People v. Whalum

2014 IL App (1st) 110959-B
FIRST DIVISION
Modified Opinion filed November 10, 2014
No.1-11-0959
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County, Illinois
)
v. ) No. 10 CR 11294
)
DAMIAN WHALUM, ) Honorable
) Nicholas Ford,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Connors and Simon concurred in the judgment and opinion.
OPINION
¶1 This cause comes before us on remand from our supreme court to determine whether a
different result is warranted in our December 24, 2012, decision in People v. Whalum, 2012 IL
App (1st) 110959, in light of its March 20, 2014, decision in People v. Easley, 2014 IL 115581.
People v. Whalum, 2014 IL 115582. We held that the State failed to give defendant notice
pursuant to section 111-3(c) of the Code of Criminal Procedure of 1963 of its intent to seek an
increase in the classification of defendant's conviction for unlawful use of a weapon by a felon
(720 ILCS 5/24-1.1(a), (e) (West 2010)) from a Class 3 offense to a Class 2 offense. Whalum,
2012 IL App (1st) 110959, ¶ 37. Our supreme court in Easley held that notice to a defendant,
also convicted of unlawful use of a weapon by a felon, albeit for a second time (720 ILCS
5/24-1.1(a) (West 2008)), did not have to be given because "section 111-3(c) applies only when
the prior conviction is not an element of the offense." Easley, 2014 IL 115581, ¶ 19. Our
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supreme court explained that the defendant's prior conviction as charged in the indictment, i.e.,
his first conviction for unlawful use of a weapon by a felon, was a required element of the
offense with only one resulting possible classification of felony. Id.; see 720 ILCS 5/24-1.1(e)
(West 2008) (providing that "second or subsequent violation" of the unlawful use of a weapon by
a felon statute results in "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").
¶2 In this case, 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 underlying felony, as put forth in the
State's charging instrument, was defendant's felony conviction for "delivery of a controlled
substance *** under the laws of the State of Wisconsin." After carefully considering Easley,
we hold that under the unique facts of this case, a different result is not warranted. Section
24-1.1(e) of the Criminal Code of 1961 lists the classification and possible sentences for
unlawful use of a weapon by a felon violations. 720 ILCS 5/24-1.1(e) (West 2010).
Defendant's Wisconsin felony conviction for delivery of a controlled substance is not listed as an
elevated classification under section 24-1.1(e). 720 ILCS 5/24-1.1(e) (West 2010). Therefore,
the State needed to provide defendant here, unlike the defendant in Easley, with notice pursuant
to section 111-3(c) of the Code of Criminal Procedure in order to enhance the classification of
the offense by using another one of defendant's felony convictions not stated in the charging
instrument. 725 ILCS 5/111-3(c) (West 2010). The State, however, failed to do so.
Therefore, on remand, defendant's conviction should be classified as a Class 3 felony.
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No. 1-11-0959
¶3 BACKGROUND
¶4 We will only address the facts relevant to our supreme court's holding in Easley. A more
in-depth discussion of the facts of defendant's arrest and trial can be found in our prior opinion and
need not be repeated here. Whalum, 2012 IL App (1st) 110959,¶ ¶4-15.
¶5 The State charged defendant by information with two counts of unlawful use of a weapon
by a felon. Under count I, the State charged defendant with committing the unlawful use of a
weapon by a felon as follows:
"He, knowingly possessed on or about his person firearm
ammunition, to wit: .357 caliber rounds, after having been
previously convicted of the felony offense of delivery of a
controlled substance, under case number 03CF000296, under the
laws of the State of Wisconsin."
Count II is identical to count I, except the firearm ammunition listed was ".40 caliber rounds." 1
¶6 After trial, 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.
¶7 At sentencing, the State asserted that due to defendant's 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. The State also informed the court that defendant had
been convicted in Wisconsin of the following three misdemeanor offenses: resisting or obstructing
1
In our prior opinion, we held the circuit court merged defendant's two convictions under
one count. Whalum, 2012 IL App (1st) 110959, ¶ 42.
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a police officer, battery, and disorderly conduct. After considering the evidence in aggravation
and mitigation, the presentence investigative report, the arguments of counsel, and the evidence at
trial, the circuit court found that because defendant had two prior Class 2 felonies, it had to
sentence him 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.
¶8 Defendant raised one trial issue and several issues regarding his sentence on appeal.
Whalum, 2012 IL App (1st) 110959, ¶ 1. The State disputed the trial issue and two of defendant's
sentencing issues, but agreed that the matter had to be remanded for resentencing because the
circuit court improperly sentenced defendant as a Class X offender and that defendant's mittimus
needed correction to reflect the full number of days spent in custody prior to sentencing. Id. We
entered judgment in the State's favor regarding the trial issue but in defendant's favor regarding the
disputed sentencing issues. Id. Relevant here, we held that the State failed to provide defendant
notice according to section 111-3(c) of the Code of Criminal Procedure (725 ILCS 5/111-3(c)
(West 2010)) of its intention to seek an enhanced felony classification and sentence for defendant's
conviction for unlawful use of a weapon by a felon (720 ILCS 5/24-1.1 (a), (e) (West 2010)).
Whalum, 2012 IL App (1st) 110959, ¶37.
¶9 ANALYSIS
¶ 10 As discussed in our previous opinion, the parties agreed that the circuit court improperly
sentenced defendant as a Class X offender and that defendant's mittimus needed to be corrected
to reflect 261 days of presentence credit. Whalum, 2012 IL App (1st) 110959, ¶¶ 1, 28-29.
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No. 1-11-0959
We also held that defendant's mittimus needed further correction to reflect only one conviction
for unlawful use of a weapon by a felon. Id. ¶¶ 39-42. Below we will address, in light of our
supreme court's decision in Easley, whether a different result is warranted on the issue of
whether the State was required to provide defendant notice pursuant to section 111-3(c) of the
Code of Criminal Procedure (725 ILCS 5/111-3(c) (West 2010)) of its intention to seek an
enhanced classification of defendant's conviction.
¶ 11 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.
725 ILCS 5/111-3(c) (West 2010). Defendant admits that he did not properly preserve this
issue for appellate review, but contends that his sentence is void and, therefore, can be
challenged at any time.
¶ 12 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 on defendant's
prior conviction; rather, it was imposing the sentence that 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. 720 ILCS 5/2-8 (West 2010).
¶ 13 In supplemental briefing before this court, defendant argues that his prior conviction that
the State alleged in its charging instrument, i.e. his Wisconsin conviction for delivery of a
controlled substance, cannot support a Class 2 felony as section 24-1.1(e) of the Criminal Code
(720 ILCS 5/24-1.1(e) (West 2010)) lists only Illinois convictions. Defendant maintains this
court should rely on the plain language of section 24-1.1(e) of the Criminal Code. 720 ILCS
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No. 1-11-0959
5/24-1.1(e) (West 2010). In response, the State argues defendant's Wisconsin conviction for
delivery of a controlled substance is at least the equivalent of a Class 2 felony under the Illinois
Controlled Substances Act which requires a Class 2 sentence. The State argues defendant's
interpretation of section 24-1.1 of the Criminal Code (720 ILCS 5/24-1.1 (West 2010)) leads to
an absurd result.
¶ 14 We will review the merits of defendant's claim because he challenges his sentence as
void, an error that can be corrected at any time. People v. Arna, 168 Ill. 2d 107, 113 (1995).
Our review is de novo because it involves interpreting the construction of a statute. People v.
Robinson, 172 Ill. 2d 452, 457 (1996). In doing so, we must ascertain and give effect to the
legislature's intent. Easley, 2014 IL 115581, ¶ 16. The legislature's intent is best shown by
the plain and ordinary meaning of the language of the statute. Id.
¶ 15 Section 111-3 of the Code of Criminal Procedure addresses the requirements and form of
a criminal charging instrument. 725 ILCS 5/111-3 (West 2010); People v. Nowells, 2013 IL
App (1st) 113209, ¶ 23. Subsection (c) of section 111-3 provides, in relevant part:
"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
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No. 1-11-0959
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(c) (West 2010).
¶ 16 Section 111-3(c) ensures "that a defendant received notice, before trial, of the offense for
which he is charged." (Emphasis in original.) People v. Jameson, 162 Ill. 2d 282, 290 (1994).
In enacting the statute, the legislature "intended [the] 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.) Id. at 288. The
notice provision contained in section 111-3(c), however, "applies only when the prior conviction
that would enhance the sentence is not already an element of the offense." Easley, 2014 IL
115581, ¶ 19. Where a prior conviction is a required element of the offense, "only one class of
felony conviction is possible for the offense as alleged in the charging instrument." Id.;
Nowells, 2013 IL App (1st) 113209, ¶ 26 ("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").
¶ 17 In the case at bar, the State charged defendant by information with unlawful use of a
weapon by a felon for possessing ammunition "after having been previously convicted of the
felony offense of delivery of a controlled substance *** under the laws of the State of
Wisconsin" in violation of section 24-1.1(a) of the Criminal Code. 720 ILCS 5/24-1.1(a) (West
2010) ("It is unlawful for a person to knowingly possess *** any firearm ammunition if the
person has been convicted of a felony under the laws of this State or any other jurisdiction."
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No. 1-11-0959
(Emphasis added.)). At trial, the State proved, and defendant does not dispute here, that
defendant knowingly possessed the ammunition and, through a certified copy of his Wisconsin
conviction for delivery of a controlled substance, that he had a prior felony. Accordingly, under
section 24-1.1 of the Criminal Code, the class of the offense, and the possible sentence, is
dictated by subsection (e). 720 ILCS 5/24-1.1(e) (West 2010). An initial violation of section
24-1.1 by a person not in a penal institution results in a Class 3 felony, with a possible sentence
of between 2 and 10 years in prison. 720 ILCS 5/24-1.1(e) (West 2010). A second or
subsequent violation of section 24-1.1 results in a Class 2 felony with a sentencing range of
between 3 and 14 years in prison. 720 ILCS 5/24-1.1(e) (West 2010). The other Class 2
felonies, as dictated by Section 24-1.1(e) are as follows:
"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. 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
5/24-1.1(e) (West 2010).
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No. 1-11-0959
¶ 18 Applying defendant's underlying felony as stated in the charging instrument, i.e.,
"delivery of a controlled substance *** under the laws of the state of Wisconsin," to the possible
classification and sentences he could receive under section 24-1.1(e), we hold his Wisconsin
felony could only result in a Class 3 felony and a prison sentence of between 2 and 10 years.
720 ILCS 5/24-1.1(e) (West 2010). Defendant's Wisconsin felony does not fall under any of
the specific types of felonies listed under section 24-1.1(e) that require a violation to be classified
as a Class 2 felony because it is not a violation of article 24 of the Criminal Code of 1961, the
Firearm Owners Identification Card Act, the Illinois Controlled Substances Act, the Cannabis
Control Act, the Methamphetamine Control and Community Protection Act, or a second
violation of section 24-1.1. 720 ILCS 5/24-1.1(e) (West 2010). Similarly, it also does not fall
under any of the more general categories listed under section 24-1.1(e), i.e., a conviction for a
forcible felony, 2 stalking, aggravated stalking, or status as a parolee. 3 720 ILCS 5/24-1.1(e)
(West 2010). Had defendant's prior Wisconsin felony fallen into any one of the above
categories, defendant's conviction would be a Class 2 felony and notice under section 111-3(c) of
the Code of Criminal Procedure would not have been required because "such notice is
unnecessary when the prior conviction is already a required element of the offense and only one
class of felony is possible for that offense as alleged in the charging instrument." Easley, 2014
IL 115581, ¶ 24. Defendant's Wisconsin felony conviction for delivery of a controlled
substance, however, does not fall into any of the delineated categories under section 24-1.1(e).
720 ILCS 5/24-1.1(e) (West 2010).
2
See 720 ILCS 5/2-8 (West 2010) (for the list of forcible felonies.)
3
The State does not raise any argument that defendant was on parole at the time of his
arrest for the underlying conviction of delivery of a controlled substance.
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No. 1-11-0959
¶ 19 Accordingly, it follows that if the State wanted defendant's conviction for unlawful use of
a weapon by a felon to be a Class 2 felony, it could have done so by using a different prior
conviction or by giving defendant notice. The State could have used a different prior
conviction for the enhanced classification and sentence, one that falls under one of the categories
listed in section 24-1.1(e), as an element of the offense. This would have eliminated the need to
provide notice for an enhanced sentence under section 111-3(c) of the Code of Criminal
Procedure. Easley, 2014 IL 115581, ¶ 19. Or, the State could have used defendant's
Wisconsin felony conviction for delivery of a controlled substance, as it did, but given defendant
notice in the charging instrument according to section 111-3(c) of the Code of Criminal
Procedure. Here, as argued by the State, that other prior conviction is defendant's Wisconsin
conviction for substantial battery. 4 The State's failure to do either results in defendant's proper
felony classification being a Class 3 felony under section 24-1.1(e) and its resulting possible
prison sentence, 2 to 10 years. 720 ILCS 5/24-1.1(e) (West 2010).
¶ 20 The State's use of defendant's prior felony conviction for delivery of a controlled
substance under the laws of Wisconsin as an element in its charge of unlawful use of a weapon
by a felon makes this case factually unique because it does not fall into any of the Class 2 felony
categories in section 24-1.1(e) of the Criminal Code. 720 ILCS 5/24-1.1(e) (West 2010). We
disagree with the State's contention that notice under section 111-3(c) of the Code of Criminal
Procedure was not required because defendant's Wisconsin conviction for delivery of a
controlled substance would be the equivalent of a Class 2 or greater felony under the Illinois
4
As explained by the parties, Wisconsin has a category of battery titled substantial battery,
which is a step below aggravated battery. Wis. Stat. § 940.19 (2010). The parties dispute
whether a Wisconsin substantial battery is a forcible felony. Due to our conclusion in this case,
we need not resolve this dispute.
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No. 1-11-0959
Controlled Substances Act or one of the other drug related Acts listed in section 24-1.1(e) of the
Criminal Code. See 720 ILCS 5/24-1.1(e) (West 2010). The legislature's intent is best shown
by the plain and ordinary meaning of the language of the statute. Easley, 2014 IL 115581, ¶ 16.
Here, the legislature listed the following Illinois statutes specifically: the Illinois Controlled
Substances Act, Article 24 of the Criminal Code, the Firearm Owners Identification Card Act,
the Cannabis Control Act, and the Methamphetamine Control and Community Protection Act.
Had the legislature wanted to include violations of similar crimes in other states, it would have
done so. Presumably, it would have done so not by listing specific statutes but, rather, setting
out a general description of the crime. For example, within section 24-1.1(e), the legislature
listed the following crimes generally, without stating the specific Illinois statute they fall under,
as Class 2 felonies: a forcible felony, stalking, aggravated stalking, or status as a parolee. 720
ILCS 5/24-1.1(e) (West 2010). As discussed above, the prior conviction the State charged as an
element of the offense of unlawful use of a weapon by a felon, defendant's Wisconsin conviction
for delivery of a controlled substance, does not fall within any of the specific or general
categories listed under section 24-1.1(e).
¶ 21 The unique factual situation of this case also makes it distinguishable from other recent
Illinois cases where a defendant convicted of unlawful use of a weapon by a felon alleges
improper notice under section 113(c) of the Code of Criminal Procedure. In People v. Easley,
the defendant, like defendant here, was convicted of unlawful use of a weapon by a felon.
Easley, 2014 IL 115581, ¶ 1. Unlike defendant in the case at bar, however, the Easley
defendant's prior conviction supporting the charge, as stated in the indictment, was a prior
conviction for unlawful use of a weapon by a felon. Id. ¶ 22. Section 24-1.1(e) of the Criminal
Code provides that " 'any second or subsequent violation' " of the unlawful use of a weapon
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No. 1-11-0959
statute is a Class 2 felony with a sentencing range of 3 to 14 years' imprisonment. (Emphasis
omitted.). Id. ¶ 21 (quoting 720 ILCS 5/24-1.1(e) (West 2008)). Our supreme court held that
the notice provision of section 111-3(c) did not apply "because the State did not seek to enhance
defendant's sentence with his prior conviction. Rather, as alleged in the indictment, defendant's
Class 2 sentence was the only statutorily allowed sentence under section 24-1.1(e) of the
Criminal Code." Id. ¶ 22.
¶ 22 Other divisions of this court have also addressed similar factual situations to Easley and
held that notice according to section 111-3(c) of the Criminal Code of Procedure was not
necessary where the prior conviction used as an element of the crime of unlawful use of a
weapon mandated a specific classification under section 24-1.1(e). See Nowells, 2013 IL App
(1st) 113209, ¶ 24 (defendant's prior conviction for delivery of a controlled substance under the
Illinois Controlled Substances Act); People v. Wilbourn, 2014 IL App (1st) 111497, ¶ 4 (prior
conviction of aggravated battery resulting in great bodily harm, a forcible felony); People v.
Polk, 2014 IL App (1st) 122017, ¶ 13 (prior conviction of the forcible felony of conspiracy to
commit murder); People v. Lewis, 2014 IL App (1st) 122126, ¶¶ 29-30 (prior conviction of the
forcible felony of aggravated robbery); People v. Pryor, 2014 IL App (1st) 121792-B, ¶ 7 (prior
conviction for unlawful use of a weapon by a felon). In the case at bar, however, the State is
attempting to have defendant's conviction classified as a Class 2 felony based on a substantial
battery conviction from Wisconsin. Because the substantial battery conviction was not charged
as an element of the offense of unlawful use of a weapon by a felon, the State needed to provide
notice under section 111-3(c) of the Criminal Code of Procedure before the substantial batter
conviction could elevate the classification of the conviction from a Class 3 felony to a Class 2
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No. 1-11-0959
felony. 5 The State failed to do so here. Accordingly, on remand, defendant should be
classified and sentenced for a Class 3 felony.
¶ 23 To avoid confusion, we will repeat our conclusion from our initial opinion, but stress that
we have carefully considered our supreme court's holding in Easley upon reconsideration. The
unique facts of this case, specifically the State's use of defendant's Wisconsin felony conviction
for delivery of a controlled substance as the element of a prior felony conviction in the charging
instrument, render this case factually distinguishable to the facts of Easley. Accordingly, as
stated in our prior opinion, we affirm defendant's conviction but remand the matter for
resentencing. Whalum, 2012 IL App (1st) 110959, ¶ 1. Upon resentencing, defendant should
be sentenced for a Class 3 felony pursuant to section 24-1.1(e) of the Criminal Code. 720 ILCS
5/24-1.1(e) (West 2010). Defendant's mittimus should also be corrected to reflect 261 days of
presentence credit and a conviction for a single count of unlawful use of a weapon by a felon.
Whalum, 2012 IL App (1st) 110959, ¶¶ 1, 28-29, 42. Defendant's term of MSR should be also
be reduced to one year. Id. ¶ 44 (citing 730 ILCS 5/5-4.5-40 (l) (West 2010)).
¶ 24 CONCLUSION
¶ 25 The judgment of the circuit court of Cook County is affirmed in part, reversed in part, and
remanded for resentencing.
¶ 26 Affirmed in part and reversed in part; cause remanded for resentencing.
5
We stress that we make no judgment on whether defendant's substantial battery
conviction would qualify as a forcible felony under section 24-1.1(e). Rather, we merely hold
that if the State wanted to enhance the classification of defendant's felony from a Class 3 to a Class
2, it had to provide defendant with notice in this case because the substantial battery conviction
was not an element of the offense charged.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
DAMIAN WHALUM,
Defendant-Appellant.
No. 1-11-0959-B
Appellate Court of Illinois
First District, First Division
Modified Opinion filed November 10, 2014
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Connors and Simon concurred in the judgment and opinion.
Appeal from the Circuit Court of Cook County.
The Honorable Nicholas Ford, Judge Presiding.
Michael J. Pelletier, State Appellate Defender, Office of the State Appellate Defender,
203 North LaSalle Street, 24th Floor, Chicago, IL 60601, (Alan D. Goldberg and
Jeffrey Svehla, of counsel), for APPELLANT.
Anita Alvarez, State=s Attorney, County of Cook, Room 309, Richard J. Daley Center,
Chicago, IL 60602, (Alan J. Spellberg and John E. Nowak, of counsel), for APPELLEE.