Docket No. 102003.



### IN THE SUPREME COURT OF THE STA TE OF IL LINOIS

THE PEOPLE OF THE STAT E OF IL LI NOIS, Appellant, v. DANNY COLON, Appellee

.
Opinion filed March 22, 2007.

JUSTICE GARMAN delivered the jud gment of the cour t, with opinion. Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride, Karmeier, and Burke conc urred in the judgment and opinion.

OPINION

Defend ant, Danny Colon, pl eaded guilty in the circ uit court of C ook County to one count of aggravated unlawful use of a weapo n (720 I LCS 5/2 4–1.6 (Wes t 2002)) a nd was se ntenced to 12 months’ probation(730 I

LCS 5/5 –6–2(b)(2) (West 2002)). Subsequently, the St ate charged defendant with unlawf ul use of a weapon by

a felon (720 I LCS 5/2 4–1.1 (Wes t 2002)) a nd filed a petition to

revoke h is probation(730 I

LCS 5/5 –6–4 (West

2002)). A

t defens e c ounsel’s request , the trial court consolidated defendant’s benc h trial on the unlawful use of a wea

pon cha rge with his probation revocation hearin g. T he co urt found defendant not guilty of unlawful use of a weapon by a felon, but determined that he vi ol ate d hi s pr oba ti on. In

a posttrial motion, defense counsel argued that requ e sting-2- consolidation of

the pr oceedi ngs constituted ineffective assistance of

co unse l. The trial court denied the motion and sentenced defenda nt to 20 months’ imprisonment. Defendant appealed, and the appe llate court reversed and remanded with one justice dissenting. No. 1–04–27 78 (unpublished order under Supreme Court Rule 23). For the reasons that follow, we reverse thejudgment of the appellate court and aff irm the jud

gment of the circ uit court.

BACKGROUND OnFebruary

19, 2004, defendant pleaded gu ilty to one count of aggravated

unlawful use o f a wea

pon (720 I

LCS 5/2 4–1.6 (Wes t 2002)) and was sentenced to 12 months’ pr

obation ( 730 I LCS 5/5–6–2(b)(2) (West 200 2)). On April 19, 2004, defendant was placed under arres t afte r a polic e offic er allegedly saw him in possession of

a handgun. He was subsequently char ged with unlawful

use of a weapon by

a felon (720 ILCS 5/24–1.1 (West 2002)) and with violating his probation (730 IL CS 5/5–6–4 (West 2002)). When defendant appe ar ed in cour t on July 8, 2004, de fense counsel informed

the cour t that def endant w as prepa

red to p roceed simultane ously

with his bench trial on the unlawful use of a weapon charge and his pr

obation r evocati on heari

ng. The State con sented to consolidation, and the court allowed the parties to proceed. The State ca

lled Serg eant Cha

rles Gly nn and Of ficer Sc ott Blasz of the Ch icag o police department to testify. Ser geant Gly nn stated that he had been

a Chicago police officer for 18 years. On April 19, 2004, at approximately 1:45 a.m., he was a pproa chi ng a building at 280 3 Nor th Kedzie Avenue in Chicago to use its porch for surveillance purposes. As Sergeant Glynn appro ached t he bui ldin g, he saw defendant standing in the building’s archway with a black, semiautomatic pistol in his right ha

nd. Serg eant Glynn was approximat ely

10 feet aw ay

from def

endant w hen he ma

de this observation, and

the surr ounding area w as well lit

. While he could not see the p istol’s ha

ndle, he c ould see i

ts barre l. According

to Serge ant Gly

nn, when he saw the

pistol, he drew his weapon, announced that he was a po lice officer, and ordered defendant to drop the pistol. Defendant turned and faced him and fled outof the archway

onto Kedzie Avenue. Serg ea nt Glynn chased-3- defenda nt. While in pursuit, he described defendant and his direction of flight over the police radio. Defendant

ran through a gang

way and i nto an alley, at whic h pointhe hopped over a waist-high fenc e and entered another ga ng wa y. Serge ant Gly

nn was una

ble to pur su e defen dant over the fence, but h e watched defendant enter the g angway from a distance of approximately 20 f

eet. Under the alley

lighting, which extended into the gangway

, he saw defendant hold up the gun and depress the magazine release. The mag azine fell to the ground, and defendant continued to flee. Sergeant Glynn subsequently

recovered the magazine and d etermined

that it con

tained ni ne-millime

ter roun ds. Shortl

y thereafter, he was notified over the police radio tha t defenda nt had been apprehended. The pistol was never r ecovered. Officer Blasz testified that on April 19, 2004, he was in a squad

car with his partner Mark

DuBose when they

received the description of defendant

and hi s direction of flight over the police radio. After driving a short distance, they passed an alley

and saw a

person fitting the descripti on the

y r ece ived over the r adio . Wh en the person, defenda nt, began t o run, they cut him off with their squad c ar and placed him under arrest. At that point, Sergeant Gly nn arrived on the

scene. Following Officer Bl asz’s testimony, the parties stipulated that defendant was convicted

of aggravated unla

wful use of a weapon on February 19, 2004. The State and the defense then rested. After brie f closing arguments, the trial court revie wed the differing b urdens of proof for the substantive charge and the probationviolation. The cour t determi ned that t he State had fail ed to prove bey ond a rea sonable d

oubt that d

efenda nt had committed the offense of unlaw ful use

of a weapon by

a felon, but that the State had

m et its b urden of proving by a preponderance of the evidenc e that defendant had posse ssed fire arm ammun ition in viol ati on of

the terms of his probation. Accordingly , the cour t s et a date to sentence defendant for his probation violation. OnSeptember 7, 2004, pri o r to sentencing, defense counsel presented an oral posttri al motion a rguing that his re quest to consolida te the be nc h trial with the probation revocation hearing-4- constituted ineffective assistance of counsel. Defens e counse l a sserte d that if he had

not reque sted cons olid ation, t he court’s probation violation finding would have been barred by principles of collateral estoppel and double jeopardy , becau se it would have been impermiss ible to re litigate the same issue of fact

decided in a bench
tr ial on the substantive charge at a subsequent proba tion revocatio n hearin g. During the course of the hearing on defe ndant’s posttrial motion, the following colloquy oc curred:

“COURT: Is it not

the State’s election as to whether they want to proceed–y

ou make that ar gument as if y ou had the benefit of ch oosing to go to the underly ing case or to the probationviolation. And, in fact, you do not. I t’s t he State’s choice. DEFENSE

COU NS EL: But in this

case, the State choose [ sic ] to go on the main cas e, and Isaid[,] your Honor, why don’t we ju st try

them t ogether . We could get

a transcript and see that’s what happened. That’s what happe ned. COURT: Did the State elect on the underly ing case? STATE : I thin

k we had–

let me che ck. The St

ate ha d elected on the case in chief. COURT: I agre e with you. And we don’t have the transcr ipt beca use nobod

y g ot it? DEFENSE

COUNSEL : As to th at p ortion of it, nobody got it.” Ul ti ma te ly, the court den ie d defendant’s posttrial motion and sentenc ed him to 20

months’ imprisonmen

t. Defendant

appealed, and the appellate court re v erse d the judgm ent of the circuit court with one justice dissenting. No. 1–04–2778 (unpublished orde r un der Supreme Court Rule 23). Ini ti al ly, th e appellate court majority rejected defendant’s arg

ument that the evide nce pre sented a

t trial wa s in suf

ficient to prove that he violated his probation by unlawfully possessing firearm ammunition

as a felon. The majority he ld tha t, based on the observations of Sergeant Glynn, an 18-year ve teran o f the C hicago police de partmen t, it wa s reasonable for the trial court to infer that the nine- millimeter rounds ejected

from the semiautomatic pistol defendant was carry ing-5- were “firearm ammunition” as defined by section 1.1 of the

Firearm Owners Identifica

tion Card Act (430 IL CS 65/1.1 (West 2002)). Next, the majority rejec

ted defendant’s argument that the t ria l court’s finding that

he violated his probation was barred by principles of collateral estoppel and double jeopardy based on his acquittal of the substant ive c harge. Citing this court’s decision in People v. Grayson
, 58 Ill . 2d 260, 26 5 (1974), the cour t noted tha

t Grayson prohibits the relitigation of

an issue in a probation revocation hearing that has been litigate d in

a previous trial, regardless of the diff erences in the burdens of proof in the two proceedings. The court observed, howev e r, that where a defendant’s trial and proba tion revocation hearing are consolidated, concerns of colla teral es toppel an

d double jeopardy do not arise, and the defendant may be a cq uitted of the substantive charge but still be found to haveviolated the terms of his probation. Accordingly , the court held that because defendant’s trial and probation revocation hearing were consolidated, the trial court’s finding th at defen dant violated his probation was not barred by pr in ci pl es of

co ll at er al es to pp el an d d ou bl e j eo pa rd y. Finally, the appe llate court addressed defendant’s argument that defense counsel provided ineff ective assistance of counsel by requesting consolidation

of the bench trial and probation revocation hearin g. The cour

t noted th at if defendant had been acquitted of the substantive charge in an earlier, separate proce eding, instead of in a consolidated

proceeding, Grayson would have barred the trial

court’s viola tion-of-probation

finding. A cc or di ng ly, the court determined that there was a reasonable probability that, bu t for d efense counsel’s request for consolidation, the outcome would have differed for defendant

. The court acknowledged that there was nothing in the record to indicate that defense counsel was awar e prior to his req uest for consolidation t hat the State had elected to try defendant on the substantive charge before pr oceeding wi th his probation revocation hearin g. However, the court found this fact imma terial to the ineffe ctivene ss in qu ir y, reasoni ng that t he possibi lity

the State would have procee ded firs t on the sub stantive c harge was suff

icient to support defendan

t’ s i nef fec ti ve a ss is tan ce o f co uns el c lai m. In addition, the court declined to characterize defe nse counsel’s de cision to consolidate the proceedings as a matter of tr ia l s tr at eg y. In light of theseconsidera

tio ns, the court concluded that defense counsel’s-6- request to consolidate the proceedings amounted to ineffec tive assistance of

counsel, because it fell below an objective standard of

reasona blenessand was prejudicial to defendant. The court reversed the judgment of the trial court and remanded the c au se f or a new proba tion revoca tion hearin g. Indiss ent, P resid ing J ust ice Quinn conclude d that def

ense counsel’s request for a consolidated proceeding was a matter of trial st ra te gy. No. 1–04–2778 (unpublished order under Supreme Court Rule 23) (Quinn, P.J., dissenting). In addition, he criticized the majority for relying

ona poorly formulate d rule of decision – i.e. , that “any defense attorney

who requests

a consolidated

he aring w

ill recei ve a second bite at the apple upon appeal of any findi ng o f violation of probation as all such requests constitute per se ineffective assistance of counsel.” (Empha sis i n original.) Justice Quinn characterized this rule as “clearly wrong.” The State filed a

petition for leave to appeal with this court, which we allowed. 210 Ill. 2d R. 315.

ANA LYSIS The State challenges the appellate cour t’s determination that defense counsel provided ineffective assistance by reque stin g the consolidation of defe

ndant’s bench

trial with his probation revocation hearin g. Defendant maintains that the request for consol i dation constituted

ineffective assistance and argues in the alternative

that the evidence presented to the trial court was insufficient to prove that he violated his probation. We first address whether defen dant was denied the effe ctive as sistance of counse l.

I. I neffective Assistance of Counsel
Indetermining whether

a defendant was denied the effec tive assistanc e of coun sel, we apply the famil iar two-

prong te st set forth in Strickland v. Washington , 466 U.S. 6 68, 80 L . Ed. 2d 674 , 104 S. Ct. 2052 (1984), and adopted by this cour t in People v

. Albanes e , 104 Ill. 2d 504 (1984). To prevail on a claim of ineffective a ssistance of counsel, a defendant

must show both that counsel’s performance was deficient and that the deficient performance pre judiced the defe ndant. Strickland
, 466 U.S . at 687 , 80 L. Ed. 2d a t 693, 104 S. Ct. at 2064-7- (1984). More spe cifical l y, the defendant must demonstrate that counsel’s perfor

mance w as objectiv ely unreaso nable under pre vailing professional norms and that there is a “reasonable pro b ability that, but for couns el’s unprofessional errors, the result of the proce edi ng woul d have been different.” Strickland , 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 206 8. A rea sonable p robabilit y that the re sult would have been different is a probability sufficient to undermine confidence in the outcome of the proceeding. Strickland , 466 U.S. at 694, 80 L. Ed. 2d a t 698, 104 S. Ct. at 2068. The failure to satisfy either prong of the Strickland

test pre cludes a finding of ineffective assistance of counsel. S

t rickland , 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069. The State articulates two reasons why defendant was not denied the effective assistance of cou nsel. Initially , the State claims that defense counsel’s decision to request the consolidation of the bench trial and the probation hearing wasa valid strategic choice. The State points out that, pursuant to Strickland
, a defendant must overcome a strong presumption that defense counsel’s actions were motivated by strategic considerations. Here, argues the State, t he re were three possible outcomes to the consolidated proce eding. First, defendant could have been acquitted of the substantive charge and found

not to have violated

his proba tion, in which case he would havesuffered no prejudic e as a re sult

of the consolidation and woul d have benefitted fromthe quick

er, and p ossibly

le ss cost ly, disposition of the procee din gs. Second, defendant could have been convicte d of the substantive charge and found to have vi olated hi s probation, in which

case he also would have suffered no prejudice and would ha ve benefitted in the same

manner described above. Third, as occur red in
t he i nstant case, defendant could have been a cquitted of the substantive charge but

found to have violated his probation. The State argues that the latter scenario, “where the e vidence falls int o th e interstices between preponderance and beyond a

reasonable doubt,” is compara

tively rare a nd diffic ult to rea sonably

anticipa te. Thus, “in terms of percentages ***, a def ense cou nsel whose client is facing both substantiv e and [viol ation-of -probat ion] char ges h a s clear strategic considerations in favor of consolidation.” Next, the State con

tends tha t defend ant cann ot demonst

ratethat he was prejudiced by

the consolidation of the be nch trial and the-8- probat ion revoca

tion hear ing. Ac cording

to the State , to sh o w prejudic e, defenda

nt must demonstrate t

hat if he had objec

ted to consolidation, the trial

court wo

uld likely

have sust

ained his object i on. The State reasons that defendant cannot make suc h a showing because thereis nothing inherent in consolidation itself that is prejudicial to a defendant, as princip les of double jeopardy and collateral est oppel have no application in the context of a consolidated

proceeding. Moreover, eve n if defense counsel had objected to consolidation and the trial court had s ust ained his object ion, the State could still have elected to proceed with the probationrevocation

hearing before the benc

h trial on the substantive charge. In that

case, the finding that defendant violated his probation would not have been problematic.
Inaddition to arguing that defendant ca nnotmeet either prong of the Strickland test, the State asserts that the appellate court’s rationa le inthis case invites defense counsel to seek out consolidation, either by requesting it or by

not objecting to it, and then argue their own ineffe ctivene ss if the defendant is acquitted of the substantive charge butfound to ha

ve committ

ed a prob ation viola

tion. The S tate sugges

t s that, under the approac

h taken by the appe llate cou

rt, defe nse counsel has a strong i ncentive to intentionally provide ineffe ctive assistance of counse l, whic h “perve

rts the sa lutary principle s established in Strickland .” Al te rn at iv el y, the State urges us to overrule People v. Grayson , 58 Ill. 2d 260, which makes it impermissible for the State t o procee d with a probation revocation hearing af ter a d efen dant has been acquitted of the substantive charge in a sepa rate tri al. The Sta

te argues that Grayson is out of step with more recent United States Supreme Co ur t d ec is io ns th at cl ar if y that an acquittal in a criminal

casedoes not pr

eclude t he gove rnme nt f rom relit igating an issue i

n

a su bsequent action governed by a lower standard of proof. According to the State, these decisions call into question the continuingviability of Grayson

. Inresponse, defendant , rep resented by the same counsel who represented

him at trial and before the appel la te court, emphasizes that if defense counsel had understo od the app licable law, he would nothave requested

consolidation of the bench trial with the probation revocation

hearin g. Defendant’s brief candidly states that

“[a] ltho ugh-9- counsel is very

experienced and

usually fully researches controlling issues, here, he did not do sufficient research, a nd hence, he made an error.” Specifical ly, de fense c ounsel “d id not rea lize that Grayson only applied when the case-in-chief and the violation of probation [are] tried se

pa rately and did not contr ol where the cases are tried together.” Defend

ant mainta

ins that de fense

counsel k

new the St

ate intended to proce ed with its

casein chief before proceeding with the probationrevoca

tion hear in g. In light of this fact, and c onsidering that defendant was ultimately acquitted of the substantive charge but found to have violated his probation, de fen dant cla ims that de fense counsel acted ineffectively in r equesting consolidation of the procee dings. Defendant

further argue s that the a

ppellate court’s rationale does notencourage the purposeful injection of error into a c ase by

defense counsel. Accord

ing to de fendant , it is well k nown that lawy ers go t o great lengths to avoid a

ccusati ons of ine ffectiv eness, and this in itse lf is an ade quate safeg

uard ag ainst the i

ntentiona l ineffe ctivene ss posited by the State.
We first add

ress the State’s in

vit ati on to overrule People v. Grayson
, as the rationale of Grayson lies at the root of defendant’s ineffective assistance of counsel claim. I n Gra yso n , the defendant pleaded guilty to armed r

obbery and was sentenc e d to five y ears’ probation. Grayson , 58 Ill. 2d at 26 1. Su bs eq ue nt ly, he was indicted for another armed robbery

and acquitted

in a bench trial. Grayson
, 58 Ill. 2d at 261. The State

then filed a petition to revoke the defendant’s probation, allegi

ng the se cond armed robbe ry as the ba si s fo r the revocation. Grayson , 58 Ill. 2d at 262. Based on evidence that was substantia lly the same as the evidence presented at the bench trial, a different trial court determined that the defen dant viola ted his probationand sentenc ed him to a ter m of three

to eight ye ars’ imprisonmentonthe original armed robbery conviction. Grayson , 58 Ill. 2d at 262. The appellate court affirmed. Grayson , 58 I ll. 2d at 262. This court reversed the judgments of the appe llate court and the trial court. Grayson , 58 Ill. 2d at 265.
Inarguing that his probation revocation should be reversed, the defendant relied on Ashe v. Swenson , 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189 ( 1970). There, the United Sta

te s Sup reme Court determ ined

that it was a violation of the principle of collateral-10- estoppel embodied

inthe fifth

amendme

nt guar antee a gainst double jeopardy to try the defendant for the separate a rmed robberies of two particip ants in a poker

game. Grayson , 58 Ill. 2d at 262-63, citing Ashe v. Swenson , 397 U.S. at 445-47, 25 L. Ed. 2d at 476-77 , 90 S. Ct. a t 1195-96. The Court reasoned that, based on the evidence presented, the jury ’s verdi ct in the defendant’s first trial amounted to

a finding that the defendant was not one of the robbe rs. Grayson , 58 Ill. 2d at 2 62-63 , citi ng Ashe v. Swenson , 39 7 U. S. at 4 45- 47, 25 L. Ed. 2d at 476-77, 90 S. Ct. at 1195-96. This court accepte d the defendant’s contention that, as in Ashe
, the d efend ant’s initial acquittal on the charge of armed r obbery amounted to a dete

rmination that he wa s not one of

the robbe

rs. Grayson
, 58 Ill. 2d at 265. Thecourt ac knowledg ed that, in a criminal trial, the Stat e must pro ve the de fendant guilty bey ond a rea sonable doubt, while in a

probation revoca

tion hear ing, th e St ate must on

ly prove the probation vi olat ion by a preponde rance of the evidence. Grayson
, 5 8 Ill . 2d at 264. However, the court was “not persuade d that the difference in theburden of proof between a criminal trial and

a probation revocation proceeding should dictate the resul t” of the case ( Grayson , 58 Ill. 2d

at 264), as “

those dif ferenc es cannot fairly

serve to permit r

elitiga tio n of th e identic al issue u pon the sa

me evide nce” ( Gr ayson , 58 Ill. 2d at 265). The court noted its conce rn that “[a]lthoug

h procee dings ma

y be civ il in fo rm, they may be criminal in nature [citation], and the individual facing probation

revoca tio n may los e his liber

ty ju st as swif

tly a nd surely as a defendan t in a criminal case.” Grayson , 58 Ill. 2d at 265. Apply ing the rationale of Ashe , the cour t conclud ed that “ [o]nce the u

ltimate and only disputed fact

of identity had been de

termined by

a final and valid judgment, the State c ould no t constitutionally hale defenda nt before a new

court in a criminal proceeding or a probation revocation proceeding and litigate that issue ag ain.” Grayson , 58 Ill. 2d at 265, citi ng Ashe , 397 U.S. at 446, 25 L. Ed. 2d at 477, 90 S. Ct. at 1195. After this court decided Grayson , the appellate court was p resented with the question of whether Grayson ’s rationale wa s applicable where the substantive charg e against a defendant and the defendant’s allege d probati on viola tion we re addr

essed in a single procee ding. See In re N.R. L. , 200 Ill. App. 3d 820 (1990); People v. Motta , 223 Ill. App. 3d 182 (1991).-11- In N.R.L. , the appellate court held that principles of doub l e jeopardy and collateral estoppel did n ot bar the trial court from determining in the same proceeding that the evidence was insufficient to adjudica

te the minor resp o ndent delinquent for committing aggravated

battery but

sufficient

to find that the respondent violated the terms of h

is probationby committing aggravated battery

. N.R.L.
, 200 Ill. App . 3d at 824-2 5. In dis tingu ishi ng Gra yson , the appe llate court noted that, in Grayson , “the Sta te attemp ted to pro ve at a second proceeding

what it had failed to prove at the first proceeding ,” wherea s, “[i]n the case at

bar, there sim

ply was no se cond atte

mpt to prove the facts.” N.R.L. , 200 Ill. App. 3d at 826.
Motta
, decided shortly a fter N.R.L. , r ejec ted the defendant’s argument that once a jury

determined he was en trapped, and was therefore not

guilty of possession of a controlled substance with the intentto deliver, the doctrines of doubl e jeopardy a nd collateral estoppel barred

the trial court fr om finding

that he vi olated hi s probation. Motta , 223 Ill. App. 3d at 184 . Cit ing N.R.L. , the appe llate court stated that “[w]here the criminal trial and the revocation hearing

are held simultaneously, double jeopardy and collater al es toppel

concerns do not arise and the defendant may be ac quitted of the criminal charg e but s till be found to have vi olated th e terms of his probation.” Motta , 223 Ill. App. 3d at 184. The court determined

that Grayson was inapplicable, because, there, the pr obation revoc at ion hearing to ok pl ac e a ft er th e j ur y h ad acquitted the defendant of the substantive charge. Motta , 223 Ill. App. 3d at 184. The appellate court’s interpretation of Grayson in N.R.L. and Motta set the stage for the ty pe of ineffective assistance of cou ns el cl aim at issue in this case, which was first addressed in People v. Porter
, 241 Ill. App. 3d 116 (1993). I n Porter , the defendant

pleaded guilty to unlawful possession of heroin with intent to deliver and was sentenced to 30 mon ths’ probation. Porter , 241 Ill. App. 3d at 116. Subseq ue nt ly, he was charged with committing the off ense o f unlawful delivery

of cocaine within 1,000 feet of school property, a

nd the State filed a

petition to

revoke his probation. Porter , 241 Ill. App. 3 d at 116. When the State requested that the jury tri al on th e substantive charge and the hearing on the petition to revoke probation be heard at the same time, defense counsel did not object. Porter , 241 Ill. App. 3d at 116.-12- Following the defe

ndant’s t rial, the jury retired to deliberate, and the court indicated it would rule o n the petition to revoke after the jury delivered its verdict. Porter , 241 I ll. App. 3d at 116-17. The jury returned a verdict of not guilty for the

offense of unlawful delivery of

a controlled substance within 1,000 feet of school property

. Porter
, 241 Ill. App. 3d at

117. Afte

r the jury was excus ed, the tr

ial c our t f ound that the State had proved by a preponderance of the eviden c e that the defendant

violated the terms of

his probation. Porter , 241 I ll. App. 3d at 117. Onappeal, the defendant arg ued t hat his trial counsel was ineffective f

or fa iling to object to the consolidation of the jury tr ial with the probation revocation hearing. Porter , 241 Ill. App. 3d at 117. The appellate court agreed a n d reversed the order of the trial cour t revoking the defendant’s probation. Porter , 241 Ill. App. 3d at 119. According to the appellate court, the jury must have

determined that the defe ndant did n

ot delive r the coc aine, be cause that was th e only material issue of fact in dispute. Porter , 241 Ill. App. 3d at 118. Thus, the trial court’s determination that the defendant did deliver

the cocaine amounted

to a “differing determination on the same issue of ultimate fact.” Porter , 241 Ill. App. 3d at 118. A pplying Grayson , the appella te court reasoned t

h at “had the instant defendant been acquitted of the underlying

offens e first, the proceeding conce rning the probation revocation would have been barre d by the principle of collateral estoppel.” In lig ht of thisconsideration, if defense counsel had objected to the consolidation of the two pro ceed ings, there was

a reasonable pro ba bility that the result would have diffe red. Porter
, 241 Ill. App. 3d at 118. The appe llate cou rt also rejected the State’s argument that defense counsel’s decision not to object was a matter of trial strategy

. Porter , 241 Ill. App. 3d at 118. Accordingly, the court concluded

that defense counsel was ineffective. Porter , 241 I ll. App. 3d at 118. The appellate court was again pre sented wi th a Grayson -based ineffective assistance of counselclaim in In re A.V. , 285 Ill. App. 3d 470 (1996). There, und er analogous circumstances, a divided appe llate pa nel held that defense counsel, consisting of two law studentsand two su

pervisin g attor ney s from a la

w school c linic
, provided inef f ective assistance in failing to object to the State’s-13- motion to consolidate the minor re spond ent’s delinquency and probation revocation hearings. A.V. , 285 Ill. App. 3d at 471.
In A.V. , the respondent

was adjudicated

delinquent and sentenced to two years’ probation for trespassing into and possessing a stolen vehicle. A.V. , 285 Ill. App. 3d at 471. Subsequently, he

was charged ina delinqu

ency petition with five c

riminal of

fenses a rising f rom a shooting incident, and the Stat e filed a petition to

revoke h

is probation. A.V. , 285 Ill. App. 3d at 471. The trial court g ranted the State’s motion to consolidate the hearings on thedelinquency pe tition and the probation

violation w

ithout obje ction from defens e counsel. A.V.
, 28 5 Ill. App. 3d at 471. Subsequently , the court found the respondent

not guilt

y of the char ges all eged in

th e delinquency petition, but f

ound tha t the State had proved by a preponderance of the evidence that the respondent violated the terms of his probation. A.V. , 285 Ill. App. 3d at 471. Onappeal, the respondent argued tha t he recei ve d ineffective assistance of counsel when defense counsel fai led to object to the consolidated

hearing. A.V. , 285 Ill. App. 3d at 472. The respondent relied on Porter , which a majority of the appellate court found persuasive. A.V. , 285 I ll. App. 3d at 472-73. The majority conc luded that defense counsel’s failure to object to consolidation fell below an objective standar

d of rea sonableness. A.V. , 28 5 Ill . Ap p. 3 d at 473 . In that regard, the m ajo rity emphasized that defense counsel (1) admitted they were

unaware of the “preponderance of the evidence” burden of proof in a probation revocation proceeding , (2) conc eded they wo uld have called additional alibi witnesses and called the respondent

to testify on his own

behalf if they

had been aware of the burden of proof, a nd (3) fa

iled to ca

ll additional witnes ses to corroboratethe testimony of the re sp ondent’s father. A.V. , 285 I ll. App. 3d at 473. In addition, the majority determined

that there was a
reasona ble probability that, but for defe nse counsel’s performance, the result would have been different. A.V. , 285 I ll . App. 3d a t 475. The majorit

y explained th at if def

ense cou nsel had o

bjected to consolidation, the State would have had to ele ct to proceed on either the delinquency pe

tition or the petition fo r rev ocation of probation. A.V.
, 285 Ill. App. 3d at 475. I f the State had elected to proceed on the former and the respondent was acquitted, as he w as in t he consolidated

proceeding, then, pursuant to Grayson , the State would-14- have been pre

vente d fro m relitigating the same issues in a later probationrevocation proceeding. A

. V. , 285 Ill. App. 3d at 475. The major ity rejected the State’s argument that it could simply ha v e el ected to proceed first on the petition to revoke the respondent’s pr obation, in which case it would not have been precluded fr om proceeding

against the respondent

on the delinquency pe

tition. A.V.
, 285 Il l. App. 3d at 475. According to the majority , the State’s argument assumed i

n hindsig ht that it wo

uld have e lected to

proceed first with the pro bati on revocation hearing, and the majority was unwilling to acce

pt this assu

mption, g iven that

“[o]ne cou

ld j ust as easily argue to the contrary

and reach an opposite conclusion.” A.V.
, 285 Ill. A pp. 3d at 4 75. For t

hese reasons, the majority c oncluded that the respond ent r eceived ineffective assistance of counsel and remanded the cause for a new hearing

. A.V. , 285 Ill. App. 3d at 475. The dissent dis agree d with the ma jority’s reliance

on Porter
, opining that the Porter

court did n ot intend “to set the stage for purposefu l s tratagems that would degrade the salutary princ iples established

in Strickland .” A.V.
, 285 Ill. App. 3d at 476 (Wolfson, J., dissenting). Reviewing the transcript of defense c o un sel’s closing argume nts, the dissent concluded that counsel’s comments did not reflect a lack of understan ding abo ut the standards of proof that applied t o the cons olidated charges. A.V. , 285 Ill. App. 3d at 477 (Wolfson, J., dissentin

g). Rat her, it appeared that defense counsel’s strat egy was to succeed on all the charge s in asi ngle pr oceedi ng. A.V.
, 285 Ill. Ap p. 3d at 477 (Wolfson, J., dissenting). The dissent

rea soned that, by follow ing Porter in the insta nt case, the major

ity
was “saying

that defense counsel has an affirmative duty to object to

con solidat ion in all instances or face a successful cla im of ineffectiveness,” in which case “[a] purposeful failur e to object w ould plant reversible error

in any consolidated hea

ring.” A.V. , 285 I ll. App. 3d at 477 (Wol f

son , J., dissenting). The dissent cautioned that “a defense lawyer would not be motivated

to object to consoli dation if assured his or her silence meant tha

t no convic

tion could stand.” A.V.
, 285 Ill. App. 3d at 477 (Wolfson, J., dissenting). This brings u s to the present case, wherein the majority relied on Porter and A.V

. in holding

that def

ense cou nsel’s re quest to consolida te defendant’s bench trial with his probation r evocation hearing fell below an obje ctive sta nd ard of reasonableness and-15- prejudiced

defendant. No. 1–04–277 8 (un published order under Supreme Court Rule

23 ). Ob vi ou sl y, if Grayson is overruled, then the basis for defend ant’s ineffective assistance of counsel claim no long er exists, becau se w ithout Grayson , defendant has no support for the p osition that the State would have been precluded from proc eeding agains thim on the probation revocation petition if the revocation hearing had not been consolidated w ith th e bench trial on the substantive charge. Whe ther Grayson should be overrule d is a question that implicates the doctrine of stare dec isis

. The doctrine of stare dec isis “ ‘expresses the policy of the co urts to stand by prece dents and not to disturb settled points.’ ” People v. Caballes
, 221 Ill. 2d 2 82, 31 3 (200 6), qu otin g Neff v. George , 364 Ill. 306, 308-09 (1936), overruled on other gr ou nd s b y Tuthill v. Rendelman
, 387 Ill. 321 (1944). I n other words, “ ‘a qu e stion once deliber ately examined and decided shou ld be considered as settled and closed to further

argument’ ” ( Wakulich v. Mraz , 203 Ill. 2d 223, 230 (2003 ), quo ting Prall v . Burckh artt , 299 I ll. 19, 41 ( 1921)), s o th at the law will not change erratically, but will develop in a p rinciple d, intelligible fashion ( People v . Mitche ll , 189 Ill. 2d 312, 338 (2000)). Stare decisis
, however , is not an “ inexorabl e command.” People

v. Jones , 207 Ill. 2d 122, 134 (2 00 3), qu otin g Payne v. Tennessee
, 501 U.S. 808, 828, 115 L. Ed. 2d 720, 737, 111 S. Ct. 2597, 2609-10 (1991). If it

is clear a court has made a

mistake, i

t will not de cline to correct it, even

if the mistake has been reasserted and ac quiesced in for many y ears. People v. Boreman , 401 Ill. 566, 571 (19 48). That said, this court will not depart from precedent merely bec ause it might have decided otherwise if the question were a new one. People v. L opez , 20 7 Ill. 2d 449, 459 (2003). As we rec ently reitera ted, any departure from stare dec isis must be “ ‘specially justified.’ ” People

v. Suarez , No. 100499, slip op. at 10 (January 19, 2007), quo tin g People v. Sharpe , 216 Ill. 2d 481, 520 (2005). Thus, prior decisions should not be overruled absent “g ood cause” or “c ompelling reasons.” Suarez
, slip op. at 10, qu otin g Sharpe , 216 I ll. 2d a t 5 20. Ingener al,

a settled rule of law that does not contravene a statute o r constituti onal principle sho uld be fol lowed unl ess doing so is likely to result in s erious de

trime nt prejudicial to public interests. Suarez
, slip op. at 10, qu otin g Sharpe , 216 Ill. 2 d at 520. Good cau se to-16- depart from star e de cisis also exists when governing decisions are unworkable or badly

reasoned. Sharpe , 216 Ill. 2d at 520. At the outset, we observe that we do not consider the continuing viability of Grayson on a blank slate. This court explicitly called Grayson into question in In re Nau , 153 Ill. 2d 406 (1992).
In Nau , this court affirmed an order involuntarily committing the respondent

to a mental-health facility and an order c ontinuing the resp ondent’s involuntary commitment. Nau , 153 Ill. 2d at 43 1. O n
cross-a ppeal, the respondent, who was acquitted of the murder of

his stepbrother

at a discharge hearing

prior to the commitme

nt heari ngs, argu edthat the trial court erred in allowing evidence and argument regarding the respo ndent’ s stepbrother’s death at the commitment hearing s. Nau , 1 53 Ill . 2 d a t 4 23 . S pe ci fi ca ll y, the respondent argued that his acquittal onthe murder charg e collate

rally estopped the State frompresenting evidence or arguing at

the commitment hearings that the respondent killed his stepbrother. Nau , 153 Ill. 2d at 424.
Inrejecting

th e respondent’s argument, this court relied on Dowling v. United States , 493 U.S. 3 42, 107 L . Ed. 2d 708 , 110 S. Ct. 668 (1990), and People v. Jackson , 14 9 Ill . 2d 540 (19 92) . In Dowling
, durin g the de fendan t’s t rial o n robb ery charge s , the government

introduced

the testimony of a witness who identified the defendant as the perpetrator of an unrelated r obbery. Dowl ing , 493 U.S. at 344-45, 107 L. Ed. 2d at 715, 110 S. Ct. at 670. The defendant had previously been a

cquitted of that robbery

charge. Dowling , 493 U.S. at 345, 107 L . Ed. 2d at 715, 110 S. C t. at 670. H e argu ed th a t his acquittal collaterally

estopped the prosecution from introducing the disputed testimony. Dowling , 493 U.S. at 348, 107 L. Ed. 2d a t 717, 110 S. Ct. at 672. The Supreme Court held that collat e ral estoppel was inapplicable, reasoningthat because the admissibility of the witness’ testimony was g overned by a lower standard of proof thanbeyond a re asonable doubt, the government was n ot precluded fromrelitigating the issue of the defendant’s involvement in the other

ro bb er y. Dowling , 493 U.S. at 348-49, 107 L. Ed. 2d at 717-18, 110 S. Ct. at 672. This court applied the reasoning of Dowl ing in Jackson . There, the defendant

argue d that he was entitle d to a new sentencing hearing because he was denied due process at his originalsentencing hearing when the trial court considered charge s of which the def enda nt was-17- later acquitted. Jackson
, 149 Ill. 2d at 547. This court held that the subseque n tacquittal did not preclude the State from introducing evidence at the defendant ’s sentencing hearing that the de fendant committed

the offense of which he was acquitted, as the sentencing hearing involved a lower burden of proof. Jackson , 149 Ill. 2d at 547- 51. Inso holding, the court discussed Dowling with approval, noting that the Supreme Cour

t had decided that evidence that resulted in a prior acquitta l could be used for limited pur

poses in the guil

t phase of trial for another offense, since the g overnment is no t precluded from“ ‘reli tigat ing a n is sue when it is presented in a subsequent actiongoverned by

a lower standard of proof.’ ” Jackson , 149 Ill. 2d
at 550, q uoti ng Dowling , 493 U.S. at 349, 107 L. Ed. 2d at 718, 110 S. Ct. at 672. Ultimately, the cour t found it immaterial that the defendant’s acqui ttal came af ter hi s sent encin g hearin g, because even thou gh the trial court could not have known at the time of sentencing that the respondent would be acquitted, the court did know that he had not yet bee

n convicted. Jackson , 149 Ill. 2d at 550-51.
In Nau , this cour

t conclud ed that Jackson and D owli ng were d isp ositive of the issue raised by the respondent. Nau , 153 Ill. 2d at 426. The court noted that the burden of proof at the discharge hear ing where the respondent was acquitted of his stepbrother’s murder was beyond a reasonable dou

bt. Nau , 153 Ill. 2d at

426. Thus, his acquittal established

only that the State was

unable to prove his commission of the crime beyond

a reasonabledoubt. Nau , 153 Ill. 2d at 426. At the responde nt’s civil commitmen

t hearin gs, the S tate merely

sought to

use the testimony reg arding the respo ndent’s p articipa tion in his stepbrother’s murder as evidence of the responden t’s e ligibility for involuntary

admission. Nau
, 153 I ll . 2d at 426 . The State ’s only burden at the co mmitment he arings was to establis h by clear and convincingevidence that the res pondent was a pe rson subje ct to involuntary

admission. Nau , 153 I ll. 2d at 426. Because the trial court did not have t

o find bey ond a rea sonable

doubt–or, for that matter, by any standard of proof–that the respondent murdered hi s step brother i n order to find him subject to involuntary admission, this court concluded

that it w as proper

for the trial court to consider evidence regarding the respondent’s possible commissionof his stepbrother’s murder as evide nce of hi s eligib ility

for commi

tment. Nau
, 153 Ill. 2d at 426-27.-18- After upholding

the tria l court ’s consideration of the murderrelated evidence, this court went on to reject the respondent’s r eliance

on Grayson as support for his claim that the evidence was improper ly considered. Nau , 153 Ill. 2d at 427. The court summarized Grayson ( Nau , 153 I ll. 2d at 42 7), and then comme nted as f ollows: “In the instant case, we are con cerned only with whether

anacquittal on a criminal charge pre cl udes t he use of evidence of that crime at a subsequent civi l comm itment hearin g. We have determined that, under Jackson and D owling
, this subsequent use of the evidence was pr oper

. While we quest

ion the via

bi li ty o f Grayson in light of Jackson
, we are not now pr esented with the sp ecific

question addressed in Grayson : whether a crime of which a defendant has been acquitted may

nonetheless constitute the basis for a probationrevocation. Thus , we will not herein decide whether Grayson remains valid

today. Howeve

r, we do determine that Jack son , and not Grayson , controls the instant case.” N au , 153 Ill. 2d at 427-28. According ly, the cour

t held tha t the resp ondent’s

acquitta l of his stepbrother’s murde r did not collaterally estop the State f rom introducing evidence of the murder at the respon dent’s c ivil commitment hearings. Nau , 153 Ill. 2d at 428. Unlike Nau , this case does present us with the specific ques t ion addressed in Grayson , albeit in the context of an ineffective assistance of counsel clai m. He re, defendant was acquitted of the offense of unlawful use of a w ea po n b y a felon but found to have violated his probationonthe basis of committ

ing that offense . Thus, the reserv atio ns this court expressed in Nau over addressing the viability of Grayson are not present here.
Nau pr ovides a useful point of departure for our discussion of whether to overrul e Gray

son because

it bring s to light t

he proble matic nature of Grayson ’s doctrinal underpinnings. In r elying on Dowling and Jackson
, Nau holds to the principle that an acquittal in a criminal trial does not

preclude the government from re litigating an issue in a

su bsequent

action governed by

a lower standard of proof. See Nau
, 153 Ill. 2 d at 426-2 7. This pri n ci ple emer

ged fr om the Supr

eme Court’s decision in Dowling as a limita

tion on itsholding i

n Ashe v. Swenson that the dou

ble jeop ardy cla

use of the fifth amendment-19- incorporates the d octrine of collateral estoppel. See Dowling , 493 U.S. at 347-49, 107 L. Ed. 2d at 717-18, 110 S. Ct. at 671-72. As the Court explained in Dowling : “[U]nlike the situation i

n Ashe v. Swenson , the [def endant’ s] prior acquitta l did not determi ne an u ltimate issue in the present case. This much [defendant] concedes, a nd w e decline to extend Ashe v. Swenson and the c ollatera l- estop pel component

of the Double Jeopardy Clau se to ex clude in a ll circumst ances, as [defendant] would have it , relevant and probative evidence that is otherwise admissible under the Rules of Ev id en ce si mp ly because it relates to alleged criminal conduct

for which a defendant has been acquitted.” Dowling
, 493 U.S . at 348 , 10 7 L. Ed. 2d at 7 17, 110 S. Ct. at 672. As furth er sup port f

or not exte ndin g Ashe , the Cou rt in Do wling discussed two cases decided after Ashe that involved civil forfeiture proceedings initiated

after criminal acquittals. Dowling , 493 U.S. at 349, 107 L. Ed. 2d at 718, 110 S. Ct. at 6 72-73. In United States v. One Assortment of 89 Firearms , 465 U.S. 354, 361-62, 79 L. Ed. 2d 3 61, 368, 104 S. Ct. 1099, 1104 (1984), the Court held that a g u n owner’s acquittal on a charge of dea ling fire ar ms without a

license did not prec lude a sub sequent in r em forfeit ure proc eeding

agains t those firear

ms, beca use even though f orfeitur e was onl y a ppropria te if the jury in the for feiture procee ding concluded t

hat the de fendant had committed the un derly

ing off ense, the gover nment only

had to prove its for feiture case by a preponderance of the evidenc e. Likewise, in One Lot Emerald Cut Stones v. United States , 409 U.S. 232, 234-35, 34 L. Ed. 2d 438, 441-42, 93 S. Ct. 489, 491-92 (1972), the Courtheld that

the double

jeopardy c lause did not bar a forfeiture actionsubseque

nt to acquittal on the underlying offense because the difference between the burden of proof in a criminal ca se and the burden of proof in the forfeiture proceeding pr ecluded application of the doctr ine of co llatera

l estoppe l. After Dowling was decided, the Court applie d Dowling ’s rationale in United Sta tes v. W

atts , 519 U.S. 148, 136 L . Ed. 2d 554 , 117 S. Ct. 633 (1997). In Watts , tw o sent encing courts considered conduct of whichthe de fendan ts had been ac quit ted in enhan cing the de fendant s’ sentenc es. Watts , 51 9 U. S. at 1 49- 51, 136 L. Ed. 2d at 5 60-61, 11 7 S.-20- Ct. at 634- 35. Af

ter concluding that the Federa l Sentencing Guidelines permitted consideration of this conduct ( Watts , 519 U.S. at 151-54, 136 L. Ed. 2d at 561-63, 117 S. Ct. at 635-36), the Court deter mined that the acquittals had no preclusive effect, bec aus e, unde r the Guidelines, facts relevant to sentencing only had to be proved by a preponderance

of the evidence ( Watts , 51 9 U. S. at 1 55- 57, 136 L. Ed. 2d at 563-65, 117 S. Ct. at 637-38).
We discern from the cases discussed above that the principle of collateral estoppel embodied in the doubl e jeop ardy cla use of the Un ited States Constitution does not preclude the relitigation o f a n issue a fter an acquittal in a criminal trial when the subsequent disposition of the issue is governed by a lower sta

ndard of proof. This is because an acquittal on a crimi nal charge does not prove that the defendant is innoce nt, but mer

ely that a re asonable

doubt exists a s to his guilt. Watts , 519 U.S. at 155, 136 L. Ed. 2d at 564, 117 S. Ct. at 637, quot ing 89 Firearms , 465 U.S. at 361, 79 L. Ed. 2d at 368, 104 S. Ct. at 1104. This court’s decision in Grayson , however, extended Ashe v. Swenson ’s application of the doctrine of collateral estoppel in
t he ma nner subsequently r ejected by

these cases. As discussed, Grayson relied heavily on Ashe v. Swenson in holding that the State

was precluded fro m pr oceeding with the defendant’s proba tion revocation

hearing after the defe n dant w as acquitted of the substantive charge, despite the fact that the pr obation revoc ati on hearing involved a lower standard of pro of. See Grayson , 58 Ill. 2d at 263-65. This court did

not expres sly

st ate in Gr ayson whether it was conductingits a

nal ysis solely

under the United States Constitution (U.S. Const., amend. V). Assuming it was, then Grayson clearly goes b e yond what is re quired by

the double

jeopard y c lause of

the fifth amendment

in precluding the relitigation of an issue under a lower standard of proof after an acquittal in a criminal trial. Furthermore,

we find no ind ependent support for Grayson ’s expansive interpretation

of the principle o f

collater al estopp el in the d

ouble jeopardy clause of the Illinois Constitution of 1970 (I ll. Const. 1970, art. I, §10). This court has previously inter pret ed the I

llinois Constitution’s doublejeopard y c lause in a

manner t hat is consistent with the United States Supreme Court’s interpretation of the dou

ble jeopardy clause of the fifth amendment. See In re P.S.
, 175 Ill. 2d 79,-21- 89-90 (1997), ci t ing People v . Levin , 157 Ill. 2d 138, 160 (1993); People v. 1988 Mercury Cougar , 154 Ill. 2d 27, 39 (1992). We have

no reason t

o do other

wise her e. As we r

ecently describ ed in Peop le

v. Caballes
, ou r approach to determining the relationship betwee n cogna te provisions of

the I llinois Constitution and the United States Constitution is an “inte

rstiti al,” or “limited,” form of the lockstep doctrine. Caballes , 221 Ill. 2d at 309. Consistent with that approach ( Caballes
, 221 Ill. 2d at 310-11), we find nothing in the la nguage of

our state cons tituti on (I ll. Const. 19 70, art. I , §10 (“N o person shall

*** be twice put in jeopardy for the same offense”)), the de b ates or committee reports

of the constituti o nal convention (3 Record of Proceed ings, Sixth Illi

n ois Constitutional C onvention 1376-80, 1390; 6 Record of Proceeding s, Sixth Illin ois C onstitutional Convention 43- 44), or the tradition of

our state that warrants interpreting the Illinois Con stitution’s double jeopardy c lause to preclude a probation revocation

hearing after

an acquittal of the substantive charge in the

manner su gge st ed by Grayson . In li ght of these cons i derat ions, overruling Grayson would hav e the sal uta ry eff ect of harmonizing this court’s case law

regarding the collater

al estoppel component of the guarantee ag ainst double jeopardy w ith thatof the United States Supreme Court. It would also eliminate the tension between Grayson and this court’s more recent decisions in Jackson and Nau

. Grayson ’s doctrinal weakness is not the only factor that militates infavor of its abrogation. The r u le es ta bl is he d b y Grayson is unworkable, because

it creat es a perverse sy stem of incentives for the State and for d

efense counsel in cases where a defenda nt face s both

a substantive charge and probation revoc ation based on the sam e conduct. In such cases, the defendan t can receive a trial on the substantive charge before his probation revocation hearing, rece ive a trial on the substantive charge after his probation revocation

hearin g,
or receive a trial on the substantive charg e at the sa me time as

his probationrevocation hearing. The third option is ben eficial to the State and the de fendant , becau se it avoids duplicative litigation, and thereby results in a more prompt, less costly disposition o f all th e procee dings against the defendant. However
, Grays o n provides defense counsel w

ithan incen

tive to ar gue the ir own inef fective ness inconsolida

ted proc eeding s that res

ult in an acquittal and

a probation-22- revocation, and provi des the Sta te with a c oncomita

nt incent ive to avoid consolidation.
To illustrate

this point, under Grayson , the only scenario in which objecting to consolidation actually proves he lpful to adefend ant is where the State tries the substantive charg e first and the de fendant

is acquitted. Howeve

r, defe nse counsel c an achie

ve the sa me result by

n ot obje cting to consolidation, and can do so at an advantag e to the defenda nt. If counsel doesnot object, counse l secure s the bene fits of promptadjudica

tion that c onsolidat

ion provid

es. Counsel also avoids the possibility that the Stat e will si mply proceed f irst with the probationrevocation hearing and obtain a finding that the defendant violated his probation. Then, in the end, if the defendant is acquitted of the substant ive cha rge but found to have violated his probation, defense counsel can argue he wa s ineffective f or no t objectin

g to consolidation. A finding of ineffective a ssis tance of counsel w

ill result in an automatic reversal of the finding that the defendant violated his probation, because, pursuant to Grayson , the acquittal precludes the State

from pro ceeding

with a new probation revocation hearin g. Alterna tiv e ly, defense counsel can simply request consolidation

onthe defendant’s behalf. There again, the same conc erns arise. The defendant enjoys the benef

its of a consolidated

pr oceedin

g while preserving

th e o pp or tu ni ty to obta in an automatic reversal of the finding that he violated the terms of his probation. Defendant’s point is well taken that law ye rs have a reputational inter est in avoiding determinations that they provided ineffective assistance of counse l. Gra yson , however, has created a situation where a defense lawy

er is encouraged to provide ineffe ctive assistance of

counsel in the interest of zealous advocacy . Therefore, the fact that lawyers generally seek to avoid a llegations of ineffe ctivene ss does litt

le to assuage ou

r conce rns. For the reasons expressed

above, we believe good ca use exists to overrul e Grayson

. The appellate court’s decisions in People v. Porter and In re A.V. , which relied on Grayson in finding that the defe ndants therein received ineffective assistanc e of counsel, are hereby overruled as well. I n light of our conc lusion th a t collateral estoppel doe s not preclude the State from proceeding w ith a proba tio n revocation

hearin g a ft er a defendant has been ac quitted of the-23- substantive charg e, defe

ndant’s i neffective assis t ance of counsel claim must

fail.

II . Sufficiency of

Evidence of Probation Violation Havingrejected defendant’s ineffe ctive assistance of counsel claim, we brief

ly address whether the evidence pre sented to the trial court was sufficient to prove that defendant violated his probation. Defendant

argues that the evidence su bmitted at trial was insuf f icient to demonstrate that the item he dropped was “firearm ammunition” as defined by section 1.1 o f the Firearm Owners Identification

Card Act (FOI

D Act) (430 ILCS 65/1.1 (West 2002)). Sp ec if ic al ly, defenda

nt conte nds that Sergeant Gly

nn’s testimony about finding an ammunition clip containing nine-millimeter rounds

was insufficient to prove that the clip a ctually contained live nine

mil limeter

rounds. Defendant posits that the cartridges mig ht hav e been blanks, a nd that none of the e

vidence present e d by the State

ru le s o ut th is po ss ib il it y. T he State maintains that the evidence was sufficient to show by

a preponderance that defendant wa s in possession of firea r m ammunition a s a fe lon. According to the State, it is clear that the credibl e testimony of one

witness is sufficient to sustain a defendant’s conviction, even if that testimony is co ntra dicted by the defe ndant. Here, Sergeant Gly

nn’s testimony that he obs erve d defend ant in possession of a black, semiautomatic pistol, and that he recovered an ammunition clip containi

ng nine -millimete

r rounds, was suff

icient to establish that defe ndant was in possession of firearm ammunition. The State emphasizes that Sergeant Gly nn was an 18-year veteran of the Chica go police department at the time of the offense , and that his testimony was neither impeac hed nor discredited. Section24–1.1 of the Criminal Code of 1961 prov ides, in pertine nt part: “It is unlawful for a person to k nowingly possess on or about his person *** any we apon prohibited under Section 24–1 of this Act or

any firear m or any firearm ammunition if the person ha s been co

nvicted o f a felony u

nder th e laws of-24- this State or a

ny o ther juri sdicti o n.” (Emphasis added.) 720 IL CS 5/24–1.1(a) (West 2002). Se ction 2–7.1 of the Code defines “firearm ammunition” as having the meaning ascribed to it in section 1.1 of the FOID Act (720 IL CS 5/2–7.1 (West 2002 )). S ection 1.1, in turn, provides that “[f]irea rm ammunit

ion” mea ns: “[A]ny self-co ntained c artridg e or sh otgun shell, by whatever name known, which is designed to be used or adaptable to use in a firearm; excluding, however : (1) any ammunition exclusive ly d esigne d for use

with

a devi ce used exclusively for signa lling or safety

and required or reco mmended by th e United S tates Coa st Guard or the Interstate Commerce Commission; and (2) any ammunition

designe d exclusive ly f

or use wit h

a stud or rivet driver or other similar industr ial ammunition.” 430 IL CS 65/1.1 (West 2002). The State must prove a violation of probation by a preponderance of the evide nce. 730 IL CS 5/5–6–4( c) (West

2002). One condition of probationis th at a pers on on probation “not violate any c riminal statute of any jurisdiction.” 730 IL CS 5/5–6–3(a)(1) (West 2002). In the State’s petition to revoke defendant’s probation, the State alleg ed that defendant violated his probation by committing the offense of unlawful use of a weapon by a felon. Defend

ant’ s in formation specified that

he com mitt ed the offens e by “knowi ngly poss ess[ ing]

onor about his person any firearm ammunition , to wit: bullets, after having been

previously convicted of

the felony offe

nse of aggravate d unlawful u se of a weapon.” Accordingly , to demonstrate that defendant violated a condition of his probation, the State had to show by a preponderance of the evidenc e that, while on probation, defendant knowingly

possessed firearm ammunition as a felon. Defendant

does not dispute that, on April 19, 2004, the date of h is alleged proba tion violation, he was on probation and was a felon. Defendant

also does not dispute that he was in knowing possession of the ite m that Sergeant Gly nn saw him drop in the alley a nd subseque ntly re co ve re d. De fe nd an t a rg ue s o nl y t ha t the evidence presented at trial was insufficient to demonstrate by a preponderance-25- that the item in

question was, in fa

ct, “fir earm amm

uni tion” as defined by s ection 1. 1 of the F OIDAct. We note that defendant’s challenge to the suff iciency o f the evidence assumes that, as a matter of law, blank ammunition does not qualify as “firearm ammunition” for purposes of s ectio n 1.1 of the FOID Act. We need not address the validity of this assumption, as defendant has made no attem

pt to justify it through arg ument or citationto re le va nt au th or it y. See 210 Ill. 2d R. 341(h)(7) (arg ument portion of brief

“shall c ontain

the contentions of the appellant and the

reasons therefor, with citation of the authorities and the pages of the record relied on *** [and] [p]oi

nts not argued are waived” ); Miller v. Rosenbe rg , 196 Ill. 2d 50, 56 n.2 (2001) (declining to address party ’s chall enge to ruling barring his attorney

fees as element o f damag es in his malicious prosecution claim where brief contained i n sufficient discussion of issue). Moreover, even assuming, arguendo , that blank s do not qualif

y a s “ firear

m ammunition” within the meaning of the relevant statutory definition, the evidence presented to the trial court providedit with a sufficient basis for inferring that the clip i n defendant’s possession contained live nine-millimeter rounds, not blanks. When the trial court finds that a violation of probation has been proved, a challe

nge to the suffic ienc y of the evidenc e of the type asserted by d efenda nt will suc ceed on

ly if the trial court’s

finding is agains tthe manifest weight of the evidence. People v. Houston , 118 Ill. 2d 194, 199 (1987); People v. Cooper , 66 I ll. 2d 509, 514 (1977); People v. Crowell

, 53 I ll. 2d 447, 451-52 (1973). In the instant case, Se rge ant Glynn’s testimony

established that he was an 18-y ear veteran of the C hicago police department, that he clea rly observed defendant inpossession of a black, semiautomatic pistol, and that he recovered a maga zine from t

hat pistol containing nine-millimeter rounds. As the State points out, Sergeant Gly nn’s testimony was not contradicted

or impea ched in a ny way , and ther

e is no indi cation in the record before us that the cartridg es he identified were bla nks. Therefore, the trial court could reasonably have inferred that the ammunition in defendant’s possession was live ammunition, and the court’ s fi nding that defendant violated his probation by committing the offense of unlawf

ul use of a weapon by

a felon was not ag ainst the manifest weight of the evidence. Acc ord People v. Lee , 48 Ill. 2d-26- 272, 281 (1971 ) (reje cting de fendant s’ arg ument th at , b y failing

to pro ve that shotg

un shells in

troduce d into evid

ence we re live shells,
t he State fa

iled to mee

t its burde

n of provi

ng def endants g uil t y beyond a re asonable doubt of unlawful possession of firearm ammunition, be cause whether shells were capa ble of be ing disch arge d

was for trie

r of fact to decid

e, and no thing in

record sugge sted shel ls were not, in fact, live).

CONCLUSIO N For the reasons expresse d above, we hold that defendant was not denied the effective assistance of counsel, and that

the evidence was sufficient to demonst

rate tha t defend ant v iol ated his probation. Ac co rd in gl y, we reve

rse th e ju dgment of the appellate court and affirm t he judg ment of the

circuit c ourt.

Appellate court judgment reversed; circuit court judgment affirmed.