specially concurring in part and dissenting in part:
I respectfully dissent from that portion of the majority opinion which affirms the defendant’s conviction of unlawful use of weapons.
After searching the car in which defendant was located, the police found three handguns in the glove compartment: one 9 millimeter and two .25 calibers. Because defendant was a previously convicted felon, he was charged with one count of unlawful possession of weapons by a felon (720 ILCS 5/24 — 1.1(a) (West 1998)). He was also charged with one count of unlawful use of weapons (720 ILCS 24 — 1(a)(4) (West 1996)). Each information used identical language, alleging possession of “a handgun.”
Defendant claims on appeal that his trial counsel was ineffective for failing to file a motion to vacate one of his convictions under the one-act, one-crime rule. The majority properly reviews this claim under the plain error doctrine. 324 Ill. App. 3d at 202-03. However, the majority’s analysis of the one-act, one-crime rule is incomplete.
The one-act, one-crime rule was developed in People v. King, 66 Ill. 2d 551, 566, 363 N.E.2d 838, 845 (1977). Its purpose was to prevent pyramiding in sentencing. King recognized that prejudice will result to a defendant where more than one offense is carved from the same physical act. King, 66 Ill. 2d at 566, 363 N.E.2d at 844. It also recognized that, in the case of multiple acts, prejudice may result where one offense is a lesser included offense of another. King, 66 Ill. 2d at 566, 363 N.E.2d at 844. Therefore, analysis under the one-act, one-crime rule is a two-step process: we ask whether multiple charges were based upon the same physical act and, if not, we go on to ask whether one charge is a lesser included offense of another. The majority opinion, however, neglects to undertake the primary, single-act inquiry, instead launching immediately into a discussion of whether one of the charges was a lesser included offense of the other.
Possessory offenses, like those at issue here, have always posed a special problem under the single-act component of the one-act, one-crime rule. According to King, a physical act means “any overt or outward manifestation which will support a different offense.” King, 66 Ill. 2d at 566, 363 N.E.2d at 844-45. Under that definition, however, complications arise when the acts alleged are possessory in nature. Consider the case of a defendant apprehended while in possession of one kilogram of cocaine. Charged as such, the offense carries a penalty of between 15 years’ and 60 years’ imprisonment. 720 ILCS 570/ 401(a)(2)(D) (West Supp. 1999). But suppose the prosecutor chooses to charge the offense in another way. Suppose the prosecutor decides to charge the defendant with 66 separate counts of possession of cocaine between 15 and 100 grams (720 ILCS 570/401(a) (2) (A) (West Supp. 1999)). The prosecutor may even draw some support from the case law for so doing. See People v. Green, 199 Ill. App. 3d 927, 932, 557 N.E.2d 939, 942 (1990) (cocaine held in different pockets may support separate charges). Now each of these 66 separate counts of possession will carry a term of between 6 years’ and 30 years’ imprisonment. 720 ILCS 570/401(a)(2)(A) (West Supp. 1999). But because of the nature of the offense, each of these sentences must be served consecutively (730 ILCS 5/5 — 8—4(a)(iii) (West Supp. 1999)), resulting in a minimum overall term of 396 years’ imprisonment. Clearly, it is this type of arbitrary charging and sentencing treatment which the King rule seeks to forestall.
This case presents the same type of problem. Should we say that Lindsey committed three separate but simultaneous acts, each being that of possessing a single gun? Or should we say that Lindsey committed only one act — possessing three guns? From a standpoint of comparative culpability, the former approach may seem preferable. Possessing, e.g., a crate of weapons seems to deserve greater punishment than possessing merely a single gun, if only because the inference arises that the defendant may be trafficking arms. However, such reasoning quickly leads back to the type of extreme pyramiding considered in the cocaine hypothetical above. (Should we then allow multiple convictions where a felon possesses only a few guns, but not a great many?)
The supreme court recently addressed the one-act, one-crime rule, although unfortunately not in a possessory context. In People v. Crespo, 203 Ill. 2d 335, 337 (2001), the defendant was charged with and convicted of multiple offenses, stemming from the stabbing of one of his victims. He had stabbed that victim three times. Crespo, 203 Ill. 2d at 339. The court reiterated that, according to precedent, each separate stab could be considered a separate act, supporting a separate offense. Crespo, 203 Ill. 2d at 341-42. However, the court noted that the counts charging the defendant had not differentiated between the separate stab wounds. The court found that to apportion the acts for the first time on appeal would be profoundly unfair. Crespo, 203 Ill. 2d at 343. It therefore held that to sustain multiple convictions, an indictment must indicate that the State intends to treat the conduct of the defendant as multiple acts. Crespo, 203 Ill. 2d at 345. Thus, while the State could have obtained multiple convictions by differentiating between acts in the charging instruments, in fact it had not. Crespo, 203 Ill. 2d 344. One of the defendant’s convictions was reversed. Crespo, 203 Ill. 2d at 345-46.
Similarly, the instruments charging Lindsey here do not differentiate between the handguns found in the glove box. Each speaks only of “a handgun.” Therefore, under Crespo, Lindsey’s conviction for unlawful use of a weapon must be vacated as the less serious offense. But, unlike situations such as that presented by Crespo, involving “truly” physical acts such as stabbing, it also remains to be seen under what circumstances, if any, the State may charge as separate “acts” the various physical components of purely possessory offenses. See People v. Williams, 302 Ill. App. 3d 975, 978, 707 N.E.2d 980, 982 (1999) (simultaneous possession of gun and drugs was but a single act which could not support charges of both armed violence and unlawful possession of a weapon by a felon).