Court of Appeals of Illinois, First District, Fourth Division
Rule 23 Order filed September 26, 2013.
Rule 23 Order withdrawn November 4, 2013.
The Class 2 sentence of 54 months in prison imposed on defendant following his conviction for unlawful use of a weapon by a felon was upheld over defendant’s contention that the State failed to give him proper notice of the potential sentence, since defendant failed to preserve the issue for review and the plain error doctrine did not apply where the Class 2 sentence was the only possible sentence classification defendant could have received after being charged with unlawful use of a weapon by a felon premised on his prior Class 2 felony drug conviction.
Appeal from the Circuit Court of Cook County, No. 11-CR-8471; the Hon. James B. Linn, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Adrienne N. River, all of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg and John E. Nowak, Assistant State's Attorneys, of counsel), for the People.
Panel JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Presiding Justice Howse and Justice Lavin concurred in the judgment and opinion.
FITZGERALD SMITH, JUSTICE.
¶ 1 Following a bench trial, defendant Curtis Nowells was convicted of unlawful use of a weapon by a felon (UUW by a felon). The trial court sentenced defendant to a Class 2 sentence of 54 months in prison. Defendant appeals, contending that he was improperly sentenced to a Class 2 sentence where the State allegedly failed to give him proper notice of his potential sentence. Defendant asks that we vacate his sentence and remand this cause for a new sentencing hearing. For the following reasons, we affirm.
¶ 2 I. BACKGROUND
¶ 3 Defendant was charged with two counts of UUW by a felon and four counts of aggravated unlawful use of a weapon. Count I for UUW by a felon charged a Class 3 offense in that defendant "knowingly possessed on or about his person any firearm, after having been previously convicted of the felony offense of delivery of a controlled substance, under case number 02CR-15772." Count II was identical except that it alleged he possessed firearm ammunition.
¶ 4 Prior to trial, defendant filed a motion to quash his arrest and suppress evidence, which the trial court denied. This motion is not at issue in the case at bar. At trial, the parties and the court agreed to incorporate the testimony from the hearing on the motion to quash the arrest and suppress evidence as evidence at the bench trial. Both the hearing on the motion to suppress and the trial occurred on September 13, 2011.
¶ 5 The State presented evidence that, on May 15, 2011, Chicago police officer Vega and two other police officers received a radio call about an alleged aggravated assault involving a black Chevrolet Impala vehicle with female occupants and three black male occupants. Officer Vega and her partners arrived at 5410 South Prairie and saw defendant, the only occupant of the vehicle, sitting in the passenger seat of a black Chevrolet Impala. As officers approached the car they observed the butt end of a handgun sticking out of a bag on the backseat.
¶ 6 The officers detained defendant and recovered the weapon, a semiautomatic handgun. Officer Vega testified that the gun was loaded with 10 bullets in the magazine and 1 bullet in the gun's chamber. Officer Vega testified that defendant was advised of his Miranda rights and was then transported to the police station. Officer Vega testified that, at the police station, defendant told her he had gotten the gun from his girlfriend, who had gotten it from her brother.
¶ 7 At the close of the State's evidence, the State offered into evidence a certified copy of defendant's conviction in case No. 02 CR 15772, showing that defendant was convicted on April 21, 2003, of the Class 2 felony offense of possession of a controlled substance with intent to deliver less than one gram in violation of section 401(d) of the Illinois Controlled Substances Act (720 ILCS 570/401(d) (West 2002)). In so doing, the assistant State's Attorney referred to the conviction by stating:
"[ASSISTANT STATE'S ATTORNEY] Q: I have no further live testimony. I would like to offer into evidence People's Exhibit 1, which is a certified copy of conviction for defendant Curtis Nowells for case number 02 CR 15772 showing the defendant was convicted on April 21st of 2003 for the offense of possession of a controlled substance with intent to deliver less than 1 gram, Class 2 felony."
¶ 8 Jalisa Graham, defendant's girlfriend, testified on defendant's behalf that she and a friend were with defendant on May 15, 2011. She and her friend were upstairs in a nearby building and defendant was downstairs in the vehicle when the police arrived. She watched as police pulled defendant from the car in which he was sitting. She testified that she saw the police recover a gun from a bag in the car.
¶ 9 Defendant testified on his own behalf. Defendant denied having had a gun in the car and said he knew nothing about the gun found in the car. He denied having told the police that he had a gun. He explained that the Chevrolet Impala belonged to his girlfriend and he was just waiting in the car for her to run inside ...