Court of Appeals of Illinois, First District, Second Division
Rule 23 Order filed December 28, 2012
Rule 23 Order withdrawn January 30, 2014
On appeal from defendant’s convictions for armed robbery and being an armed habitual criminal, the appellate court rejected defendant’s contention that his counsel was ineffective in failing to seek a severance of the charges and upheld his conviction for armed robbery; however, due to the decision in Aguilar holding the Class 4 version of aggravated unlawful use of a weapon statute unconstitutional, the State was unable to use defendant’s prior conviction for that offense as an element of the charge of being an armed habitual criminal and that conviction was vacated.
Appeal from the Circuit Court of Cook County, No. 10-CR-2886; the Hon. William Hooks, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Shawn O’Toole, all of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and Kathryn A. Schierl, Assistant State’s Attorneys, of counsel), for the People.
JUSTICE PIERCE delivered the judgment of the court, with opinion. Justices Neville and Mason concurred in the judgment and opinion.
¶ 1 Following a jury trial in the circuit court of Cook County, defendant Anthony Fields was convicted of armed robbery (720 ILCS 5/18-2(a)(2) (West 2008)) and being an armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2008)). The trial court imposed a 21-year sentence for armed robbery, which included a 15-year enhancement for the use of a firearm, and a concurrent, 10-year sentence on the conviction of being an armed habitual criminal. Defendant appealed, arguing: (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt of either charge; (2) the 15-year enhancement of his sentence for armed robbery is unconstitutional; and (3) he received ineffective assistance of counsel. For the following reasons, we affirm defendant's conviction for armed robbery and vacate his conviction for armed habitual criminal.
¶ 2 BACKGROUND
¶ 3 An explanation of the procedural posture of this case is important where the original order in this case was filed more than a year ago. In People v. Fields, 2012 IL App (1st) 110311-U, 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 and affirming on the remaining issues defendant raised. 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 order filed in this case.
¶ 4 The record on appeal discloses the following facts. The State charged defendant with armed robbery and being an armed habitual criminal. Prior to trial, defendant's counsel filed a motion to suppress a show-up identification by the victim, Felicia Rowell. Following a hearing, the circuit court denied the motion to suppress.
¶ 5 Defendant's counsel also filed a motion in limine to bar admission of his 2005 conviction for unlawful use of a weapon and his 2006 conviction for armed robbery as impeachment. Fields' counsel argued that the similarity of the prior convictions to the armed robbery charge rendered the evidence unfairly prejudicial. The record shows that the trial judge granted this motion, stating that while Fields' testimony could reopen the issue, the judge could not envision a fair trial if the prior convictions were ruled admissible. The trial judge also asked how Fields' counsel intended to handle the armed habitual criminal charge. Fields' counsel responded that the defense would agree with the State to stipulate to the fact that Fields had two qualifying prior convictions, without specifying the exact nature of those convictions.
¶ 6 At trial, Rowell testified that on December 24, 2009, at approximately 10:15 a.m., she went to the Happy Food convenient store at the corner of 115th Street and Princeton Avenue in Chicago. Rowell carried $185 in cash to complete her Christmas shopping. Rowell stated that, once inside the store, she saw the cashier behind the counter, while Fields and another man stood next to an ice cream freezer. Rowell looked at Fields and the other man, and she was unsure whether they were in line to check out. They stepped aside and Rowell got into the line to check out. Rowell further stated that, while in line, she looked at the cashier, while Fields and the other man stood one or two feet away from her, facing her.
¶ 7 Rowell purchased a pack of cigarettes, taking the $185 out of her pocket and returning the remainder to her top jacket pocket as she left the store. According to Rowell, as she turned north, she heard Fields say, "What up?" Looking at Fields over her right shoulder, Rowell heard Fields say, "Let me get that." Rowell testified that she then saw Fields holding a black gun at his side, pointed at her. Rowell then looked back at Fields' face. Rowell also testified that she removed her money from her jacket pocket with her right hand and Fields grabbed the money with his left hand.
¶ 8 Rowell further testified that she continued to look at Fields in the face, but there was a moment of awkward silence. According to Rowell, she said, "Dude, it's Christmas Eve. I've got kids." Rowell stated that Fields responded, "Remember my face. This [is] your lucky day. Get in your car." Moreover, Rowell stated that she did look at Fields' face noting he was a dark-skinned male, with hair on his face, wearing a black skull cap, a black jacket with a red "H" on it, denim jeans, and a black hoodie. She described Fields as approximately 5 feet 7 inches, but she said she just knew that he was taller than her own 5 feet 5 inches height. She also described Fields as chubby, weighing between 180 and 200 pounds. She described the other man as light-skinned and slender, taller than Fields and wearing a red jacket. Rowell entered her car from the passenger side and drove away. Rowell estimated the time from her entry to the store to this point was approximately five minutes.
¶ 9 Rowell arrived home approximately five minutes later. Rowell testified that she was hysterical. When Rowell walked through the door, her husband, children and brother were there. According to Rowell, her brother was on the telephone with their mother. Rowell announced that she had been robbed, took the telephone from her brother and told their mother she had been robbed. Rowell's mother advised her to report the offense to the police. Rowell went to a police station on 103rd Street, where she was referred to the Fifth District police station on 111th Street. Rowell provided a statement to police at the Fifth District station.
¶ 10 Chicago police officer Edgar Neal testified that he worked at the front desk at the Fifth District police station on December 24, 2009. After refreshing his recollection, Officer Neal stated that Rowell described Fields as a black male with a dark complexion and brown eyes, wearing a black skull cap and a black hoodie with a red "T" on it, 28 to 30 years old, 5 feet 6 inches tall, and weighing 190 to 200 pounds. Officer Neal could not recall whether the flash message mentioned Fields having facial hair. Officer ...