Appeal from the Circuit Court of Lake County. No. 97-CF-2502 Honorable James K. Booras, Judge, Presiding.
The opinion of the court was delivered by: Justice Gilleran Johnson
Following a bench trial, the defendant, Clemmie Carter, was found guilty of four counts of unlawful possession of a weapon by a felon (720 ILCS 5/24--1.1 (West 1996)) and one count of possession of a firearm without a valid firearm owner's identification (FOID) card (430 ILCS 65/2(a)(1) (West 1996)). The trial court sentenced the defendant to five years' imprisonment for each offense, the sentences to run concurrently. On appeal, the defendant argues that four of his convictions should be vacated due to the one-act, one-crime doctrine. The defendant additionally argues that the trial court relied on improper factors in determining his sentence. We affirm in part and vacate in part and remand for additional proceedings.
On October 8, 1997, the defendant was charged by indictment with unlawful possession of a weapon by a felon and possession of a firearm without a FOID card. Count I of the indictment charged the defendant with unlawful possession of a weapon by a felon (720 ILCS 5/24--1.1 (West 1996)); count II charged the defendant with possession of a firearm without a FOID card (430 ILCS 65/2(a)(1) (West 1996)). Both counts I and II were based on the defendant's alleged possession of a .22-caliber handgun on September 22, 1997. On February 4, 1998, the defendant was charged with three more counts of unlawful possession of a weapon by a felon. Counts IV through VI were based on the defendant's alleged possession of a .25-caliber handgun, ammunition for the . 25-caliber handgun, and ammunition for the .22-caliber handgun, respectively, on September 22, 1997.
On April 7, 1998, the trial court conducted a bench trial. Officer John Moran of the Waukegan police department testified that on September 22, 1997, at approximately 2:34 a.m., he was on duty, sitting in his parked squad car on George Street, near the intersection with South Utica Street. Officer Moran was watching a van parked on South Utica that he knew belonged to the Moses brothers. Three people were standing outside the van. There was other pedestrian traffic in the area as well. Officer Moran observed a white 1982 Chevrolet Caprice drive north on South Utica and stop 15 to 20 feet from the van. A passenger in the Caprice leaned out of the window and fired 10 to 15 shots from an automatic weapon toward the van. The Caprice continued north on South Utica at a high rate of speed. The Caprice eventually turned right on Ravine Street.
Officer Moran drove his squad car down George with the lights off to get a better look at what had taken place and to see if anybody had been hurt. He had just crossed South Utica when he saw the Caprice turn onto George from Oak Street. The Caprice headed toward Officer Moran's squad car. Officer Moran activated his mars lights and shined his spotlight on the Caprice. The Caprice almost struck Officer Moran's squad car and then turned back onto South Utica, heading north. Officer Moran got a very good look at both the driver and the passenger. He identified the defendant as the driver. Officer Moran followed the Caprice and eventually saw it crash into a building at the intersection of 12th Street and Sheridan Road. By the time he reached the vehicle, the occupants had abandoned it.
Officers Keith Zupec and Dave Mercado of the Waukegan police department also testified. Officer Zupec testified that he was dispatched to the crash site to assist in locating the individuals who had abandoned the Caprice. Officer Zupec saw the defendant running out of an alley just west of Sheridan and near 13th Street. Officer Zupec gave chase and eventually apprehended the defendant. Officer Mercado testified that he responded to the crash site to collect evidence. Officer Mercado found two handguns on the passenger side floorboard of the Caprice, a .22-caliber semiautomatic handgun and a .25-caliber semiautomatic handgun. Officer Mercado also found a clip containing 26 .22-caliber bullets on the floorboard. The .22-caliber handgun had an empty shell casing in its chamber and was otherwise unloaded. The . 25-caliber handgun was loaded with a clip containing five bullets.
After the close of all the evidence, the trial court found the defendant guilty on all five charges. The trial court set a May 8, 1998, sentencing date. The defendant failed to appear on May 8, 1998, and the trial court issued an arrest warrant. The defendant was eventually arrested on the warrant on October 5, 2001.
The trial court held a sentencing hearing on December 3, 2001. Neither party presented any evidence. The presentence investigation report (PSI) revealed that the defendant had an extensive criminal history. The defendant's record included convictions of driving under the influence, aggravated battery, obstructing a peace officer, unlawful possession of a controlled substance with the intent to deliver, and disorderly conduct.
The PSI also revealed several new arrests. On February 27, 2001, the defendant was arrested in Cleveland, Ohio, for possession of drugs, preparing drugs for sale, and possession of criminal tools. Ohio authorities had issued a warrant for the defendant's arrest due to the defendant's failure to appear in court on these charges. Additionally, on October 4, 2001, the defendant was arrested by the Waukegan police for possession of cannabis and obstruction of justice.
After considering the PSI and hearing arguments from the State and the defendant, the trial court sentenced the defendant to five years' imprisonment on each count. The trial court ordered the sentences to run concurrently. In making its determination, the trial court stated:
"As to [the defendant's] subsequent conduct, especially after
he didn't show up for his sentencing hearing, and the fact, even
though belatedly, he picked up more offenses, one of them being a
felony in Ohio, and the State of Ohio waiting to extradite the
defendant, it appears that the defendant is not someone to be
trusted with a gun. *** It appears that he was involved in a
violent, potentially explosive, dangerous situation where people
would have gotten hurt, even though to the defendant it might be
something that he doesn't consider to be too serious. *** The
public out there are terrorized by gang violence of this sort. The
public out there want people that are involved in gang violence
locked up and not come out [sic]. And you haven't helped yourself
at all. You didn't turn yourself in. You didn't come clean. You
kept violating the law."
Following the denial of his posttrial motions, the defendant filed a timely notice of appeal.
The defendant's first argument on appeal is that his multiple convictions violate the one-act, one-crime doctrine. The defendant argues that his conviction of possession of a firearm without a FOID card and his convictions of unlawful possession of a weapon by a felon were all based on the same conduct. The defendant argues that four of his convictions should be vacated: three convictions of unlawful possession of a weapon by a felon and one conviction of possession of a firearm without a FOID card. The State confesses error as to the defendant's conviction of possession of a firearm without a FOID card.
Before turning to the merits, we note that the defendant has failed to properly preserve this issue for appeal. However, we address the argument under the plain error doctrine because the defendant's convictions and sentences affect his substantial rights. See People v. Smith, 183 Ill. 2d 425, 430 (1998).
Turning then to the merits of the defendant's argument, the one-act, one-crime doctrine, articulated in People v. King, 66 Ill. 2d 551, 566 (1977), provides that multiple convictions are not proper where (1) only one physical act was manifested, or (2) multiple acts were manifested, but some of the convictions are of included offenses. In King, the supreme court held:
"Prejudice results to the defendant only in those instances
where more than one offense is carved from the same physical act.
Prejudice, with regard to multiple acts, exists only when the
defendant is convicted of more than one offense, some of which are,
by definition, lesser included offenses. Multiple convictions and
concurrent sentences should be permitted in all other cases where a