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People v. Carmichael

September 30, 2003

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ANTWOYN CARMICHAEL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Dennis J. Porter, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Hoffman

UNPUBLISHED

Following a bench trial, the defendant, Antwoyn Carmichael, was found guilty of unlawful use of a weapon by a felon and sentenced to five years in prison. On appeal, the defendant contends that we must vacate his sentence and remand for re-sentencing because: (1) the trial court improperly relied upon his prior armed violence conviction to enhance the offense of unlawful use of a weapon by a felon from a Class 3 felony to a Class 2 felony; (2) the sentence was imposed in violation of his constitutional rights pursuant to the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); and (3) the sentence violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11). For the reasons which follow, we affirm his conviction as modified, vacate his sentence, and remand for re-sentencing.

The defendant was charged with, inter alia, unlawful use of a weapon by a felon in that he knowingly possessed a handgun after having been previously convicted of the offense of armed violence. Pursuant to section 24-1.1(e) of the Criminal Code of 1961 (Code), the offense of unlawful use of a weapon by a felon, committed by a person not confined to a penal institution, is generally a Class 3 felony carrying a sentence of no less than 2 and no more than 10 years in prison. 720 ILCS 5/24-1.1(e) (West 2000). However, when the offense is committed by a person who is not confined to a penal institution and "who has been convicted of a forcible felony," it is a Class 2 felony carrying a sentence of not less than 3 and not more than 14 years in prison. 720 ILCS 5/24-1.1(e) (West 2000).

At trial, defense counsel stipulated that the defendant had previously been convicted of armed violence. The State presented the testimony of Chicago police officer Bunyon, which established that, on August 10, 2001, the defendant had in his possession a .9 millimeter semi-automatic handgun. The trial court found the defendant guilty of unlawful use of a weapon by a felon. At the sentencing hearing, the State informed the trial court that the defendant had a prior conviction for armed violence. The State did not, either at trial or the sentencing hearing, introduce any evidence regarding the circumstances surrounding that prior conviction. The trial court sentenced the defendant to five years in prison. Although the court never made an explicit finding that the defendant's prior armed violence conviction constituted a forcible felony, on the date of sentencing, it entered an order remanding the defendant to the custody of the Illinois Department of Corrections. That order identifies the defendant's unlawful use of a weapon by a felon conviction as a Class 2 felony.

On appeal, the defendant first argues that his conviction for unlawful use of a weapon by a felon must be reduced from a Class 2 felony to a Class 3 felony because armed violence, the felony of which he was previously convicted and upon the basis of which his current conviction was enhanced, is not a "forcible felony." For this reason, he asserts, we must vacate his five year sentence and remand for re-sentencing.

The State contends that the defendant has waived review of the contention that his prior armed violence conviction does not constitute a forcible felony by failing to raise it at trial or in a post-trial motion. See People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988). However, sentencing issues are excepted from the doctrine of waiver when they affect a defendant's substantial rights. People v. Brials, 315 Ill. App. 3d 162, 170, 732 N.E.2d 1109 (2000). We find that the defendant's contention that the offense of which he was convicted was improperly enhanced from a Class 3 felony to a Class 2 felony implicates substantial rights justifying review of the issue. See Brials, 315 Ill. App. 3d 162 (addressing as an issue affecting the defendant's substantial rights his claim that the trial court erred in imposing consecutive sentences where the factual prerequisite for such a sentence, namely that crimes were committed in single course of conduct, was not present). Further, we note that waiver is a limitation on only the parties, and despite waiver, this court may address an issue in order to carry out its responsibility to reach a just result. In re C.R.H., 163 Ill. 2d 263, 274, 644 N.E.2d 1153 (1994)

As stated earlier, the offense of unlawful use of a weapon by a felon is enhanced from a Class 3 felony to a Class 2 felony when the defendant has previously been convicted of a forcible felony. 720 ILCS 5/24-1.1 (West 2000). Section 2-8 of the Code defines the term "forcible felony" as follows:

" 'Forcible felony' means treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual." [Emphasis added.] 720 ILCS 5/2-8 (West 2000).

As armed violence is not one of the offenses enumerated as a forcible felony in section 5-8 of the Code, we must determine whether it falls within the residual category of "any other felony which involves the use or threat of physical force or violence against any individual." 720 ILCS 5/2-8 (West 2000). The question is one of law, and, accordingly, we review the trial court's finding on this issue de novo. People v. Greer, 326 Ill. App. 3d 890, 891, 762 N.E.2d 693 (2002).

Section 33A-2 of the Criminal Code provides that a person commits the offense of armed violence when, while committing any except one of certain enumerated felonies, he: (1) is armed with a dangerous weapon; (2) personally discharges a firearm that is a Category I or Category II weapon; or (3) personally discharges a firearm that is a Category I or Category II weapon that proximately causes great bodily harm, permanent disability or disfigurement, or death to another. 720 ILCS 5/33A-2 (West 2000). The parties here agree that the defendant was convicted of armed violence based upon his commission of the predicate felony of possession of a controlled substance (see 720 ILCS 570/402(c) (West 2000)).

The defendant asserts that armed violence predicated on the possession of a controlled substance is not a felony which involves the use or threat of physical force or violence against any individual. The State acknowledges that the record before us is silent as "to whether defendant's prior conviction involved any violence or threat of violence." It asserts, however, that it is possible that violence might be required to carry out the offense of armed violence predicated upon possession of a controlled substance and that, as such, the offense qualifies as a forcible felony within the meaning of section 5-8 of the Code.

In People v. Belk, 203 Ill. 2d 187, 784 N.E.2d 825 (2003), the defendant was convicted of felony murder, an offense which is committed only when a death occurs during the commission of a forcible felony. Our supreme court considered the question of whether the offense of aggravated possession of a stolen motor vehicle could be considered a forcible felony. Noting that the offense was not one of those specifically enumerated in section 5-8 of the Code, the court considered whether the defendant's aggravated possession of a stolen motor vehicle was a felony which involved the use or threat of physical force or violence against any individual. Relying on its own earlier decision in People v. Golson, 32 Ill. 2d 398, 207 N.E.2d 68 (1965), the court held that the test for determining whether a felony constitutes a forcible felony capable of triggering the felony murder rule " 'is not whether the felony is normally classified as nonviolent, but is whether, under the facts of a particular case, it is contemplated that violence might be necessary to enable the conspirators to carry out their common purpose.' (Emphasis added.) Golson, 32 Ill. 2d at 407-08, 207 N.E.2d 68." Belk, 203 Ill. 2d at 193-94. Examining the facts surrounding the defendant's aggravated possession of a stolen motor vehicle, the Belk court concluded that there was no evidence that the defendant had contemplated that the use of force or violence against an individual might be necessary in order for him to commit the offense and that, as such, it did not constitute a forcible felony. Belk, 203 Ill. 2d at 195.

In People v. Greer, 326 Ill. App. 3d 890, 762 N.E.2d 693 (2002), the court was faced with the question of whether the offense of armed violence predicated on the offense of possession of a controlled substance with intent to deliver constituted a forcible felony within the meaning of section 5-8 of the Code such that the defendant could be convicted of felony murder in connection with a death arising out of the commission of the offense. The Greer court held that "the offense of armed violence is not inherently a crime involving 'the use or threat of physical force or violence' within the meaning of the residuary clause" of section 5-8 of the Code. Greer, 326 Ill. App. 3d at 895. However, the court went on to consider the particular circumstances surrounding the defendant's offense of armed violence predicated upon possession of a controlled substance with intent to deliver. It determined that, under those circumstances, there could be little doubt that the defendant contemplated that the threat of violence would be used to carry out the offense ...


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