No. 2--06--0462 Filed: 5-8-08
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, )
)
v. ) No. 04--CF--2889
)
W.B. BOLTON, ) Honorable
) Kathryn E. Creswell,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE GROMETER delivered the opinion of the court:
Defendant, W.B. Bolton, was convicted of burglary (720 ILCS 5/19--1(a) (West 2004)),
following a jury trial in the circuit court of Du Page County. The trial court imposed an extended-
term sentence of 12 years' imprisonment. He now appeals, challenging both his conviction and his
sentence. He argues that the trial court did not conduct an adequate inquiry into his pro se claim of
ineffective assistance of counsel (see People v. Moore, 207 Ill. 2d 68, 77-79 (2003)) and that his
sentence violates the rule set forth in Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435,
455, 120 S. Ct. 2348, 2362-63 (2000). We disagree with both contentions, and, accordingly, we
affirm.
I. BACKGROUND
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Defendant's burglary conviction stems from an incident in which defendant allegedly entered
a grocery store in Wheaton with the intent to commit a theft. Specifically, defendant entered the
store while in possession of a fake identification card and a check belonging to someone else.
Defendant attempted to use the check to purchase various items and also obtain some cash. See
People v. Smith, 264 Ill. App. 3d 82, 86 (1994), quoting People v. Weaver, 41 Ill. 2d 434, 439 (1968)
(" 'But authority to enter a business building, or other building open to the public, extends only to
those who enter with a purpose consistent with the reason the building is open. [Citation.] An entry
with the intent to commit a theft cannot be said to be within the authority granted patrons of a
laundromat' "). Knowingly passing a bad check constitutes theft. People v. Reans, 20 Ill. App. 3d
1005, 1006-08 (1974). Defendant does not challenge the sufficiency of the evidence, so we need not
set it forth in more detail.
Following his trial, defendant filed a pro se motion. The motion contained, inter alia, the
following statement: "Counsel failed to anything [sic] in preparation for a trial, field [sic] no motions
to suppress video, indictment/information, etc." At a hearing on the motion, the trial court asked
about several things defendant listed in the motion regarding his counsel's purported ineffectiveness.
The court first inquired regarding defendant's claim that counsel should have called Officer Gruden
to testify because there was a discrepancy between his police report and a surveillance videotape.
After extensively discussing that claim, the trial court asked, "What else?" Defendant brought up
counsel's failure to call other witnesses, including his sister, to testify. Also, defendant addressed
counsel's failure to place into evidence the clothing he was wearing at the time of his arrest, as there
was apparently some dispute regarding his description. The court then asked, "Okay, Anything
else?" Defendant replied, "It's several things, if you want to get into it." The court stated, "I do want
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to get into it. You've raised the issues so I want you to tell me what your complaints are." Defendant
brought up Gruden again. Defendant then complained that counsel did not keep him adequately
apprised of what was transpiring. Defendant stated that he lost faith in counsel, that counsel failed
to present evidence and withheld evidence, and that counsel refused to file a motion to dismiss as
defendant requested. The court inquired as to the basis of the motion to dismiss, and defendant
explained that he believed that the grand jury testimony did not support the charge. The court again
asked, "Anything else?" Defendant again mentioned Gruden's police report. Once more, the court
asked, "Anything else?" Defendant stated, "There is so much." Defendant explained that he and
counsel did not get along. He also reiterated that counsel did not present "all the facts." Notably,
during this lengthy conversation with the court, despite the court's repeated open-ended questions,
defendant never mentioned suppressing his confession.
The case then moved to the sentencing phase. The presentence report indicated that
defendant had previously been convicted of "Aggravated Vehicle Hijacking" and "Possession of
Controlled Substance." The former is a Class X felony. 720 ILCS 5/18--4(b) (West 2004). The
latter, depending on the circumstances, could be a Class 4 felony. See 720 ILCS 570/402(c) (West
2004). The State, however, had a copy of a sentencing order that it believed was a result of that latter
conviction. According to the order, defendant was actually convicted of possession of a controlled
substance with intent to deliver, a Class 2 felony. That document contained the notation, "PCS W/I."
Defense counsel consulted with defendant, and defendant recalled being convicted only of simple
possession. This difference is important because, if defendant had been previously convicted of two
Class 2 or greater offenses, he was subject to sentencing as a Class X offender. 730 ILCS 5/5--5--
3(c)(8) (West 2004).
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The trial court granted a continuance, and a transcript of the sentencing hearing in the earlier
possession case was obtained. When the hearing resumed, defense counsel pointed out to the trial
court that the transcript stated that the sentencing order was entered on July 25, 1996, but that the
court reporter's certification stated that the hearing at issue took place on July 25, 1997. Defense
counsel stated that, based on this discrepancy, defendant was "still disputing the class of that
offense." The trial court inquired as to the terms of the guilty plea that were reflected in the
transcript. Defense counsel informed the court that the transcript stated that defendant was charged
with a Class 1 felony but that, after a Rule 402 conference (177 Ill. 2d R. 402), it was amended to
a Class 2 felony. The trial court then asked the State whether it had a certified copy of the
conviction. The State indicated that it had only a fax copy,1 but that the copy showed the date of the
conviction as July 25, 1996 (which is also the date indicated in the presentence report). The trial
court noted that the cover page of the transcript was dated July 25, 1996, as well. The transcript is
not a part of the record on appeal. The court then found that the conviction was of a Class 2
felony, specifically noting that nothing corroborated defendant's recollection that the conviction was
of simple possession. It sentenced defendant to 12 years' imprisonment. Defendant now appeals.
II. ANALYSIS
Defendant first argues that the trial court failed to make an adequate inquiry into his pro se
posttrial motion alleging that his trial attorney was ineffective. Defendant also argues that the
1
It is unclear whether this copy of the order is the same one referred to before the sentencing
hearing was continued. The difference is not significant in that neither appears to have been a
certified copy.
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sentence imposed by the trial court violated his right to a jury trial (U.S. Const., amends. VI, XIV).
We will address these arguments in turn.
A. Defendant's Pro Se Posttrial Motion
In People v. Krankel, 102 Ill. 2d 181, 189 (1984), the supreme court held that, where a
defendant has set forth a colorable claim of ineffective assistance of counsel, new counsel should
be appointed before conducting a hearing on that claim. Nevertheless, when a defendant makes a
pro se allegation of ineffective assistance of counsel, it is not always necessary to appoint new
counsel. Moore, 207 Ill. 2d at 77. New counsel is required only where the defendant's allegation
shows "possible neglect" of the case. Moore, 207 Ill. 2d at 78. Conversely, if a claim lacks merit
or concerns matters of trial strategy, new counsel need not be appointed. People v. Williams, 147
Ill. 2d 173, 251 (1991). Thus, the trial court must inquire regarding the factual basis of a defendant's
claim. Moore, 207 Ill. 2d at 77-78. Generally, the inquiry will take one of three forms. Often, some
discussion between the trial court and defense counsel is necessary. Moore, 207 Ill. 2d at 78. The
trial court may also discuss the allegations with the defendant. Moore, 207 Ill. 2d at 78. Finally, the
trial court may rely on its own recollection of trial counsel's performance. Moore, 207 Ill. 2d at 79.
Usually, the relevant question on appeal concerns the adequacy of the trial court's inquiry into the
defendant's claims. People v. Johnson, 159 Ill. 2d 97, 125 (1994).
However, in this case, a preliminary question presents itself. Defendant is arguing that the
trial court should have inquired regarding counsel's failure to file a motion to suppress his
confession. Defendant never mentioned this issue in his pro se posttrial motion or during his
discussion with the trial court regarding his motion. Instead, he merely articulated, in his written
motion, "Counsel failed to anything [sic] in preparation for a trial, field [sic] no motions to suppress
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video, indictment/information, etc." Thus, the question we must first resolve is whether the trial
court was obligated to specifically inquire regarding counsel's not attempting to suppress the
confession, based on defendant's pro se motion's general reference to motions to suppress. Indeed,
characterizing the reference as "general" is probably inappropriate, since defendant articulated three
specific things that he thought should have been suppressed--a video, the indictment, and/or the
information. Cf. People v. Cuadrado, 214 Ill. 2d 79, 89 (2005) ("This court has held that a specific
objection waives all other unspecified grounds").
In any event, the case law we have located is not favorable to defendant's position. In People
v. Reed, 361 Ill. App. 3d 995, 998 (2005), for example, the defendant wrote a letter to the trial court
complaining that his trial attorney, Nolan, failed to subpoena certain witnesses. He enclosed a list
of 20 witnesses as well as letters from some of them. Reed, 361 Ill. App. 3d at 998-99. The trial
court did not address the defendant's letter. Reed, 361 Ill. App. 3d at 999. The reviewing court held:
"Defendant contends that the trial court violated [Krankel] and its progeny by failing
to inquire into his posttrial allegations of ineffective assistance of counsel. We have
reviewed his letter to the trial court, and the conclusory allegations therein do not merit
remand. [Citation.] Defendant does not specify what the witnesses would have said on the
stand or how they would have helped his case." Reed, 361 Ill. App. 3d at 1003.
Thus, in Reed, even though the defendant specified that he was complaining of counsel's failure to
call witnesses and identified 20 of those witnesses, the reviewing court found his allegations
"conclusory" and insufficient to obligate the trial court to inquire further. Thus, it appears that a fair
degree of specificity is necessary to obligate the trial court to inquire regarding a particular subject.
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Similarly, in People v. Horton, 193 Ill. App. 3d 695, 706 (1990), rev'd in part on other
grounds, 143 Ill. 2d 11 (1991), the court, discussing People v. Jackson, 131 Ill. App. 3d 128 (1985),
an early case interpreting Krankel wrote:
"Defendant contends Jackson requires a trial court to probe into a defendant's
allegation of ineffective assistance. This reading is off the mark. Jackson states only that
the factual matters underlying the claim should be examined. The opinion does not state that
the court has an obligation to uncover factual matters defendant may not have articulated."
Some of this language may be a bit broad. There are certain times a court must "probe into a
defendant's allegations of ineffective assistance," namely, when a defendant has set forth sufficient
factual allegations to mandate such an inquiry. Nevertheless, the point of this passage is well taken.
A trial court is under no obligation to inquire regarding unarticulated facts and issues.
Another case that provides us with some guidance is People v. Milton, 354 Ill. App. 3d 283
(2004). There, the First District observed: "Based on the specific facts and claims in defendant's
motions, the court concluded the alleged errors were matters of trial strategy or could be disposed
of based upon the trial judge's knowledge of what occurred at trial." (Emphasis added.) Milton, 354
Ill. App. 3d at 293. The defendant claimed that the trial court did not have sufficient information
to rule on his pro se motion. After rejecting that claim, the court added:
"In addition, defendant had the opportunity to raise any additional facts to support his
motions during sentencing, which was conducted at the same hearing. The court allowed
defendant to speak, and although defendant chose to talk about his motions, he did not
present any specific facts to support his allegations. Instead, he focused on attacking the
police officers' credibility." Milton, 354 Ill. App. 3d at 293.
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Similarly, in this case, defendant was given an extensive opportunity to address the court during the
hearing on his pro se motion. On three occasions, the trial court asked defendant if he had anything
else he wished to bring up. He raised numerous issues, but never mentioned suppressing his
confession. As in Milton, any gap in the trial court's knowledge regarding the potential viability of
a motion to suppress defendant's confession was because of defendant's failure to call the court's
attention to the matter despite having ample opportunity to do so.
Other cases further undermine defendant's argument. In People v. Tursios, 349 Ill. App. 3d
126, 133 (2004), this court stated: "The record in this case simply does not show that the trial court
was presented with specific allegations of ineffective assistance of counsel such that it was required
to inquire further. A trial court is not required to chase after hearsay and rumors." (Emphasis
added.) In People v. Ford, 368 Ill. App. 3d 271, 276 (2006), quoting People v. Burks, 343 Ill. App.
3d 765, 774 (2003), quoting People v. Johnson, 159 Ill. 2d 97, 126 (1994), the First District held:
"In addition, where the trial court's probe reveals that defendant's claims are ' "conclusory,
misleading, or legally immaterial" or do "not bring to the trial court's attention a colorable claim of
ineffective assistance of counsel," the trial court may be excused from further inquiry.' " By
implication, if a defendant's claims are conclusory on their face and the defendant does not provide
any detail when given the opportunity, no further inquiry is needed. A corollary to this conclusion
is that the trial court need inquire about only those matters that a defendant identifies with sufficient
specificity to put the trial court on notice of the issue.
This rule makes sense, and, for that matter, the rule defendant proposes would be
unworkable. If alleging that counsel should have filed a motion to suppress were sufficient to put
a trial court on notice that it is required to inquire about a motion to suppress a confession, it would
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also be sufficient to obligate the trial court to examine every possible sort of motion to suppress. For
example, there was physical evidence presented in this case about which the trial court could have
inquired. Further, if a defendant alleged simply that counsel should have filed a motion, would that
obligate the trial court to inquire regarding every type of potential motion? Imposing a duty upon
the trial court to investigate every potential unarticulated issue, or every such issue implicated by a
general allegation, would, in essence, turn the trial court into counsel for the accused, combing the
record for error.
The better rule requires the trial court to inquire regarding issues of which it has notice.
Indeed, a general allegation may require a general inquiry. That is, if a defendant merely states, "trial
counsel is ineffective," a court should at least ask "how" and give the defendant a chance to
elaborate. In this case, defendant was given repeated chances to elaborate. The trial court asked
defendant at least three times whether he had anything else to add. Defendant articulated several
issues; however, he advances none of them on appeal. The one issue he does raise on appeal,
regarding suppression of his confession, was not presented to the trial court during posttrial
proceedings, except in the most general of ways. Thus, the trial court had no duty to inquire about
it.
Accordingly, we reject defendant's claim of error on this point. Defendant's conviction is
affirmed. If, however, there is a basis for this claim and "defendant can flesh out his claim with
sufficient factual allegations, he may still petition for postconviction relief." Reed, 361 Ill. App. 3d
at 1004.
B. Apprendi
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Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-
63 (2000), holds:
"Other than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt."
Defendant contends that this rule was violated when the trial court determined that he had previously
been convicted of two felonies of Class 2 or greater. Defendant acknowledges that he had been
convicted of one such felony. However, at sentencing, he disputed that he had previously been
convicted of possession of a controlled substance with intent to deliver (720 ILCS 570/401(d) (West
1996)), which is a Class 2 felony. Defendant informed the trial court that he recalled that the
conviction was of simple possession, a Class 4 felony (720 ILCS 570/402(c) (West 1996)). This is
significant because two prior convictions of felonies of Class 2 or greater would subject defendant
to sentencing as a Class X offender. 730 ILCS 5/5--5--3(c)(8) (West 2004). We review this issue
de novo. See People v Johnson, 372 Ill. App. 3d 772, 779 (2007).
The presentence investigation report is ambiguous on this point. It states simply that
defendant was convicted of "Possession of Controlled Substance." It also indicates that defendant
was sentenced to three years' imprisonment. A three-year sentence is within the range of both a
Class 2 and a Class 4 felony. See 730 ILCS 5/5--8--1(a)(5), (a)(7) (West 2004). The State produced
a sentencing order that read "PCS W/I," and it argued that defendant had been convicted of the Class
2 offense. Presumably, "W/I" stands for "with intent." This document was not a certified copy, and
it had been received by fax.
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The trial court granted a continuance so defendant could obtain a transcript of the sentencing
hearing for the earlier offense. When the hearing recommenced, defense counsel acknowledged that
the transcript stated that defendant had been charged with a Class 1 felony and that, after a Rule 402
conference, the charge was amended to a Class 2 felony. However, defense counsel pointed out that
the transcript states that defendant was convicted on July 25, 1996, but the court reporter's
certification of the transcript indicates that the hearing was held on July 25, 1997, a year later.
Defendant continued to object to the transcript based on this discrepancy.2 The State produced a fax
copy of the conviction, but did not produce an original. The trial court considered all of the
documents produced by the parties as well as defendant's purported recollection of the earlier
conviction. It found that defendant had been convicted of a Class 2 felony and was thus eligible for
Class X sentencing.
Defendant now argues that, since this finding increased the range of his possible punishment
to the Class X level, Apprendi requires that it should have been made by the jury. Defendant does
not contend that the trial court made the wrong decision (i.e., that the decision was against the
manifest weight of the evidence); rather, he questions the trial court's authority to decide the issue
at all. On its face, Apprendi exempts from its scope "the fact of a prior conviction." Apprendi, 530
U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. Defendant emphasizes that the relevant fact
in this case, namely, the class of the felony of which he was previously convicted, was disputed. He
asserts, "Under Apprendi, contested facts that go beyond the mere fact of a prior conviction are
subject to traditional jury trial and due process safeguards." Defendant points to a passage from
2
Defendant does not press this argument on appeal and instead focuses on the propriety of
the trial court determining what offense he had been convicted of.
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Apprendi, 530 U.S. at 488, 147 L. Ed. 2d at 454, 120 S. Ct. at 2361-62, where the Court, discussing
the recidivism exception to the jury trial requirement set forth in Almendarez-Torres v. United
States, 523 U.S. 224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998), explained that, because the
defendant in Almendarez-Torres admitted to three earlier convictions, any due process and sixth
amendment concerns were minimized regarding the judge deciding the fact of the earlier convictions
that increased the defendant's punishment. In the present case, defendant has made no such
admission. It is defendant's position, in essence, that, unless every fact about a conviction is
undisputed and the sole question is whether a precisely defined conviction occurred, the question
must be submitted to the jury.
We do not believe that this line between contested and admitted facts is the one drawn by
Apprendi and its progeny. The key question is not whether the facts regarding the prior conviction
are disputed; rather, the issue is what material the fact finder must use to resolve that dispute. That
was made clear in Shepard v. United States, 544 U.S. 13, 161 L. Ed. 2d 205, 125 S. Ct. 1254 (2005).
Shepard involved a prosecution under the Career Criminals Amendment Act of 1986, popularly
known as the Armed Career Criminal Act (the Act) (18 U.S.C. §924(e) (2000 ed. and Supp. II)).
Convictions of certain "violent felonies" result in sentencing enhancements under the Act. Shepard,
544 U.S. at 15, 161 L. Ed. 2d at 211, 125 S. Ct. at 1257. Burglary is a violent felony only if
committed in an enclosed space or building (called "generic burglary"), but not if committed in a
motor vehicle or boat. Some states' burglary statutes do not draw this distinction, so it is necessary
to conduct a further inquiry to determine whether a burglary in such a state constituted a violent
crime for the purposes of the Act. The Court had decided in a pre-Apprendi case that a trial court
may consider the statutory elements of a crime, the charging documents, and the jury instructions
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to determine whether an earlier burglary conviction constituted a violent felony for the purpose of
enhancing a sentence under the Act. Taylor v. United States, 495 U.S. 575, 602, 109 L. Ed. 2d 607,
629, 110 S. Ct. 2143, 2160 (1990). The Court noted that the Act "generally supports the inference
that Congress intended the sentencing court to look only to the fact that the defendant had been
convicted of crimes falling within certain categories, and not to the facts underlying the prior
convictions." Taylor, 495 U.S. at 600, 109 L. Ed. 2d at 628, 110 S. Ct. at 2159.
In Shepard, the State argued that, in addition to the materials approved in Taylor, it should
be able to offer police reports and complaint applications to establish that an earlier conviction was
of generic burglary. Shepard, 544 U.S. at 16, 161 L. Ed. 2d at 211, 125 S. Ct. at 1257. The Court
rejected the State's argument; however, it did expand somewhat the list that it had set forth in Taylor
somewhat to include: "the statutory definition, charging document, written plea agreement, transcript
of plea colloquy, 3 and any explicit factual finding by the trial judge to which defendant assented."
Shepard, 544 U.S. at 16, 161 L. Ed. 2d at 211, 125 S. Ct. at 1257. The Court later added "or to some
comparable judicial record of this information," which would presumably encompass things like a
bystander's report. Shepard, 544 U.S. at 26, 161 L. Ed. 2d at 218, 125 S. Ct. at 1263. The Court also
explained:
"While the disputed fact here can be described as a fact about a prior conviction, it is too far
removed from the conclusive significance of a prior judicial record, and too much like the
findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a
3
More specifically, a transcript of a plea colloquy where the defendant "accepted findings of
fact confirming the factual basis for a valid plea." Shepard, 544 U.S. at 25, 161 L. Ed. 2d at 217, 125
S. Ct. at 1262.
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judge to resolve the dispute." (Emphasis added.) Shepard, 544 U.S. at 25, 161 L. Ed. 2d at
217, 125 S. Ct. at 1262.
The problem with allowing a trial court to rely on police reports and complaint applications is that
it involves the court in making findings about the facts underlying the previous conviction as
opposed to about the conviction itself.
The Seventh Circuit provides a useful summary of Shepard:
"As the Court explained in Shepard, [544 U.S. at 25-26, 161 L. Ed. 2d at 217, 125
S. Ct. at 1262,] a sentencing court is entitled to classify and take into account the nature of
a defendant's prior convictions, provided that the judge does not engage in factfinding about
what the accused did (as opposed to what crime he has been convicted of). [The defendant]
does not contend that the judge went behind the existence of his priors to engage in a factual
rather than a legal analysis of his former criminal behavior." (Emphasis in original.) United
States v. Carpenter, 406 F.3d 915, 917 (7th Cir. 2005).
Indeed, it would be no more appropriate for a trial court to enhance a defendant's sentence based on
an examination of the facts underlying a conviction than it would be to permit a defendant during
sentencing to collaterally attack an earlier conviction in hopes of a more lenient sentence.
With these principles in mind, we will reexamine the actions the trial court took in
determining whether defendant was subject to sentencing as a Class X offender. The trial court first
considered the presentence report, which contained the notation, "Possession of Controlled
Substance," but did not elaborate further. The court also considered defendant's recollection of the
earlier proceedings. Defense counsel informed the trial court, after conferring with defendant, that
"that case was a simple possession, Class 4 felony." The State presented a fax copy of a sentencing
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order, which apparently read "PCS W/I." Finally, the trial court considered a transcript of the
sentencing hearing in the earlier case. All we know about that transcript, which has not been made
part of the record, is that it indicates that defendant was charged with a Class 1 felony, but, after a
Rule 402 conference, the charge was amended to a Class 2 felony. Notably, we do not know what
was presented as the factual basis for defendant's plea. This is significant, for, in accordance with
Shepard, 544 U.S. at 25, 161 L. Ed. 2d at 217, 125 S. Ct. at 1262, a court may consider a
"defendant's own admissions or accepted findings of fact confirming the factual basis for a valid
plea."
Defendant, as the appellant, bore the burden of presenting a sufficient record on appeal to
allow effective review. People v. Kamide, 254 Ill. App. 3d 67, 74 (1993). Therefore, "[w]hen the
record presented on review is incomplete, a reviewing court must construe any omission in favor of
the judgment rendered by the court below." People v. James, 337 Ill. App. 3d 532, 533 (2003).
Accordingly, we must assume that the transcript of the earlier plea hearing contained a sufficient
factual basis of a Class 2 felony to support the trial court's ruling and that defendant assented to that
factual basis.
Thus, the trial court did not violate the rule set forth in Shepard. As set forth above, the court
focused its inquiry on what the court did in the earlier proceeding. It looked to the presentence
report, which stated simply "Possession of Controlled Substance" without providing any detail, a
sentencing order, and a transcript, the discussion of which concerned the charge to which defendant
pleaded guilty. There is no indication that the trial court considered defendant's actual conduct as
it related to that earlier conviction. Examining the results of the proceedings as they are embodied
in the documents permitted by Shepard is perfectly acceptable. Carpenter, 406 F.3d at 917. The trial
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court did not go "behind the existence of his priors to engage in a factual rather than a legal analysis
of his former criminal behavior." Carpenter, 406 F.3d at 917. Since the trial court remained within
the bounds of the inquiry permitted by Shepard, we affirm defendant's sentence.
III. CONCLUSION
In light of the foregoing, the judgment of the circuit court of Du Page County is affirmed.
Affirmed.
BOWMAN and CALLUM, JJ., concur.
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People v. Bolton
Combined Opinion