People v. Ryan

                                  No. 2-22-0076
                            Opinion filed June 27, 2024
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Kane County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 20-CF-690
                                       )
FRANK E. RYAN,                         ) Honorable
                                       ) David Kliment,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE MULLEN delivered the judgment of the court, with opinion.
       Justices Schostok and Kennedy concurred in the judgment and opinion.

                                            OPINION

¶1     Following a bench trial on stipulated evidence, defendant, Frank E. Ryan, was convicted

of possession of a firearm while ineligible for a Firearm Owners Identification (FOID) card (count

I) (430 ILCS 65/2(a)(1) (West 2020)); two counts of aggravated unlawful use of a weapon (counts

II and III) (720 ILCS 5/24-1.6 (West 2020)); and a violation of the conditions of his bail bond

(count IV) (id. § 32-10(a-5)). On appeal, he argues that the trial court erred by conducting a bench

trial on stipulated evidence over Zoom videoconferencing. He also contends that the latter three

counts should be vacated on one-act, one-crime principles. We reverse and remand.

¶2     Before proceeding further, we note that defendant has filed a motion to strike portions of

the State’s brief, arguing that they advance arguments that are not relevant. We ordered that motion


taken with the case. This motion is denied, and we will give those arguments whatever

consideration they are due.

¶3                                      I. BACKGROUND

¶4     Prior to trial, defendant filed a motion to suppress an item of personal property (a shotgun)

recovered by the police during a search of his pickup truck, contending the search was illegal. At

a hearing on the motion, defendant testified that on April 9, 2020, at about 3 a.m., he was in Elburn,

“seeking some answers to some questions that [he] was going over with [his] psychiatrist.” He was

attempting to turn around “off of a gravel pavement” and his “front wheels got stuck in some mud.”

He called a tow truck. Shortly after the tow truck arrived, a police car did as well. A uniformed

officer approached and asked defendant for identification. Defendant complied. Defendant told the

officer he was in Elburn seeking answers to some questions. The officer patted defendant down

and placed him in handcuffs. Defendant testified that he did not feel free to leave at this point. The

officer searched defendant’s truck. The officer did not ask for, and defendant did not grant,

permission to search his truck.

¶5     On cross-examination, defendant admitted that he was “on bond” and “there was a

condition that [he was] not to go near” a particular residence in Elburn. He acknowledged that one

could see that residence from where his truck was stuck. He also agreed that the area where he was

stuck was “an industrial area [where he] had no business being in at 3:00 in the morning.” Prior to

searching his truck, the officer asked defendant if there was anything in the truck that the officer

should be aware of. Defendant, who was in the back of the police car at the time, replied that there

was a loaded shotgun in the truck. Based on defendant’s testimony, the trial court found that the

burden shifted to the State to establish that the search was reasonable.




                                                -2-


¶6     Ubaldo Scudiero, a police officer with the Village of Elburn, then testified that, at

approximately 3 a.m. on April 9, 2020, he responded to a call of a pickup truck stuck in the mud

on a gravel path in an industrial area. The truck belonged to defendant. A tow truck and its driver

were already present. Scudiero, who arrived alone, made contact with defendant. Scudiero asked

defendant how he came to be stuck. Defendant did not say anything about “seeking answers”;

instead, he said something “about his brother and a female friend of this brother’s,” which he soon

acknowledged was a lie. Defendant produced an Illinois driver’s license. Scudiero recognized

defendant’s name from an earlier investigation. He was aware that defendant was on bond awaiting

trial in an attempted murder case and that the victim of that crime lived across the field from where

defendant was stuck. 1 Scudiero requested backup and learned from dispatch that defendant’s

FOID card had been revoked.

¶7     Scudiero testified that it was a “secluded, dark area.” Defendant began looking around and

behaving “fidgety,” and Scudiero thought defendant might be looking for a place to run. He placed

defendant in handcuffs and walked him away from the truck to his squad car. He asked defendant

if there was anything in the truck that he should know about, and defendant stated that there was a

loaded shotgun in the truck. Another officer arrived at that point. Scudiero approached defendant’s

truck, and, in plain view, “under the back bench [(inside the cab)] was a shotgun.” Scudiero then

placed defendant under arrest.




       1 That case was tried after this trial. Defendant was found guilty, and this court affirmed.


People v. Ryan, 

, pet. for leave to appeal pending, No. 130370 (filed

Feb. 27, 2024).



                                                -3-


¶8     On cross-examination, Scudiero acknowledged that, when he first approached defendant,

defendant was not doing anything illegal. There was no warrant out for defendant. Defendant never

tried to run. Scudiero stated that defendant did not consent to a search of his truck, and Scudiero

did not obtain a search warrant. On redirect, Scudiero stated that he knew defendant was not

supposed to be in the area of the victim’s house, which was in the direct path of travel and within

eyesight of where defendant was found.

¶9     The trial court denied defendant’s motion to suppress. Five status hearings followed, which

were all conducted via Zoom videoconferencing. During these hearings, the parties indicated that

they were negotiating the resolution of the case.

¶ 10   On January 13, 2022, with defendant appearing via Zoom, a status hearing was held. The

parties informed the trial court that they had agreed on proceeding with a bench trial on stipulated

evidence. They presented the court with a written stipulation. The court passed the case to allow

defendant to review the stipulation. When the case resumed, the court reviewed the stipulation

with defendant. The court verified that defendant had reviewed the stipulation with his attorney

and had signed it. Defendant indicated that he “want[ed] to proceed in this fashion.”

¶ 11   The written stipulation provided as follows. At trial, the State would call Officer Scudiero.

He would testify that on April 9, 2020, at 2:56 a.m., he was dispatched to a location in Elburn to

assist a motorist. When he arrived, he noted a pickup truck stuck in the mud. A tow truck was

present. Defendant was standing near the pickup truck. Defendant produced a driver’s license, and

Scudiero recognized defendant from a prior incident in Elburn in which defendant was involved.

The victim of the prior incident lived “in close proximity” to where defendant’s truck was stuck.

When Scudiero asked whether there was anything in the truck that he should be aware of,

defendant replied that there was a loaded shotgun under the rear seat. Scudiero, accompanied by



                                               -4-


Officer Sheets, approached the truck and observed the shotgun in an unzipped black soft case. It

was accessible from the driver’s seat and was loaded.

¶ 12   Scudiero would further testify that, as he was transporting defendant to the police station,

defendant called his father. Defendant stated that “he f*** up” and that “he took one of the

shotguns and was going to bring it home but he forgot he left it in the truck.” At the police station,

defendant told Scudiero that he had driven to the location where his truck was stuck and had just

been sitting there. He forgot the shotgun was in the truck, “because he switches between vehicles.”

¶ 13   The parties further stipulated that Randall Wilson of the Illinois State Police FOID card

records division would testify that defendant did not have a valid FOID card on April 9, 2020.

They further stipulated that one of the conditions of defendant’s bond was that he “shall not possess

a firearm or dangerous weapon and [that] defendant shall surrender any firearm, FOID card and

concealed carry license to the police department.”

¶ 14   The court took the matter under advisement, and, a week later, the matter was reconvened

via Zoom and the trial court found defendant guilty of all four charged offenses. Defendant filed a

motion for a new trial in which he argued that the trial court erred in denying his motion to

suppress, that he was denied due process and equal protection of law, and that “[t]he State failed

to prove every material allegation of the offense beyond a reasonable doubt.” This motion was

denied. The trial court then sentenced defendant to two years’ imprisonment with credit for 692

days served in pretrial custody. This appeal followed.

¶ 15                                      II. ANALYSIS

¶ 16   On appeal, defendant raises two issues. First, defendant argues that the trial court erred by

conducting defendant’s bench trial on stipulated evidence via Zoom videoconferencing. Second,




                                                -5-


defendant contends that three of his convictions should be vacated on one-act, one-crime

principles.

¶ 17                                    A. The Stipulation

¶ 18    Defendant first asserts that the trial court should not have conducted a bench trial on

stipulated evidence without securing a proper waiver from him of his right to be present. Defendant

acknowledges that this issue was not properly preserved and asks that we conduct second prong

plain-error review. The plain-error rule bypasses normal forfeiture principles and allows a

reviewing court to consider unpreserved claims of error in specific circumstances. People v.

Averett, 

 (2010).

¶ 19    Before proceeding further, we note that the State asserts that defendant invited any error

regarding the use of the videoconferencing procedure for the stipulated bench trial, which would

render plain-error review unavailable. People v. Harding, 

.

Generally, under the doctrine of invited error, a defendant “may not request to proceed in one

manner and then later contend on appeal that the course of action was in error.” People v. Carter,

 (2003). The State points out that the trial court reviewed the proposed

stipulation with defendant via videoconferencing. The trial court explained, “It’s called a

‘Stipulation for Bench Trial.’ You’ve discussed with your lawyer what a stipulated bench trial is?”

Defendant answered affirmatively. The trial court then asked whether defendant “want[ed] to

proceed in this fashion,” and defendant stated that he did. According to the State, “During this

exchange, defendant clearly indicated he wished to proceed in the manner described by the court.”

The State continues, “Given that he was present via videoconference and agreed that he wanted to

‘proceed in this fashion,’ his claim that proceeding in that very manner constitutes error should be

rejected under the doctrine of invited error.”



                                                 -6-


¶ 20    We disagree. The State’s argument attempts to exploit the ambiguity in the phrase, “in this

fashion.” The State contends that it encompasses the videoconferencing procedure; however, read

in context, it appears to us to refer to the conduct of the bench trial on stipulated evidence. People

v. Coan, 

, provides guidance here. In that case, the State tendered a

number of jury instructions, one of which addressed the burden of proof. On appeal, the defendant

sought to challenge the instruction. The State asserted that the defendant acquiesced in its use, as

he failed to object during the instruction conference. The State argued that the “defendant’s failure

to object to the instruction was not ‘mere oversight,’ as he objected to the use of other instructions.”

Id. ¶ 22. We found the invited-error doctrine inapplicable. Id. ¶ 24. Thus, in Coan, we declined to

presume acquiescence from the defendant’s failure to object to certain instructions while objecting

to others. Similarly here, we will not construe defendant’s agreement to proceed with the bench

trial on stipulated evidence as acquiescence in the videoconferencing procedure.

¶ 21    The plain-error doctrine, as it has developed in Illinois, allows that, under two

circumstances, a forfeited error affecting substantial rights may be reached by a reviewing court.

People v. Herron, 

 (2005). Under the first prong, where the evidence in a case

is so closely balanced that the verdict may have resulted from the error and not the evidence, a

reviewing court may consider a forfeited error to ensure that an innocent person was not wrongly

convicted. Id.; see, e.g., People v. Sebby, 

 (rejecting State’s request to

“retool[ ] requirement of prejudice under the first prong” of plain error). Under the second prong,

where the error is so serious that the defendant was denied a substantial right, and thus a fair trial,

a reviewing court may consider a forfeited error to preserve the integrity of the judicial process.

Sebby, 

. Second prong errors are “presumptively prejudicial errors—errors

that may not have affected the outcome, but must still be remedied because the error deprive[d]



                                                 -7-


the defendant of a fair trial.” (Internal quotation marks omitted.) People v. Moon, 

 (citing Herron, 

).

¶ 22   Our supreme court has held that, under the second prong of Illinois’s plain-error rule, the

court must determine whether structural error occurred and, once structural error is found,

automatic reversal is required. Id. ¶ 74 (holding structural error where unsworn jury convicted

defendant). The initial analytical step under either prong of the plain-error doctrine is determining

whether there was a clear or obvious error at trial. Sebby, 

. Whether a clear

error occurred and whether it constitutes second prong plain error is reviewed de novo. See Moon,

; People v. Johnson, 

 (2010).

¶ 23   Initially, we address whether there was clear or obvious error. We hold that there was. First,

we note that Illinois Supreme Court Order M.R. 30370, which addressed issues raised by the

COVID-19 pandemic, was in effect at the time of the proceedings in question. Ill. S. Ct., M.R.

30370 (eff. Mar. 8, 2021). In its brief, the State contends that defendant did not properly raise this

order and, therefore, has forfeited any reliance on it. See People v. Polk, 

,

¶ 49 (Gordon, P.J., dissenting) (citing Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013)). Forfeiture,

however, is a limitation on the parties, not the reviewing court, and we may overlook forfeiture

when necessary to reach a just result or maintain a sound body of precedent. People v. Acosta,

.

¶ 24   In a series of orders, our supreme court addressed issues raised by the COVID-19

pandemic. See People v. Mayfield, 

 (outlining the history of the emergency orders

in response to the pandemic). The order in effect on the date of the two January 2022 hearings in

question discussed remote hearings for adult criminal matters and outlined four categories: those

that could be held remotely without a waiver, those that required a waiver, those that required



                                                -8-


written consent by the defendant and specific findings by the trial court, and, finally, those that

could not be held remotely even with consent. Ill. S. Ct., M.R. 30370 (eff. Mar. 8, 2021). 2 Bench

trials on stipulated evidence were placed in the third category, requiring consent in writing,

detailed findings by the trial court concerning the defendant’s understanding of his rights and the

import of the waiver, and a finding by the court that remote proceedings will not jeopardize the

integrity of the trial process. 

 None of that occurred here.

¶ 25   Relevant to whether any error occurred, both the Illinois Constitution and the United States

Constitution recognize a criminal defendant’s right to be present at all critical stages in his or her

trial, from arraignment to sentencing. People v. Lindsey, 

 (2002). The right to be

present is an implied right, arising from the due process clause of the fourteenth amendment. U.S.

Const., amend. XIV, § 1; Lindsey, 

. The Illinois Constitution expressly affords the

right to “appear and defend in person and by counsel.” Ill. Const. 1970, art. I, § 8. This right is

extended to all procedural stages that are critical to the outcome of the case if the defendant’s

“presence would contribute to the fairness of the procedure” (Kentucky v. Stincer, 

 (1987))—“in other words, a critical stage of trial” (People v. Bean, 

 (1990)

(jury selection is a critical stage but defendant’s absence from in camera portion of voir dire of six

jurors was not plain error)). There is no absolute right of presence. Bean, 

; see

Snyder v. Massachusetts, 

 (1934) (“Nowhere in the decisions of this court is

there a dictum, and still less a ruling, that the Fourteenth Amendment assures the privilege of



       2 An amendment to Illinois Supreme Court Order M.R. 30370 (eff. Apr. 20, 2023) vacated


these provisions, but many of them were memorialized and permitted under Illinois Supreme Court

Rule 45 (eff. Jan. 1, 2023), which requires specified procedures.



                                                 -9-


presence when presence would be useless, or the benefit but a shadow.”). A defendant’s presence

is a condition of due process, however, only to the extent that a fair and just hearing would be

denied by the defendant’s absence. Bean, 

.

¶ 26   In this case, the stipulated bench trial was conducted over two hearings. At the first hearing,

the court ascertained defendant’s agreement with the procedure of trial by stipulation and the

written stipulation was presented. At the second hearing, the court found defendant guilty. We find

that both hearings were critical stages. “[I]t has been recognized that any proceeding where a

defendant asserts or waives constitutional rights may be deemed ‘critical.’ ” Lindsey, 

. The first hearing resulted in defendant’s waiver of the right to see and hear the witnesses against

him. Like a guilty plea, a defendant’s agreement to stipulate to the State’s evidence is a “decisive

moment for the defendant in the criminal process,” obviating the prosecution’s need to present

witnesses. People v. Guttendorf, 

 (2000). Surely that first hearing was

critical to the outcome of the matter, and defendant’s presence was the linchpin of “the fairness of

the procedure.” Stincer, 

.

¶ 27   Turning to the second hearing, where the court announced that it had found defendant

guilty, we note that People v. Aguilar surveyed the law regarding the right of presence at the court’s

ruling in a bench trial and held that it was “arguably a critical stage of trial.” Aguilar, 

, ¶ 43 (finding that bench ruling without interpreter for non-English speaking

defendant presented the gist of a constitutional claim in postconviction petition). Aguilar relied on

United States v. Canady, 

 (2d Cir. 1997), which held that a district court’s

mailing of its decision in a criminal case to the parties violated the right of presence. Canady

rejected the government’s argument that the defendant’s presence at a pronouncement hearing

would have been useless, finding a “useful purpose in ensuring that the pronouncement of the



                                                - 10 -


defendant’s guilt or innocence by the court is both face-to-face and public.” Id. at 361. We agree.

The court’s announcement of its verdict was also a critical stage. Therefore, based upon the

supreme court’s order regarding remote hearings and our review of the constitutional principles,

we conclude that the conduct of this bench trial on stipulated evidence via Zoom

videoconferencing without the consent of defendant was error.

¶ 28   This finding of error does not end our analysis of defendant’s claim, however. We must

determine if the denial of the right to be present affected a substantial right. As our supreme court

recently said,

       “ ‘[A] defendant is not denied a constitutional right every time he is not present during his

       trial, but only when his absence results in a denial of an underlying substantial right, in

       other words, a constitutional right; and it is only in such a case that plain error is

       committed.’ ” People v. Brown, 

 (quoting Bean, 

)

       (holding a defendant’s absence at sidebar where attorneys accepted or struck jurors was

       not plain error, nor was appellate counsel’s performance deficient).

See Lindsey, 

 (finding that a defendant was absent from a critical stage of trial does

not end the inquiry: “The right to be present, even at a critical stage of the proceedings, is not

absolute”).

¶ 29   In Lindsey, 

, undertaking a plain-error review, the court considered whether

the defendant’s appearance via closed-circuit television at his arraignment and at another hearing

where he waived his right to a jury trial violated his state or federal constitutional rights because

he had not expressly consented to that the procedure. The court first recognized both hearings as

critical stages of the defendant’s trial. 

. It then considered “in the light of the whole




                                                - 11 -


record” whether fairness was affected by the defendant’s video appearance. (Internal quotation

marks omitted.) Id. at 57-58.

¶ 30    Noting the defendant’s interaction with the trial court and ability to see and hear during the

proceedings, the court concluded that the defendant was “aware of the nature and significance of

the proceedings and the overall solemnity of the proceedings was preserved.” Id. at 58. The court

observed that, while the defendant “was not physically present in the courtroom for his arraignment

and jury waiver, neither was he entirely absent from these proceedings.” Id. Looking to the trial

court’s responsibilities at the hearing and the effect of a remote appearance, the court stated that,

since the defendant pleaded not guilty at the arraignment, there was no need for the court to assess

his demeanor. Id. at 58-59. The court also found it meaningful that the defendant initiated the

waiver of his jury-trial right and that the record “clearly conveyed” a knowing and voluntary

waiver of a jury. Id. at 59. Accordingly, the court concluded that the defendant was denied neither

due process nor any underlying right as a result of his participating in these proceedings via closed-

circuit television. Id. at 60.

¶ 31    In contrast, People v. Stroud, 

 (2004), categorically held that a

defendant’s closed-circuit television appearance at his guilty plea proceeding, without his consent

on the record, violated his constitutional rights. Stroud concerned a postconviction attack on the

defendant’s remote guilty plea as involuntary—despite the lack of a motion to withdraw the guilty

plea—because he was not advised of his right to be physically present. 

. Stroud

distinguished Lindsey’s televised arraignment and jury waiver: “The number and gravity of the

rights at stake at a guilty plea hearing are greater than when a defendant intends to plead not guilty

at arraignment.” 

.




                                                - 12 -


¶ 32    The court found that, although the remote defendant was “not entirely absent,” he was

“physically absent from the most decisive moment of the criminal proceedings against him.”

(Emphasis added.) Id. at 409. It held, “We believe that [the] defendant’s physical presence would

have contributed to the fairness of the proceeding.” Id. Emphasizing “the importance of the

courtroom itself in contributing a dignity essential to the integrity of the trial process,” the Stroud

court concluded that “a defendant’s appearance at a guilty plea proceeding via closed-circuit

television is constitutionally permissible only if the defendant waives the right to physical presence

on the record after being advised of his right to be present.” (Internal quotation marks omitted.) Id.

¶ 33    Stroud cited Guttendorf, 

, with approval. Stroud, 

-

07. Guttendorf found plain error where a guilty plea was taken over closed-circuit television.

Guttendorf, 

. The Guttendorf court held that the remote procedure violated

the right to be physically present in court at a critical stage, resulting in the denial of a substantial

right and depriving the defendant of fundamental fairness in the proceeding. 

¶ 34    Like the Stroud court, Guttendorf examined the role of the courtroom: A courtroom “is

more than a location with seats for a judge, jury, witnesses, defendant, prosecutor, defense counsel

and public observers; the setting that the courtroom provides is itself an important element in the

constitutional conception of trial, contributing a dignity essential to the integrity of the trial

process.” (Internal quotation marks omitted.) 

 at 1046-47 (citing Estes v. Texas, 

 (1965) (Warren, C.J., concurring, joined by Douglas and Goldberg, JJ.)). Like the Lindsey

court, Guttendorf looked to the trial court’s responsibilities at the hearing and the effect of a remote

appearance and noted that, in a remote guilty plea hearing, “crucial aspects of a defendant’s

physical presence may be lost or misinterpreted.” Id. at 1047.




                                                 - 13 -


¶ 35   The defense argues that the remote bench trial on stipulated evidence in this case is

analogous to the guilty plea in Stroud and distinguishable from the arraignment and jury waiver in

Lindsey. The State argues that, unlike the guilty plea in Stroud, the bench trial on stipulated

evidence here did not implicate any of defendant’s substantial rights. In distinguishing Stroud, the

State points to the line of cases that differentiate between bench trials on stipulated evidence that

preserve a defense and bench trials on stipulated evidence that are tantamount to a plea of guilty.

See, e.g., People v. Villarreal, 

 (collecting cases). Where the bench trial

on stipulated evidence is tantamount to a plea of guilty, Illinois Supreme Court Rule 402 (eff. July

1, 2012) admonitions are required (see, e.g., People v. Smith, 

 (1974)); where

the bench trial on stipulated evidence preserves a defense and is not tantamount to a plea of guilty,

Rule 402 admonitions are not required. See People v. Horton, 

 (1991) (where

no Rule 402 admonitions were given in either of two bench trials based on stipulated evidence,

affirming conviction that was not tantamount to a plea of guilty and reversing conviction where

counsel stipulated to sufficiency of evidence).

¶ 36   The State’s argument is that, because defendant’s bench trial on stipulated evidence

preserved a defense, 3 it was not tantamount to a plea of guilty and, therefore, it did not require

Rule 402 admonitions. From that proposition, because Stroud involved a remote guilty plea, the

State leapfrogs to the conclusion that Stroud does not apply. We do not think that meaningfully

distinguishes Stroud. While Rule 402 admonitions were not required, defendant was giving up

substantial rights. It was at least as important that the trial court ensure that defendant understood

the bench trial on stipulated evidence (without the benefit of Rule 402 admonitions) as it was for

the trial court in Stroud to protect the defendant’s rights regarding the guilty plea.


       3 The issues in the suppression motion have not been raised in this court, however.



                                                - 14 -


¶ 37   As defendant points out, this court has described a stipulated bench trial this way:

               “A stipulated bench trial is a legal fiction created solely to give defendants the

       benefit and convenience of a guilty plea while avoiding the consequences of waiver or

       forfeiture. [Citation.] In a stipulated bench trial, a defendant enters a plea of not guilty, and

       a ‘trial’ is held based on a set of facts agreed to by the parties. Although there is a remote

       theoretical possibility that the defendant may be acquitted, the reality is that factual guilt is

       a foregone conclusion. After all, neither a reasonable defendant nor a prosecutor will

       choose to pursue a stipulated bench trial (or guilty plea) if the evidence is doubtful. Thus,

       once a stipulated bench trial is conducted, the defendant will a fortiori be found guilty by

       the trial court.” People v. Gonzalez, 

 (2000).

¶ 38   In agreeing to a bench trial on stipulated evidence, defendant’s guilt became “a foregone

conclusion” (id.), and he waived the important right to see, hear, and cross-examine the witnesses

against him. As the court in Stroud believed, so do we believe that “defendant’s physical presence

would have contributed to the fairness of the proceeding[s].” Stroud, 

. The

“number and gravity of the rights at stake” (id. at 406) are a hair’s breadth away from those waived

by a guilty plea. We find Stroud determinative and hold that conducting a bench trial on stipulated

evidence via videoconferencing without defendant’s knowing consent to do so was structural error.

If we are to understand that the courtroom itself provides “an important element in the

constitutional conception of trial, contributing a dignity essential to the integrity of the trial

process” (internal quotation marks omitted) (Guttendorf, 

), then any

other conclusion denigrates our conception of the trial process. These decisive moments should be

solemnized in person, absent a knowing consent. Because we hold that structural error occurred,

there is no need to determine what prejudice, if any, accompanied the error. Moon, 2022 IL



                                                - 15 -


125959, ¶ 74; see also People v. Glasper, 

 (2009) (holding that automatic

reversal is required only where structural error has occurred); People v. Chambliss, 

, pet. for leave to appeal granted, No. 130585 (May 29, 2024). Moreover,

structural error constitutes second-prong plain error. Chambliss, 

(citing Glasper, 

). We reverse and remand for a new trial.

¶ 39                                  B. One-Act, One-Crime

¶ 40   Defendant next contends, and the State partially agrees, that a number of his convictions

should be vacated pursuant to the one-act, one-crime doctrine. See People v. Woods, 

. Given the parties’ reasonable disagreement on this issue, it is likely to recur on

retrial; therefore we will address it here. See People v. Dismuke, 

, ¶ 61.

The one-act, one-crime doctrine holds that “a defendant may not be convicted of multiple offenses

that are based upon precisely the same physical act.” People v. Johnson, 

 (2010).

Defendant concedes that this issue is not properly preserved. Violations of this rule may be

addressed under “the second prong of the plain-error doctrine as an obvious error so serious that it

challenges the integrity of the judicial process.” People v. Coats, 

; see People

v. Johnson, 

 (1990) (“Multiple convictions for the same act are plain

error.”). Review is de novo. Coats, 

.

¶ 41   To determine whether there has been a violation of the one-act, one-crime doctrine, a court

first determines whether a defendant has committed a single act or multiple acts. 

 If the latter,

the court must then consider whether any of the offenses of which the defendant is convicted are

lesser included offenses. 

 Multiple convictions based on a single act and convictions that are

based on lesser included offenses may not stand. People v. Rodriguez, 

 (1996).

When the doctrine applies, “sentence should be imposed on the more serious offense and the less



                                                - 16 -


serious offense should be vacated.” People v. Artis, 

 (2009). “Prejudice results

to the defendant only in those instances where more than one offense is carved from the same

physical act.” People v. King, 

 (1977).

¶ 42    Our supreme court has defined an “act” as “any overt or outward manifestation which will

support a different offense.” 

 Multiple convictions are permissible where “a common act is part

of both offenses” (internal quotation marks omitted) (Rodriguez, 

) or “part of one

offense and the only act of the other offense” (People v. Lobdell, 

 (1983)).

A defendant’s status, such as being a felon, “is not an ‘act’ but, rather, a state of being.” Coats,

, ¶ 27.

¶ 43    As noted, defendant was convicted of four offenses: possession of a firearm while

ineligible for a FOID card (count I) (430 ILCS 65/2(a)(1) (West 2020)); two counts of aggravated

unlawful use of a weapon (counts II and III) (720 ILCS 5/24-1.6 (West 2020)); and a violation of

the conditions of his bail bond (count IV) (id. § 32-10(a-5)). The parties agree that the second and

third counts must be vacated, so we will not consider them further. Additionally, they agree that

count I should remain.

¶ 44    Hence, we are left to consider count IV. The State argues that the offense of violating a

condition of his bail bond required that defendant engage in an overt act beyond what was required

to convict him of the other counts. The State and defendant agree that the first three counts were

based on the act of possessing a firearm. However, according to the State, defendant had to engage

in another overt act to violate his bail bond; specifically, defendant had to “obtain[ ] a bail bond

and be[ ] admitted to bail.” We disagree with the State’s characterization of being admitted to bail

as an overt act.




                                               - 17 -


¶ 45   Coats provides guidance here. There, the supreme court addressed People v. White, 

 (2000), a Fourth District case that held that the one-act, one-crime doctrine did

not apply to the offenses of armed violence and unlawful possession of a weapon by a felon. The

Fourth District stated, “Although both offenses shared the common act of possession of a weapon,

armed violence required the additional act of possession of the drugs, and unlawful possession of

a weapon by a felon required the additional element of status as a felon.” (Emphasis added.) 

The supreme court rejected this reasoning, stating, “A felon’s status is not an ‘act’ but, rather, a

state of being.” Coats, 

, ¶ 27. Thus, it is not part of the analysis “to determine

whether a defendant’s conduct consists of one act or several acts.” Id.

¶ 46   Being admitted to bail is a similar sort of status. Felons typically may not possess a firearm.

See 720 ILCS 5/24-1.1(a) (West 2020). Likewise, defendant was legally disqualified from

possessing a firearm when he was admitted to bail. See id. § 32-10(a-5). Like one’s status as a

felon, this restriction resulted from an order of a court. See 725 ILCS 5/109-1(f), (g) (West 2020).

Accordingly, we hold that being on bail, like being a felon, is not an overt act for the purpose of

the one-act, one-crime doctrine. Thus, there is no separate act supporting a conviction of count IV

¶ 47                                   III. CONCLUSION

¶ 48   For the foregoing reasons, we reverse and remand. We note that jeopardy had attached in

this case. See People v. Bellmyer, 

 (2001) (holding that jeopardy attaches

in a bench trial on stipulated evidence when the stipulation is submitted to the trial court).

Generally, “[t]he double jeopardy clause does not preclude retrial when a conviction has been

overturned because of an error in the trial proceedings, but retrial is barred if the evidence

introduced at the initial trial was insufficient to sustain the conviction.” People v. Drake, 

. In making this determination, evidence improperly admitted in the original trial may



                                               - 18 -


be considered. Id. ¶ 21. These rules apply even in the case of structural error. See People v.

Richardson, 

. Having reviewed the stipulated evidence in this

case, we conclude that it was clearly sufficient to support defendant’s conviction, so retrial is not

precluded by double jeopardy.

¶ 49   Reversed and remanded.




                                               - 19 -


                          People v. Ryan, 

Decision Under Review:         Appeal from the Circuit Court of Kane County, No. 20-CF-690;
                               the Hon. David Kliment, Judge, presiding.


Attorneys                      James E. Chadd, Thomas A. Lilien, and Fletcher P. Hamill, of
for                            State Appellate Defender’s Office, of Elgin, for appellant.
Appellant:


Attorneys                      Jamie L. Mosser, State’s Attorney, of St. Charles (Patrick
for                            Delfino, Edward R. Psenicka, and David S. Friedland, of State’s
Appellee:                      Attorneys Appellate Prosecutor’s Office, of counsel, and
                               Jaylaan Slaughter, law school graduate), for the People.




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