People v. Curry

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Appellate Court Date: 2018.06.18
09:56:55 -05'00'

People v. Curry, 2018 IL App (1st) 152616

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JARROD CURRY, Defendant-Appellant.

District & No. First District, Sixth Division
Docket No. 1-15-2616

Filed February 13, 2018

Decision Under Appeal from the Circuit Court of Cook County, No. 13-CR-22405; the
Review Hon. Carol M. Howard, Judge, presiding.

Judgment Affirmed in part, vacated in part, and mittimus corrected; fines and
fees order corrected.

Counsel on Michael J. Pelletier, Patricia Mysza, and Meredith N. Baron, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Clare Wesolik Connolly, Mary P. Needham, and Scheagbe Mayumi
Grigsby, Assistant State’s Attorneys, of counsel), for the People.

Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
Justices Connors and Delort concurred in the judgment and opinion.
 OPINION

¶1 Following a bench trial, the defendant-appellant, Jarrod Curry, was convicted of armed
violence (count I), possession of a controlled substance with intent to deliver more than 15
grams but less than 100 grams of heroin (count II), and possession of a controlled substance
with intent to deliver less than 1 gram of cocaine within 100 feet of a park (count III). He was
sentenced to 15 years’ imprisonment on count I, 15 years’ imprisonment on count II, and 5
years’ imprisonment on count III, with all three sentences to run concurrently. The defendant
now appeals. For the following reasons, we affirm the judgment of the circuit court of Cook
County in part, vacate the judgment in part, order the mittimus to be corrected, and order the
fines and fees to be corrected.

¶2 BACKGROUND
¶3 At the defendant’s bench trial, Sergeant David Koenig, Officer Jose Rojas, and Officer
Richard Piek of the Chicago Police Department testified on behalf of the State. The officers
testified that on October 19, 2013, at 8:40 a.m., 12 police officers executed a search warrant at
the second-floor rear apartment at 1444 South Trumbull Avenue, Chicago, Illinois. The search
warrant was based on a report that a man named “Tony” was selling drugs out of that
apartment. The officers were all in civilian dress, but were readily identifiable as police
officers because they wore vests, outer stars, weapons, radios, handcuffs, and duty belts. The
police officers approached the apartment from the rear alley and saw the defendant standing on
the second-floor landing near the back door of the apartment. They saw the defendant turn,
face them, and “pull like his right side, like the waistband area, and proceed to run into the
second-floor apartment,” closing the door behind him. Within minutes, the police officers
knocked on the door, yelled “Chicago Police,” and made a forced entry through the back door.
¶4 Once inside, Officer Rojas saw the defendant running toward the front door and pursued
him into the interior stairwell. Sergeant Koenig and Officer Piek followed a few feet behind
Officer Rojas. Once they were inside the interior stairwell, Officer Rojas observed the
defendant “go into his right waistband area along with his right hand and his left hand go into
the [front sweatshirt pocket]” and discard two items onto the second-floor landing. Sergeant
Koenig also saw the defendant retrieve something from the right side of his body and “flee as
he was discarding the items.” Officer Rojas picked up the discarded items, which consisted of
a “plastic baggie containing numerous pink tinted Ziploc baggies of suspect heroin,” and a
.25-caliber Beretta with six live rounds, including one in the chamber. Sergeant Koenig
pursued the defendant down the stairs and out of the building, where the defendant was
detained by two officers who had been waiting on the sidewalk.
¶5 The police officers searched the apartment. They found two females who lived in the
apartment. They also recovered “three rubber band pink tinted Ziploc baggies of suspect
heroin, as well as four clear plastic knotted baggies of suspect crack cocaine, and [$37] on top
of the kitchen cabinet.”
¶6 The police officers then took the defendant to the police station, where Officer Rojas and
Officer Piek interrogated him. Both officers testified that the defendant told them he was
selling heroin and crack for a guy named “Young Money,” who dropped drugs off at the
apartment every day at 7 a.m. He also told them that he had been living in the apartment for a
couple of months and that the drugs and gun belonged to him and “not the girl that was in the

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 apartment.” The defendant explained that he had the gun because “he didn’t want to be robbed
or stuck up by someone or a crew.”
¶7 The parties stipulated that Daniel Bryant, a forensic scientist with the Illinois State Police,
would testify that 38 items found by the police in the apartment tested positive for 15.2 grams
of heroin and another item tested positive for 0.1 gram of cocaine.
¶8 After the State rested, the trial continued with the defendant’s testimony. The defendant
testified that, on October 19, 2013, he went to retrieve a bus card from his friend, Charita, who
lived at the apartment. He arrived at the apartment at 8 a.m. and was there with Charita and her
mother for 15 minutes when the police officers came in with guns drawn and masks on. He put
his hands up when told to do so by the police. The police officers then put defendant in
handcuffs in the living room while they searched the apartment. Two officers emerged from
the kitchen and showed the gun and drugs to the defendant, saying “We found your merch.”
The defendant told the officers that they could put it back in their pockets as that is where they
got it from.
¶9 The defendant denied that he ever told the police officers that he had a gun for protection,
that he sold drugs, or that he worked for someone named “Young Money.” He further denied
that he ran, threw a gun, or threw any drugs. The defense rested after his testimony.
¶ 10 At the end of the trial, the court stated that it found the officers to be more credible than the
defendant. The trial court then found the defendant guilty of armed violence (count I),
possession of a controlled substance with intent to deliver more than 15 grams but less than
100 grams of heroin (count II), and possession of a controlled substance with intent to deliver
less than 1 gram of cocaine within 100 feet of a park (count III). In finding the defendant guilty
of armed violence, the court stated: “In this situation, the officers saw the defendant with both
the drugs and the gun. So he was armed with a gun at the same time that he had the drugs on his
possession.”
¶ 11 The trial court sentenced the defendant to 15 years’ imprisonment on count I, 15 years’
imprisonment on count II, and 5 years’ imprisonment on count III, with all three sentences to
run concurrently. The defendant subsequently filed this notice of appeal.

¶ 12 ANALYSIS
¶ 13 We note that we have jurisdiction to review the trial court’s order, as the defendant filed a
timely notice of appeal. Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); R. 606 (eff. Dec. 11, 2014).
¶ 14 The defendant now makes four separate arguments: (1) that the State failed to prove him
guilty of armed violence beyond a reasonable doubt where there was insufficient evidence that
he had immediate access to or timely control over the gun, (2) that, alternatively, this court
must vacate his conviction for possession of a controlled substance with intent to deliver more
than 15 grams but less than 100 grams of heroin because it violates the one-act, one-crime rule,
(3) that this court should correct the mittimus to clarify that he was sentenced for committing a
Class X felony and not, as it currently states, sentenced as a Class X offender, and (4) that his
fines and fees order must be corrected to vacate the $5 electronic citation fee and to apply
presentence custody credit against the assessed $15 state police operations “fee” and $50 court
system “fee,” which are actually fines subject to offset. We take each argument in turn.
¶ 15 The defendant first argues that the State failed to prove him guilty of armed violence
beyond a reasonable doubt. Relying on People v. Smith, 191 Ill. 2d 408 (2000), the defendant

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 claims that in order to be convicted of armed violence, a defendant must have immediate
access or timely control over a weapon at the time he is confronted by police. The defendant
argues that he discarded the gun “mere moments” into his flight from the police and before his
arrest, and thus, his armed violence conviction is contrary to the purpose of the armed violence
statute.
¶ 16 We note that the parties disagree over the standard of review. The defendant claims that
because the relevant facts are not in dispute, we must review this issue de novo. The State
argues that the defendant is challenging the sufficiency of an element of the armed violence
conviction, so that we should review the evidence in the light most favorable to the prosecution
and ask if any rational trier of fact could have found guilt proven beyond a reasonable doubt.
We agree with the State. De novo review applies only when the facts are not in dispute and the
defendant’s guilt is a question of law. Id. at 411. While the defendant’s brief refers to the
State’s evidence that he discarded the gun while fleeing from the police, he does not
acknowledge that there were disputed facts at trial. Significantly, at trial, the defendant denied
that he possessed a gun, possessed drugs, or ran from the police. The defendant’s guilt is not a
question of law, as he is challenging the sufficiency of the evidence to prove an element of the
armed violence conviction, that is, whether he was “armed.” Accordingly, we must determine
whether, after viewing the evidence in the light most favorable to the State, any rational trier of
fact could have found the essential elements of the crime charged beyond a reasonable doubt.
People v. Beauchamp, 241 Ill. 2d 1, 8 (2011).
¶ 17 A person commits armed violence when he commits certain felonies, including possession
of drugs with intent to deliver, “while armed with a dangerous weapon.” 720 ILCS 5/33A-2(a)
(West 2012). Our supreme court has emphasized that the statute’s purpose is to deter felons
from using dangerous weapons, thereby minimizing the deadly consequences that may result
when a felony victim resists. People v. Condon, 148 Ill. 2d 96, 109 (1992).
¶ 18 We agree with the State that the armed violence statute does not require a defendant to be
armed at the time of an arrest. Rather, the plain reading of the statute requires a defendant to be
armed during a confrontation with police or during the commission of a felony offense.
¶ 19 The defendant’s reliance on Smith is misplaced. In Smith, our supreme court reversed the
defendant’s conviction for armed violence “because he dropped the gun out of the window as
soon as he became aware that police were approaching,” and thus “exhibited no propensity to
violence.” Smith, 191 Ill. 2d at 412-13. The court focused on the fact that the defendant did not
have “ ‘immediate access to’ ” or “ ‘timely control over’ ” a weapon when the police entered
his building. Id. (quoting Condon, 148 Ill. 2d at 110). However, there was no evidence, let
alone any discussion by the court, that the defendant possessed the weapon during his
underlying felony of unlawful possession of a controlled substance.
¶ 20 We find People v. Harre, 155 Ill. 2d 392 (1993), to be more instructive regarding
resolution of the issue raised by the defendant. There, our supreme court upheld the
defendant’s armed violence conviction partly because the circumstantial evidence “supported
the inference” that the defendant possessed a gun during a drug delivery. Id. at 400. The court
rejected the defendant’s argument that he could not be convicted of armed violence because he
abandoned his initial intention to open a car passenger door and grab a gun when he saw the
police. Id. at 401. The court stated that “the determination of whether a defendant is armed is
not made at the moment of arrest. Rather, armed violence occurs if a defendant commits a

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 felony while having on or about his person a dangerous weapon or if a defendant is otherwise
armed.” (Emphasis omitted.) Id.
¶ 21 This court has previously interpreted the principle culled from Smith and Harre to be that
“a defendant is not guilty of armed violence unless he possesses a weapon at a time when there
is the immediate potential for violence, such as during a drug transaction or an escalating
encounter with the police”; “whether or not the immediate potential for violence exists will
depend on the unique facts of each case.” (Emphasis added.) People v. Anderson, 364 Ill. App.
3d 528, 542 (2006).
¶ 22 We now apply this principle to the case at hand. The police officers testified that they saw
the defendant throw the loaded gun and drugs as he ran, that the defendant admitted to selling
drugs, and that the defendant told them he carried a gun because “he didn’t want to be robbed
or stuck up by someone or a crew.” Based on this circumstantial evidence, it was reasonable
for the trial court to find that the defendant possessed a gun while committing the felony of
possessing drugs with the intent to deliver, especially because the trial court found the police
officers’ testimony to be credible. In his argument before this court, the defendant does not
dispute that he possessed a gun while selling drugs. Instead, he focuses his argument solely on
his physical separation from the gun immediately prior to his arrest. Possessing a gun during a
drug transaction presents a potentially violent situation that the armed violence statute is
specifically designed to address. Thus, the possession of the gun while possessing drugs with
the intent to deliver establishes the defendant’s guilt, regardless of how quickly he threw away
the gun as he fled from the police. Accordingly, we affirm the defendant’s armed violence
conviction.
¶ 23 The defendant next argues that, alternatively, this court must vacate his conviction and
sentence for possession of a controlled substance with intent to deliver more than 15 grams but
less than 100 grams of heroin. He claims that this conviction arose out of the same physical act
as his conviction for armed violence, which violates the one-act, one-crime rule.
¶ 24 The State responds that in 2009, the legislature changed the sentencing statute (730 ILCS
5/5-8-4(d) (West 2012)), creating clear legislative intent to provide for separate convictions for
armed violence and possession of a controlled substance with intent to deliver, and so there is
no violation of the one-act, one-crime rule.
¶ 25 The defendant acknowledges that he did not preserve this issue, but he contends that it is
reviewable under the plain error doctrine. See People v. Thompson, 238 Ill. 2d 598, 611 (2010)
(“To preserve a claim for review, a defendant must both object at trial and include the alleged
error in a written posttrial motion.”). The plain error doctrine “bypasses normal forfeiture
principles and allows a reviewing court to consider unpreserved claims of error in specific
circumstances.” Id. at 613. “We will apply the plain-error doctrine when: (1) a clear or obvious
error occurred and the evidence is so closely balanced that the error alone threatened to tip the
scales of justice against the defendant, regardless of the seriousness of the error or (2) a clear or
obvious error occurred and that error is so serious that it affected the fairness of the defendant’s
trial and challenged the integrity of the judicial process, regardless of the closeness of the
evidence.” (Internal quotation marks omitted.) Id. “[F]orfeited one-act, one-crime arguments
are properly reviewed under the second prong of the plain-error rule because they implicate the
integrity of the judicial process.” People v. Nunez, 236 Ill. 2d 488, 493 (2010).
¶ 26 Under the one-act, one-crime rule, “a defendant may not be convicted of multiple offenses
that are based upon precisely the same single physical act.” People v. Johnson, 237 Ill. 2d 81,

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 97 (2010). The reviewing court first determines whether the defendant’s conduct consisted of a
single physical act or separate acts. People v. Rodriguez, 169 Ill. 2d 183, 186 (1996). If one
physical act was undertaken, then multiple convictions are improper. Id. Second, if the
defendant committed multiple acts, the court determines whether any of the convictions are for
lesser-included offenses. Id. Multiple convictions for lesser-included offenses are also
impermissible. Id. Our supreme court has long held that the predicate offense for another crime
is a lesser-included offense of the other crime. People v. Gillespie, 2014 IL App (4th) 121146,
¶ 14. The application of the one-act, one-crime rule is a question of law, which we review
de novo. Johnson, 237 Ill. 2d at 97.
¶ 27 Our supreme court said in People v. Donaldson, 91 Ill. 2d 164, 168 (1982):
“From [reading the armed violence statute,] it cannot be said that the legislature clearly
intended to provide for the imposition of multiple convictions and sentences based on a
single act. It is reasonable to say that the legislature intended only to increase or
enhance the minimum penalty upon conviction of a felony when the violator was in
possession of a dangerous weapon while committing the felony. *** If it were its
intention the legislature could have expressly provided for separate convictions and
sentences on charges of armed violence and its predicate or underlying felony.”
¶ 28 Here, the defendant’s armed violence conviction is predicated upon his intent to deliver
drugs while armed with a dangerous weapon. This was based on evidence that the defendant
possessed a gun while also possessing drugs. He could not have violated the armed violence
statute without committing the underlying felony of possessing drugs with the intent to deliver.
Thus, the two convictions clearly arise out of the same physical act. See id. at 170 (the alleging
of a predicate felony in the armed violence charge has the effect, upon conviction, of making it
a necessarily included offense). We find that there was an error here because it was improper
for the trial court to convict the defendant for possession of a controlled substance with intent
to deliver more than 15 grams but less than 100 grams of heroin, as it was the lesser-included
offense of his armed violence conviction.
¶ 29 We now address the State’s argument that the legislature did, in fact, change the sentencing
statute to create clear legislative intent to provide for separate convictions for armed violence
and possession of a controlled substance with intent to deliver even when based on a single act.
The State claims that Public Act 95-1052 (eff. July 1, 2009), which was enacted in 2009,
clarified “once vague statutes to established judicial interpretations, changing the sentencing
provisions regarding concurrent and consecutive terms and providing for where consecutive
sentences are mandated.” More plainly, the State claims that Public Act 95-1052 amended
section 5-8-4(d) of the sentencing statute to mandate consecutive sentences for armed violence
and drug trafficking, demonstrating the legislature’s intent for separate convictions.
¶ 30 The current language of section 5-8-4(d) of the sentencing statute, which the State relies
upon, states, in pertinent part:
“The court shall impose consecutive sentences in each of the following circumstances:
***
(3) The defendant was convicted of armed violence based upon the predicate
offense of any of the following: *** controlled substance trafficking involving a
Class X felony amount of controlled substance under Section 401 of the Illinois

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 Controlled Substances Act [(720 ILCS 570/401 (West 2012))].” 730 ILCS
5/5-8-4(d) (West 2012).
This language has actually been part of the sentencing statute since 2000. The version enacted
on January 1, 2000, stated, in pertinent part:
“The court shall not impose consecutive sentences for offenses which were committed
as part of a single course of conduct during which there was no substantial change in
the nature of the criminal objective, unless:
***
(iii) the defendant was convicted of armed violence based upon the predicate
offense of *** controlled substance trafficking involving a Class X felony amount
of controlled substance under Section 401 of the Illinois Controlled Substances Act
(720 ILCS 570/401).” 730 ILCS 5/5-8-4(a) (West 2000).
¶ 31 Clearly, although the wording is slightly different, the effect of the statute is the same today
as it was in 2000. Thus, the State is incorrect that this was a “change” enacted by the
legislature. Further, as the defendant points out, the sponsor of the bill enacted as Public Act
95-1052, made it clear that the bill was not making any substantive changes to the sentencing
statute; rather, the amendment simply rearranged the statute in order to make it easier to
understand. See 95th Ill. Gen. Assem., Senate Proceedings, May 24, 2007 (statements of
Senator Cullerton) (“This is a bill” that does not make “any substantive changes,
but—recodifies [the sentencing provisions] and puts them in a different order.”).
¶ 32 Moreover, we disagree with the State that this language “demonstrates the legislative intent
was to allow both the armed violence conviction and the underlying felony conviction to
remain, and not allow the underlying felony to be vacated.” The statute is expressly directed to
sentencing. It contains nothing to suggest intent to permit multiple convictions. The plain
reading of the sentencing statute states that when there is an armed violence conviction
predicated upon certain enumerated felonies, it triggers mandatory consecutive sentencing,
such that any other convictions for which a defendant was sentenced must be served
consecutively to the armed violence conviction. This in inapplicable to the defendant’s
convictions. As we have already explained, his conviction for possession of a controlled
substance with intent to deliver more than 15 grams but less than 100 grams of heroin is invalid
because it violates the one-act, one-crime rule.
¶ 33 Interestingly, the defendant does not challenge his conviction for possession of a controlled
substance with intent to deliver less than 1 gram of cocaine within 100 feet of a park (count III)
under this same rationale. As he does not address it, neither will we. Accordingly, we vacate
the defendant’s conviction and sentence for possession of a controlled substance with intent to
deliver more than 15 grams but less than 100 grams of heroin. We note, however, that remand
for resentencing is unnecessary, as his sentence was imposed to run concurrently with his
15-year sentence for armed violence.
¶ 34 The defendant next argues that this court should correct the mittimus to clarify that he was
sentenced for committing a Class X felony and not, as it currently states, sentenced as a Class
X offender due to prior convictions. The State concedes this issue. We therefore order the
mittimus to be corrected to clarify that the defendant was sentenced for committing a Class X
felony and not as a Class X offender.

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¶ 35 Finally, the defendant argues that his fines and fees should be corrected. Specifically, he
claims that the $5 electronic citation fee was improperly imposed because it does not apply to
felonies pursuant to section 27.3e of the Clerks of Courts Act. 705 ILCS 105/27.3e (West
2012). He further claims that the court failed to offset the $15 state police operations fee and
$50 court system fee by the 642 days that he spent in presentence custody. The defendant
argues that both of these “fees” are actually fines that should be offset by his $3210 in
presentence credit. The State concedes that all these fines and fees were improperly assessed,
but argues that the defendant has forfeited this argument.
¶ 36 The defendant acknowledges that he has forfeited this argument, but he contends that it is
reviewable under the plain error doctrine, or alternatively, that his trial counsel rendered
ineffective assistance of counsel for failing to object to the unauthorized fines and fees.
However, forfeiture is a limitation on the parties, not the court, and we may exercise our
discretion to review an otherwise forfeited issue. Great American Insurance Co. of New York
v. Heneghan Wrecking & Excavating Co., 2015 IL App (1st) 133376, ¶ 81 (Gordon, J.,
specially concurring). Accordingly, we exercise our discretion to consider this issue without
resorting to the defendant’s arguments on plain error and ineffective assistance of counsel.
¶ 37 A reviewing court may modify a fines and fees order without remanding the matter to the
trial court under Illinois Supreme Court Rule 615(b)(1). People v. Bryant, 2016 IL App (1st)
140421, ¶ 22. The State concedes that the defendant’s fines and fees were improperly assessed,
and we agree. Accordingly, we order the fines and fees to be corrected. Specifically, we order
the $5 electronic citation fee to be vacated, and the $15 state police operations fee and the $50
court system fee to be offset by the defendant’s $3210 in presentence credit. Therefore, we
direct the clerk of the circuit court to correct the fines and fees order to reflect a total
assessment of $679 against the defendant.

¶ 38 CONCLUSION
¶ 39 For the foregoing reasons, we affirm the defendant’s conviction for counts I and III, we
vacate the defendant’s conviction and sentence for count II, we order the mittimus to be
corrected to clarify that the defendant was sentenced for committing a Class X felony and not
as a Class X offender, and we order the fines and fees order be corrected to reflect a total
assessment of $679 against the defendant.

¶ 40 Affirmed in part, vacated in part, and mittimus corrected; fines and fees order corrected.

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