                                            2014 IL App (1st) 112592
                                   Nos. 1-11-2592 and 1-12-0313, consolidated
                                           Opinion filed May 14, 2014
                                                                       Third Division
     ______________________________________________________________________________

                                                    IN THE

                                      APPELLATE COURT OF ILLINOIS

                                               FIRST DISTRICT

     ______________________________________________________________________________

     THE PEOPLE OF THE STATE OF ILLINOIS,                      Appeal from the Circuit Court
                                                               of Cook County.
             Plaintiff-Appellee,

                                                               No. 09 CR 9235
     v.

     MARCELLO MOORE,                                           The Honorable
                                                               William J. Kunkle,
             Defendant-Appellant.                              Judge, presiding.

     ______________________________________________________________________________

                 PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion.
                 Justices Neville and Pucinski concurred in the judgment and opinion.


                                                    OPINION

¶1           Defendant Marcello Moore was found guilty of residential burglary after a bench trial.

          Moore then filed a pro se motion for the reduction of his sentence, which the trial court

          denied. In this consolidation of defendant's direct and postsentencing appeals, he contends

          the prosecution presented insufficient evidence at trial to find him guilty beyond a reasonable

          doubt of residential burglary. He also contends he should receive a new trial because the

          court did not properly admonish him before he waived counsel, which he did for a single
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        pretrial motion before changing his mind and again being represented. Lastly, the parties

        agree that certain fines and fees were erroneously assessed.

¶2         We agree that the trial evidence failed to establish beyond a reasonable doubt one of the

        elements of residential burglary—that an owner or a resident intended to reside at the

        building at the time of the burglary. Accordingly, we reduce the conviction from residential

        burglary to burglary and remand for sentencing. We agree that the trial court improperly

        admonished Moore regarding waiver of counsel, but under the circumstances of this case,

        that did not deprive Moore of counsel at a critical stage or prejudice him, as he acted pro se

        for one proceeding, a motion to quash, that never had a chance of success. As to the fines

        and fees, we modify the judgment.

¶3                                          BACKGROUND

¶4         Marcello Moore was charged by information with residential burglary for allegedly

        entering 6646 South Maryland Avenue, Chicago, on May 5, 2009, without authority and with

        the intent to commit theft. The arrest report and complaint for preliminary examination gave

        the wrong address.

¶5         Moore requested to represent himself, telling the trial court, "I have been asking [counsel]

        to file motions in these cases and she is refusing to file them." The court provided Moore

        with detailed written admonishments on self-representation, listing defendant's rights, the

        advantages of representation by counsel, and the disadvantages of proceeding without

        counsel. The document ended with a waiver of counsel signed by Moore. The document

        recited, "I have received a copy of the charges against me, and I have read and understood

        the charging document." But it did not describe the charges, and the next sentence, "I

        understand the possible penalties in this case," was completed in handwriting with " I have


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        not received copies of anything as of yet," followed by a request for access to a law library

        and investigator and a particular discovery request. After Moore read and signed this waiver

        document, the trial court confirmed on the record that Moore understood he had a right to

        counsel, that he would not have standby counsel, he would not later be able to claim

        ineffective representation, he and not counsel would be calling and questioning witnesses,

        and he would have limited ability to investigate his case from jail. The court confirmed that

        Moore waived his right to counsel voluntarily and had read and signed the waiver. The court

        granted Moore's motion to proceed pro se and counsel's motion to withdraw. In addition, the

        court ordered that defense copies of discovery be tendered to the State for redaction and then

        given to Moore.

¶6         At a later court date, Moore noted that he had not yet received the discovery, and filed a

        pro se motion to quash his arrest and suppress evidence. Moore alleged that although

        arrested at 1:30 p.m. at 6446 South Maryland, records showed that officers were sent at 1:18

        p.m. to investigate a report of a residential burglary at 6438 South Maryland so that the

        "officers were at the wrong location at 1:30 p.m. There was no reason for officers to be at

        6446 S. Maryland." He also alleged that, while the police report indicated that the burglar

        left the building carrying "the blower to the furnace," this item was not recovered or

        inventoried, and therefore, "does not exist." For both reasons, Moore argued, no probable

        cause existed to arrest him. He also argued that a security alarm recovered in his postarrest

        search, later inventoried and identified by the owner as his, should be excluded. In addition,

        while it had been alleged that a door of the premises was kicked in, Moore pointed out that

        the State failed to photograph the door or gather evidence (photographs, shoeprints, or the

        shoes themselves) regarding his shoes. (Two of the photographs in the record on appeal are


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          of a door dented inward and otherwise severely distorted on its lower half close to the

          locking, as opposed to the hinged, side.)

¶7           He also claimed a denial of his right to confront his accuser because the officer who

          testified at his preliminary hearing was not the officer who saw the burglar leaving the

          building.

¶8           Moore argued pro se his motion to quash. He asked police officer Salvador Lara if he

          was aware that he had been dispatched to 6438 rather than 6446. When he could not so

          recall, Moore confronted him with the report of the dispatch. The court explained to Moore

          that the dispatch would have to be introduced into evidence by the witness who sent it.

          Moore directed the same questions at Officer Stanley Gas, who testified that he did not

          respond to the initial dispatch but to a later call by Officer Tracy Quarles for assistance at

          6446.

¶9           Officer Quarles testified that he responded to a reported "burglary in the 6300 block of

          Maryland," and went to the back door of the premises (that is, 6446) while other officers

          went to the front. Once there, Quarles saw Moore fleeing the rear of the building, then drop

          a furnace blower and run toward the front.

¶ 10         The trial court denied the motion to quash, stating that the officers were outside the

          building when they saw Moore and had "a right to be there" to investigate the burglary

          report. The court told Moore to reconsider his decision to proceed pro se; Moore did so, and

          accepted the appointment of counsel.

¶ 11         At trial in April 2011, police officer Tracy Quarles testified that he responded to a report

          of a burglar alarm going off at 6446 South Maryland Avenue. When he arrived, Quarles saw

          another police car at the front, so he went to the alley or rear, where he saw Moore coming


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          out of the basement door. He said the basement door appeared kicked in. Quarles saw

          Moore holding a black object that Quarles later learned was a furnace blower or motor.

          Quarles identified two photographs of the door and one photograph of the blower.

¶ 12         Quarles told Moore to stop.      Moore dropped the object and ran toward the front.

          Meanwhile, Quarles warned by radio of Moore’s flight and then learned by radio that Moore

          had been detained. Quarles went to the front and identified Moore as the man who left the

          building with the blower. Later, the owner came and in Quarles's presence identified the

          blower as a part of the furnace.

¶ 13         Officer Stanley Gas testified that, in response to a dispatch regarding a burglar alarm at

          6646, he went to the front of the building. When Officer Quarles radioed that Moore was

          fleeing in his direction, Gas saw Moore running toward him. He detained Moore, who had

          the keypad of an alarm system in his hand. Gas gave the keypad to either Officer Sena or

          Lara. He later saw the kicked-in rear basement door, saw a black blower or motor from a

          furnace near the door, and saw the alarm system with the missing keypad.

¶ 14         Officer Salvador Lara testified that he and Officer Sena arrived shortly before Moore’s

          arrest and that Gas gave Sena a burglar alarm keypad. When the owner came, he identified

          the keypad as his.

¶ 15         Police detective Steve Hayden testified that he interviewed Moore at the police station

          following his arrest. Moore told Hayden that he kicked in the back door because he wanted

          to see the interior in contemplation of buying the building. Once inside, he saw and picked

          up the broken alarm keypad.

¶ 16         The owner, Andres Schcolnik, testified that he is a real estate developer and owned three

          of the four units at 6446 South Maryland; specifically, on the first, second, and third floors


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          but not the basement unit. The rear basement entrance was one of the common areas, and the

          building had an alarm system. When Schcolnik last visited the building before May 5, 2009,

          he recalled seeing the rear basement door "sealed and in good condition." While he goes to

          his buildings periodically, he could not recall if he "was there a day before, two days before,

          or a week back." As of trial, Schcolnik still owned the third-floor unit and had leased it out

          from November 2009 onward. As of May 2009, that unit was livable, though not completely

          finished. Schcolnik could not recall when he offered or listed the unit for rent. Schcolnik

          never gave Moore permission to enter the common areas or remove anything.

¶ 17         On cross-examination, Schcolnik testified that he did not match the recovered keypad to

          the alarm system, and that he had replaced the alarm system so that the recovered keypad

          may have been from the previous alarm system.

¶ 18         The trial court denied Moore’s motion for a directed finding as to burglary, reserving

          judgment on residential burglary absent law supporting that a dwelling for residential

          burglary purposes "includes unrented, vacant, remodeling space." The State relied on cases

          that turned on whether the premises were habitable or the owner or residents intended to

          reside in the premises within a reasonable time. The State argued Schcolnik's efforts to

          remodel the third-floor unit for sale or rent satisfied this element and that Schcolnik had

          testified to the habitability of the third-floor unit. Moore distinguished the State’s cases in

          that Schcolnik had not testified that the premises were habitable but only "might be" so.

¶ 19         The trial court noted the element of intent to reside within a reasonable period, and that

          Schcolnik did not intend to live there and prospective tenants could not have intended to live

          there at the time of the burglary. The State responded that Schcolnik intended to rent out the




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          third-floor unit and did so by November, a reasonable time from May. After a continuance,

          the State cited additional case law.

¶ 20         The trial court denied a directed finding on the residential burglary charge, concluding

          that the legislature intended the residential burglary statute to protect residences without

          being "dependent on the wholly fortuitous circumstance of whether a structure intended to be

          used as a residence was actually being used as a residence at the time the burglary was

          committed."

¶ 21         Moore testified that he was a carpenter and went to the building at about 1 p.m. that day

          to look at it after seeing an online notice of "HUD listings" of "handyman special[s]" in that

          neighborhood. He found an alarm keypad "down the street” from the building and kept it to

          reuse a magnet. He walked around the outside and saw the front door bolted shut and the

          visible portions of the interior "looked as if it was not being lived in." When he went to the

          rear, he saw the basement door ajar, but he stood several feet away and could not discern if it

          was damaged. He saw no debris near the door, did not pick anything up, and never entered.

          When Officer Quarles confronted him, he had nothing in his hands. Though Quarles told

          him to stop, he believed that Quarles could not enter the backyard to arrest him due to a high

          wrought-iron fence. Instead, Moore walked toward the front of the building and was arrested

          there. He denied that an officer interviewed him after the arrest and denied he admitted to

          kicking in the door.

¶ 22         Certified copies of two prior convictions for possession of a controlled substance, in 2002

          and 2004, were admitted into evidence.

¶ 23         The trial court considered it common practice to put into evidence photographs of stolen

          property rather than require items be retained in police custody "sometimes for years," so the


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          decision to photograph rather than inventory the furnace blower was not significant. Also

          not significant was showing Moore had kicked in the backdoor.             The court noted that

          Schcolnik as owner of "a majority of the space in the building *** had control and custody

          over the common areas including the basement entrance." The court expressly found the

          officers' testimony to be credible and Moore's testimony to be impeached. Moore was

          pronounced guilty of residential burglary.

¶ 24         Through counsel, Moore filed a posttrial motion arguing insufficiency of the evidence.

          Moore also filed a pro se posttrial motion arguing ineffective assistance of trial counsel and

          newly discovered evidence of actual innocence based on the report of the police dispatch

          referenced in his motion to quash. After arguments, the motions were denied. The court

          considered the dispatch of the police to the wrong address meaningless because their

          presence on the street or in the alley outside the building was lawful.

¶ 25         On July 14, 2011, following arguments in aggravation and mitigation, the court sentenced

          Moore to six years' imprisonment with fines and fees. The record shows Moore's prior

          convictions:   four for possession of a controlled substance, a number for driving on a

          suspended or revoked license, and one each of domestic battery and criminal trespass to

          vehicle. His longest sentences were one-year prison terms for violating probation. This

          direct appeal timely followed.

¶ 26         In August 2011, Moore filed a pro se motion for the reduction of his sentence. In

          October 2011, Moore also filed a postconviction petition as well as another postconviction

          petition and a petition for relief from judgment, all pro se. On November 4, 2011, Moore

          withdrew his postconviction petitions on advice of the trial court due to his pending direct




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          appeal. On December 23, 2011, the court denied the motion for reduction of sentence, and

          an appeal of that issue timely followed.

¶ 27                                            ANALYSIS

¶ 28                          Sufficiency of Evidence for Residential Burglary

¶ 29         Moore contests the sufficiency of the evidence used to find him guilty of residential

          burglary beyond a reasonable doubt.

¶ 30         A person commits residential burglary when he or she "knowingly and without authority

          enters or knowingly and without authority remains within the dwelling place of another, or

          any part thereof, with the intent to commit therein a felony or theft," with a dwelling defined

          for this purpose as "a house, apartment, mobile home, trailer, or other living quarters in

          which at the time of the alleged offense the owners or occupants actually reside or in their

          absence intend within a reasonable period of time to reside." 720 ILCS 5/2-6(b), 19-3(a)

          (West 2010). Residential burglary expressly includes the offense of burglary, which a person

          commits when he or she "without authority *** knowingly enters or without authority

          remains within a building *** or any part thereof, with intent to commit therein a felony or

          theft." 720 ILCS 5/19-1(a) (West 2010); see 720 ILCS 5/19-3(a) (West 2010).

¶ 31         Whether Moore committed residential burglary involves statutory construction of section

          2-6(b) of the Illinois Criminal Code of 1961 (Code) (720 ILCS 5/2-6(b) (West 2008)). In

          People v. Roberts, 2013 IL App (2d) 110524, this court considered the question under section

          2-6(b) "where the owners had placed the property for sale but had secured no purchaser and

          had moved out of the state with no plans to return to the house." Id. ¶ 1. We found the

          language of the statute unambiguous, "For a house to qualify as a dwelling, the owners or

          occupants must reside in the house at the time of the offense or must intend to do so within a


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          reasonable time. Here, it is undisputed that the owners of the house neither resided there nor

          intended to do so in the future. The house was unoccupied and no specific individuals

          intended to reside there." Id. ¶ 5.

¶ 32         As to the owner's intent that an eventual purchaser would reside there to render the house

          a dwelling, "it would be necessary to add language to the statute, expanding the definition of

          'dwelling' to include houses or other buildings that may have occupants at some unspecified

          date in the future." (Emphasis in original). Id. ¶ 6. This court declined to do so. Because

          the owner did not intend to reside there, and "there were no other occupants who could form

          an intent to take up residence" " 'at the time of the alleged offense,' " we reduced the

          defendant's conviction to burglary and remanded for resentencing. Id. ¶ 7 (quoting 720 ILCS

          5/2-6(b) (West 2010)).

¶ 33         In reviewing a challenge to the sufficiency of the evidence, we determine, after taking the

          evidence in the light most favorable to the prosecution, whether the fact finder could

          rationally find every element of the offense beyond a reasonable doubt. People v. Brown,

          2013 IL 114196, ¶ 48. We refrain from substituting our judgment for that of the fact finder

          on issues involving the weight of evidence or witness credibility because the factfinder

          resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences.

          Id. The fact finder need not be satisfied beyond a reasonable doubt as to each link in the

          chain of circumstances; instead, all the evidence taken together must satisfy the fact finder

          beyond a reasonable doubt of the defendant's guilt. In re Jonathon C.B., 2011 IL 107750, ¶

          60. Similarly, the fact finder need not disregard inferences that flow normally from the

          evidence or seek all possible explanations consistent with innocence and elevate them to

          reasonable doubt.     Id.   A conviction will be reversed only where the evidence is so


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          unreasonable, improbable, or unsatisfactory that a reasonable doubt of the defendant's guilt

          remains. Brown, 2013 IL 114196, ¶ 48.

¶ 34         This case firmly falls under Roberts.         While no evidence indicated ownership or

          occupancy of the basement unit, Schcolnik testified to owning the first-, second-, and third-

          floor units. No evidence showed that Schcolnik resided there; he described himself as a real

          estate developer, visited the premises periodically, and referred obliquely to remodeling the

          units. And, no evidence showed that tenants or buyers intended to occupy Schcolnik's units

          as of May 2009. In short, no evidence showed that "at the time of the alleged offense the

          owners or occupants actually reside[d] or in their absence intend[ed] within a reasonable

          period of time to reside" at the premises. 720 ILCS 5/2-6(b) (West 2010).

¶ 35         We find the logic of Roberts highly persuasive. Roberts distinguished several cases cited

          by the State at trial and by the trial court in denying the directed finding motion. Roberts,

          2013 IL App (2d) 110524, ¶ 9 (citing People v. McGee, 398 Ill. App. 3d 789 (2010), People

          v. Torres, 327 Ill. App. 3d 1106 (2002), People v. Moore, 206 Ill. App. 3d 769 (1990), and

          People v. Sexton, 118 Ill. App. 3d 998 (1983)). Moreover, Roberts found that a case cited

          extensively by the State, People v. Silva, 256 Ill. App. 3d 414 (1993), was based on an earlier

          statute that "merely required proof that the burglarized premises were 'used or intended for

          use as a *** residence.' " Roberts, 2013 IL App (2d) 110524, ¶ 8 (quoting Ill. Rev. Stat.

          1985, ch. 38, ¶ 2-6). Following Roberts, we find the evidence insufficient to prove that

          Moore burglarized the building so that his conviction for residential burglary must be

          vacated. We find the evidence sufficient to prove that Moore committed a burglary (720

          ILCS 5/19-1 (West 2010)). Therefore, we enter a conviction for burglary and remand for

          sentencing.


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¶ 36                                          Admonishments

¶ 37         Moore also contends that the trial court improperly admonished him before his waiver of

          counsel, and we should grant him a new trial.

¶ 38         Illinois Supreme Court Rule 401 (eff. July 1, 1984) governs a criminal defendant's waiver

          of counsel. The waiver must be made in open court with a verbatim transcript taken for the

          record. To be an effective waiver of counsel, the trial court must substantially comply with

          Rule 401(a). People v. LeFlore, 2013 IL App (2d) 100659, ¶ 52 (citing People v. Campbell,

          224 Ill. 2d 80, 84 (2006)), appeal allowed, No. 116799 (Jan. 29, 2014).             Substantial

          compliance means a deficiency in the admonishments does not prejudice the defendant,

          either because the defendant already knows of the omitted information or because the

          defendant’s degree of legal sophistication makes evident his or her awareness of the omitted

          information. LeFlore, 2013 IL App (2d) 100659, ¶ 52; People v. Black, 2011 IL App (5th)

          080089, ¶ 20.

¶ 39         A defendant is entitled to a reversal of his or her conviction without making the

          otherwise-requisite showing that the deprivation caused him prejudice where the complete

          absence of his or her right to counsel occurs at a critical stage of the case. People v. Vernon,

          396 Ill. App. 3d 145, 152-53 (2009) (citing Wright v. Van Patten, 552 U.S. 120, 124-25

          (2008), and United States v. Cronic, 466 U.S. 648, 658-59 (1984)). A critical stage exists

          when substantial rights of a criminal defendant may be affected; that is, when the defendant

          required aid in coping with legal problems or assistance. Vernon, 396 Ill. App. 3d at 153-54.

¶ 40         Moore had counsel throughout his pretrial proceedings until he sought to represent

          himself when counsel would not file motions he desired.             After the waiver, Moore


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          represented himself on a pro se motion to quash, and when the court denied that motion and

          suggested Moore reconsider his decision to act pro se, he agreed. Counsel represented

          Moore from then on, including at trial.

¶ 41         Our initial inquiry concerns Moore’s waiver’s compliance with Rule 401. We agree with

          Moore that it did not. Before Moore waived his right to counsel, the trial court did not

          admonish Moore in open court of the charges or sentencing he faced. Even accepting at face

          value the statement in the written waiver that Moore received a copy of the charge, the record

          contains nothing to indicate that the trial court admonished Moore either orally or in writing

          on the minimum and maximum sentences for residential burglary. Nor does the record

          reflect any mention of the sentencing range before the waiver of counsel, and we have no

          reason to believe from defendant's criminal history that he was aware of that sentencing

          range. Thus, the trial court cannot be said to have substantially complied with Rule 401.

¶ 42         Moore contends that our analysis should end here, that this conclusion dictates without

          exception a remand for a new trial. Moore relies on the rule noted above that a prejudice

          analysis cannot be conducted once the waiver has been determined to be fatally incomplete

          or erroneous. The principle behind this rule is sound—regarding a critical stage, generally, it

          is impossible to determine how the outcome of proceedings would have been different with

          counsel compared to the pro se actuality because no stage of the proceedings stands alone but

          instead earlier stages influence not just what follows but also that which is well removed.

          But Moore represented himself for only one proceeding, an unsuccessful pro se motion to

          quash. If that motion had no arguable merit and is frivolous as a matter of law, then we can

          reliably determine that denial of his motion did not affect the outcome of the later

          proceedings, including trial. Stated another way, the filing and presentation of a frivolous


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          motion cannot be termed a critical stage because a defendant has no right to present a

          frivolous motion or does not require aid of counsel to do so.

¶ 43          We find Moore’s motion to quash to be without merit as a matter of law. Assuming the

          officers had been dispatched to another address as Moore alleged, nothing would prohibit the

          officers from being in the alley to see Moore leaving the building, as Officer Quarles

          testified. Similarly, that the furnace blower was not recovered and inventoried, as Moore

          argued, does not vitiate finding probable cause for his arrest. In short, even if his factual

          assertions were proven, defendant's arrest would still be proper. Under these circumstances,

          Moore was neither deprived of counsel at a critical stage nor did he suffer prejudice from the

          incomplete Rule 401 admonishments preceding his waiver of counsel.

¶ 44                                           Fines and Fees

¶ 45          Lastly, Moore contends, and the State agrees, that three of his fines or fees were

          erroneously assessed and must be vacated. While we are remanding for resentencing, we

          note for guidance of the trial court that the parties are correct. The $200 DNA analysis fee

          (730 ILCS 5/5-4-3(j) (West 2010)) should not have been assessed because Moore provided a

          DNA sample following an earlier felony conviction subject to this fee; the fee is improper.

          People v. Marshall, 242 Ill. 2d 285 (2011). Moore also was assessed a $5 electronic citation

          fee (705 ILCS 105/27.3e (West 2010)) that does not apply to felonies. And, Moore was

          assessed a $15 State Police operations fee (705 ILCS 105/27.3a (1.5) (West 2010)) that took

          effect on July 13, 2010. But we have held this fee is to be a fine (People v. Wynn, 2013 IL

          App (2d) 120575, ¶ 13), and fines cannot be applied retroactively under the ban on ex post

          facto legislation.




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¶ 46         Accordingly, we modify defendant's conviction to burglary, vacate the DNA analysis fee,

          the electronic citation fee, and the State Police operations fine, and remand for resentencing.

          The judgment of the circuit court is otherwise affirmed.

¶ 47         Affirmed as modified and remanded.




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