Sosin, Arnold & Schoenbeck, Ltd.
A complete appellate record is one of the most precious things an appellant can build for an appeal. Its primary importance was established again in People v. Burnett.
In that case, the defendant appealed his conviction
stemming from his arrest for unlawfully possessing a weapon. 2019 IL App (1st)
163018, ¶ 1. Three police officers spotted Burnett in a van with no front
license plate. Id. ¶ 3. The officers approached the van, and noticed Burnett
remove an “L” shaped object from his waistband and place it in the back of the
van. Id. ¶ 4. The object turned out to be a semiautomatic handgun, and Burnett
was arrested. Id. He did not have a FOID card or a concealed carry license. Id.
¶ 5. Burnett was later convicted, and he appealed. Id. ¶ 6.
On appeal, Burnett argued that he was deprived of his
constitutional right to effective assistance of counsel because his attorney
should have moved to quash his arrest. Id. ¶ 7. He claimed that mere possession
of a gun is no longer sufficient to establish probable cause to justify an
arrest. Id. The First District acknowledged that the Illinois Supreme Court had
determined in People v. Aguilar, 2013 IL 112116, that a statute was unconstitutional
because it categorically criminalized the possession of a weapon outside the
home. Id. ¶ 10.
There was a problem, though: the record did not “contain
sufficient information about the circumstances of defendant’s arrest from which
we could determine whether he has an arguably meritorious claim.” Id. ¶ 11. The
Court noted that because the case just went to trial, the State had no reason
to factually demonstrate probable cause in the first place. Id. It specified
that due to the insufficiency of the record about the arrest, “we have no way
of knowing what the officers’ probable cause determination was based upon[.]”
Id. ¶ 12.
The Court forcefully rejected the defendant’s argument
that holes in the record should go in his favor. It recognized that the
defendant “attempts to spin the lack of testimony about probable cause into a
conclusion that there was no probable
cause.” Id. ¶ 14 (emphasis in original). This reasoning could not work, because
the defendant was “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.” Id. (emphasis in
original).
The Court concluded that it “would be imprudent for us to
reach the question about the existence 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.” Id. ¶ 16. “Because the
record is insufficient, we must affirm.” Id.
This case should serve as an important reminder to
jealously guard the state of the trial court record for a potential appeal.DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.