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People v. Brown

Court of Appeals of Illinois, Third District

June 20, 2017

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

         Appeal 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 the judgment.

          OPINION

          O'BRIEN JUSTICE

         ¶ 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.

         ¶ 2 FACTS

         ¶ 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 sentences.

         ¶ 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 ...


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