Appeal from the Circuit Court of Cook County No. 09 CR 17970 Honorable John J. Moran, Judge Presiding.
The opinion of the court was delivered by: Justice Sterba
JUSTICE STERBA delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Pucinski concurred in the judgment and opinion.
¶ 1 Defendant Cornell Brisco was charged by information with four counts of aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1) (West 2008)) and two counts of unlawful use of a weapon by a felon (720 ILCS5/24-1.1(a) (West 2008)). Following a bench trial, defendant was convicted on all counts and sentenced to 11 years in prison on the first count of aggravated unlawful use of a weapon (AUUW). On appeal, defendant contends that the State failed to prove him guilty of AUUW beyond a reasonable doubt where the statute under which he was charged had been amended at the time the crime was committed and where defendant fell under the invitee exception to the amended statute. Alternatively, defendant contends that the trial judge was not a neutral arbiter where the judge referenced defendant's eligibility for a Class X sentence in response to defendant's questions. Defendant also contends he received ineffective assistance of counsel where his attorney failed to bring pretrial motions to quash arrest and suppress evidence and was denied his right to counsel of his choice when the trial court required his chosen attorney for posttrial proceedings to become familiar with the case within two weeks as a condition of approving the motion for substitution. Next, defendant contends the trial court's imposition of an 11-year sentence was excessive in light of the character of defendant's prior offenses and his attempts at rehabilitation. Defendant also contends the statute for AUUW is unconstitutional under the second amendment. Finally, defendant contends that the trial court erred in imposing a three-year term of mandatory supervised release (MSR) attaching to Class X felonies when defendant was found guilty of a Class 2 offense, which attaches only a two-year term of MSR. For the reasons that follow, we affirm the judgment of the trial court, but vacate the sentence and remand for new posttrial proceedings.
¶ 3 This case arises out of events occurring on September 22, 2009, when defendant was arrested in the basement apartment of 1545 North Lorel Avenue in Chicago, Illinois. Defendant was charged with four counts of AUUW and two counts of unlawful use of a weapon by a felon. Specifically, count I of the information charged defendant with AUUW, alleging defendant: "knowingly carried on or about his person, a firearm, at a time when he was not on his own land or in his own abode or fixed place of business and the firearm possessed was uncased, loaded, and immediately accessible at the time of offense, and he had been previously convicted of a felony."
¶ 4 In November 2009, a conference pursuant to Illinois Supreme Court Rule 402, (Ill. S. Ct. R. 402 (eff. July 1, 1997)) was held, and defendant was offered a seven year sentence in exchange for a guilty plea. At a hearing held several months later, defendant inquired through counsel why he was eligible for Class X sentencing. The trial court responded that defendant was Class X because of his background, which included prior Class 2 felonies. The court recounted defendant's 2002 conviction for harassing a juror or witness, his 2004 conviction for delivery of a controlled substance, and also referred to a charge of possession of a controlled substance. At that point, the State interjected, saying "Judge, I don't have this as a Class X." The trial court responded that it was basing its recollection on what was indicated at the Rule 402 conference, but then checked the charging instrument. There, it found that because the State had not used the 2007 possession of a controlled substance conviction to enhance the current charge, but instead used the 2002 harassment conviction, defendant could not be subject to Class X sentencing.
¶ 5 After the case was passed to allow the parties to re-enter a conference, defendant was again offered seven years, this time under Class 2 sentencing which ranges from a minimum of 3 to a maximum of 14 years. The trial court cautioned defendant that if he chose not to accept this offer, there was a risk the State would cure the "deficiency" in the charging document, resulting in Class X sentencing. Defendant rejected the offer of seven years, whereupon the State sought leave to amend the charging instruments to comport with the preliminary hearing transcript, which indicated defendant was convicted of possession of a controlled substance. The court granted the State's motion to amend over defendant's objection.
¶ 6 The State's evidence at trial established that on September 22, 2009, at around midnight, Chicago police officer Vince Stinar and his partner were driving in an unmarked vehicle in the area of 1545 North Lorel Avenue when they saw two men in the street near the mouth of an alley. One man was on a bicycle with his hands in the air, while another man, later identified as defendant, stood five feet away, facing the man on the bike.
¶ 7 Officer Stinar testified at trial that while he was driving towards the men's location, defendant looked in the direction of the officer's vehicle and ran into a side entrance of an immediately adjacent building. As Officer Stinar pursued defendant into the building, he noticed a large object in defendant's hands. Once inside the building's first-floor apartment, Officer Stinar saw defendant drop a rifle while running through the building and out the door. Officer Stinar recovered the rifle and placed it in the trunk of the police vehicle, while his partner observed defendant return to the building and proceed to the basement. After back-up units arrived to assist, Officer Stinar entered the basement and found defendant hiding behind a stack of boxes and placed him under arrest.
¶ 8 Defendant testified that on the evening of September 22, 2009, he was sleeping in his friend Gregory's basement apartment at 1545 North Lorel Avenue. According to defendant, he had known Gregory for several years, though he did not know his last name. Defendant testified he first saw the police when they woke him out of his sleep, handcuffed him, and dragged him out of the apartment. Defendant denied having a rifle at any time during the night of his arrest.
¶ 9 The court found defendant guilty on all counts and continued the matter for further proceedings. One month after trial, on June 2, 2010, when the case was first up for post-trial motions and sentencing, counsel Irving Federman requested leave to enter an appearance for defendant for the purpose of post-trial motions. Federman requested time to supplement the pending motion for a new trial filed by defendant's court-appointed attorney and to review the transcript. The court immediately denied the motion, but then held a discussion off the record. Back on the record, the court revealed the results of a scheduling conference with Federman, stating that Federman was scheduled for surgery on June 21, and the court would be retiring effective July 1. Therefore, the court offered Federman the opportunity to appear if he could be ready by June 15, but noted the impossibility of obtaining a trial transcript by that date. Federman ultimately asked for leave to withdraw his appearance and the case was continued for the following day.
¶ 10 The next day, the court denied defendant's motion for a new trial and heard from defendant at the sentencing hearing. Defendant stated he had received a certificate in janitor and correction maintenance during his prior incarceration. Arguing further in mitigation, defendant pointed out he had not fathered any children and had several extended-family members visiting him regularly. The trial court imposed a sentence of 11 years with a 3-year term of MSR. Defendant filed a motion to reconsider the sentence, which the trial court denied. Defendant timely filed this appeal.
¶ 12 A. Guilt Beyond Reasonable Doubt
¶ 13 Defendant first contends that he was charged and convicted on counts I and II under an earlier version of the AUUW statute that had been amended by the time of his offense. As this issue was not raised either at trial or in a posttrial motion, we review for plain error. See People v. McLaurin, 235 Ill. 2d 478, 485 (2009). This doctrine allows a reviewing court to consider otherwise unpreserved issues on appeal if the evidence is closely balanced or the error so seriously affects the integrity of the judicial process that it denies the defendant his right to a fair trial. People v. Santiago, 409 Ill. App. 3d 927, 930-31 (2011). Defendant argues this error affected his substantial rights, namely, the prohibition on convicting a defendant for a crime that does not exist. See People v. Wasson, 175 Ill. App. 3d 851, 854 (1988). Before turning to the merits of this contention, we must first determine whether an error occurred.
¶ 14 Where the sufficiency of a charging instrument is attacked for the first time on appeal, we must review the indictment or information to ascertain if it apprised the defendant of the offense charged with sufficient specificity to: (1) allow preparation of his defense; and (2) allow pleading a resulting conviction or acquittal as a bar to future prosecution. People v. DiLorenzo, 169 Ill. 2d 318, 322 (1996); see also People v. Gutierrez, 402 Ill. App. 3d 866, 890 (2010). "Thus, the question is whether, in light of the facts of record, the indictment was so imprecise as to prejudice defendant's ability to prepare a defense." People v. Phillips, 215 Ill. 2d 554, 562 (2005).
¶ 15 Here, counts I and II of the information charged defendant under unamended section 24-1.6(a)(1) of the Criminal Code of 1961, defining the offense of AUUW and providing, in relevant part, that a person commits the offense of AUUW when he or she knowingly:
"(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode or fixed place of business any pistol, revolver, stun gun or taser or other firearm[.]" 720 ILCS 5/24-1.6(a)(1) (West 2008).
The amended statute, which went into effect on August 25, 2009, one month before the crime was committed, mirrors the first portion of the original statute but adds the phrase "or on the land or in the legal dwelling of another person as an invitee with that person's permission" to the exception clause. 720 ILCS 5/24-1.6(a)(1) (West 2010).
¶ 16 It is readily apparent that counts I and II of the information omit any mention of defendant's status, or lack thereof, as an invitee, which is a necessary element of the offense of AUUW after August 25, 2009. While elements missing from one count of a multiple-count indictment may be supplied by other counts (People v. Morris, 135 Ill. 2d 540, 544 (1990)), no other counts of the information properly allege this element. Instead, counts III and IV, also charging AUUW, allege defendant knowingly possessed a firearm "at a time when he was not on his own land, or in his own abode or fixed place of business and when he was not an invitee thereon for the purpose of display of such weapon or the lawful commerce in weapons." (Emphasis added.) The element of being an invitee on the land of another is distinct from the element of being an invitee on one's own land, abode, or fixed place of business for the specific purpose of displaying a weapon or engaging in weapons commerce, which was set forth in counts III and IV.
¶ 17 Although this omission in counts I and II clearly rendered the information imprecise, defendant cannot show it prejudiced his ability to prepare a defense. Indeed, defendant makes no attempt to show prejudice, instead arguing that such a showing is unnecessary because the offense with which he was charged did not exist. However, the case defendant cites for this proposition, People v. Tellez-Valencia, 188 Ill. 2d 523, 527 (1999), is inapposite. There, the statute under which the defendants were charged and convicted was held unconstitutional while their appeals were pending. Id. at 524. Accordingly, the offense was void ab initio and the indictment contained a fatal, substantive defect, which hindered preparation of the defense. See id. at 526-27; see also Wasson, 175 Ill. App. 3d at 854-55 (where the defendant was "forced to answer to crimes for which he could not have been lawfully convicted" he could not adequately prepare a defense).
¶ 18 Here, in contrast, the offense of AUUW was in existence before, during and after the time defendant committed the crime, but in a somewhat different form. Defendant has failed to show how the indictment's failure to negate an exception contained in the amendment hindered his ability to mount an effective defense. Specifically, because defendant testified he never had a rifle the night he was arrested, he was not prejudiced by a failure to gather evidence countering any argument by the State that he did not possess the rifle as an invitee on the land of another. See People v. Davis, 82 Ill. 2d 534, 539 (1980) (the defendant was not prejudiced by indictment's misidentification of the person whom he made threats against, as his defense was that he never made threats); People v. Gudgel, 183 Ill. App. 3d 881, 884 (1989) (where indictment misidentified from whom the defendant received notice to leave premises, the defendant was not prejudiced because his defense was that he was never told to leave by anyone).
¶ 19 People v. Grant, 57 Ill. 2d 264, 269 (1974), is also instructive. There, the defendant, charged with unlawful use of a weapon, challenged the complaint's failure to allege that at the time he had the weapon, he was not in his own abode, a necessary element of the crime. Id. The reviewing court did not find the defendant suffered prejudice from this omission because the defendant's testimony belied his contention that he was not aware the State had to prove he was not in his own abode. Id. The defendant testified he resided ...