Appeal from Circuit Court of McLean County No. 09CF617 Honorable Robert L. Freitag, Judge Presiding.
The opinion of the court was delivered by: Justice Pope
JUSTICE POPE delivered the judgment of the court, with opinion. Presiding Justice Turner and Justice Steigmann concurred in the judgment and opinion.
¶ 1 In May 2010, a jury convicted defendant, Nicholas Carlos Brooks, of violating an order of protection (720 ILCS 5/12-30(a)(1) (West 2008)). In August 2010, the trial court sentenced defendant to a five-year extended-term sentence. Defendant appeals, arguing (1) the court improperly sentenced him to an extended-term sentence where he was not convicted of a felony, and (2) the State failed to prove him guilty of violating an order of protection beyond a reasonable doubt. We affirm.
¶ 3 In August 2009, the State charged defendant by indictment with "violation of order of protection--subsequent offense felony" (720 ILCS 5/12-30(a)(1) (West 2008)). The indictment alleged defendant intentionally violated an order of protection after being served with notice of its contents. Due to defendant's conviction for unlawful restraint in McLean County case No. 04-CF-485, the charge in the present case was a Class 4 felony. See 720 ILCS 5/12-30(d) (West 2008)). Defendant pleaded not guilty and requested a jury trial. Evidence introduced during defendant's trial showed the following.
¶ 4 McLean County deputy sheriff Chad Witkowski testified he spoke with Vanessa Middlebrooks in July 2009 regarding her contact with defendant. Witkowski knew Middlebrooks had an active order of protection against defendant. The order of protection required defendant to remain at least 500 feet away from Middlebrooks's residence and her children. Defendant was served with the order of protection on June 1, 2009, and it expired on May 21, 2011. Witkowski testified Middlebrooks told him defendant came to her residence on July 12, 2009, while the order of protection was in effect. Witkowski further testified Middlebrooks moved to dismiss the order of protection in September 2009. The State then offered the order of protection and Middlebrooks's petition to dismiss the order of protection into evidence as People's exhibit Nos. 2 and 3 respectively. Defense counsel did not cross-examine Witkowski.
¶ 5 Middlebrooks testified defendant was the father of her two children. In May 2009, Middlebrooks obtained an order of protection against defendant, which was valid until May 2011. In July 2009, Middlebrooks spoke with police and told them defendant had recently come to her residence to see their children. Though she could not remember if defendant actually came inside the house, Middlebrooks stated she and defendant spoke to each other. Middlebrooks further stated she filed a petition to dismiss the order of protection against defendant in September 2009, and the motion was granted later in the month.
¶ 6 On cross-examination, Middlebrooks testified she did not mind defendant coming to her residence and visiting their children. Middlebrooks testified she did not contact the police regarding defendant's alleged violation of the order of protection; rather, the police contacted her and asked her if she had any recent contact with defendant. In September 2009, Middlebrooks voluntarily petitioned to dismiss the order of protection.
¶ 7 Outside the presence of the jury, the trial court took judicial notice of defendant's conviction for unlawful restraint in case No. 04-CF-485 without objection. Both parties then rested.
¶ 8 The jury found defendant guilty of violating an order of protection. In June 2010, defendant filed a motion for a new trial. In August 2010, the trial court denied defendant's motion for a new trial and sentenced him to a five-year extended-term sentence. Defendant's presentence investigation report showed he had multiple felony convictions in the past 10 years. In September 2010, defendant filed a pro se motion for reduction of his sentence. Defendant's appointed counsel subsequently filed an amended motion for reduction of defendant's sentence, arguing the sentence was excessive and the court failed to consider relevant mitigating factors. In October 2010, the court denied defendant's motion to reconsider his sentence.
¶ 9 This appeal followed.
¶ 11 On appeal, defendant argues (1) his extended-term sentence must be vacated because his conviction for violating an order of protection did not constitute a felony, and (2) the State failed to prove him guilty of "violation of an order of protection-subsequent offense felony" ...