from the Circuit Court of the 10th Judicial Circuit, Peoria
County, Illinois. Circuit No. 13-CF-300 Honorable David A.
Brown Judge, Presiding.
JUSTICE O'BRIEN delivered the judgment of the court.
Presiding Justice Holdridge and Justice Wright concurred in
1 Defendant Dieuseul Brown was convicted after a bench trial
of armed violence, unlawful possession of a weapon by a
felon, and unlawful possession of a controlled substance. The
trial court sentenced him to an 18-year term on the armed
violence count and an 8-year term on the weapon charge and
found the unlawful possession of a controlled substance
conviction merged with the other judgments. Brown appealed,
challenging his sentences on one-act, one-crime principles.
We vacate Brown's conviction for unlawful possession of a
weapon by a felon.
3 Defendant Dieuseul Brown was charged with armed violence
(count I), unlawful possession of a weapon by a felon (count
II), and unlawful possession of a controlled substance,
cocaine (count III). Count I alleged that Brown committed
armed violence by committing unlawful possession of a
controlled substance while armed with a handgun. Count II
alleged Brown committed unlawful possession of a weapon by a
felon by possessing a firearm after having been previously
convicted of a felony. Count III alleged Brown possessed less
than 15 grams of cocaine.
4 Brown moved to quash the indictment, pointing to the
inconsistencies in a detective's grand jury testimony
that the cocaine was discovered on Brown when he was
arrested. Discovery revealed that the drugs were not found
until several hours after Brown's arrest when he was
searched again at the police station prior to transport to
the county jail. The State reindicted Brown and corrected the
misstatements to the grand jury. In the supplemental
indictment, the armed violence count became count IV and the
cocaine possession charge became count V. The trial court
denied Brown's motion to quash.
5 The cause proceeded to a bench trial. Two Peoria County
detectives testified that Brown had a gun on his person when
they arrested him for an unrelated first degree murder. An
officer patted down Brown prior to bringing him to the police
station and conducted another pat down search before
uncuffing Brown at the station. Brown was interviewed, used
the bathroom, and was again searched prior to transport to
the county jail. During this search, a small baggie of
cocaine was found in Brown's watchpocket in his jeans.
6 On the State's motion, the trial court admitted
portions of the transcripts from Brown's murder trial
where he admitted that he was a drug dealer, that he owned
the gun discovered on his person, and that he kept a gun on
him at all times. Also admitted into evidence was a certified
copy of Brown's prior conviction.
7 The defense presented evidence that a cell phone that
presumably belonged to Brown was found outside the interview
room at the police station. The parties stipulated to
descriptions of the physical layout of the police station and
a timeline of Brown's arrival, interview, and departure.
Brown argued in closing arguments that the police searches
were sloppy and that he could have found the cocaine at the
police station. The State argued that it proved Brown
possessed both the gun and the cocaine simultaneously and
that the drugs were not discovered in the earlier searches
because the package was small and soft and the police were
looking for weapons.
8 The trial court found that Brown was proved guilty beyond a
reasonable doubt of all three counts, that he possessed the
cocaine and gun at the same time, and that it could be
reasonably inferred that Brown did not find the cocaine at
the police station. Brown moved for a new trial, which was
heard and denied.
9 A sentencing hearing took place. The State sought a 44-year
sentence and agreed that the unlawful possession of a
controlled substance conviction would merge with the other
judgments. It argued that the unlawful possession of a weapon
by a felon would not merge because it has the "separate
element being the felony conviction which would be the
separate act." Brown agreed that the weapon conviction
would not merge with the armed violence conviction because it
was not a lesser included offense and sought concurrent
10 The trial court imposed an 18-year term of imprisonment
for the armed violence conviction and an 8-year term for
unlawful possession of a weapon by a felony with the
sentences to be served consecutively to each other and at
85%. The trial court merged the conviction for unlawful
possession of a controlled substance into the other
judgments. Brown filed a motion to reconsider his sentence,
which was ...