Appeal from the Circuit Court of Cook County, Illinois No. 10 CR 11294 The Honorable Nicholas Ford, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Harris
PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Connors and Simon concurred in the judgment and opinion.
¶ 1 A jury convicted defendant, Damian Whalum, of unlawful use of a weapon by a felon. 720 ILCS 5/24-1.1(a),(e) (West 2010). The circuit court sentenced defendant to a ten-year prison term pursuant to the mandatory class X sentencing provision in section 5-4.5-95(b) of the Uniform Code of Corrections based on defendant's prior convictions in the state of Wisconsin. 730 ILCS 5/5-4.5-95 (b) (West 2010). Defendant first asks this court to review, under either People v. Sprinkle, 27 Ill. 2d 398 (1963), or under the second prong of the plain error doctrine, whether the circuit court improperly limited his counsel's cross-examination of the arresting officer. We decline to review the merits of defendant's argument under either the Sprinkle doctrine or the plain error doctrine because the circuit court properly limited defense counsel's cross-examination of the arresting officer. Defendant also raises several issues regarding his sentence. The parties agree that the matter has to be remanded for resentencing because the circuit court improperly sentenced defendant as a class X offender pursuant to section 5-4.5-95 (b) of the Uniform Code of Corrections. 730 ILCS 5/5-4.5-95 (b) (West 2010). The parties also agree that defendant's mittimus should be corrected to reflect the full number of days he spent in custody prior to sentencing. The parties, however, dispute the following issues: whether the circuit court erred in enhancing defendant's sentence from the class 3 range into the class 2 range and whether defendant's mittimus should be corrected to reflect that he was convicted of only one count of unlawful use of a weapon by a felon. Based on the resolution of these two sentencing issues, defendant's mittimus needs further correction, according to statute, to reflect the proper amount of mandatory supervised release defendant shall serve. We hold the circuit court erred when it sentenced defendant as a class X offender and when it sentenced defendant in the class 3 range for the offense of unlawful use of a weapon by a felon. We order the mittimus be corrected to reflect the following: the proper amount of presentence custody credit, the correct term of mandatory supervised release, and that defendant be sentenced to only one count of unlawful use of a weapon by a felon.
¶ 3 The circuit court sentenced defendant on February 25, 2011. Defendant timely filed his notice of appeal on March 23, 2011. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, §6; Ill. S. Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).
¶ 5 The State charged defendant with two counts of unlawful use of a weapon by a felon. Prior to trial, defendant filed a motion to quash his arrest and suppress evidence alleging that the State had no legal justification for stopping his vehicle. At the hearing on the motion, defendant called Officer Corey Pierce to testify. Officer Pierce testified that at approximately 12:35 p.m. on June 9, 2010, he was dressed in plain clothes when he stopped defendant for not wearing a seat belt. He viewed defendant not wearing a seat belt when the car he was driving was "traveling eastbound on 79th" while defendant was "going northbound from Damen." He estimated he was "maybe 20, 25 feet" away from defendant. After curbing defendant's vehicle, Officer Pierce observed defendant was not wearing a seat belt. Officer Pierce then conducted a field interview of defendant and asked him for his driver's licence, which defendant could not produce. Officer Pierce testified that "for officer's safety, my partner put the passenger out of the vehicle. And as I looked down, I saw the suspect ammunition on the rear driver's side floor." Officer Pierce clarified that defendant had a passenger in his vehicle who was also detained during the traffic stop. He estimated that he saw the bag of ammunition "five seconds after we took him out of the vehicle and detained him." After running the registration of the vehicle, it was determined that defendant did not own the vehicle.
¶ 6 On cross-examination, Officer Pierce testified that he was on routine patrol at the time of the incident. The ammunition recovered from the vehicle "was 28, 357 caliber rounds and 44, 40 caliber rounds." He also issued defendant a citation for not wearing a seat belt and for not being able to produce a valid driver's license. On re-direct-examination, Officer Pierce testified that it was later determined at the police station that defendant had a valid driver's license, but that he did not produce it on the scene. Officer Pierce could not recall if the vehicle defendant was driving had tinted windows. The circuit court denied defendant's motion.
¶ 7 At trial, Officer Pierce testified for the State. Officer Pierce testified he was in plain clothes as a passenger in an unmarked police*fn1 vehicle driven by his partner, Officer Bolton. They were assigned to the "Area 2 Saturation Division." Officer Pierce explained that "[w]e go around in high crime areas, all the five districts in that area for high crime, like for guns, narcotics, things of that nature." As during his pretrial testimony, Officer Pierce testified that they curbed defendant's vehicle after observing that he was not wearing a seat belt. He explained that defendant was in the driver's seat, while another passenger was in the front passenger side of the vehicle. Office Pierce conducted a field interview, where defendant failed to produce a driver's licence. After failing to produce a driver's licence, Office Pierce asked defendant and the passenger to exit the vehicle. When defendant stepped out of the vehicle , Officer Pierce "noticed some ammunition on the driver's side floor." The ammunition was in the middle of the floorboard, "right where his feet were." Officer Pierce recovered 28, 357 caliber bullets and 44, 40 caliber bullets. The 357 caliber bullets were boxed, but in a plastic bag while the 40 caliber bullets were loose in a plastic bag. Officer Pierce testified that once he recovered the ammunition, defendant "just blurted out 'I was going to sell them.' " Officer Pierce handcuffed defendant for officer safety. He testified that the driver's side floorboard was not messy, and the bag of ammunition was in "plain view."
¶ 8 On cross-examination, defense counsel asked Officer Pierce about the Saturation Unit. The following exchange occurred:
"MR. GOLDBERG [defendant's counsel]: What does saturation mean?
OFFICER PIERCE: You saturate the area. You go around the area, you know, looking for suspicious people, things of that nature; drug hot spots, you know.
Q. Would it be fair to say saturate means to take from dry and turn into welt [sic]?
A. I guess you could say that.
Q. And so, a dry situation that day was you saw an Oldsmobile being driven by a young black man, and he committed a serious violation for you to stop him?
A. Traffic violation, yes, sir. ***
Q. And that traffic violation was?
¶ 9 Defense counsel proceeded to cross-examine Officer Pierce about the facts of the traffic stop. Officer Pierce testified that he and his partner asked defendant and the other passenger in the vehicle to exit the vehicle. Officer Pierce handcuffed defendant for officer safety. Defense counsel proceeded to ask Officer Pierce the circumstances of the field interview he conducted. The following exchange then occurred between defense counsel, Officer Pierce, and the court:
"MR. GOLDBERG: My question is, was your first question about field interview or traffic citation?
OFFICER PIERCE: It was a field interview.
Q. So, you wanted to interview these two young black men driving the car, take them out, handcuff ...