People v. Polk ( 2014 )

Illinois Official Reports
Appellate Court
People v. Polk, 2014 IL App (1st) 122017Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption LOVELL POLK, Defendant-Appellant.
District & No. First District, Fifth Division
Docket No. 1-12-2017
Filed March 14, 2014
Rehearing denied June 26, 2014
Supplemental opinion
filed upon denial
of rehearing June 27, 2014
Held No impermissible double enhancement of defendant’s sentence for
(Note: This syllabus unlawful use of a weapon by a felon occurred where defendant’s prior
constitutes no part of the conviction for unlawful use of a weapon was used to convict him of
opinion of the court but the current charge of unlawful use of a weapon and to elevate his
has been prepared by the current conviction to a Class 2 felony pursuant to section 24-1.1(e) of
Reporter of Decisions the Criminal Code, but the trial court was directed to correct the
for the convenience of mittimus to strike the counts that were dismissed via nolle prosequi
the reader.) prior to trial; however, defendant’s request to strike the word “use”
from the mittimus was denied on the ground that “use” conformed to
the language used in the statute defendant violated.
Decision Under Appeal from the Circuit Court of Cook County, No. 11-CR-12507; the
Review Hon. Clayton J. Crane, Judge, presiding.
Judgment Affirmed; mittimus corrected.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Kristen E. Mueller, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
John E. Nowak, Assistant State’s Attorneys, of counsel), for the
People.
Panel JUSTICE PALMER delivered the judgment of the court, with
opinion.
Justice McBride concurred in the judgment and opinion.
Presiding Justice Gordon dissented, with opinion.
Presiding Justice Gordon also dissented upon denial of rehearing,
with opinion.
OPINION
¶1 Following a jury trial, defendant Lovell Polk was convicted of the Class 2 offense of
unlawful use or possession of a weapon (UUW) by a felon (720 ILCS 5/24-1.1(a) (West
2010)) and he was sentenced to four years and six months in prison. On direct appeal to this
court, defendant contends in his opening and supplemental briefs that (1) the sentence for his
UUW by a felon conviction must be reduced from a Class 2 offense to a Class 3 offense as
the State failed to notify him of its intent to seek an enhanced sentence; (2) he was subject to
an improper double enhancement because the same prior felony conviction was used to prove
an element of the UUW by a felon offense and to elevate it to a Class 2 felony; and (3) his
mittimus must be corrected. For the reasons discussed below, we affirm defendant’s
conviction and sentence for the Class 2 offense of UUW by a felon, but order that the
mittimus must be corrected to exclude reference to the two counts that were dismissed via
nolle prosequi before jury selection.1
¶2 BACKGROUND
¶3 At trial, Chineetha Curtis testified that on July 25, 2011, she was working as a security
agent for the Chicago Transit Authority (CTA) at the Homan and Congress Blue Line Station
in the city of Chicago. Curtis stated that on that date, defendant approached her and told her
that he had fought with a man and the man had taken his earrings. When he asked whether
she knew who had been fighting earlier that day, Curtis responded that she did not know.
1
We note that, in addition to the UUW by a felon charge, defendant was initially charged in the
information with two counts of aggravated unlawful use of a weapon, which the State dismissed by
nolle prosequi before jury selection.
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Curtis testified that defendant then lifted his shirt, revealing a gun inside his waistband.2
Curtis testified that defendant stated, “I’m going to bust a cap in his a***.” Curtis returned to
her kiosk in the station.
¶4 Curtis testified that as she approached her kiosk, two police officers were walking toward
her kiosk. One of the officers walked toward defendant, who was standing in front of the
station, and the other officer asked Curtis what was wrong. Curtis testified that she pointed at
defendant and told the officer that he had a gun. The officer left and Curtis began to help a
customer. Curtis testified that she then heard an officer yell “freeze”; she turned and saw
defendant twist around and run away from the officers.
¶5 Chicago police officers James Norris and Michael Brosnan each testified that on July 25,
2011, they were in uniform and working special enforcement for the CTA at the Homan
station. Brosnan testified that Curtis got his attention and told him that defendant had a gun
in his waistband. Brosnan informed Norris of this and they then approached defendant.
Brosnan testified that Norris put his hand on defendant’s shoulder and asked defendant if he
had anything on him that could hurt Norris. Brosnan testified that defendant then “spun
around, reached into his pants pocket as he was crossing Homan Avenue, pulled out a silver
automatic handgun and threw it to the ground.” Brosnan was only five feet behind him at the
time. Brosnan testified that they chased after defendant and he was apprehended about a
block later.
¶6 Similarly, Norris testified that as he moved closer to defendant to perform a protective
pat-down, defendant moved around him and ran west down Homan Avenue. Norris also
testified that he told defendant to drop the gun, and defendant reached into his right pocket as
he ran and dropped a gun in the street; it looked like the gun came from his right pocket or
right waistband. Norris was chasing after defendant and was only about two feet behind him
when this occurred. Norris recovered the gun, which was a silver-plated .380-caliber
automatic pistol and continued to pursue defendant. Norris testified that he subsequently
placed the gun, which did not contain any ammunition, in inventory.
¶7 In addition, Chicago police officer Hanrahan testified that he was driving an unmarked
police car in the vicinity that day when Hanrahan observed defendant run across Homan
Avenue with a uniformed police officer running after him. Hanrahan testified that he
followed defendant in the police car until defendant stopped running due to fatigue.
Defendant was arrested and taken to the station.
¶8 Before resting its case, the State submitted an agreed stipulation to the jury that defendant
had previously been convicted of a felony. The defense then rested without presenting any
evidence. The jury found defendant guilty of UUW by a felon.
¶9 At sentencing, the State argued that defendant had one prior conviction in 2006 for
conspiracy to commit murder, for which he received a seven-year sentence. Defense counsel
argued in mitigation that defendant was a good family man. In announcing defendant’s
sentence, the trial court stated that it had reviewed the presentence investigation and
considered the presentation made by the defendant and “all statutory factors required of this
Court for the sentencing.” The trial court sentenced defendant to 4½ years’ imprisonment,
with credit for time served.
2
Curtis identified the gun she saw on defendant as the gun that was admitted into evidence at trial.
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¶ 10 Defendant’s mittimus set forth his sentence of four years, six months for the offense of
“720-5/24-1.1(a) FELON POSS/USE FIREARM PRIOR,” and listed it as a Class 2 felony.
The mittimus also reflected the credit for time served and provided that “counts 2 and 3
merge with count 1.”
¶ 11 Defendant filed a motion to reconsider and vacate the judgment, which the trial court
denied. Defendant also filed a motion to reconsider his sentence on grounds that the sentence
was excessive given his background and the nature of the offense, but the trial court denied
the motion on June 20, 2012. Defendant filed a notice of appeal the same day.
¶ 12 ANALYSIS
¶ 13 In his first argument on appeal, defendant asserts that pursuant to section 111-3(c) of the
Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-3(c) (West 2010)), the State
was required to give notice in the charging instrument of its intent to seek an enhanced
sentence, i.e., that it was charging him with a Class 2 felony. According to defendant, the
failure to do so requires that his conviction be reduced to a Class 3 conviction. In response,
the State maintains that because defendant was charged and convicted of UUW by a felon
expressly premised on a prior forcible felony (conspiracy to commit murder), he could
receive only one class of sentence–a Class 2–and therefore a Class 3 sentence was
unauthorized and the notice provision did not apply.
¶ 14 As an initial matter, this court recognizes that there is a split of authority in the First
District regarding this issue. See generally People v. Whalum, 2012 IL App (1st) 110959,
pet. for leave to appeal pending, No. 115582 (filed Jan. 28, 2013); People v. Nowells, 2013 IL
App (1st) 113209, pet. for leave to appeal pending, No. 116839 (filed Oct. 31, 2013); People
v. Pryor, 2013 IL App (1st) 121792, pet. for leave to appeal pending, No. 117276 (filed Jan.
31, 2014). We further note that this issue is currently under review by our supreme court.
People v. Easley, 2012 IL App (1st) 110023, appeal allowed, No. 115581 (Ill. Mar. 27,
2013).
¶ 15 We also note that, in the present case, defendant concedes that he failed to preserve this
issue for appellate review, but he argues that his claim of error is nevertheless reviewable
because (1) his sentence is void and may be challenged at any time, (2) the error implicated
his substantial rights and is thus subject to plain-error review, and/or (3) his counsel rendered
ineffective assistance in failing to properly preserve the issue and defendant suffered
prejudice as a result. “Where a defendant challenges his sentence as void, *** as defendant
does here, we will review the sentencing issue even though it was not properly preserved for
review because a void sentence can be corrected at any time.” Nowells, 2013 IL App (1st)
113209, ¶ 18. Moreover, forfeited claims of sentencing error “may be reviewed for plain
error,” and the defendant has the burden of demonstrating “ ‘either that (1) the evidence at the
sentencing hearing was closely balanced, or (2) the error was so egregious as to deny the
defendant a fair sentencing hearing.’ ” Id. (quoting People v. Hillier, 237 Ill. 2d 539, 545
(2010)). Under plain-error review, we start by reviewing defendant’s claim to determine
whether any error occurred. Id. ¶ 20.
¶ 16 Additionally, this case requires that we interpret statutory language, which presents a
question of law reviewed de novo. People v. Harris, 203 Ill. 2d 111, 116 (2003). We are
mindful that “[i]t is the purview of the legislature to determine what is considered criminal
conduct, to assign penalties for that conduct, and to enact statutory provisions which enhance
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a criminal offense or enhance the applicable range of punishment for an offense. [Citation.]
Although the trial court has discretion to impose a sentence, we review this issue de novo
because it involves a question of law. [Citation.]” Nowells, 2013 IL App (1st) 113209, ¶ 21.
¶ 17 Turning to the statutory language involved in the case at bar, the UUW by a felon statute,
section 24-1.1, sets forth the elements of the offense, along with the potential classifications
and sentences:
“(a) It is unlawful for a person to knowingly possess on or about his person or on
his land or in his own abode or fixed place of business any weapon prohibited under
Section 24-1 of this Act or any firearm or any firearm ammunition if the person has
been convicted of a felony under the laws of this State or any other jurisdiction. This
Section shall not apply if the person has been granted relief by the Director of the
Department of State Police under Section 10 of the Firearm Owners Identification
Card Act.
***
(e) Sentence. Violation of this Section by a person not confined in a penal
institution shall be a Class 3 felony for which the person, *** shall be sentenced to no
less than 2 years and no more than 10 years and any second or subsequent violation
shall be a Class 2 felony for which the person shall be sentenced to a term of
imprisonment of not less than 3 years and not more than 14 years. Violation of this
Section by a person not confined in a penal institution who has been convicted of a
forcible felony, a felony violation of Article 24 of this Code or of the Firearm Owners
Identification Card Act, stalking or aggravated stalking, or a Class 2 or greater felony
under the Illinois Controlled Substances Act, the Cannabis Control Act, or the
Methamphetamine Control and Community Protection Act is a Class 2 felony for
which the person shall be sentenced to not less than 3 years and not more than 14
years.” (Emphasis added.) 720 ILCS 5/24-1.1(a), (e) (West 2010).
¶ 18 Based on the above provision, in order to prove the offense of UUW by a felon the State
must establish that a defendant “knowingly possessed a weapon or ammunition and that the
defendant had previously been convicted of a felony.” Nowells, 2013 IL App (1st) 113209,
¶ 22 (citing 720 ILCS 5/24-1.1(a) (West 2010)). Our court has recognized that the legislature,
as reflected in the plain language of section 24-1.1, intended to prohibit convicted felons
from possessing dangerous weapons. Id. (citing People v. Kelly, 347 Ill. App. 3d 163, 167
(2004)). Of particular relevance in the present case is the provision that a “[v]iolation of this
Section by a person not confined in a penal institution who has been convicted of a forcible
felony *** is a Class 2 felony.” 720 ILCS 5/24-1.1(e) (West 2010). A “forcible felony”
includes, among other crimes, “first degree murder, second degree murder, *** and any other
felony which involves the use or threat of physical force or violence against any individual.”
720 ILCS 5/2-8 (West 2010).
¶ 19 In addition, section 111-3 of the Code outlines the information required when instituting
criminal charges and for seeking an enhanced sentence:
“Form of charge.
(a) A charge shall be in writing and allege the commission of an offense by:
(1) Stating the name of the offense;
(2) Citing the statutory provision alleged to have been violated;
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(3) Setting forth the nature and elements of the offense charged;
(4) Stating the date and county of the offense as definitely as can be done; and
(5) Stating the name of the accused, if known, and if not known, designate the
accused by any name or description by which he can be identified with reasonable
certainty.
***
(c) When the State seeks an enhanced sentence because of a prior conviction, the
charge shall also state the intention to seek an enhanced sentence and shall state such
prior conviction so as to give notice to the defendant. However, the fact of such prior
conviction and the State’s intention to seek an enhanced sentence are not elements of
the offense and may not be disclosed to the jury during trial unless otherwise
permitted by issues properly raised during such trial. For the purposes of this Section,
‘enhanced sentence’ means a sentence which is increased by a prior conviction from
one classification of offense to another higher level classification of offense set forth
in Section 5-4.5-10 of the Unified Code of Corrections (730 ILCS 5/5-4.5-10); it does
not include an increase in the sentence applied within the same level of classification
of offense.” 725 ILCS 5/111-3(a), (c) (West 2010).
¶ 20 In interpreting this section, the Second Division of this court held in People v. Whalum
that where the State charged the defendant with two counts of UUW by a felon, but did not
state in the charging instrument what class conviction it sought, the State failed to provide the
notice required by section 111-3(c) of the Code that it planned to seek to increase the
classification of offense from a Class 3 to a Class 2. Whalum, 2012 IL App (1st) 110959,
¶ 37. Thus, the Second Division held that the defendant was consequently entitled to be
resentenced for a Class 3 felony. Id.¶ 21 Along similar lines, the defendant in People v. Easley was convicted of UUW by a felon
premised on his prior felony conviction of UUW. Easley, 2012 IL App (1st) 110023, ¶ 16.
The State gave the defendant notice of the prior offense upon which it relied, but did not state
its intention to seek an enhanced sentence pursuant to the “ ‘any second or subsequent
violation shall be a Class 2 felony’ ” language in section 24-1.1(e). Id. ¶ 21 (quoting 720
ILCS 5/24-1.1(e) (West 2008)). On the same day, the Second Division of this court again
concluded that, pursuant to section 111-3(c), the State was required to give notice to the
defendant that it intended to charge him with a Class 2 rather than a Class 3 offense, and
therefore, it vacated his sentence and remanded for resentencing as a Class 3 offense. Id. See
also People v. Pryor, 2013 IL App (1st) 121792, ¶ 42 (vacating the defendant’s sentence and
remanding for resentencing as a Class 3 felony where the State failed to state in the charging
instrument that it intended to seek enhancement from a Class 3 to a Class 2).
¶ 22 On the other hand, the Fourth Division of this court, in addition to the dissent in the
People v. Pryor case from the Fifth Division, disagreed with the Second Division’s holdings
in Easley and Whalum with respect to the interpretation and application of section 111-3(c)
involving a UUW by a felon charge. See Nowells, 2013 IL App (1st) 113209, ¶ 28; Pryor,
2013 IL App (1st) 121792, ¶¶ 49-58 (Palmer, J., dissenting).
¶ 23 In Nowells, the Fourth Division held that there was no error in sentencing the defendant
to a Class 2 sentence for his UUW by a felon conviction despite the defendant’s contention
that the State failed to provide proper notice. Nowells, 2013 IL App (1st) 113209, ¶ 30. The
defendant was convicted of UUW by a felon and sentenced as a Class 2 offender. The
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indictment for the UUW by a felon charge was premised on his prior felony conviction of
delivery of a controlled substance. Id. ¶¶ 3, 27. Examining the language of the UUW by a
felon statute, section 24-1.1(e), and section 111-3 of the Code, the Nowells court reasoned:
“In looking at the language of this statute, it is clear to us that the section 111-3(c)
notice provision with which defendant is concerned only applies when the prior
conviction that would enhance the sentence is not already an element of the offense.
Specifically, the language of the section 111-3(c) notice provision itself implies as
much when it states ‘the fact of such prior conviction and the State’s intention to seek
an enhanced sentence are not elements of the offense and may not be disclosed to the
jury during trial unless otherwise permitted by issues properly raised during such
trial.’ (Emphasis added.) 725 ILCS 5/111-3(c) (West 2010). Therefore, notice is not
necessary when the prior conviction is a required element of the offense, such that
only one class of felony conviction is possible for that offense as alleged in the
charging instrument.” Nowells, 2013 IL App (1st) 113209, ¶ 26.
¶ 24 The Nowells court therefore concluded that the notice provision in section 111-3(c) was
not applicable “because the State did not seek to enhance defendant’s sentence; as alleged in
the indictment, defendant’s Class 2 sentence was the only statutorily allowed sentence
available in this situation.” (Emphasis in original.) Nowells, 2013 IL App (1st) 113209, ¶ 27.
In support, the court relied on the language of section 24-1.1(e) (720 ILCS 5/24-1.1(e) (West
2010) (“Violation of this section by a person *** who has been convicted of *** a Class 2 or
greater felony under the Illinois Controlled Substances Act *** is a Class 2 felony ***.”))
and cited the holding in People v. Powell, 2012 IL App (1st) 102363, ¶ 12 (concluding the
trial court did not impermissibly enhance the defendant’s penalty for his UUW by a felon
conviction because the legislature, in enacting section 24-1.1(e), determined that he
committed a Class 2 felony and established a special penalty range). Nowells, 2013 IL App
(1st) 113209, ¶ 27. The Nowells court found no error because “the record establishes that a
Class 2 sentence was the only possible sentence classification defendant could have received
after having been charged with the crime of UUW by a felon specifically premised on his
prior Class 2 felony drug conviction.” Id. ¶ 30.
¶ 25 This court finds that the reasoning in Nowells and the dissent in Pryor to be more
persuasive on this issue. In the case of UUW by a felon, the prior conviction is not an
enhancement; it is an element of the offense. Therefore, it defines the offense and establishes
its class. As noted in another recent case from our Second Division, “Illinois law has long
held that, in prosecutions for the offense of UUW by felon, the prior felony conviction is an
element of the offense which must be proven beyond a reasonable doubt by the State before
the jury in its case in chief.” People v. McFadden, 2014 IL App (1st) 102939, ¶ 42 (citing
People v. Walker, 211 Ill. 2d 317 (2004), for its holding that having a “prior felony
conviction is an element of the offense of our UUW by [a] felon statute and adopting the
reasoning of Old Chief v. United States, 519 U.S. 172 (1997)”).
¶ 26 Defendant fails to account for the underlying logic of Old Chief, adopted by our supreme
court in Walker. As explained by the dissent in Pryor:
“Old Chief and Walker held that, in situations where a prior felony conviction was
an element of the offense and had to be proven before a jury, it was error not to
accept a defendant’s offer to stipulate before the jury as to the fact of the conviction.
Walker, 211 Ill. 2d at 338, 341 (citing Old Chief, 519 U.S. 172). This was done to
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lessen the prejudicial impact of telling the jury about the nature of the prior felony
while at the same time informing the jury of its existence. Walker, 211 Ill. 2d at 341
(citing Old Chief, 519 U.S. 172). If the above-cited provision of section 111-3(c)
applied to UUW by felon prosecutions whereby ‘the fact of such prior conviction ***
are not elements of the offense and may not be disclosed to the jury during trial’ (725
ILCS 5/111-3(c) (West 2010)), then the Walker decision adopting Old Chief was a
wholly unnecessary exercise. That, of course, is not the case. Those cases were
decided because our statute provides that the fact of the prior felony conviction is an
element of the offense that must be proven before the jury. As section 111-3(c)
provides that ‘the fact of such prior conviction *** are not elements of the offense
and may not be disclosed to the jury during trial,’ these statutory provisions are
incompatible.” People v. Pryor, 2013 IL App (1st) 121792, ¶ 56 (Palmer, J.,
dissenting).
¶ 27 Based on our above analysis, we conclude that section 111-3(c) does not apply to UUW
by a felon in this case. Turning to the charging document in the case at hand, we note that
count I of the information alleged that on July 25, 2011, in Cook County, defendant
committed the offense of:
“UNLAWFUL USE OR POSSESSION OF A WEAPON BY A FELON
In that HE, KNOWINGLY POSSESSED ON OR ABOUT HIS PERSON ANY
FIREARM, AFTER HAVING BEEN PREVIOUSLY CONVICTED OF THE
FELONY OFFENSE OF CONSPIRACY TO COMMIT MURDER, UNDER CASE
NUMBER 04CR2953202,
IN VIOLATION OF CHAPTER 720 ACT 5 SECTION 24-1.1(a) OF THE
ILLINOIS COMPILED STATUTES 1992 AS AMENDED ***.”
¶ 28 The record reflects that the charging instrument complied with section 111-3(a) of the
Code. Defendant was provided with notice of the nature of the prior conviction upon which
the UUW by a felon charge was predicated, in addition to the name of the charged offense,
the statutory citation of the offense, the nature and elements of the charged offense, the date
and county of the offense, and the name of the accused. We also note that the information
indictment return sheet listed the UUW by a felon charge as a Class 2 felony. 3 Moreover,
defendant does not argue that he was unaware of what prior felony was serving as the basis
for his UUW charge. Conspiracy to commit murder qualifies as a forcible felony. 720 ILCS
5/2-8 (West 2010). Accordingly, the charge of UUW by a felon could only be a Class 2
felony. 720 ILCS 5/24-1.1(e) (West 2010).
¶ 29 As the Nowells court held, the notice provision in section 111-3(c) was not applicable
here “because the State did not seek to enhance defendant’s sentence; as alleged in the
indictment, defendant’s Class 2 sentence was the only statutorily allowed sentence available
in this situation.” (Emphasis in original.) Nowells, 2013 IL App (1st) 113209, ¶ 27. Thus, in
arguing that he should be resentenced for a Class 3 offense, defendant essentially asks this
court to reduce his sentence to one that is not authorized by the legislature. We decline to do
so. Because the sentence imposed by the trial court was proper, we conclude that no error
3
At trial, defendant stipulated that he had previously been convicted of a felony; the nature of the
felony was not disclosed to the jury, but outside the jury’s presence the court and the parties discussed
the fact that it was a conviction for conspiracy to commit murder.
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occurred, and defendant’s sentence is not void. Nowells, 2013 IL App (1st) 113209, ¶ 30.
Nor did defendant receive ineffective assistance of counsel, as counsel was not obligated to
advance meritless arguments. People v. Ivy, 313 Ill. App. 3d 1011, 1018 (2000).
¶ 30 Defendant contends in his supplemental briefing that he was subjected to an improper
double enhancement because the same prior felony conviction was used to prove an element
of the UUW by a felon offense and to elevate it to a Class 2 felony.4 Defendant again
concedes that this claim of error was not properly preserved below, but urges this court’s
review under the plain-error doctrine. Nowells, 2013 IL App (1st) 113209, ¶¶ 18-20; Hillier,
237 Ill. 2d at 545. See People v. Powell, 2012 IL App (1st) 102363, ¶ 7 (deciding to review
the defendant’s forfeited claim of improper double enhancement in sentencing under the
plain-error rubric).
¶ 31 According to the general prohibition against double enhancement, “[a] single factor
cannot be used both as an element of an offense and as a basis for imposing a sentence
harsher than might otherwise have been imposed.” People v. Powell, 2012 IL App (1st)
102363, ¶ 8 (citing People v. Phelps, 211 Ill. 2d 1, 11-12 (2004)). “The prohibition against
double enhancements is based on the assumption that, in designating the appropriate range of
punishment for a criminal offense, the legislature necessarily considered the factors inherent
in the offense.” Phelps, 211 Ill. 2d at 12. However, an exception to this general rule arises
where “the legislature clearly intends to enhance the penalty based upon some aspect of the
crime and that intention is clearly expressed.” Powell, 2012 IL App (1st) 102363, ¶ 8 (citing
Phelps, 211 Ill. 2d at 12). The best evidence of such an intention is gleaned from the text of
the statute itself. Id. As the rule against double enhancement “is one of statutory
construction,” we review this issue de novo. Phelps, 211 Ill. 2d at 12.
¶ 32 Defendant is correct in asserting that a single factor cannot be used both as an element of
an offense and as a basis for imposing a sentence harsher than might otherwise have been
imposed, as it would constitute a double enhancement. Powell, 2012 IL App (1st) 102363,
¶ 8. However, we find that, based on the clear language of section 24-1.1(e), the legislature
explicitly stated its intention to enhance the penalty based on some aspect of the offense. As
previously set forth, section 24-1.1(e) provides in relevant part that a “[v]iolation of this
Section by a person not confined in a penal institution who has been convicted of a forcible
felony *** is a Class 2 felony.” 720 ILCS 5/24-1.1(e) (West 2010). Accordingly, given this
clear directive, we find that this created an exception to the prohibition against double
enhancement. Powell, 2012 IL App (1st) 102363, ¶¶ 11-17. We agree with the reasoning in
Powell that no impermissible double enhancement occurs when the legislature clearly
intends, as it did here, to enhance the penalty based upon some aspect of the crime and that
intention is clearly expressed. Id. See also Easley, 2012 IL App (1st) 110023, ¶¶ 16-22
(finding that the defendant’s sentence did not constitute an improper double enhancement
where the defendant’s prior conviction of UUW was used to convict him of the current UUW
offense and also to elevate his current UUW conviction to a Class 2 felony pursuant to
section 24-1.1(e) as a “second or subsequent violation”). Accordingly, we conclude that no
improper double enhancement occurred in this case.
4
We note that this argument must be considered to be in the alternative, as the premise of
defendant’s first argument is that the prior felony is not an element of the crime, where here defendant
claims exactly the opposite is the case.
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¶ 33 Defendant also argues on appeal that his mittimus should be corrected to strike the
language merging the counts into his conviction that were dismissed prior to trial, and to
strike the term “use” from the name of the offense in the mittimus. The State agrees that the
language “counts 2 and 3 to merge with count 1” should be stricken from the mittimus
because they were dismissed via nolle prosequi before jury selection. Accordingly, we direct
the clerk of the circuit court of Cook County to correct the mittimus by removing mention of
those counts. See People v. Harper, 387 Ill. App. 3d 240, 244 (2008) (indicating that this
court has the authority to correct the mittimus at any time without remanding the matter to
the trial court). However, we deny defendant’s request to strike the word “use” from the
mittimus, as this term was correctly included. 5 Defendant was tried and convicted for
violation of section 24-1.1(a); the offense defined in that section is entitled, “Unlawful Use or
Possession of Weapons by Felons or Persons in the Custody of the Department of
Corrections Facilities.” 720 ILCS 5/24-1.1(e) (West 2010). Given that the language used to
denote defendant’s UUW by a felon conviction adheres to the title of the statute itself, it was
correct to allow the mittimus to be labeled with this same term.
¶ 34 CONCLUSION
¶ 35 For the reasons stated above, the judgment of the circuit court of Cook County is
affirmed. We order that defendant’s mittimus be corrected as directed.
¶ 36 Affirmed; mittimus corrected.
¶ 37 PRESIDING JUSTICE GORDON, dissenting.
¶ 38 I must respectfully dissent from the majority’s holding, which concludes that defendant
was properly convicted of the Class 2 form of the UUW offense rather than the Class 3 form
of the offense, because the State failed to give him notice that it was seeking to charge him
with an enhanced Class 2 form of the UUW offense, as required by section 111-3(c) of the
Code of Criminal Procedure (725 ILCS 5/111-3(c) (West 2010)).
¶ 39 The majority reaches this holding by suggesting that an opinion that I recently authored,
People v. Pryor, 2013 IL App (1st) 121792, was wrongly decided. In Pryor, Justice Taylor
concurred with the opinion that I authored and Justice Palmer dissented. In today’s opinion,
Justice Palmer, as the author, together with Justice McBride constitute the majority.
¶ 40 The majority’s opinion acknowledges that there is a split in authority among the appellate
courts on this issue and that our supreme court has already accepted this issue for review. For
the reasons that I already stated in the Pryor opinion, which I authored just a few months
ago, I dissent here.
¶ 41 SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING
¶ 42 In a petition for rehearing, defendant claims that his prior conviction of conspiracy to
commit murder did not constitute a forcible felony for purposes of section 24-1.1(e) and
section 2-8 (720 ILCS 5/24-1.1(e), 2-8 (West 2010)), and that this court failed to address this
5
The name of the offense in the mittimus is listed as “FELON POSS/USE FIREARM PRIOR.”
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argument in our opinion. However, the issue of whether conspiracy to commit murder is a
forcible felony has been waived or forfeited for multiple reasons.
¶ 43 First, defendant failed to take the necessary steps in the trial court to properly preserve
this issue. “It is well settled that, to preserve a claim of sentencing error, both a
contemporaneous objection and a written postsentencing motion raising the issue are
required.” People v. Hillier, 237 Ill. 2d 539, 544 (2010) (citing People v. Bannister, 232 Ill.
2d 52, 76 (2008)). See also 730 ILCS 5/5-4.5-50(d) (West 2010) (“A defendant’s challenge
to the correctness of a sentence or to any aspect of the sentencing hearing shall be made by a
written motion filed with the circuit court clerk within 30 days following the imposition of
sentence.”). In Hillier, for example, the court held that the defendant forfeited his contention
on appeal that the trial court erred in ordering a sex offender evaluation as part of the
presentence investigation and in relying on the evaluation at sentencing because the
defendant failed to object at sentencing or raise the issue in a postsentencing motion. Hillier,
237 Ill. 2d at 544-45. See also People v. Nieves, 192 Ill. 2d 487, 502-03 (2000) (finding that
the defendant waived his argument on appeal that his constitutional right to a fair death
penalty sentencing hearing was violated by the introduction of hearsay evidence where he
failed to object in the trial court). In the present case, defendant never objected to this
purported error at trial or sentencing or in a motion to reconsider the sentence. 6 Thus,
defendant’s failure to do so constituted a procedural default of this issue. Hillier, 237 Ill. 2d
at 545.
¶ 44 We further note that any suggestion that defendant did not know or was not provided
with notice that the UUW by a felon offense was a Class 2 felony, and that he therefore could
not have timely raised this issue in the trial court, is inconsistent with the common law record
in this case. The indictment return sheet contained in the common law record provided notice
to defendant because it listed the UUW by a felon offense as a Class 2 offense. The
indictment listed his prior felony of conspiracy to commit murder. Additionally, the
sentencing order, which was issued on the date of sentencing on June 20, 2012, specifically
listed his UUW by a felon conviction as a Class 2 felony. Given these facts, it was incumbent
upon defendant to raise this claim of error before the trial court. Certainly after issuance of
his sentence, he was required to raise this claim in a postsentence motion. Failure to do so
results in forfeiture.
¶ 45 In addition, any reliance on People v. Carmichael, 343 Ill. App. 3d 855 (2003), to argue
that sentencing issues are exempt from forfeiture must fail when considered in light of our
supreme court’s guidance regarding the doctrine of forfeiture and plain error. Two of the
most important functions of an appellate court are to determine our jurisdiction and make
certain that issues have not been forfeited. People v. Smith, 228 Ill. 2d 95, 106 (2008). For
instance, as stated, our supreme court held in both Hillier and Nieves that the defendants
forfeited review of their purported sentencing errors by failing to object at sentencing or raise
the alleged errors in a postsentencing motion to reconsider. Hillier, 237 Ill. 2d at 544-45;
Nieves, 192 Ill. 2d at 502-03.
¶ 46 Our supreme court further has instructed that, where a defendant forfeits an issue on
appeal by failing to properly preserve it in the trial court, appellate review of the issue under
6
While defendant filed a motion to reconsider sentence, the only argument he raised was that the
sentence was excessive in light of his background and the nature of his participation in the offense.
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the plain-error rubric is likewise forfeited unless the defendant specifically sets forth on
appeal the grounds establishing plain error. Hillier, 237 Ill. 2d at 545-46; Nieves, 192 Ill. 2d
at 502-03. The plain-error doctrine provides a “narrow and limited exception” to forfeiture
and requires that the defendant show that “a clear or obvious error occurred.” Hillier, 237 Ill.
2d at 545.
“In the sentencing context, a defendant must then show either that (1) the evidence at
the sentencing hearing was closely balanced, or (2) the error was so egregious as to
deny the defendant a fair sentencing hearing. [Citation.] Under both prongs of the
plain-error doctrine, the defendant has the burden of persuasion. [Citations.] If the
defendant fails to meet his burden, the procedural default will be honored. [Citation.]”
Hillier, 237 Ill. 2d at 545.
¶ 47 In Hillier, our supreme court held that the defendant failed to meet his burden of
establishing plain error because he did not argue for plain-error review. Hillier, 237 Ill. 2d at
545-46. “A defendant who fails to argue for plain-error review obviously cannot meet his
burden of persuasion. As we explained in People v. Nieves, 192 Ill. 2d 487, 502-03 (2000),
when a defendant fails to present an argument on how either of the two prongs of the
plain-error doctrine is satisfied, he forfeits plain-error review.” Hillier, 237 Ill. 2d at 545-46.
See also Nieves, 192 Ill. 2d at 503 (finding that the defendant waived his plain-error
argument where his argument merely consisted of “a single sentence asking us to employ the
plain error rule because the right to a fair death penalty sentencing hearing is a fundamental
right”).
¶ 48 With this in mind, in order for this court to properly consider defendant’s contention that
conspiracy to commit murder did not constitute a forcible felony, defendant must argue that
plain error occurred, and that argument must also be sufficiently developed or it is also
forfeited. Hillier, 237 Ill. 2d at 545-46; Nieves, 192 Ill. 2d at 502-03. At no point, however,
did defendant set forth, let alone develop, any argument that his forfeiture should be excused
by plain error. By failing to argue for plain-error review, defendant “obviously cannot meet
his burden of persuasion” under the plain-error doctrine. Hillier, 237 Ill. 2d at 545-46.
Accordingly, any plain-error argument has also been forfeited.
¶ 49 Finally, we conclude that defendant has introduced a third layer of forfeiture with respect
to this issue because he raised it for the first time in his reply brief. Defendant failed to raise
or argue it in his opening brief or supplemental brief on appeal. “According to Rule
341(h)(7), points not argued in the appellant’s brief ‘are waived and shall not be raised in the
reply brief, in oral argument, or on petition for rehearing.’ ” BAC Home Loans Servicing, LP
v. Mitchell, 2014 IL 116311, ¶ 23 (quoting Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013)). Our
supreme court “has repeatedly held an appellant’s failure to argue a point in the opening brief
results in forfeiture under Supreme Court Rule 341(h)(7).” Id. We are also mindful that “all
of the Illinois Supreme Court rules are mandatory rules of procedure, not mere suggestions.”
People v. Garstecki, 382 Ill. App. 3d 802, 811 (2008). Defendant, therefore, has forfeited his
claim that his prior conviction of conspiracy to commit murder did not constitute a forcible
felony in the first instance for failure to present it to the trial court at the time of sentencing
or in a motion to reconsider, and in the second instance by failing to argue for plain-error
review, and, lastly, in the third instance for raising it for the first time on appeal in his reply
brief.
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¶ 50 Any suggestion that defendant should not be constrained by Rule 341(h)(7) because the
issue was first mentioned in the State’s response brief is misguided. As previously discussed,
the common law record reveals that defendant was on notice that the UUW by a felon
offense was a Class 2 offense. It was indicated as such in the indictment return sheet and on
his sentencing order. As set forth in our initial opinion and as the dissent notes, the fact that
defendant had a prior conviction of conspiracy to commit murder was noted at the sentencing
hearing, and the charging instrument indicated that the prior felony conviction relied upon
was conspiracy to commit murder. And we have also previously stated that the UUW by a
felon statute specifically authorizes only four ways in which the UUW by a felon offense
becomes a Class 2 offense based on a prior felony, with one of the four provided options
being a prior conviction of a forcible felony, as is the case here.
“Violation of this Section by a person not confined in a penal institution who has
been convicted of a forcible felony, a felony violation of Article 24 of this Code or of
the Firearm Owners Identification Card Act, stalking or aggravated stalking, or a
Class 2 or greater felony under the Illinois Controlled Substances Act, the Cannabis
Control Act, or the Methamphetamine Control and Community Protection Act is a
Class 2 felony for which the person shall be sentenced to not less than 3 years and not
more than 14 years.” 720 ILCS 5/24-1.1(e) (West 2010).
¶ 51 Once defendant came before the reviewing court, bearing in mind that he was on notice
that he was convicted of a Class 2 offense, it was incumbent upon him to raise in his opening
brief the issue of whether his prior conviction of conspiracy to commit murder constituted a
prior conviction listed in section 24-1.1(e) that would define his offense as a Class 2 felony.
Failure to do so constituted forfeiture under Rule 341.7 Additionally, in defendant’s opening
brief, he acknowledged that he was sentenced for a Class 2 offense. However, other than
raising his claim under section 111-3(c), defendant failed to allege that his conviction did not
satisfy any of the requirements of the statute to qualify as a Class 2 offense until his reply. As
a result of failing to raise that claim at the outset, it was forfeited pursuant to the rule.
¶ 52 Forfeiture aside, we find unpersuasive defendant’s citation of Carmichael, 343 Ill. App.
3d 855, to support his contention that conspiracy to commit murder did not constitute a
forcible felony. In Carmichael, the court held that the offense of armed violence was not a
crime inherently involving the use or threat of physical force or violence, and therefore not a
forcible felony for purposes of UUW by a felon and section 2-8 (720 ILCS 5/2-8 (West
2000)). Carmichael, 343 Ill. App. 3d at 861. The court reasoned that armed violence could be
committed by merely possessing a firearm while in the possession of a controlled substance,
a situation which was not inherently violent. Id. Relying on the supreme court case People v.
Golson, 32 Ill. 2d 398 (1965), which involved the felony murder rule in the context of a
conspiracy to commit theft from the United States mails during which two postal inspectors
were killed, the Carmichael court observed that the test for determining whether a felony
constituted a forcible felony under the felony murder rule “ ‘ “is not whether the felony is
normally classified as non-violent, but is whether, under the facts of a particular case, it is
7
We additionally note that defendant does not argue that his sentence was void. “A void order can
be attacked at any time” and “[a] sentence not authorized by statute is void.” Hillier, 237 Ill. 2d at
546-47. However, defendant’s 4½-year sentence was well within the statutory range for his Class 2
felony of UUW by a felon. 720 ILCS 5/24-1.1(e) (West 2010).
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contemplated that violence might be necessary to enable the conspirators to carry out their
common purpose.” ’ ” (Emphasis in original.) Carmichael, 343 Ill. App. 3d at 860 (quoting
People v. Belk, 203 Ill. 2d 187, 193-94 (2003), quoting Golson, 32 Ill. 2d at 407-08).
Similarly, the supreme court in Belk, in finding that the defendant’s commission of
aggravated possession of a stolen motor vehicle did not qualify as a forcible felony for
purposes of the felony murder rule, explained that “[i]t is the contemplation that force or
violence against an individual might be involved combined with the implied willingness to
use force or violence against an individual that makes a felony a forcible felony under the
residual category of section 2-8.” Belk, 203 Ill. 2d at 196.
¶ 53 In contrast to Carmichael, Golson, and Belk, the present case involved conspiracy to
commit murder, that is, conspiracy to commit one of the specifically enumerated forcible
felonies under section 2-8. It did not involve a nonforcible felony like theft of United States
mails or aggravated possession of a stolen vehicle. For that reason, it is even more logical to
conclude that conspiracy to commit murder involved the contemplation of force or violence
against an individual and that such force or violence would be necessary to carry out the
crime of murder. Also helpful to our analysis is this court’s decision in People v. Thomas,
where we held that every attempted murder constituted a forcible felony for purposes of the
armed habitual criminal statute, which also utilizes the definition of forcible felony from
section 2-8, because “every attempted murder involves a specific intent to cause death,” and
one who commits attempted murder “contemplated the use of sufficient force to cause very
serious injury, injury that can lead to death.” People v. Thomas, 407 Ill. App. 3d 136, 140
(2011). The Thomas court also concluded that the definition of forcible felony in section 2-8
“does not require the actual infliction of physical injury; instead, the statute requires only the
‘use or threat of physical force or violence.’ ” Id. (quoting 720 ILCS 5/2-8 (West 2006)).
This court recognized that our supreme court “has explained that a felony involves the threat
of physical force or violence if the felon ‘contemplated that violence might be necessary’ to
carry out the crime.” Id. (quoting Belk, 203 Ill. 2d at 194).
¶ 54 Taking into consideration our decision in Thomas and the particular circumstances in the
present case, we are unwilling to extend the reasoning in Carmichael, and the cases cited
therein, to the offense of conspiracy to commit murder, which is, as stated, synonymous with
conspiracy to commit an enumerated forcible felony. We find that the offense of conspiracy
to commit murder necessarily contemplates that violence would be necessary to enable the
conspirators to carry out their common purpose, i.e., murder, and it is wholly irrelevant
whether the object of the conspiracy was ever completed or attempted.
¶ 55 Lastly, we note that, after we issued our original opinion in this matter, the Illinois
Supreme Court in People v. Easley confirmed our determination in this case that the notice
provision in section 111-3(c) (725 ILCS 5/111-3(c) (West 2010)) does not apply to UUW by
a felon, and that no improper double enhancement occurs when a defendant’s prior
conviction is used as an element (as opposed to an enhancement) of the offense of Class 2
UUW by a felon. People v. Easley, 2014 IL 115581, ¶¶ 22-26, 30.
¶ 56 We reject any argument that Easley does not apply to the case at bar because this case
involved an unenumerated felony under section 2-8, which defines a “forcible felony” as
“first degree murder, second degree murder, *** and any other felony which involves the use
or threat of physical force or violence against any individual.” 720 ILCS 5/2-8 (West 2010).
We find no support in Easley for the contention that unenumerated felonies are to be
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considered any differently than enumerated felonies for purposes of UUW by a felon (720
ILCS 5/24-1.1(e) (West 2010)) and section 111-3(c) (725 ILCS 5/111-3(c) (West 2010)).
Such an argument ignores the core holding of Easley that section 111-3(c) does not apply
when the underlying felony is an element of the offense. Since the prior felony is an element
of the offense of Class 2 UUW by a felon, section 111-3(c) does not apply, regardless of
whether the prior felony was enumerated or unenumerated under section 2-8.
¶ 57 Lastly, the mere fact that notice to enhance was provided for the other two counts of
aggravated unlawful use of a weapon (AUUW), but not for the UUW by a felon charge, is of
no import. The supreme court’s holding in Easley confirmed our position that the counts
alleging AUUW required a notice to enhance under section 111-3(c), but no such notice was
required in the case of UUW by a felon. Therefore, the State simply followed the law in
giving notice where it had to, and not giving notice where no notice was required. No
negative inference should arise by simply following the law.
¶ 58 SEPARATE OPINION UPON DENIAL OF REHEARING
¶ 59 PRESIDING JUSTICE GORDON, dissenting.
¶ 60 The majority holds that defendant waived the issue of whether the State’s evidence was
sufficient to prove his prior commission of a forcible felony. I must respectfully dissent
since, first, a defendant does not waive a claim of insufficient evidence by not raising it
below; second, this court previously considered this exact same issue of waiver and ruled the
other way; and last but not least, waiver is a limit on the parties, not on the court.
¶ 61 In its opinion filed March 14, 2014, the majority held that conviction of a forcible felony,
requiring imposition of a Class 2 sentence, was an element of the offense. Supra ¶ 25. In his
petition for rehearing, defendant argued that the majority failed to consider an issue which he
had raised in his original briefs, namely, that the State failed to prove that his acts in
conspiring to commit murder constituted a forcible felony. In its supplemental opinion, the
majority tacitly acknowledges that it did not address this issue in its prior opinion, but it now
holds that defendant waived this issue by not raising it in a postsentencing motion. However,
a claim of insufficient evidence is not waived, even if it is not contained in a posttrial motion.
People v. Woods, 214 Ill. 2d 455, 470 (2005) (“when a defendant makes a challenge to the
sufficiency of the evidence, his or her claim is not subject to the waiver rule and may be
raised for the first time on direct appeal”). Thus, this claim, that the State failed to prove an
element of the offense, is not waived for our consideration on appeal.
¶ 62 Second, the procedural facts in the case at bar are exactly the same as the procedural facts
in Carmichael, where this court previously held that the waiver rule was not a bar to
consideration of this exact same issue on appeal. People v. Carmichael, 343 Ill. App. 3d 855,
859 (2003). The majority, however, finds that Justice Hoffman’s well-reasoned opinion in
Carmichael is not persuasive. Supra ¶ 45. I must respectfully disagree.
¶ 63 In Carmichael, as in our case, the defendant was charged with unlawful use of a weapon
by a felon. Carmichael, 343 Ill. App. 3d at 858. In Carmichael, as in our case, a prior
conviction was used to prove that the defendant’s offense was a Class 2 rather than a Class 3
offense, and the defendant argued on appeal that the State had failed to prove that his prior
conviction constituted a forcible felony. Carmichael, 343 Ill. App. 3d at 857-59. In
Carmichael, as in our case, the prior offense was not on the statute’s enumerated list of
forcible felonies, and “[t]he State did not, either at trial or the sentencing hearing, introduce
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any evidence regarding the circumstances surrounding that prior conviction.” Carmichael,
343 Ill. App. 3d at 858. In Carmichael, as in our case, “the [trial] court never made an
explicit finding that the defendant’s prior *** conviction constituted a forcible felony,” but it
did enter an order identifying defendant’s conviction as a Class 2 felony. Carmichael, 343 Ill.
App. 3d at 858. As this description shows, the procedural facts in Carmichael are identical to
those in our case.
¶ 64 In Carmichael, as in our case, the State argued “that the defendant has waived review of
the contention that his prior *** conviction does not constitute a forcible felony by failing to
raise it at trial or in a posttrial motion.” Carmichael, 343 Ill. App. 3d at 859. In Carmichael,
this court rejected this argument, holding: “sentencing issues are excepted from the doctrine
of waiver when they affect a defendant’s substantial rights.” Carmichael, 343 Ill. App. 3d at
859. Thus, as this court previously did in Carmichael, I would reject this exact same waiver
argument.
¶ 65 Third, waiver is a limit on the parties but not on the court. Carmichael, 343 Ill. App. 3d at
859. Despite waiver, this court may address an issue in order to carry out its responsibility to
reach a just result. Carmichael, 343 Ill. App. 3d at 859.
¶ 66 In sum, I find that the issue was not waived in the trial court because, first, a defendant
does not waive a sufficiency claim by failing to raise it in the trial court; second, this court
previously considered this exact same waiver argument made by the State and rejected it; and
third, waiver is not a limit on the court.
¶ 67 The majority next holds that defendant waived this issue in the appellate court by raising
it first in his reply brief. Supra ¶ 49. As I observed in my prior dissent, some arguments are
properly raised for the first time in the reply brief because they are simply a response to
arguments raised by the State in its brief. For example, a defendant is not required to discuss
plain error in his opening brief. Once the State raises the issue of waiver in its brief, the
subject of plain-error review is then properly raised for the first time in the reply brief.
People v. Ramsey, 239 Ill. 2d 342, 412 (2010) (citing People v. Williams, 193 Ill. 2d 306,
347-48 (2000)).
¶ 68 Similarly, in the case at bar, defendant in his opening brief observed that, at sentencing,
there was no discussion concerning the class of offense and the State “simply noted in
aggravation that Polk had a prior conviction for conspiracy to commit murder and he was not
extendable based upon the prior conviction.” Defendant quoted the statute which required the
State to identify which conviction it was basing an enhancement on, which the State did not
do. The State then responded in its brief that no discussion was needed, because his offense
was “expressly based on a prior forcible felony.” Defendant, in turn, responded in his reply
brief that “the State argues for the first time that Mr. Polk’s conviction should be a Class 2
offense because his prior conviction was a forcible felony.” The purpose of a reply brief is to
reply to arguments raised in the response brief, and that is what was done here. Ill. S. Ct. R.
341(j) (eff. Feb. 6, 2013) (the reply brief is for “replying to arguments presented in the brief
of the appellee”). Thus, the issue was not waived for our review. See also People v.
Carmichael, 343 Ill. App. 3d 855, 859 (2003) (“sentencing issues are excepted from the
doctrine of waiver when they affect a defendant’s substantial rights” and “[w]e find that the
defendant’s contention that the offense of which he was convicted was improperly enhanced
from a Class 3 felony to a Class 2 felony implicates substantial rights justifying review of the
issue”).
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¶ 69 The majority holds that defendant should have anticipated that the State would argue on
appeal that the entry on the mittimus of a Class 2 offense was justified because the prior
offense was a forcible felony. Supra ¶¶ 50-51. First, there is no anticipatory-argument rule in
the appellate court, and with good reason. A party is under no obligation to alert the other
side to arguments that it might otherwise waive.
¶ 70 Second, the majority overlooks the fact that defendant’s prior conviction was in 2006 and
he received a seven-year sentence. The instant offense occurred in 2011, only five years later.
The statute provides: “Violation of this Section by a person who is on parole or mandatory
supervised release is a Class 2 felony ***.” 720 ILCS 5/24-1.1 (West 2012). Given the dates
of the prior and current offenses and the length of the prior sentence, there is no reason that
defendant should have guessed that, on appeal, the State would attempt to justify the Class 2
offense based solely on the argument that the prior offense was a forcible felony. Thus,
defendant did not waive this argument by raising it in his reply brief because it was simply a
response to the State’s brief.
¶ 71 Last but not least, the majority holds that, even if the argument was not waived, the State
8
satisfied its burden of proof without any facts. I cannot concur with this conclusion.
¶ 72 The majority concludes–without any facts concerning the prior conspiracy
conviction–that it was a “felony which involves the use or threat of physical force or violence
against any individual.” 720 ILCS 5/2-8 (West 2010). Our legislature provided a specific list
of felonies that qualify as forcible felonies, and conspiracy is not on the list. 720 ILCS 5/2-8
(West 2010). When a felony is not on the enumerated list of forcible felonies, an appellate
court must consider “the circumstances surrounding the commission of that particular
offense” and decide whether “the defendant contemplated that the use or threat of force or
violence might be necessary to carry out the offense” of which he was convicted. People v.
Carmichael, 343 Ill. App. 3d 855, 861 (2003). Although the prior offense was a conspiracy to
commit murder, there is no evidence in the record that the conspiracy was completed or even
attempted. The offense itself was the agreement plus one act in furtherance of that agreement
(720 ILCS 5/8-2 (West 2010)), and there is no evidence in the record before us that the act at
issue involved the use or threat of physical force. An agreement is simply not “an inherently
violent offense.” Carmichael, 343 Ill. App. 3d at 861. The State had the burden to show facts,
and it failed to satisfy its burden.
¶ 73 In addition, I must dissent because the Easley case recently decided by our supreme court
is not dispositive of this case, as the supplemental opinion concludes. First, the Easley case
did not involve, as this case does, an unenumerated forcible felony as the basis for increasing
the class of offense. As a result, the increase in Easley was automatic. Easley, 2014 IL
115581, ¶ 19 (“only one class of felony conviction [was] possible”). Second, the Easley case
involved no notice at all. By contrast, in the case at bar, the State provided notice of its intent
to seek an enhanced sentence on counts I and II, but affirmatively chose not to provide notice
for the third count in the same information. Defendant then reasonably believed that no
enhancement would apply to this third count. Where the State provides notice for some
8
The majority states that defendant did not ask, in the alternative, for plain-error review, when
defendant did, in fact, ask for it in the alternative in his initial brief. Supra ¶ 48. However, the
plain-error doctrine does not apply to a sufficiency claim (Woods, 214 Ill. 2d at 470), and the majority
correctly does not apply it when examining defendant’s substantive argument. Supra ¶ 52.
- 17 -
counts but not for others in the same information, that conduct has the opposite effect of the
“notice” envisioned by the statute. Instead of providing the kind of real information that a
notice is supposed to deliver, a defendant is left simply confused or, at worst, affirmatively
misinformed.
¶ 74 In the case at bar, no class of offense was mentioned at sentencing; the notice previously
given by the State mentioned every offense but this one; no basis for increasing the class of
offense was identified at sentencing; and the basis identified by the State for the first time on
appeal is questionable as a forcible felony. If defendant had received notice at any point
along the way, then he could have challenged the conclusion in the trial court that this was a
forcible felony and the State would have had to provide what is lacking here: facts.
¶ 75 For the foregoing reasons, I must respectfully dissent from the supplemental opinion, and
I would remand for resentencing to make the State comply with the law as made and
provided.
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