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People v. Whalum

Court of Appeals of Illinois, First District, First Division

September 15, 2014

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DAMIAN WHALUM, Defendant-Appellant.

Appeal from the Circuit Court of Cook County, No. 10 CR 11294 Illinois Honorable Nicholas Ford, Judge Presiding.

PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Connors and Simon concurred in the judgment and opinion.

OPINION

PRESIDING HARRIS JUSTICE

¶ 1 This cause comes before us on remand from our supreme court to determine whether a different result is warranted in our December 24, 2012, decision in People v. Whalum, 2012 IL App (1st) 110959, in light of its March 20, 2014, decision in People v. Easley, 2014 IL 115581. People v. Whalum, 2014 IL 115582. We held that the State failed to give defendant notice pursuant to section 111-3(c) of the Code of Criminal Procedure of 1963 of its intent to seek an increase in the classification of defendant's conviction for unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a), (e) (West 2010)) from a Class 3 offense to a Class 2 offense. Whalum, 2012 IL App (1st) 110959, ¶ 37. Our supreme court in Easley held that notice to a defendant, also convicted of unlawful use of a weapon by a felon, albeit for a second time (720 ILCS 5/24-1.1(a) (West 2008)), did not have to be given because "section 111-3(c) applies only when the prior conviction is not an element of the offense." Easley, 2014 IL 115581, ¶ 19. Our supreme court explained that the defendant's prior conviction as charged in the indictment, i.e., his first conviction for unlawful use of a weapon by a felon, was a required element of the offense with only one resulting possible classification of felony. Id.; see 720 ILCS 5/24-1.1(e) (West 2008) (providing that "second or subsequent violation" of the unlawful use of a weapon by a felon statute results in "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").

¶ 2 In this case, a jury convicted defendant, Damian Whalum, of unlawful use of a weapon by a felon. 720 ILCS 5/24-1.1(a), (e) (West 2010). The underlying felony, as put forth in the State's charging instrument, was defendant's felony conviction for "delivery of a controlled substance under the laws of the State of Wisconsin." After carefully considering Easley, we hold that under the unique facts of this case, a different result is not warranted. Section 24-1.1(e) of the Criminal Code of 1961 lists the classification and possible sentences for unlawful use of a weapon by a felon violations. 720 ILCS 5/24-1.1(e) (West 2010). Defendant's Wisconsin felony conviction for delivery of a controlled substance is not listed as an elevated classification under section 24-1.1(e). 720 ILCS 5/24-1.1(e) (West 2010). Therefore, the State needed to provide defendant here, unlike the defendant in Easley, with notice pursuant to section 111-3(c) of the Code of Criminal Procedure in order to enhance the classification of the offense by using another one of defendant's felony convictions not stated in the charging instrument. 725 ILCS 5/111-3(c) (West 2010). The State, however, failed to do so. Therefore, on remand, defendant's conviction should be classified as a Class 3 felony.

¶ 3 BACKGROUND

¶ 4 We will only address the facts relevant to our supreme court's holding in Easley. A more in-depth discussion of the facts of defendant's arrest and trial can be found in our prior opinion and need not be repeated here. Whalum, 2012 IL App (1st) 110959, ¶ ¶4-15.

¶ 5 The State charged defendant by information with two counts of unlawful use of a weapon by a felon. Under count I, the State charged defendant with committing the unlawful use of a weapon by a felon as follows:

"He, knowingly possessed on or about his person firearm ammunition, to wit: .357 caliber rounds, after having been previously convicted of the felony offense of delivery of a controlled substance, under case number 03CF000296, under the laws of the State of Wisconsin."

Count II is identical to count I, except the firearm ammunition listed was ".40 caliber rounds." [1]

¶ 6 After trial, the jury returned a verdict finding defendant guilty of unlawful use of a weapon by a felon. The circuit court denied defendant's motion for a new trial.

¶ 7 At sentencing, the State asserted that due to defendant's background, he qualified for mandatory Class X sentencing of between 6 and 60 years' imprisonment. The State provided certified copies of conviction for the following five offenses, all from Wisconsin: battery by a prisoner, bail jumping, "substantial battery intend bodily harm, " "vehicle operator flee/elude, " and felony delivery of a controlled substance. The State also informed the court that defendant had been convicted in Wisconsin of the following three misdemeanor offenses: resisting or obstructing a police officer, battery, and disorderly conduct. After considering the evidence in aggravation and mitigation, the presentence investigative report, the arguments of counsel, and the evidence at trial, the circuit court found that because defendant had two prior Class 2 felonies, it had to sentence him as a Class X offender. The court sentenced defendant to 10 years in prison with 2 years of mandatory supervised release (MSR). The circuit court calculated that defendant should receive 174 days of credit for time served. Although the mittimus initially showed defendant's sentence to include a two-year term of MSR upon his release from prison, the circuit court issued a corrected mittimus showing defendant was to serve a three-year term of MSR.

¶ 8 Defendant raised one trial issue and several issues regarding his sentence on appeal. Whalum, 2012 IL App (1st) 110959, ¶ 1. The State disputed the trial issue and two of defendant's sentencing issues, but agreed that the matter had to be remanded for resentencing because the circuit court improperly sentenced defendant as a Class X offender and that defendant's mittimus needed correction to reflect the full number of days spent in custody prior to sentencing. Id. We entered judgment in the State's favor regarding the trial issue but in defendant's favor regarding the disputed sentencing issues. Id. Relevant here, we held that the State failed to provide defendant notice according to section 111-3(c) of the Code of Criminal Procedure (725 ILCS 5/111-3(c) (West 2010)) of its intention to ...


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