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The People of the State of Illinois v. Xavier Edgecombe

June 30, 2011

THE PEOPLE OF THE STATE OF ILLINOIS, RESPONDENT-APPELLEE,
v.
XAVIER EDGECOMBE, PETITIONER-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 01 CR 27398 Honorable Douglas J. Simpson, Judge Presiding

The opinion of the court was delivered by: Justice Robert E. Gordon

JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion.

Presiding Justice Garcia and Justice McBride concurred in the judgment and opinion.

OPINION

On January 21, 2005, defendant was found guilty by a jury of the first-degree murder of Jerome Anderson, of the attempted first-degree murder of Antwon Walker, and of the aggravated battery with a firearm of Antwon Walker. The jury also found that, during the commission of the first-degree murder, defendant personally discharged a firearm that proximately caused the death of Jerome Anderson.

On this post-conviction appeal, both parties ask us to remand for resentencing and to decide the mandatory minimum cumulative sentence which defendant faces on resentencing. Defendant argues that the mandatory minimum cumulative sentence is 51 years. The minimum sentence for the first degree murder is 45 years, which includes a 25-year enhancement for personally discharging a firearm. 730 ILCS 5/5-8-1(a)(1)(a) (West 2000) (20-year minimum for first-degree murder); 730 ILCS 5/5-8-1 (a)(1)(d)(iii) (West 2000) (25-year enhancement). The minimum sentence for attempted murder is six years. 720 ILCS 5/8-4(c)(1) (West 2000) (same as the sentence for a Class X felony); 730 ILCS 5/5-4.5-25 (West 2008) (the minimum sentence for a Class X felony is 6 years). With the two sentences running consecutively, defendant argues that the minimum cumulative sentence is 45 years plus 6 years, or 51 years.

The State argues that the minimum cumulative sentence is 76 years, which includes 45 years for the first degree murder and 31 years for the attempted murder. The State calculates the attempted murder sentence at 31 years, because it includes a 25-year enhancement for personally discharging a firearm during the offense. 720 ILCS 5/8-4(c)(1)(D) (West 2000) (25-year enhancement for personally discharging a firearm during attempted murder). Thus the issue that the parties ask this court to decide is whether the enhancement applies to the attempted murder charge.

Although a special verdict form was submitted to the jury allowing it to find that defendant personally discharged a firearm during the first-degree murder, the State did not request such a similar verdict form for the attempted murder charge. The State also did not ask at the original sentencing for imposition of the enhancement for the attempted murder, and the State did not raise the issue on direct appeal or in its original briefs on this post-conviction appeal.

For the reasons stated below, we remand for resentencing on one count of first degree murder and one count of attempted murder. We also hold that, while a 25-year enhancement for personally discharging a firearm applies to the first degree murder conviction, it does not apply to the attempted murder conviction.

BACKGROUND

Since we already described the evidence at trial in our prior order on direct appeal, and since the facts established at trial do not affect our decision today, we incorporate by reference our prior order. People v. Edgecombe, No. 1-06-2571 (2008) (unpublished order under Supreme Court Rule 23).

At the conclusion of defendant's trial, the trial court held a jury instruction conference off the record. On the record, the trial court observed that the State had "submitted a packet" of proposed instructions, and the defense had no objections to "the existing jury instructions." The instructions included a special verdict form which asked the jury to find whether "the fact does exist that, during the commission of the offense, of First Degree Murder the defendant personally discharged a firearm which proximately caused the death of Jerome Anderson." However, the instructions did not include a similar form with respect to the attempted murder of Antwon Walker.

As already noted above, defendant was found guilty on January 21, 2005, by a jury of the first-degree murder of Jerome Anderson, of the attempted first-degree murder of Antwon Walker, and of the aggravated battery with a firearm of Antwon Walker. The jury also found that, during the commission of the first-degree murder, defendant personally discharged a firearm that proximately caused the death of Jerome Anderson.

At the sentencing on February 16, 2005, the prosecutor brought to the court's attention the fact that defendant was subject to a 25-year enhancement for the first-degree murder, but he made no such statement with respect to the attempted murder. The trial court orally stated that, on counts 1, 2 and 3, which all charged the first-degree murder of Jerome Anderson, defendant was sentenced to 55 years of imprisonment. On counts 10 and 11, which both concerned the shooting of Antwon Walker, the trial court sentenced defendant to 25 years of imprisonment. The trial court also orally stated that the 25-year sentence was ...

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