Court of Appeals of Illinois, First District, Fourth Division
Appeal from the Circuit Court of Cook County. No. 11 CR 9352. Honorable James B. Linn, Judge Presiding.
Where defendant was charged with aggravated vehicular hijacking while armed with a firearm and armed robbery while armed with a firearm, but he was convicted of the uncharged offenses of aggravated vehicular hijacking with a dangerous weapon other than a firearm and armed robbery with a dangerous weapon other than a firearm, the trial court erred, since, under the circumstances, the uncharged offenses were not lesser-included offenses of the charged offenses; therefore, the conviction for aggravated vehicular hijacking with a dangerous weapon other than a firearm was reduced to vehicular hijacking, and his conviction for armed robbery with a dangerous weapon other than a firearm was reduced to robbery, the sentences imposed on the uncharged offenses for which defendant was found guilty were vacated, and the cause was remanded for resentencing on defendant's convictions for vehicular hijacking and robbery.
For APPELLANT: Michael J. Pelletier, State Appellate Defender; Alan D. Goldberg, Deputy Defender, Office of the State Appellate Defender; Gilbert C. Lenz, Assistant Appellate Defender, Office of the State Appellate Defender.
For APPELLEE: Anita Alvarez, State's Attorney, County of Cook; Alan J. Spellberg, Mary P. Needham, Mari R. Hatzenbuehler, Assistant State's Attorney.
JUSTICE EPSTEIN delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Howse concurred in the judgment and opinion.
[¶1] The State charged defendant Fred Clark with aggravated vehicular hijacking while armed with a firearm (720 ILCS 5/18-4(a)(4) (West 2010)) and armed robbery while armed with a firearm (720 ILCS 5/18-2(a)(2) (West 2010)). After a bench trial, the trial court found defendant guilty of the uncharged offenses of aggravated vehicular hijacking with a dangerous weapon other than a firearm (720 ILCS 5/18-4(a)(3) (West 2010)) and armed robbery with a dangerous weapon other than a firearm (720 ILCS 5/18-2(a)(1) (West 2010)), finding that those offenses were lesser-included offenses of the charged offenses. Defendant appeals, asserting: (1) that the offenses of which he was convicted were not lesser-included offenses of the charged offenses; (2) that his 17-year sentences for aggravated vehicular hijacking and armed robbery are excessive; and (3) that his mittimus should be corrected to reflect the offenses of which he was convicted.
[¶2] We agree that, in this case, aggravated vehicular hijacking with a dangerous weapon other than a firearm and armed robbery with a dangerous weapon other than a firearm were not lesser-included offenses of aggravated vehicular hijacking with a firearm and armed robbery with a
firearm because the charging instrument did not permit an inference that defendant used a weapon other than a firearm during the offense. We thus reduce defendant's convictions to vehicular hijacking and robbery and remand for resentencing. We do not reach defendant's remaining contentions of error.
[¶3] I. BACKGROUND
[¶4] Tyran Wise testified that, around 6:30 a.m. on May 15, 2011, he drove his red 2009 Dodge Charger down the alley behind his apartment building. A black car approached Wise's car in the opposite direction. The men in the other car waved Wise ahead. Wise parked his car in the garage behind his building.
[¶5] Wise testified that, as he was shutting his garage door, a man he identified in court as defendant put a gun to his head and " said give that shit up." A shorter man, who was not armed, entered the garage. The shorter man and defendant took $200 in cash and a cell phone from Wise's pockets. The shorter man entered Wise's car and drove away.
[¶6] Wise testified that defendant made him move to the back of the garage, sit down, face the wall, and put his hands on his head. Defendant struck Wise in the head with the gun twice. Defendant then drove away in the black car that had approached Wise in the alley. After defendant had left, Wise called the police.
[¶7] Chicago police officer Rangel testified that, around 11 p.m. on May 15, 2011, he observed a red Dodge Charger cut through a gas station. Rangel pulled the Charger over and three people fled from it, including defendant. Rangel chased defendant and radioed other officers. Rangel saw other officers arrest defendant shortly thereafter.
[¶8] Officer Juan Aguirre, an evidence technician, processed the Charger just before midnight on May 15, 2011. Aguirre testified that he found a loaded 9-millimeter Ruger handgun on the floor of the backseat of the car.
[¶9] Around 2:30 a.m. on May 16, 2011, Wise viewed a lineup at the police station. Detective Sharon Walker testified that both defendant and Kamari Belmont were in the lineup that Wise viewed. Wise identified defendant as the man who held a gun to his head. Wise did not identify Belmont.
[¶10] Defendant testified that, between 9 p.m. and 9:30 p.m. on May 15, 2011, Belmont and Belmont's cousin Taylor picked him up in a red Dodge Charger. Belmont told defendant the car belonged to his aunt. Defendant testified that he did not see a gun in the car. Defendant said that he, Belmont, and Taylor planned to go out and celebrate defendant's birthday.
[¶11] Defendant testified that he drove the Charger to a gas station near 55th Street and Wells Street. Defendant exited the car and saw someone in black with something in his hand. Defendant testified that he thought the person may have had a gun so he ran behind a nearby house. When defendant walked back to the front of the house, he saw the police, who arrested him.
[¶12] Defendant testified that he had never seen Wise before trial. Defendant denied holding a gun to Wise's head or taking anything from Wise. Defendant acknowledged that he was on parole for a juvenile drug case at the time of trial.
[¶13] The court found that Wise was credible and that defendant was not. The court credited Wise's identification of defendant as the man who robbed him in his ...