People v. Ephraim ( 2018 )

2018 IL App (1st) 161009
FIRST DIVISION
March 19, 2018
No. 1-16-1009
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee,
)
) No. 13 CR 16403
v.
)
DONZELL EPHRAIM, ) Honorable
) Thomas J. Byrne,
Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE PIERCE delivered the judgment of the court, with opinion.
Justices Harris and Simon concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant Donzell Ephraim was found guilty of armed habitual
criminal (AHC) (720 ILCS 5/24-1.7(a) (West 2012)), aggravated fleeing or attempting to elude a
peace officer (625 ILCS 5/11-204.1(a)(4) (West 2012)), and three counts of aggravated unlawful
use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(C); (a)(2), (a)(3)(C) (West 2012)).
The court sentenced defendant to concurrent prison terms of 12 years for AHC, 6 years for the
AUUW convictions, and 3 years for aggravated fleeing or attempting to elude a peace officer.
On appeal, defendant contends that the State failed to prove him guilty of AHC because his
conviction was predicated on his prior conviction for aggravated battery to a peace officer, which
is not a qualifying offense for AHC. He therefore requests we reverse his AHC conviction. We
reverse defendant’s conviction for AHC.
¶2 At trial, Chicago police officer Matthew Mellett testified that, on August 16, 2013, at
about 10:22 p.m., when he was on patrol in his squad car, he heard gunshots in the area of “5741
South Laflin.” At that location, people told Mellett, “they were shooting,” pointing to a “green
Buick Le Sabre.” Mellett turned on his lights and sirens and pursued the vehicle, which went
through two red lights and did not stop. The vehicle eventually stopped because it “spun out”
after it tried to turn. Mellett went to the vehicle and observed defendant in the driver’s seat.
¶3 Chicago police officer Steven Hefel testified that, at about 10:22 p.m., on August 16,
2013, he and his partner were alerted to a “police pursuit,” so they went to a location where they
could observe it. At Hefel’s parked location, he saw a police car following a “green Buick La
Sabre [sic]” and, as the vehicle approached Hefel’s car, the driver, identified as defendant,
stretched his arm outside the driver’s side window and “released” a “blue steal [sic] handgun.”
¶4 After the police cars passed him, Hefel went to the location where he saw the gun drop
and identified it as “blue steel 357 revolver.” He stayed with the gun until the evidence
technician arrived at the scene to recover it. Hefel then went to the location where the car chase
ended and identified the Buick LeSabre as the vehicle he saw drive by him. Later, he went to the
police station and identified defendant as the person he saw drop the gun.
¶5 The State presented a stipulation that Chicago police officer Philip Ryder, the evidence
technician, recovered a “Ruger Blackhawk handgun” and “6 expended shell casings” from that
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firearm. The court admitted into evidence a certified record from the Illinois State Police
showing that defendant had never been issued a Firearm Owner’s Identification (FOID) card.
¶6 The court also admitted into evidence certified copies of defendant’s prior convictions.
People’s Exhibit No. 7 was a conviction, in case No. 98-CR-0977701, for aggravated battery to a
peace officer, and People’s Exhibit No. 8 was “a conviction under case number 08-CR-0640501
for the offenses of unlawful use of a weapon by a felon, two counts of that, and three counts of
aggravated unlawful use of a weapon by a felon.”
¶7 The court found defendant guilty of AHC, aggravated fleeing or attempting to elude a
peace officer, and three counts of AUUW. The court denied defendant’s motion for a new trial
and sentenced him to prison terms: 12 years for AHC, 6 years for the AUUW convictions, and 3
years for aggravated fleeing or attempting to elude a peace officer. The court stated that “Count
Two, Three, Four,” the AUUW convictions, would “merge into Count One,” the AHC
conviction, and the aggravated fleeing or attempting to elude a peace officer would be served
concurrently with the “merged” AUUW and AHC.
¶8 Defendant contends, and the State concedes, that the State did not prove him guilty of
AHC because his conviction was based on his prior conviction for aggravated battery to a peace
officer, which is not a qualifying offense under the AHC statute. Defendant requests we vacate
his AHC conviction and correct the mittimus to show the six-year sentence for the AUUW
convictions. Defendant does not challenge his convictions for AUUW or aggravated fleeing or
attempting to elude a peace officer.
¶9 On appeal, when we review the sufficiency of the evidence, the question is whether,
“after viewing the evidence in the light most favorable to the prosecution, any rational trier of
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fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis
omitted.) Jackson v. Virginia, 443 U.S. 307, 319 (1979). The State must prove “every essential
element of the crime beyond a reasonable doubt.” People v. Lozano, 2017 IL App (1st) 142723,
¶ 30.
¶ 10 To prove defendant guilty of AHC, the State had to prove that he possessed a firearm
after having been convicted of two or more of the following offenses:
“(1) a forcible felony as defined in Section 2-8 of this Code;
(2) unlawful use of a weapon by a felon; aggravated unlawful use of a weapon;
aggravated discharge of a firearm; vehicular hijacking; aggravated vehicular hijacking;
aggravated battery of a child as described in Section 12-4.3 or subdivision (b)(1) of
Section 12-3.05; intimidation; aggravated intimidation; gunrunning; home invasion; or
aggravated battery with a firearm as described in Section 12-4.2 or subdivision (e)(1),
(e)(2), (e)(3), or (e)(4) of Section 12-3.05; or
(3) any violation of the Illinois Controlled Substances Act [(720 ILCS 570/100
et seq. (West 2012))] or the Cannabis Control Act [720 ILCS 550/1 et seq. (West 2012))]
that is punishable as a Class 3 felony or higher.” 720 ILCS 5/24-1.7(a) (West 2012).
See People v. Crosby, 2017 IL App (1st) 121645, ¶ 12.
¶ 11 The information charging defendant with AHC cited two predicate felony convictions for
the charge: a 1998 conviction for aggravated battery to peace officer and a 2008 conviction for
unlawful use of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1 (West 2008)). At trial, the
State presented certified copies of defendant’s prior convictions for aggravated battery to a peace
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officer in 1998 and UUWF in 2008. The parties do not dispute that defendant’s AHC conviction
was based on these prior two convictions.
¶ 12 The offense of aggravated battery to a peace officer is not an enumerated offense
described in subsection (a)(2) or (a)(3) of the AHC statute. Therefore, to qualify as predicate
offense for AHC, the prior aggravated battery to a peace officer conviction must be a “forcible
felony” under section 2-8 of the Criminal Code of 2012 (Code) (720 ILCS 5/2-8 (West 2012)).
See People v. White, 2015 IL App (1st) 131111, ¶ 28 (domestic battery was not expressly
enumerated in the AHC statute so it had to constitute a “forcible felony” to be a qualifying
offense for AHC).
¶ 13 Section 2-8 defines “[f]orcible felony” as
“treason, first degree murder, second degree murder, predatory criminal sexual assault of
a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary,
residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping,
aggravated battery resulting in great bodily harm or permanent disability or disfigurement
and any other felony which involves the use or threat of physical force or violence
against any individual.” 720 ILCS 5/2-8 (West 2012).
¶ 14 We conclude that defendant’s conviction for aggravated battery to a peace officer without
proof that the underlying battery resulted in great bodily harm or permanent disability or
disfigurement does not qualify as a forcible felony under section 2-8. Aggravated battery to a
peace officer is not specifically enumerated in section 2-8 as a forcible felony. See Crosby, 2017
IL App (1st) 121645, ¶ 13. “[A]ggravated battery resulting in great bodily harm or permanent
disability or disfigurement” is an enumerated offense in the forcible felony definition. 720 ILCS
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5/2-8 (West 2012); see Crosby, 2017 IL App (1st) 121645, ¶ 13. The offense of aggravated
battery can be based on the status of the victim without proof that the battery resulted in great
bodily harm or permanent disability or disfigurement. (“A person commits aggravated battery
when, in committing a battery, other than by discharge of a firearm, he or she knows the
individual battered to be *** (4) [a] peace officer ***.” 720 ILCS 5/12-3.05(d)(4) (West 2012).)
However, there is nothing in the record that shows, and the parties do not argue otherwise, that
defendant’s prior conviction for aggravated battery to a peace officer resulted in “great bodily
harm or permanent disability or disfigurement” to a peace officer. Thus, because the prosecution
did not prove beyond a reasonable doubt that defendant’s prior conviction for aggravated battery
to a peace officer resulted in “great bodily harm or permanent disability or disfigurement,” it is
not an enumerated offense in the forcible felony definition. (Internal quotation marks omitted.)
Crosby, 2017 IL App (1st) 121645, ¶ 13.
¶ 15 Further, defendant’s conviction for aggravated battery to a peace officer does not qualify
as an offense in the “residual clause” of the forcible felony definition, which includes “any other
felony which involves the use or threat of physical force or violence against any individual.” 720
ILCS 5/2-8 (West 2012); see White, 2015 IL App (1st) 131111, ¶ 40 (referring to this clause in
the forcible felony definition as a “residual clause”). As this court explained in People v.
Schmidt, 392 Ill. App. 3d 689, 695 (2009), “by using the word ‘other’ after listing 14 specific
felonies, the legislature clearly intended the residual category to refer to felonies not previously
specified.” Thus, “[w]here the statute specifically enumerated aggravated battery resulting in
great bodily harm or permanent disability or disfigurement, ‘other felony’ must refer to felonies
other than aggravated battery.” Schmidt, 392 Ill. App. 3d at 695.
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¶ 16 Looking to the history of the statute, Schmidt noted that, before the legislature amended
the forcible felony statute in 1990, the “statute provided that all aggravated batteries constituted
forcible felonies.” (Emphasis in original.) Schmidt, 392 Ill. App. 3d at 696. But when the
legislature amended the statute, it “added the phrase ‘resulting in great bodily harm or permanent
disability or disfigurement’ after ‘aggravated battery,’ ” thus expressing its “intent to limit the
number and types of aggravated batteries that would qualify as forcible felonies.” Schmidt, 392
Ill. App. 3d at 696 (quoting Pub. Act 86-291 (eff. Jan. 1, 1990) (amending 720 ILCS 5/2-8)). 1
¶ 17 In People v. Smith, 2016 IL App (1st) 140496, this court agreed with the reasoning in
Schmidt, finding that the “legislature intended the residual category of the forcible felony statute
to refer to felonies not previously specified in the preceding list of felonies contained within that
section.” Smith, 2016 IL App (1st) 140496, ¶¶ 10-11. Applying Schmidt, Smith concluded that,
because the defendant’s aggravated battery to a peace officer conviction was not based on great
bodily harm or permanent disability or disfigurement, it did not meet the definition of a forcible
felony. Smith, 2016 IL App (1st) 140496, ¶ 11.
¶ 18 More recently, in Crosby, 2017 IL App (1st) 121645, ¶ 13, following Schmidt and Smith,
this court concluded that, because the defendant’s conviction for aggravated battery of a peace
officer was not based on “great bodily harm or permanent disability or disfigurement,” it was not
considered an “other felony” under section 2-8 and therefore did “not satisfy the definition of
forcible felony.” (Internal quotation marks omitted.) The Crosby court therefore concluded that
1
Schmidt noted, “ ‘[a]lthough we believe our interpretation is what the legislature intended, we
would welcome further clarification by the legislature.’ ” Schmidt, 392 Ill. App. 3d at 696 (quoting People
v. Jones, 226 Ill. App. 3d 1054, 1056 (1992) (in which the court concluded that the definition of forcible
felony included “any aggravated battery that involved the use of physical force or violence against an
individual”)).
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the defendant’s conviction could not serve as a predicate offense to support the AHC conviction.
Crosby, 2017 IL App (1st) 121645, ¶ 13.
¶ 19 Following Schmidt, Smith, and Crosby, we find that, because defendant’s prior conviction
for aggravated battery to a peace officer was not proven to be based on a finding of “great bodily
harm or permanent disability or disfigurement,” his conviction does not meet the definition of a
“forcible felony” under section 2-8 as it is not an enumerated offense in the definition and does
not qualify as an “other felony” in the residual clause. Accordingly, because defendant’s
conviction for aggravated battery to a peace officer is not an enumerated offense in the AHC
statute and does not meet the definition of forcible felony in section 2-8, it cannot serve as a
predicate offense to support his AHC conviction. See Crosby, 2017 IL App (1st) 121645, ¶ 13.
We, therefore, reverse and vacate defendant’s conviction for AHC.
¶ 20 Defendant also argues, and the State concedes, that remand for resentencing is
unnecessary because the court already sentenced him to six years in prison for the three AUUW
convictions. Although the mittimus only reflects defendant’s 12-year sentence for AHC and 3­
year sentence for aggravated fleeing or attempting to elude a peace officer, defendant asserts the
sentence the trial court issued prevails over the sentence provided in the mittimus. He therefore
argues that, in addition to vacating his AHC conviction, we should issue an amended mittimus to
reflect his six-year sentence for AUUW.
¶ 21 We agree that remand for resentencing is unnecessary because the record shows the court
already issued concurrent sentences on defendant’s convictions for AUUW and aggravated
fleeing or attempting to elude a peace officer. As previously noted, at sentencing, the court orally
sentenced defendant to prison terms for his convictions: 12 years for AHC, 6 years for the three
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AUUW convictions, and 3 years for aggravated fleeing or attempting to elude a peace officer, to
be served concurrently with the “merged” AUUW and AHC counts.
¶ 22 Although the trial court sentenced defendant to six years in prison for the AUUW
convictions, the mittimus only reflects defendant’s sentences for AHC and aggravated fleeing or
attempting to elude a peace officer. Because the trial court’s oral pronouncement controls
(People v. Jones, 376 Ill. App. 3d 372, 395, (2007)), pursuant to our authority under Illinois
Supreme Court Rule 615(b), we order the clerk of the circuit court to correct the mittimus to
reflect that the circuit court sentenced defendant to six years in prison for the three AUUW
convictions.
¶ 23 For the reasons stated above, we reverse and vacate defendant’s AHC conviction and
order the mittimus corrected to show a six-year sentence of imprisonment on the AUUW counts.
¶ 24 Reversed in part; mittimus corrected.
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