NOTICE

Decision filed 07/28/15. The text of this decision may be NO. 5-13-0224 changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of IN THE the same.

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 12-CF-1639 ) NATHAN BUSH, ) Honorable ) Jan V. Fiss, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

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 material (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.

1 ¶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,

,

(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,

,

(1988). However, because

the issue affects defendant's substantial rights, we will address it under the plain error

doctrine. People v. Smith,

,

(1998). Our

supreme court has determined that a violation of the one-act, one-crime doctrine 2 challenges the integrity of the judicial process and implicates the plain error analysis. In

re Samantha V.,

, 370,

, 495 (2009). One-act, one-crime

challenges are subject to de novo review. People v. Artis,

,

(2009).

¶7 Under one-act, one-crime principles, a defendant cannot be convicted of multiple

offenses "carved from the same physical act." King,

,

.

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,

,

(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,

,

.

¶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 home invasion predicated on unlawfully entering the victim's home and

threatening her while armed with a gun. Rodriguez,

,

.

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,

,

.

¶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 3 the Act sets forth the purpose of the Act as follows:

"§ 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:

"§ 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 4 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:

"§ 30. Metamphetamine 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 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). 5 ¶ 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,

,

. 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.

6

NO. 5-13-0224

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 12-CF-1639 ) NATHAN BUSH, ) Honorable ) Jan V. Fiss, Defendant-Appellant. ) Judge, presiding. __________________________________________________________________________

Opinion Filed: July 28, 2015 __________________________________________________________________________

Justices: Honorable Richard P. Goldenhersh, J.

Honorable Bruce D. Stewart, J., and Honorable James R. Moore, J., Concur __________________________________________________________________________

Attorneys Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy for Defender, Robert S. Burke, Assistant Appellate Defender, Office of Appellant the State Appellate Defender, Fifth Judicial District, 909 Water Tower Circle, Mt. Vernon, IL 62864 __________________________________________________________________________

Attorneys Hon. Brendan F. Kelly, State's Attorney, St. Clair County Courthouse, for 10 Public Square, Belleville, IL 62220, Patrick Delfino, Director, Appellee Stephen E. Norris, Deputy Director, Office of the State's Attorneys Appellate Prosecutor, 730 East Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864 __________________________________________________________________________