Court of Appeals of Illinois, First District, First Division
As Corrected March 11, 2014.
Appeal from the Circuit Court of Cook County. No. 12 CR 5876 (01). Honorable Nicholas Ford, Judge, Presiding.
Affirmed in part, reversed and vacated in part, and remanded with directions.
On appeal from defendant's convictions for possession of a controlled substance and four counts of unlawful use of a weapon by a felon, the trial court's initial acquittal on two counts of unlawful use of a weapon by a felon based on its mistaken belief that the State had to prove defendant's parole status at trial exposed defendant to double jeopardy where that finding was rescinded at sentencing when the State did present proof that defendant was on parole; therefore, these two convictions based on defendant's status as a parolee were vacated and the cause was remanded for resentencing on the remaining two convictions for the unenhanced unlawful use of a weapon offense, which were properly based on the possession of a firearm loaded with ammunition.
FOR APPELLANT(s): Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, Michael Gomez, Assistant Appellate Defender, Office of the State Appellate Defender, First Judicial District, Chicago IL.
FOR APPELLEE(s): Anita Alvarez, State's Attorney, County of Cook, Alan J. Spellberg, John E. Nowak, Katerina Alexopoulos, Assistant State's Attorneys, Of Counsel, Chicago IL.
JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Justice Connors, P.J., and Justice Delort concurred in the judgment and opinion.
[¶1] A judge found the defendant, Antwan Howard, guilty of one count of possession of a controlled substance under the Illinois Controlled Substances Act (Act) (720 ILCS 570/401(c)(2)(West 2010)), and four counts of unlawful use of a weapon by a felon (UUW) under the Criminal Code of 1961 (Code) (720 ILCS 5/24-1.1(a)(West 2010)). He was sentenced to four concurrent terms of ten years' imprisonment and three years' mandatory supervised release. He now appeals, contending ( 1) the court exposed him to double jeopardy by finding him not guilty on two counts of UUW, but then rescinding his acquittal of these charges during sentencing and entering a finding of guilty; (2) his sentences on the UUW offenses were the result of an improper double enhancement, where the same felony conviction was used both to prove an underlying element of UUW and to elevate his sentencing range to Class X; (3) two of his four convictions for UUW must be vacated because they violate the one-act, one-crime doctrine; (4) one of his two UUW convictions must be vacated because the Code does not allow for multiple convictions for a single act of possessing a gun containing ammunition; and (5) certain fees and fines imposed by the trial court must be vacated.
[¶2] The defendant was charged by indictment with, inter alia, one count of possession of a controlled substance with intent to deliver under section 401(c)(2) of the Act, and four counts of UUW, a Class 3 offense, under Code section 24-1.1(a). The UUW charges (counts IV through VII) were all premised upon the same underlying felony conviction for failure to report an accident. Counts IV and VI were based upon the defendant's possession of a firearm, and counts V and VII were based upon his possession of the ammunition inside that firearm. Counts IV and V also contained notice that, pursuant to section 24-1.1(e) of the Code, the State would seek to have the defendant sentenced as a Class 2 offender on the basis that, at the time of the offense, he was on parole or mandatory supervised release. 720 ILCS 5/24-1.1 (e)(West 2010).
[¶3] The evidence at trial established that on the night of January 13, 2012, Officer John Wrigley was conducting surveillance when ...