Court of Appeals of Illinois, First District, Fifth Division
Appeal from the Circuit Court of Cook County. No. 11 CR 3619 Honorable Stanley J. Sacks, Judge Presiding.
Justice Taylor concurred in the judgment and opinion.
GORDON, PRESIDING JUSTICE.
¶ 1 Defendant Anthony Pryor was convicted of one count of unlawful use or possession of a weapon (UUW) by a felon and sentenced to five years in prison. On this direct appeal, defendant raises claims that challenge only his sentence. Defendant claims: (1) that his UUW conviction was improperly enhanced from a Class 3 to a Class 2 offense where the State's charging instrument failed to provide the notice required by the Code of Criminal Procedure of 1963 (the Act) (725 ILCS 5/111-3(c) (West 2010)) when the State was seeking an enhanced classification of the offense; and (2) that defendant was subjected to an improper double jeopardy enhancement because the same prior felony conviction was used both to prove an element of the offense and to elevate the class of offense from a Class 3 to a Class 2 felony.
¶ 2 Since the second claim presents a constitutional issue and since we must always resolve a case on a nonconstitutional issue when possible, we must consider the statutory issue first. In re E.H., 224 Ill.2d 172, 178 (2006) ("cases should be decided on nonconstitutional issues wherever possible, reaching constitutional issues only as a last resort").
¶ 3 In support of his statutory claim, defendant relies on two opinions recently issued by the First District which invalidated Class 2 convictions for UUW when the State failed to comply with the notice requirement in section 111-3(c) (725 ILCS 5/111-3(c) (West 2010)): People v. Easley, 2012 IL App (1st) 110023; and People v. Whalum, 2012 IL App (1st) 110959. The State asks us to find that Easley and Whalum were wrongly decided and cites in support People v. Nowells, 2013 IL App (1st) 113209, which is readily distinguishable for reasons we discuss below.
¶ 4 The Illinois Supreme Court granted a petition for leave to appeal in March 2013 in the Easley case, which is one of the cases relied on by defendant. Thus, we will have a definitive answer shortly by our supreme court on the question that we are called upon to answer today. Unless and until directed otherwise by our supreme court, we decline the State's request to conclude that our own recent precedent was wrongly decided. Thus, as we have done before in two prior cases from this district, we vacate defendant's sentence and remand for resentencing as a Class 3 felony.
¶ 5 BACKGROUND
¶ 6 Since there is no factual issue before us and no issue concerning defendant's conviction, we set forth only the few relevant facts, which are the facts concerning the charging instrument and those concerning his sentencing.
¶ 7 Defendant was charged by information with two counts of UUW by a felon and with four counts of aggravated UUW. Counts 1 and 2, which were the two counts of UUW by a felon, were for possession of a firearm and firearm ammunition, respectively. Both counts were based on defendant's "having been previously convicted of the felony offense of unlawful use of weapon, under case number 07 CR 18901."
¶ 8 Defendant was convicted of count 1 which stated:
"Anthony Pryor committed the offense of unlawful use or possession of a weapon by a felon in that he knowingly possessed on or about his person any firearm, to wit, handgun, after having been previously convicted of the felony offense of unlawful use of a weapon, under case number 07 CR 18901, under the laws of the State of Illinois, in violation of Chapter 720, Act 5, Section 24-1.1(a) of the Illinois Compiled Statutes 1992 as amended ."
The count did not state whether it was charging a class 2 or class 3 felony, and it did not state that the prosecutor was seeking an enhanced sentence.
¶ 9 The count, as written, appears to state that defendant's prior conviction was a violation of "Chapter 720, Act 5, Section 24-1.1(a)." The count states that defendant was "previously convicted of the felony offense of unlawful use of a weapon, under case number 07 CR 18901, under the laws of the State of Illinois, in violation of Chapter 720, Act 5, Section 24-1.1(a) of the Illinois Compiled Statutes 1992 as amended." However, according to defendant's presentence report, defendant's prior conviction was a violation of section 24-1, not section 24-1.1.
¶ 10 During trial, the State's evidence established that defendant possessed a gun on the night of February 7, 2011, and no issues are raised on appeal concerning the sufficiency of the State's evidence.
¶ 11 Before the State rested, the prosecutor stated, and the defense counsel agreed, that there was "a stipulation by and between the parties that the defendant has a prior felony conviction under case number 07 CR 18901." The stipulation did not state what the prior felony conviction was for, and the State did not introduce a certified copy of the conviction. The appellate record does not contain a certified copy of the conviction.
¶ 12 Although the stipulation did not describe the prior offense, the subsequent presentence report indicated that "Case # 07 CR 1891901" concerned a violation of "Statute 720-5/24-1(a)(7)(ii)." 720 ILCS 5/24-1(a)(7)(ii) (West 2010) (prohibiting the possession of a short-barreled shotgun).
¶ 13 Following a bench trial, defendant was found guilty on January 3, 2012, of count 1, quoted above. The trial court did not enter any findings on the remaining counts, and it sentenced defendant to a Class 2 sentence of five years in prison.
¶ 14 At sentencing on May 29, 2012, the following discussion about the correct class of sentence occurred:
"THE COURT: State, do you believe – It's a Class Two, we know that, what's the range on this kind of charge?
PROSECUTOR: Judge, it's the State's position it's 3 to 14 years.
THE COURT: [Defense counsel], do you agree or disagree with the range?
DEFNSE COUNSEL: It's 3 to 7 years.
THE COURT: It's not 3 to 7. I think it's at least 3 to 10 but we'll see. Will somebody get me the file on Pryor, please, the one that's ...