Justice Garman and Justices Freeman, Thomas, Kilbride, Burke,
and Theis concurred in the judgment and opinion.
[¶1] The defendant, Fred Clark, was charged
with multiple offenses, including 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)). Following a bench trial,
the circuit court of Cook County acknowledged that defendant
committed the charged offenses while armed with a gun;
however, the court determined that the gun " was used as
a bludgeon and will be treated as such." Commensurate
with the court's apparent belief that the manner of the
firearm's use was relevant to the charged offenses, the
court pronounced oral findings that defendant was "
guilty of aggravated vehicular hijacking and armed robbery
without a firearm " (emphasis added), uncharged
offenses identified in different subsections of the pertinent
statutes. See 720 ILCS 5/18-4(a)(3) (West 2010) (aggravated
vehicular hijacking, while armed with a dangerous weapon
" other than" a firearm); 720 ILCS 5/18-2(a)(1)
(West 2010) (armed robbery, while armed with a dangerous
weapon " other than" a firearm). On appeal, the
appellate court concluded those uncharged offenses were not
lesser-included offenses of the charged firearm offenses, and
thus those convictions were improper. The court found the
issue forfeited, but held it cognizable as second-prong plain
error. Pursuant to those findings, the appellate court
reduced the convictions to vehicular hijacking and robbery,
respectively, and remanded for resentencing on those
convictions. 2014 IL App. (1st) 123494, 387 Ill.Dec. 333, 22
N.E.3d 378. We allowed the State's petition for leave to
appeal (Ill. S.Ct. R. 315 (eff. July 1, 2013)), and now
affirm the judgment of the appellate court.
[¶3] Defendant was initially charged by
indictment in the circuit court of Cook County with
aggravated vehicular hijacking while armed with a firearm
(720 ILCS 5/18-4(a)(4) (West 2010)), armed robbery while
armed with a firearm (720 ILCS 5/18-2(a)(2) (West 2010)), two
counts of burglary (entry of a building and entry of a motor
vehicle with the intent to commit a theft) (720 ILCS
5/19-1(a) (West 2010)), aggravated battery (720 ILCS
5/12-4(b)(1) (West 2010)), aggravated unlawful restraint (720
ILCS 5/10-3.1 (West 2010)), and six counts of aggravated
unlawful use of a weapon (all counts specifying a firearm)
(720 ILCS 5/24-1.6(a)(1)(3)(A), (a)(1)(3)(C), (a)(1)(3)(I)
(West 2010)). As relevant to an argument posited by the
State, and discussed hereafter, we note that the aggravated
battery charge stated in pertinent part that defendant caused
bodily harm to Tyronn Wise " while using a dangerous
weapon other than by the discharge of a firearm, to wit:
struck Tyronn Wise about the body with a
firearm." (Emphasis added.) The aggravated unlawful
restraint charge similarly stated that defendant committed
the offense " while using a deadly weapon, to wit: a
firearm." (Emphasis added.)
[¶4] Prior to defendant's jury waiver
and ensuing bench trial, the trial court admonished defendant
that he was charged with aggravated vehicular hijacking while
armed with a firearm, and armed robbery while armed with a
firearm; Class X felonies, with potential sentences upon
conviction of 21 to 45 years' imprisonment. The trial
court did not reference any other charges or penalties.
[¶5] At defendant's bench trial, Tyronn
Wise testified that on May 15, 2011, around 6:30 a.m., he was
accosted by defendant and another man while he was parking
his vehicle, a Dodge Charger, in his garage. He stated that
defendant put a gun to his temple and ordered him to "
give that shit up." The other individual was not armed.
The offenders took a cell phone and cash from Wise's
person. The other man then went through Wise's vehicle
while defendant continued holding Wise at gunpoint. While the
other man rifled through Wise's vehicle, defendant
ordered Wise to the back of the garage and ordered him to
kneel, " execution style," facing the wall, with
his hands behind his head. Wise testified that defendant
continued to hold the gun: " upside my head,"
" in the back of my head." Eventually, the other
man drove off in Wise's vehicle. Before defendant
departed in a separate vehicle, he told Wise he should kill
him, and he then struck Wise twice in the head with the gun.
Wise later identified defendant in a lineup and in open
court. He also identified People's exhibit No. 6 as a
photograph of the firearm defendant held " upside my
head." He affirmed that gun was " at his
person" during the entire 15-minute encounter.
[¶6] Officer Rangel of the Chicago
police department testified he and his partner were on patrol
on May 15, 2011, around 11 p.m., when they stopped a vehicle
for a traffic violation. The occupants immediately fled on
foot. Rangel pursued one person, who was ultimately
apprehended. Rangel identified that individual as the
defendant. A handgun was recovered from the vehicle. Rangel
identified People's exhibit Nos. 3 and 4 as photographs
depicting the Dodge Charger he stopped on May 15, 2011.
[¶7] Officer Juan Aguirre, an evidence
technician, testified that he recovered a gun from behind the
front seat of the Dodge Charger. The gun, pictured in, among
other exhibits, People's exhibit No. 6, was a loaded
9-millimeter Ruger handgun.
[¶8] After Aguirre's testimony, the
State rested. The defendant's motion for directed verdict
[¶9] The defense first called Detective
Sharon Walker. Walker testified that defendant and Kamari
Belmont were arrested in connection with this case. Both
appeared in a lineup on May 16, 2011. Wise viewed that lineup
and identified defendant as the man who held a gun to his
head. Wise did not identify Belmont.
[¶10] Defendant then testified in his own
behalf. Defendant stated that, on May 15, 2011, Belmont and
Belmont's cousin picked him up in a red Dodge Charger,
which Belmont said belonged to his aunt. Defendant said he
did not see a gun in the car. Defendant stated that he
eventually drove, as Belmont's cousin appeared to be
[¶11] According to defendant, he drove to a
gas station near 55th Street and Wells Street. He exited the
car and saw someone in black with something in his hand.
Defendant stated he thought that person might have had a gun,
so he ran behind a nearby house. Defendant said, when he
walked back to the front of the house, he encountered the
police, who arrested him.
[¶12] Defendant testified he had never seen
Wise before trial. He denied holding a gun to Wise's head
or taking anything from him. Defendant acknowledged that he
was, at the time of trial, in custody for a juvenile parole
violation. He was on parole for a controlled substance
[¶13] In argument before the court, the
issues addressed by both sides were whether defendant was
proven to be the individual who held " the gun" to
Wise's head and whether " the gun" subsequently
found in the Dodge Charger when defendant was arrested was
adequately tied to defendant. Wise's testimony that
defendant held a gun to his head and thereafter
pistol-whipped him stood uncontradicted. Defense counsel
never argued that the weapon employed was anything other than
a firearm. He asked that the trial court find defendant not
guilty of all charges.
[¶14] The trial court found that Wise was
credible, and defendant was not. The court recounted
Wise's testimony, that defendant was " the person
that robbed him as he was trying to pull into his garage. He
came into his garage with another person, put a gun to his
head, ordered him to do various things, smacked him with a
pistol that was in his hand, then fled. *** Later the same
day Mr. Clark was seen driving the victim's car, and a
gun was recovered in the car."
[¶15] The court concluded:
" I do believe he was properly identified as the person
involved in this case. The weapon was used in this case in
the manner of a bludgeon. He was pistol-whipped with it.
I find under all circumstances that it was used as a bludgeon
and will be treated as such. So he is found guilty of
aggravated vehicular hijacking and armed robbery without a
firearm, also the other charges, the burglary charges as
[¶16] Neither the State, nor defense
counsel, objected to the court's findings when announced,
and defendant's motion for a new trial subsequently
raised only generic, boilerplate contentions that were
insufficient to bring the error subsequently claimed on
appeal to the attention of the circuit court.
[¶17] At the hearing on defendant's
motion and sentencing, the court stated that it had found
defendant " guilty of armed robbery on [ sic ]
a firearm, and aggravated vehicular hijacking, and
burglary." Defense counsel chose to stand on his
posttrial motion, which was " respectfully denied."
In the course of defense counsel's sentencing argument,
counsel took issue with the court's finding that
defendant had " pistol-whipped" the victim. In
response, the court recharacterized: " Smacked him in
the head with a gun."
[¶18] In announcing defendant's
sentences, the court first noted that defendant had been in
trouble " a number of times," had had multiple
" encounters with the police," and " was on
parole at the time of this offense." The court then shed
some light on the thought process that led to its finding on
these uncharged offenses, which carried a lower penalty range
than those with which defendant was charged:
" This offense did involve some amount of premeditation,
and it was violent, and an actual gun was recovered later.
I[,] already in light of his age, the fact the gun wasn't
fired, other circumstances that I heard at the trial, gave
some deference and benefit of the doubt and justice as to the
appears the presentence report thereafter prompted the judge
to rethink the " benefit" and " justice"
conferred upon defendant. The court continued:
" That being said, now that I see the Pre-sentence
Investigation, I hear more about it, I agree this is a
serious matter. He's got a violent side to him,
particularly again the fact he's on parole at the time of
this offense is disturbing.
As to the offenses of armed robbery and aggravated vehicular
hijacking, it's 17 years in the penitentiary; as to the
burglary, 7 years in the penitentiary. All sentences will run
court's written order of commitment and sentence recites
those sentences, but reflects convictions ...