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People v. Spivey

Court of Appeals of Illinois, First District, Third Division

May 17, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DONALD SPIVEY, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 10 CR 13096 The Honorable Neil J. Linehan, Judge Presiding.

          JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justice Lavin concurred in the judgment and opinion. Justice Hyman specially concurred, with opinion.

          OPINION

          PUCINSKI JUSTICE.

         ¶ 1 Following a bench trial, defendant Donald Spivey was found guilty of two counts of unlawful use of a weapon by a felon (UUWF) and two counts of aggravated unlawful use of a weapon (AUUW). The trial court merged the convictions and sentenced defendant to four years' imprisonment, followed by two years of mandatory supervised release (MSR), for his conviction on count two for UUWF. Initially on appeal, we vacated defendant's UUWF conviction under count two "because 'the State did not prove an essential element of the offense where it alleged in the charging instrument and proved at trial a predicate offense that has been declared unconstitutional and void ab initio.' " People v. Spivey, 2015 IL App (1st) 123563-U, ¶¶ 21, 25 (quoting People v. McFadden, 2014 IL App (1st) 102939, ¶ 43, aff'd and rev'd in part, 2016 IL 117424).

         ¶ 2 On September 28, 2016, the supreme court denied the State's petition for leave to appeal but entered a supervisory order directing us to vacate our judgment and to reconsider the matter in light of People v. McFadden, 2016 IL 117424, to determine if a different result is warranted. People v. Spivey, No. 119492 (Ill. Sept. 28, 2016). For the reasons that follow, we conclude that a different result is warranted.

         ¶ 3 BACKGROUND

         ¶ 4 The record shows that defendant was charged by information, under case number 10 CR 13096, with one count of armed habitual criminal (count one), two counts of UUWF (counts two and three), and four counts of AUUW (counts four, five, six, and seven). The State nol-prossed[1]counts one, five, and seven, then entered into evidence a certified statement of defendant's prior conviction for AUUW in case number 04 CR 18579, and the matter proceeded to trial on the remaining four counts.

         ¶ 5 Specifically, count two charged defendant with committing the offense of UUWF in that he knowingly possessed "on or about his person any weapon prohibited by section 24-1 of this Code, " to wit: a firearm after having been previously convicted of AUUW under case number 04 CR 18579 (720 ILCS 5/24-1.1(a) (West 2010)). Count three charged defendant with committing the offense of UUWF in that he knowingly possessed firearm ammunition after having been previously convicted of AUUW under case number 04 CR 18579 (720 ILCS 5/24-1.1(a) (West 2010)). Count four charged defendant with committing the offense of AUUW in that he knowingly carried an uncased, loaded, and immediately accessible firearm on his person and outside his home (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010)). And count six charged defendant with committing the offense of AUUW in that he knowingly carried or possessed an uncased, loaded and immediately accessible firearm on his person, upon a public way (720 ILCS 5/24-1.6(a)(2), (a)(3)(A) (West 2010)). Additionally, counts four and six indicated that "The State shall seek to sentence [defendant] as a class two offender in that he has been previously convicted of the offense of [AUUW] under case number 04CR18579." We take judicial notice of the charging instrument and the circuit court clerk's docket in case number 04 CR 18579 that defendant included in his appendix to the brief (Ill. S.Ct. R. 342 (eff. Jan. 1, 2005)), which reflect that he was convicted of the Class 4 version of AUUW under count one, [2] alleging that he knowingly carried an uncased, loaded, and immediately accessible firearm on his person and outside his home (720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (d) (West 2010)). See People v. Jimerson, 404 Ill.App.3d 621, 634 (2010) (reviewing court may take judicial notice of public records and other judicial proceedings).

         ¶ 6 At trial, Chicago police officer Jason Perez testified that at 4:55 a.m., on July 3, 2010, he and his partner, Officer Antonio De Carlo, were on routine patrol in the area of 6836 South May Street, where he observed defendant standing on the sidewalk about 20 feet away, with a black object resembling the handle of a revolver tucked into his waistband. Officer Perez made eye contact with defendant, who then walked away with his arms around his waist. Officer Perez exited his squad car, announced his office, and pursued defendant through a nearby gangway, into the backyard of the abandoned house at 6836 South May Street. There, defendant threw an object that made a metallic sound when it struck the chain-link fence at the north side of the backyard. The pursuit continued through an alley, across Racine Avenue, and ended with defendant's arrest in a vacant lot.

         ¶ 7 Chicago police officer Andres Zepeda testified that he and other responding officers arrived on the scene and helped place defendant into custody. He was then directed by Officer Perez to search along the chain-link fence in the backyard of the abandoned house at 6836 South May Street. There, he recovered a loaded .357-caliber revolver along the north side of the chain-link fence. Officer Perez arrived in the backyard and identified the firearm as the same black revolver that he observed defendant holding minutes ago.

         ¶ 8 Defendant presented the testimony of Artamese Prewitt and Kathy Johnson, both of whom testified that defendant did not have a gun. Additionally, defendant testified that he was living with his cousin at 6838 South May Street when the incident at bar occurred. He testified that he was drinking alcohol on his front yard when police officers pulled up in a squad car, exited, and approached him. He explained that he ran when the officers called him because he had an open container of alcohol and a warrant from Wisconsin for unpaid child support. Defendant maintained that he threw his bottle of alcohol at the chain-link fence in the backyard, and he denied having a weapon.

         ¶ 9 In finding defendant guilty, the trial court stated, "So as to count 2, there will be a finding of guilty. Counts 3, 4, and 6 will merge with *** count 2 in the charging document, " and sentenced defendant to four years' imprisonment for his UUWF conviction on count two. Defendant timely appealed.

         ¶ 10 ANALYSIS

         ¶ 11 Defendant contends in his supplemental brief that United States Supreme Court precedent requires that his UUWF conviction be reversed, citing Montgomery v. Louisiana, 577 U.S.___, 136 S.Ct. 718 (2016), and Ex Parte Siebold, 100 U.S. 371 (1879). Defendant argues that "nothing in McFadden stands in the way of this Court applying that controlling precedent, as it is bound to do" because McFadden did not address those two cases. Alternatively, defendant contends that if this court affirms his UUWF conviction, the felony classification of the offense must be reduced ...


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