Court of Appeals of Illinois, First District, First Division
23 order filed November 19, 2015
23 order withdrawn July 11, 2016
from the Circuit Court of Cook County, No. 11-CR-3485; the
Hon. Matthew E. Coghlan, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Manuel S.
Serritos, all of State Appellate Defender's Office, of
Chicago, for appellant.
M. Alvarez, State's Attorney, of Chicago (Alan J.
Spellberg, Carol L. Gaines, and Gina DiVito, Assistant
State's Attorneys, of counsel), for the People.
PRESIDING JUSTICE CUNNINGHAM delivered the judgment of the
court, with opinion. Justices Connors and Harris concurred in
the judgment and opinion.
CUNNINGHAM PRESIDING JUSTICE
1 Defendant, Robert Carey, was tried by a jury, found guilty
of first degree felony murder while armed with a firearm, and
sentenced to 25 years' imprisonment for the murder and an
additional 15 years for the firearm sentencing enhancement.
Prior to the trial, the State had nol-prossed three
additional charges in the indictment against defendant: one
count of attempted armed robbery while armed with a firearm
(720 ILCS 5/18-2(a)(2) (West 2010)) (count II), and two
counts of unlawful use or possession of a weapon by a felon
(720 ILCS 5/24-1.1(a) (West 2010)) (counts III and IV).
2 In his appeal, defendant makes the following three
arguments: (1) the circuit court erred in finding him fit to
stand trial, given that he suffered from amnesia and had no
recollection of the incident giving rise to the felony murder
charge against him; (2) the State failed to prove beyond a
reasonable doubt that he had the intent to commit armed
robbery and that he took a substantial step toward the
commission of the crime; and (3) the 15-year firearm
enhancement should be stricken or vacated from his sentence
because the State failed to satisfy the procedural
requirements for notifying a defendant of its intent to seek
the enhanced term. We filed our original decision in this
matter on November 9, 2015, in which we affirmed
defendant's conviction for first degree felony murder and
vacated the 15-year sentencing enhancement, which was based
on his possession of a firearm.
3 Following our decision, both parties filed petitions for
rehearing. In its petition, the State argues that the firearm
sentencing enhancement should not be vacated because
defendant was not prejudiced in the preparation of his
defense. In defendant's petition, he contends that this
court misapplied the applicable law and relevant facts in
concluding that he was fit to stand trial and further in
finding that there was sufficient evidence to convict him of
attempted armed robbery. Additionally, for the first time,
defendant argues that the felony murder conviction must be
vacated because he was prejudiced by an indictment that did
not specify which version of attempted armed robbery the
State sought to use as the predicate offense for felony
murder. We ordered the State to file a response to
defendant's petition for rehearing, and for defendant to
file a reply, specifically addressing the issue of whether
the felony murder count of the indictment "apprised
[defendant] of the offense charged with sufficient
specificity to prepare his defense and allow pleading a
resulting conviction as a bar to future prosecution arising
out of the same conduct."
4 Following our review of the supplemental briefing, we
granted both parties' petitions for rehearing and
withdrew our original decision. This opinion now stands as
our resolution of this matter. For the reasons that follow,
we reverse defendant's conviction and remand to the
circuit court for further proceedings consistent with this
6 The undisputed facts are as follows. On the morning of
January 28, 2011, defendant and his brother, Jimmy Townsend,
attacked two armored truck guards working for Garda Cash
Logistics (Garda): Julio Rodriguez and Derrick Beckwith. The
guards arrived in an armored Garda truck at a Family Dollar
store located at the corner of Chicago Avenue and Homan
Avenue in Chicago. Beckwith drove the truck, and after
pulling up to the entrance of the store, Rodriguez exited the
truck and entered the store to collect the cash receipts for
transfer while Beckwith stayed outside in the truck.
7 As Rodriguez exited the store, holding a deposit bag filled
with cash, defendant and Townsend ambushed him from two
different directions. Townsend approached Rodriguez and
pointed at him an object that appeared to Rodriguez to be a
sawed-off shotgun, while Defendant approached Rodriguez from
a different side with a handgun. Townsend yelled for
defendant to shoot Rodriguez. Rodriguez shot Townsend four
times with his service revolver, and Townsend collapsed to
the pavement from the gunshot wounds. Townsend threw his
weapon to defendant, who then put Rodriguez in a chokehold.
During his struggle with defendant, Rodriguez dropped the
money bag, eventually broke free from defendant's grip,
and ran toward the truck. By this time, Beckwith, who was
still inside the truck, had opened the passenger-side door
and drawn his firearm. He fired four shots at defendant. Two
of the bullets struck defendant in the head-one directly in
his eye-and he fell to the ground, where he remained until
the police and paramedics arrived. Townsend died from the