Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 10 CR 10373. The Honorable Jorge Luis Alonso, Judge presiding.
Although defendant waived his challenge to his sentence for unlawful use of a weapon by a felon by failing to file a motion to reconsider, his claim that the sentence was improper was considered on the ground that sentencing issues are matters affecting defendant's substantial rights and are excepted from the waiver doctrine, but defendant's challenge was rejected, since he was appropriately sentenced for a Class 2 felony pursuant to the decisions in Powell and Easley without any improper double enhancement based on his prior conviction for aggravated battery resulting in great bodily harm; furthermore, the prior aggravated battery conviction was an element of the weapons offense and the charging instrument did not have to inform defendant that a sentence enhancement was sought based on the prior conviction.
Michael J. Pelletier, Alan D. Goldberg, and Philip D. Payne, all of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Jon Walters, Assistant State's Attorneys, of counsel), for the People.
JUSTICE NEVILLE delivered the judgment of the court, with opinion. Presiding Justice Hyman and Justice Pucinski concurred in the judgment and opinion.
[¶1] Following a bench trial, the trial court found the defendant, Valentino Wilbourn, guilty of unlawful use of a weapon by a felon and possession of marijuana with intent to distribute. On appeal, Wilbourn seeks to challenge only the sentence on the weapons charge. Wilbourn argues that charging instrument did not adequately notify him of the State's intention to seek an enhanced sentence, and the court impermissibly used his prior conviction first as an element of the offense and second as grounds for enhancing his sentence. We find that our supreme court's decision in People v. Easley, 2014 IL 115581, 379 Ill.Dec. 829, 7 N.E.3d 667, resolves both issues adversely to Wilbourn's arguments. Therefore, we affirm the trial court's judgment.
[¶3] On April 30, 2010, Sergeant Martin Murphy and other police officers executed a search warrant on an apartment located on the south side of Chicago. When the officers entered the apartment, they saw a woman sitting at a kitchen table, a man just leaving the apartment, and Wilbourn coming out of a bathroom. The officers found 45 bags of marijuana on the kitchen table and a loaded gun hidden in the cushions of the sofa. After an officer reminded Wilbourn of his constitutional rights, Wilbourn told the officers that the gun and all
of the marijuana belonged to him. The officers arrested Wilbourn.
[¶4] Prosecutors charged Wilbourn with possession of more than 30 grams of marijuana with intent to distribute. See 720 ILCS 550/5(d) (West 2010). Because Wilbourn had a prior conviction from 2002 for aggravated battery resulting in great bodily harm, prosecutors also charged Wilbourn with unlawful ...