Court of Appeals of Illinois, First District, Fifth Division
Supplemental opinion upon denial of rehearing filed June 27, 2014
Appeal from the Circuit Court of Cook County. No. 11 CR 12507. Honorable Clayton J. Crane, Judge Presiding.
No impermissible double enhancement of defendant's sentence for unlawful use of a weapon by a felon occurred where defendant's prior conviction for unlawful use of a weapon was used to convict him of the current charge of unlawful use of a weapon and to elevate his current conviction to a Class 2 felony pursuant to section 24-1.1(e) of the Criminal Code, but the trial court was directed to correct the mittimus to strike the counts that were dismissed via nolle prosequi prior to trial; however, defendant's request to strike the word " use" from the mittimus was denied on the ground that " use" conformed to the language used in the statute defendant violated.
For APPELLANT: Michael J. Pelletier, Alan D. Goldberg, and Kristen E. Mueller, all of the State Appellate Defender's Office, of Chicago.
For APPELLEE: Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, Assistant State's Attorneys, of counsel).
JUSTICE PALMER delivered the judgment of the court, with opinion. Justice McBride concurred in the judgment and opinion. Presiding Justice Gordon dissented, with opinion. Presiding Justice Gordon also dissented upon denial of rehearing, with opinion.
[¶1] Following a jury trial, defendant Lovell Polk was convicted of the Class 2 offense of unlawful use or possession of a weapon (UUW) by a felon (720 ILCS 5/24-1.1 (a) (West 2010)) and he was sentenced to four years and six months in prison. On direct appeal to this court, defendant contends in his opening and supplemental briefs that (1) the sentence for his UUW by a felon conviction must be reduced from a Class 2 offense to a Class 3 offense as the State failed to notify him of its intent to seek an enhanced sentence; (2) he was subject to an improper double enhancement because the same prior felony conviction was used to prove an element of the UUW by a felon offense and to elevate it to a Class 2 felony; and (3) his mittimus must be corrected. For the reasons discussed below, we affirm defendant's conviction and sentence for the Class 2 offense of UUW by a felon, but order that the mittimus must be corrected to exclude reference to the two counts that were dismissed via nolle prosequi before jury selection.
[¶3] At trial, Chineetha Curtis testified that on July 25, 2011, she was working as a
security agent for the Chicago Transit Authority (CTA) at the Homan and Congress Blue Line Station in the city of Chicago. Curtis stated that on that date, defendant approached her and told her that he had fought with a man and the man had taken his earrings. When he asked whether she knew who had had been fighting earlier that day, Curtis responded that she did not know. Curtis testified that defendant then lifted his shirt, revealing a gun inside his waistband. Curtis testified that defendant stated, " I'm going to bust a cap in his a***." Curtis returned to her kiosk in the station.
[¶4] Curtis testified that as she approached her kiosk, two police officers were walking toward her kiosk. One of the officers walked toward defendant, who was standing in front of the station, and the other officer asked Curtis what was wrong. Curtis testified that she pointed at defendant and told the officer that he had a gun. The officer left and Curtis began to help a customer. Curtis testified that she then heard an officer yell " freeze" ; she turned and saw defendant twist around and run away from the officers.
[¶5] Chicago police officers James Norris and Michael Brosnan each testified that on July 25, 2011, they were in uniform and working special enforcement for the CTA at the Homan station. Brosnan testified that Curtis got his attention and told him that defendant had a gun in his waistband. Brosnan informed Norris of this and they then approached defendant. Brosnan testified that Norris put his hand on defendant's shoulder and asked defendant if he had anything on him that could hurt Norris. Brosnan testified that defendant then " spun around, reached into his pants pocket as he was crossing Homan Avenue, pulled out a silver automatic handgun and threw it to the ground." Brosnan was only five feet behind him at the time. Brosnan testified that they chased after defendant and he was apprehended about a block later.
[¶6] Similarly, Norris testified that as he moved closer to defendant perform a protective patdown, defendant moved around him and ran west down Homan Avenue. Norris also testified that he told defendant to drop the gun, and defendant reached into his right pocket as he ran and dropped a gun in the street; it looked like the gun came from his right pocket or right waistband. Norris was chasing after defendant and was only about two feet behind him when this occurred. Norris recovered the gun, which was a silver-plated .380-caliber automatic pistol and continued to pursue defendant. Norris testified that he subsequently placed the gun, which did not contain any ammunition, in inventory.
[¶7] In addition, Chicago police officer Hanrahan testified that he was driving an unmarked police car in the vicinity that day when Hanrahan observed defendant run across Homan Avenue with a uniformed police officer running after him. Hanrahan testified that he followed defendant in the police car until defendant stopped running due to fatigue. Defendant was arrested and taken to the station.
[¶8] Before resting its case, the State submitted an agreed stipulation to the jury that defendant had previously been convicted of a felony. The defense then rested without presenting any evidence. The jury found defendant guilty of UUW by a felon.
[¶9] At sentencing, the State argued that defendant had one prior conviction in 2006
for conspiracy to commit murder, for which he received a seven-year sentence. Defense counsel argued in mitigation that defendant was a good family man. In announcing defendant's sentence, the trial court stated that it had reviewed the presentence investigation and considered the presentation made by the defendant and " all statutory factors required of this Court for the sentencing." The trial court sentenced defendant to 4 1/2 years' imprisonment, with credit for time served.
[¶10] Defendant's mittimus set forth his sentence of four years, six months for the offense of " 720 5/24-1.1(a) FELON POSS/USE FIREARM PRIOR," and listed it as a Class 2 felony. The mittimus also reflected the credit for time served and provided that " counts 2 and 3 merge with count 1."
[¶11] Defendant filed a motion to reconsider and vacate the judgment, which the trial court denied. Defendant also filed a motion to reconsider his sentence on grounds that the sentence was excessive given his background and the nature of the offense, but the trial court denied the motion on June 20, 2012. Defendant filed a notice of appeal the same day.
[¶13] In his first argument on appeal, defendant asserts that pursuant to section 111-3(c) of the Code of Criminal Procedure of 1963 (725 ILCS 5/111-3(c) (West 2010)), the State was required to give notice in the charging instrument of its intent to seek an enhanced sentence, i.e., that it was charging him with a Class 2 felony. According to defendant, the failure to do so requires that his conviction be reduced to a Class 3 conviction. In response, the State maintains that because defendant was charged and convicted of UUW by a felon expressly premised on a prior forcible felony (conspiracy to commit murder), he could receive only one class of sentence -- a Class 2 -- and therefore a Class 3 sentence was unauthorized and the notice provision did not apply.
[¶14] As an initial matter, this court recognizes that there is a split of authority in the First District regarding this issue. See generally People v. Whalum, 2012 IL App (1st) 110959, 983 N.E.2d 78, 367 Ill.Dec. 924, pet. for leave to appeal pending, No. 115582 (filed Jan. 28, 2013); People v. Nowells, 2013 IL App (1st) 113209, 376 Ill.Dec. 866, 1 N.E.3d 578, pet. for leave to appeal pending, No. 116839 (filed Oct. 31, 2013); People v. Pryor, 2013 IL App (1st) 121792, 378 Ill.Dec. 128, 3 N.E.3d 408, pet. for leave to appeal pending, No. 117276 (filed Jan. 31, 2014). We further note that this issue is currently under review by our Supreme Court. People v. Easley, 2012 IL App (1st) 110023, 983 N.E.2d 69, 367 Ill.Dec. 915, appeal allowed, 985 N.E.2d 308, 368 Ill.Dec. 735 (Ill. Mar. 27, 2013).
[¶15] We also note that, in the present case, defendant concedes that he failed to preserve this issue for appellate review, but he argues that his claim of error is nevertheless reviewable because (1) his sentence is void and may be challenged at any time, (2) the error implicated his substantial rights and is thus subject to plain-error review, and/or (3) his counsel rendered ineffective assistance in failing to properly preserve the issue and defendant suffered prejudice as a result. " Where a defendant challenges his sentence as void, *** as defendant does here, we will review the sentencing issue even though it was not properly preserved for review because a void sentence can be corrected at any time." Nowells, 2013 IL App (1st) 113209, ¶ 18. Moreover, forfeited claims of sentencing error " may be reviewed for plain error," and the defendant has the burden of demonstrating " 'either that (1)
the evidence at the sentencing hearing was closely balanced, or (2) the error was so egregious as to deny the defendant a fair sentencing hearing.'" Id. (quoting People v. Hillier, 237 Ill.2d 539, 545, 931 N.E.2d 1184, 342 Ill.Dec. 1 (2010)). Under plain-error review, we start by reviewing defendant's claim to determine whether any error occurred. Id. ¶ 120.
[¶16] Additionally, this case requires that we interpret statutory language, which presents a question of law reviewed de novo. People v. Harris, 203 Ill.2d 111, 116, 784 N.E.2d 792, 271 Ill.Dec. 238 (2003). We are mindful that" [i]t is the purview of the legislature to determine what is considered criminal conduct, to assign penalties for that conduct, and to enact statutory provisions which enhance a criminal offense or enhance the applicable range of punishment for an offense. [Citation.] Although the trial court has discretion to impose a sentence, we review this issue de novo because it involves a question of law. [Citation.]" Nowells, 2013 IL App (1 st) 113209, ¶ 21.
[¶17] Turning to the statutory language involved in the case at bar, the UUW by a felon statute, section 24-1.1, sets forth the elements of the offense, along with the potential classifications and sentences:
" (a) It is unlawful for a person to knowingly possess on or about his person or on his land or in his own abode or fixed place of business any weapon prohibited under Section 24-1 of this Act or any firearm or any firearm ammunition if the person has been convicted of a felony under the laws of this State or any other jurisdiction. This Section shall not apply if the person has been granted relief by the Director of the Department of State Police under Section 10 of the Firearm Owners Identification Card Act
* * *
(e) Sentence. Violation of this Section by a person not confined in a penal institution shall be a Class 3 felony for which the person, *** shall be sentenced to no less than 2 years and no more than 10 years and any second or subsequent violation shall be a Class 2 felony for which the person shall be sentenced to a term of imprisonment of not less than 3 years and not more than 14 years. Violation of this Section by a person not confined in a penal institution who has been convicted of a forcible felony, a felony violation of Article 24 of this Code or of the Firearm Owners Identification Card Act, stalking or aggravated stalking, or a Class 2 or greater felony under the Illinois Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act is a Class 2 felony for which the person shall be sentenced to not less than 3 years and not more than 14 years ." (Emphasis added.) 720 ILCS 5/24-1.1(a), (e) (West 2010).
[¶18] Based on the above provision, in order to prove the offense of UUW by a felon the State must establish that a defendant " knowingly possessed a weapon or ammunition and that the defendant had previously been convicted of a felony." Nowells, 2013 IL App (1st) 113209, ¶ 22 (citing 720 ILCS 5/24-1.1 (a) (West 2010)). Our court has recognized that the legislature, as reflected in the plain language of section 24-1.1, intended to prohibit convicted felons from possessing dangerous weapons. Id. ¶ 22 (citing People v. Kelly, 347 Ill.App.3d 163, 167, 807 N.E.2d 512, 282 Ill.Dec. 888 (2004)). Of particular relevance in the present case is the provision that a " [v]iolation of this Section by a person not confined in a penal institution who has been convicted of a forcible felony *** is a Class 2 felony." 720 ILCS 5/24-1.1(e) (West 2010). A " forcible felony" includes,
among other crimes, " first degree murder, second degree murder, *** and any other felony which involves the use or threat of physical force or violence against any individual." 720 ILCS 5/2-8 (West 2010).
[¶19] In addition, section 111-3 of the Code outlines the information required when instituting criminal charges and for ...