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People v. Carney

January 31, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
BARNETT CARNEY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 97-CR-29458. Honorable Colleen McSweeney-Moore, Judge Presiding.

The opinion of the court was delivered by: Justice Theis.

Released for publication March 13, 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
BARNETT CARNEY, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Cook County. No. 97-CR-29458. Honorable Colleen McSweeney-Moore, Judge Presiding.

The opinion of the court was delivered by: Justice Theis.

PUBLISHED

 SUPPLEMENTAL OPINION UPON REMAND

Following a jury trial, defendant Barnett Carney was convicted of first degree murder and armed robbery and sentenced to consecutive terms of 29 years' imprisonment for murder and 10 years' imprisonment for armed robbery. On appeal, defendant argued that: (1) he was denied his right to effective assistance of counsel because his attorney failed to request a separate jury verdict form for the offense of felony murder; (2) the trial court erred in imposing consecutive sentences for first degree murder and armed robbery under sections 5-8-4(a) and (b) of the Unified Code of Corrections (Code) (730 ILCS 5/5-8-4(a), (b) (West 1996)); and (3) the trial court abused its discretion in sentencing defendant without properly considering all mitigating factors. Defendant filed a supplemental brief, arguing that the Illinois consecutive sentencing scheme was unconstitutional because it violated his right to due process and a jury trial, citing Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

In our previous opinion (People v. Carney, 317 Ill. App. 3d 806, 740 N.E.2d 435 (2000)), we found consecutive sentencing under section 5-8-4(a) of the Code unconstitutional under Apprendi and, therefore, did not address defendant's other consecutive sentencing arguments. However, we did resolve defendant's other claims concerning ineffective assistance of counsel and the trial court's consideration of mitigating factors at sentencing. The Illinois Supreme Court then granted the State's petition for leave to appeal and reversed, holding "that consecutive sentences imposed under section 5-8-4(a) of the Code do not violate the due process rights of defendants and that the Supreme Court's Apprendi decision does not apply to such sentences." People v. Carney, 196 Ill. 2d 518, 536, 752 N.E.2d 1137, 1147 (2001). The supreme court then remanded the case to this court for consideration of defendant's other arguments raised on appeal but not previously addressed by this court. On remand, we now address only defendant's argument that the trial court erred in imposing consecutive sentences under sections 5-8-4(a) and 5-8-4(b) of the Code.

The following facts are relevant to our analysis. On September 26, 1997, the decedent, Richarde Frazier, was shooting dice with Charles Epps in front of the residence of 6401 South Maryland in Chicago. Tamika Johnson, Epps' girlfriend, stood nearby watching for the police. After approximately 10 minutes, the game was interrupted by three people. Johnson testified that one of the individuals was wearing a Halloween mask and that the others wore hooded sweatshirts pulled tightly around their faces. One of the hooded men and the masked man stopped where Frazier and Epps were shooting dice, while the third man walked to the corner. After seeing this, Johnson ran toward the porch of the residence at 6401 South Maryland and got down on the ground.

Johnson testified that she heard the unknown men tell Frazier and Epps to get on the ground and surrender their money. After both men dropped to their knees, the man with the mask held a gun close to Frazier and took money from his pocket. She saw Frazier struggle with his assailant and then heard a loud shot. Frazier fell to the ground and died 15 days later as a result of complications from the gunshot wound.

Defendant later spoke to Assistant State's Attorney Muldoon, who reported defendant's account at trial. According to Muldoon, defendant stated that he and Tucker were driving in defendant's car and that Tucker had the mask and gun. When they arrived at 64th and Maryland, they saw a dice game in progress. Defendant indicated that Epps walked over to their vehicle and told them that Frazier was "sweet," meaning that he was an easy target for a robbery. At this point, they made a plan to rob the dice game. Defendant stated that Tucker wore the mask and had the gun, and that defendant had a skull cap pulled over his head. Defendant and Tucker decided to pretend to rob Epps and then actually rob Frazier. While defendant pretended to pat down Epps, Tucker forced Frazier to the ground and took his money. Defendant then observed a struggle between the two, and Tucker shot Frazier. They took $4 from Frazier, Tucker ran home with the gun and mask, and defendant ran and hid.

The jury returned a verdict of guilty on both offenses, and the court imposed consecutive sentences of 29 years for the offense of intentional first degree murder and 10 years for armed robbery.

Defendant argues that the trial court erred in imposing consecutive sentences for first degree murder and armed robbery under sections 5-8-4(a) and (b) of the Code. 730 ILCS 5/5-8-4(a), (b) (West 1996 & Supp. 1997). At the time of defendant's crimes, section 5-8-4(a) provided for mandatory consecutive sentences where the offenses were committed in a single course of conduct and one of the offenses was a triggering offense as delineated in the statute. People v. Sergeant, No. 1-99-1609, slip op. at 20 (November 30, 2001). In this case, the triggering offense was a Class X or Class 1 felony where defendant inflicted severe bodily injury during the commission of that felony on the victim of that felony. 730 ILCS 5/5-8-4(a) (West 1996); People v. Whitney, 188 Ill. 2d 91, 98-100, 720 N.E.2d 225, 229-30 (1999); People v. Sergeant, slip op. at 24. Section 5-8-4(b) allows a trial court, in its discretion, to impose consecutive sentences for offenses not committed in a single course of conduct where the court finds that such sentences are necessary for the protection of the public. 730 ILCS 5/5-8-4(b) (West 1996); People v. Wilder, 325 Ill. App. 3d 987, ___ N.E.2d ___ (2001). Effective July 22, 1997, the legislature amended section 5-8-4(b) to require mandatory consecutive sentences for triggering offenses not committed as part of a single course of conduct. 730 ILCS 5/5-8-4(b) (West 1996 & Supp. 1997); People ex rel. Waller v. McKoski, 195 Ill. 2d 393, 398-401, 748 N.E.2d 175, 178-79 (2001); People v. Sergeant, ...


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