People v. HowardPeople v. Howard
(Note: This syllabus constitutes no part of the opinion of the court but has beеn prepared by the Reporter of Decisions for the convenience of the reader.)
On appeal from defendant‘s convictions for possession of a controlled substance and four counts of unlawful use of a weapon by a felon, the trial court‘s initial acquittal on two counts of unlawful use of a weapоn by a felon based on its mistaken belief that the State had to prove defendant‘s parole status at trial exposed defendant to double jeopardy where that finding was rescinded at sentencing when the State did present proof that defendant was on parole; therefore, these two convictions based on defendant‘s status as a parolee were vacated and the cause was remanded for resentencing on the remaining two convictions for the unenhanced unlawful use of a weapon offense, which were properly based on the possession of a firearm loaded with ammunition.
¶ 1 A judge found the defendant, Antwan Howard, guilty of one сount of possession of a controlled substance under the Illinois Controlled Substances Act (Act) (
¶ 2 The defendant was charged by indictment with, inter alia, one count of possession of a controlled substance with intent to deliver under section 401(c)(2) of the Act, and four counts of UUW, a Class 3 offense, under Code section 24-1.1(a). The UUW charges (counts IV through VII) were all premised upon the same underlying fеlony conviction for failure to report an accident. Counts IV and VI were based upon the defendant‘s possession of a firearm, and counts V and VII were based upon his possession of the ammunition inside that firearm. Counts IV and V also contained notice that, pursuant to section 24-1.1(e) of the Code, the State would seek to have the defendant sentenced as a Class 2 offender on the basis that, at the time of the offense, he was on parole or mandatory supervised release.
¶ 4 The State submitted several exhibits into evidence, including a certified copy of the defendant‘s underlying conviction for failure to report an accident, a Class 1 offense. Following arguments, the court found the defendant guilty of possession of a controlled substance under count I of the indictment. As to counts IV through VII alleging UUW, the court made the following statement:
“THE COURT: I also find him guilty of the four counts which I do find merge, the Class II possession–unlawful use of a weapon by a felon I think on a parolee, I guess that would be a finding of not guilty as parolee. I don‘t think that was proved beyond a reasonable doubt, but the UUW by a felon is a finding of guilty.”
¶ 5 The court found the defendant guilty of cоunts VI and VII, but reiterated its finding of not guilty as to counts IV and V, on the basis there was “no evidence that the defendant was on parole or mandatory supervised release” at the time of the offense.
¶ 6 At the commencement of the sentencing hearing several weeks thereafter, the State requested that the court “revisit” its acquittal on counts IV and V. The State argued that the fact of the defendant‘s parole status amounted to a sentence “enhancement” under the Code and therefore did not need to be proven at trial. The State pointed out that there was no dispute between the parties that the defendant was on parole at the time of the offense, and defense counsel agreed to stipulate to this fact. The court observed that a finding of guilty on counts IV and V would elevate those convictions from Class 3 to Class 2, but stated that “it‘s not going to affect the sentencing as far as the numbers.” The court then revised its finding to one of guilty on all four counts of UUW, two as Class 3 offenses and two elevated to Class 2 status. The court also found that the defendant was required to be sentenced as a Class X offender (see
¶ 7 The defendant first argues that the trial court exposed him to double jeopardy with regard to the convictions under counts IV and V, by finding him not guilty at trial based upon the State‘s failure to prove his parole status and then rescinding this finding at sentencing when the State came forward with such proof. The State has conceded this point, and agrees that we must vacate the convictions under counts IV and V on the basis of double jeopardy.
¶ 8 We now consider whether, during resentencing, double jeopardy must also bar the State from seeking to use the defendant‘s parole status to enhance his sentences for the remaining two UUW convictions.
¶ 9 As an initial matter, we address the State‘s assertion that the defendant has forfeited any challenge to his sentence determination because he failed to make an objection before the trial court. It is well-settled that in order to preserve a sentencing challenge for review on appeal, the defendant must both object at the sentencing hearing and raise the issue in a postsеntencing motion. People v. Powell, 2012 IL App (1st) 102363 (citing People v. Freeman, 404 Ill. App. 3d 978, 994 (2010)). A sentencing issue that has been forfeited nonetheless may be subject to review where it amounts to a plain error affecting substantial rights. People v. Henry, 204 Ill. 2d 267, 281 (2003); People v. Cervantes, 2013 IL App (2d) 110191. A conviction that violates double jeopardy is a substantial injustice and may be reviewed as plain error. Cervantes, 2013 IL App (2d) 110191, ¶ 21 (citing People v. Brown, 227 Ill. App. 3d 795, 797-98 (1992)). We will therefore review this issue as a matter involving substantial rights.
¶ 10 Section 24-1.1(a) mаkes it “unlawful for a person to knowingly possess on or about his person *** any firearm or any firearm ammunition if the person has been convicted of a felony under the laws of this State.”
¶ 11 Section 24-1.1(e) states:
“(e) Sentence. *** Violation of this Section by a person who is on parole or mandatory supervised release is a Class 2 felony for which the pеrson, if sentenced to a term of imprisonment, shall be sentenced to not less than 3 years and not more than 14 years.”
720 ILCS 4/24-1.1(e) (West 2010).
¶ 12 The State asserts that, under the above sections of the Code, the defendant‘s parole status was merely a sentence enhancement, and as such, did not need to be proven at trial, but instead could properly have been submitted to the trial court at sentencing. The court‘s initial acquittal on counts IV and V was based upon its mistaken belief that the State was required to prove the defendant‘s parole status at trial, and when it recognized its error at sentencing, it correctly revised its finding to guilty. Accordingly, the State contends, while the initial acquittal on counts IV and V must stand, the enhancement under section 24-1.1(e) may be applied to the remaining convictions because the defendant‘s parole status was proven beyond a reasonable doubt. We disagree.
¶ 13 Our federal and state constitutions provide that no person shall be put in jeopardy twice for the same criminal offense.
¶ 14 In Evans, the Court held retrial was barred after the trial court granted an acquittal based upon the State‘s failure to prove an “element” of the offense which, in actuality, it did not have to prove. The Court held that, while the acquittal was clearly predicated upon the trial court‘s misunderstanding of the law, it was an acquittal nonetheless. An “acquittal” includes any ruling that the State‘s evidence is insufficient to convict, or “any other” ruling that “relate[s] ‘to the ultimate question of guilt or innocence.’ ” Evans, 568 U.S. at ___, 133 S. Ct. at 1075 (quoting United States v. Scott, 437 U.S. 82 (1978)); see also Cervantes, 2013 IL App (2d) 110191. The Court concluded that, as the trial court‘s ruling resolved the ultimate question of guilt or innocence, the error bore only upon the accuracy of the determination to acquit but not its essential character. Evans, 568 U.S. at 1076.
¶ 15 In this case, there is no dispute that the convictions under counts IV and V were the product of a “second prosecution after an acquittal,” so as to be barred by double jeopardy. In initially acquitting the defendant, trial court apparently believed either that his parole status was an element of the UUW offense or that it otherwise had to be proven at trial. Regardless of the basis for the court‘s decision, or the accuracy of thаt basis, the court ruled that the State failed to prove the offense of Class 2 UUW beyond a reasonable doubt. The State is therefore precluded under Evans from using the defendant‘s parole status on remand to reestablish Class 2 UUW, as this would amount to a second prosecution for the same offense of which he was already acquitted. We point out that, in rendering this decision, we make no judgment as to whether or not parole status constitutes and “element” of UWW or whether it must be proven at trial beyond a reasonable doubt under section 24-1.1(e). Based upon this determination, we find it unnecessary reach the defendant‘s alternate arguments, that his concurrent conviсtions under both Class 2 and Class 3 UUW by a felon violate the one-act, one-crime doctrine, or that his sentencing as a Class X felon relied upon an improper double enhancement.
¶ 16 We next address the defendant‘s argument that one of his two remaining convictions for UUW must be vacated, where the language of section 24-1.1 does not аuthorize multiple convictions based upon the possession of a single, loaded firearm. We disagree.
¶ 17 As stated above, section 24-1.1(a) of the Code precludes a person from knowingly possessing “any firearm or any firearm ammunition” if such person has been convicted of a felony.
¶ 19 Last, the defendant seeks an adjustment of the fines and fees impоsed by the trial court. Specifically, he contends that the court erred in imposing a $5 electronic citation fee under section 27.3(e) of the Clerks of Courts Act (
¶ 20 The defendant also contends that court improperly assessed a $25 court services fee because the offenses of which he was cоnvicted do not fall within those enumerated under the statute. See
¶ 21 For the foregoing reasons, we reverse the judgments of conviction and vacate the sentences for two counts of Class 2 UUW under section 24-1.1(e), and affirm the defendant‘s remaining convictions. We remand this case for resentencing and for readjustment of the fees and costs in accordance with this opinion.
¶ 22 Affirmed in part, reversed and vacated in part, and remanded with directions.