Court of Appeals of Illinois, First District, First Division
Appeal from the Circuit Court of Cook County, Illinois. No. 10 CR 11294. Honorable Nicholas Ford, Judge Presiding.
Defendant's conviction for unlawful use of a weapon by a felon was upheld, but his sentence for a Class 2 felony based on his prior Wisconsin conviction for delivery of a controlled sentence was reversed and the cause was remanded for resentencing as a Class 3 felony, since the Wisconsin conviction did not qualify to enhance the classification under section 111-3(c) of the Code of Criminal Procedure; furthermore, the mittimus was directed to be corrected to reflect the correct presentence incarceration credit and the mandatory supervised release term was directed to be reduced to one year.
Michael J. Pelletier, State Appellate Defender, Office of the State Appellate Defender, Chicago, IL, (Alan D. Goldberg and Jeffrey Svehla, of counsel), for APPELLANT.
Anita Alvarez, State's Attorney, County of Cook, Chicago, IL, (Alan J. Spellberg and John E. Nowak, of counsel), for APPELLEE.
PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Connors and Simon concurred in the judgment and opinion.
[¶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, 983 N.E.2d 78, 367 Ill.Dec. 924, in light of its March 20, 2014, decision in People v. Easley, 2014 IL 115581, 379 Ill.Dec. 829, 7 N.E.3d 667. People v. Whalum, 2014 IL 115582, 387 Ill.Dec. 508, 22 N.E.3d 1161 . 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.
[¶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 ...