People v. Whalum

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Whalum, 2012 IL App (1st) 110959Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DAMIAN WHALUM, Defendant-Appellant.
District & No. First District, Second Division
Docket No. 1-11-0959
Filed December 24, 2012
Held On appeal from defendant’s conviction for unlawful use of a weapon by
(Note: This syllabus a felon, the circumstances did not warrant relaxing the waiver rules
constitutes no part of pursuant to Sprinkle to allow consideration of defendant’s claim that the
the opinion of the court trial court improperly limited his cross-examination of the arresting
but has been prepared officer as to whether he was motivated by racial prejudice, but the cause
by the Reporter of was remanded for resentencing, since defendant was improperly
Decisions for the sentenced as a Class X offender and the mittimus did not reflect the
convenience of the correct time defendant was incarcerated prior to sentencing and should
reader.)
have indicated a conviction on only one count
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CR-11294; the
Review Hon. Nicholas Ford, Judge, presiding.
Judgment Affirmed in part and reversed in part; cause remanded for resentencing.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Jeffrey Svehla, all of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Michelle Katz, Tasha-Marie Kelly, and Gina DiVito, Assistant State’s
Attorneys, of counsel), for the People.
Panel PRESIDING JUSTICE HARRIS delivered the judgment of the court,
with opinion.
Justices Connors and Simon concurred in the judgment and opinion.
OPINION
¶1 A jury convicted defendant, Damian Whalum, of unlawful use of a weapon by a felon.
720 ILCS 5/24-1.1(a), (e) (West 2010). The circuit court sentenced defendant to a 10-year
prison term pursuant to the mandatory Class X sentencing provision in section 5-4.5-95(b)
of the Unified Code of Corrections based on defendant’s prior convictions in the state of
Wisconsin. 730 ILCS 5/5-4.5-95(b) (West 2010). Defendant first asks this court to review,
under either People v. Sprinkle, 27 Ill. 2d 398 (1963), or under the second prong of the plain
error doctrine, whether the circuit court improperly limited his counsel’s cross-examination
of the arresting officer. We decline to review the merits of defendant’s argument under either
the Sprinkle doctrine or the plain error doctrine because the circuit court properly limited
defense counsel’s cross-examination of the arresting officer. Defendant also raises several
issues regarding his sentence. The parties agree that the matter has to be remanded for
resentencing because the circuit court improperly sentenced defendant as a Class X offender
pursuant to section 5-4.5-95 (b) of the Unified Code of Corrections. 730 ILCS 5/5-4.5-95(b)
(West 2010). The parties also agree that defendant’s mittimus should be corrected to reflect
the full number of days he spent in custody prior to sentencing. The parties, however, dispute
the following issues: whether the circuit court erred in enhancing defendant’s sentence from
the Class 3 range into the Class 2 range and whether defendant’s mittimus should be
corrected to reflect that he was convicted of only one count of unlawful use of a weapon by
a felon. Based on the resolution of these two sentencing issues, defendant’s mittimus needs
further correction, according to statute, to reflect the proper amount of mandatory supervised
release defendant shall serve. We hold the circuit court erred when it sentenced defendant
as a Class X offender and when it sentenced defendant in the Class 3 range for the offense
of unlawful use of a weapon by a felon. We order the mittimus be corrected to reflect the
following: the proper amount of presentence custody credit, the correct term of mandatory
supervised release, and that defendant be sentenced to only one count of unlawful use of a
weapon by a felon.
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¶2 JURISDICTION
¶3 The circuit court sentenced defendant on February 25, 2011. Defendant timely filed his
notice of appeal on March 23, 2011. Accordingly, this court has jurisdiction pursuant to
article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and
606, governing appeals from a final judgment of conviction in a criminal case entered below.
Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).
¶4 BACKGROUND
¶5 The State charged defendant with two counts of unlawful use of a weapon by a felon.
Prior to trial, defendant filed a motion to quash his arrest and suppress evidence alleging that
the State had no legal justification for stopping his vehicle. At the hearing on the motion,
defendant called Officer Corey Pierce to testify. Officer Pierce testified that at approximately
12:35 p.m. on June 9, 2010, he was dressed in plain clothes when he stopped defendant for
not wearing a seat belt. He viewed defendant not wearing a seat belt when the car he was
driving was “traveling eastbound on 79th” while defendant was “going northbound from
Damen.” He estimated he was “maybe 20, 25 feet” away from defendant. After curbing
defendant’s vehicle, Officer Pierce observed defendant was not wearing a seat belt. Officer
Pierce then conducted a field interview of defendant and asked him for his driver’s licence,
which defendant could not produce. Officer Pierce testified that “for officer’s safety, my
partner put the passenger out of the vehicle. And as I looked down, I saw the suspect
ammunition on the rear driver’s side floor.” Officer Pierce clarified that defendant had a
passenger in his vehicle who was also detained during the traffic stop. He estimated that he
saw the bag of ammunition “five seconds after we took him out of the vehicle and detained
him.” After running the registration of the vehicle, it was determined that defendant did not
own the vehicle.
¶6 On cross-examination, Officer Pierce testified that he was on routine patrol at the time
of the incident. The ammunition recovered from the vehicle “was 28, .357 caliber rounds and
44, .40 caliber rounds.” He also issued defendant a citation for not wearing a seat belt and
for not being able to produce a valid driver’s license. On redirect examination, Officer Pierce
testified that it was later determined at the police station that defendant had a valid driver’s
license, but that he did not produce it on the scene. Officer Pierce could not recall if the
vehicle defendant was driving had tinted windows. The circuit court denied defendant’s
motion.
¶7 At trial, Officer Pierce testified for the State. Officer Pierce testified he was in plain
clothes as a passenger in an unmarked police1 vehicle driven by his partner, Officer Bolton.
They were assigned to the “Area 2 Saturation Division.” Officer Pierce explained that “[w]e
go around in high crime areas, all the five districts in that area for high crime, like for guns,
narcotics, things of that nature.” As during his pretrial testimony, Officer Pierce testified that
1
Officer Pierce later testified, both on direct examination and on cross-examination, that he
was in a marked police car. Officer Pierce’s partner, Officer Bolton, testified at trial that they were
dressed in plain clothes, but in a marked police car.
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they curbed defendant’s vehicle after observing that he was not wearing a seat belt. He
explained that defendant was in the driver’s seat, while a passenger was in the front
passenger side of the vehicle. Officer Pierce conducted a field interview, where defendant
failed to produce a driver’s licence. After defendant failed to produce a driver’s licence,
Officer Pierce asked defendant and the passenger to exit the vehicle. When defendant stepped
out of the vehicle, Officer Pierce “noticed some ammunition on the driver’s side floor.” The
ammunition was in the middle of the floorboard, “right where his feet were.” Officer Pierce
recovered 28, .357-caliber bullets and 44, .40-caliber bullets. The .357-caliber bullets were
boxed, but in a plastic bag while the .40-caliber bullets were loose in a plastic bag. Officer
Pierce testified that once he recovered the ammunition, defendant “just blurted out ‘I was
going to sell them.’ ” Officer Pierce handcuffed defendant for officer safety. He testified that
the driver’s side floorboard was not messy, and the bag of ammunition was in “plain view.”
¶8 On cross-examination, defense counsel asked Officer Pierce about the “Saturation Unit.”
The following exchange occurred:
“MR. GOLDBERG [defendant’s counsel]: What does saturation mean?
OFFICER PIERCE: You saturate the area. You go around the area, you know,
looking for suspicious people, things of that nature; drug hot spots, you know.
Q. Would it be fair to say saturate means to take from dry and turn into welt [sic]?
A. I guess you could say that.
Q. And so, a dry situation that day was you saw an Oldsmobile being driven by a
young black man, and he committed a serious violation for you to stop him?
A. Traffic violation, yes, sir.
***
Q. And that traffic violation was?
A. No seat belt.”
¶9 Defense counsel proceeded to cross-examine Officer Pierce about the facts of the traffic
stop. Officer Pierce testified that he and his partner asked defendant and the other passenger
in the vehicle to exit the vehicle. Officer Pierce handcuffed defendant for officer safety.
Defense counsel proceeded to ask Officer Pierce the circumstances of the field interview he
conducted. The following exchange then occurred between defense counsel, Officer Pierce,
and the court:
“MR. GOLDBERG: My question is, was your first question about field interview or
traffic citation?
OFFICER PIERCE: It was a field interview.
Q. So, you wanted to interview these two young black men driving the car, take them
out, handcuff them and then search the car?
THE COURT: I’m going to stop you right there. Earlier folks, I told you that you
should not be influenced by any sympathy, bias or prejudice.
This occurring right now, Mr. Goldberg’s intentional use of ‘young black men,’ is an
effort to make you think about sympathy, bias or prejudice and not what was going on
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out there on the street. Ethnicity is irrelevant in this case. There is no indication that the
officers’ actions had anything to do with any ethnicity.
Look at the witnesses and consider their testimony from the witness stand, and make
a decision predicated on what the answers they give. Everybody understand that?
JURORS: Yes.”
¶ 10 Officer Bolton’s testimony concerning the traffic stop was consistent with Officer
Pierce’s testimony. Officer Bolton additionally testified that, in addition to admitting as
much at the scene of the traffic stop, defendant also told him at the police station that he was
going to sell the ammunition. The State rested after successfully having defendant’s prior
certified copy of conviction for the felony offense of delivery of a controlled substance on
November 4, 2005, in the state of Wisconsin entered into evidence.
¶ 11 Defendant called his mother, Sharon Whalum, to testify on his behalf. Whalum testified
that both the vehicle that defendant was driving and the ammunition in the vehicle were hers.
She testified that she was a “disordered messy person” and that her car was also messy.
Whalum testified she kept the bullets in her car in “[a]nticipation of obtaining a FOID[2]
card.” She kept the bullets in her car so that her grandchild at home would not find them in
the house. She did not tell defendant that she had bullets in the car. On cross-examination,
Whalum testified that she did not have a “FOID” card on the date defendant was arrested,
but that she applied for one after defendant’s arrest. She also did not own a gun at the time
of defendant’s arrest, only the ammunition. Whalum testified she purchased the ammunition
from Walmart, but she did not have a receipt for the purchase. She bought the ammunition
“[t]o take to the range to practice.” On redirect examination, Whalum clarified that she kept
the bullets under the seat in a spot that was not visible. Following Whalum’s testimony, the
defense rested. The State called Officer Bolton in rebuttal before resting.
¶ 12 After deliberating, the jury returned a verdict finding defendant guilty of unlawful use
of a weapon by a felon. The circuit court denied defendant’s motion for a new trial.
¶ 13 At sentencing, the State asserted that although defendant was convicted of two counts of
unlawful use of a weapon by a felon, normally a Class 2 felony, due to his background, he
qualified for mandatory Class X sentencing of between 6 and 60 years’ imprisonment. The
State provided certified copies of conviction for the following five offenses, all from
Wisconsin: battery by a prisoner, bail jumping, “substantial battery intend bodily harm,”
“vehicle operator flee/elude,” and felony delivery of a controlled substance, which was the
predicate felony used to enhance defendant’s unlawful use of a weapon charge. The State
also informed the court that defendant had been convicted in Wisconsin of the following
three misdemeanor offenses: resisting or obstructing a police officer, battery, and disorderly
conduct. Defendant; his mother, Sharon Whalum; and a surrogate father, Darryl Robinson,
testified in mitigation on defendant’s behalf.
¶ 14 After considering the evidence in aggravation and mitigation, the presentence
investigative report, the arguments of counsel, and the evidence at trial, the circuit court
2
Whalum testified a “FOID card” is a “Firearm Identification Card.”
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found that because defendant had two prior Class 2 felonies, it had to sentence defendant as
a Class X offender. The court sentenced defendant to 10 years in prison with 2 years of
mandatory supervised release (MSR). The circuit court calculated that defendant should
receive 174 days of credit for time served. Although the mittimus initially showed
defendant’s sentence to include a two-year term of MSR upon his release from prison, the
circuit court issued a corrected mittimus showing defendant was to serve a three-year term
of MSR. The court made the following statement at the conclusion of the sentencing hearing:
“I’m going to find the two counts which he was convicted of merge. That’s a concurrent
sentence on both counts.” The mittimus indicated defendant was sentenced on both counts.
¶ 15 Defendant timely appealed.
¶ 16 ANALYSIS
¶ 17 Defendant raises one trial issue and several issues regarding his sentence. We will
address each issue in turn below.
¶ 18 Trial
¶ 19 Defendant first argues that the circuit court overstepped its role and violated his rights
to due process and confrontation when it prevented his counsel from cross-examining Officer
Pierce as to whether racial prejudice motivated the traffic stop that ultimately led to his
arrest. Defendant concedes that he did not properly preserve this issue for our review, but
urges this court to relax the rules on forfeiture in accordance with our supreme court’s
decision in People v. Sprinkle, 27 Ill. 2d 398 (1963), or alternatively, to review his claim of
error under the substantial rights prong of the plain error doctrine, claiming the error
involved his rights to due process and confrontation. He requests his conviction be reversed
and that he be allowed to have a new trial on remand.
¶ 20 In response, the State argues that no extraordinary circumstances exist to justify
relaxation of the forfeiture rules in this case. The State further argues plain error review is
also not appropriate because no error occurred in this case. Specifically, no error occurred
because the circuit court acted within its sound discretion when it stopped defense counsel
from pursuing a line of questioning that attempted to show that Officer Pierce stopped
defendant for racially motivated reasons because there was no evidence in the record of any
racial motivation for the traffic stop. The State characterizes defense counsel’s cross-
examination of Officer Pierce as irrelevant, badgering, harassing, remote and repetitive. The
State also points out that in addition to failing to object to the complained-of actions by the
circuit court, defendant also failed to set forth an offer of proof indicating the evidence to be
introduced. The State maintains that the alleged error by the circuit court was not a material
factor in defendant’s conviction and did not prejudice him.
¶ 21 Under the Sprinkle doctrine, the rules regarding forfeiture are applied less rigidly when
the trial judge’s conduct is at issue. People v. Hanson, 238 Ill. 2d 74, 117 (2010). Errors that
are not preserved for appellate review will only be excused “in extraordinary circumstances.”
People v. Thompson, 238 Ill. 2d 598, 612 (2010). Further, “relaxing the waiver rule is
warranted when the trial judge has overstepped its authority in the presence of the jury or
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when counsel is effectively prevented from objecting as any objection would have ‘fallen on
deaf ears.’ ” Hanson, 238 Ill. 2d at 118 (quoting People v. McLaurin, 235 Ill. 2d 478, 488
(2009)); see also McLaurin, 235 Ill. 2d at 488 (listing the extraordinary circumstances “as
when a trial judge makes inappropriate remarks to a jury [citation] or relies on social
commentary, rather than evidence, in sentencing a defendant to death”). Our supreme court
has stressed the importance of properly preserving issues for appeal and commented on the
limited application of Sprinkle, stating:
“We stress, however, that trial counsel has an obligation to raise contemporaneous
objections and to properly preserve those objections for review. Failure to raise claims
of error before the trial court denies the court the opportunity to correct the error
immediately and grant a new trial if one is warranted, wasting time and judicial
resources. [Citation.] That we have seldom applied Sprinkle to noncapital cases further
underscores the importance of uniform application of the forfeiture rule except in the
most compelling of situations.” McLaurin, 235 Ill. 2d at 488.
¶ 22 We hold that the extraordinary circumstances required to relax the rules on forfeiture and
address defendant’s argument on its merits are not present in this case. Defendant has not
shown that the trial judge overstepped his authority or that “any objection would have ‘fallen
on deaf ears.’ ” Hanson, 238 Ill. 2d at 118 (quoting McLaurin, 235 Ill. 2d at 488). First, the
trial judge in this case did not overstep his authority when he limited defense counsel’s cross-
examination of Officer Pierce. “A criminal defendant has a fundamental constitutional right
to confront the witnesses against him and this includes the right to conduct reasonable cross-
examination.” People v. Davis, 185 Ill. 2d 317, 337 (1998). As such, defendant has “[t]he
right to cross-examine a witness as to his biases, prejudices, or ulterior motives.” People v.
Gonzalez, 104 Ill. 2d 332, 337 (1984). However, “[i]t is well established that a trial judge
retains wide latitude insofar as the confrontation clause is concerned to impose reasonable
limits on such cross-examination based on concerns about harassment, prejudice, confusion
of the issues, the witness’ safety, or interrogation that is repetitive or of little relevance.”
People v. Harris, 123 Ill. 2d 113, 144 (1988); People v. Price, 404 Ill. App. 3d 324, 330
(2010) (“The right to cross-examination is not absolute, and the trial court is given broad
discretion to determine the extent of cross-examination at trial.”); People v. Faria, 402 Ill.
App. 3d 475, 479 (2010) (“the court may interject to avoid repetitive or unduly harassing
interrogation”).
¶ 23 In reviewing whether the trial judge improperly limited cross-examination of a witness,
we must review the whole record, as opposed to isolated instances in the record. Harris, 123
Ill. 2d at 144-45. Our supreme court has explained:
“As a reviewing court, we are not required to isolate the particular limitation on
cross-examination to determine whether reversible error has occurred. [Citation.] Rather,
‘the question in each case must finally be whether defendant’s inability to make the
inquiry created a substantial danger of prejudice by depriving him of the ability to test
the truth of the witness’s direct testimony.’ (United States v. Rogers (7th Cir. 1973), 475
F.2d 821, 827, quoting Fountain v. United States (5th Cir. 1967), 384 F.2d 624, 628.) In
answering this question the court must look to the record as a whole and the alternative
means open to the defendant to impeach the witness. [Citations.] Thus, if a review of the
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entire record reveals that the jury has been made aware of adequate factors concerning
relevant areas of impeachment of a witness, no constitutional question arises merely
because the defendant has been prohibited on cross-examination from pursuing other
areas of inquiry.” Id. at 145.
A trial judge may properly limit the scope of cross-examination if the defendant’s inquiry is
based on an uncertain or remote theory. People v. Tabb, 374 Ill. App. 3d 680, 689 (2007).
“When a line of questioning is objected to or denied by the trial court, the defendant must
set forth an offer of proof either to convince the trial court to allow the testimony or to
establish on the record that the evidence was directly and positively related to the issue of
bias or motive to testify falsely.” Id.; People v. Andrews, 146 Ill. 2d 413, 421 (1992) (“The
purpose of an offer of proof is to disclose to the trial judge and opposing counsel the nature
of the offered evidence and to enable a reviewing court to determine whether exclusion of
the evidence was proper. [Citation.] The failure to make an adequate offer of proof results
in a waiver of the issue on appeal.”). Further, the circuit court “is permitted to make rulings
without objections from counsel.” People v. Thigpen, 306 Ill. App. 3d 29, 40 (1999). We will
not reverse the circuit court’s decision to limit cross-examination absent an abuse of
discretion. Price, 404 Ill. App. 3d at 330; Tabb, 374 Ill. App. 3d at 689.
¶ 24 In this case, after reviewing the entire record, we cannot say the circuit court abused its
discretion when it limited defendant’s cross-examination of Officer Pierce. Defense counsel
extensively cross-examined Officer Pierce about the stop. Absent from the record is any
evidence of a racial motivation for the traffic stop that led to defendant’s arrest. Defendant’s
race was only brought up twice in the entire record, both times by defense counsel. During
the cross-examination of Officer Pierce, defense counsel commented to Officer Pierce that
“you saw an Oldsmobile being driven by a young black man,” before asking Officer Pierce
why he stopped defendant. Officer Pierce responded that he stopped defendant for not
wearing a seat belt. In the second instance, the one defendant complains of here, is when the
court objected when defense counsel again commented to Officer Pierce on cross-
examination, “So, you wanted to interview these two young black men driving the car, take
them out, handcuff them, and then search the car.” This court has held that cross-examination
may be limited where defendant’s inquiry is uncertain or remote. Tabb, 374 Ill. App. 3d at
689. In this case, both Officer Pierce and Officer Bolton testified they stopped defendant for
failure to wear a seat belt. Due to the complete lack of evidence of any racial motivation for
the stop, we find defendant’s allegation of a possible racial motivation for the traffic stop,
argued for the first time on appeal, is remote and uncertain. Accordingly, the circuit court
acted within its authority when it limited cross-examination of this remote and uncertain
theory.
¶ 25 Additionally, there is no evidence in the record that “any objection would have ‘fallen
on deaf ears.’ ” Hanson, 238 Ill. 2d at 118 (quoting McLaurin, 235 Ill. 2d at 488). In fact, in
his briefs before this court, defendant only complains of this one instance of alleged judicial
misconduct. As mentioned above, once the trial judge objected, defendant did not object or
make an offer of proof explaining the line of questioning he sought to pursue on cross-
examination. Defense counsel could have easily asked for a sidebar in order to make his
objections known on the record. See McLaurin, 235 Ill. 2d at 506 (Freeman, J., specially
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concurring) (noting that attorney’s fears of objecting to the conduct of a trial judge in front
of a jury could “be avoided if defense counsel asks for a sidebar and during the course of the
sidebar makes a standing objection to the question or comment for the record”). Nor did
defense counsel make any offer of proof to explain why he was phrasing the question as he
did. Accordingly, we hold that there are no extraordinary circumstances present in this case
to apply Sprinkle and address defendant’s contention on its merits.
¶ 26 In his reply brief, defendant asks us to review whether the circuit court erred in limiting
his cross-examination under the second prong of the plain error doctrine. However, in order
to proceed under either prong of the plain error doctrine, defendant must first show that an
error occurred. People v. Hillier, 237 Ill. 2d 539, 545 (2010) (“To obtain relief under this
rule, a defendant must first show that a clear or obvious error occurred.”). As discussed
above, the circuit court acted properly within its discretion when it limited defense counsel’s
cross-examination of Officer Pierce. Therefore, we decline to review the merits of
defendant’s argument under the plain error doctrine.
¶ 27 Sentencing
¶ 28 The parties agree that the matter has to be remanded for resentencing because the circuit
court improperly sentenced defendant as a Class X offender. We agree with the parties that
the circuit court improperly sentenced defendant as a Class X offender because the elements
needed to sentence defendant in the Class X range pursuant to section 5-4.5-95(b) of the
Unified Code of Corrections were not met. 730 ILCS 5/5-4.5-95(b) (West 2010).
¶ 29 We also agree with the parties’ contention that defendant’s mittimus should be corrected
to reflect the full number of days he spent in custody prior to sentencing. The circuit court
awarded him only 174 days of presentence credit. However, defendant was arrested on June
9, 2010, and remained in custody until he was sentenced on February 25, 2011, which would
entitle him to 261 days of presentence credit. This court has the authority to order the clerk
of the circuit court to correct the mittimus. People v. McCray, 273 Ill. App. 3d 396, 403
(1995). Accordingly, we direct the clerk of the court to correct the mittimus to reflect 261
days of presentence credit.
¶ 30 The parties, however, dispute the following issues: whether the circuit court erred in
enhancing defendant’s sentence from the Class 3 range into the Class 2 range; and whether
defendant’s mittimus should be corrected to reflect that he was convicted of only one count
of unlawful use of a weapon by a felon. Based on the resolution of these two sentencing
issues, defendant’s mittimus needs to be further corrected, according to statute, to reflect the
proper amount of mandatory supervised release defendant shall serve.
¶ 31 Enhanced Sentence
¶ 32 Defendant argues the circuit court erred when it enhanced his conviction from a Class
3 offense to a Class 2 offense because the State failed to give notice in its charging
instrument that it was seeking an enhanced sentence under section 111-3(c) of the Code of
Criminal Procedure of 1963. 725 ILCS 5/111-3(c) (West 2010). Defendant maintains that
even if the State had properly given him notice, his enhanced sentence would still be
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improper because none of his prior convictions qualify as a forcible felony within the
meaning of the statutory definition of the term. Defendant additionally argues that the State
did not show that defendant’s prior convictions involved great bodily harm such that they
could be considered a forcible felony under the residual clause of section 2-8 of the Criminal
Code of 1961. 720 ILCS 5/2-8 (West 2010). Defendant admits that he did not properly
preserve this issue for appellate review, but contends that his sentence is void and can be
challenged at any time.
¶ 33 In response, the State argues defendant forfeited review of this claim for failing to
properly preserve it for appellate review. Alternatively, the State argues that it was not
required to give defendant notice because it was not seeking an enhanced sentence based
upon defendant’s prior conviction; rather, it was imposing the sentence which was mandated
by statute. The State maintains that defendant’s Wisconsin convictions qualify as forcible
felonies under the residual clause of section 2-8 of the Criminal Code of 1961. 720 ILCS 5/2-
8 (West 2010).
¶ 34 Initially, we note that we will review the merits of defendant’s claim because he
challenges his sentence as void, which can be corrected at any time. People v. Arna, 168 Ill.
2d 107, 113 (1995). Further, our review is de novo because it involves interpreting the
construction of a statute. People v. Robinson, 172 Ill. 2d 452, 457 (1996). Section 24-1.1(e)
of the Criminal Code of 1961 provides, in relevant part:
“Violation of this Section *** 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 ***. Violation of this
Section by a person *** who has been convicted of a forcible felony *** 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).
¶ 35 Section 111-3(c) of the Code of Criminal Procedure of 1963, provides in relevant part:
“(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. *** 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 of classification of offense ***;
it does not include an increase in the sentence applied within the same level of
classification of offense.” 725 ILCS 5/111-3(c) (West 2010).
¶ 36 In People v. Jameson, our supreme court held:
“When the language of section 111-3(c) is considered in light of the legislative
history of that statute, it is evident that the legislature intended that statute to reach those
instances in which a prior conviction elevates the classification of the offense with which
a defendant is charged and convicted, rather than simply the sentence imposed.”
(Emphasis in original.) People v. Jameson, 162 Ill. 2d 282, 288 (1994).
¶ 37 In this case, the State charged defendant with two counts of unlawful use of a weapon by
a felon, but it did not say in the charging instrument what class of the offense it sought to
charge defendant. Under section 111-3(c) of the Code of Criminal Procedure, the State was
required to give defendant notice that it would seek to increase his classification of offense
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from a Class 3 offense to a Class 2 offense. It failed to do so here. Accordingly, on remand,
defendant should be sentenced for a Class 3 felony.
¶ 38 Conviction of One Count or Two Counts
¶ 39 Defendant next argues that this court should correct the mittimus to reflect that defendant
was only convicted of one count of unlawful use of a weapon by a felon, not two counts.
Defendant acknowledges his mittimus shows he was convicted of two counts of unlawful use
of a weapon by a felon, but argues that was improper where the circuit court stated, “I’m
going to find the two counts which [defendant] was convicted of merge.” Defendant admits
that immediately after stating that the counts merge, the circuit court also stated, “That’s a
concurrent sentence on both counts,” which would indicate that defendant was convicted of
two counts. Defendant argues that any ambiguity in the court’s statement is resolved by the
fact that the jury was only given two verdict forms: one guilty, which the jury signed, and one
not guilty. He also points out that the jury instructions did not indicate two counts based on
the two different types of bullets found when defendant was arrested.
¶ 40 In response, the State argues that defendant was charged with two counts of unlawful use
of a weapon by a felon because defendant possessed two different types of ammunition. It
points to the mittimus to show that defendant was found guilty of both counts. The State
maintains that the jury in the present case was given two general jury verdict forms, and that
four verdict forms were not necessary, relying on this court’s opinion in People v. Kulpa, 102
Ill. App. 3d 571, 576 (1981). The State admits that the court’s statements at sentencing were
“not entirely clear,” and that “[a]n oral pronouncement of the trial court controls, where the
pronouncement conflicts with the written judgment,” but maintains that the court’s statement
“[t]hat’s a concurrent sentence on both counts” is consistent with defendant’s conviction of
two counts. The State asserts that in the absence of a clear conflict between the court’s oral
pronouncement and the mittimus, the commitment order does not need to be amended.
¶ 41 Although a written order of the circuit court is evidence of the judgment of the circuit
court, the trial judge’s oral pronouncement is the judgment of the court. People v. Smith, 242
Ill. App. 3d 399, 402 (1993). “When the oral pronouncement of the court and the written
order are in conflict, the oral pronouncement controls.” Id.¶ 42 In this case, the mittimus and the trial judge’s oral ruling are in conflict because the
mittimus shows that defendant was convicted of two counts of unlawful use of a weapon by
a felon, but the trial judge made an oral finding that the counts merge. It is undisputed that
the trial court’s oral rulings control over its written order. Id. However, immediately after
stating the finding that the counts merge, the trial judge also stated “[t]hat’s a concurrent
sentence on both counts.” Unusually, this seems to indicate that the trial judge immediately
contradicted his own oral ruling because stating that defendant was to serve a concurrent
sentence indicates that the two counts did not merge. However, when the circuit court
announced defendant’s sentence, it stated “[t]his sentence, on this case, will be ten years
Illinois Department of Corrections.” Absent from this statement is any mention of concurrent
sentences, lending credence to defendant’s argument that the counts merge. We hold that
although defendant was convicted of two counts of unlawful use of a weapon by a felon, the
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circuit court intended to merge those two counts as shown by its specific statement that the
counts merge. Although it appears the circuit court immediately contradicted itself by
referring to “both counts,” our review of the trial judge’s oral pronouncement of defendant’s
sentence as 10 years in prison, without mention of both counts or concurrent sentences,
combined with the court’s direct statement that “the two counts for which he was convicted
of merge,” show the circuit court intended to merge defendant’s two convictions under one
count. Accordingly, the mittimus should be further corrected to reflect defendant’s
conviction for only one count of unlawful use of a weapon by a felon.
¶ 43 Mandatory Supervised Release
¶ 44 The parties agree that the circuit court’s imposition of a three-year MSR term was
improper. The imposition of an MSR term is automatic depending on the class of offense
defendant was convicted of. Due to our conclusion that defendant be sentenced on remand
in the Class 3 range, defendant’s MSR term on remand should be reduced to one year. 730
ILCS 5/5-4.5-40(l) (West 2010).
¶ 45 CONCLUSION
¶ 46 The judgment of the circuit court is affirmed in part, reversed in part, and remanded for
resentencing.
¶ 47 Affirmed in part and reversed in part; cause remanded for resentencing.
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