Appeal from the Circuit Court of Du Page County No. 11-CF-218 Honorable Blanche Hill Fawell, Judge, Presiding.
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices Schostok and Hudson concurred in the judgment and opinion.
¶ 1 Defendant, Frank J. Westmoreland, Jr., appeals his conviction of armed violence (720 ILCS 5/33A-2(a) (West 2010)) in connection with the January 17, 2011, beating of a child with a belt. He contends that the evidence was insufficient to support his armed violence conviction because the belt was not a category III dangerous weapon under section 33A-1(c)(3) of the Criminal Code of 1961 (the Code) (720 ILCS 5/33A-1(c)(3) (West 2010)). He also contends that a misdemeanor that was enhanced to a felony for sentencing purposes was improperly used as the predicate felony for the armed violence conviction and that his counsel was ineffective for failing to impeach the victim's mother with a time card showing that she was not at work on the day of the offense. We agree that, under the circumstances of this case, the belt was not a category III dangerous weapon. Accordingly, we reverse the armed violence conviction without addressing whether a misdemeanor that was enhanced to a felony can serve as the predicate felony for that offense. However, we hold that counsel was not ineffective. Thus, we remand for sentencing on a merged conviction of aggravated battery of a child (720 ILCS 5/12-4.3(a-5) (West 2010)) and otherwise affirm.
¶ 2 I. BACKGROUND
¶ 3 On February 24, 2011, defendant was indicted on multiple counts, including armed violence and multiple counts of aggravated battery of a child. The armed violence count alleged that defendant, while committing domestic battery, beat a household member, E.R., with a belt, causing bodily harm. The belt was alleged to be a category III dangerous weapon under section 33A-1(c)(3). The charge further alleged that defendant had previously been convicted of aggravated battery of a child, which would enhance the domestic battery alleged in the indictment from a misdemeanor to a Class 4 felony. 720 ILCS 5/12-3.2(b) (West 2010). Defendant had actually pleaded guilty to a reduced charge of aggravated battery, but that too would serve to enhance the domestic battery to a Class 4 felony. Id. On July 19, 2011, the trial court conducted a bench trial.
¶ 4 Evidence at trial showed that, on January 31, 2011, officers responded to a call reporting that a child, E.R., was being whipped or beaten in an apartment. When officers arrived, E.R.'s sister, S.R., urged E.R. to come out of the apartment. E.R. indicated that he had been hit with a belt by defendant. E.R. went to the hospital to be treated, and defendant, who lived at the apartment and babysat E.R., was arrested. Physicians who treated E.R. testified about his injuries, his treatment, and statements he made to them about being hit with a belt.
¶ 5 E.R. testified that, on one day, defendant hit him hard four times with a belt and he went to the hospital. E.R. also testified about another day when he was home, his sister did not have school, and his mother was at work. He said that, on that day, defendant hit him really hard three or more times with a belt. S.R. testified that she did not have school that day because it was Martin Luther King, Jr., Day (January 17, 2011). She said that, while her mother was at work, she saw defendant hit E.R. a lot of times with a belt. E.R.'s mother, L.R., also testified that S.R. did not have school that day. L.R. said that she was at work that day. A studded belt was found at the apartment, hanging inside of a bedroom closet. A letter defendant wrote to his aunt was admitted into evidence. That letter stated in part: "Sents [sic] when was it illegal to give a child a whipping with a belt?" The parties stipulated that defendant had previously been convicted of aggravated battery.
¶ 6 At the end of the State's case, defendant argued that the State failed to prove him guilty of armed violence beyond a reasonable doubt because a belt was not a category III dangerous weapon under section 33A-1(c)(3) of the Code. He did not argue that a misdemeanor domestic battery that has been enhanced to a felony for sentencing purposes could not be "any felony" under section 33A-2(a) of the Code (720 ILCS 5/33A-2(a) (West 2010)).
¶ 7 Defendant testified that, on January 31, 2011, E.R. had been provoking the family dog and defendant told E.R. to quit hurting the dog. Defendant said that E.R. laughed at him and that defendant took his belt off, grabbed E.R.'s arm, and hit him four or five times. However, he denied using the belt to hit E.R. Defendant said that he also made E.R. stand in a corner. He then left the apartment to get S.R. from the school bus stop. Defendant denied striking E.R. on Martin Luther King, Jr., Day and testified that he, the children, and their mother were all home together on that day.
¶ 8 As to the January 17 incident, the trial court found defendant guilty of armed violence and aggravated battery of a child, merging the latter conviction. Defendant was sentenced to seven years' imprisonment for the armed violence conviction.
¶ 9 Defendant moved for a new trial, alleging ineffective assistance of counsel based on his counsel's failure to impeach L.R. with a time card from her place of employment showing that she was not at work on Martin Luther King, Jr., Day. Defendant's counsel admitted that he received the time card in discovery before trial and that his failure to use it to impeach L.R. was an oversight. The court denied the motion, finding that, even if L.R. was not at work on Martin Luther King, Jr., Day, all of the witnesses agreed that she was not present in the apartment. The court added that impeachment on the point would not have affected its ruling. Defendant timely appealed.
¶ 10 II. ANALYSIS
¶ 11 A. Use of a Belt as a Category III ...