.

The evidence adduced at trial demonstrated that, on January 11, 2005, officers executed a search warrant in defendant's apartment and recovered a loaded rifle. Prior to entering the apartment, the officers asked defendant if he had anything illegal in his possession and defendant responded that he had a rifle in his bedroom. Defendant then gave the officers his apartment keys and led them to his bedroom, where they found the loaded rifle behind a couch. Defendant was subsequently arrested and charged with, inter alia, two counts of unlawful use of a weapon by a felon based upon a prior Wisconsin conviction, one for the rifle and one for the ammunition.¹

Two days before the trial took place, defense counsel informed the court that "preliminary matters" required the court's attention, specifically noting her concern that defendant was "not appreciating the consequences and the seriousness of what he [was] facing." Defense counsel further informed the court that defendant refused to engage in a meaningful discussion regarding a plea offer made by the State. As a result, the trial court explained the charges and the potential sentencing range to defendant and told him that the State offered to recommend the minimum term of imprisonment in exchange for his plea of guilty. Defendant refused the offer.

Defense counsel then further informed the court that defendant believed his double jeopardy rights were being violated because he had already served time on his prior felony. In response, the court explained that defendant's prior felony was an element of his pending charges; therefore, the jury would hear evidence of the prior felony, namely, criminal sexual assault of a child. The State subsequently offered to stipulate to the fact that defendant was a prior felon in order to bar the jury from hearing the actual conviction. The court further explained the meaning of a stipulation to defendant. However, over defense counsel's objection, defendant refused to stipulate to his conviction. Moreover, over defense counsel's objection, the trial court agreed to provide the jury with a certified copy of defendant's prior conviction.

On the day of trial, the court reiterated defendant's right to stipulate to his prior felony conviction; however, defendant again refused. Defense counsel then argued that determining whether to stipulate was a matter of trial strategy and therefore within the power of counsel. Consequently, over defendant's refusal, defense counsel agreed to stipulate to defendant's prior felony conviction. The court denied the stipulation on the basis that a defendant must agree with the fact of stipulation, and, in the case at bar, defendant did not.

At trial, Officer Rafael Magallon testified that he and several other member of the special operations section of the Chicago police department were conducting surveillance on the day in question in relation to a search warrant. The search warrant named defendant, the address of 1319 N. Pulaski, Chicago, Illinois, and the following items: cannabis; money; drug transaction records; and documentation proving residency. Around 9 a.m., Magallon saw defendant, whom he recognized from a picture, exit the rear porch of the residence. While a number of the surveillance team partners detained defendant, Magallon confirmed defendant's name and address through his expired driver's license. Defendant then accompanied the officers to his apartment and told Magallon that he had a rifle in his bedroom. The officers unlocked the apartment door with defendant's keys and proceeded to search defendant's basement bedroom. No drug evidence was recovered during the search; however, behind the couch, the officers recovered a .22-caliber rifle loaded with 10 rounds of ammunition.

On cross-examination, Magallon admitted that no mail, clothing or other belongings indicating that defendant lived in the apartment were recovered during the search. However, on redirect examination, Magallon testified that there were articles of male clothing scattered in the bedroom.

Sergeant Charles Glynn supervised the execution of the warrant and testified that he spoke with defendant on the day in question after he arrived at the police station. After receiving his Miranda rights, defendant stated that he initially found the rifle in the basement apartment when he moved in and then kept it thereafter.

The State entered the certified copy of defendant's prior Wisconsin "felony conviction into evidence.

The defense rested after entering three photographs of the residence at 1319. N. Pulaski into evidence.

The jury ultimately found defendant guilty of two counts of unlawful use of a weapon by a felon, one for the rifle and one for the ammunition. Thereafter, the trial court denied defendant's motion for a new trial.

At the subsequent sentencing hearing, in aggravation, the State argued that defendant should be sentenced to the maximum within the applicable range based upon his flagrant violation of the law and his prior conviction for which he served seven years in a Wisconsin prison. In mitigation, defense counsel argued that defendant was a 64-year-old man who received social security disability payments and deserved the minimum sentence. Defense counsel noted that the central purpose for the warrant was to retrieve drug evidence and none was found in defendant's apartment. Moreover, defendant lacked a criminal history where his sole conviction was for the Wisconsin felony. In allocution, defendant refused to take responsibility for his actions; rather, he averred that there was no evidence that he lived in the apartment or that the rifle was his.

The trial court ultimately sentenced defendant to two concurrent terms of 12 years' imprisonment, one for each count. In its findings, the court announced that it was limited in basing defendant's sentence on mitigating factors because defendant refused to speak candidly to the investigators in order to compose a thorough presentence investigation report. The trial court denied defendant's subsequent motion to reconsider his sentence. This timely appeal followed.

Defendant first contends that the trial court erred in admonishing him regarding the consequences of his refusal to stipulate to his prior felony conviction and subsequently erred in admitting evidence of the prior felony conviction despite defense counsel's desire to stipulate to that fact. The State responds that the trial court did not err in its admonishment or, in the alternative, that defendant has waived review of this argument. The State additionally argues that the trial court could not accept defense counsel's offer to stipulate when defendant refused to agree to that stipulation.

At the outset, we conclude that defendant failed to support his argument that the trial court erred in admonishing him. The only legal citation offered provides the parameters for when a court need not admonish a defendant prior to accepting a stipulation. People v. Phillips, 217 Ill.2d 270, 288, 298 Ill.Dec. 759, 840 N.E.2d 1194 (2005). However, defendant provides no legal support demonstrating that a trial court actually commits error when it does admonish a defendant regarding his stipulation rights. Cf. Phillips, 217 Ill.2d at 283, 298 Ill.Dec. 759, 840 N.E.2d 1194 (error occurs where the defendant is not admonished and the subsequent stipulation is tantamount to a guilty plea).

Assuming, arguendo, that admonishing a defendant when it is not required amounts to error, we agree with the State that defense counsel essentially invited the error when it asked the court to assist in addressing "preliminary matters." See People v. Parker, 223 Ill.2d 494, 508, 308 Ill.Dec. 371, 861 N.E.2d 936 (2006) (a defendant may not request to proceed in one way at trial and then argue on appeal that it was error to proceed that way). The record demonstrates that defense counsel made the court privy to her concerns regarding whether defendant appreciated the seriousness of the charges against him and then asked the court to address defendant's belief that his rights against double jeopardy were being violated. Only then did the court explain the basis of the crime for which he was charged, specifically announcing that his prior felony conviction was an element therein. Thereafter, defense counsel and defendant repeatedly engaged the trial court in a dialogue regarding the proposed stipulation. The court attempted to ensure that defendant understood the concept of a stipulation, especially after defense counsel and defendant's difference of opinion was readily apparent. Moreover, contrary to defendant's recitation of the proceedings, defense counsel never objected to the court's admonishment; rather, defense counsel...