                            NO. 4-02-0967       Filed: 3/28/06

                       IN THE APPELLATE COURT

                             OF ILLINOIS

                           FOURTH DISTRICT

 THE PEOPLE OF THE STATE OF ILLINOIS,   ) Appeal from
           Plaintiff-Appellee,          ) Circuit Court of
           v.                           ) Champaign County
 SHURESE YVETTE BAILEY,                 ) No. 01CF749
           Defendant-Appellant.         )
                                        ) Honorable
                                        ) John G. Townsend,
                                        ) Judge Presiding.
_________________________________________________________________

            JUSTICE MYERSCOUGH delivered the opinion of the
 court:
           On October 17, 2002, a jury convicted defendant, Shurese

Yvette Bailey, of felony first degree murder (720 ILCS 5/9-1(a)(3)

(West 2000)), concealment of a homicidal death (720 ILCS 5/9-3.1(a)

(West 2000)), and robbery (720 ILCS 5/18-1(a) (West 2000)).      The

trial court sentenced her to 30 years' imprisonment for murder, 5

years' imprisonment for concealment, and 5 years' imprisonment for

robbery.   Defendant appeals, arguing (1) her conviction and sen-

tence for robbery must be vacated under the one-act, one-crime

rule; (2) counsel was ineffective for filing a perfunctory

postsentencing motion that failed to assert or preserve any sen-

tencing issues for appeal; (3) her sentence should be reduced

because it is excessively disparate to that of her more culpable

codefendants; and (4) she is owed a day of sentence credit.      We

affirm as modified.

                            I. BACKGROUND

           In April 2001, Danny Nelson's body was found in a drain-
age ditch on Windsor Road in Champaign.                    The State charged defen-

dant, Jamie Boyd, Misty Dawn Marie Moreman Blandin, and Nathan

Adams with various offenses related to Nelson's murder.                            Specifically,

defendant was indicted on 14 counts of first degree murder, concealment of a homicidal

death, and two counts of armed robbery. The facts of the crime are set out

in detail in our decision in People v. Adams, No. 4-02-0684 (May

14, 2004) (unpublished order under Supreme Court Rule 23).

               As part of an agreement with the State, defendant (1) provided police with a

statement concerning her knowledge of Nelson's death, (2) agreed to testify against Boyd,

Blandin, and Adams, and (3) agreed to plead guilty to first degree murder. In exchange,

the State would recommend 20 years' imprisonment. Defendant testified for the State at

Adams' trial, and Adams was convicted of first degree murder, concealment of a homicidal

death, and robbery. The trial court sentenced him to consecutive terms of 60 years for the

murder, 5 years for the concealment, and 30 years for the robbery. This court affirmed

Adams' conviction and sentence.

               Defendant also testified for the State at Boyd's trial. After the jury convicted

Boyd of concealment and robbery but hung on the murder charge, Boyd entered a

negotiated guilty plea in which she received 35 years for murder and 5 years for

concealment.

               Blandin pleaded guilty to first degree murder and was sentenced to 30 years'

imprisonment.

               Defendant did not plead guilty as per her agreement with the State and

proceeded to a jury trial. Following the trial, the jury found defendant guilty of felony first

degree murder, robbery, and concealment of a homicidal death, the only three charges on

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which the State proceeded to trial.

              Following denial of defendant's motion for a new trial, the trial court

proceeded to a sentencing hearing. In mitigation, defendant presented a stipulation that, if

called, Lieutenant Veda Barrett, a correctional officer at the Champaign County Correc-

tional Center, would testify that during her period of incarceration, defendant had been a

cooperative and peaceful inmate. Defendant also identified various family members who

were present at sentencing in support of her. As a third piece of mitigation evidence,

defendant presented a letter from defendant's family expressing their regrets regarding

Nelson's murder.

              Following arguments and a statement from defendant, the trial court stated

that it had considered the presentence investigation report, which indicated both

misdemeanor and felony retail-theft convictions, a felony resisting-a-peace-officer

conviction, and a federal conviction for theft of mail. The court stated it had considered in

mitigation defendant's assistance to the State in the prosecution of her codefendants. The

court then sentenced defendant as stated, granting her 557 days of sentence credit. That

same day, counsel filed a motion to reduce sentence, which the court denied. This appeal

followed.

                                       II. ANALYSIS

                             A. Ineffective Assistance

                                         1. Per Se
              On appeal, defendant claims she received ineffective

assistance of counsel in that counsel filed a perfunctory

postsentencing motion that failed to assert or preserve any sen-

tencing issues for appeal.


                                           - 3 -
              Where "counsel entirely fails to subject the prosecution's case to meaningful

adversarial testing, then there has been a denial of [s]ixth [a]mendment rights that makes

the adversary process itself presumptively unreliable." United States v. Cronic, 466 U.S.

648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047 (1984). We will not presume

prejudice unless the attorney completely failed, "throughout" the proceeding "as a whole,"

to oppose the prosecution's case. See Bell v. Cone, 535 U.S. 685, 697, 152 L. Ed. 2d

914, 928, 122 S. Ct. 1843, 1851 (2002). It is not enough that the attorney "failed to do so

at specific points." Bell, 535 U.S. at 697, 152 L. Ed. 2d at 928, 122 S. Ct. at 1851.

              Here, defendant argues counsel's perfunctory motion

amounted to no representation at all and prejudice should be

presumed.      On appeal, defendant raises three sentencing issues that

she claims were waived because of counsel's inadequate representa-

tion:    (1) her sentence was disparate to that of her more culpable

codefendants; (2) her conviction and sentence for robbery violate

the one-act, one-crime rule; and (3) she is entitled to an extra

day of sentence credit.

              We agree that a motion to reconsider sentence is a

critical stage of the criminal proceeding at which a defendant is

entitled to counsel.          People v. Williams, 358 Ill. App. 3d 1098,
1105, 833 N.E.2d 10, 16 (2005); People v. Brasseaux, 254 Ill. App.

3d 283, 288, 660 N.E.2d 1321, 1324-25 (1996).                     However, we decline

to presume prejudice in a situation where the filing of the motion

is a matter of discretion.             Clearly, general failure to file a

motion to reconsider sentence does not per se amount to ineffective

assistance of counsel, as some basis must exist to make the motion.


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 Accordingly, counsel's failure to raise the disparate sentence

issue constitutes ineffective assistance only where such failure

prejudiced defendant.

                          2. Performance and Prejudice

             Defendant argues that because her sentence was exces-

sively disparate to that of her more culpable codefendants, it

should be reduced.         Defendant did not raise this challenge to her

sentence by written motion filed in the trial court and has waived

it.   730 ILCS 5/5-8-1(c) (West 2004); People v. Reed, 177 Ill. 2d

389, 395, 686 N.E.2d 584, 586-87 (1997).                  However, we will consider

this argument in the context of her ineffective-assistance claim.

             A defendant establishes ineffective assistance of counsel

by showing (1) his counsel's representation fell below an objective

standard of reasonableness and (2) but for counsel's shortcomings,

the result of the proceeding would have been different.                        Strickland
v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052

(1984); People v. Albanese, 104 Ill. 2d 504, 525, 473 N.E.2d 1246,

1255 (1984). A defendant must overcome the strong presumption that

the challenged action or inaction of counsel was the product of

sound trial strategy and not incompetence.                   People v. Coleman, 183

Ill. 2d 366, 397, 701 N.E.2d 1063, 1079 (1998).

             It is not the function of a reviewing court to serve as a sentencing court, and,

absent an abuse of discretion, a sentence will not be disturbed upon review. People v.

Davis, 319 Ill. App. 3d 572, 577-78, 746 N.E.2d 758, 763 (2001). However, an

arbitrary and unreasonable disparity between the sentences of

similarly situated codefendants is impermissible.                      People v.


                                         - 5 -
Caballero, 179 Ill. 2d 205, 216, 688 N.E.2d 658, 663 (1997).                           The

mere disparity by itself does not establish a violation of

fundamental fairness.          Caballero, 179 Ill. 2d at 216, 688 N.E.2d at

663.    A disparity of sentences will not be disturbed where

warranted by differences in the nature and extent of the concerned

defendant's participation in the crime.                 Caballero, 179 Ill. 2d at

216, 688 N.E.2d at 663.          Additionally, a plea of guilty is a relevant mitigating

factor. People v. Banks, 241 Ill. App. 3d 966, 984, 609 N.E.2d 864, 876 (1993).

             Following a jury trial, codefendant Adams was sentenced

to consecutive terms of 60 years for murder, 5 years for concealment, and 30 years for

robbery, a total of 95 years' imprisonment. The record indicates codefendant

Boyd was sentenced pursuant to a negotiated guilty plea following a mistrial on the

murder charge to 35 years for murder and 5 years for concealment.         Codefendant

Blandin pleaded guilty to first degree murder and received a

sentence of 30 years' imprisonment.

             Here, defendant's sentence for first degree murder was

less than codefendant Adams' and codefendant Boyd's and identical

to that of Blandin, who entered a guilty plea.                    All received five

years for concealment, except for Blandin because that charge was

dismissed per plea.         In sum, defendant's total sentence was less

than that of two of her three codefendants.                   This does not consti-

tute a sentencing disparity.

             Additionally, defendant's sentences are within the

statutory ranges, as first degree murder is punishable by between

20 and 60 years' imprisonment (730 ILCS 5/5-8-1(a)(1)(a) (West

2004)) and concealment, a Class 3 felony, is punishable by between

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2 and 5 years' imprisonment (730 ILCS 5/5-8-1(a)(6) (West 2004)).

In fact, her 30-year sentence for murder is at the low end of the

available sentencing range.

          Because defendant's sentence was not impermissibly

disparate to that of her codefendants, she was not prejudiced by

counsel's failure to raise the issue in a motion to reconsider

sentence, and such failure did not constitute ineffective assis-

tance of counsel.

                     B. Other Sentencing Issues

                       1. One Act, One Crime
           One-act, one-crime and sentence-credit issues are fre-

quently not raised in the trial court.     See People v. James, 362

Ill. App. 3d 250, 255-56, 839 N.E.2d 1135, 1140 (2005) (one act,

one crime); People v. Hestand, 362 Ill. App. 3d 272, 277, 838

N.E.2d 318, 322-23 (2005) (one act, one crime); People v. Harvey,

211 Ill. 2d 368, 388-89, 813 N.E.2d 181, 194 (2004) (one act, one

crime); People v. White, 311 Ill. App. 3d 374, 384, 724 N.E.2d

572, 580 (2000) (one act, one crime); People v. Donnelly, 226

Ill. App. 3d 771, 778, 589 N.E.2d 975, 980 (1992) (sentence

credit); People v. Reed, 361 Ill. App. 3d 995, 1004, 838 N.E.2d

328, 335 (2005) (sentence credit); People v. Kelly, 361 Ill. App.
3d 515, 527, 838 N.E.2d 236, 247 (2005) (sentence credit); People

v. Peacock, 359 Ill. App. 3d 326, 340, 833 N.E.2d 396, 408 (2005)

(sentence credit).   Defendant argues her conviction and sentence

for robbery violate the one-act, one-crime rule.     Specifically,

she claims that robbery served as the predicate offense for her

felony murder conviction.     The State concedes the issue.

                                - 7 -
              While defendant did not raise this issue in a

postsentencing motion, we will nevertheless address the lesser-

included claim because the conviction and sentence for robbery

affect substantial rights.               People v. Hicks, 181 Ill. 2d 541, 544-

45, 693 N.E.2d 373, 375 (1998).                   Multiple convictions are improper

if they are based on lesser-included offenses.                     People v. King, 66

Ill. 2d 551, 566, 363 N.E.2d 838, 844 (1977).                     In People v. Smith,

183 Ill. 2d 425, 432, 701 N.E.2d 1097, 1100 (1998), the defendant

was convicted of felony murder predicated on armed robbery and

armed robbery.         The court found that armed robbery was a lesser-

included offense of felony murder in that case and could not

support a separate conviction and sentence.

              Here, defendant was charged with felony murder in that she "or

one for whose conduct she is legally responsible, without legal justification, while

committing a forcible felony, Robbery *** [citation], repeatedly struck Danny Nelson about

the head and face, choked Danny Nelson, and cut Danny Nelson's throat with a knife, and

thereby caused the death of Danny Nelson *** [citation]."    She was charged with

robbery in that she "or one for whose conduct she is legally responsible, knowingly

took property, being United States Currency and a wallet, from the person of Danny

Nelson, by the use of force *** [citation]."    Here, defendant was convicted of

felony murder and robbery.               She was sentenced to concurrent terms

of 30 years' imprisonment for felony murder and 5 years'

imprisonment for robbery.              Because the robbery was a lesser-

included offense of felony murder, it cannot support a separate

conviction and sentence.              See People v. Washington, 272 Ill. App.


                                               - 8 -
3d 913, 919, 651 N.E.2d 625, 630 (1995) (conviction and sentence

for aggravated arson vacated where aggravated arson was predicate

offense for felony murder conviction); People v. Coady, 156 Ill. 2d

531, 537, 622 N.E.2d 798, 801 (1993) (conviction and sentence for

armed robbery were improper where armed robbery was predicate

offense for felony murder conviction); People v. Martinez, 342 Ill.

App. 3d 849, 862, 795 N.E.2d 870, 881 (2003) (conviction and

sentence for home invasion vacated where home invasion was predi-

cate offense for felony murder conviction).                    Accordingly, we vacate

defendant's conviction and sentence for robbery.

                                2. Presentence Credit
              Defendant next argues she is entitled to an additional

day of sentence credit.            See 730 ILCS 5/5-8-7(b) (West 2004).      The State

agrees.     While defendant did not raise this issue in the trial

court, the normal rules of forfeiture do not apply to sentence-

credit issues, and defendant may raise it for the first time on

appeal.     People v. Woodard, 175 Ill. 2d 435, 457, 677 N.E.2d 935,

945-46 (1997).

              Defendant was in pretrial custody from May 4, 2001, until
her sentencing on November 12, 2002--a total of 558 days.                         However,

defendant was given credit for 557 days.                   Because this court has authority

to directly order the clerk of the circuit court to make the necessary corrections, remand to

the trial judge is unnecessary. See 134 Ill. 2d R. 615(b)(1); People v. Hernandez, 345 Ill.

App. 3d 163, 171, 803 N.E.2d 577, 583 (2004), appeal denied, 213 Ill. 2d 567, 829 N.E.2d

791 (2005).

                                    III. CONCLUSION

                                          - 9 -
          For the reasons stated, we affirm the trial court's

judgment as modified.

          Affirmed as modified.

          McCULLOUGH, J., concurs.

          KNECHT, J., specially concurs in part and dissents in

part.




          JUSTICE KNECHT, specially concurring in part and dissent-

ing in part:

          I concur except as to the postsentencing motion.   The

motion to reduce sentence in this case is meaningless.   Defendant

                             - 10 -
was denied the effective assistance of counsel at the

postsentencing stage of her trial.     Counsel missed two viable

issues and appears to have given no consideration to any issues

because the motion was prepared the same day as the sentencing

hearing--whether before or after the hearing we do not know.       While

Rule 604(d) does not apply here, the reasoning of People v. Little,

337 Ill. App. 3d 619, 786 N.E.2d 636 (2003), is applicable.

          All defendants deserve a measure of respect and attention

from their counsel lest they believe--wrongly, I hope--that we are

on an assembly line.   Caseload and busy calendars are no justifica-

tion for filing such a motion.

          I am not mollified because the majority has done a more

thorough job than trial counsel and provided defendant some relief.

 Counsel should not manufacture issues that are frivolous, but

something more meaningful than what occurred here is necessary to

fulfill the professional obligation of counsel.

          The denial of the motion to reconsider or reduce sentence

ought be reversed and the case remanded so a new motion can be

filed and a meaningful hearing conducted.




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