Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois, Nos. 95--CF--238 & 96--CF--145 Honorable Daniel Gould, Judge, Presiding.
The opinion of the court was delivered by: Justice Slater
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
In case No. 95--CF--238, defendant, James W. Brown, pleaded guilty to aggravated battery (720 ILCS 5/12--4(a) (West 1994)) and was sentenced to a 24-month term of probation. Subsequently, in case No. 96--CF--145, defendant was convicted of aggravated battery with a firearm, two counts of unlawful possession of a weapon by a felon, and two counts of unlawful possession of a firearm without the requisite firearm owner's identification (FOID) card (720 ILCS 5/12--4.2(a), 24-- 1.1(a) (West 1996); 430 ILCS 65/2(a)(1) (West 1996)). The trial court sentenced defendant to a prison term of natural life for aggravated battery with a firearm and concurrent 10-year terms of imprisonment for each of the other four weapons charges. Later, the trial court revoked defendant's probation for aggravated battery and imposed a sentence of 10 years' imprisonment to run concurrently with defendant's other prison terms.
On appeal, defendant contends, inter alia: (1) that he received ineffective assistance of counsel during plea negotiations in case No. 96--CF--145; (2) that the evidence was insufficient to prove him guilty of the weapons charges arising from his conduct on the day of his arrest; and (3) that he is entitled to outright reversal of his convictions for possession of a firearm without the requisite FOID card because the penalty for that offense violates the proportionate penalties clause of the Illinois Constitution. For the reasons that follow, we reverse and remand.
In case No. 96--CF--145, a Kankakee County grand jury charged defendant with five offenses. In count I, the grand jury alleged that defendant committed aggravated battery with a firearm on February 22, 1996, when he shot Eddie Jackson. In count II, the grand jury alleged that defendant is a convicted felon who committed unlawful possession of a weapon by a felon when he possessed a handgun on February 22, 1996. In count III, the grand jury charged defendant with unlawful possession of a weapon by a felon for possessing a handgun on February 25, 1996. In counts IV and V, the grand jury alleged that, on February 22 and 25, respectively, defendant committed possession of a firearm without the requisite FOID card by possessing a firearm while being ineligible to apply for a FOID card.
In a December 9, 1996, letter to defense counsel, the State offered defendant an aggregate sentence of 18 years' imprisonment in exchange for his plea of guilty to counts I and III in case No. 96--CF--145, an admission to the State's petition to revoke probation in case No. 95-- CF--238, and a plea of guilty to violating the terms of a bail bond in case No. 96--CF--688. The State noted that defendant "has at least 5 felony convictions" including a 1980 conviction for armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A--2).
Defendant's cause proceeded to a jury trial which resulted in his conviction on all five counts of the indictment. Afterwards, the trial court ordered the preparation of a pre-sentence investigation report (PSI). The PSI revealed that defendant had been convicted of the Class X felony offenses of armed violence and home invasion in 1985 and that his 1980 conviction for armed violence had been a Class X felony. Based on this information, the State filed a verified statement of defendant's eligibility to be sentenced as a habitual criminal under the Habitual Criminal Act (720 ILCS 5/33B--1 et seq. (West 1996)) due to his conviction of aggravated battery with a firearm, his third Class X felony conviction. *fn1 See 720 ILCS 5/33B--1 (West 1996). Adjudication as a habitual criminal subjects a defendant to a mandatory sentence of natural life imprisonment. 720 ILCS 5/33B--1(e) (West 1996); 730 ILCS 5/5--5--3(c)(7) (West 1996).
Defendant filed a motion to vacate his convictions on the ground that he had received ineffective assistance of counsel during plea negotiations with the State when his counsel failed to advise him that he faced a mandatory sentence of natural life imprisonment if convicted of aggravated battery with a firearm. Along with this motion, defendant filed four affidavits.
In the first affidavit, defense counsel averred that he never informed defendant that he would receive a sentence of natural life imprisonment if convicted of aggravated battery with a firearm. Counsel acknowledged that he had been unaware of defendant's complete criminal history during plea negotiations. Moreover, counsel admitted that he had failed to recognize that defendant faced a mandatory prison term of natural life if convicted of count I of the indictment.
In the second affidavit, an investigator for the Kankakee County Public Defender's Office stated that she interviewed defendant on July 11, 1996. The investigator's notes of this interview, attached to her affidavit, reflect that defendant informed her that he had been convicted of armed violence in 1980 and armed violence and attempted murder in 1983. The investigator averred that she promptly included these notes in defendant's case file.
In the third affidavit, Kankakee County's chief public defender averred that his January 14, 1998, review of defendant's case file revealed that the file contained the notes of his investigator's interview with defendant. Attached to the affidavit is a copy of the notes contained in the file. The notes are identical to those attached to the investigator's affidavit.
In the fourth affidavit, defendant stated that no one ever advised him, nor was he ever aware, at any time prior to trial, that he would be subject to a mandatory sentence of natural life in prison if convicted of aggravated battery with a firearm. Defendant also asserted that he would have accepted the State's final plea offer had he known that he would be subject to the mandatory sentence.
At a hearing on defendant's motion, defendant testified that he recalled providing the public defender's investigator with information concerning his criminal history. Defendant also affirmed that he was never aware, at any time prior to trial, that he faced a mandatory sentence of natural life. Defendant further testified that defense counsel and he never discussed the maximum and minimum sentences for the offenses charged by the State. Defendant also recalled that he rejected the State's 18-year plea offer and a subsequent offer of 15 years.
Defense counsel testified that he is a part-time assistant public defender. Counsel could not recall reviewing with defendant the notes of the public defender's investigator, or whether he had even seen these notes, prior to trial. Counsel explained that he generally considers unreliable information concerning a client's criminal history provided by the defendant or the public defender's ...