People v. Howard ( 2014 )

Illinois Official Reports
Appellate Court
People v. Howard, 2014 IL App (1st) 122958
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ANTWAN HOWARD, Defendant-Appellant.
District & No. First District, First Division
Docket No. 1-12-2958
Filed March 17, 2014
Held On appeal from defendant’s convictions for possession of a controlled
(Note: This syllabus substance and four counts of unlawful use of a weapon by a felon, the
constitutes no part of the trial court’s initial acquittal on two counts of unlawful use of a weapon
opinion of the court but by a felon based on its mistaken belief that the State had to prove
has been prepared by the defendant’s parole status at trial exposed defendant to double jeopardy
Reporter of Decisions where that finding was rescinded at sentencing when the State did
for the convenience of present proof that defendant was on parole; therefore, these two
the reader.) convictions based on defendant’s status as a parolee were vacated and
the cause was remanded for resentencing on the remaining two
convictions for the unenhanced unlawful use of a weapon offense,
which were properly based on the possession of a firearm loaded with
ammunition.
Decision Under Appeal from the Circuit Court of Cook County, No. 12-CR-5876 (01);
Review the Hon. Nicholas Ford, Judge, presiding.
Judgment Affirmed in part, reversed and vacated in part, and remanded with
directions.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Michael Gomez, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
John E. Nowak, and Katerina Alexopoulos, Assistant State’s
Attorneys, of counsel), for the People.
Panel JUSTICE HOFFMAN delivered the judgment of the court, with
opinion.
Presiding Justice Connors and Justice Delort concurred in the
judgment and opinion.
OPINION
¶1 A judge found the defendant, Antwan Howard, guilty of one count of possession of a
controlled substance under the Illinois Controlled Substances Act (Act) (720 ILCS
570/401(c)(2) (West 2010)), and four counts of unlawful use of a weapon by a felon (UUW)
under the Criminal Code of 1961 (Code) (720 ILCS 5/24-1.1(a) (West 2010)). He was
sentenced to four concurrent terms of 10 years’ imprisonment and 3 years’ mandatory
supervised release. He now appeals, contending (1) the court exposed him to double jeopardy
by finding him not guilty on two counts of UUW, but then rescinding his acquittal of these
charges during sentencing and entering a finding of guilty; (2) his sentences on the UUW
offenses were the result of an improper double enhancement, where the same felony
conviction was used both to prove an underlying element of UUW and to elevate his
sentencing range to Class X; (3) two of his four convictions for UUW must be vacated because
they violate the one-act, one-crime doctrine; (4) one of his two UUW convictions must be
vacated because the Code does not allow for multiple convictions for a single act of possessing
a gun containing ammunition; and (5) certain fees and fines imposed by the trial court must be
vacated.
¶2 The defendant was charged by indictment with, inter alia, one count of possession of a
controlled substance with intent to deliver under section 401(c)(2) of the Act, and four counts
of UUW, a Class 3 offense, under Code section 24-1.1(a). The UUW charges (counts IV
through VII) were all premised upon the same underlying felony conviction for failure to
report an accident. Counts IV and VI were based upon the defendant’s possession of a firearm,
and counts V and VII were based upon his possession of the ammunition inside that firearm.
Counts IV and V also contained notice that, pursuant to section 24-1.1(e) of the Code, the State
would seek to have the defendant sentenced as a Class 2 offender on the basis that, at the time
of the offense, he was on parole or mandatory supervised release. 720 ILCS 5/24-1.1(e) (West
2010).
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¶3 The evidence at trial established that on the night of January 13, 2012, Officer John
Wrigley was conducting surveillance when he observed three people sitting in a van about 40
to 50 feet away from him. The occupants of the van were identified as the defendant, his
girlfriend, and another man. Officer Wrigley observed as individuals approached the van and
gave money to individuals inside the van in exchange for small items, later shown to be
narcotics. Officer Wrigley testified that at one point, he saw the defendant exit the van from the
passenger’s side carrying a small silver handgun in his right hand. The defendant looked in
several directions, and then proceeded to wrap the weapon in a black cloth and move quickly
across the street, where he placed the weapon under the front porch of a residence. The
defendant then returned to the passenger’s side of the van and closed the door. The police later
recovered the black cloth from under the porch, and found it to contain the loaded handgun,
along with baggies of cocaine and cannabis. The police approached the van and arrested the
defendant and the other male occupant.
¶4 The State submitted several exhibits into evidence, including a certified copy of the
defendant’s underlying conviction for failure to report an accident, a Class 1 offense.
Following arguments, the court found the defendant guilty of possession of a controlled
substance under count I of the indictment. As to counts IV through VII alleging UUW, the
court made the following statement:
“THE COURT: I also find him guilty of the four counts which I do find merge, the
Class II possession–unlawful use of a weapon by a felon I think on a parolee, I guess
that would be a finding of not guilty as parolee. I don’t think that was proved beyond a
reasonable doubt, but the UUW by a felon is a finding of guilty.”
¶5 The court found the defendant guilty of counts VI and VII, but reiterated its finding of not
guilty as to counts IV and V, on the basis there was “no evidence that the defendant was on
parole or mandatory supervised release” at the time of the offense.
¶6 At the commencement of the sentencing hearing several weeks thereafter, the State
requested that the court “revisit” its acquittal on counts IV and V. The State argued that the fact
of the defendant’s parole status amounted to a sentence “enhancement” under the Code and
therefore did not need to be proven at trial. The State pointed out that there was no dispute
between the parties that the defendant was on parole at the time of the offense, and defense
counsel agreed to stipulate to this fact. The court observed that a finding of guilty on counts IV
and V would elevate those convictions from Class 3 to Class 2, but stated that “it’s not going to
affect the sentencing as far as the numbers.” The court then revised its finding to one of guilty
on all four counts of UUW, two as Class 3 offenses and two elevated to Class 2 status. The
court also found that the defendant was required to be sentenced as a Class X offender (see 730
ILCS 5/5-4.5-95(b) (West 2012)) but that in light of his mitigating factors, it was “not going to
give [the defendant] near the maximum.” The court then sentenced the defendant to four
concurrent terms of 10 years’ imprisonment for each count of UUW, followed by 3 years’
mandatory supervised release for the controlled substances conviction. The defendant now
appeals.
¶7 The defendant first argues that the trial court exposed him to double jeopardy with regard
to the convictions under counts IV and V, by finding him not guilty at trial based upon the
State’s failure to prove his parole status and then rescinding this finding at sentencing when the
State came forward with such proof. The State has conceded this point, and agrees that we
must vacate the convictions under counts IV and V on the basis of double jeopardy.
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Accordingly, we vacate the defendant’s two “convictions” for UUW based upon his status as a
parolee, and remand for resentencing on the two remaining Class 3 convictions for UUW.
¶8 We now consider whether, during resentencing, double jeopardy must also bar the State
from seeking to use the defendant’s parole status to enhance his sentences for the remaining
two UUW convictions.
¶9 As an initial matter, we address the State’s assertion that the defendant has forfeited any
challenge to his sentence determination because he failed to make an objection before the trial
court. It is well-settled that in order to preserve a sentencing challenge for review on appeal,
the defendant must both object at the sentencing hearing and raise the issue in a postsentencing
motion. People v. Powell, 2012 IL App (1st) 102363 (citing People v. Freeman, 404 Ill. App.
3d 978, 994 (2010)). A sentencing issue that has been forfeited nonetheless may be subject to
review where it amounts to a plain error affecting substantial rights. People v. Henry, 204 Ill.
2d 267, 281 (2003); People v. Cervantes, 2013 IL App (2d) 110191. A conviction that violates
double jeopardy is a substantial injustice and may be reviewed as plain error. Cervantes, 2013
IL App (2d) 110191, ¶ 21 (citing People v. Brown, 227 Ill. App. 3d 795, 797-98 (1992)). We
will therefore review this issue as a matter involving substantial rights.
¶ 10 Section 24-1.1(a) makes it “unlawful for a person to knowingly possess on or about his
person *** any firearm or any firearm ammunition if the person has been convicted of a felony
under the laws of this State.” 720 ILCS 5/24-1.1(a) (West 2010).
¶ 11 Section 24-1.1(e) states:
“(e) Sentence. *** Violation of this Section by a person who is on parole or
mandatory supervised release is a Class 2 felony for which the person, if sentenced to a
term of imprisonment, shall be sentenced to not less than 3 years and not more than 14
years.” 720 ILCS 4/24-1.1(e) (West 2010).
¶ 12 The State asserts that, under the above sections of the Code, the defendant’s parole status
was merely a sentence enhancement, and as such, did not need to be proven at trial, but instead
could properly have been submitted to the trial court at sentencing. The court’s initial acquittal
on counts IV and V was based upon its mistaken belief that the State was required to prove the
defendant’s parole status at trial, and when it recognized its error at sentencing, it correctly
revised its finding to guilty. Accordingly, the State contends, while the initial acquittal on
counts IV and V must stand, the enhancement under section 24-1.1(e) may be applied to the
remaining convictions because the defendant’s parole status was proven beyond a reasonable
doubt. We disagree.
¶ 13 Our federal and state constitutions provide that no person shall be put in jeopardy twice for
the same criminal offense. U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10. The double
jeopardy clause provides three categories of protection for a defendant, namely (1) protection
against a second prosecution after an acquittal for an offense; (2) protection from a second
prosecution after a conviction; and (3) protection against multiple punishments for the same
offense. People v. Gray, 214 Ill. 2d 1, 6 (2005); People v. Dinelli, 217 Ill. 2d 387, 403 (2005).
It is well settled that, once attached, double jeopardy precludes re-prosecution following a
court-decreed acquittal, even if the acquittal is based upon an erroneous foundation. Evans v.
Michigan, 568 U.S. ___, ___, 133 S. Ct. 1069, 1074 (2013) (quoting Fong Foo v. United
States, 369 U.S. 141, 143 (1962)); Cervantes, 2013 IL App (2d) 110191, ¶ 25. Double
jeopardy has been found to apply where the acquittal was based upon the court’s mistaken
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understanding of the evidence necessary to sustain a conviction (Smith v. Massachusetts, 543
U.S. 462, 473 (2005)), or where the court misconstrues the statute defining the requirements to
convict. Evans, 568 U.S. at ___, 133 S. Ct. at 1074 (quoting Arizona v. Rumsey, 467 U.S. 203,
211 (1984)).
¶ 14 In Evans, the Court held retrial was barred after the trial court granted an acquittal based
upon the State’s failure to prove an “element” of the offense which, in actuality, it did not have
to prove. The Court held that, while the acquittal was clearly predicated upon the trial court’s
misunderstanding of the law, it was an acquittal nonetheless. An “acquittal” includes any
ruling that the State’s evidence is insufficient to convict, or “any other” ruling that “relate[s]
‘to the ultimate question of guilt or innocence.’ ” Evans, 568 U.S. at ___, 133 S. Ct. at 1075
(quoting United States v. Scott, 437 U.S. 82 (1978)); see also Cervantes, 2013 IL App (2d)
110191. The Court concluded that, as the trial court’s ruling resolved the ultimate question of
guilt or innocence, the error bore only upon the accuracy of the determination to acquit but not
its essential character. Evans, 568 U.S. at 1076.
¶ 15 In this case, there is no dispute that the convictions under counts IV and V were the product
of a “second prosecution after an acquittal,” so as to be barred by double jeopardy. In initially
acquitting the defendant, trial court apparently believed either that his parole status was an
element of the UUW offense or that it otherwise had to be proven at trial. Regardless of the
basis for the court’s decision, or the accuracy of that basis, the court ruled that the State failed
to prove the offense of Class 2 UUW beyond a reasonable doubt. The State is therefore
precluded under Evans from using the defendant’s parole status on remand to reestablish Class
2 UUW, as this would amount to a second prosecution for the same offense of which he was
already acquitted. We point out that, in rendering this decision, we make no judgment as to
whether or not parole status constitutes and “element” of UWW or whether it must be proven
at trial beyond a reasonable doubt under section 24-1.1(e). Based upon this determination, we
find it unnecessary reach the defendant’s alternate arguments, that his concurrent convictions
under both Class 2 and Class 3 UUW by a felon violate the one-act, one-crime doctrine, or that
his sentencing as a Class X felon relied upon an improper double enhancement.
¶ 16 We next address the defendant’s argument that one of his two remaining convictions for
UUW must be vacated, where the language of section 24-1.1 does not authorize multiple
convictions based upon the possession of a single, loaded firearm. We disagree.
¶ 17 As stated above, section 24-1.1(a) of the Code precludes a person from knowingly
possessing “any firearm or any firearm ammunition” if such person has been convicted of a
felony. 720 ILCS 5/24-1.1(a) (West 2010). Section 24-1.1(e) renders the “possession of each
firearm or firearm ammunition” under this section to be a “single and separate violation” of the
section. 720 ILCS 5/24-1.1(e) (West 2010). In People v. Anthony, 2011 IL App (1st)
091528-B, we were presented with the same argument the defendant raises here, that these
sections permit prosecution for possession of a weapon and separate ammunition, but not a
weapon loaded with ammunition. We rejected the argument, construing section 24-1.1(e) as
clearly and unambiguously allowing for multiple convictions based upon the single act of
possessing a firearm containing ammunition. Id. We noted that a review of the statute reveals
no exception for situations where the ammunition is loaded into the handgun, and refrained
from reading such an exception into it. Anthony, 2011 IL App (1st) 091528-B (citing People v.
Carter, 213 Ill. 2d 295, 301 (2004)).
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¶ 18 The defendant urges that we decline to follow Anthony, and instead refers us to the
supreme court’s decision in Carter, 213 Ill. 2d 295, and the legislative history of section
24-1.1(e). We are not persuaded by the defendant’s argument. Section 24-1.1(e) was amended
in 2005, in response to Carter, in order to alleviate an ambiguity in the statute as found by that
court. The amendment added the sentence that possession of “each firearm or firearm
ammunition” would constitute a “single and separate violation” under the section. We are
persuaded by the reasoning in Anthony, that the amendment expressly authorized multiple
convictions for a defendant possessing a gun containing ammunition. See Anthony, 2011 IL
App (1st) 091528-B, ¶ 17. The defendant’s interpretation of the legislative intent would
produce an absurd result by leading to “greater punishment for a felon who possessed an
unloaded firearm and separately possessed firearm ammunition than would result for a felon
who possessed a loaded firearm.” Anthony, 2011 IL App (1st) 091528-B, ¶ 16. Accordingly,
we do not disturb the defendant’s remaining two convictions for UUW.
¶ 19 Last, the defendant seeks an adjustment of the fines and fees imposed by the trial court.
Specifically, he contends that the court erred in imposing a $5 electronic citation fee under
section 27.3(e) of the Clerks of Courts Act (705 ILCS 105/27.3(e) (West 2012)), and in failing
to offset his fees in the amount of $80 reflecting credit for time served in pre-sentence custody
as mandated under section 110-14(a) of the Code of Criminal Procedure of 1963 (725 ILCS
5/110-14(a) (West 2012)). The State has conceded these issues, and accordingly, the circuit
court is directed to reduce the defendant’s assessed fees by $85 to correct these errors.
¶ 20 The defendant also contends that court improperly assessed a $25 court services fee
because the offenses of which he was convicted do not fall within those enumerated under the
statute. See 55 ILCS 5/5-1103 (West 2012). We disagree. Construing the plain language of the
section as a whole, it is clear that the court must assess the court services fee in criminal cases
resulting in conviction. People v. Williams, 2011 IL App (1st) 091667-B, ¶ 18. In this case,
judgments of conviction were entered against the defendant making him eligible for the court
services fee.
¶ 21 For the foregoing reasons, we reverse the judgments of conviction and vacate the sentences
for two counts of Class 2 UUW under section 24-1.1(e), and affirm the defendant’s remaining
convictions. We remand this case for resentencing and for readjustment of the fees and costs in
accordance with this opinion.
¶ 22 Affirmed in part, reversed and vacated in part, and remanded with directions.
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