                                                                                THIRD DIVISION
                                                                              FEBRUARY 20, 2008


No. 1-07-0335

THE PEOPLE OF THE STATE OF ILLINOIS,                                  )       Appeal from the
                                                                      )       Circuit Court of
       Plaintiff-Appellee,                                            )       Cook County.
                                                                      )
v.                                                                    )       No. 05 CR 2633
                                                                      )
ANDY LEE,                                                             )       The Honorable
                                                                      )       Catherine M.
                                                                      )       Haberkorn,
       Defendant-Appellant.                                           )       Judge Presiding.


       JUSTICE GREIMAN delivered the opinion of the court:

       Following a jury trial, defendant, Andy Lee, was convicted of two counts of unlawful use

of a weapon by a felon and sentenced to concurrent terms of 12 years’ imprisonment for each

count. On appeal, defendant contends that: (1) the trial court erred in admitting evidence of his

prior felony conviction after he refused to stipulate to that conviction; (2) his multiple

convictions for unlawful use of a weapon by a felon should be merged based upon the law

applicable at the time of his offense; (3) his sentence was excessive in light of mitigating factors;

and (4) the trial court erroneously assessed him the Violent Crime Victims Assistance Fund fine.

       The evidence adduced at trial demonstrated that, on January 11, 2005, officers executed a

search warrant in defendant’s apartment and recovered a loaded rifle. Prior to entering the

apartment, the officers asked defendant if he had anything illegal in his possession and defendant

responded that he had a rifle in his bedroom. Defendant then gave the officers his apartment

keys and led them to his bedroom, where they found the loaded rifle behind a couch. Defendant

was subsequently arrested and charged with, inter alia, two counts of unlawful use of a weapon
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by a felon based upon a prior Wisconsin conviction, one for the rifle and one for the

ammunition.1

       Two days before the trial took place, defense counsel informed the court that "preliminary

matters” required the court’s attention, specifically noting her concern that defendant was "not

appreciating the consequences and the seriousness of what he [was] facing.” Defense counsel

further informed the court that defendant refused to engage in a meaningful discussion regarding

a plea offer made by the State. As a result, the trial court explained the charges and the potential

sentencing range to defendant and told him that the State offered to recommend the minimum

term of imprisonment in exchange for his plea of guilty. Defendant refused the offer.

       Defense counsel then further informed the court that defendant believed his double

jeopardy rights were being violated because he had already served time on his prior felony. In

response, the court explained that defendant’s prior felony was an element of his pending

charges; therefore, the jury would hear evidence of the prior felony, namely, criminal sexual

assault of a child. The State subsequently offered to stipulate to the fact that defendant was a

prior felon in order to bar the jury from hearing the actual conviction. The court further

explained the meaning of a stipulation to defendant. However, over defense counsel’s objection,


       1
           Defendant was initially charged with two counts of aggravated unlawful use of a weapon

and four counts of unlawful use of a weapon by a felon. However, prior to trial, the court granted

defendant’s motion to suppress another firearm recovered from his garage and the State entered a

nolle prosequi on all counts except for two counts of unlawful use of a weapon by a felon. The

case proceeded to trial on those remaining counts.

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defendant refused to stipulate to his conviction. Moreover, over defense counsel’s objection, the

trial court agreed to provide the jury with a certified copy of defendant’s prior conviction.

        On the day of trial, the court reiterated defendant’s right to stipulate to his prior felony

conviction; however, defendant again refused. Defense counsel then argued that determining

whether to stipulate was a matter of trial strategy and therefore within the power of counsel.

Consequently, over defendant’s refusal, defense counsel agreed to stipulate to defendant’s prior

felony conviction. The court denied the stipulation on the basis that a defendant must agree with

the fact of stipulation, and, in the case at bar, defendant did not.

        At trial, Officer Rafael Magallon testified that he and several other member of the special

operations section of the Chicago police department were conducting surveillance on the day in

question in relation to a search warrant. The search warrant named defendant, the address of

1319 N. Pulaski, Chicago, Illinois, and the following items: cannabis; money; drug transaction

records; and documentation proving residency. Around 9 a.m., Magallon saw defendant, whom

he recognized from a picture, exit the rear porch of the residence. While a number of the

surveillance team partners detained defendant, Magallon confirmed defendant’s name and

address through his expired driver’s license. Defendant then accompanied the officers to his

apartment and told Magallon that he had a rifle in his bedroom. The officers unlocked the

apartment door with defendant’s keys and proceeded to search defendant’s basement bedroom.

No drug evidence was recovered during the search; however, behind the couch, the officers

recovered a .22-caliber rifle loaded with 10 rounds of ammunition.

        On cross-examination, Magallon admitted that no mail, clothing or other belongings


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indicating that defendant lived in the apartment were recovered during the search. However, on

redirect examination, Magallon testified that there were articles of male clothing scattered in the

bedroom.

       Sergeant Charles Glynn supervised the execution of the warrant and testified that he

spoke with defendant on the day in question after he arrived at the police station. After receiving

his Miranda rights, defendant stated that he initially found the rifle in the basement apartment

when he moved in and then kept it thereafter.

       The State entered the certified copy of defendant’s prior Wisconsin felony conviction into

evidence.

       The defense rested after entering three photographs of the residence at 1319 N. Pulaski

into evidence.

       The jury ultimately found defendant guilty of two counts of unlawful use of a weapon by

a felon, one for the rifle and one for the ammunition. Thereafter, the trial court denied

defendant’s motion for a new trial.

       At the subsequent sentencing hearing, in aggravation, the State argued that defendant

should be sentenced to the maximum within the applicable range based upon his flagrant

violation of the law and his prior conviction for which he served seven years in a Wisconsin

prison. In mitigation, defense counsel argued that defendant was a 64-year-old man who

received social security disability payments and deserved the minimum sentence. Defense

counsel noted that the central purpose for the warrant was to retrieve drug evidence and none was

found in defendant’s apartment. Moreover, defendant lacked a criminal history where his sole


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conviction was for the Wisconsin felony. In allocution, defendant refused to take responsibility

for his actions; rather, he averred that there was no evidence that he lived in the apartment or that

the rifle was his.

        The trial court ultimately sentenced defendant to two concurrent terms of 12 years’

imprisonment, one for each count. In its findings, the court announced that it was limited in

basing defendant’s sentence on mitigating factors because defendant refused to speak candidly to

the investigators in order to compose a thorough presentence investigation report. The trial court

denied defendant’s subsequent motion to reconsider his sentence. This timely appeal followed.

        Defendant first contends that the trial court erred in admonishing him regarding the

consequences of his refusal to stipulate to his prior felony conviction and subsequently erred in

admitting evidence of the prior felony conviction despite defense counsel’s desire to stipulate to

that fact. The State responds that the trial court did not err in its admonishment or, in the

alternative, that defendant has waived review of this argument. The State additionally argues that

the trial court could not accept defense counsel’s offer to stipulate when defendant refused to

agree to that stipulation.

        At the outset, we conclude that defendant failed to support his argument that the trial

court erred in admonishing him. The only legal citation offered provides the parameters for

when a court need not admonish a defendant prior to accepting a stipulation. People v. Phillips,

217 Ill. 2d 270, 288 (2005). However, defendant provides no legal support demonstrating that a

trial court actually commits error when it does admonish a defendant regarding his stipulation

rights. Cf. Phillips, 217 Ill. 2d at 283 (error occurs where the defendant is not admonished and


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the subsequent stipulation is tantamount to a guilty plea).

       Assuming, arguendo, that admonishing a defendant when it is not required amounts to

error, we agree with the State that defense counsel essentially invited the error when it asked the

court to assist in addressing "preliminary matters.” See People v. Parker, 223 Ill. 2d 494, 508

(2006) (a defendant may not request to proceed in one way at trial and then argue on appeal that

it was error to proceed that way). The record demonstrates that defense counsel made the court

privy to her concerns regarding whether defendant appreciated the seriousness of the charges

against him and then asked the court to address defendant’s belief that his rights against double

jeopardy were being violated. Only then did the court explain the basis of the crime for which he

was charged, specifically announcing that his prior felony conviction was an element therein.

Thereafter, defense counsel and defendant repeatedly engaged the trial court in a dialogue

regarding the proposed stipulation. The court attempted to ensure that defendant understood the

concept of a stipulation, especially after defense counsel and defendant’s difference of opinion

was readily apparent. Moreover, contrary to defendant’s recitation of the proceedings, defense

counsel never objected to the court’s admonishment; rather, defense counsel objected to

defendant’s refusal to agree to the stipulation. Further, the record demonstrates that defense

counsel encouraged the admonishment by saying that "[defendant] needs to acknowledge

whether or not he wants to stipulate *** or he wants the [S]tate to have the certified copy

[submitted].” Accordingly, we find that the trial court did not err in admonishing defendant

regarding the proposed stipulation.

       We are not persuaded by defendant’s next argument that the trial court erred in failing to


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accept defense counsel’s offer to stipulate over defendant’s dissent. The law clearly states that a

defense counsel may not stipulate to evidence if a defendant objects to the stipulation. In

Phillips, our supreme court reaffirmed its prior holding announced in People v. Campbell, 208

Ill. 2d 203 (2003), which clarified when a defense attorney could enter into a stipulation and

when a defendant was required to personally waive his right to confrontation. Phillips, 217 Ill.

2d at 283. Specifically, the supreme court stated that " '[w]e agree that defense counsel may

waive a defendant’s right of confrontation as long as the defendant does not object and the

decision to stipulate is a matter of trial tactics and strategy.’ ” (Emphasis added.) Phillips, 217

Ill. 2d at 283, quoting Campbell, 208 Ill. 2d at 217. In determining that the Campbell criteria had

been met, the Phillips court specifically noted that the defendant was present when the State

repeatedly referred to the stipulation at issue and also when defense counsel announced that he

had no objection to the stipulated evidence, yet the defendant never objected. Phillips, 217 Ill. 2d

at 286-87. Conversely, in the case at bar, there is no dispute that defendant repeatedly objected

to the proposed stipulation. Moreover, we need not engage in a balancing test as to whether

admission of defendant’s record of conviction was more prejudicial than probative because

defendant did not agree to stipulate to his prior conviction. See People v. Walker, 211 Ill. 2d

317, 338 (2004) ("the trial court should require the prosecution to meet its evidentiary obligation

of proving felony status by using [a] *** stipulation if one is offered by the defendant” because

the probative value of the record of conviction is outweighed by the potential for unfair prejudice

(emphasis added)); see also People v. Lindsey, 324 Ill. App. 3d 193, 199 (2001). Accordingly,

we find that the trial court did not err in refusing to accept defense counsel’s stipulation over


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defendant’s dissent.

           Defendant next contends, and the State concedes, that defendant’s multiple convictions

for unlawful use of a weapon by a felon should be merged into one conviction. At the time of his

offense, defendant’s two convictions for unlawful use of a weapon based on the firearm and the

ammunition constituted a single offense. People v. Carter, 213 Ill. 2d 295, 300-04 (2004);

People v. Tolliver, 363 Ill. App. 3d 94, 97 (2006).2 Consequently, pursuant to our authority

under Supreme Court Rule 615(b)(1) (134 Ill. 2d R. 615(b)(1)), we vacate defendant’s conviction

and sentence for unlawful use of a weapon by a felon under count IV of the indictment and direct

the circuit clerk to amend defendant’s mittimus accordingly. See People v. McCray, 273 Ill.

App. 3d 396, 403 (1995).

           Defendant additionally contends that his sentence is excessive in light of mitigating

factors.

           A trial court’s sentence may not be disturbed absent an abuse of discretion. People v.

Perruquet, 68 Ill. 2d 149, 154 (1977). According to the Illinois Constitution, a sentence must be

balanced between the seriousness of the offense at issue and the potential for the defendant’s

rehabilitation. See Ill. Const. 1970, art. I, §11. The trial court is considered the best place to

make such a determination; therefore, a trial court’s sentence is entitled to great deference and


           2
               Section 24-1.1 of the Criminal Code of 1961 (Code) was later amended by Public Act

94-284 (Pub. Act. 94-284, eff. July 21, 2005), such that possession of any firearm or firearm

ammunition constitutes a single and separate violation of the statute. 720 ILCS 5/24-1.1(e)

(West 2006).

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weight. Perruquet, 68 Ill. 2d at 154. Further, the trial court has the opportunity to weigh factors

such as the defendant’s credibility, demeanor, general moral character, mentality, social

environment, habits and age. People v. Stacey, 193 Ill. 2d 203, 209 (2000). As a result, a

reviewing court may not substitute its judgment for that of the trial court simply because it would

have weighed those factors differently. Stacey, 193 Ill. 2d at 209. Moreover, a sentence within

the statutory limits will not be considered excessive unless it greatly varies with the spirit and

purpose of the law or is manifestly disproportionate to the nature of the offense. Stacey, 193 Ill.

2d at 210.

       Defendant was convicted under section 24-1.1 of the Code and was eligible for a sentence

ranging between 3 and 14 years because his conviction was a Class 2 felony based upon the fact

that his Wisconsin conviction was considered a forcible felony. 720 ILCS 5/24-1.1(e) (West

2004). Accordingly, defendant’s 12-year term of imprisonment was within the statutory limits.

       Furthermore, review of the record demonstrates that the trial court considered both

mitigating and aggravating factors before fashioning its sentence. Cf. People v. Juarez, 278 Ill.

App. 3d 286, 294-95 (1996) (the defendant’s sentence was found excessive where the trial court

failed to specify on the record, in violation of the Code, the factors influencing the sentence for

the defendant’s violent crime and did not take into account the defendant’s rehabilitation

potential). Although defendant lacked an extensive criminal record, at the time of the offense, he

was a 63-year-old felon who kept a loaded rifle in his home. Little information was garnered

from his presentence investigation report because defendant initially refused to provide answers

and then eventually provided only terse responses to the questions posed by the investigator. The


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information that the trial court noted was that defendant revealed no past or present familial

stressors, psychiatric problems or drug addictions. The court further provided defendant an

opportunity to enlighten it as to his background; however, defendant refused. Instead, defendant

continued to plead his innocence. While we recognize that defendant’s sentence was merely two

years below the maximum allowed, the trial court had the opportunity to observe defendant’s

credibility, demeanor, general moral character, mentality, social environment, habits and age, and

we will not disturb the sentence simply because we may have weighed those factors differently.

Stacey, 193 Ill. 2d at 209. Consequently, keeping in mind the great deference afforded to the trial

court, we find that the court did not abuse its discretion in sentencing defendant.

       We are not persuaded by defendant’s argument that the trial court improperly enhanced

his sentence by considering his prior felony as a factor in aggravation. As we previously

discussed, defendant’s sentence was within the permissible range and therefore was not

enhanced. Cf. 730 ILCS 5/5-8-2 (West 2004) (extended-term sentencing statute). Moreover,

contrary to defendant’s assertion, our review of the record demonstrates that the trial court did

not impermissibly rely on defendant’s prior felony conviction in aggravation; rather, in

announcing its sentence, the court merely discussed the prior conviction as an element of the

underlying conviction. Cf. People v. Gonzalez, 151 Ill. 2d 79, 83-84 (1992) (it is impermissible

for a court to consider a "single factor both as an element of the defendant’s crime and as an

aggravating factor justifying the imposition of a harsher sentence” (emphasis in original) than

that within the appropriate range). Defendant’s argument, therefore, is without merit.

       We are additionally not persuaded by defendant’s argument that the trial court imposed


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his sentence in retaliation for his decision to proceed to trial. Defendant’s argument completely

relies on the fact that, prior to trial, the State offered to recommend a three-year prison term in

exchange for his plea of guilty, and, when it was announced to the trial court, the court explained

that if defendant accepted the offer he would receive credit for the time he already served.

Because he refused the offer, defendant argues that the trial court imposed a "trial tax” on his

sentence. We find no merit to this claim. The State’s plea offer was presented absent court

involvement. The court was not privy to the plea negotiations and did not participate in a

Supreme Court Rule 402 conference (177 Ill. 2d R. 402). Moreover, defendant has not

presented, and our review of the record has not uncovered, any evidence that the trial judge

imposed a more severe sentence in retaliation of defendant’s refusal to plead guilty. People v.

Ward, 113 Ill. 2d 516, 526-27 (1986) (review of the record as a whole must clearly demonstrate

that the sentence was improperly imposed before its reversal is warranted). In sum, we do not

find that the trial court abused its discretion in fashioning defendant’s sentence.

       Defendant finally contends, and the State concedes, that he was erroneously assessed the

$20 Violent Crime Victims Assistance Fund fine because it applies only where "no other fine is

imposed” (725 ILCS 240/10(c) (West 2004)) and defendant was also assessed the $100 Trauma

Center Fund fine pursuant to section 5-9-1.10 of the Unified Code of Corrections (730 ILCS 5/5-

9-1.10 (West 2004)). See People v. Jones, 223 Ill. 2d 569, 593 (2006) (the Trauma Center Fund

charge is considered a fine). Accordingly, we vacate defendant’s Violent Crime Victims

Assistance Fund fine and instruct the circuit clerk to correct defendant’s mittimus accordingly.

134 Ill. 2d R. 615(b)(1); see People v. McCray, 273 Ill. App. 3d 396, 403 (1995).


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       Accordingly, we affirm the judgment of the circuit court of Cook County. We, however,

vacate one of defendant’s convictions for unlawful use of a weapon by a felon and the

accompanying sentence and vacate his Violent Crime Victims Assistance Fund fine. We instruct

the clerk to correct defendant’s mittimus as described.

       Affirmed as modified; mittimus corrected.

       THEIS, J., and CUNNINGHAM, J. concur.




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