Appeal from the Circuit Court of Cook County No. 06 CR 1204 The Honorable Thomas V. Gainer, Jr., Judge Presiding.
The opinion of the court was delivered by: Justice Harris
JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Karnezis and Connors concurred in the judgment and opinion.
Defendant, Edwin Tolentino, was convicted after a bench trial of attempted first degree murder of a peace officer, being an armed habitual criminal, and aggravated discharge of a firearm in the shootings of Officer George Junkovic and Patrick Cady. The trial court sentenced Tolentino to 28 years' imprisonment for the attempted first degree murder and a 20-year sentence enhancement for personally discharging a firearm (a total of 48 years), plus two concurrent 20-year terms for the armed habitual criminal and aggravated discharge of a firearm convictions. On appeal, he contends: (1) the trial court improperly applied the 20-year sentence enhancement contrary to the plain language of section 8-4(c) of the Criminal Code OF 1961 (720 ILCS 5/8-4(c) (West 2006)); (2) his conviction of the offense of being an armed habitual criminal violates the ex post facto clause of the United States Constitution (U.S. Const. Art. I, §9, cl.3; §10, cl. 1);
(3) his conviction for aggravated discharge of a firearm violates the one-act, one-crime rule; and
(4) his mittimus should be corrected to reflect 1,083 days' credit for presentence incarceration*fn1 .
For the reasons hereinafter set forth we affirm Tolentino's convictions and 20-year concurrent sentences for armed habitual criminal and aggravated discharge of a firearm. We affirm Tolentino's conviction and sentence and remand the case for issuance of a corrected mittimus reflecting 1,083 days of credit.
The trial court sentenced Tolentino on December 10, 2008, and he filed a timely notice of appeal on December 10, 2008. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, §6; Ill. S. Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).
At Tolentino's bench trial, Patrick Cady testified for the State. On December 16, 2005, at approximately 11:30 p.m., Cady was at a liquor store at North Avenue and Kedzie in Chicago, Illinois. He was with other Latin King members Gabriel Williams, Edwardo Rodriguez, Samuel Gonzalez, and Andre Ramos. While Cady was inside the store, Williams and Ramos threw bottles at the window of a white Oldsmobile Cutlass. Cady was told that Edwin Tolentino, also known as Chiquito, was in the car. The Oldsmobile drove off and the group began walking down North Avenue toward Wabansia when Ramos received a phone call. Ramos put the call on speaker phone. The caller asked the group's location and Ramos told the caller their location. Soon thereafter, someone wearing a ski mask and black jacket came toward the group and started shooting at them. Cady and his companions ran to a friend's apartment at 3221 West North Avenue, and a man in a ski mask also entered the building. The masked man, however, wore a different shirt than the shooter. The man called out "come down here bitch." When Cady heard the person's voice, he believed it was the same person he had heard on the speaker phone. The man fired a shot into the hallway toward the stairwell and left after Cady and the others went inside the apartment.
From the apartment window, Cady saw the man exit the building and walk across North Avenue to Sawyer Street before turning into an alley. A Lincoln with a dark rag top exited the alley, and due to the proximity in time, Cady believed the shooter was in the Lincoln. Police were called to 3221 West North Avenue and Cady spoke to the officers. The officers then left after receiving a call. Cady and his friends also left the apartment and got into a friend's car to follow the police. At Division and Campbell, they saw several police cars and the unoccupied Lincoln with the doors open. Cady later saw Tolentino, without a mask, getting into a paddy wagon.
Officers Alftedo Roman and Joseph Annerino were working with another
officer on December 16, 2005. That night, around 11:40 p.m., they were
traveling in an unmarked car when they heard a message of a person
shot in the area of North and Kedzie. A second message
indicated the shooter may be "Chiquito", whom Officer
Roman knew from previous encounters. Officer Roman drove to Haddon and
Washtenaw, an area frequented by Tolentino and the Spanish Cobras.
Officer Roman believed Tolentino was a member of the Spanish Cobras.
The officers then spotted a blue Lincoln going west on Haddon, and
they pulled behind the car. Although they activated the lights and
siren of their unmarked car, the Lincoln did not stop. The Lincoln
eventually stopped in a vacant lot at 2509 West Division. Tolentino
got out of the car and started running. The officers chased Tolentino,
shouting "Stop, police." As he neared the end of the lot, Tolentino
threw a weapon to the ground which Officer Annerino retrieved. The
weapon was a .25-caliber semiautomatic pistol containing one live
round. Officer Annerino then resumed the chase.
Other units soon responded and Officer Junkovic, along with his partners Officers Hurlahy and Morales, joined the chase. When Officers Roman and Junkovic were 6 to 10 feet from Tolentino, they heard him yell, "I have a gun. I'll shoot you" a number of times. Officer Junkovic testified that Tolentino looked right at him when he shouted the statements. Officer Annerino stated that he also heard Tolentino's threats. As a precaution, Officer Junkovic ran on the street parallel to Tolentino so that there were parked cars between them. Officer Junkovic saw Tolentino reach into his waist and pull out a weapon. Tolentino raised the weapon and fired a shot in Officer Junkovic's direction. Officer Roman heard a gunshot and saw a flash. When Tolentino aimed his weapon at Officer Roman, the officer pulled out his .45-caliber service weapon and fired two shots in Tolentino's direction.
Tolentino continued running until he came to a gangway at 2506 West Haddon with a five- foot to six-foot tall gate. Officer Roman ordered Tolentino to get down, and when Tolentino raised his weapon towards him, Officer Roman fired four more shots. Tolentino then scaled the fence and fell onto the pavement on the other side. He crawled through the yard and Officer Roman lost sight of him. At this point, other officers had responded. Officer Rojas was on the other side of the fence and found Tolentino leaning against a tree or pole. Officer Rojas ordered Tolentino to stop, but Tolentino kept moving until he was out of the officer's sight. Officer Rojas and his partner got permission to go through the building to the backyard, where they found Tolentino under the porch. They ordered Tolentino to come out and when he eventually did, the officers performed an emergency take-down in which Tolentino was taken to the ground and handcuffed. The gun Tolentino used to fire at Officers Junkovic and Roman was not recovered.
Officer Mark Harvey recovered a cell phone and a bullet fragment near the front yard of 2502 West Haddon. A .45-automatic caliber cartridge case was retrieved at 1140 North Campbell, and a .45-caliber shell casing was recovered in the gangway near the front of 2506 West Haddon. Officer Paul Presnell recovered a fired cartridge case and a fired bullet at 3221 West North Avenue. He also observed a hole in the drywall of the stairwell. The parties stipulated that if called to testify, firearms examiner Jennifer Sher would state that she received a .25-caliber Beretta and one unfired bullet. She analyzed this evidence, along with the .25-caliber fired cartridge case recovered from 3221 West North Avenue. In her opinion, the cartridge case and fired bullet came from the .25-caliber weapon. A gunshot residue test (GSR) was performed on Tolentino. Based on the results of that test, Robert Berk, an expert in GSR examination, concluded that Tolentino was either in an environment where a weapon was fired, came into contact with something that had GSR on it, or had fired a weapon.
Detective Robert Cordaro met with Tolentino after his arrest. Tolentino was wearing a brown, hooded sweatshirt, black jacket with blue liner, blue jeans, and one brown boot. Detective Cordaro recovered a ski mask from the jacket pocket. He also photographed a tattoo of "Chiquito" on Tolentino's right leg. A medical technician later took a buccal swab from Tolentino which was sealed and inventoried. Swabs were also taken from the ski mask recovered from his pocket. DNA analyst Christina Caccamo received and performed DNA tests on the swabs. She concluded that the ski mask contained a mixture of the DNA profiles of at least three people, and one of the profiles matched Tolentino's to a reasonable degree of scientific certainty.
For the purpose of the armed habitual criminal charge, the State presented certified copies of Tolentino's conviction for an October 11, 2001, robbery (No. 01 CR 21944) and a May 31, 2005, conviction for delivery of a controlled substance (No. 05 CR 01056-01).
Raphael Polanco, Tolentino's cousin, testified for the defense. He stated that on December 16, 2005, he was driving his Cutlass Supreme on Division at Kedzie when some people threw a bottle and container of mashed potatoes at his car. He stated that Tolentino never drove his car.
Tolentino testified that on December 16, 2005, around 11:30 p.m., he was driving from his mother's house to drop off a friend. As he drove, an unmarked car followed him and started flashing its lights. Unsure whether it was a police car, Tolentino kept driving until he was behind a restaurant. He then jumped out of the car and started running. He knew the car was a police car because they yelled, "police, stop." Tolentino continued running, however, because he had a gun. He threw the gun down in front of the restaurant and, while running, tried to call for help on his cell phone. As Tolentino turned right on Campbell, the officers shot at him even though he was unarmed at the time. He testified that he never fired at anyone that evening.
Tolentino then ran to the gangway and jumped over the gate. When he landed on the other side, he dropped his cell phone. Tolentino stated he could not recall Officer Roman shooting at him in the gangway. He hid under a porch until four officers came and told him to put his hands up. When he came out from under the porch, Officer Roman and another officer grabbed him. Other officers soon arrived and one put his thumbs in Tolentino's eyes while another kicked him in the forehead. Tolentino testified that he had bruises on his head and nose, and his eyes were bleeding.
On cross-examination, Tolentino stated his nickname was "Chiquito" but he was not a Spanish Cobra. His friend, Rico, had given him the .25-caliber gun police recovered from the parking lot. Tolentino also stated that although he had worn the ski mask before, he did not wear it that night. He testified he was not in his cousin's white Cutlass on the night of December 16, 2005. In rebuttal, the State introduced a certified copy of defendant's March 30, 2000, conviction for possession of a controlled substance.
Following closing arguments, the trial court found Tolentino guilty of aggravated discharge of a firearm at Patrick Cady inside the 3221 West North Avenue building, attempted first degree murder of Officer Junkovic and that he personally discharged a firearm at Officer Junkovic, aggravated discharge of a firearm at Officer Junkovic, and armed habitual criminal. Tolentino filed a motion for judgment notwithstanding the verdict, or alternatively for a new trial, which the trial court denied. The trial court sentenced Tolentino to 28 years' imprisonment for attempted first degree murder, plus "an additional 20 years on that 28 years because you personally discharged a firearm with the intent to kill a police officer." The aggravated discharge of a firearm at Officer Junkovic merged. The court then sentenced Tolentino to 20-year ...