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                              Appellate Court                           Date: 2017.09.27
                                                                        12:28:03 -05'00'




                   People v. Brown, 2017 IL App (3d) 150070



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



District & No.    Third District
                  Docket No. 3-15-0070



Filed             June 20, 2017



Decision Under    Appeal from the Circuit Court of Peoria County, No. 13-CF-300; the
Review            Hon. David A. Brown, Judge, presiding.



Judgment          Affirmed in part and vacated in part.


Counsel on        Michael J. Pelletier, Peter A. Carusona, and Jay Wiegman, of State
Appeal            Appellate Defender’s Office, of Ottawa, for appellant.

                  Jerry Brady, State’s Attorney, of Peoria (Patrick Delfino, Lawrence
                  M. Bauer, and Jasmine Morton, of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE O’BRIEN delivered the judgment of the court, with
                  opinion.
                  Presiding Justice Holdridge and Justice Wright concurred in the
                  judgment and opinion.
                                             OPINION

¶1       Defendant Dieuseul Brown was convicted after a bench trial of armed violence, unlawful
     possession of a weapon by a felon, and unlawful possession of a controlled substance. The trial
     court sentenced him to an 18-year term on the armed violence count and an 8-year term on the
     weapon charge and found the unlawful possession of a controlled substance conviction merged
     with the other judgments. Brown appealed, challenging his sentences on one-act, one-crime
     principles. We vacate Brown’s conviction for unlawful possession of a weapon by a felon.

¶2                                             FACTS
¶3       Defendant Dieuseul Brown was charged with armed violence (count I), unlawful
     possession of a weapon by a felon (count II), and unlawful possession of a controlled
     substance, cocaine (count III). Count I alleged that Brown committed armed violence by
     committing unlawful possession of a controlled substance while armed with a handgun. Count
     II alleged Brown committed unlawful possession of a weapon by a felon by possessing a
     firearm after having been previously convicted of a felony. Count III alleged Brown possessed
     less than 15 grams of cocaine.
¶4       Brown moved to quash the indictment, pointing to the inconsistencies in a detective’s
     grand jury testimony that the cocaine was discovered on Brown when he was arrested.
     Discovery revealed that the drugs were not found until several hours after Brown’s arrest when
     he was searched again at the police station prior to transport to the county jail. The State
     reindicted Brown and corrected the misstatements to the grand jury. In the supplemental
     indictment, the armed violence count became count IV and the cocaine possession charge
     became count V. The trial court denied Brown’s motion to quash.
¶5       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 Brown’s watch pocket in his jeans.
¶6       On the State’s motion, the trial court admitted portions of the transcripts from Brown’s
     murder trial where he admitted that he was a drug dealer, that he owned the gun discovered on
     his person, and that he kept a gun on him at all times. Also admitted into evidence was a
     certified copy of Brown’s prior conviction.
¶7       The defense presented evidence that a cell phone that presumably belonged to Brown was
     found outside the interview room at the police station. The parties stipulated to descriptions of
     the physical layout of the police station and a timeline of Brown’s arrival, interview, and
     departure. Brown argued in closing arguments that the police searches were sloppy and that he
     could have found the cocaine at the police station. The State argued that it proved Brown
     possessed both the gun and the cocaine simultaneously and that the drugs were not discovered
     in the earlier searches because the package was small and soft and the police were looking for
     weapons.
¶8       The trial court found that Brown was proved guilty beyond a reasonable doubt of all three
     counts, that he possessed the cocaine and gun at the same time, and that it could be reasonably


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       inferred that Brown did not find the cocaine at the police station. Brown moved for a new trial,
       which was heard and denied.
¶9         A sentencing hearing took place. The State sought a 44-year sentence and agreed that the
       unlawful possession of a controlled substance conviction would merge with the other
       judgments. It argued that the unlawful possession of a weapon by a felon would not merge
       because it has the “separate element being the felony conviction which would be the separate
       act.” Brown agreed that the weapon conviction would not merge with the armed violence
       conviction because it was not a lesser included offense and sought concurrent sentences.
¶ 10       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 trial court merged the conviction for
       unlawful possession of a controlled substance into the other judgments. Brown filed a motion
       to reconsider his sentence, which was heard and granted, with the trial court finding Brown
       was eligible for day-for-day good time credit. Brown appealed.

¶ 11                                             ANALYSIS
¶ 12       The issue on appeal is whether the trial court’s sentencing determination violated one-act,
       one-crime principles. 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.
¶ 13       Courts employ a two-step analysis in applying one-act, one-crime principles. 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. Id. Second, where the conduct
       consisted of multiple acts, the court must determine whether any of the offenses are
       lesser-included offenses. Id. This court reviews whether a conviction violates one-act,
       one-crime principles de novo. People v. Boyd, 307 Ill. App. 3d 991, 998 (1999).
¶ 14       We must first decide whether Brown’s conduct constituted a single act or multiple acts. In
       the Second District case of People v. Williams, 302 Ill. App. 3d 975, 976 (1999), the defendant
       was convicted of armed violence based on possession of a controlled substance, unlawful
       possession of a weapon by a felon, and unlawful use of a weapon. The charges arose from a
       traffic stop where the police found a gun and drugs in the backseat where defendant was sitting.
       Id. at 977. He was sentenced on the armed violence and unlawful possession of a weapon by a
       felon convictions. Id. at 976. He appealed on one-act, one-crime principles. Id. at 977. The
       reviewing court determined that there were no separate acts and that the “common act is a felon
       possessing a gun and drugs simultaneously.” Id. at 978.
¶ 15       In the Fourth District case of People v. White, 311 Ill. App. 3d 374, 379 (2000), the
       defendant was convicted, in part, of one count each of aggravated discharge of a firearm,
       armed violence, and unlawful possession of a weapon by a felon and sentenced on all three
       convictions. When he appealed on one-act, one-crime grounds, the reviewing court determined
       that the defendant simultaneously possessed both the gun and drugs, but they were distinct
       acts. Id. at 385. The White court rejected Williams, finding it was wrongly decided. Id. The
       court concluded that the defendant’s convictions for armed violence and unlawful possession
       of a weapon by a felon were based on separate acts and held that multiple convictions did not
       violate one-act, one-crime principles. Id. at 386. The White court found that despite the

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       commonality of the gun, armed violence required an additional act of drug possession and
       unlawful possession of a weapon by a felon required an additional element of the defendant’s
       felon status. Id.
¶ 16       The First District’s recent decision in People v. West, 2017 IL App (1st) 143632, ¶ 25,
       follows the reasoning in Williams that the same act of gun possession cannot be used to sustain
       two convictions. In West, the defendant was convicted of armed habitual criminal and
       aggravated unlawful use of a weapon. Id. ¶ 1. The reviewing court found the convictions
       “arose out of the same physical act,” possession of the same gun. Id. ¶ 25. The court considered
       the defendant’s status as a felon under both offenses and found that it could not support
       multiple convictions based on the remaining act of gun possession. Id.
¶ 17       Like the West court, we consider Williams to be the better reasoned approach. In White, the
       court compared the elements of armed violence and unlawful possession of a weapon to decide
       whether they involved a single act or multiple acts. White, 311 Ill. App. 3d at 386 (despite
       possession of a weapon as an act common to both offenses, “armed violence required the
       additional act of possession of the drugs, and unlawful possession of a weapon by a felon
       required the additional element of status as a felon”). In doing so, the difference between acts
       and elements is extinguished and the two-step analysis merges into a determination of whether
       one offense is a lesser-included offense of other. The White court improperly begins with the
       second step in the analysis to determine whether there were multiple acts.
¶ 18       The proper question to be determined is whether Brown’s conduct was a single act or
       multiple acts. The King court defined “act” as “ ‘any overt or outward manifestation which will
       support a different offense.’ ” Rodriguez, 169 Ill. 2d at 188 (quoting King, 66 Ill. 2d at 566).
       Here, as in Williams, Brown’s convictions are based on the same physical act of him
       possessing a gun. Under the armed violence conviction, he was armed with a handgun while
       also possessing cocaine, and under the other conviction, he possessed a firearm as a felon.
       Brown’s felon status is not “an overt or outward manifestation” but an element of the offense.
       See Williams, 302 Ill. App. 3d at 978 (recognizing convicted felon element as a status); White,
       311 Ill. App. 3d at 386 (same); West, 2017 IL App (1st) 143632, ¶ 25 (recognizing defendant’s
       habitual criminal portion of armed habitual criminal offense as a status).
¶ 19       Both convictions are based on the same physical act of Brown possessing a gun. We thus
       find that Brown’s conduct was a single act. Because we find that Brown’s convictions are
       based on the single act of gun possession, we do not need to address the second step in the
       analysis. Under one-crime, one-act principles, once the court determines the defendant’s
       conduct consisted of a single act, the analysis ends.
¶ 20       Brown did not raise this issue below, but having determined an error occurred, we consider
       plain error review proper. People v. Thompson, 238 Ill. 2d 598, 613 (2010) (determining
       whether an error occurred is the first step in plain error analysis); In re Samantha V., 234 Ill. 2d
       359, 378-79 (2009) (violation of one-act, one-crime principles “affects the integrity of the
       judicial process” and is appropriate for plain error review under doctrine’s substantial rights
       prong). Brown’s multiple convictions are improper, and we thus vacate the less serious
       conviction, unlawful possession of a weapon by a felon, and its eight-year sentence. Brown’s
       conviction for armed violence remains.
¶ 21       The judgment of the circuit court of Peoria County is affirmed in part and vacated in part.

¶ 22      Affirmed in part and vacated in part.

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