People v. Brown

2021 IL App 190286-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN L. BROWN, Defendant-Appellant.

No. 4-19-0286

Court of Appeals of Illinois, Fourth District

September 9, 2021

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Woodford County No. 18CF176 Honorable Charles M. Feeney III, Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court. Presiding Justice Knecht and Justice Steigmann concurred in the judgment.

ORDER

DeARMOND, JUSTICE.

¶ 1 Held: The appellate court affirmed, finding that although trial counsel erred by failing to offer to stipulate to defendant's felon status as an element of the offense charged and failing to submit the relevant limiting instruction, based on the evidence, we cannot say counsel's errors rendered the result of the trial unreliable or the proceeding fundamentally unfair.

¶ 2 In November 2018, defendant Stephen L. Brown was indicted on one count of unlawful possession of a weapon by a felon, a Class 2 felony based on a previous conviction for the Class 2 delivery of a controlled substance (720 ILCS 5/24-1.1(a) (West 2018)). Defendant proceeded to a jury trial with retained counsel in March 2019 and was convicted. No posttrial motion was filed. In May 2019, defendant was sentenced to 11 years in the Illinois Department of Corrections, with a mandatory supervised release term of 2 years. No motion for reconsideration of the sentence was filed. Defendant appeals.

¶ 3 I. BACKGROUND

¶ 4 Defendant was arrested on November 8, 2018, as the result of a search warrant executed that day on a residence he shared with his then-girlfriend, Michelle Potts. Potts had contacted her sister, Samantha Regenold, asking to be taken to the hospital. While there, Potts told Regenold about finding a handgun between the mattress and box springs of the bed she shared with defendant, a known felon, and Regenold informed the police. Based on that information and a key to the room they obtained indirectly from Potts, officers executed a search warrant, recovering a Taurus 9-millimeter semi-automatic handgun with a loaded magazine from the location described. Defendant was arrested and charged with unlawful possession of a weapon by a felon-subsequent offense (720 ILCS 5/24-1.1(a), (e) (West 2018)), a Class 2 nonprobationable felony punishable by 3 to 14 years in the Illinois Department of Corrections.

¶ 5 Originally represented by an assistant public defender defendant was represented at trial by privately retained counsel. Other than a motion to withdraw, which was later withdrawn prior to trial, no pretrial motions were filed on behalf of defendant. At the two-day jury trial, the State presented testimony from the officers executing the search warrant; chain-of-custody witnesses for the handgun; a forensic scientist, who found no prints suitable for comparison on the handgun seized; Michelle Potts and Samantha Regenold, who testified to the circumstances leading up to informing the police about the presence of the handgun; and Officer Derric Porch, the arresting officer who also took defendant's statement. Officer Porch said defendant initially denied knowing the handgun was under his mattress later saying he knew it was there, but that it was not his. Although defendant initially said he did not touch the handgun, Officer Porch testified that upon being told it was to be sent to the crime lab, defendant then acknowledged he might have touched it. During cross-examination, Officer Porch acknowledged defendant said Potts brought the gun to the residence, and he believed she was "holding" it for some other man she had been seeing secretly.

¶ 6 Defendant elected not to testify, and during the jury instruction conference, the trial court raised the question sua sponte concerning whether to include Illinois Pattern Jury Instructions, Criminal, No. 3.13X (approved Oct. 17, 2014) (hereinafter IPI Criminal No. 3.13X), a limiting instruction on the use of defendant's previous conviction, since it had not been tendered by either the State or defense. IPI Criminal No. 3.13X reads as follows:

"Ordinarily, evidence of a defendant's prior conviction of an offense may [be considered by you only as it may affect his believability as a witness and must] not be considered by you as evidence of his guilt of the offense with which he is charged. However, in this case, because the State must prove beyond a reasonable doubt the proposition that the defendant has previously been convicted of ___, you may [also] consider evidence of defendant's prior conviction of the offense of ___ [only] for the purpose of determining whether the State has proved that proposition."

¶ 7 According to the committee comments, the bracketed material in the first paragraph would not have been given since defendant did not testify. Further, it was to be given only at defendant's request and was to be given "only when an element of the charged offense is that the defendant has been previously convicted of committing a prior offense." (Emphasis in original.) IPI Criminal No. 3.13X, Committee Comments (eff. Oct. 17, 2014).

¶ 8 The trial court ultimately indicated it would submit the instruction as a court's instruction, and when defense counsel was asked if he wished to have the instruction read, he responded, "Judge, I'm going to concede in closing the proposition is met. So we're going to ask that it not be given."

¶ 9 As a result, the trial court declined to read its own instruction. After hearing closing arguments and the court's instructions on the law, the jury deliberated for 35 minutes before returning a verdict of guilty. A presentence investigation and report were ordered. No posttrial motion was filed. When the matter proceeded to sentencing in May 2019, the State presented a certified copy of defendant's previous conviction for unlawful delivery of a controlled substance, showing it to be a Class 2 felony. Defendant presented two letters on his behalf and made a statement in allocution, again claiming his innocence. Noting defendant faced a mandatory penitentiary sentence, the trial court sentenced him to 11 years in the Illinois Department of Corrections, with 2 years of mandatory supervised release. No motion for reconsideration of sentence was filed. Defendant appeals.

¶ 10 II. ANALYSIS

¶ 11 On appeal, defendant claims he was denied the effective assistance of counsel when trial counsel failed to stipulate to his status as a felon for purposes of establishing one element of the offense charged. Although not identified as a separate issue, defendant also claims counsel was ineffective by refusing to permit the trial court to read the limiting instruction, IPI Criminal No. 3.13X, to the jury, informing them of the limited purpose for admission of his previous conviction. Instead, defendant contends both the State and his own counsel made several references to his previous conviction for unlawful delivery of a controlled substance with his attorney going so far as to comment during his closing argument that" [w]e know in 2001 he was slinging [sic] drugs." (We wonder whether perhaps this is an error in transcription and should read "selling.")

¶ 12 The Illinois and United States constitutions guarantee criminal defendants the right to counsel, and the latter mandates," 'the right to counsel is the right to the effective assistance of counsel.'" Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)); U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. When presented with a defendant's ineffective assistance of counsel claim, we apply the well-established, two-part Strickland test. The defendant must prove: (1) counsel rendered deficient performance, meaning counsel's representation fell below an objective standard of reasonableness as gauged by prevailing professional norms and (2) counsel's deficient performance prejudiced the defendant, i.e., but for counsel's errors the result of the proceeding would have been different. See People v. Young, 341 Ill.App.3d 379, 383, 792 N.E.2d 468, 472 (2003) (citing Strickland, 466 U.S. at 687, 694); People v. Peck, 2017 IL App (4th) 160410, ¶ 26, 79 N.E.3d 232. "A defendant must satisfy both prongs of the Strickland standard to prevail on an ineffective assistance of counsel claim." People v. Moore, 2020 IL 124538, ¶ 29, 161 N.E.3d 125 (citing People v. Peterson, 2017 IL 120331, ¶ 79, 106 N.E.3d 944). Our review of trial counsel's decisions regarding trial strategy should be "highly deferential" lest we engage in second-guessing counsel's decisions "through the lens of hindsight." People v. Perry, 224 Ill.2d 312, 344, 864 N.E.2d 196, 216 (2007). "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' [Citation.]" People v. Manning, 241 Ill.2d 319, 334, 948 N.E.2d 542, 551 (2011) (quoting Strickland, 466 U.S. at 689). When asked to review an ineffective assistance of counsel claim not previously raised in the trial court, our review is de novo. People v. Sturgeon, 2019 IL App (4th) 170035, ¶ 85, 126 N.E.3d 703.

¶ 13 To establish deficient performance, "a defendant must show that his counsel's performance fell below an objective standard of reasonableness, as measured by prevailing [professional] norms." People v Poole, 2012 IL App (4th) 101017, ¶ 10, 972 N.E.2d 340. An attorney renders objectively unreasonable performance when he or she commits ...