People v. McFadden

• Decision Date: 04 February 2014
• Docket Number: No. 1–10–2939.,1–10–2939.
• Citation: 2014 IL App (1st) 102939,8 N.E.3d 429,380 Ill.Dec. 259
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Onaffia McFADDEN, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2014 IL App (1st) 102939

8 N.E.3d 429

380 Ill.Dec. 259

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Onaffia McFADDEN, Defendant–Appellant.

No. 1–10–2939.

Appellate Court of Illinois,

First District, Second Division.

Nov. 30, 2012.

Rehearing Denied Jan. 30, 2014.

Modified upon Denial of Rehearing Feb. 4, 2014.

Recognized as Unconstitutional

S.H.A. 720 ILCS 5/24–1.6(a)(1), (a)(3)(A), (d)

Prior Version Recognized as Unconstitutional

S.H.A. 720 ILCS 5/18–2(b)

Michael J. Pelletier, Alan D. Goldberg, and Pamela Rubeo, all of State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Carol L. Gaines, Annette Collins, and Kathryn A. Schierl, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice PIERCE delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial in the circuit court of Cook County, the trial judge found defendant Onaffia McFadden guilty of three armed robberies while armed with a firearm (720 ILCS 5/18–2(a)(2) (West 2008)) and two counts of unlawful possession or use of a weapon (UUW) by a felon (720 ILCS 5/24–1.1(a) (West 2008)). The trial judge sentenced defendant to 29 years in prison on each of the armed robbery convictions, including a 15–year enhancement for carrying a firearm pursuant to section 18–2(b) of the Criminal Code of 1961 (Code) (720 ILCS 5/18–2(b) (West 2008)). The trial judge also sentenced defendant to 10 years in prison on each of the convictions for UUW by a felon. All of the sentences were ordered to be served concurrently.

¶ 2 On appeal, defendant contends that: (1) the 15–year statutory enhancement of his armed robbery sentences is unconstitutional; (2) his sentence is otherwise excessive; (3) one of his convictions for UUW by a felon violates the one-act, one-crime rule; and (4) the mittimus must be corrected to remove an erroneous conviction for aggravated unlawful use of a weapon (AUUW). For the foregoing reasons, we affirm defendant's convictions and sentences for armed robbery, vacate defendant's convictions for UUW by a felon, and correct the mittimus.

¶ 3 BACKGROUND

¶ 4 An explanation of the procedural posture of this case is important where the original opinion in this case was filed more than a year ago. In People v. McFadden, 2012 IL App (1st) 102939, 2012 WL 6028631, which we are withdrawing contemporaneous with the filing of this opinion, Justice Steele authored an opinion vacating the 15–year enhanced portion of defendant's armed robbery sentences, vacating one of his convictions for UUW by a felon, correcting the mittimus, and remanding the case for resentencing. Justice Steele retired shortly after filing that opinion. The State then filed a timely petition for rehearing on January 11, 2013. Defendant filed an answer to the State's petition for rehearing on December 12, 2013, and the State filed a reply on December 27, 2013. In separate orders filed contemporaneously, we deny the State's petition for rehearing and withdraw the previous opinion filed in this case.

¶ 5 The record on appeal discloses the following facts. On March 5, 2008, defendant was indicted in case number 08 CR 4591 for the armed robbery of Ronald Pitts and Jasmine Stephens, as well as for AUUW and UUW. Defendant was also charged in case number 08 CR 4592 for the armed robbery of Henry Muldrow, as well as AUUW and UUW. In case number 08 CR 3647, defendant was indicted for the armed robbery of Iris Talley, in addition to AUUW and UUW.

¶ 6 Prior to trial, and over defense counsel's objection, the State successfully moved to join the Muldrow and Talley cases, arguing that they involved “essentially one crime spree.” The State later moved for joinder of all three cases, again over the defense's objection, arguing that they were part of the same comprehensive transaction. The trial court granted the motion, on the grounds that the offenses were similar and occurred relatively close in time and location, the same weapon was alleged to have been involved in all three cases, and the proceeds from the crimes were allegedly found at the same time in a vehicle with defendant.

¶ 7 The case proceeded to a bench trial. Pitts testified that shortly after midnight on January 28, 2008, he and Stephens were standing at a bus stop at 7900 South Princeton Avenue when two African–American males approached them. Pitts stated that one of the men, whom Pitts identified in court as defendant, held a revolver to his neck and took his telephone, wallet, and money. Pitts further testified that defendant also took Stephens's telephone. After defendant left, Pitts flagged down a police car, and he and Stephens reported the offense to the police.

¶ 8 Moreover, Pitts testified that he was contacted by the police the next day and identified defendant in a lineup, as well as his stolen telephone, wallet and money. At trial, Pitts identified defendant in a photograph of the lineup. He also identified the gun used during the robbery in a photograph shown as an exhibit at trial.

¶ 9 Stephens did not testify at trial.

¶ 10 Muldrow testified that in the late evening of January 28, 2008, he was looking for his dog in an alley near his home at 6840 South Wabash Avenue when two African–American males approached him. Muldrow stated that one of the men, whom he later identified as Defendant, had his hand in his right pocket. Muldrow further testified that defendant pulled a gun out of that pocket and put the barrel to Muldrow's chest. According to Muldrow, defendant asked for money and Muldrow responded that he did not think he had any. Muldrow stated that defendant searched him and, upon finding $4 or $5 dollars, said “I could have shot you for that.” In addition to the money found on Muldrow, defendant also took Muldrow's telephone. After the men left, Muldrow went inside and telephoned the police.

¶ 11 Approximately 15 minutes later, the police telephoned Muldrow and brought him to the police station, where he identified defendant in a lineup. Muldrow also identified the telephone and currency taken from him.

¶ 12 Chicago police officer Anthony Bruno testified that shortly after midnight on January 29, 2008, he and his partner were in an unmarked police car near 6800 South Wabash Avenue when they were flagged down by Talley. Officer Bruno's partner, Andrew Janik, testified that Talley said that he was robbed. After speaking to Talley, the officers curbed a beige Chevy Cobalt near 319 East Marquette Road. The police commanded the driver and passenger to show their hands. Officer Bruno testified that the driver, Herman Climons, showed his hands, while the passenger, defendant, leaned forward and made movements toward the glove box. Officer Bruno further testified that he saw the glove box open, revealing a revolver inside. Officer Bruno handcuffed defendant, while his partner removed Climons from the automobile.

¶ 13 Moreover, Officer Bruno testified that police brought Talley to the scene, whereupon Talley identified Defendant, but not Climons. Officer Bruno found several telephones, a wallet, a videogame and cash in Defendant's pockets. Officer Bruno also retrieved the revolver from the glove box, discovering it was loaded with six live rounds. Talley did not testify at trial.

¶ 14 Chicago police detective Henry Barsch testified that Muldrow and Pitts identified defendant in lineups (Muldrow failed to identify Climons). Detective Barsch also testified that he and Detective Matthew Weber spoke to defendant, who indicated that he wanted to speak to an assistant State's Attorney. In stipulated testimony from Detective Weber, he stated that the police asked defendant whether he wanted to give a written statement.

¶ 15 Assistant State's Attorney (ASA) Maureen Renno testified that, in the presence of the detectives, defendant gave a written statement inculpating himself in the armed robbery of Pitts and Stephens.

¶ 16 The parties stipulated that defendant had a prior AUUW conviction.

¶ 17 Following the close of the State's case, the trial judge granted the defense motion for a directed verdict in the Talley case. Following the close of evidence, the State referred to defendant's “crime spree” and urged the trial judge to find defendant guilty of the “gun charges in this case” in closing argument.

¶ 18 The trial judge, after reviewing the evidence, found defendant guilty of the armed robberies of Pitts, Stephens and Muldrow. In the Pitts and Stephens case, the trial judge found defendant guilty of one count of UUW by a felon. In the Muldrow case, the trial judge found defendant guilty of one count of UUW by a felon.

¶ 19 Defendant filed a motion for new trial, which the trial court denied on August 20, 2010, before proceeding to a sentencing hearing. After hearing evidence in aggravation and mitigation, the trial judge sentenced defendant to 29 years in prison on each of the three armed robbery convictions, including a 15–year statutory enhancement for carrying a firearm pursuant to section 18–2(b) of the Code (720 ILCS 5/18–2(b) (West 2008)). The trial judge also sentenced defendant to 10 years in prison on both of the convictions for UUW by a felon. The trial judge ordered the sentences to run concurrently.

¶ 20 On September 3, 2010, defendant filed a motion to reconsider his sentence. The trial judge denied the motion on the same day. On September 17, 2010, Defendant filed a timely notice of appeal.

¶ 21 DISCUSSION

¶ 22 I. The One–Act, One–Crime Rule

¶ 23 As a threshold matter, we consider defendant's argument that his two convictions for UUW by felon must be vacated under the one-act, one-crime rule set forth in People v. King, 66 Ill.2d 551, 566, 6 Ill.Dec. 891, 363 N.E.2d 838 (1977). Defendant concedes that he forfeited review of the issue by failing to object at trial and failing to include the issue in a posttrial motion. People v. Enoch, 122 Ill.2d 176, 187, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988). However, ...