People v. Bush , 2015 IL App (5th) 130224 ( 2015 )

Illinois Official Reports
Appellate Court
People v. Bush, 2015 IL App (5th) 130224
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption NATHAN BUSH, Defendant-Appellant.
District & No. Fifth District
Docket No. 5-13-0224
Filed July 28, 2015
Decision Under Appeal from the Circuit Court of St. Clair County, No. 12-CF-1639;
Review the Hon. Jan V. Fiss, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Ellen J. Curry, and Robert S. Burke, all of State
Appeal Appellate Defender’s Office, of Mt. Vernon, for appellant.
Brendan F. Kelly, State’s Attorney, of Belleville (Patrick Delfino and
Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s
Office, of counsel), for the People.
Panel JUSTICE GOLDENHERSH delivered the judgment of the court, with
opinion.
Justices Stewart and Moore concurred in the judgment and opinion.
OPINION
¶1 After a jury trial in the circuit court of St. Clair County, defendant, Nathan Bush, was
convicted of possession of methamphetamine precursor (720 ILCS 646/20(a)(1) (West 2012))
and possession of methamphetamine-manufacturing materials (720 ILCS 646/30(a) (West
2012)) and was sentenced to five years in the Department of Corrections and two years of
mandatory supervised release on each count with the sentences to run concurrently. The issue
raised in this appeal is whether defendant committed only one act of possession for which there
should only be one conviction. We affirm.
¶2 FACTS
¶3 Only a brief statement of facts is necessary for an understanding of this case. Defendant
was arrested after being found in possession of pseudoephedrine, lithium batteries, “Heet”
(isopropyl alcohol), and “cold packs.” The State charged defendant with two separate counts:
(1) unlawful possession of methamphetamine precursor, and (2) unlawful possession of
methamphetamine-manufacturing materials. A photograph of the items found in defendant’s
possession was submitted into evidence. After hearing all the evidence, the jury found
defendant guilty on both counts. Without objection, the trial court sentenced defendant to five
years’ incarceration and two years’ mandatory supervised release on each count with the
sentences to run concurrently. Defendant appeals.
¶4 ANALYSIS
¶5 The issue raised in this direct appeal is whether defendant committed only one act of
possession for which there should only be one conviction. Defendant argues he committed
only one act of possession and, therefore, the trial court violated the “one-act, one-crime” rule
established in People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977). Defendant insists one
conviction and sentence must be vacated. We disagree.
¶6 We point out that defendant waived the issue by failing to raise it at the sentencing hearing.
People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988). However, because the issue affects
defendant’s substantial rights, we will address it under the plain error doctrine. People v.
Smith, 183 Ill. 2d 425, 430, 701 N.E.2d 1097, 1099 (1998). Our supreme court has determined
that a violation of the one-act, one-crime doctrine challenges the integrity of the judicial
process and implicates the plain error analysis. In re Samantha V., 234 Ill. 2d 359, 370, 917
N.E.2d 487, 495 (2009). One-act, one-crime challenges are subject to de novo review. People
v. Artis, 232 Ill. 2d 156, 161, 902 N.E.2d 677, 681 (2009).
¶7 Under one-act, one-crime principles, a defendant cannot be convicted of multiple offenses
“carved from the same physical act.” King, 66 Ill. 2d at 566, 363 N.E.2d at 844. A King
analysis requires two steps: (1) whether the defendant committed multiple acts, and (2) if so,
whether any of the charges are lesser-included offenses. People v. Rodriguez, 169 Ill. 2d 183,
186, 661 N.E.2d 305, 306 (1996). Where two offenses share an act in common, multiple
convictions are permissible where the defendant commits a second overt manifestation which
supports a second offense. See Rodriguez, 169 Ill. 2d at 188-89, 661 N.E.2d at 307-08.
¶8 In Rodriguez, the defendant was charged with aggravated sexual assault based upon sexual
penetration while displaying or threatening the victim with a gun. He was also charged with
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home invasion predicated on unlawfully entering the victim’s home and threatening her while
armed with a gun. Rodriguez, 169 Ill. 2d at 190, 661 N.E.2d at 308. The Rodriguez court held
the two convictions were based on separate acts, noting that while both convictions shared the
act of threatening the victim with a gun, the defendant’s entering of the victim’s bedroom was
an overt manifestation that supported the home invasion charge. Rodriguez, 169 Ill. 2d at
189-90, 661 N.E.2d at 308.
¶9 In the instant case, defendant was charged under the Methamphetamine Control and
Community Protection Act (Act) (720 ILCS 646/1 et seq. (West 2012)). Section 5 of the Act
sets forth the purpose of the Act as follows:
Ҥ 5. Purpose. The purpose of this Act is to reduce the damage that the
manufacture, distribution, and use of methamphetamine are inflicting on children,
families, communities, businesses, the economy, and the environment in Illinois. The
General Assembly recognizes that methamphetamine is fundamentally different from
other drugs regulated by the Illinois Controlled Substances Act because the harms
relating to methamphetamine stem not only from the distribution and use of the drug,
but also from the manufacture of the drug in this State. Because methamphetamine is
not only distributed and used but also manufactured here, and because the manufacture
of methamphetamine is extremely and uniquely harmful, the General Assembly finds
that a separate Act is needed to address the manufacture, distribution, and use of
methamphetamine in Illinois.” 720 ILCS 646/5 (West 2012).
Defendant was charged with two separate offenses under the Act.
¶ 10 Count I charged defendant with a violation of section 20(a)(1) of the Act, which provides:
Ҥ 20. Methamphetamine precursor.
(a) Methamphetamine precursor or substance containing any methamphetamine
precursor in standard dosage form.
(1) It is unlawful to knowingly possess, procure, transport, store, or deliver any
methamphetamine precursor or substance containing any methamphetamine
precursor in standard dosage form with the intent that it be used to manufacture
methamphetamine or a substance containing methamphetamine.” 720 ILCS
646/20(a)(1) (West 2012).
Count II charged defendant with a violation of section 30(a) of the Act, which provides:
Ҥ 30. Methamphetamine manufacturing material.
(a) It is unlawful to knowingly engage in the possession, procurement,
transportation, storage, or delivery of any methamphetamine manufacturing material,
other than a methamphetamine precursor, substance containing a methamphetamine
precursor, or anhydrous ammonia, with the intent that it be used to manufacture
methamphetamine.” 720 ILCS 646/30(a) (West 2012).
The charging documents alerted defendant to the fact that he was charged with two separate
and distinct violations.
¶ 11 While defendant insists he was only guilty of one act of possession, under the statutory
scheme implemented by our General Assembly, defendant committed two distinct acts of
possession. Here, defendant possessed two separate items: (1) methamphetamine precursor
(pseudoephedrine), and (2) methamphetamine-manufacturing materials (lithium batteries,
“Heet,” and cold packs). This is not a case where one offense could be considered a
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lesser-included offense, as methamphetamine precursor and methamphetamine-manufacturing
materials are separate and distinct items under the Act. Possession of methamphetamine
precursor and possession of methamphetamine-manufacturing materials are based on
possessing different items, with possession of methamphetamine-manufacturing materials
specifically excluding methamphetamine precursor. See 720 ILCS 646/30(a) (West 2012).
¶ 12 In King, our supreme court stated, “We hold, therefore, that when more than one offense
arises from a series of incidental or closely related acts and the offenses are not, by definition,
lesser included offenses, convictions with concurrent sentences can be entered.” King, 66 Ill.
2d at 566, 363 N.E.2d at 845. While the acts of possession committed by defendant in the
instant case are closely related, under the statutory scheme implemented by our General
Assembly pursuant to the Act, they are separate and distinct acts. Given the unique problems
created by methamphetamine, the fact that it “is fundamentally different from other drugs,”
and “the manufacture of methamphetamine is extremely and uniquely harmful” (720 ILCS
646/5 (West 2012)), we find defendant’s convictions and concurrent sentences were properly
imposed.
¶ 13 For the foregoing reasons, the judgment of the circuit court of St. Clair County is hereby
affirmed.
¶ 14 Affirmed.
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