Appeal from the Circuit Court of Cook County. 09 CR 15613 The Honorable Thomas M. Davy, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Quinn
PRESIDING JUSTICE QUINN delivered the judgment of the court, with opinion.
Justices Cunningham and Harris concurred in the judgment and opinion.
¶ 1 Following a bench trial, defendant Wilson Powell was convicted of unlawful use of a weapon (UUW) by a felon after having been convicted previously of burglary and was sentenced to 41/2 years in prison. On appeal, defendant contends the trial court impermissibly counted his prior burglary conviction as both an element of the offense and a sentence enhancement, resulting in an impermissible "double enhancement" of sentence.*fn1 We affirm.
¶ 3 Defendant and a co-defendant were arrested after a police officer observed each of them in possession of a sawed-off shotgun, and they were charged by information with multiple weapons violations. Count I of the information charged defendant with UUW by a felon pursuant to section 24-1.1(a) of the Criminal Code of 1961 (Code) (720 ILCS 5/24-1.1(a) (West 2008)) in that "he knowingly possessed on or about his person, a firearm, to wit: a shotgun, after having been previously convicted of the felony offense of burglary." The trial evidence included the State's submission to the court of a certified conviction of defendant for burglary. The State also presented testimony that a police officer observed defendant in possession of a shotgun having a barrel length of 131/2 inches. The trial court found defendant guilty on three counts, including count I which charged that defendant was in knowing possession of a shotgun after having been convicted previously of burglary.
¶ 4 At the subsequent sentencing hearing, the trial court stated: "The Defendant has been convicted and I will impose sentence on Count 1, the unlawful use of weapon. That is a Class 2 with a 3 to 14 year sentence range." The court sentenced defendant only on that count, imposing a prison term of 41/2 years. Defendant's motion to reconsider sentence, in which he argued only that the sentence was "excessive in view of the Defendant's background and the nature of his participation in the defense," was denied.
¶ 6 On appeal, defendant contends that the trial court erred in
sentencing him as a Class 2
felon when, after using defendant's prior burglary
conviction to upgrade his UUW conviction from a misdemeanor*fn2
to a felony, the court impermissibly reused the same prior
burglary conviction to further enhance his sentence. The State asserts
that defendant has forfeited his claim where his motion to reconsider
sentence did not mention the issue he now raises for the first time.
Defendant replies that the sentence imposed was void and may be
challenged at any time and, alternatively, asks us to consider his
claim under the first prong of the plain error rule.
¶ 7 Where a defendant challenges his sentence as void, we will review the sentencing issue even though it was not properly preserved for review because a void sentence can be corrected at any time. People v. Arna, 168 Ill. 2d 107, 113 (1995). A sentencing issue is forfeited unless the defendant both objects to the error at the sentencing hearing and raises the objection in a post-sentencing motion. People v. Freeman, 404 Ill. App. 3d 978, 994 (2010) (citing People v. Hillier, 237 Ill. 2d 539, 544 (2010)). Nevertheless, forfeited claims related to sentencing issues may be reviewed for plain error. Hillier, 237 Ill. 2d at 545. The plain-error rule allows a reviewing court to consider trial errors not properly preserved in a criminal case when (1) the evidence is closely balanced or (2) the error is so fundamental and of such magnitude that the accused was denied his right to a fair trial. People v. Harvey, 211 Ill. 2d 368, 387 (2004). Before we consider application of the plain-error doctrine, however, we must determine whether the trial court committed error. People v. Staple, 402 Ill. App. 3d 1098, 1105 (2010).
¶ 8 A single factor cannot be used both as an element of an offense and as a basis for imposing a sentence harsher than might otherwise have been imposed. People v. Phelps, 211 Ill. 2d 1, 11-12 (2004). Such dual use of a single factor is often referred to as a "double enhancement." Id. at 12. However, an exception to the prohibition against double enhancement occurs where the legislature clearly intends to enhance the penalty based upon some aspect of the crime and that intention is clearly expressed. Id. (citing People v. Rissley, 165 Ill. 2d 364, 390 (1995)). To determine whether the legislature intended such an enhancement, we look to the statute itself as the best indication of the legislature's intent. Rissley, 165 Ill. 2d at 390-91. As the issue is one of statutory construction, the standard of review is de novo. Phelps, 211 Ill. 2d at 12.
¶ 9 The record confirms that defendant was sentenced as a Class 2 offender because of his prior conviction for burglary, a forcible felony. The relevant portion of section 24-1.1(a) states:
"(a) It is unlawful for a person to knowingly possess on or about his person or on his land or in his own abode or fixed place of business any weapon prohibited under Section 24-1 of this Act or any firearm or any firearm ammunition if the person has been convicted of a felony under the laws ...