Court of Appeals of Illinois, First District, Second Division
Modified upon denial of rehearing February 4, 2014.
[Copyrighted Material Omitted]
Appeal from the Circuit Court of Cook County. No. 08 CR 4591. Honorable Sharon Sullivan, Judge Presiding.
Affirmed in part and vacated in part; mittimus corrected.
The 15-year statutory enhancement of defendant's armed robbery sentences was vacated as unconstitutional under Hauschild and the enhancement was not revived by Public Act 95-688, one conviction for unlawful use of a weapon by a felon was vacated pursuant to the one-act, one-crime, rule and the cause was remanded for resentencing as though the enhancement never existed.
For PLAINTIFF-APPELLEE: Anita Alvarez, State's Attorney, County of Cook, Chicago, Illinois; Alan J. Spellberg, Annette Collins, Kathryn A. Schierl, ASA.
For DEFENDANT-APPELLANT: Michael J. Pelletier, State Appellate Defender, Chicago, Illinois, Alan D. Goldberg, Deputy Defender, Pamela Rubeo, Assistant Appellate Defender.
JUSTICE PIERCE delivered the judgment of the court, with opinion. Justices Neville and Mason concurred in the judgment and opinion.
[¶1] Following a bench trial in the circuit court of Cook County, the trial judge found defendant Onaffia McFadden guilty of three armed robberies while armed with a firearm (720 ILCS 5/18-2(a)(2) (West 2008)) and two counts of unlawful possession or use of a weapon (UUW) by a felon (720 ILCS 5/24-1.1(a) (West 2008)). The trial judge sentenced defendant to 29 years in prison on each of the armed robbery convictions, including a 15-year enhancement for carrying a firearm pursuant to section 18-2(b) of the Criminal Code of 1961 (Code) (720 ILCS 5/18-2(b) (West 2008)). The trial judge also sentenced defendant to 10 years in prison on each of the convictions for UUW by a felon. All of the sentences were ordered to be served concurrently.
[¶2] On appeal, defendant contends that: (1) the 15-year statutory enhancement of his armed robbery sentences is unconstitutional; (2) his sentence is otherwise excessive; (3) one of his convictions for UUW by a felon violates the one-act, one-crime rule; and (4) the mittimus must be corrected to remove an erroneous conviction for aggravated unlawful use of a weapon (AUUW). For the foregoing reasons, we affirm defendant's convictions and sentences for armed robbery, vacate defendant's convictions for UUW by a felon, and correct the mittimus.
[¶4] An explanation of the procedural posture of this case is important where the original opinion in this case was filed more than a year ago. In People v. McFadden, 2012 IL App (1st) 102939, which we are withdrawing contemporaneous with the filing of this opinion, Justice Steele authored an opinion vacating the 15-year enhanced portion of defendant's armed robbery sentences, vacating one of his convictions for UUW by a felon, correcting the mittimus, and remanding the case for resentencing. Justice Steele retired shortly after filing that opinion. The State then filed a timely petition for rehearing on January 11, 2013. Defendant filed an answer to the State's petition for rehearing on December 12, 2013, and the State filed a reply on December 27, 2013. In separate orders filed contemporaneously, we deny the State's petition for rehearing and withdraw the previous opinion filed in this case.
[¶5] The record on appeal discloses the following facts. On March 5, 2008, defendant was indicted in case number 08 CR 4591 for the armed robbery of Ronald Pitts and Jasmine Stephens, as well as for AUUW and UUW. Defendant was also charged in case number 08 CR 4592 for the armed robbery of Henry Muldrow, as well as AUUW and UUW. In case number 08 CR 3647, defendant was indicted for the armed robbery of Iris Talley, in addition to AUUW and UUW.
[¶6] Prior to trial, and over defense counsel's objection, the State successfully moved to join the Muldrow and Talley cases, arguing that they involved " essentially one crime spree." The State later moved for joinder of all three cases, again over the defense's objection, arguing that they were part of the same comprehensive transaction. The trial court granted the motion, on the grounds that the offenses were similar and occurred relatively close in time and location, the same weapon was
alleged to have been involved in all three cases, and the proceeds from the crimes were allegedly found at the same time in a vehicle with defendant.
[¶7] The case proceeded to a bench trial. Pitts testified that shortly after midnight on January 28, 2008, he and Stephens were standing at a bus stop at 7900 South Princeton Avenue when two African-American males approached them. Pitts stated that one of the men, whom Pitts identified in court as defendant, held a revolver to his neck and took his telephone, wallet, and money. Pitts further testified that defendant also took Stephens's telephone. After defendant left, Pitts flagged down a police car, and he and Stephens reported the offense to the police.
[¶8] Moreover, Pitts testified that he was contacted by the police the next day and identified defendant in a lineup, as well as his stolen telephone, wallet and money. At trial, Pitts identified defendant in a photograph of the lineup. He also identified the gun used during the robbery in a photograph shown as an exhibit at trial.
[¶9] Stephens did not testify at trial.
[¶10] Muldrow testified that in the late evening of January 28, 2008, he was looking for his dog in an alley near his home at 6840 South Wabash Avenue when two African-American males approached him. Muldrow stated that one of the men, whom he later identified as Defendant, had his hand in his right pocket. Muldrow further testified that defendant pulled a gun out of that pocket and pet the barrel to Muldrow's chest. According to Muldrow, defendant asked for money and Muldrow responded that he did not think he had any. Muldrow stated that defendant searched him and, upon finding $4 or $5 dollars, said " I could have shot you for that." In ...