People v. Tolentino
409 Ill. App. 3d 598
| Ill. App. Ct. | 2011Background
- Tolentino was tried by bench and convicted of attempted first degree murder of a peace officer, being an armed habitual criminal, and aggravated discharge of a firearm.
- Sentence: 28 years for attempted first degree murder, plus a 20-year firearm-enhancement, totaling 48 years, with two concurrent 20-year terms for AH crimes and aggravated discharge.
- Evidence included a December 16, 2005 shooting sequence near North and Kedzie, involving a ski-masked shooter and Tolentino’s pursuit by police.
- Police recovered a .25-caliber pistol at the scene and clothing/ghost gun evidence; DNA on a ski mask matched Tolentino to a reasonable degree.
- Tolentino contested the 20-year enhancement under 8-4(c); the State argued enhancements apply where firearm use is involved.
- The appellate court held Tolentino's conviction and sentences valid, remanding only to correct mittimus credit to 1,083 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 20-year enhancement for firearm use applies under 8-4(c). | People argues enhancements may attach when firearm used in attempted murder of a peace officer. | Tolentino contends subsection (A) carries no enhancement; only (B)-(D) provide firearm enhancements. | firearm enhancement properly applied to Tolentino's sentence |
| Whether armed habitual criminal conviction violates ex post facto. | People contends statute valid as applying to new possession offense; prior convictions simply qualify conduct. | Tolentino argues retroactive impact punishes pre-enactment conduct. | statute does not violate ex post facto |
| Whether aggravated discharge of a firearm and armed habitual criminal violate one-act, one-crime. | People argues no single act commits all offenses; multiple acts justify convictions. | Tolentino contends same act of possessing firearms supports multiple offenses. | none are lesser included offenses; convictions upheld |
| Whether mittimus credit properly reflects time served. | People concedes need to correct credit; amount disputed at 1,083 vs 1,084 days. | Tolentino seeks accurate calculation of presentence custody credit. | mittimus corrected to 1,083 days |
Key Cases Cited
- People v. Douglas, 371 Ill.App.3d 21 (Ill. App. 2007) (discusses applicability of firearm enhancements to independent subsections)
- People v. Leonard, 391 Ill.App.3d 926 (Ill. App. 2009) (armed habitual criminal not ex post facto; prior offenses as basis for new offense)
- People v. Bailey, 396 Ill.App.3d 459 (Ill. App. 2009) (affirms Leonard approach to ex post facto in AHCr statute)
- People v. Dunigan, 165 Ill.2d 235 (Ill. 1995) (habital criminal act as sentencing enhancement not substantive offense)
- People v. Levin, 157 Ill.2d 138 (Ill. 1993) (habital criminal act rationale; sentencing context)
- People v. Miller, 238 Ill.2d 161 (Ill. 2010) (discusses methods to identify lesser-included offenses; abstract elements approach)
- People v. Malchow, 193 Ill.2d 413 (Ill. 2000) (ex post facto standards applied to statutory interpretation)
- People v. Quinones, 362 Ill.App.3d 385 (Ill. App. 2005) (distinguishes multiple offenses and lesser included offenses under Miller framework)