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People v. Utley

Court of Appeals of Illinois, First District, Fourth Division

August 29, 2019

JAMES UTLEY, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 14 CR 6126 Honorable Thomas P. Fecarotta, Jr., Judge Presiding.

          James E. Chadd, Patricia Mysza, and Michael Gomez, of State Appellate Defender's Office, of Chicago, for appellant.

          Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, Assistant State's Attorneys, of counsel), for the People.

          PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justice Burke concurred in the judgment and opinion. Justice Gordon dissented, with opinion.



         ¶ 1 Following a jury trial, defendant James Utley was convicted of possession of a controlled substance with intent to deliver, being an armed habitual criminal, and unlawful use of a weapon by a felon. He was sentenced as a habitual criminal to respective concurrent terms of mandatory natural life imprisonment without the possibility of parole, 20 years' imprisonment, and 5 years' imprisonment.

         ¶ 2 In this appeal, defendant claims, first, that section 5-4.5-95(a) of the Unified Code of Corrections (commonly known as the Habitual Criminal Act) (730 ILCS 5/5-4.5-95(a) (West 2014)), as applied to him, violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) and the eighth amendment of the United States Constitution (U.S. Const., amend. VIII). Second, defendant claims that his trial counsel rendered ineffective assistance of counsel.

         ¶ 3 The record shows that Jack Tweedle, a senior parole agent with the Illinois Department of Corrections (IDOC), testified at trial that on February 28, 2014, at 6:30 a.m., he arrived with other officers at a home in Streamwood, Illinois, to serve a parole violation arrest warrant and perform a parole compliance check on defendant. After Tweedle knocked on the door for approximately five minutes, defendant answered the door in a T-shirt and boxer underwear. After Tweedle identified himself as an Illinois parole agent, defendant invited him in. Tweedle's partner, Lou Hopkins, entered behind Tweedle. Tweedle explained to defendant that he was there to serve a parole violation warrant and that he had "information that [defendant] was lying about where he lived." Defendant responded "[s]omething to the effect that the parole violation warrant couldn't be an issue because here I am" and stated that he lived at that address. On cross-examination, Tweedle testified initially that he put in his report the fact that defendant had stated that he lived at the Streamwood address. Upon reviewing the report, however, Tweedle conceded that the report did not contain this information.

         ¶ 4 Michael Ziegler, the commander of the special operations unit of the Streamwood Police Department, testified that, after speaking with defendant's wife, Turquoise Brown, he went to the master bedroom to conduct a search. The north closet in the bedroom contained "a large amount of men's clothing," as well as men's deodorant, men's cologne, and prescription bottles with defendant's name on them. While looking in the closet, Ziegler noticed the strong odor of cannabis. He discovered a small plastic cooler "at the bottom of the closet right by a bunch of men's shoes." Upon opening the cooler, Ziegler observed that it contained "two scales, a white chunky substance which in [his] training and experience appeared to be cocaine, *** packing materials and scissors." The cooler also contained a box that "appeared to be like for [sic] brake pads for a car," and inside the box were "three or four Baggies with a white powdery substance" that Ziegler believed, based on his experience, to be cocaine. The cooler also contained "a box of Baggies" and "the remnants of corners of Baggies." One of the two scales was a small scale "used to measure in grams and other increments," and it "appeared to have a white powdery substance on top" of it. Based on his decades of experience of having made hundreds of narcotics arrests, Ziegler believed that these items were "indicative of [the] sale of narcotics." Continuing his search of the closet, Ziegler also found a plastic container with a plastic bag containing a green leafy substance that emitted a strong odor of cannabis.

         ¶ 5 Ziegler testified that, after discovering what he believed to be narcotics, he asked defendant's wife "if there was anything else in the house, possible narcotics or contraband that we needed to know about," and she directed him to the south closet in the master bedroom and specifically to a "blue and yellow hat bag." The bag contained a small, black 9-millimeter semiautomatic Beretta pistol, a black .38-caliber revolver with a wooden handle, and various types of ammunition including both 9-millimeter and .38-caliber ammunition.

         ¶ 6 On cross-examination, Ziegler testified that defendant was wearing a T-shirt and black athletic shorts. Ziegler also testified that he did not take a photo of the prescription bottle and did not know whether the bottle was taken for evidentiary purposes. He stated that he did not know the size of the men's clothing in the north closet and that the south closet contained what "appeared to be ladies['] clothing." Ziegler further testified that the guns were unloaded and that defendant remained in the living room during the search.

         ¶ 7 Kenya Clark, a senior parole agent with IDOC, testified that she searched the dresser in the master bedroom and found $1000 in cash and a wallet in a drawer containing men's underwear. Clark testified that the wallet "had the parolee's ID in it and had some other cash." However, Clark was not asked what she meant by "the parolee's ID." On top of the dresser, Clark also recovered a checkbook. Clark also observed a bank statement, for January 9, 2014, to February 18, 2014, on a computer table in the living room. Clark testified that the checks and the bank statement bore the names of defendant and his wife, as well as the Streamwood address. Clark further testified that she found defendant's Social Security card in a wooden container with a checkbook; however, she did not specify where she found the wooden container.

         ¶ 8 Claudio Mercado, a detective with the Streamwood Police Department, testified that he photographed the items that were recovered from the Streamwood residence, most of which had been moved prior to his photographing them, and "collect[ed] the evidence as an evidence technician." When defendant was taken into custody, the officers discussed with defendant what medications he needed, and two prescription bottles were kept by his wife, and one bottle the officers "kept for him to take into County." At the police station, Mercado and Sergeant Darryl Syre spoke with defendant in an interview room, at 10:40 a.m. on February 28, 2014. At that time, defendant told them that he did not want to speak with them, and they left. At 11:50 a.m., they returned to bring him lunch, and he stated then that he wanted to speak with them. Mercado and Syre returned a half-hour later and advised him of his Miranda rights, which he indicated he understood. See Miranda v. Arizona, 384 U.S. 436 (1966). Defendant was not handcuffed. Mercado testified as follows about defendant's oral statement:

"Q. And what did the defendant tell you in this conversation?
A. Well, he stated that his wife, you know, wasn't aware of the guns or the drugs but he admitted that the drugs were his, the guns were his. He said he, you know, the money that we found was not part of the drugs. He said his wife wasn't aware of any, you know, of that and he also said the cannabis that we found was-it was just for personal use.
Q. Did he indicate what he did with the other drugs?
A. The other drugs he said that he sold them in ounce units and he sold them to other people so that they could go on and sell them for him."

         ¶ 9 After defendant made this oral statement, Mercado offered to memorialize it in writing, and defendant agreed. Mercado exited the room to type it and returned to show defendant the typed statement. Mercado informed defendant that he could make any changes, additions, or deletions and handed the statement to defendant. After Mercado read it out loud, defendant confirmed that the statement was true and correct, and he signed it at 1:49 p.m., as did Mercado and Syre. After defendant signed the statement, Mercado showed him photos of the guns, ammunition, drugs, and money that were seized, and defendant signed each photo. In addition, defendant made a notation stating: "Money not part of drugs."

         ¶ 10 In the typed statement, which was admitted into evidence, defendant stated that he lived at the Streamwood home with his wife and family, that his wife did not know anything about the drugs or guns in the home, and that he kept the guns only "for safety reasons," because "he is an ex-gang member and dangerous people are after him." Defendant stated that the cocaine and heroin in the home were his and that he dealt drugs to help support his family. The marijuana was also his, but only for personal use.

         ¶ 11 On cross-examination, Mercado testified that, after evidence had already been found during the search, Ziegler asked Mercado for a consent to search form, which Mercado gave him. Ziegler then asked defendant's wife to sign it, and she did. Mercado testified that he did not photograph the bank statement as it was lying on the computer table and did not photograph any prescription bottles with defendant's name on them. Mercado also never observed a wallet. Mercado testified that the hat box, which contained the guns and ammunition, also contained women's hats. When Mercado photographed the small wooden box containing defendant's Social Security card and a checkbook, the box was already on the bed in the master bedroom. Mercado opened the lid of the box to photograph its contents.

         ¶ 12 Mercado testified that, about a half-hour after the police arrived, defendant was already out of the Streamwood home. Defendant's wife contacted a neighbor or family member to take care of the children, and defendant's wife was then transported to the police station. At some point, defendant's personal property, including a wallet[1] and two prescription bottles, were returned to defendant's wife. Before returning the two prescription bottles, Mercado had a conversation with defendant about what medication defendant needed, and the police kept one bottle of penicillin that defendant indicated he needed to take.

         ¶ 13 Mercado testified that he spoke with defendant's wife at the police station, prior to speaking to defendant at 10:40 a.m. Mercado denied telling defendant that, if he did not admit that the guns and drugs were his, they were going to charge his wife.

         ¶ 14 After Mercado's testimony, the parties entered a stipulation that stated that, if called, Soretta Patton, a forensic chemist, would testify that she received "three items of a rock-like substance from three separate plastic bags" and that the contents of the bags tested positive for cocaine and weighed 78.7 grams. She would further testify that she received another substance that tested positive for heroin and weighed 27.6 grams.

         ¶ 15 The State then offered into evidence certified copies of defendant's convictions for aggravated battery with a firearm and for unlawful delivery of a controlled substance, which were admitted without objection. After the State rested, defendant moved for a directed finding, which was denied.

         ¶ 16 Defendant then called Jeffrey Bailey, a senior parole agent with IDOC, who testified that he had supervised defendant's parole, which required Bailey to meet with defendant at least once a month at home and ensure that defendant was in compliance with his parole. Defendant reported that he was living at an address in Schaumburg, and Bailey visited him at that address. During a visit on February 19, 2014, Bailey checked to make sure that defendant had personal property at the Schaumburg address. Primarily, Bailey looks for clothing, and Bailey observed men's clothing in the closet. The visit lasted 5 or 10 minutes, and no one else was present besides Bailey and defendant.

         ¶ 17 On cross-examination, Bailey stated that every time he visited defendant, Bailey made an appointment with defendant prior to the visit, because defendant lived in an apartment building with a security door. As a result, Bailey had to telephone defendant first to inform him that Bailey was coming, so that defendant could let him in. When Bailey arrived on February 19, 2014, Bailey observed the room in which defendant told him that defendant slept and noticed that the mattress was lying against the wall rather than on the floor. The mattress had no sheets or bedding, and the room did not have a closet or any personal items. However, defendant showed Bailey a closet in the hall that contained men's clothing. Bailey was aware that another adult male also lived in the apartment, but Bailey did not ask defendant to put on the clothes in the closet. Based on his experience as a parole officer, Bailey testified that normally a parolee is not notified in advance when he is going to be served with an arrest warrant. On redirect examination, Bailey testified that defendant's room in Schaumburg was "a very small room." Bailey further testified that he did not conclude based on the February 19, 2014, visit that defendant did not live there.

         ¶ 18 Defendant, who was 38 years old at the time of his testimony, testified that on February 28, 2014, at 10:30 a.m. he was in an interview room in the Streamwood police station when Detective Mercado and Sergeant Syre entered and defendant informed them that he did not want to speak to them and requested an attorney. The two officers then left. Defendant remained in the interview room for approximately two hours, before Mercado and Syre returned. Mercado told defendant, "I don't have time for this s***." Defendant repeated that he wanted an attorney and that he had "nothing to say." Mercado responded that he did not have time for this and that defendant was "going to sign a statement" or they were going to charge Brown and that defendant's children would go "to DCFS," the Department of Children and Family Services. Mercado told him that they were going to take the children because "someone needs to be charged." Defendant told him that he "still" had "no knowledge." Mercado then instructed Syre to "call DCFS," and when they started to exit, defendant "broke down" and told them that he would "sign whatever they wanted [him] to sign."

         ¶ 19 Defendant testified that he had three children, currently aged 14, 13, and 8. The officers told him either he was "going to take ownership of everything or [his] kids are gone and they would charge" Brown, who they were holding in the next room. After defendant told them that he would sign whatever they wanted, the officers left the room and returned a couple of hours later with a statement for him to sign. There was no clock, and the room was dark, so defendant did not know the exact time this occurred. When the officers returned, they read him his Miranda rights from a form, which they had him sign. Then they presented him with a typed statement consisting of two pieces of paper and some photos. The officers did not read the statement to him, and when defendant looked like he was going to glance at the statement, Mercado repeated that he did not have time for defendant to read it. The officers did not give defendant the opportunity to read it or to make any changes, corrections, or deletions. After defendant signed the statement, they had him initial the photos and write on one of the photos that the money was not related to the drugs. The officers explained that if he "admit[ted] to it," they would give the money to Brown for his children, which they never did. Defendant testified that he "would write anything to protect [his] kids." While defendant was in the interview room, he did not receive anything to eat or drink, and he was not allowed to leave for a bathroom break. Defendant was allowed to use the bathroom only later that evening, when he was placed in a cell.

         ¶ 20 On cross-examination, defendant testified that around 6:15 a.m. on February 28, 2014, he went to Brown's house in Streamwood to pick up his son and take him to school. He and his wife had been married on August 17, 2013, but had separated two months later. Defendant stated that he did not live at Brown's house and did not sleep in her bed that night. Defendant testified that he lived in the two-bedroom Schaumburg apartment with his sister and the mattress was up against the window because he had just shampooed the carpet. Defendant explained that he lived in the two-bedroom Schaumburg apartment with his sister rather than his wife's home in Streamwood "[b]ecause a parolee cannot parole to public housing." Defendant admitted that he had a joint account with his wife at the Streamwood address. As for the Social Security card, defendant testified that it was in his wallet when he was arrested and it was removed from his wallet. Defendant testified that nothing in the typed statement was true, that the officers made it all up, that he was a business owner, [2] and that the business was how he supported his family. When asked by the assistant state's attorney whether he had been previously convicted of delivery of a controlled substance and if defendant was on parole for that offense, defendant answered affirmatively. He denied that he possessed any guns or drugs at either Brown's Streamwood home or at his Schaumburg apartment.

         ¶ 21 After defendant finished testifying, the defense rested, and the State called Darryl Syre in rebuttal. Syre testified that he was currently the administrative commander of the Streamwood Police Department but that on February 28, 2014, he was a sergeant. On February 28, 2014, at 10:40 a.m., he and Detective Mercado spoke with defendant in an interview room at the police station. Defendant was handcuffed. At that time, defendant did not tell them that he wanted an attorney or that he was not going to speak with them. At 11:30 a.m., the officers returned to bring defendant lunch, and defendant told them he wanted to talk to them. After defendant finished his lunch, the officers returned, and Detective Mercado read defendant his Miranda rights, which defendant acknowledged by initialing each right and signing the form. Syre testified that Mercado did not say that he had no time for "this s***." He also denied that Mercado threatened to take defendant's kids away, to call DCFS, or to charge defendant's wife. Syre was in the interview room the entire time that Detective Mercado was there.

         ¶ 22 Syre testified that defendant made an oral statement that the drugs and guns were his, that he sold the cocaine by the ounce for $1200, and that the guns were for his protection because he was an ex-gang member. After defendant made this oral statement, the officers exited the room, and Detective Mercado typed up the statement, and they returned. Mercado read the statement out loud, and defendant signed it. Defendant was allowed to make changes, but he chose not to. No threats were made, and they did not promise to give the thousand dollars to defendant's family if defendant confessed.

         ¶ 23 On cross-examination, Syre testified that at 10:40 a.m. on February 28, 2014, defendant's wife was also at the police station. After Syre's testimony, the State rested its rebuttal case.

         ¶ 24 After listening to jury instructions and closing arguments by counsel, the jury convicted defendant of all charges, namely three counts of unlawful possession of a weapon by a felon, based on the three different types of ammunition found in the hat bag; two counts of possession of a controlled substance with intent to deliver, based on the cocaine and heroin seized from the closet; and two counts of being an armed habitual criminal, based on the pistol and the revolver also found in the hat bag. After the verdict was announced, the trial court merged a number of the counts, leaving one count of unlawful possession of a weapon, one count of possession of a controlled substance, and one count of armed habitual criminal.

         ¶ 25 On June 11, 2015, the trial court considered and denied defendant's posttrial motion for a new trial. The trial court observed that the State had not filed a petition seeking to have defendant sentenced as a habitual criminal under the Habitual Criminal Act, which provides that, after a verdict, plea, or finding of guilt, the prosecutor "may" file with the trial court "a verified written statement signed by the State's Attorney" setting forth the relevant prior convictions. 730 ILCS 5/5-4.5-95(a)(6) (West 2014). The State then indicated that it intended to file a petition.

         ¶ 26 On June 26, 2015, the State filed a petition seeking the imposition of a sentence of natural life imprisonment based on defendant's convictions for two prior Class X felonies.

         ¶ 27 At the sentencing hearing on June 29, 2015, the trial court observed that it had "required the State" to file the petition for natural life "in writing," observing that, although defendant knew about it, "it still formally should have been done." The court then confirmed that defendant was not contesting the two prior felony convictions cited by the State. In aggravation, the State called Bruce Steinke, an investigator with the Cook County Sheriff's Department, who testified that, on May 7, 2015, he was assigned the task of locating defendant, who had disappeared prior to jury deliberations. In an attempt to execute an arrest warrant for defendant, Steinke and other officers went to several addresses, including one in Bartlett, Illinois, where he observed a vehicle belonging to defendant's wife in the driveway. At 9:48 p.m., he checked the hood of the vehicle and found it was still warm. Over the course of 10 minutes, Steinke rang the doorbell and knocked on the door several times.

         ¶ 28 Steinke testified that the officers placed a couple of police squad vehicles in front of the house with the emergency lights on and shined a spotlight at the upstairs windows, which were open. Another officer shouted at the open windows that the officers wanted to take defendant peacefully. After 10 minutes of shouting and spotlights, defendant responded: "okay, okay, I'll be coming out. I want to say goodbye to my family. My son is going to be walking me out the front door." After that, defendant exited the door with his son and smoking a cigarette. Defendant gave his son a hug, and the officers let him finish his cigarette and then arrested him.

         ¶ 29 Steinke testified that another officer informed defendant of his Miranda rights and then Steinke and two other officers transported defendant to the police station. During the ride to the station, Steinke sat next to defendant. Steinke testified that defendant stated that, "if we had located him earlier in the day, that things wouldn't have gone as easy as they did, that he would have tried to attempt to take several of us with him." He further stated "that he wouldn't have come out if his family hadn't been in there, that he would [have] made us wait for a long time, he wasn't going to exit the building." Further, defendant "made a claim that he had to go to Indiana to pursue some personal matters earlier in the day and that he felt that on his way there, he wanted to do harm to any innocent individuals that would get in his way because he-he just wasn't in the right state of mind."

         ¶ 30 On cross-examination, Steinke testified that, despite defendant's words, he exited the house peacefully, let himself be handcuffed without incident, allowed the officers to walk him to their vehicle without a struggle, and entered the vehicle without objection. Steinke agreed that, "[a]s far as his actions physically with [the officers], he was nothing but a gentleman."

         ¶ 31 The State had no further evidence in aggravation, and defense counsel stated that the defense had no additional evidence in mitigation to present. The presentence investigation report (PSI) indicated that defendant was placed in a special education program in grade school, that he was transferred to a specialized school, and that he eventually obtained a general educational development certificate (GED). Defendant's mother was an alcoholic and physically abusive, leaving defendant with permanent scars. Prior to incarceration for this offense, defendant and his wife were the owners and operators of a cleaning company, which they founded in 2012 and which specialized in commercial and janitorial cleaning services, providing them an income of $5000 per month. Defendant and his wife originally married in 2005 and then divorced when defendant was incarcerated for a prior offense, before reuniting in 2012 after his release.

         ¶ 32 Defense counsel argued that, although the law required a mandatory life sentence, the punishment did not fit the crime.

         ¶ 33 After considering factors in aggravation and mitigation and noting defendant's "significant criminal history," the trial court stated:

"The Court takes no pleasure in sentencing the defendant to natural life imprisonment; however, it's mandated by statute, and the Court has an obligation to follow the law. He is a young man, and he will spend the rest of his life in prison unless the law changes and it's held to be retroactive."

         The trial court then sentenced defendant as follows: (1) for possession of a controlled substance, to natural life in prison without parole; (2) for being an armed habitual criminal to 20 years with IDOC, to be served concurrently with the natural life sentence; and (3) for unlawful use of a weapon by a felon, to 5 years, also to be served concurrently with the natural life sentence. The trial court did not state whether the determinate sentences were concurrent with each other. However, the mittimus states that these sentences also run concurrently. On July 14, 2015, defendant filed a timely notice of appeal, and this appeal followed.

         ¶ 34 In this appeal, defendant claims, first, that the Habitual Criminal Act, as applied to him, violates the proportionate penalties clause of the Illinois Constitution and the eighth amendment of the United States Constitution. Second, defendant claims that his trial counsel rendered ineffective assistance of counsel. Our supreme court has held that "a court of review should consider the constitutionality of a statute as a matter of last resort, only after the resolution of any other nonconstitutional and constitutional grounds for disposing of the case" (People v. Carpenter, 228 Ill.2d 250, 264 (2008)), and, accordingly, we will address the narrower issue of defendant's ineffectiveness claims first.

         ¶ 35 Defendant first claims that his trial counsel provided ineffective assistance because trial counsel failed to move to sever the gun charges from the drug charges. Defendant's second ground for claiming ineffective assistance of counsel is that counsel should not have withdrawn defendant's motion to suppress his statement to the police.

         ¶ 36 Every Illinois defendant has a constitutional right to the effective assistance of counsel under the sixth amendment to the United States Constitution and the Illinois Constitution. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; People v. Domagala, 2013 IL 113688, ¶ 36. Claims of ineffective assistance are judged against the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Domagala, 2013 IL 113688, ¶ 36 (citing People v. Albanese, 104 Ill.2d 504, 526-27 (1984) (adopting Strickland for Illinois)). To prevail on a claim of ineffective assistance, a defendant must show both (1) that counsel's performance was deficient and (2) that this deficient performance prejudiced defendant. Id. (citing Strickland, 466 U.S. at 687).

         ¶ 37 Since a trial court is typically not asked to rule on whether trial counsel was ineffective, an appellate court generally reviews claims of ineffective assistance de novo. See People v. Reveles-Cordova, 2019 IL App (3d) 160418, ¶ 43; People v. Jamison, 2018 IL App (1st) 160409, ¶ 40. De novo consideration means that the reviewing court performs the same analysis that a trial judge would perform. People v. Walker, 2018 IL App (1st) 160509, ¶ 22.

         ¶ 38 To establish the first prong, that counsel's performance was deficient, a defendant must show "that counsel's performance was objectively unreasonable under prevailing professional norms." Domagala, 2013 IL 113688, ¶ 36.

         ¶ 39 Here, defendant notes that he was charged with being an armed habitual criminal, with unlawful use of a weapon by a felon for his alleged possession of guns and ammunition, and with possession of a controlled substance with intent to deliver for his alleged possession of cocaine and heroin. Defendant further notes that, to prove the gun charges, the State was required to introduce evidence of defendant's prior convictions for aggravated battery with a firearm and delivery of a controlled substance, neither of which would have been admissible to prove the possession of a controlled substance offense. Defendant contends that, in these circumstances, defense counsel should have filed a motion to sever the gun charges and drug charges and that, had counsel done so, the court would have granted the motion.

         ¶ 40 Pursuant to section 111-4(a) of the Code of Criminal Procedure of 1963 (Procedure Code) (725 ILCS 5/111-4(a) (West 2014)):

"Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or on 2 or more acts which are part of the same comprehensive transaction."

         However, under section 114-8 of the Procedure Code (id. § 114-8(a)):

"If it appears that a defendant or the State is prejudiced by a joinder of related prosecutions or defendants in a single charge or by joinder of separate charges or defendants for trial the court may order separate trials, grant a severance of defendants, or provide any other relief as justice may require."

         "The trial court is entitled to substantial discretion when deciding whether to sever charges, and that discretion is to be exercised so as to prevent injustice," and the decision to sever or not turns on the particular facts of each case. People v. Patterson, 245 Ill.App.3d 586, 588 (1993).

         ¶ 41 In People v. Edwards, 63 Ill.2d 134, 136 (1976), our supreme court articulated the importance of severing charges in appropriate circumstances, ultimately reversing the trial court's denial of the defendant's motion to sever. The defendant in Edwards's three-count indictment charged him with one count of armed robbery and two counts of unlawful use of weapons. The unlawful use of a weapon charge alleged in count II of the indictment was a Class A misdemeanor. The unlawful use of a weapon charge alleged in count III was a Class 3 felony because the defendant had a prior felony burglary conviction. Id. at 136. The defendant moved to sever count III from the other charges because he would be prejudiced by the State's introduction of evidence regarding ...

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