APPEAL from the Circuit Court of Cook County; the Hon. HOWARD
M. MILLER, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant, William Langdon, was charged by indictment with unlawfully carrying a revolver concealed on his person, in violation of section 24-1(a)(4) of the Criminal Code of 1961. (Ill. Rev. Stat. 1973, ch. 38, par. 24-1(a)(4).) Count II of the indictment charged that the alleged unlawful use of weapons occurred within five years of defendant's release from the penitentiary, thus raising the class of the offense charged from a misdemeanor to a Class 3 felony under section 24-1(b) of the Criminal Code. (Ill. Rev. Stat. 1973, ch. 38, par. 24-1(b).) Following a bench trial in the circuit court of Cook County, defendant was found guilty on both counts and was sentenced on the felony count to a term of three years and four months to ten years in the penitentiary. From this judgment, defendant now appeals.
There is no contention on this appeal that the evidence failed to establish that defendant carried a concealed weapon. Rather, defendant argues that the evidence was nevertheless insufficient to establish an essential element of the felony offense of unlawful use of weapons, defendant's prior conviction of a felony. Defendant also contends that he was deprived of his constitutional right to counsel of his choice.
The facts relevant to defendant's first contention, relating to the insufficiency of the proof to show that he had previously been convicted of a felony and had been released from the penitentiary less than five years before he committed the instant offense, may be briefly stated. On the day of trial, defendant's counsel made an oral motion in limine to exclude the testimony of any unlisted prosecution witnesses, specifically those who might be called to testify as to whether defendant was the same person as the one named in the certified copy of conviction that the State intended to introduce into evidence. Stating that the motion was premature, the trial court postponed ruling on the motion.
No such witnesses were ever called by the State, nor did the defendant testify. Rather, except for the testimony of certain occurrence witnesses to the effect that, inter alia, the offense occurred on December 23, 1974, the only evidence offered by the State on this branch of the case consisted of a certified copy of conviction, which stated that William Langdon was convicted of armed robbery on October 18, 1971, and was sentenced to a term of two to four years in the Department of Corrections. This conviction statement was admitted into evidence, without objection, whereupon the State rested.
In support of his motion for a finding of not guilty and again in closing argument, defense counsel argued that the State had failed to prove that defendant had carried a concealed weapon or that he had been released from the penitentiary within five years of the date of the offense. The court entered a finding of guilty on both the misdemeanor and felony counts charged. The court then denied defendant's oral motion for a new trial and his written motion in arrest of judgment. After a hearing in aggravation and mitigation, the court sentenced defendant to the maximum period prescribed for a Class 3 felony, three years and four months to 10 years.
1, 2 Where, as here, a statute provides for imposition of an enhanced sentence upon proof of a prior conviction, the burden is on the State to establish the prior conviction as one of the elements of its case. (E.g., People v. Dixon (1970), 46 Ill.2d 502, 263 N.E.2d 876; People v. Hayes (1973), 15 Ill. App.3d 851, 305 N.E.2d 283.) Because the defendant is clothed with the presumption of innocence as to the fact of his former conviction as well as any other fact, the seminal case in this area established that the prior conviction must be proved beyond a reasonable doubt. (People v. Casey (1948), 399 Ill. 374, 77 N.E.2d 812; accord, e.g., People v. Stewart (1961), 23 Ill.2d 161, 177 N.E.2d 237.) The court in Casey went on to state:
"One of the facts to be proved to establish a prior conviction is to show the defendant charged with the commission of the substantive offense was the same person that was convicted and sentenced as shown by the record of the prior conviction.
The mere proof of a record containing identity of name with that of the defendant on trial is not sufficient to overcome the presumption of innocence where the enhancement of the penalty depends upon the proof of such fact. Defendant did not testify and there is no proof to show that he was ever in either of the counties from which the court records were obtained or that he was the same person as the defendant named in those cases." 399 Ill. 374, 379-80, 77 N.E.2d 812.
3 In the instant case, as in Casey, Stewart, and Hayes, the only proof offered by the State to establish defendant's prior conviction was a certified copy of conviction bearing the same name as that of defendant. Because the State failed to prove that defendant was the same person named in the conviction statement, the evidence was insufficient to establish defendant's former conviction. Therefore, under the cases cited above, defendant's conviction and sentence on the felony charge must be reversed. See also People v. Crawford (1978), 59 Ill. App.3d 211, 375 N.E.2d 1314; People v. Connell (1972), 6 Ill. App.3d 791, 286 N.E.2d 565 (abstract).
4 An examination of cases reaching the opposite result under the enhanced penalty statute sheds light on the various methods that may be used to prove that the person named in the conviction statement and the defendant are identical. These include testimony as to the former conviction by the arresting officer on the prior felony charge (People v. Johnson (1975), 27 Ill. App.3d 1047, 327 N.E.2d 219, appeal dismissed (1976), 424 U.S. 902, 47 L.Ed.2d 306, 96 S.Ct. 1092) by the presiding judge at the prior trial (People v. Weathers (1976), 40 Ill. App.3d 211, 351 N.E.2d 882), or by parole counselors, corrections officers, and the like. (People v. Mitchell (1979), 68 Ill. App.3d 370, 386 N.E.2d 153; People v. Flippen (1977), 46 Ill. App.3d 246, 360 N.E.2d 1183; People v. Willis (1976), 43 Ill. App.3d 535, 357 N.E.2d 576.) Similarly, the defendant may himself testify as to the former conviction (People v. Dixon (1970), 46 Ill.2d 502, 263 N.E.2d 876), or make statements sufficient to establish that he is the same man as is named in the conviction statement (People v. Lampkins (1975), 28 Ill. App.3d 246, 328 N.E.2d 100), or the parties may so stipulate (People v. Edwards (1976), 63 Ill.2d 134, 345 N.E.2d 496), although care must be taken to see that the stipulation is presented to the trier of fact. See People v. Crawford (1978), 59 Ill. App.3d 211, 375 N.E.2d 1314.
5-8 In the instant case, admittedly none of these methods was used. Nevertheless, the State contends that introduction of the conviction statement was sufficient under the circumstances where defendant failed to object to its admission and failed to argue or attempt to show that he was not the person named in the conviction statement. However, the conviction statement, though insufficient in itself to prove the prior conviction, was relevant and admissible evidence. (See, e.g., People v. Johnson (1975), 27 Ill. App.3d 1047, 327 N.E.2d 219.) Although the court in People v. Ballenger (1976), 38 Ill. App.3d 30, 347 N.E.2d 411, in affirming the defendant's conviction, placed emphasis on the fact that the defendant therein had also failed to object, we know of no requirement that the defendant object to the introduction of admissible evidence, nor that he point out wherein it is insufficient to convict him. On the contrary, because the prior conviction was an element of the felony offense charged, the obligation to prove it beyond a reasonable doubt remained with the State throughout the proceedings. (Cf. People v. Smith (1978), 71 Ill.2d 95, 374 N.E.2d 472.) Accordingly, the State's failure to prove such an element of the crime would require review and reversal even if the error had not been properly preserved for review. (People v. Davis (1977), 50 Ill. App.3d 163, 365 N.E.2d 1135.) Therefore, the State's argument, which amounts to an attempt to shift the burden of proof to defendant, is without merit.
9 For the same reason, we attach no significance to the fact that when the assistant State's Attorney had the certified copy of conviction marked for identification, he stated, without objection, that it referred to "This particular defendant, Mr. William Langdon." It was not incumbent upon defendant to deny the accuracy of the prior conviction statement (People v. Kurtz (1967), 89 Ill. App.2d 171, 232 N.E.2d 139), and whether or not the prosecutor's remark was objectionable, we cannot agree that by failing to object, defendant has somehow waived the issue of what is sufficient evidence to prove his alleged prior conviction. (See People v. Hornstein (1964), 47 Ill. App.2d 367, 198 N.E.2d 207.) Acceptance of the State's position would permit the State to establish an element of the offense by what amounts to unsworn testimony by the prosecutor, in lieu of competent evidence. (Cf. People v. Vasquez (1972), 8 Ill. App.3d 679, 291 N.E.2d 5; People v. Bitakis (1972), 8 Ill. App.3d 103, 289 N.E.2d 256.) Obviously something more must fairly be required of the State in the way of proof than the seemingly innocuous remarks made during the course of a trial.
Relying once again on People v. Ballenger (1976), 38 Ill. App.3d 30, 347 N.E.2d 411, the State also contends that defendant failed to dispute the documentation of his former conviction at the hearing in aggravation and mitigation, where his counsel stated that the presentence report containing the former conviction was "in many ways * * * fair well correct." We note that in Ballenger defense counsel actually admitted the fact of the defendant's former conviction at the sentencing hearing. In contrast, defense counsel's statement in the case at bar is far more equivocal and less specific, and thus we need not decide the propriety of using defense counsel's post-conviction statement as a basis for a defendant's conviction. Moreover, to the extent that Ballenger and People v. Flippen (1977), 46 Ill. App.3d 246, 249, 360 N.E.2d 1183 ...