                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Poole, 2012 IL App (4th) 101017




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    JERRY MAURICE POOLE, Defendant-Appellant.



District & No.             Fourth District
                           Docket No. 4-10-1017


Filed                      July 17, 2012


Held                       Defense counsel’s failure to move to sever a charge of unlawful
(Note: This syllabus       possession of a firearm by a felon from charges of aggravated battery with
constitutes no part of     a firearm and aggravated discharge of a firearm did not fall below an
the opinion of the court   objective standard of reasonableness, but the trial court was directed to
but has been prepared      reduce the extended term imposed for the unlawful possession
by the Reporter of         conviction, because that was not the most serious offense of which
Decisions for the          defendant was convicted.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of McLean County, No. 10-CF-417; the
Review                     Hon. Scott Drazewski, Judge, presiding.



Judgment                   Affirmed as modified; cause remanded with directions.
Counsel on                 Michael J. Pelletier, Karen Munoz, and John M. McCarthy, all of State
Appeal                     Appellate Defender’s Office, of Springfield, for appellant.

                           William A. Yoder, State’s Attorney, of Bloomington (Patrick Delfino,
                           Robert J. Biderman, and Thomas R. Dodegge, all of State’s Attorneys
                           Appellate Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE COOK delivered the judgment of the court, with opinion.
                           Justices Steigmann and Appleton concurred in the judgment and opinion.




                                            OPINION

¶1           Defendant, Jerry Maurice Poole, was charged with three offenses: count I, aggravated
        battery with a firearm, a Class X felony (720 ILCS 5/12-4.2(a)(1), (b) (West 2008)); count
        II, aggravated discharge of a firearm, a Class 1 felony (720 ILCS 5/24-1.2(a)(2), (b) (West
        2008)); and count III, unlawful possession of a firearm by a felon, a Class 2 Felony (720
        ILCS 5/24-1.1(a), (b) (West 2008)). Following a September 2010 jury trial, defendant was
        convicted on counts I and III; and in November 2010, the trial court sentenced him to
        concurrent terms of 18 years and 14 years in prison. Defendant appeals, arguing (1) he was
        denied the effective assistance of counsel when his attorney did not move to sever the
        possession-of-a-firearm-by-a-felon charge and (2) the trial court improperly sentenced him
        to an extended term on that charge where it was not the highest class felony for which he was
        convicted. We affirm as modified and remand with directions.

¶2                                       I. BACKGROUND
¶3          Bloomington police officer Brice Stanfield testified that on May 4, 2010, at 3 p.m., he
        saw a fight taking place in the Pop’s Grocery parking lot. As he was getting out of his car,
        an unmarked Camaro, he saw an individual raise a gun. As Stanfield went back to his car for
        cover, he heard a “pop” and saw the muzzle flash of a handgun. He made a call for backup
        and drove toward the “subject that [he] saw fire the handgun.” He stopped about 20 feet
        away, got out of the car, and ordered the suspects to show him their hands. The two suspects
        took off on foot running south on Howard Street. Stanfield pursued the suspects between two
        houses on Monroe Street. A suspect Stanfield knew as Paris Jones came out from between
        the houses and Stanfield secured him. Stanfield told Officers Richard Beoletto and William
        Wright the shooter was still on the loose and pointed in the direction he last saw him
        running.
¶4          Officer Beoletto followed Stanfield’s directions and eventually saw a suspect between


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     a garage and a house on Monroe Street. The person looked like he was trying to hide where
     a metal shed met the house. The suspect, defendant Jerry Poole, was placed into custody.
     Stanfield waited because he heard that the other officers had arrested someone and
     immediately identified defendant as the shooter. Stanfield testified he recognized defendant
     “by facial and by the clothing” he was wearing; “a black T-shirt, dark blue jeans, and black
     ball cap is what our suspect was wearing. I did also mention that he had a mustache.”
¶5       A small firearm was found in the area, under a cement block. Clayton Arnold, a crime
     scene technician involved in collecting the evidence in this case, testified he decided not to
     fingerprint the gun because it was his understanding that Officer Stanfield had seen the
     shooter. Lawrence Johnson testified he had been involved in a confrontation with Paris Jones
     in the parking lot of Pop’s Grocery. At some point, Johnson was shot in the back of his leg
     in the calf. The firearm found in the yard was tested with the cartridge and bullet from the
     shooting. The testing indicated that the bullet and shell casing were fired by the firearm
     found in the yard. Gunshot residue kits were collected from defendant and Paris Jones. Mary
     Wong, an Illinois State Police forensic scientist, testified that neither kit contained gunshot
     residue, but there were reasons why a person would not have gunshot residue on his hands
     even though he had fired a firearm. The parties stipulated that Dr. Brett Keller and Dr.
     Howard Mell examined Lawrence Johnson’s calf wound and determined the bullet
     ricocheted off the ground prior to entering the calf. The stipulation states that “Dr. Mell
     opined that the small caliber handgun actually fired into the ground and the patient may have
     been struck by a ricochet. It is difficult to tell for certain.”

¶6                                      II. ANALYSIS
¶7       Defendant argues that he was denied the effective assistance of counsel when his attorney
     did not move to sever the possession-of-a-firearm-by-a-felon charge, thereby allowing the
     jury to hear evidence on the other charges that he was a convicted felon. Defendant argues
     that evidence that he was a convicted felon greatly prejudiced him on the other charges. The
     State argues we should decline to consider the issue, citing People v. Kunze, 193 Ill. App. 3d
     708, 725-26, 550 N.E.2d 284, 296 (1990) (claims of ineffective assistance of counsel are
     often better made in proceedings for postconviction relief, where a complete record can be
     made). Where the answer to whether counsel’s decision was one of trial strategy is currently
     dehors the record, we will decline to consider it and instead will await defendant’s pursuit
     of such a claim under the Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-8 (West
     2008)). People v. Pelo, 404 Ill. App. 3d 839, 871, 942 N.E.2d 463, 490 (2010). However, we
     conclude we can resolve this case without consideration of any matters outside the record.
     See People v. Weeks, 393 Ill. App. 3d 1004, 1011-12, 914 N.E.2d 1175, 1182 (2009).
¶8       To determine whether defendant was denied his right to effective assistance of counsel,
     we apply the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984).
     First, petitioner must show “counsel’s representation fell below an objective standard of
     reasonableness” (id. at 688), and second, that he was prejudiced such that “there is a
     reasonable probability that, but for counsel’s unprofessional errors, the result of the
     proceeding would have been different” (id. at 694). A defendant’s failure to make the


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       requisite showing of either deficient performance or sufficient prejudice defeats his
       ineffectiveness claim. People v. Palmer, 162 Ill. 2d 465, 475, 643 N.E.2d 797, 801 (1994).

¶9                                   A. Counsel’s Performance
¶ 10       To satisfy the first prong of the Strickland test, a defendant must show that his counsel’s
       performance fell below an objective standard of reasonableness, as measured by prevailing
       norms. People v. Smith, 195 Ill. 2d 179, 188, 745 N.E.2d 1194, 1200 (2000); People v.
       Wright, 2012 IL App (1st) 073106, ¶ 105. In considering whether counsel’s performance
       was deficient, a court must indulge a strong presumption that the challenged action, or
       inaction, was the result of sound trial strategy. Smith, 195 Ill. 2d at 188, 745 N.E.2d at 1200.
       Generally, a defense decision not to seek a severance, although it may prove unwise in
       hindsight, is regarded as a matter of trial strategy. People v. Turner, 36 Ill. App. 3d 77, 81,
       343 N.E.2d 267, 270 (1976). A major disadvantage of a severance is that it gives the State
       two bites at the apple. An evidentiary deficiency in the first case can perhaps be cured in the
       second. “Perhaps trial counsel felt that it made sense to try for an acquittal of both counts in
       one proceeding, thinking that the impact of the additional conviction would not be
       significant.” People v. Gapski, 283 Ill. App. 3d 937, 943, 670 N.E.2d 1116, 1120 (1996) (a
       case where one felony would have been admissible even if the two counts were severed).
       Defendant cites People v. Edwards, 63 Ill. 2d 134, 140, 345 N.E.2d 496, 499 (1976), where
       the Illinois Supreme Court held that an unlawful-use-of-weapons charge should have been
       severed from an armed-robbery charge; there was a strong probability that defendant would
       be prejudiced in his defense of the armed-robbery count since the weapons count required
       the State to prove a previous burglary conviction. In Edwards, however, the defendant had
       filed a motion for severance; the case was not an ineffective-assistance-of-counsel case. In
       this case, defendant has failed to show his counsel’s performance fell below an objective
       standard of reasonableness. A potential trial strategy is apparent here, even if counsel should
       choose to deny it.
¶ 11       Because we have determined that defendant has not satisfied the first Strickland prong,
       we need not address the second prong, whether defendant was prejudiced by counsel’s
       allegedly deficient performance.

¶ 12                               B. Extended-Term Sentencing
¶ 13       Defendant was found guilty of the Class X offense of aggravated battery with a firearm
       and the Class 2 offense of unlawful possession of a firearm by a felon. The trial court
       sentenced him to 18 years’ imprisonment on the Class X offense and a concurrent extended
       term of 14 years’ imprisonment on the Class 2 felony. Defendant argues that under the
       extended-term sentencing statute (730 ILCS 5/5-8-2(a) (West 2010)), an extended-term
       sentence may be imposed only for the most serious class of offense committed during a
       single course of conduct. The extended-term sentencing statute provides:
           “A judge shall not sentence an offender to a term of imprisonment in excess of the
           maximum sentence authorized by *** Article 4.5 of Chapter V for an offense or offenses
           within the class of the most serious offense of which the offender was convicted unless

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            the factors in aggravation set forth in Section 5-5-3.2 or clause (a)(1)(b) of Section 5-8-1
            were found to be present.” (Emphasis added.) 730 ILCS 5/5-8-2(a) (West 2010).
       The supreme court has interpreted section 5-8-2(a) to mean that a defendant who is convicted
       of multiple offenses may be sentenced to an extended-term sentence only on those offenses
       that are within the most serious class. People v. Bell, 196 Ill. 2d 343, 350, 751 N.E.2d 1143,
       1146 (2001). The fact that an offense is the only one for which the defendant could receive
       an extended-term sentence does not allow an extended-term sentence on that offense where
       it is not the most serious offense. See People v. Stevenson, 204 Ill. App. 3d 342, 350, 562
       N.E.2d 330, 335-36 (1990).
¶ 14        The State does not contest that defendant was improperly sentenced to an extended-term
       sentence on the unlawful-possession-of-a-firearm charge, given the supreme court’s holding
       in Bell. Although defendant did not file a posttrial motion, a sentence that is not authorized
       by statute is void, and a void judgment is not subject to forfeiture. People v. Thompson, 209
       Ill. 2d 19, 26, 805 N.E.2d 1200, 1204 (2004). We accept the State’s concession.

¶ 15                                    III. CONCLUSION
¶ 16       We affirm the trial court’s judgment, but we remand with directions that the trial court
       reduce defendant’s sentence for unlawful possession of a firearm by a felon from 14 years
       to the Class 2 maximum nonextended term of 7 years. As the State successfully defended a
       portion of the judgment, we award it its $50 statutory assessment against defendant as costs
       of this appeal.

¶ 17       Affirmed as modified; cause remanded with directions.




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