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                              Appellate Court                              Date: 2016.02.18
                                                                           09:30:39 -06'00'




                   People v. Scott, 2015 IL App (1st) 133180



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           LEMAR SCOTT, Defendant-Appellant.



District & No.    First District, Second Division
                  Docket No. 1-13-3180



Filed             December 1, 2015



Decision Under    Appeal from the Circuit Court of Cook County, No. 10-CR-2985; the
Review            Hon. Neil J. Linehan, Judge, presiding.



Judgment          Affirmed in part, vacated in part, and remanded with directions.



Counsel on        Michael J. Pelletier, Alan D. Goldberg, and James J. Morrissey, all of
Appeal            State Appellate Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Mary P. Needham, and Sara McGann, Assistant State’s Attorneys, of
                  counsel), for the People.



Panel             JUSTICE HYMAN delivered the judgment of the court, with opinion.
                  Presiding Justice Pierce and Justice Neville concurred in the judgment
                  and opinion.
                                              OPINION

¶1       Defendant Lemar Scott was convicted in a bench trial of two counts of armed robbery,
     two counts of aggravated discharge of a firearm, and one count of aggravated battery with a
     firearm, and sentenced to an aggregate term of 43 years’ imprisonment. On appeal, Scott
     contends that several of his convictions should be vacated under the one-act, one-crime rule.
     We agree, and vacate three of Scott’s five convictions under the one-act, one-crime rule.
     Scott also contends, and the State rightly agrees, that we remand for a new Krankel hearing
     (People v. Krankel, 102 Ill. 2d 181 (1984)) before a different judge. The trial court had
     invited the State to take an adversarial role in the preliminary inquiry stage of Scott’s claim
     of ineffective assistance of trial counsel, a manner of proceeding that the Illinois Supreme
     Court rebuffed in People v. Jolly, 2014 IL 117142.

¶2                                          BACKGROUND
¶3        The evidence at trial showed that Scott’s codefendant Theodore Smith ordered pizzas for
     delivery. (Smith pled guilty and is not a party to this appeal.) At about midnight, Anthony
     Thorpe, who had delivered pizzas for 14 years, drove to the address with his teenage niece
     Alicia Taylor to deliver the pizzas. Thorpe got out of his gray Buick LeSabre with the pizzas,
     and walked to the curb. Smith, sitting on the front porch, asked Thorpe if he was the “pizza
     delivery guy.” Something about the situation made Thorpe feel nervous, so he handed the
     pizzas to Taylor, who was in the front passenger seat. Just then, Thorpe saw Scott
     approaching him with a bluish-black gun. Scott ordered Thorpe not to move and fired about
     five shots towards him. Thorpe started running down the street, but stopped, “to make sure
     [defendant] didn’t do anything” to Taylor.
¶4        Thorpe tried to distract Scott by telling him he had money, but Scott fired another shot at
     Thorpe and turned to Taylor, telling her to open the car door, which she did. Scott demanded
     money. Taylor replied that she had none. Scott took the pizzas from her and as he was giving
     the pizzas to Smith, Taylor moved into the driver’s seat and tried to start the car. Scott shot at
     Taylor, hitting her in the thigh, after which Scott and Smith ran towards Smith’s house.
¶5        Responding police officers arrested both offenders, recovered two pizza boxes containing
     hot pizzas from inside of Smith’s home, and recovered the gun used in the robbery in an alley
     near where they arrested Scott.
¶6        Regarding the offenses against Thorpe, the trial court found Scott guilty of two counts of
     armed robbery (counts IX and XIII), and one count of aggravated discharge of a firearm
     (count VI). Regarding the offenses against Taylor, the trial court found Scott guilty of four
     counts of armed robbery (counts X-XII, XIV), one count of aggravated discharge of a firearm
     (count V), one count of aggravated battery (count XV), and one count of aggravated battery
     with a firearm (count II).
¶7        Scott, through counsel, filed a motion for new trial, which the trial court denied. Scott
     asked to file a pro se motion for a new trial, which included numerous claims of ineffective
     assistance of trial counsel. The trial court continued the matter, and when it was recalled, the
     trial court had decided to combine the motion for new trial and the Krankel hearing.
¶8        At the hearing, the State called Scott’s trial counsel, an assistant public defender, as a
     witness. The public defender testified that he had several conversations with Scott covering


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       the strengths of Scott’s case and why, as a matter of trial strategy, he decided not to call
       several witnesses. The public defender either denied or rebutted Scott’s claims of ineffective
       assistance of counsel. The trial court then instructed Scott to proceed by himself to
       cross-examine his trial counsel, warning Scott that his questions “can’t be argumentative and
       they can’t be confrontational.” Scott cross-examined the public defender, who repeatedly
       denied Scott’s claims. When Scott attempted to ask the public defender about what his
       investigator found when the investigator interviewed several potential witnesses whom Scott
       had suggested, the State objected and the court told Scott he was “getting far [a]field.” Scott
       responded that he could prove the public defender was a liar, but the court told him to “have
       a seat.” After hearing the testimony and argument, the trial court denied Scott’s pro se
       motion, stating that the record failed to substantiate the claims in his motion for new trial that
       the public defender was ineffective.
¶9         The parties proceeded to sentencing. After hearing arguments in aggravation and
       mitigation, the trial court imposed sentence. With respect to Scott’s convictions involving
       Thorpe, the trial court sentenced Scott to 4 years for aggravated discharge of a firearm (count
       VI), and 28 years for armed robbery during which he personally discharged a firearm (count
       XIII), merging count IX (armed robbery) into count XIII. With respect to Scott’s convictions
       involving Taylor, the court sentenced Scott to 8 years for aggravated battery with a firearm
       (count II), merging count XV (aggravated battery) into count II; 4 years for aggravated
       discharge of a firearm (count V); and 35 years for armed robbery during which he personally
       discharged a firearm that proximately caused great bodily harm to Taylor (count XII),
       merging counts X, XI, and XIV (armed robbery) into count XII. The trial court also found
       that Taylor suffered severe bodily injury during the robbery (she could not walk for two
       years and had fragments of the bullet still inside her). Therefore, Scott’s sentences for the
       armed robbery and aggravated battery with a firearm would run consecutively with all other
       counts to run concurrently for a total sentence of 43 years’ imprisonment.

¶ 10                                           ANALYSIS
¶ 11                               The One-Act, One-Crime Doctrine
¶ 12       Scott argues that several of his convictions must be vacated under the one-act, one-crime
       doctrine. Scott recognizes that he waived this issue because he did not include it in a posttrial
       motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Nevertheless, we will review it under
       the second prong of the plain error doctrine. People v. Artis, 232 Ill. 2d 156, 165-66 (2009).
¶ 13       Scott contends, and the State concedes, that his conviction for the armed robbery of
       Thorpe (count XIII) must be vacated under the one-act, one-crime doctrine because it is
       based on a single act of taking pizza from Taylor, and no other property was taken from
       Thorpe. We agree.
¶ 14       Under the one-act, one-crime doctrine, multiple convictions may not spring from the
       same physical act. People v. Miller, 238 Ill. 2d 161, 165 (2010); People v. King, 66 Ill. 2d
       551, 566 (1977). The one-act, one-crime rule presents a legal question subject to de novo
       review. People v. Almond, 2015 IL 113817, ¶ 47.
¶ 15       A person commits armed robbery when he or she knowingly takes property from the
       person or presence of another by the use of force or by threatening the imminent use of force
       while carrying a firearm, or during the commission of the offense, personally discharges a
       firearm. 720 ILCS 5/18-1, 18-2(a)(2), (a)(3) (West 2010). Scott’s convictions for armed

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       robbery of Thorpe (count XIII) and armed robbery of Taylor (count XII) involve knowingly
       taking pizza from the person or in the presence of Thorpe and Taylor.
¶ 16       Under well-settled Illinois law, multiple armed robbery convictions cannot lie when there
       is a single taking of property, even when multiple individuals are present and threatened. See
       People v. Mack, 105 Ill. 2d 103, 134-36 (1984) (holding defendant could not be convicted of
       two counts of armed robbery where there was but one taking of money), vacated on other
       grounds, 479 U.S. 1074 (1987); People v. Moore, 214 Ill. App. 3d 938, 944-45 (1991)
       (holding robberies of two business establishments which involved two complaining witnesses
       each sufficient to support only two armed robbery convictions); People v. Hunter, 42 Ill.
       App. 3d 947, 951-52 (1976) (defendant may not be convicted of multiple armed robberies
       where defendant robbed cash register in presence of two people and did not take additional
       property from either person). Both parties agree that, as in these cited cases, only a single
       taking of property occurred–the two pizzas from Taylor–resulting in only one act of robbery.
       Therefore Scott’s conviction for armed robbery against Thorpe (count XIII) and sentence (28
       years) must be vacated.
¶ 17       Despite its concession on the armed robbery conviction as to Thorpe (count XIII), the
       State submits that the evidence would support a guilty verdict on the uncharged offense of
       attempted armed robbery of Thorpe as a lesser-included offense of count IX. That count
       charged Scott with armed robbery for knowingly taking pizza from the person or presence of
       Thorpe by using or threatening the imminent use of force while carrying a firearm. The court
       found Scott guilty of count IX but merged it with the now vacated count XIII. The State
       maintains that Scott made a substantial step toward committing armed robbery when he
       threatened the imminent use of force by brandishing a weapon and telling Thorpe not to
       move.
¶ 18       A person commits the offense of attempt when, with the intent to commit a specific
       offense, he or she does any act that constitutes a substantial step toward the commission of
       that offense. 720 ILCS 5/8-4(a) (West 2010). To determine whether an uncharged offense is
       a lesser-included offense of a charged offense, the reviewing court applies the charging
       instrument approach. People v. Kennebrew, 2013 IL 113998, ¶ 32. In applying the charging
       instrument approach, we follow two steps: (1) we first look “to the allegations in the charging
       instrument to see whether the description of the greater offense contains a ‘broad foundation’
       or ‘main outline’ of the lesser offense”; and (2) if the charging instrument does contain a
       broad foundation of the lesser offense, we “examine the evidence adduced at trial to decide
       whether the evidence rationally supports a conviction on the lesser offense.” People v.
       Kolton, 219 Ill. 2d 353, 361 (2006). We apply de novo review to this inquiry. Id.
¶ 19       We find the evidence introduced at trial does not support a conviction for the offense of
       attempted armed robbery. Although Scott pointed a gun at Thorpe and told him not to move,
       Scott never demanded pizza or any other property from Thorpe. Therefore, Scott’s actions
       did not constitute a substantial step toward armed robbery. Moreover, we reiterate that, for
       the same reasons already discussed, Scott cannot be convicted of both armed robbery of
       Taylor and attempted armed robbery of Thorpe where there was only one attempt, albeit a
       successful attempt, to take pizza from Taylor. The fact Scott threatened both Thorpe and
       Taylor does not change this result. See People v. Palmer, 111 Ill. App. 3d 800, 808 (1982)
       (holding only one armed robbery conviction proper where defendant, in single act, took
       property from presence of two people).

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¶ 20       Consequently, we vacate Scott’s armed robbery conviction as to Thorpe (count XIII). As
       to count IX, however, we will not reduce his conviction of armed robbery to the uncharged
       offense of attempted armed robbery. In addition, we accept Scott’s concession in his reply
       brief that his conviction of aggravated discharge of a firearm as to Thorpe (count VI) remains
       unaffected.
¶ 21       Scott next contends, and the State again agrees, that the counts of aggravated battery with
       a firearm and aggravated discharge of a firearm as to Taylor must be vacated under the
       one-act, one-crime rule. The evidence presented at trial demonstrated that Scott fired his gun
       once at Taylor, striking her in the leg, before fleeing with the boxes of pizza. The single act
       of firing at Taylor formed the basis for Scott’s convictions of armed robbery, during which
       he personally discharged a firearm that proximately caused great bodily harm to Taylor
       (count XII), as well as one count of aggravated battery with a firearm for shooting Taylor
       about the body (count II), and one count of aggravated discharge of a firearm at Taylor
       (count V).
¶ 22       As we have already said, multiple convictions for the same physical act are improper.
       Miller, 238 Ill. 2d at 165. Therefore, the three convictions as to Taylor cannot properly exist
       where they were all based on Scott’s single act of firing at her. Under the one-act, one-crime
       rule, a sentence should be imposed on the more serious offense and the convictions on the
       less serious offenses should be vacated. People v. Garcia, 179 Ill. 2d 55, 71 (1997). Both
       parties agree that the Class X offense of armed robbery while personally discharging a
       firearm classifies as the most serious offense. We thus vacate Scott’s convictions and
       sentences for aggravated battery with a firearm (count II) and aggravated discharge of a
       firearm (count V) as to Taylor. Scott’s 35-year sentence for the armed robbery of Taylor
       must stand.

¶ 23                                         The Krankel Hearing
¶ 24        Scott finally contends that this cause must be remanded for a new Krankel hearing before
       a different judge where the State improperly took an adversarial role into the inquiry of
       Scott’s pro se claims of ineffective assistance of trial counsel.
¶ 25        A Krankel inquiry allows the trial court to decide whether to appoint independent counsel
       to argue a defendant’s pro se posttrial ineffective assistance claims. People v. Jolly, 2014 IL
       117142, ¶ 39. A neutral trier of fact initially evaluates the claims at the preliminary inquiry
       without the State’s adversarial participation, creating an objective record for review, so that a
       reviewing court can determine whether the circuit court properly decided that a defendant is
       not entitled to new counsel. Id. In a preliminary Krankel inquiry, the defendant essentially
       acts pro se, which is rather awkward and unsettling because the defendant has to research,
       prepare, and timely file the posttrial petition as well as convince the judge who oversaw the
       trial of the factual basis of his or her claims. And, the defendant must do so relying solely on
       his or her own abilities and aptitude, without the knowledge or skill of criminal law, criminal
       procedure, or rhetoric. The only “break,” if it can so characterized, is that the State’s role, if
       any, in the preliminary Krankel stage must be de minimis. See id. ¶ 38. It is “critical” to the
       integrity of the proceeding that it not become adversarial. Id.
¶ 26        We review de novo whether the court properly conducted the preliminary Krankel
       inquiry. Id. ¶ 28.


                                                   -5-
¶ 27        Scott asserts, and the State agrees, that the State’s participation in the preliminary
       Krankel inquiry created an adversarial situation requiring reversal under Jolly. We also agree.
       After Scott informed the trial court of his points in support of his motion for a new trial, the
       trial court asked the State to respond to the ineffective assistance of counsel claims. The State
       called Scott’s trial attorney as a witness, and Scott cross-examined his own counsel. The trial
       court ultimately denied Scott’s motion. The State’s adversarial participation at the
       preliminary Krankel hearing frustrated Scott’s opportunity for a neutral trier of fact to
       evaluate his claims.
¶ 28        As in Jolly, we remand to a different judge for a new preliminary Krankel inquiry in
       which the State takes a nearly negligible role, if that. Id. ¶ 46.

¶ 29                                         CONCLUSION
¶ 30       To summarize, we vacate Scott’s convictions for the armed robbery of Thorpe (count
       XIII), aggravated battery with a firearm as to Taylor (count II), and aggravated discharge of a
       firearm as to Taylor (count V) under the one-act, one-crime rule; reduce Scott’s aggregate
       sentence to 35 years’ imprisonment because we vacated count II which carried a consecutive
       sentence of 8 years; remand the cause for a new preliminary Krankel hearing before a
       different judge; and otherwise affirm the trial court’s judgment.

¶ 31      Affirmed in part, vacated in part, and remanded with directions.




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