Court of Appeals of Illinois, First District, Fifth Division
Appeal from the Circuit Court of Cook County. No. 11 CR 13152. Honorable Charles P. Burns, Judge Presiding.
Where defendant was charged with unlawful use of a weapon by a felon based on the knowing possession of firearm ammunition after having been previously convicted of the felony offense of aggravated unlawful use of a weapon, the notice provision of section 111-3(c) of the Criminal Code, which requires the State to notify defendant that it sought to enhance his sentence because of his prior conviction, did not apply, since the State was not seeking to enhance his sentence but, rather, the prior conviction was an element of the charged offense that the State proved at trial by a stipulation; therefore, defendant was properly convicted of the Class 2 felony of unlawful use of a weapon by a felon and sentenced as a Class X offender.
For appellants: John Doe, of Chicago.
For appellees: Smith and Smith, of Chicago (Joseph Brown, of counsel).
For Plaintiff-Appellee: Anita Alvarez, State's Attorney; Alan J. Spellberg, Assistant State's Attorney, Of Counsel.
For Defendants-Appellees: Michael J. Pelletier, State Appellate Defender; Alan D. Goldberg, Deputy Defender; Arianne Stein, Assistant Appellate Defender.
JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justice Palmer concurred in the judgment and opinion. Presiding Justice Gordon concurred in part and dissented in part, with opinion.
[¶1] Following a jury trial, defendant Carlos Soto was convicted of unlawful use of a weapon by a felon. On appeal, defendant contends that: (1) his conviction must be reversed because the State failed to prove an element of the offense, that he was convicted of a prior felony, where the prior conviction on which the State relied, aggravated unlawful use of a weapon, was based on a statute that has since been declared unconstitutional by our supreme court in People v. Aguilar, 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321; and (2) he was improperly convicted of unlawful use of a weapon by a felon as a Class 2 felony offense instead of a Class 3 offense because the State only charged defendant with unlawful use of a weapon by a felon as a the Class 3 offense and failed to give notice that it intended to charge defendant with the enhanced Class 2 offense. We affirm.
[¶2] Defendant was charged with two counts of unlawful use or possession of a weapon (UUW) by a felon pursuant to section 24-1.1(a) of the Criminal Code of 1961 (Code) (720 ILCS 5/24-1.1(a) (West 2010)) " in that he, knowingly possessed in his own abode any firearm ammunition, after having been previously convicted of the felony offense of aggravated unlawful use of a weapon, under case number 08 CR 19898." Count II of the information further specified that the State sought to sentence defendant as a Class 2 offender pursuant to section 24-1.1(e) of the Code (720 ILCS 5/24-1.1(e) (West 2010)) " in that he was on parole or mandatory supervised release at the time of the offense." The State only proceeded to trial on count I.
[¶3] The information in case number 08 CR 19898 provides that defendant was charged with aggravated unlawful use of a weapon:
" [I]n that he, knowingly carried on or about his person, a firearm, * * * and the firearm possessed was uncased, loaded, and immediately accessible * * * and he had been previously convicted of a felony, to wit: manufacture/delivery of controlled substance under case number 05 CR 20515 ***."
[¶4] The evidence presented at trial by the State essentially showed that at approximately 12:13 p.m. on August 4, 2011, Officers Derrick Patterson and John Sanders, who both testified at trial, went to defendant's residence in response to a call. Patterson and Sanders followed defendant's mother into the house and then went to defendant's room, where defendant was sitting on his bed. Sanders entered the room and observed a box of ammunition sitting on top of a pile of shoe boxes close to defendant's bed. Sanders picked up the box, felt it was heavy, opened the box, and saw bullets inside the box. Sanders placed defendant in custody, then searched the room and recovered an empty magazine clip underneath defendant's bed. Sanders also testified that defendant told the officers that the bullets and magazine clip were defendant's but that defendant's gun was stolen.
[¶5] The parties stipulated that defendant had a qualifying prior felony conviction for the limited purpose of proving an element of the offense of UUW by a felon.
[¶6] Defendant presented the testimony of Andre McCullom and defendant's mother. McCullom testified that he found the box of ammunition and magazine clip in his house the day before defendant was arrested and went to show them to Demar Ferris. McCullom and Ferris then went to defendant's house to lift weights even though defendant was not home. McCullom brought the box of ammunition and magazine clip to defendant's house. McCullom and Ferris went into defendant's bedroom to lift weights and McCullom set the box of ammunition on top of the shoebox next to defendant's bed. McCullom did not recall what he did with the magazine clip. When McCullom left defendant's house, he forgot to take the box of ammunition and empty clip with him. Defendant's ...