                                    2019 IL App (1st) 163018


                                                                                 FIRST DIVISION
                                                                                   March 29, 2019


                                          No. 1-16-3018


THE PEOPLE OF THE STATE OF ILLINOIS,      )     Appeal from the Circuit Court of
                                          )     Cook County
                   Plaintiff-Appellee,    )
                                          )
v.                                        )     No. 15 CR 13703
                                          )
RODNEY BURNETT,                           )
                                          )     Honorable Matthew E. Coghlan
                   Defendant-Appellant.   )     Judge Presiding
______________________________________________________________________________

       JUSTICE GRIFFIN delivered the judgment of the court, with opinion.
       Justices Pierce and Walker concurred in the judgment and opinion.


                                            OPINION

¶1     Defendant Rodney Burnett appeals his criminal conviction stemming from his arrest for

unlawfully possessing a weapon. Defendant argues that his trial counsel was ineffective for

failing to file a motion to quash his arrest since, according to defendant, he was arrested without

probable cause. However, because there was no pretrial hearing concerning probable cause, the

record before us is inadequate to permit review of whether a motion to quash arrest would have

had merit. Essentially all we have in the appellate record is the arresting officer’s trial testimony

and, since probable cause for the arrest was not an issue at trial, there are insufficient facts to

address the matter on direct review. Unable to provide meaningful review, we decline to address

defendant’s ineffective assistance of counsel claim and, if defendant wishes to pursue the matter,
No. 16-3018


we direct him to do so through the postconviction process. We affirm.

¶2                                      I. BACKGROUND

¶3     On July 21, 2015, three officers from the Chicago Police Department were on patrol in a

police vehicle when they spotted a van that had no front license plate. The officers made a traffic

stop, exited their police vehicle, and approached the van. The van had three occupants: the driver

and then two individuals in the second row of seats. A third row of seats in the back of the van

was unoccupied. Officer Thomas Murphy approached the driver’s window, Officer Nicholas

Saviano approached the passenger side of the vehicle, and Officer Michael Walsh positioned

himself near the rear of the vehicle on the driver’s side.

¶4     Officer Walsh observed one of the backseat passengers, defendant Rodney Burnett, lean

to the left, reach near his waistband, and remove an L-shaped dark object that he then placed

backwards onto the vacant third row of seats. Meanwhile, the driver could not produce a driver’s

license to Officer Murphy, so Officer Murphy ordered the occupants out of the vehicle. After the

men exited the van, Officer Walsh entered the vehicle and retrieved the object he had seen

defendant place on the third row of seats. It was a semiautomatic handgun. Defendant was

arrested.

¶5     Defendant did not have a valid firearm owner’s identification card or a concealed carry

license so he was charged with aggravated unlawful use of a weapon. Defendant had a prior

conviction for possessing an altered credit card, so he had a felony record and was also charged

with unlawful use of a weapon by a felon. There is no indication that the officers knew about

defendant’s felony record or that he did not have a firearm owner’s identification card or

concealed carry license before arresting him.

¶6     Defendant was tried by a jury and found guilty. The trial court merged defendant’s



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No. 16-3018


unlawful use of a weapon by a felon conviction into his aggravated unlawful use of a weapon

conviction. He was sentenced to four and half years in prison.

¶7        On appeal, defendant argues that he was deprived of his constitutional rights because he

did not receive effective assistance of counsel. Defendant argues that his trial counsel was

constitutionally deficient for failing to file a motion to quash his arrest. Defendant maintains that

he was arrested without probable cause because, at the time he was arrested, the only evidence

against him was that he possessed a gun. In light of recent rulings by our courts, defendant

argues that the mere possession of a gun is no longer sufficient to establish probable cause to

justify an arrest. Thus, defendant contends that his asserted basis for a motion to quash his arrest

is meritorious and that there is a reasonable probability that the outcome of the case would have

been different had a motion to quash the arrest been filed.

¶8                                       II. ANALYSIS

¶9        The United States Constitution guarantees criminal defendants the right to effective

assistance of counsel. U.S. Const. Amend. VI (West 2016). Thus, where a criminal defendant is

convicted of an offense but did not receive constitutionally adequate representation, he can seek

relief to vindicate his constitutional right to counsel. People v. Burnett, 385 Ill. App. 3d 610, 614

(2008). To be entitled to relief on a claim of ineffective assistance of counsel, a defendant must

show that his counsel’s representation fell below an objective standard of reasonableness and

that he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 694 (1984);

People v. Scott, 2015 IL App (1st) 131503, ¶ 27. We analyze claims of ineffective assistance of

counsel by considering the entire record. People v. Hommerson, 399 Ill. App. 3d 405, 415

(2010).

¶ 10      This appeal presents a question that stems in part from our supreme court’s decision in



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No. 16-3018


People v. Aguilar, 2013 IL 112116. In Aguilar, our supreme court declared as unconstitutional

the statute that categorically criminalized the possession of a weapon outside the home. People v.

Aguilar, 2013 IL 112116, ¶¶ 20-22. Since Aguilar was decided, this court has had occasion to

visit the parameters of the constitutional right to possess a weapon and the contours of the laws

that the State may enact to criminalize the possession of weapons. Defendant argues in this case

that the officer’s mere observation of him in possession of a handgun in the back of the van,

without any other evidence, was insufficient to establish probable cause to arrest him.

¶ 11      The record before us does not contain sufficient information about the circumstances of

defendant’s arrest from which we could determine whether he has an arguably meritorious

claim—i.e. whether he was prejudiced by counsel not filing a motion to quash arrest. Because

the case just went to trial and defendant did not seek to quash his arrest, the State was only

concerned with proving that defendant committed the charged offenses. The State had no reason

to demonstrate the factual basis that putatively gave the officers probable cause to arrest

defendant in the first place. As the United States Supreme Court has observed, a reviewing court

often cannot entertain a claim of ineffective assistance of counsel on direct review when the

claimed error was not a focus in the case below. Massaro v. United States, 538 U.S. 500, 504-05

(2003).

¶ 12      At trial, Officer Walsh testified that he saw defendant with what looked like a weapon,

recovered the weapon from the vehicle, and arrested defendant. Defendant’s argument is that,

under Aguilar and other precedents, his possession of the weapon in and of itself did not give the

officers probable cause for an arrest because possessing a weapon, absent any other facts, is not a

crime. See Aguilar, 2013 IL 112116, ¶¶ 20-22. However, due to the insufficiency of the record

for this purpose, we have no way of knowing what the officers’ probable cause determination



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No. 16-3018


was based upon, so we have no way of knowing whether counsel could be considered ineffective

for failing to file a motion to quash arrest.

¶ 13    The Illinois Supreme Court recently addressed the propriety of this court declining to

consider certain ineffective assistance of counsel claims on direct review. People v. Veach, 2017

IL 120649, ¶¶ 31, 39. The supreme court stated its view that “ineffective assistance of counsel

claims may sometimes be better suited to collateral proceedings but only when the record is

incomplete or inadequate for resolving the claim” (id. at ¶ 46) and instructed us to “carefully

consider each ineffective assistance of counsel claim on a case-by-case basis” (id. at ¶ 48) to

determine if the circumstances permit us to adequately address a defendant’s ineffective

assistance of counsel claim on direct review. See also People v. Bew, 228 Ill. 2d 122, 134-35

(2008). In this case, it is clearly apparent that meaningful review of defendant’s claim cannot be

had without a supplemented record.

¶ 14    Defendant attempts to spin the lack of testimony about probable cause into a conclusion

that there was no probable cause. Defendant states that “[t]here was no evidence that before

police arrested [him], they had probable cause to believe that he lacked a firearm owner’s

identification card or a concealed-carry license or was not supposed to have a firearm.”

Defendant states that “[t]he sole basis for the arrest was that Burnett possessed a gun in public,”

and, thus, the arrest was illegal. But he is drawing an affirmative conclusion from a negative

premise. The lack of evidence currently in the record concerning probable cause and the

officers’ pre-arrest beliefs cannot be equated with fact—that there was no evidence to support a

probable cause determination. The State did not need to show justification for the arrest at trial

because it was not an issue, and the lack of evidence demonstrating probable cause currently in

the record does not demonstrate that the arrest was, in fact, unjustified.



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No. 16-3018


¶ 15   Per the charged offenses, the only things the State was concerned with proving at trial

were: that defendant had possession of an immediately accessible weapon, that he did not have a

firearm owner’s identification card or a concealed carry license, and that he was a felon. The

officers’ probable cause determination was not challenged, so we have no way to know what the

officers took into account in arriving at their determination that they had probable cause to arrest

defendant.

¶ 16   A direct appeal of his conviction is not the appropriate vehicle for defendant’s claim.

Defendant seems to have at least raised a possibility that it could have been wise for counsel to

have filed the motion to suppress that he now envisions. But there are countless unknowns that

would leave us to completely speculate about whether the motion could have succeeded or

whether counsel should have even filed the motion. To further demonstrate the unsuitability of

adjudicating the issue raised on appeal, at oral argument, the State made a contention for the first

time that it was a crime—a violation of the concealed carry law—simply for the defendant to

have placed the weapon on an open seat and not keep it concealed on his person. As also

discussed at the oral argument and acknowledged by defendant in response to our questioning,

defendant’s conduct in trying to hide the weapon during the traffic stop might represent some

consciousness of guilt that could factor into a probable cause determination. It would be

imprudent for us to reach the question about the existence of probable cause at this stage in the

case because there is too much potential information to which we are not privy and because the

issue was not visited by the circuit court. For defendant to meet his burden of showing that his

trial counsel was deficient for the purpose of obtaining relief on an ineffective assistance of

counsel claim, defendant must establish a factual basis for his claim. He cannot do so on direct

review in this case. Because the record is insufficient, we must affirm.



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No. 16-3018


¶ 17    As an alternative request for relief, defendant urges us to retain jurisdiction and remand

the case for an evidentiary hearing on the question of counsel’s ineffectiveness. Counsel’s

alleged ineffectiveness is not apparent from the record—it involves defendant producing

evidence of facts or the nonexistence of facts to support the claims made for the first time after

the trial court proceedings concluded. Defendant cites People v. Fellers, 2016 IL App (4th)

140486, ¶¶ 34-36 to support his position that remanding for a hearing while retaining jurisdiction

is appropriate. But the court in Fellers retained jurisdiction and remanded for a hearing expressly

because postconviction relief was not available because the defendant had already served his

sentence. Id. at ¶ 36. There is no reason to apply an exception to the rule here, defendant has the

full array of postconviction remedies available for him to pursue. Defendant is collaterally

attacking his trial proceedings and there is a full collateral proceeding available to him that

would allow defendant a chance to develop the necessary factual record to collaterally attack the

judgment. If defendant so chooses, the proper course for him to take in this case is to pursue

relief under the Postconviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2016)). Bew, 228

Ill. 2d at 135.

¶ 18    The only way for defendant to show that his counsel was ineffective is to make a record

of the facts that led to his arrest and show that the officers lacked probable cause. We have no

record primarily concerned or even concerned at all with the events that led to defendant’s arrest.

A collateral proceeding is the only way for defendant to supplement the record with the facts he

would need to substantiate his claim. Defendant has not and cannot meet his burden to show that

he was denied the effective assistance of counsel absent him presenting evidentiary facts or the

nonexistence of such facts pertaining to the officers’ probable cause determination. Defendant

provides no compelling reason as to why he should bypass the process set up for exactly this



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No. 16-3018


type of challenge. We decline to reach the merits of defendant’s ineffective assistance of counsel

claim and we, thus, affirm.

¶ 19   Defendant also contests several of the fines and fees that the trial court assessed against

him. Defendant argues that the $5 electronic citation fee and the $5 court system fee were

wrongly imposed. Defendant also argues that the $15 State Police operations fee, the $50 court

system fee, the $25 Clerk’s records automation fee, the $2 State’s Attorney records automation

fee, the $2 Public Defender records automation fee, the $25 document storage fee, and the $190

felony complaint filing fee all constitutes fines, not fees, and are subject to offset by his per diem

presentence credit.

¶ 20   The State accedes to defendant’s request that we vacate the $5 electronic citation fee and

the $5 court system fee. The State agrees that the $50 court system fee and the $15 State Police

operations fee are fines, not fees, and are subject to offset by defendant’s per diem presentence

credit. The State, however, contends that the $25 Clerk’s records automation fee, the $2 State’s

Attorney records automation fee, the $2 Public Defender records automation fee, the $25

document storage fee, and the $190 felony complaint filing fee were correctly imposed and,

being fees and not fines, are not subject to offset by presentence credit.

¶ 21   While this appeal was pending, our Supreme Court decided a case that provides some

clarity on the fines versus fees issue. See People v. Clark, 2018 IL 122495. The supreme court

held that the Public Defender records automation fee (¶ 22), the State’s Attorney records

automation fee (¶ 27), the felony complaint filing fee (¶ 34), the Clerk’s records automation fee

(¶ 41), and the document storage fee (¶ 49) are all properly classified as fees, not fines, and are

not subject to offset by presentence credit. Clark, 2018 IL 122495, ¶ 51.

¶ 22   Based on the foregoing, we vacate the $5 electronic citation fee and the $5 court system



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No. 16-3018


fee. The $50 court system fee and the $15 State Police operations fee are subject to offset by

defendant’s per diem presentence credit. The $25 Clerk’s records automation fee, the $2 State’s

Attorney records automation fee, the $2 Public Defender records automation fee, the $25

document storage fee, and the $190 felony complaint filing fee stand as proper fees that are not

subject to offset by presentence credit.

¶ 23                                   III. CONCLUSION

¶ 24   Accordingly, we affirm. Fines and fees order corrected consistent with ¶ 24 supra.

¶ 25   Affirmed.




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