Appeal from the Circuit Court of Cook County 08 CR 19320 Honorable Lawrence Edward Flood, Judge Presiding.
The opinion of the court was delivered by: Justice McBRIDE
JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Presiding Justice Garcia concurred in the judgment and opinion.
Justice R. E. Gordon dissented, with opinion.
Following a bench trial, defendant, Martinell Anthony, was convicted of two counts of unlawful possession of a weapon by a felon and sentenced to concurrent terms of six years' imprisonment. On appeal, defendant contends that one of his convictions must be vacated because it was unauthorized by statute. Defendant also disputes various fines and fees imposed against him.
Defendant was arrested and charged by information with, among other
things, two counts of unlawful possession of a weapon by a felon (720
ILCS 5/24-1.1 (West 2008)) and aggravated unlawful use of a weapon
(720 ILCS 5/24-1.6(a)(1)(3)(A) (West 2008)). The two counts of
unlawful possession of a weapon by a felon were based upon possession
of a handgun and possession of the firearm ammunition inside that
handgun. Specifically, the first count alleged that defendant
"knowingly possessed on or about his person *** a handgun, after
having been previously convicted of the felony offense of burglary."
The second count alleged that defendant
"knowingly possessed on or about his person any firearm
ammunition, after having been previously convicted of the felony
offense of burglary." The charge of aggravated unlawful use of a
weapon alleged that defendant "knowingly carried in any vehicle *** a
handgun, *** and the firearm possessed was uncased, loaded and
immediately accessible at the time of the offense, and [defendant] has
been previously convicted of *** burglary." The following evidence was
presented at defendant's trial.
On September 11, 2008, at approximately 8 p.m., Chicago police officer Christopher Ware was in the parking lot of the 63rd Street Beach in Chicago, IL. The parking lot was lit by moonlight and artificial lighting in the lot. Officer Ware saw a woman sitting in the passenger seat of a vehicle and a man, whom he identified as defendant, standing near the vehicle holding a semiautomatic handgun. Defendant put the gun in his pocket and entered the driver's seat of the vehicle. Officer Ware approached and told defendant to exit the vehicle. He asked defendant what he had been holding in his hand, and defendant replied that it was a cell phone. Officer Ware conducted a protective pat-down of defendant but did not discover a weapon. Defendant said the cell-phone he had been holding was inside the vehicle and gave the officer permission to search the vehicle. Upon a search of that vehicle, the officer found a loaded semiautomatic handgun under a jacket behind the front passenger seat that he believed was the same gun that he had seen defendant holding. A further search of the vehicle revealed a backpack under the rear seat that contained two handgun magazines and approximately 96 rounds of ammunition.
Defendant called his brother-in-law, Derrick Harris, as a witness.
Harris owned the vehicle in which the weapons were found and he
explained that, on the night of the incident, he
and defendant had gone to the beach with two women. Harris
was approximately 35 feet away from defendant when the police arrived
and he did not see defendant with the weapon that the police recovered
on the night of the incident. Harris testified that he was a Navy
officer and that he was the owner of the .45 caliber semiautomatic
handgun and the ammunition that the police found in his vehicle.
Following closing arguments, the trial court found defendant guilty of two counts of unlawful possession of a weapon by a felon based upon possession of the firearm and possession of the ammunition inside that firearm.*fn1 The court also found defendant guilty of one count of aggravated unlawful possession of a weapon, but merged that conviction into the first count of unlawful possession of a weapon by a felon. The court clarified that "the ammunition found inside the backpack at the rear of the vehicle "isn't a consideration by this court as far as these charges are concerned." The court sentenced defendant to concurrent terms of six years' imprisonment. This appeal followed.
Initially, a question was raised whether aggravated unlawful use of a weapon was a greater offense than unlawful use of a weapon by a felon. Although each offense is a Class 2 felony, the sentencing provision for unlawful use of a weapon by a felon provides for a sentence of 3 to 14 years' imprisonment (see 720 ILCS 5/24-1.1(e) (West 2008)), whereas the sentencing provision for aggravated unlawful use of a weapon provides for a sentence of 3 to 7 years' imprisonment (see 720 ILCS 5/24-1.6(d)(3) (West 2008)). But cf People v. Johnson, 237 Ill. 2d 81 (2010)). The parties and this court now agree that unlawful use of a weapon by a felon is the greater offense in this case.
Defendant first contends that one of his convictions for unlawful possession of a weapon should be vacated because the legislature did not intend to permit multiple convictions based upon the possession of a single, loaded firearm. Defendant did not preserve this issue in the trial court and asks that we review it for plain error. The plain error doctrine allows a reviewing court to address defects affecting substantial rights (1) if the evidence is closely balanced or (2) if fundamental fairness so requires rather than finding the claims waived. People v. Carter, 213 Ill. 2d 295, 299 (2004). Defendant does not claim that the evidence in this case was closely balanced but, rather, he points out that our supreme court has held that "the potential for a surplus conviction and sentence affects the integrity of the judicial process, thus satisfying the second prong of the plain error rule." People v. Harvey, 211 Ill. 2d 368, 389 (2004); see also Carter, 213 Ill. 2d at 299 (considering the question of whether multiple convictions could be entered for unlawful possession of weapons by a felon based on simultaneous possession of two guns and ammunition for those guns under the second prong of the plain error doctrine). However, "[t]he first step of plain-error review is to determine whether any error occurred." People v. Lewis, 234 Ill. 2d 32, 43 (2009). Accordingly, we first consider whether defendant's multiple convictions constituted error.
The question of whether the unlawful possession of a weapon by a felon statute permits separate offenses to be charged for simultaneous possession of a handgun and the firearm ammunition inside of that handgun is an issue of first impression.*fn2 The interpretation of a statute is a question of law that is reviewed de novo. Carter, 213 Ill. 2d at 301. Our primary objective when construing a statute is to ascertain and give effect to the intent of the legislature. Carter, 213 Ill. 2d at 301. We begin by examining the language of the statute, which is "the surest and most reliable indicator of legislative intent." People v. Pullen, 192 Ill. 2d 36, 42 (2000). Where the language of the statute is clear and unambiguous, it must be read and given effect without exception, limitation, or other condition. Carter, 213 Ill. 2d at 301.
In this case, the plain and unambiguous language of the statute allows for multiple convictions based upon simultaneous possession of a firearm and firearm ammunition. Section 24-1.1 makes it unlawful for a person who has been convicted of a felony to possess "any firearm or any firearm ammunition." 720 ILCS 5/24-1.1(a) (West 2008). More importantly, the statute provides that "[t]he possession of each firearm or firearm ammunition in violation of this Section constitutes a single and separate violation." 720 ILCS 5/24-1.1(e) (West 2008). It is undisputed that in the present case, defendant was found to be in possession of both a firearm and firearm ammunition. Therefore, we conclude that the plain language of the statute permits defendant's multiple convictions for unlawful possession of a weapon by a felon.
Defendant nevertheless relies upon our supreme court's decision in Carter to assert that the statute is ambiguous and that it therefore must be construed to prohibit his conviction for unlawful possession of a weapon based upon the ammunition inside the firearm.
In Carter, the defendant was found in possession of two loaded semiautomatic weapons, a .22-caliber handgun and a .25-caliber handgun, and an ammunition clip containing .22-caliber bullets. The defendant was charged with and convicted of, among other things, four counts of unlawful possession of weapons by a felon. Those four counts were based upon the defendant's possession of a .22-caliber handgun, a .25-caliber handgun, and ammunition for the .22-caliber handgun. Carter, 213 Ill. 2d at 298. On appeal, the supreme court was asked to determine "whether multiple convictions can be entered for unlawful possession of weapons by a felon based on the simultaneous possession of two guns and the ammunition for those guns." Carter, 213 Ill. 2d at 299. The defendant argued that nothing in the statute indicated that each article of contraband possessed constituted a separate offense and that any ambiguity in the statute should be resolved in his favor. The defendant further argued that because all four of his convictions for unlawful possession were based on a single, simultaneous act of possession, three of his convictions had to be vacated under the one-act, one-crime rule. Carter, 213 Ill. 2d at 300.
The court stated that whether the legislature intended for the simultaneous possession of weapons and ammunition to be the same offense or separate offenses required it to determine the statute's "'allowable unit of prosecution.'" Carter, 213 Ill. 2d at 302, quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 220-21, 73 S. Ct. 227, 229, 97 L. Ed. 260, 263-64 (1952). The court found that the statute neither prohibited nor permitted the State to bring separate charges for the simultaneous possession of firearms and firearm ammunition because the term "any," as used in the statute making it unlawful for a felon to possess "any firearm or any firearm ammunition," could mean either singular or plural. Carter, 213 Ill. 2d at 301-02. The court thus found that the term "any" in the statute did not adequately define the allowable unit of prosecution and that the statute was therefore ambiguous. As such, the rule of lenity required the court to construe the statute in the defendant's favor. Carter, 213 Ill. 2d at 302.
The court then noted that it had consistently held that, "where a statute is ambiguous, in the absence of a statutory provision to the contrary, simultaneous possession could not support multiple convictions." Carter, 213 Ill. 2d at 302. The court cited to its prior decision in People v. Manning, 71 Ill. 2d 132 (1978), in which the defendant was found guilty of two counts of possession of controlled substances. In Manning, 71 Ill. 2d at 137, the State argued that the defendant committed two separate offenses in that he knowingly possessed two types of controlled substances, and the defendant asserted that his simultaneous possession of both substances arose out of a single act. The court held that "in the absence of a statutory provision to the contrary, the simultaneous possession of more than one type of controlled substance, under the circumstances shown on this record, constituted a single offense, and only one sentence should have been imposed." Manning, 71 Ill. 2d at 137.
Our supreme court acknowledged in Carter that its decision in Manning had been superceded by an amendment to the Illinois Controlled Substances Act (the Act) which expressly authorized multiple convictions where a defendant simultaneously possesses more than one type of controlled substance. See 720 ILCS 570/402 (West 2004) ("[a] violation of this Act with respect to each of the controlled substances listed herein constitutes a single and separate violation of this Act"). The court noted that the amendment to the Act demonstrated that the legislature "knows how to authorize, specifically, multiple convictions for simultaneous violations of a single criminal statute." Carter, 213 Ill. 2d at 303. The court also indicated its agreement with the State that "a felon who possesses a loaded gun may be more dangerous than a felon who possesses a gun but no ammunition." Carter, 213 Ill. 2d at 306. However, the court noted that it was for the legislature to define that allowable unit of prosecution and held that "under the facts of this record, in the absence of a specific statutory provision to the contrary, the simultaneous possession of two firearms and firearm ammunition constituted a single offense, and that only one conviction for unlawful possession of weapons by a felon could be entered." Carter, 213 Ill. 2d at 303-04.
After Carter, the legislature amended the unlawful possession of a weapon by a felon statute by adding the language providing that "[t]he possession of each firearm or firearm ammunition in violation of this Section constitutes a single and separate offense." 720 ILCS 5/24-1.1(e) (West 2008). Defendant acknowledges that the amendment to the statute "indicates that two convictions are proper if a defendant possesses two firearms or if he separately possesses a firearm and firearm ammunition." He claims, however, that the statute does not address the circumstances in this case or authorize a second conviction based solely upon the fact that the firearm found in defendant's possession was loaded with ammunition. Defendant asserts that, as in Carter, the statute "neither prohibits nor permits the State to bring separate charges for the simultaneous possession of firearms and firearm ammunition." Therefore, defendant concludes, ...