Illinois Official Reports 

Appellate Court

People v. Burnett, 2019 IL App (1st) 163018

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

RODNEY BURNETT, Defendant-Appellant.

District & No. First District, First Division 

Docket No. 1-16-3018

Filed March 29, 2019

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 15-CR-13703; the 

Hon. Matthew E. Coghlan, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

James E. Chadd, Patricia Mysza, and Arianne Stein, of State Appellate 

Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg 

and Tasha-Marie Kelly, Assistant State’s Attorneys, of counsel), for 

the People.

Panel JUSTICE GRIFFIN delivered the judgment of the court, with opinion.

Justices Pierce and Walker concurred in the judgment and opinion.
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 OPINION 

¶ 1 Defendant, Rodney Burnett, appeals his criminal conviction stemming from his arrest for 

unlawfully possessing a weapon. Defendant argues that his trial counsel was ineffective for 

failing to file a motion to quash his arrest since, according to defendant, he was arrested 

without probable cause. However, because there was no pretrial hearing concerning probable 

cause, the record before us is inadequate to permit review of whether a motion to quash arrest 

would have had merit. Essentially, all we have in the appellate record is the arresting officer’s 

trial testimony, and since probable cause for the arrest was not an issue at trial, there are 

insufficient facts to address the matter on direct review. Unable to provide meaningful review, 

we decline to address defendant’s ineffective assistance of counsel claim, and if defendant 

wishes to pursue the matter, we direct him to do so through the postconviction process. We 

affirm. 

¶ 2 I. BACKGROUND 

¶ 3 On July 21, 2015, three officers from the Chicago Police Department were on patrol in a 

police vehicle when they spotted a van that had no front license plate. The officers made a 

traffic stop, exited their police vehicle, and approached the van. The van had three occupants: 

the driver and then two individuals in the second row of seats. A third row of seats in the back 

of the van was unoccupied. Officer Thomas Murphy approached the driver’s window, Officer 

Nicholas Saviano approached the passenger side of the vehicle, and Officer Michael Walsh 

positioned himself near the rear of the vehicle on the driver’s side. 

¶ 4 Officer Walsh observed one of the backseat passengers, defendant Rodney Burnett, lean to 

the left, reach near his waistband, and remove an L-shaped dark object that he then placed 

backwards onto the vacant third row of seats. Meanwhile, the driver could not produce a 

driver’s license to Officer Murphy, so Officer Murphy ordered the occupants out of the 

vehicle. After the men exited the van, Officer Walsh entered the vehicle and retrieved the 

object he had seen defendant place on the third row of seats. It was a semiautomatic handgun. 

Defendant was arrested. 

¶ 5 Defendant did not have a valid firearm owner’s identification card or a concealed carry 

license, so he was charged with aggravated unlawful use of a weapon. Defendant had a prior 

conviction for possessing an altered credit card, so he had a felony record and was also charged 

with unlawful use of a weapon by a felon. There is no indication that the officers knew about 

defendant’s felony record or that he did not have a firearm owner’s identification card or 

concealed carry license before arresting him. 

¶ 6 Defendant was tried by a jury and found guilty. The trial court merged defendant’s 

unlawful use of a weapon by a felon conviction into his aggravated unlawful use of a weapon 

conviction. He was sentenced to 41⁄2 years in prison. 

¶ 7 On appeal, defendant argues that he was deprived of his constitutional rights because he 

did not receive effective assistance of counsel. Defendant argues that his trial counsel was 

constitutionally deficient for failing to file a motion to quash his arrest. Defendant maintains 

that he was arrested without probable cause because, at the time he was arrested, the only 

evidence against him was that he possessed a gun. In light of recent rulings by our courts, 

defendant argues that the mere possession of a gun is no longer sufficient to establish probable 
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cause to justify an arrest. Thus, defendant contends that his asserted basis for a motion to quash 

his arrest is meritorious and that there is a reasonable probability that the outcome of the case 

would have been different had a motion to quash the arrest been filed. 

¶ 8 II. ANALYSIS 

¶ 9 The United States Constitution guarantees criminal defendants the right to effective 

assistance of counsel. U.S. Const., amend. VI. Thus, where a criminal defendant is convicted 

of an offense but did not receive constitutionally adequate representation, he can seek relief to 

vindicate his constitutional right to counsel. See People v. Burnett, 385 Ill. App. 3d 610, 614 

(2008). To be entitled to relief on a claim of ineffective assistance of counsel, a defendant must 

show that his counsel’s representation fell below an objective standard of reasonableness and 

that he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); 

People v. Scott, 2015 IL App (1st) 131503, ¶ 28. We analyze claims of ineffective assistance of 

counsel by considering the entire record. People v. Hommerson, 399 Ill. App. 3d 405, 415 

(2010). 

¶ 10 This appeal presents a question that stems in part from our supreme court’s decision in 

People v. Aguilar, 2013 IL 112116. In Aguilar, our supreme court declared as unconstitutional 

the statute that categorically criminalized the possession of a weapon outside the home. Id.

¶¶ 20-22. Since Aguilar was decided, this court has had occasion to visit the parameters of the 

constitutional right to possess a weapon and the contours of the laws that the State may enact to 

criminalize the possession of weapons. Defendant argues in this case that the officer’s mere 

observation of him in possession of a handgun in the back of the van, without any other 

evidence, was insufficient to establish probable cause to arrest him. 

¶ 11 The record before us does not contain sufficient information about the circumstances of 

defendant’s arrest from which we could determine whether he has an arguably meritorious 

claim—i.e., whether he was prejudiced by counsel not filing a motion to quash arrest. Because 

the case just went to trial and defendant did not seek to quash his arrest, the State was only 

concerned with proving that defendant committed the charged offenses. The State had no 

reason to demonstrate the factual basis that putatively gave the officers probable cause to arrest 

defendant in the first place. As the United States Supreme Court has observed, a reviewing 

court often cannot entertain a claim of ineffective assistance of counsel on direct review when 

the claimed error was not a focus in the case below. See Massaro v. United States, 538 U.S. 

500, 504-05 (2003). 

¶ 12 At trial, Officer Walsh testified that he saw defendant with what looked like a weapon, 

recovered the weapon from the vehicle, and arrested defendant. Defendant’s argument is that, 

under Aguilar and other precedents, his possession of the weapon in and of itself did not give 

the officers probable cause for an arrest because possessing a weapon, absent any other facts, is 

not a crime. See Aguilar, 2013 IL 112116, ¶¶ 20-22. However, due to the insufficiency of the 

record for this purpose, we have no way of knowing what the officers’ probable cause 

determination was based upon, so we have no way of knowing whether counsel could be 

considered ineffective for failing to file a motion to quash arrest. 

¶ 13 The Illinois Supreme Court recently addressed the propriety of this court declining to 

consider certain ineffective assistance of counsel claims on direct review. People v. Veach, 

2017 IL 120649, ¶¶ 31, 39. The supreme court stated its view that “ineffective assistance of 

counsel claims may sometimes be better suited to collateral proceedings but only when the 
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record is incomplete or inadequate for resolving the claim” (id. ¶ 46) and instructed us to 

“carefully consider each ineffective assistance of counsel claim on a case-by-case basis” (id.

¶ 48) to determine if the circumstances permit us to adequately address a defendant’s 

ineffective assistance of counsel claim on direct review. See also People v. Bew, 228 Ill. 2d 

122, 134-35 (2008). In this case, it is clearly apparent that meaningful review of defendant’s 

claim cannot be had without a supplemented record. 

¶ 14 Defendant attempts to spin the lack of testimony about probable cause into a conclusion 

that there was no probable cause. Defendant states that “[t]here was no evidence that before 

police arrested [him], they had probable cause to believe that he lacked a firearm owner’s 

identification card or a concealed-carry license or was not supposed to have a firearm.” 

Defendant states that “[t]he sole basis for the arrest was that Burnett possessed a gun in 

public,” and, thus, the arrest was illegal. But he is drawing an affirmative conclusion from a 

negative premise. The lack of evidence currently in the record concerning probable cause and 

the officers’ pre-arrest beliefs cannot be equated with fact—that there was no evidence to 

support a probable cause determination. The State did not need to show justification for the 

arrest at trial because it was not an issue, and the lack of evidence demonstrating probable 

cause currently in the record does not demonstrate that the arrest was, in fact, unjustified. 

¶ 15 Per the charged offenses, the only things the State was concerned with proving at trial were 

that defendant had possession of an immediately accessible weapon, that he did not have a 

firearm owner’s identification card or a concealed carry license, and that he was a felon. The 

officers’ probable cause determination was not challenged, so we have no way to know what 

the officers took into account in arriving at their determination that they had probable cause to 

arrest defendant. 

¶ 16 A direct appeal of his conviction is not the appropriate vehicle for defendant’s claim. 

Defendant seems to have at least raised a possibility that it could have been wise for counsel to 

have filed the motion to suppress that he now envisions. But there are countless unknowns that 

would leave us to completely speculate about whether the motion could have succeeded or 

whether counsel should have even filed the motion. To further demonstrate the unsuitability of 

adjudicating the issue raised on appeal, at oral argument, the State made a contention for the 

first time that it was a crime—a violation of the concealed carry law—simply for the defendant 

to have placed the weapon on an open seat and not keep it concealed on his person. As also 

discussed at the oral argument and acknowledged by defendant in response to our questioning, 

defendant’s conduct in trying to hide the weapon during the traffic stop might represent some 

consciousness of guilt that could factor into a probable cause determination. It would be 

imprudent for us to reach the question about the existence of probable cause at this stage in the 

case because there is too much potential information to which we are not privy and because the 

issue was not visited by the circuit court. For defendant to meet his burden of showing that his 

trial counsel was deficient for the purpose of obtaining relief on an ineffective assistance of 

counsel claim, defendant must establish a factual basis for his claim. He cannot do so on direct 

review in this case. Because the record is insufficient, we must affirm. 

¶ 17 As an alternative request for relief, defendant urges us to retain jurisdiction and remand the 

case for an evidentiary hearing on the question of counsel’s ineffectiveness. Counsel’s alleged 

ineffectiveness is not apparent from the record—it involves defendant producing evidence of 

facts or the nonexistence of facts to support the claims made for the first time after the trial 

court proceedings concluded. Defendant cites People v. Fellers, 2016 IL App (4th) 140486, 
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¶¶ 34-36, to support his position that remanding for a hearing while retaining jurisdiction is 

appropriate. But the court in Fellers retained jurisdiction and remanded for a hearing expressly 

because postconviction relief was not available because the defendant had already served his 

sentence. Id. ¶¶ 35-36. There is no reason to apply an exception to the rule here, defendant has 

the full array of postconviction remedies available for him to pursue. Defendant is collaterally 

attacking his trial proceedings, and there is a full collateral proceeding available to him that 

would allow defendant a chance to develop the necessary factual record to collaterally attack 

the judgment. If defendant so chooses, the proper course for him to take in this case is to pursue 

relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2016)). See 

Bew, 228 Ill. 2d at 135. 

¶ 18 The only way for defendant to show that his counsel was ineffective is to make a record of 

the facts that led to his arrest and show that the officers lacked probable cause. We have no 

record primarily concerned or even concerned at all with the events that led to defendant’s 

arrest. A collateral proceeding is the only way for defendant to supplement the record with the 

facts he would need to substantiate his claim. Defendant has not and cannot meet his burden to 

show that he was denied the effective assistance of counsel absent him presenting evidentiary 

facts or the nonexistence of such facts pertaining to the officers’ probable cause determination. 

Defendant provides no compelling reason as to why he should bypass the process set up for 

exactly this type of challenge. We decline to reach the merits of defendant’s ineffective 

assistance of counsel claim and we, thus, affirm. 

¶ 19 Defendant also contests several of the fines and fees that the trial court assessed against 

him. Defendant argues that the $5 electronic citation fee and the $5 court system fee were 

wrongly imposed. Defendant also argues that the $15 state police operations fee, the $50 court 

system fee, the $25 clerk’s records automation fee, the $2 State’s Attorney Records 

Automation Fund fee, the $2 Public Defender Records Automation Fund fee, the $25 Court 

Document Storage Fund fee, and the $190 felony complaint filing fee all constitutes fines, not 

fees, and are subject to offset by his per diem presentence credit. 

¶ 20 The State accedes to defendant’s request that we vacate the $5 electronic citation fee and 

the $5 court system fee. The State agrees that the $50 court system fee and the $15 state police 

operations fee are fines, not fees, and are subject to offset by defendant’s per diem presentence 

credit. The State, however, contends that the $25 clerk’s records automation fee, the $2 State’s 

Attorney Records Automation Fund fee, the $2 Public Defender Records Automation Fund 

fee, the $25 Court Document Storage Fund fee, and the $190 felony complaint filing fee were 

correctly imposed and, being fees and not fines, are not subject to offset by presentence credit. 

¶ 21 While this appeal was pending, our supreme court decided a case that provides some clarity 

on the fines versus fees issue. See People v. Clark, 2018 IL 122495. The supreme court held 

that the Public Defender Records Automation Fund fee (id. ¶ 22), the State’s Attorney Records 

Automation Fund fee (id. ¶ 27), the felony complaint filing fee (id. ¶ 34), the clerk’s records 

automation fee (id. ¶ 41), and the Court Document Storage Fund fee (id. ¶ 49) are all properly 

classified as fees, not fines, and are not subject to offset by presentence credit. Id. ¶ 51. 

¶ 22 Based on the foregoing, we vacate the $5 electronic citation fee and the $5 court system 

fee. The $50 court system fee and the $15 state police operations fee are subject to offset by 

defendant’s per diem presentence credit. The $25 clerk’s records automation fee, the $2 State’s 

Attorney Records Automation Fund fee, the $2 Public Defender Records Automation Fund 

fee, the $25 Court Document Storage Fund fee, and the $190 felony complaint filing fee stand 
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as proper fees that are not subject to offset by presentence credit. 

¶ 23 III. CONCLUSION 

¶ 24 Accordingly, we affirm. Fines and fees order corrected consistent with the above (supra

¶ 22). 

¶ 25 Affirmed.