People v. Brown, 2018 IL App (3d) 150070-B (July). Episode 519 (Duration 5:48)

UUW Felon does not merge with armed violence predicated on drug possession.

Gist

The issue on appeal is whether the trial court’s sentencing determination violated one-act, one-crime principles.

Issue

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.

Sentence

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 drug offense merged into the armed violence.

Arrested With Drugs

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 watch pocket in Brown’s jeans.

Same Physical Act

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.

One-Act, One-Crime Principles

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. 

Second, where the conduct consisted of multiple acts, the court must determine whether any of the offenses are lesser-included offenses. 

People v. Coats

See People v. Coats, 2018 IL 121926 (January). Episode 466 (Duration 7:24).

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.

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.” Coats, 2018 IL 121926, ¶¶ 15, 27. But the drugs is a different thing.

Analysis

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

We find that Brown’s acts of armed violence based on drug possession and possession of a weapon by a felon are separate acts.  Although possession of a handgun was a common act shared by both offenses, the armed violence conviction included the separate act of drug possession.

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)).

Not A Lesser Included

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 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).

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.

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.

Holding

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.