Court of Appeals of Illinois, First District, Sixth Division
Appeal from the Circuit Court of Cook County. No. 09 CR 13639. Honorable Mary Margaret Brosnahan, Judge Presiding.
Affirmed as modified.
Defendant's convictions on six counts of armed robbery with a firearm were upheld on appeal, since the error that occurred when the instructions referred to armed robbery while armed with a dangerous weapon, rather than a firearm, was harmless, and the trial court's rejection of an alleged plea agreement during the trial was not plain error; however, defendant was improperly sentenced to an extended-term Class X sentence for armed robbery, because the trial court mistakenly believed defendant had previously been convicted of the Class X offense of aggravated kidnapping, and, therefore, his sentence was amended to the maximum possible nonextended term pursuant to Supreme Court Rule 615(b)(4), and although defendant's prior convictions for aggravated unlawful use of a weapon may now be void due to Aguilar, the trial court lacked jurisdiction to consider the sentences in those cases, especially when those sentences did not provide a basis for any enhancement or extended-term sentences in the instant case.
Michael J. Pelletier and Adrienne N. River, both of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Mary P. Needham, and Sari London, Assistant State's Attorneys, of counsel), for the People.
PRESIDING JUSTICE ROCHFORD delivered the judgment of the court, with opinion. Justices Hall and Reyes concurred in the judgment and the opinion.
[¶1] Following a jury trial, defendant, Emmanuel Ware, was found guilty of six counts of armed robbery with a firearm and sentenced to six concurrent prison terms of 50 years, including a 15-year firearm enhancement and 5-year extended term on each count. On appeal, defendant argues the trial court improperly instructed the jury on the offense of armed robbery with a dangerous weapon where he was charged with armed robbery with a firearm. He also maintains the trial court abused its discretion when it refused to consider a plea agreement as untimely. Defendant further asserts he must be resentenced to a nonextended term because the trial court incorrectly believed he had a previous Class X conviction. Finally, defendant argues we must remand for a new sentencing hearing as his criminal background, which was presented to the trial court, included prior convictions for aggravated unlawful use of a weapon (AUUW). We affirm, but vacate the extended
term and modify defendant's concurrent sentences.
[¶2] Defendant and his codefendant Tyrone Johnson, who is not a party to this appeal, were charged, in relevant part, with six counts of armed robbery. All six counts alleged defendant and codefendant knowingly took property from six different victims " by the use of force or by threatening the imminent use of force and they carried on or about their persons or were otherwise armed with a firearm, in violation of Chapter 720 Act 5 Section 18-2(a)(2) of the Illinois Compiled Statutes 1992 as amended."
[¶3] On the trial date before the trial began, the trial court asked the attorneys whether plea negotiations were taking place and the status of those negotiations. Defense counsel informed the court that defendant's mother was present and asked if defendant could speak with her. Defense counsel stated: " Toward that end I don't know what will happen." In response, the trial court recessed its proceedings. When proceedings resumed, the trial court stated: " I take it there is obviously no agreement between the parties ***. In other words, was he offered anything less than what he would face if he was convicted?" Defense counsel responded: " No he was not." Thereafter, during the trial, after the State had presented evidence, the assistant State's Attorney, with defense counsel present, stated: " Before we bring the jury out, [defense] counsel has approached me. His client wants to plead to 21 years." The trial court responded: " I think that's completely off the table and we've already heard witnesses, so I'm not going to go along with that agreement. If you want to work and negotiate something different but, I'm not going to go along with that." Defense counsel did not make any objection or statement at that time. The record reflects that after this colloquy, a recess was taken before the trial resumed.
[¶4] At trial, the evidence established that on July 10, 2009, defendant and his codefendant were armed with guns when they entered a busy hair salon located at 3855 West Ogden Avenue in Chicago and took money and other personal items from several customers of the salon. The evidence showed defendant held a gun to the head and then the back of Deondre Bush and ordered all persons present in the shop to get down on the floor and to give defendant and codefendant their belongings. Because defendant does not contest the sufficiency of the evidence to sustain his convictions, we will not discuss the evidence in detail.
[¶5] At the close of the trial, the trial court orally instructed the jury that defendant was charged with six counts of armed robbery and the State had the burden of proving the charges beyond a reasonable doubt. The trial court instructed the jury as to the definition of armed robbery: " A person commits the offense of armed robbery when he, while carrying on or about his person or while otherwise armed with a dangerous weapon, knowingly takes property from the person or presence of another by the use of force or by threatening the imminent use of force." (Emphasis added.) The jury also received this instruction in writing. Defendant did not object to the oral and written instructions defining armed robbery.
[¶6] The trial court also read an instruction for each victim as to the elements that the State had to prove to sustain each of the armed robbery charges against defendant. As part of those instructions, the trial court informed the jury as to each victim, the State had the burden to prove " [t]hat defendant, or one for whose conduct he is legally responsible, carried on or about his person a firearm or was otherwise
armed with a firearm at the time of the taking." (Emphasis added.) The corresponding written jury instructions, as to the elements of armed robbery for each of the six victims, stated defendant was armed with a " dangerous weapon," instead of a " firearm." Defendant did not object, at any time, to the written instructions which were tendered to the jury.
[¶7] The trial court, orally and in writing, instructed the jury as to the definition of a firearm for purposes of armed robbery. A gun admitted as evidence during the trial was sent to the jury room with other exhibits.
[¶8] Following deliberations, the jury found defendant guilty of six counts of armed robbery.
[¶9] After denying defendant's motion for a new trial, the trial court held a sentencing hearing. At the sentencing hearing, the State presented defendant's criminal history which included two prior convictions for AUUW, and aggravated kidnaping with a firearm. Illinois Department of Corrections (IDOC) records demonstrate defendant was convicted of the Class 2 offense of kidnaping, not the Class X offense of aggravated kidnaping. Defendant was on parole when he committed the six armed robberies at issue.
[¶10] During the sentencing hearing, the State presented the testimony of the arresting officers in the kidnaping case, who described the circumstances of that incident. Defendant, who was armed with a gun, and two other individuals, who were also armed with guns, forced the victim out of ...