THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOVONTE BROWN, Defendant-Appellant.
No. 1-12-2651
APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
May 17, 2017
2017 IL App (1st) 122651-U
JUSTICE PUCINSKI delivered the judgment of the court. Justices Hyman and Mason concurred in the judgment.
THIRD DIVISION. NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
¶ 1 Held: Defendant‘s AHC conviction and sentence are affirmed pursuant to our supreme court‘s recent decision in People v. McFadden, 2016 IL 117424.
¶ 2 Following a joint bench trial with codefendant Lamar Washington, who is not a party to this appeal, defendant Jovonte Brown was found guilty of unlawful use of a weapon by a felon (UUWF), aggravated unlawful use of a weapon (AUUW), and armed habitual criminal (AHC). The trial court merged the convictions and sentenced defendant to six years’ imprisonment on the AHC count. Initially on appeal, we vacated, inter alia, defendant‘s AHC conviction under count
¶ 3 On September 28, 2016, the supreme court denied the State‘s petition for leave to appeal but entered a supervisory order directing us to vacate our judgment and to reconsider the matter in light of McFadden, 2016 IL 117424, to determine if a different result is warranted. In McFadden, our supreme court concluded that the defendant‘s status as a felon was unaffected by Aguilar and that the prior felony conviction precluded the defendant from possessing a firearm “until the judicial process has declared otherwise by direct appeal or collateral attack.” McFadden, 2016 IL 117424, ¶ 31.
¶ 4 For the reasons that follow, we conclude that a different result is warranted.
¶ 5 BACKGROUND
¶ 6 The record shows that a grand jury charged defendant and codefendants, Lamar Washington and Davon Reed1, with firearm-related offenses arising out of an incident on March 21, 2011, when Chicago police officers dispersed a group of men gathered around a makeshift memorial on the 3400 block of West Fulton Boulevard. As relevant here, the April 14, 2011, indictment charged defendant with: (1) count V, being an armed habitual criminal (
¶ 7 The record also shows that defendant was charged by information, in case number 08 CR 2016, with eight counts of AUUW, then convicted and sentenced to two years’ imprisonment on count I of AUUW, a Class 4 felony (
¶ 8 At trial, the evidence showed in relevant part, that at around noon on March 21, 2011, Chicago police officers Beckman and Gallagher assembled with members of the Eleventh District tactical team in response to a report that several armed men were gathered around a makeshift memorial on the 3400 block of West Fulton Boulevard. The officers converged on that location from various routes. Officers Beckman and Gallagher were approaching from the north alley of Fulton Boulevard when they heard over the “car-to-car” radio frequency that two individuals were running westbound on Fulton Boulevard. Upon reaching the mouth of the alley on St. Louis Avenue, the officers observed defendant running west on Fulton Boulevard. Officers Beckman and Gallagher pursued defendant in their unmarked vehicle and observed him remove a black handgun from his waistband and throw it onto the flat roof of a garage at 3455
¶ 9 Defendant presented testimony from Cynthia Coleman-Clark, a family friend who lived at 3446 West Fulton Boulevard, across the street from the makeshift memorial where defendant and several others were gathered. Standing on the steps of her front porch, Coleman-Clark did not observe anyone run from the police or any police officer recover a handgun from the roof of the garage at 3455 West Fulton Boulevard. Defendant also presented the testimony of Chicago police officer Alan Rogers, a member of the Eleventh District tactical team, who acknowledged that his case report did not indicate he made a radio call over the “car-to-car” frequency that two individuals were “fleeing westbound on Fulton.” In rebuttal, Officer Gallagher identified an aerial map of the 3400 block of West Fulton Boulevard showing that the garage at 3455 West Fulton Boulevard was not visible from the north side of West Fulton Boulevard.
¶ 10 Following closing arguments, the trial court found defendant guilty of UUWF, AUUW, and AHC. The trial court merged the UUWF and AUUW convictions into the AHC conviction and sentenced defendant to six years’ imprisonment on the AHC conviction.
¶ 11 ANALYSIS
¶ 13 The State responds in its supplemental brief that our supreme court was well aware of Montgomery and Siebold when it decided McFadden because it allowed McFadden to cite Montgomery as additional authority, McFadden made the same unsuccessful argument regarding Montgomery and Siebold in his rehearing petition that defendant [here] has raised in his supplemental brief,” and neither the majority nor the dissent in McFadden ultimately cited Montgomery or Siebold because they were not relevant. The State also responds that this court has already rejected previous attempts to distinguish AHC from UUWF, by categorizing UUWF as a “status-based” offense and AHC as a “conduct-based” offense. The State‘s position is well taken.
¶ 14 We observe that the same contentions defendant raises here were considered and rejected in People v. Perkins, 2016 IL App (1st) 150889, and People v. Faulkner, 2017 IL App (1st) 132884, and defendant offers no new grounds that would warrant a different result in this case. People v. Madej, 177 Ill. 2d 116, 165 (1997). In Perkins, the appellate court rejected the defendant‘s attempt to distinguish McFadden as inapplicable to AHC, explaining as follows:
“In order to sustain its burden to prove that a defendant is an armed habitual criminal, the State need only prove the fact of the prior convictions of enumerated offenses (id.; see People v. Tolentino, 409 Ill. App. 3d 598, 607, 351 Ill. Dec. 72, 949 N.E.2d 1167 (2011) (sufficient for State to present certified copies of defendant‘s prior convictions for qualifying offenses)), just as the State need only prove the fact of a prior felony conviction to support a UUWF conviction. Nothing in the armed habitual criminal statute requires a court to examine a defendant‘s underlying conduct in commission of the enumerated offenses[ ] in order to find that the State has sustained its burden of proof. And because here, as in McFadden, Perkins’ prior conviction had not been vacated prior to his armed habitual criminal conviction, they could properly serve as predicates for that conviction.” Perkins, 2016 IL App (1st) 150889, ¶ 7.
¶ 15 Here, as in Perkins and Faulkner, we disagree with defendant that McFadden is factually distinguishable and inapplicable to the case at bar and that United States Supreme Court precedent requires that his AHC conviction be reversed. Pursuant to McFadden, we conclude that defendant‘s prior AUUW conviction properly satisfied the predicate felony element of AHC. McFadden, 2016 IL 117424, ¶ 37. We incorporate the views expressed in Justice Hyman‘s
¶ 16 CONCLUSION
¶ 17 For the reasons stated, we affirm defendant‘s AHC conviction and sentence.
¶ 18 Affirmed.