People v. Ellis ( 2010 )

No. 3--08--0424
_________________________________________________________________
Filed June 4, 2010
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2010
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 07--CF--1305
)
PHILLIP THOMAS ELLIS, ) Honorable
) James E. Shadid,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE SCHMIDT delivered the opinion of the court:
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A jury found defendant, Phillip Thomas Ellis, guilty of
aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(2) (West
2006)), aggravated unlawful use of a weapon (720 ILCS 5/24--
1.6(a)(1) (West 2006)), and unlawful possession of a weapon by a
felon (720 ILCS 5/24--1.1(a) (West 2006)). The trial court
entered judgment on the first two counts, vacating the conviction
for unlawful possession of a weapon by a felon. The trial court
sentenced defendant to concurrent terms of 9½ years' imprisonment
for aggravated discharge of a firearm and 6 years' imprisonment
for aggravated unlawful use of a weapon. Defendant appeals,
arguing that: (1) the wrong conviction was vacated under the one-
act, one-crime doctrine; and (2) the trial court erred in relying
upon the threat of serious harm when sentencing defendant for
aggravated discharge of firearm because it was inherent in the
offense. We affirm.
FACTS
Adrian Morris testified that he knew defendant. On the night
of October 26, 2007, he gave an acquaintance a ride in his two-
door Chevrolet Monte Carlo to the Landmark Apartments on Martin
Luther King Drive in Peoria. While they were parked in front of
the apartments, a vehicle passed Morris's vehicle on the driver's
side, braked, and backed up, stopping near Morris's vehicle.
Defendant, who was one of the passengers, was saying something to
Morris through the passenger window. Morris turned down his radio
and opened his driver's side door. He heard defendant say, "I
heard what you did to my baby mama." Morris understood that
defendant was referring to the mother of defendant's child, who
was also Morris's on-and-off girlfriend.
Morris and defendant both exited their vehicles. Morris's
passenger and the occupants of defendant's car did not exit the
vehicles. Morris went to grab defendant, and defendant removed a
firearm from the waistband of his pants and told Morris to get
back in the car. As defendant started to raise his arm, Morris
got back in his car. As Morris shut his door, he heard shots.
Morris dropped his seat back, trying to avoid getting hit by a
bullet, and sped away. Morris heard three or four shots, and
heard two bullets strike his car. Morris identified defendant
from a photo array.
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Michael Clark, a Peoria police department detective,
testified that he met with Morris at around 2 a.m. on October 27,
2007, at the scene of the altercation on Martin Luther King Drive.
He observed two bullet strikes on the rear quarter panel of
Morris's vehicle, near the driver's side back window. He also
recovered a bullet shell casing and a bullet fragment from the
scene.
The jury found defendant guilty of all three counts. At
sentencing, the State noted that count III, unlawful possession of
a weapon by a felon, should merge into count II, aggravated
unlawful use of a weapon. The trial court agreed, entering
judgment only on counts I and II.
At sentencing, the trial court considered the presentence
investigation report, arguments of counsel, defendant's statement,
and a statement by defendant's father. It found in aggravation
that defendant's conduct threatened serious harm. Specifically,
the trial court noted that it could not overlook the fact that
defendant's reckless actions threatened not only Morris, but also
Morris's passenger. The trial court sentenced defendant to 9½
years' imprisonment for aggravated discharge of a firearm and 6
years' imprisonment for aggravated unlawful use of weapon by a
felon, to be served concurrently.
Defendant filed a motion to reconsider the sentence, arguing
that the 9½ years was excessive. The trial court denied the
motion. Defendant appealed.
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ANALYSIS
I. One Act, One Crime
On appeal, defendant first argues that the trial court
vacated the wrong conviction under one-act, one-crime principles.
Defendant contends that the offense of unlawful possession of a
weapon by a felon is a more serious offense than aggravated
unlawful use of a weapon. Thus, defendant argues that the latter
should have been vacated.
The one-act, one-crime doctrine prohibits multiple
convictions based on the same physical act. People v. Rodriguez,
169 Ill. 2d 183, 661 N.E.2d 305 (1996). If a defendant is
convicted of two offenses based on the same act, the conviction
for the less serious offense must be vacated. People v. Lee, 213
Ill. 2d 218, 821 N.E.2d 307 (2004). In determining which offense
is less serious, this court defers to the legislature. Lee, 213
Ill. 2d 218, 821 N.E.2d 307. We review this question of law de
novo. People v. Johnson, 237 Ill. 2d 81 (2010).
Section 24--1.6(d) of the Criminal Code of 1961 (Code)
provides that aggravated unlawful use of a weapon, by a person
previously convicted of a felony, is a Class 2 felony, with a
sentencing range of three to seven years' imprisonment. 720 ILCS
5/24--1.6(d) (West 2006). Section 24--1.1(e) of the Code provides
that unlawful possession of a weapon by a felon is a Class 3
felony, with a sentencing range of 2 to 10 years' imprisonment.
720 ILCS 5/24--1.1(e) (West 2006). Both offenses are subject to a
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term of mandatory supervised release, two years and one year,
respectively. 730 ILCS 5/5--8--1(d)(2), (d)(3) (West 2006). The
Illinois Supreme Court recently specifically ruled on the relative
seriousness of the subject two offenses, aggravated unlawful use
of a weapon and unlawful possession of a weapon by a felon.
Johnson, 237 Ill. 2d 81. In concluding that it was the
legislature's intent that unlawful possession of a weapon by a
felon is a less serious offense than aggravated unlawful use of a
weapon, it noted that:
"[U]nlawful possession of a weapon by a
felon was given a lower felony classification
by the legislature, was made a probationable
offense, and was made subject to a shorter
period of mandatory supervised release. By
contrast, aggravated unlawful use of a weapon
was given a higher felony classification by
the legislature, was made a nonprobationable
offense, was given a higher minimum sentence
of imprisonment, and was made subject to a
longer period of mandatory supervisory release."
Johnson, 237 Ill. 2d at 99.
Defendant's convictions for aggravated discharge of a firearm and
aggravated unlawful use of a weapon are affirmed.
II. Sentencing
Defendant contends that when imposing his sentence, the trial
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court improperly considered the aggravating factor that he caused
or threatened serious harm, arguing that it was an inherent
element of the offense of aggravated discharge of a firearm.
Although a trial court has broad discretion when imposing a
sentence, it may not consider a factor implicit in the offense as
an aggravating factor in sentencing. People v. Phelps, 211 Ill.
2d 1, 809 N.E.2d 1214 (2004). In other words, a single factor
cannot be used as both an element of an offense and a basis for
imposing a harsher sentence than would otherwise have been
imposed. Phelps, 211 Ill. 2d 1, 809 N.E.2d 1214. However, a
sentence imposed by a trial court will not be reversed unless it
is clearly evident that the sentence was improperly imposed.
People v. Ward, 113 Ill. 2d 516, 499 N.E.2d 422 (1986). In
determining whether the sentence was properly imposed, a reviewing
court looks to the record as a whole and should not focus on a few
words or statements of the trial court. Ward, 113 Ill. 2d 516,
499 N.E.2d 422. "The imposition of a criminal sentence should not
be reduced to a litany of accepted and approved but meaningless
words and phrases." Ward, 113 Ill. 2d at 527, 499 N.E.2d at 426.
Section 24--1.2(a)(2) of the Code provides that a person
commits aggravated discharge of a firearm when he knowingly or
intentionally "[d]ischarges a firearm in the direction of another
person or in the direction of a vehicle he or she knows or
reasonably should know to be occupied by a person." 720 ILCS
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5/24--1.2(a)(2) (West 2006). The threat of serious harm is a
statutory aggravating factor. 730 ILCS 5/5--5--3.2(a)(1) (West
2006). Defendant argues that the act of discharging a firearm in
the direction of another person always carries with it the threat
of serious harm.
We find that the threat of serious harm is not an inherent
element of the offense of aggravated discharge of a firearm, which
only requires that a defendant fire in the direction of a person
or occupied car. See People v. Torres, 269 Ill. App. 3d 339, 645
N.E.2d 1018 (1995). Aggravated discharge of a firearm is a Class
1 felony, with a sentencing range of 4 to 15 years. 720 ILCS
5/24--1.2(a)(2), (b) (West 2006); 730 ILCS 5/5--8--1(a)(4) (West
2006). Implicit in every offense of aggravated discharge of a
firearm is the threat of harm. However, not every aggravated
discharge of a firearm threatens the same amount of harm. Compare
the "warning shot" that is intended to go and does go six feet
over someone's head to a shot that sends a bullet flying within an
inch of someone's ear. Equal threats of serious harm? In this
case, it was not an inherent element of the offense that
defendant's gunshots threaten two people, although defendant's
conduct threatened both Morris and his passenger with serious
harm. It was also not inherent in the offense that the bullets
actually strike the vehicle or that the bullets strike near a
window of the vehicle.
The trial court acted within its discretion by considering
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the relative threat of harm caused by defendant's conduct.
Defendant's sentence is affirmed.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Peoria County is affirmed.
Affirmed.
CARTER and LYTTON, JJ., concur.
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