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                               Appellate Court                            Date: 2016.11.21
                                                                          09:51:39 -06'00'




                  People v. Lucious, 2016 IL App (1st) 141127



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



District & No.    First District, Fourth Division
                  Docket No. 1-14-1127



Filed             September 8, 2016



Decision Under    Appeal from the Circuit Court of Cook County, No. 13-CR-8824; the
Review            Hon. Nicholas Ford, Judge, presiding.



Judgment          Vacated and remanded.



Counsel on        Michael J. Pelletier, Patricia Mysza, and Carolyn R. Klarquist, all of
Appeal            State Appellate Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Christine Cook, and Peter Maltese, Assistant State’s Attorneys, of
                  counsel), for the People.



Panel             PRESIDING JUSTICE ELLIS delivered the judgment of the court,
                  with opinion.
                  Justices Howse and Cobbs concurred in the judgment and opinion.
                                               OPINION

¶1        Defendant Keith Lucious, along with codefendant Anthony Scott, were charged with
     armed robbery, aggravated robbery, and aggravated unlawful restraint for accosting a woman
     in an alley and taking two backpacks from her. The aggravated robbery charge alleged that
     defendant and codefendant “indicat[ed] verbally, or by their actions,” that they were armed.
     See 720 ILCS 5/18-1(b) (West 2012) (person commits aggravated robbery when he or she
     commits a robbery “while indicating verbally or by his or her actions to the victim that he or
     she is presently armed with a firearm or other dangerous weapon”). Defendant was 15 years
     old at the time of the offense, and codefendant was 16.
¶2        Defendant and codefendant were tried at a joint bench trial and convicted of aggravated
     robbery and unlawful restraint. At trial, the State introduced evidence that both defendant and
     codefendant had confessed to the offense. But only codefendant admitted that, during the
     robbery, he told the victim, “Don’t make him [(i.e., defendant)] shoot you.” In its findings, the
     trial court cited codefendant’s statement as evidence supporting the aggravated robbery
     charge.
¶3        In this appeal, defendant alleges that his trial attorney was ineffective for failing to object
     to the introduction of codefendant’s inculpatory statement. We agree. Codefendant’s statement
     was inadmissible as evidence of defendant’s guilt, but the trial court expressly considered it as
     such. And that evidence prejudiced defendant with respect to his aggravated robbery
     conviction, as it offered direct proof of an essential element of the offense. We vacate
     defendant’s conviction and remand for a new trial.

¶4                                       I. BACKGROUND
¶5       The State charged defendant with armed robbery predicated on his being armed with a
     firearm during the robbery, aggravated robbery, and aggravated unlawful restraint. The
     aggravated robbery charge alleged that, on April 5, 2013, defendant and codefendant
     committed a robbery “while indicating verbally, or by their actions *** that they were
     presently armed with a firearm or other dangerous weapon.”
¶6       At the time of defendant’s trial, armed robbery committed with a firearm by an offender
     who was at least 15 years old was an offense requiring defendant’s case to be transferred to
     adult court without a hearing. 705 ILCS 405/5-130(1)(a) (West 2012).
¶7       Both defendant and codefendant elected to have bench trials. Neither defendant’s counsel
     nor codefendant’s counsel moved to sever their trials before they began.
¶8       Naritza Castellanos, through a Spanish interpreter, testified that at 10:30 a.m. on April 5,
     2013, she was distributing fliers in an alley near 4251 West Haddon Avenue in Chicago.
     Castellanos was carrying two backpacks with her. The backpacks contained fliers, keys, a cell
     phone, and $20 in cash.
¶9       She testified that two young men, whom she identified as defendant and codefendant,
     approached her and asked her for money. She said she did not have any, and defendant hit her
     in her face and stomach. Defendant and codefendant threw Castellanos to the ground, took her
     backpacks, and fled. Castellanos also testified that defendant pressed a gun to her right temple
     while she was on the ground.



                                                  -2-
¶ 10       Castellanos testified that codefendant had red hair and that defendant wore “like braids or
       bows” in his hair. Castellanos said that defendant wore a black and brown checkered jacket,
       and codefendant wore a black jacket.
¶ 11       Shortly after defendant and codefendant fled, a passerby loaned his cell phone to
       Castellanos so that she could call the police. She testified that, a few minutes after she called
       the police, she saw codefendant again in the same area, but he had changed into a white jacket
       with red lettering on the back. Some time later, the police brought defendant and codefendant
       to Castellanos in a squad car, and Castellanos identified them as the boys who had robbed her.
¶ 12       Officer Michna testified that he and his partner responded to a call of a robbery near
       Thomas Street and Kildare Avenue. The prosecutor asked Michna if he was given “a
       description of any sort regarding the robbery,” and Michna replied, “Just it was armed robbery
       and two male black teens.” The court interjected, “I think she means the description of the
       individuals involved,” and Michna said, “Two male black teens.”
¶ 13       Michna saw two black teenagers in the area, whom he identified as defendant and
       codefendant, and approached them in his car. Michna said that one of them “had braids and the
       other one had orangish-red hair.” Michna asked where they were coming from, and defendant
       and codefendant “gave conflicting stories.” Michna testified that he and his partner put
       defendant and codefendant into their squad car and drove them back to Castellanos’s location
       to conduct a showup. Castellanos identified defendant and codefendant as the robbers.
¶ 14       After Castellanos identified defendant and codefendant, they were placed under arrest and
       searched. The police recovered a set of keys from codefendant, which Castellanos identified as
       her keys. Defendant and codefendant did not have a cell phone or any money on them. Michna
       testified that no firearm was recovered in connection with the robbery.
¶ 15       On cross-examination, codefendant’s counsel asked Michna if he stopped defendant and
       codefendant simply because of their proximity to the site of the robbery, and Michna replied,
       “No, based on the red hair. They were male teens, black teens.” He also testified that he saw
       them less than two blocks from the reported site of the robbery.
¶ 16       Detective Suzanne Chevalier testified that she and an assistant State’s Attorney questioned
       defendant about the robbery while defendant’s father was present. Defendant said that he and
       codefendant skipped school that day to go shoe shopping. They saw Castellanos in an alley and
       “decided that they wanted to take her backpacks.”
¶ 17       Chevalier testified that defendant admitted that he and codefendant approached
       Castellanos, threw her to the ground, and took her backpacks. Defendant said that
       Castellanos’s face hit the ground when they threw her down. He also said that “he had a cell
       phone” during the robbery.
¶ 18       Chevalier testified that codefendant gave a statement that described the robbery in the same
       way as defendant’s. But codefendant added that “he told the victim, don’t make him shoot
       you.” Codefendant also said that he did not know why he said, “don’t make him shoot you,”
       because defendant “only had a cell phone with him.” Codefendant said that he found keys in
       one of the backpacks and that, after the robbery, he and defendant walked around the
       neighborhood looking for Castellanos’s car “so that they could take it.”
¶ 19       After Detective Chevalier testified, the State rested. Defendant moved for a directed
       finding on the armed robbery count, which the court granted.
¶ 20       Neither defendant nor codefendant elected to testify or present any evidence.

                                                   -3-
¶ 21       Defendant’s counsel argued that “the evidence showed at best it was a Class 2 robbery,”
       not an aggravated robbery. The State responded by noting that Castellanos had testified that
       defendant put a gun against her head and that defendant had admitted to having a cell phone
       during the robbery. Thus, the State argued, defendant “probably put his cell phone against her
       head.” The State also cited codefendant’s statement that he said, “[D]on’t make him shoot
       you,” and that defendant had a cell phone, arguing, “Well, obviously, they were portraying to
       this woman that they had a weapon. Why else would [codefendant] say that, and why else
       would [defendant] say to the police officers, I didn’t have a gun, it was just a cell phone?”
¶ 22       The trial court made the following findings:
                    “I will today find each defendant guilty of the offense of aggravated robbery. That
               finding is predicated on the fact that within the statements, I think there’s an indication
               by both of them on some level that they perpetrated a fraud, if you will, and that they
               were attempting to allude to a gun that they’re now asserting really didn’t exist in one
               circumstance, quoting the victim, by pressing something against her body that was hard
               and led her to the conclusion that it might have been a weapon, and within the words of
               the defendant for which they are both accountable, I also hear that same effort to give
               her the impression that they were armed.
                    And for that reason, there will be a finding of guilty as to—and I want to indicate
               that my notes relative to the victim in this case indicate—and I certainly have a very
               strong recollection of her, that she was a very strong witness, offered a factually rich
               explanation of the facts in this case, and a working person, a really strong recall, and I
               found her highly credible.
                    And for that reason, I’ll be finding each defendant guilty of the offense of
               aggravated robbery and unlawful restraint.”
¶ 23       Defense counsel filed a motion for a new trial, which made no mention of the admission of
       codefendant’s statement. The trial court denied the motion.
¶ 24       Because defendant had been acquitted of the offense that led to his being tried in adult
       court (i.e., armed robbery with a firearm), the State moved to have defendant sentenced as an
       adult, noting that he had three previous adjudications of delinquency for burglary, aggravated
       unlawful use of a weapon, and possession of a stolen motor vehicle. See 705 ILCS
       405/5-130(1)(c)(ii) (West 2012) (permitting State to move for adult sentencing when juvenile
       charged with automatic-transfer offense is acquitted of automatic-transfer offense and
       convicted of another, nonautomatic-transfer offense). Defense counsel noted that, while
       defendant was in custody, he got good grades. The court granted the State’s motion, citing
       defendant’s criminal history and the fact that this offense involved violence.
¶ 25       The court sentenced defendant to five years’ incarceration for aggravated robbery.
       Defendant’s mittimus reflects a three-year sentence for “aggravated unlawful restraint.”
       Defendant appeals.

¶ 26                                        II. ANALYSIS
¶ 27                A. Ineffective Assistance of Counsel/Codefendant’s Statement
¶ 28       Defendant’s first argument on appeal is that his trial attorney was ineffective for failing to
       object to the State’s admission of codefendant’s statement to the police, specifically the
       portion of codefendant’s statement in which he admitted that he told Castellanos, “[D]on’t

                                                    -4-
       make him shoot you.” Defendant contends that the admission of that statement violated his
       right to confront the witnesses against him, as codefendant invoked his right to silence. And,
       defendant contends, the trial court improperly relied on codefendant’s statement as evidence
       that defendant had committed aggravated robbery.
¶ 29       To establish a claim of ineffective assistance of trial counsel, defendant must show that his
       attorney’s performance was deficient and that he suffered prejudice as a result. Strickland v.
       Washington, 466 U.S. 668, 687, 694 (1984). To show that his attorney’s performance was
       deficient, a defendant must establish that his attorney’s performance was objectively
       unreasonable under prevailing professional norms. Id. at 688. A defendant shows prejudice
       where a reasonable probability exists that, but for counsel’s deficient performance, the result of
       the proceedings would have been different. Id. at 694. “A reasonable probability is a
       probability sufficient to undermine confidence in the outcome.” Id. We first address counsel’s
       performance, then turn to the prejudice prong.

¶ 30                                      1. Deficient Performance
¶ 31        We must view counsel’s performance “from his perspective at the time, rather than through
       the lens of hindsight.” People v. Perry, 224 Ill. 2d 312, 344 (2007). And, with respect to
       counsel’s strategic choices, we must “be highly deferential to trial counsel.” Id. But we will
       still find counsel’s performance to be deficient where a strategic decision “appears so irrational
       and unreasonable that no reasonably effective defense attorney, facing similar circumstances,
       would pursue such a strategy.” People v. King, 316 Ill. App. 3d 901, 916 (2000).
¶ 32        Generally, “ ‘what matters to object to and when to object’ are matters of trial strategy.”
       Perry, 224 Ill. 2d at 344 (quoting People v. Pecoraro, 175 Ill. 2d 294, 327 (1997)). But an
       attorney is expected to use “ ‘established rules of evidence and procedure to avoid, when
       possible[,] the admission of incriminating statements, harmful opinions, and prejudicial
       facts.’ ” King, 316 Ill. App. 3d at 916 (quoting People v. Moore, 279 Ill. App. 3d 152, 159
       (1996)).
¶ 33        Necessarily, counsel cannot be deemed ineffective for failing to raise an objection to
       admissible evidence—such an objection would be futile. See, e.g., People v. Shatner, 174 Ill.
       2d 133, 159 (1996). Thus, in order to determine whether counsel’s performance was deficient,
       we first discuss the admissibility of codefendant’s statement.
¶ 34        In Bruton v. United States, 391 U.S. 123, 127-28 (1968), the United States Supreme Court
       held that the admission of a codefendant’s statement inculpating defendant during a joint jury
       trial violates the confrontation clause of the sixth amendment. See also U.S. Const., amend. VI
       (“In all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the
       witnesses against him ***.”). Subsequently, in Lee v. Illinois, 476 U.S. 530, 543 (1986), the
       Court held that the confrontation clause is violated when the trial court presiding over a joint
       bench trial “expressly *** relie[s]” on a codefendant’s confession as evidence of the
       defendant’s guilt. And long before the federal constitutional principle was established, under
       both the Illinois Constitution and its “inherent authority *** to announce the law of evidence
       for the assurance of fair trials,” the Illinois Supreme Court has condemned the admission of
       extrajudicial statements of codefendants against a defendant. People v. Duncan, 124 Ill. 2d
       400, 411-15 (1988).
¶ 35        In this case, the State charged defendant with aggravated robbery, an offense that required
       proof that defendant, either verbally or by his actions, conveyed to Castellanos that he was

                                                   -5-
       armed with a firearm or other dangerous weapon. 720 ILCS 5/18-1(b) (West 2012).
       Codefendant’s statement, “[D]on’t make him shoot you,” was direct evidence establishing that
       codefendant conveyed to Castellanos that defendant was armed. And the trial court considered
       this evidence in finding defendant guilty, stating, “[W]ithin the words of the defendant for
       which they are both accountable, I also hear that same effort to give her the impression that
       they were armed.” The trial court erred in relying on codefendant’s statement to find that the
       State proved an essential element of its case against defendant.
¶ 36       We acknowledge that, at a joint bench trial, a trial judge is expected to be able to consider
       the evidence introduced against each defendant separately. See People v. Todd, 154 Ill. 2d 57,
       69 (1992) (“At a bench trial, the trial judge is presumed to consider only proper evidence.”).
       And counsel would not be unreasonable in relying on that presumption. Thus, it is possible that
       counsel’s failure to object to the admission of codefendant’s statement at the time it was
       introduced would be excusable—counsel could reasonably assume that the trial court would
       consider the statement only as to codefendant’s case.
¶ 37       But here, the record shows that the trial court did not consider codefendant’s statement
       solely as to codefendant’s guilt. To the contrary, the trial court’s findings demonstrate that it
       expressly considered codefendant’s statement as evidence of defendant’s guilt, as the court
       said that defendant was “accountable” for codefendant’s statement. Once that occurred,
       counsel had a duty to object to the trial court’s improper consideration of codefendant’s
       statement. But counsel made no such objection. Counsel did not even argue that the trial court
       erred in considering codefendant’s statement in his motion for new trial. We further might
       have expected that defense counsel would have at least reminded the trial court of its obligation
       not to consider codefendant’s statement during his closing argument, but defense counsel did
       nothing of the kind; his entire closing argument consisted of saying, “Judge, we believe that the
       evidence showed that at best it was a Class 2 robbery.”
¶ 38       The State claims that there is “absolutely nothing” in the record to support the notion that
       the trial court considered codefendant’s statement against defendant. The State notes that, after
       discussing codefendant’s statement, the court discussed Castellanos’s credibility and then said,
       “And for that reason, I’ll be finding each defendant guilty of the offense of aggravated robbery
       and unlawful restraint.” (Emphasis added.) The State claims that the words, “for that reason,”
       show that the trial court found “defendant guilty based on the highly credible testimony of the
       victim” rather than codefendant’s statement.
¶ 39       We reject the State’s argument because it wholly ignores the entirety of the trial court’s
       findings. The first thing the trial court said was, “I will today find each defendant guilty of the
       offense of aggravated robbery.” The very next thing the trial court said was, “That finding is
       predicated on the fact that within the statements, *** they were attempting to allude to a gun
       that they’re now asserting really didn’t exist ***.” (Emphases added.) Thus, the trial court
       expressly predicated its finding of guilt at least in part on codefendant’s allusion to a gun.
¶ 40       Moreover, the trial court expressly cited codefendant’s statement as evidence that
       codefendant and defendant made an “effort to give her the impression that they were armed.”
       And the trial court did not limit codefendant’s statement to a discussion of codefendant’s guilt.
       To the contrary, the court expressly said that defendant was “accountable” for codefendant’s
       statement.
¶ 41       And after discussing codefendant’s statement, the court said, “And for that reason, there
       will be a finding of guilty as to—,” before stopping and commenting on the strong credibility

                                                    -6-
       of the complaining witness. When the court was finished with that commentary, it then
       proceeded to conclude that, “for that reason,” it was finding each defendant guilty. We cannot
       accept the State’s attempt to limit the “reason” for the trial court’s ruling to only the credibility
       of the complaining witness and nothing else.
¶ 42       Finally, we reject the notion that counsel’s failure to object to codefendant’s statement was
       the product of any reasonable strategy. Codefendant’s statement directly proved an essential
       element of aggravated robbery. No reasonable attorney in defense counsel’s shoes would have
       failed to recognize that. And objecting to the evidence would have directly aligned with
       counsel’s chosen strategy: seeking a conviction for the lesser offense of simple robbery. Had
       defense counsel been able to raise a reasonable doubt as to whether defendant communicated
       the fact that he was armed to Castellanos, defendant would have simply been guilty of robbery.
       See 720 ILCS 5/18-1(a) (West 2012). Permitting the trial court to consider codefendant’s
       statement against defendant ran directly counter to defense counsel’s chosen strategy.
¶ 43       Having found that counsel performed deficiently, we now turn to the question of whether
       defendant was prejudiced by counsel’s deficient performance.

¶ 44                                            2. Prejudice
¶ 45        As we stated above, a defendant shows prejudice where there was a reasonable probability
       that, but for counsel’s deficient performance, the result of the proceedings would have been
       different. Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to
       undermine confidence in the outcome.” Id. Defendant need not “prove by a preponderance of
       the evidence that the outcome would have been different,” and “prejudice may be found even
       when the chance that minimally competent counsel would have won an acquittal is
       ‘significantly less than 50 percent,’ as long as a verdict of not guilty would be reasonable.”
       People v. McCarter, 385 Ill. App. 3d 919, 935 (2008) (quoting Miller v. Anderson, 255 F.3d
       455, 459 (7th Cir. 2001)).
¶ 46        As we explained above, the trial court’s improper consideration of codefendant’s statement
       established an essential element of the aggravated robbery charge. Had counsel objected to that
       evidence, he would have significantly undermined the State’s proof of aggravated robbery and
       created a reasonable probability that defendant would have been acquitted of that charge. Thus,
       counsel’s failure to object prejudiced defendant.
¶ 47        The State argues that defendant has not shown prejudice because there was other evidence
       supporting the aggravated robbery charge, namely the evidence that defendant pressed an
       object (according to the State, his cell phone) against Castellanos’s temple. There are two
       problems with the State’s argument.
¶ 48        First, the evidence that defendant pressed his cell phone against Castellanos’s temple was
       far less persuasive than the evidence that codefendant told Castellanos, “[D]on’t make him
       shoot you.” Codefendant’s statement was direct evidence proving an essential element of the
       charge of aggravated robbery. By contrast, in his statement to the police, defendant did not
       admit to pressing his cell phone to Castellanos’s head. Instead, he simply said that he had a cell
       phone in his possession. And Castellanos did not testify that defendant pressed a cell phone to
       her head. She said that defendant put a gun to her head, but the trial court granted defendant a
       direct finding on the armed robbery charge, effectively concluding that neither defendant had a
       gun. The State drew the inference that defendant pressed his phone against Castellanos’s head
       in its closing argument, combining Castellanos’s testimony with defendant’s statement to the

                                                     -7-
       police. While that was a reasonable inference for the State to draw in its summation, the direct
       evidence of a threat in codefendant’s statement was far stronger than the inference that
       defendant put his cell phone against Castellanos’s head in an attempt to trick her into believing
       he had a gun.
¶ 49        Second, as we stated above, when evaluating the prejudice caused by counsel’s failure to
       object to the trial court’s reliance on codefendant’s statement, the inquiry is not simply whether
       there was other evidence sufficient to support a defendant’s conviction. Rather, we must ask
       whether there was a reasonable probability that, if counsel had objected to codefendant’s
       statement, the outcome of the trial may have been different. Here, where the trial court
       expressly relied on codefendant’s statement in finding defendant guilty, we believe there is a
       reasonable probability that the outcome of defendant’s trial would have been different had the
       trial court not considered codefendant’s statement.
¶ 50        The State also claims that, in its findings, the trial court “did not specified [sic] to which
       defendant it was referring” when it found that each defendant was “accountable” for the
       statement. But the court said that “the words of the defendant” showed an “effort to give
       [Castellanos] the impression that they were armed.” In his statement to the police, defendant
       did not say that he or codefendant said anything that would give Castellanos the impression
       that they were armed. Only codefendant’s statement to the police, in which he admitted saying,
       “[D]on’t make him shoot you,” could possibly be construed as including a suggestion that they
       were armed. Thus, it is clear that the trial court was referring to codefendant’s statement in its
       findings.
¶ 51        Finally, the State argues that codefendant’s statement could not have factored into
       defendant’s conviction because Castellanos did not speak English, and she could not have
       understood codefendant when he said, “[D]on’t make him shoot you.” But the aggravated
       robbery statute does not require that the victim understands the communication that the
       defendant is armed. Instead, it simply requires the State to prove that the defendant
       “indicat[ed] verbally or by his or her actions to the victim that he or she is presently armed with
       a firearm or other dangerous weapon.” 720 ILCS 5/18-1(b) (West 2012). Codefendant’s
       statement, whether understood by Castellanos or not, constituted evidence that defendant
       verbally indicated to Castellanos that he was armed.
¶ 52        The State cites People v. Thorne, 352 Ill. App. 3d 1062 (2004), in support of its argument
       that counsel was not ineffective. We find that case distinguishable. In Thorne, both the
       defendant and his codefendant gave statements implicating himself and the other, both of
       which statements were admitted at the joint bench trial. Id. at 1068-69. And though the trial
       court discussed the two statements together in announcing its ruling, the court “never
       affirmatively allowed [the codefendant’s] statement into evidence against [the defendant].” Id.
       at 1079. Even more importantly, after discussing the two statements, the trial court said,
       “ ‘While the defendants are jointly on trial before the court each one of them is entitled to a
       separate and independent consideration of the evidence as it applies to him.’ ” Id. at 1078.
       Here, in contrast, there was only one statement, that of codefendant, and the trial court
       expressly relied on codefendant’s statement in finding defendant guilty.
¶ 53        We hold that defendant was denied the effective assistance of counsel when his trial
       attorney failed to object to the admission of codefendant’s statement. That statement was
       inadmissible as to defendant, was proved an essential element of the State’s case, and was


                                                    -8-
       expressly relied on by the trial court in finding defendant guilty of aggravated robbery. We
       vacate defendant’s conviction for that offense and remand for a new trial.
¶ 54       We find no double-jeopardy bar to retrial on the aggravated robbery count, as the evidence
       of defendant’s guilt at trial was sufficient for a rational trier of fact to find guilt beyond a
       reasonable doubt. See People v. Olivera, 164 Ill. 2d 382, 393 (1995) (double jeopardy did not
       preclude retrial following reversal due to erroneous admission of defendant’s inculpatory
       statement, even if evidence was insufficient to convict after discounting that statement,
       because “for purposes of double jeopardy all evidence submitted at the original trial may be
       considered when determining the sufficiency of the evidence”); People v. McKown, 236 Ill. 2d
       278, 311 (2010) (“If the evidence presented at the first trial, including the improperly admitted
       evidence, would have been sufficient for any rational trier of fact to find the essential elements
       of the crime proven beyond a reasonable doubt, retrial is the proper remedy” and does not
       violate double-jeopardy principles.).

¶ 55                              B. The Unlawful Restraint Conviction
¶ 56       We are left with the question of how our finding of ineffective assistance affects
       defendant’s conviction for unlawful restraint. Defendant does not contend that his attorney’s
       failure to object to codefendant’s statement in any way impacted his conviction for unlawful
       restraint. Instead, defendant argues that codefendant’s statement provided “the necessary
       element to find [him] guilty *** of aggravated robbery, and without the statement, the
       evidence [was] only sufficient to convict [defendant] of robbery.” Defendant’s only discussion
       of the conviction for unlawful restraint is his contention that it should be vacated under the
       one-act, one-crime doctrine, because it was carved from the same act as his aggravated robbery
       conviction and is a lesser-included offense of aggravated robbery. For the following reasons,
       we conclude that a review of the unlawful-restraint conviction is not before us at this juncture.
¶ 57       We begin by agreeing with the parties that the unlawful-restraint conviction should have
       merged into the aggravated-robbery conviction under the one-act, one-crime doctrine. The
       one-act, one-crime rule applies “ ‘where more than one offense is carved from the same
       physical act’ ” and the lesser offense is a lesser-included offense of the greater offense. People
       v. Artis, 232 Ill. 2d 156, 161 (2009) (quoting People v. King, 66 Ill. 2d 551, 566 (1977)). In
       such a scenario, the defendant “should be sentenced on the most serious offense and the less
       serious offense should be vacated.” In re Samantha V., 234 Ill. 2d 359, 379 (2009).
¶ 58       The parties agree, as do we, that defendant’s act of aggravated robbery necessarily
       included his restraint of Castellanos. His only act of restraint was hitting her and pushing her to
       the ground, which were the same acts of force supporting the aggravated robbery charge. See,
       e.g., People v. McWilliams, 2015 IL App (1st) 130913, ¶¶ 19-22 (one-act, one-crime rule
       applied to convictions of armed robbery and unlawful restraint where defendants ordered
       victims to ground, pointed BB guns at them, and took items from them); People v. Daniel,
       2014 IL App (1st) 121171, ¶ 55 (one-act, one-crime rule applied to convictions of armed
       robbery and unlawful restraint where “defendant restrained [the victim] from the beginning
       until the end of the armed robbery—that is, from the moment he displayed a gun and




                                                    -9-
       demanded money, until the moment he took [the victim’s] wallet and placed a gun in his
       mouth”).1
¶ 59       We now consider what happened in the trial court. While the trial court found defendant
       guilty of both aggravated robbery and unlawful restraint at the conclusion of the trial, the court
       only sentenced defendant on the aggravated-robbery count. The court’s oral pronouncement of
       defendant’s sentence contains no mention of the unlawful-restraint count at all. Instead, the
       court’s oral pronouncement only reflects a sentence for the greater offense, which is precisely
       what should have occurred pursuant to the one-act, one-crime doctrine. Samantha V., 234 Ill.
       2d at 379.
¶ 60       But defendant’s mittimus shows a conviction for “aggravated unlawful restraint” and a
       corresponding sentence of three years in prison. The State concedes that the mittimus should
       have read “unlawful restraint,” but the bigger point is that, in light of the trial court’s oral
       pronouncement of sentence only on the aggravated-robbery conviction, there should have been
       nothing at all on the mittimus with regard to the unlawful-restraint conviction. The
       unlawful-restraint conviction should have merged into the conviction for aggravated robbery,
       as we have just discussed, under the one-act, one-crime rule.
¶ 61       We find that the trial court did, in fact, merge the unlawful-restraint conviction into the
       conviction for aggravated robbery. Though the court never specifically said as much in its
       pronouncement of sentence, it only sentenced defendant on the greater offense of aggravated
       robbery. And given that both parties and this court all agree that merger was the appropriate
       action to take with regard to the unlawful-restraint conviction, there is every reason to believe
       that the trial court took the correct action here, even if it did not specifically say so.
¶ 62       The language in the mittimus does not upset our conclusion, as it is long-established that
       the court’s oral pronouncement is the judgment of the court and controls over the mittimus.
       People v. Carlisle, 2015 IL App (1st) 131144, ¶ 87; People v. Smith, 242 Ill. App. 3d 399, 402
       (1993). In this case, because the court’s oral pronouncement of defendant’s sentence did not
       refer to the unlawful-restraint count and because the one-act, one-crime rule supports the trial
       court’s entry of a sentence on the aggravated robbery count alone, we find that the trial court
       did not enter a sentence on the unlawful-restraint count. Instead, we find that the trial court
       properly, albeit implicitly, merged the unlawful restraint count into the aggravated robbery
       conviction.
¶ 63       As the trial court entered conviction only on aggravated robbery, the unlawful-restraint
       conviction is not before us. See People v. Childress, 321 Ill. App. 3d 13, 26 (2001) (“There is
       no final judgment in a criminal case until the imposition of a sentence, and, in the absence of a
       final judgment, an appeal cannot be entertained.”). Accordingly, we express no opinion on
       whether counsel’s ineffectiveness could have affected this count. If the day should ever come
       that defendant is sentenced on the unlawful-restraint conviction, that conviction will become a
       final judgment subject to appeal. See, e.g., People v. Zazzetti, 69 Ill. App. 3d 588, 593 (1979).



           1
            The State initially argued that the conviction for unlawful restraint should not be vacated under the
       one-act, one-crime doctrine but later filed a motion conceding the error and seeking leave to withdraw
       that argument. We have granted the State’s motion and accept its concession that the conviction for
       unlawful restraint should have merged into the conviction for aggravated robbery.

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¶ 64                                C. Defendant’s Remaining Claims
¶ 65       Because we have vacated defendant’s conviction and remanded for a new trial, we will
       address his remaining contentions of error solely to the extent that they are likely to recur on
       retrial. See People v. Bryant, 113 Ill. 2d 497, 507 (1986) (where retrial ordered, it is
       appropriate to consider questions likely to recur on retrial).
¶ 66       Defendant contends that his attorney was ineffective for failing to file a motion to quash his
       arrest and suppress Castellanos’s identification of him at the scene of the robbery. It would be
       inappropriate for us to consider this issue when, on retrial, defendant’s counsel may choose to
       file a motion to suppress. Because counsel’s failure to file a motion to suppress will not
       necessarily occur on retrial, we decline to address this issue.
¶ 67       Defendant also claims that we should correct his mittimus. But we have vacated his
       aggravated robbery conviction and remanded for a new trial and found that no conviction was
       entered on the unlawful restraint count. Thus, these issues concerning defendant’s sentencing
       order are moot.
¶ 68       Finally, defendant challenges the constitutionality of the statute that automatically
       transferred him from juvenile court to the criminal court because he had been charged with
       armed robbery with a firearm. See 705 ILCS 405/5-130(1)(a) (West 2012) (requiring that all
       juveniles 15 years old and up be tried as adults when charged with armed robbery committed
       with a firearm). He also claims that an amendment to that statute that removed armed robbery
       as one of the offenses requiring automatic transfer to adult court should be applied to his case.
       See Pub. Act 99-258 (eff. Jan. 1, 2016) (amending 705 ILCS 405/5-130(1)(a) (West 2014)).
       But defendant was acquitted of armed robbery at his first trial. On retrial, the double jeopardy
       clause will bar his being retried for that offense. So there will be no issue regarding the
       appropriateness of his automatic transfer; defendant will not face any charge that could
       possibly subject him to automatic transfer. Thus, these issues will not recur on retrial.

¶ 69                                     III. CONCLUSION
¶ 70      For the reasons stated, we vacate defendant’s conviction and remand for a new trial
       because defendant was denied the effective assistance of counsel.

¶ 71      Vacated and remanded.




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