*1 Illinois Official Reports
Appellate Court
People v. Pryor
,
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY PRYOR, Defendant-Appellant. Caption First District, Fifth Division District & No.
Docket No. 1-12-1792 Filed December 27, 2013
Held Defendant’s sentence for unlawful use or possession of a weapon by a felon was vacated and the cause was remanded for resentencing since ( Note: This syllabus the conviction was improperly enhanced from a Class 3 to a Class 2 constitutes no part of the offense where the charging instrument failed to give defendant the opinion of the court but has been prepared by the notice required by section 111-3(c) of the Code of Criminal Procedure Reporter of Decisions that an enhanced sentence was being sought.
for the convenience of
the reader. )
Decision Under Appeal from the Circuit Court of Cook County, No. 11-CR-3619; the Hon. Stanley J. Sacks, Judge, presiding. Review Sentence vacated; remanded for resentencing. Judgment Counsel on Michael J. Pelletier, Alan D. Goldberg, and James J. Morrissey, all of State Appellate Defender’s Office, of Chicago, for appellant. Appeal
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and John E. Nowak, Assistant State’s Attorneys, of counsel), for the People. *2 PRESIDING JUSTICE GORDON delivered the judgment of the
Panel
court, with opinion.
Justice Taylor concurred in the judgment and opinion.
Justice Palmer dissented, with opinion.
OPINION
Defendant Anthony Pryor was convicted of one count of unlawful use or possession of a
weapon (UUW) by a felon and sentenced to five years in prison. On this direct appeal,
defendаnt raises claims that challenge only his sentence. Defendant claims: (1) that his UUW
conviction was improperly enhanced from a Class 3 to a Class 2 offense where the State’s
charging instrument failed to provide the notice required by the Code of Criminal Procedure of
1963 (725 ILCS 5/111-3(c) (West 2010)) when the State was seeking an enhanced
classification of the offense; and (2) that defendant was subjected to an improper double
jeopardy enhancement because the same prior felony conviction was used both to prove an
element of the offense and to elevate the class of offense from a Class 3 to a Class 2 felony.
Since the second claim presents a constitutional issue and since we must always resolve a
case on a nonconstitutional issue when possible, we must consider the statutory issue first.
In
re E.H.
,
First District which invalidated Class 2 convictions for UUW when the State failed to comply
with the notice requirement in section 111-3(c) (725 ILCS 5/111-3(c) (West 2010)):
People v.
Easley
,
(Ill. Mar. 27, 2013). Thus, we will have a definitive answer shortly by our supreme court on the question that we are called upon to answer today. Unless and until directed otherwise by our supreme court, we decline the State’s request to conclude that our own recent precedent was wrongly decided. Thus, as we have done before in two prior cases from this district, we vacate defendant’s sentence and remand for resentencing as a Class 3 felony. BACKGROUND Since there is no factual issue before us and no issue concerning defendant’s conviction,
we set forth only the few relevant facts, which are the facts concerning the charging instrument and those concerning his sentencing.
¶ 7 Defendant was charged by information with two counts of UUW by a felon and with four
counts of aggravated UUW. Counts I and II, which were the two counts of UUW by a felon, were for possession of a firеarm and firearm ammunition, respectively. Both counts were based on defendant’s “having been previously convicted of the felony offense of unlawful use of weapon, under case number 07 CR 18901.”
¶ 8 Defendant was convicted of count I, which stated:
“Anthony Pryor committed the offense of unlawful use or possession of a weapon by a felon in that he knowingly possessed on or about his person any firearm, to wit, handgun, after having been previously convicted of the felony offense of unlawful use of a weapon, under case number 07 CR 18901, under the laws of the State of Illinois, in violation of Chapter 720, Act 5, Section 24-1.1(a) of the Illinois Compiled Statutes 1992 as amended ***.”
The count did not state whether it was charging a Class 2 or Class 3 felony, and it did not state that the prosecutor was seeking an enhanced sentence. The count, as written, appears to state that defendant’s prior conviction was a violation of
“Chapter 720, Act 5, Section 24-1.1(a).” The count states that defendant was “previously convicted of the felony offense of unlawful use of a weapon, under case number 07 CR 18901, under the laws of the State of Illinois, in violation of Chapter 720, Act 5, Section 24-1.1(a) of the Illinois Compiled Statutes 1992 as amеnded.” However, according to defendant’s presentence report, defendant’s prior conviction was a violation of section 24-1, not section 24-1.1. During trial, the State’s evidence established that defendant possessed a gun on the night of
February 7, 2011, and no issues are raised on appeal concerning the sufficiency of the State’s evidence. Before the State rested, the prosecutor stated, and the defense counsel agreed, that there
was “a stipulation by and between the parties that the defendant has a prior felony conviction under case number 07 CR 18901.” The stipulation did not state what the prior felony conviction was for, and the State did not introduce a certified copy of the conviction. The appellate record does not contain a certified copy of the conviction. Although the stipulation did not describe the prior offense, the subsequent presentence
report indicated that “Case # 07 CR 1891901” concerned a violation of “Statute 720-5/24-1(a)(7)(ii).” 720 ILCS 5/24-1(a)(7)(ii) (West 2010) (prohibiting the possession of a short-barreled shotgun). Following a bench trial, defendant was found guilty on January 3, 2012, of count I, quotеd
above. The trial court did not enter any findings on the remaining counts, and it sentenced defendant to a Class 2 sentence of five years in prison. At sentencing on May 29, 2012, the following discussion about the correct class of
sentence occurred:
“THE COURT: State, do you believe–It’s a Class Two, we know that, what’s the range on this kind of charge?
PROSECUTOR: Judge, it’s the State’s position it’s 3 to 14 years.
THE COURT: [Defense counsel], do you agree or disagree with the range? DEFENSE COUNSEL: It’s 3 to 7 years.
THE COURT: It’s not 3 to 7. I think it’s at least 3 to 10 but we’ll see. Will somebody get me the file on Pryor, please, the one that’s involved with the gun charge, 11 CR 3619.
PROSECUTOR: Judge, I have the statute. THE COURT: What is it?
PROSECUTOR: 720 ILCS 5/24-1.1. THE COURT: Okay. Thanks. It’s unlawful for any person to knowingly possess on or about his person on his own land or abode, et cetera, any weapon if convicted of a felony previously. So far that applies in this case. And then penalty, violation of this section for anyone I just read by a person not confined to a penal institution, he wasn’t confined at the time of the offense, it would be a Class Three felony. The person shall be sentenced to a term of not less than 2, no more than 10 years. Okay. So it’s 2 to 10. State agree or disagree?
PROSECUTOR: Judge, I disagree. I think if there’s a prior gun conviction it beсomes 3 to 14.
THE COURT: Okay, let’s see if you’re right about that. The State is right, it’s a Class Two, it carries 3 to 14. It’s a very long sentencing paragraph, it takes about three inches, the print is small. [The prosecutor] is correct. It’s a Class Two, 3 to 14 as opposed to 2 to 10. It won’t be the top number anyway so it’s academic but it’s 3 to 14. ***
On the case before me, the weapons charge, 11 CR 3619, he’ll be sentenced to five years in the Department of Corrections.”
When the trial court observed “the State is right,” defense counsel did not object. The trial court then sentenced defendant to a Class 2 sentence of five years in prison, and the mittimus also reflects a five-year sentence for a Class 2 felony. Defendant did not file a postsentencing motion and instead filed a notice of appeal on June 1, 2012; and this timely appeal followed. ANALYSIS On this direct appeal, defendant claims: (1) that his UUW conviction was improperly enhanced from a Class 3 to a Class 2 offense where the State’s charging instrument failed to provide the notice required by the Code of Criminal Procedure of 1963 (725 ILCS 5/111-3(c) (West 2010)) that the State was seeking an enhanced classification of the offеnse; and (2) that defendant was subjected to an improper double jeopardy enhancement because the same prior felony conviction was used both to prove an element of the offense and to elevate the class of offense from a Class 3 to a Class 2 felony. As we previously observed, we must consider the statutory claim first, since we must
always resolve a case on a nonconstitutional issue if possible.
In re E.H.
,
¶ 18 In reсent cases, the First District has already ruled twice in defendant’s favor on the
statutory issue: (1)
People v. Easley
,
¶ 19 I. Standard of Review Whether the State’s charging instrument failed to provide the notice required by the Code
of Criminal Procedure of 1963 (725 ILCS 5/111-3(c) (West 2010)) is a question of statutory
interpretation, which this court reviews
de novo
.
People v. Caballero
,
legislature’s intent.
Crawford Supply Co. v. Schwartz
,
so that all the language used in the statute is given some effect and so that no word, clause or
sentence is “rendered meaningless [or] superfluous.” (Internal quotation marks omitted.)
People v. Jones
,
sentencing and raise the issue in a postsentencing motion.
People v. Hillier
,
¶ 26 In addition, in both of the recent cases, the defendants failed to preserve the error below
and we still reviewed the issue, since the issue affected defendant’s substantial rights. ,
Piatkowski
,
“It is unlawful for a person to knowingly possess on or about his person or on his land or in his own abode or fixed place of business *** any firearm *** if the person has bеen convicted of a felony ***.” 720 ILCS 5/24-1.1(a) (West 2010). Subsection (e) of section 24-1.1 governs sentencing for this offense and it is, as the trial
court observed at sentencing, a long and detailed paragraph. It describes, first, when a violation shall be a Class 3 felony:
“Violation of this Section by a person not confined in a penal institution shall be a Class 3 felony for which the person, if sentenced to a term of imprisonment, shall be sentenced to no less than 2 years and no more than 10 years ***.” 720 ILCS 5/24-1.1(e) (West 2010). Next it provides that the sentence shall be enhanced to a Class 2 felony if the defendаnt was
previously convicted of violating this same section:
“[A]ny second or subsequent violation shall be 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.” 720 ILCS 5/24-1.1(e) (West 2010).
As noted above, count I, of which he was convicted, appeared to charge defendant with a “second or subsequent” violation of this same section, namely, section 24-1.1. 720 ILCS 5/24-1.1(e) (West 2010). However, the presentence report stated that defendant’s prior violation was actually a violation of section 24-1. 720 ILCS 5/24-1 (West 2010). Next, subsection (e) provides that the sentence shall be еnhanced to a Class 2 felony if
defendant was previously convicted of another firearms violation:
“Violation of this Section by a person not confined in a penal institution who has been convicted of *** a felony violation of Article 24 of this Code *** is a Class 2 felony for *7 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).
It is pursuant to the above sentence that the prosecutor requested a sentence enhancement. At sentencing, the prosecutor stated that the sentence should be enhanced due to “a prior gun conviction,” and the trial court agreed. Article 24 of the Criminal Code of 1961, referred to in the sentence above, is entitled “Deadly Weapons,” and describes gun offenses. 720 ILCS 5/24-1 et seq. (West 2010). IV. Notice Violation Defendant claims that the State failed to provide him with notice of the State’s intent to
seek an enhanced sentence, as required by section 111-3 of the Code of Criminal Procedure of 1963. 725 ILCS 5/111-3 (West 2010). Section 111-3 is entitled “Form of charge” and it proscribes what a charging instrument
must state. 725 ILCS 5/111-3 (West 2010). Subsection (c) requires the charging document to specifically state whеn the prosecutor intends to seek an enhanced sentence. Section 111-3 provides that, “[w]hen the State seeks an enhanced sentence because of a prior conviction, the charge shall also state the intention to seek an enhanced sentence.” 725 ILCS 5/111-3(c) (West 2010). In the case at bar, there is no dispute that the prosecutor, at sentencing, sought “an enhanced sentence because of a prior conviction.” 725 ILCS 5/111-3(c) (West 2010). In addition, count I, which is quoted in the Background section above, did not “state the [prosecutor’s] intention to seek an enhanced sentence.” 725 ILCS 5/111-3(c) (West 2010). Thus, the State violated the plain language of section 111-3. In addition to stating “the intention to seek an enhanced sentence,” section (c) also requires
the charging instrument to state the prior conviction which is serving as the basis of the enhancement. 725 ILCS 5/111-3(c) (West 2010). Section (c) provides that the charge shall “state the intention to seek an enhanced sentence and shall state such prior conviction.” (Emphasis added.) 725 ILCS 5/111-3(c) (West 2010). The “and” in this sentence indicates that both are required–both a statement of the State’s intent tо seek an enhanced sentence and a statement of what the prior conviction is. If a statement of only the prior conviction satisfied the requirements of the sentence, then the words about “intention” would become unnecessary, and we must interpret a statute in such a way as not to make any part superfluous. Jones , 397 Ill. App. 3d at 657. Since we must construe a statute such that no word or clause is rendered meaningless or superfluous, we cannot read “intention” and “conviction” as synonymous. Jones , 397 Ill. App. 3d at 657. Thus, the fact that the case number of defendant’s prior conviсtion was mentioned somewhere in the charging instrument is not enough to satisfy the requirements of section (c). Subsection (c) defines an enhanced sentence as follows:
“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 classification of offense ***.” 725 ILCS 5/111-3(c) (West 2010).
In the case at bar, defendant’s “sentence” was “increased by a prior conviction from one classification of offense,” namely, Class 3, “to another higher level classification of offense,” namely, Class 2. Thus, according to the plain words of the statute, defendant received an “enhanced sentence” and, as discussed above, did not receive the notice required in the charging instrument. As a result, there was error and, as we just explained, the error was clear and obvious from
a plain reading of the statute.
Piatkowski
,
range for the lower Class 3 offense, that fact does not eliminate the section 111-3(c) violation
or the effect on his substantial rights. In
People v. Jameson
,
“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.)
Thus, it is “the classification of the
offense
” which is at issue in section (c), not the actual
“sentence imposed.” (Emphasis in original.)
Jameson
,
sentencing range fits within a correct sentencing range, the sentence must be vacated due to the
trial court’s reliance on the wrong sentencing range in imposing the sentence.” (Internal
quotation marks omitted.)
People v. Owens
,
determine the effect, if any, of any errors” in sentencing.
People v. Nunez
,
instrument its intention to seek an enhancement in the classification of offense from Class 3 to
Class 2, the sentence must be vacated and remanded for sentencing as a Class 3 felony.
,
¶ 43 The State cites in support
People v. Nowells
,
the
Easley
and
Whalum
cases persuasive. However,
Nowells
is readily distinguishable from the
case at bar. In
Nowells
, the appellate court found that the defendant was placed on actual notice
during trial about the type and class of the prior offense, which would then dictate the higher
Class 2 sentencе for his current offense.
Nowells
, 2013 IL App (1st) 113209, ¶ 29. The
appellate court concluded that the defendant received notice about the type and class of his
prior offense from “the certified statement of conviction and disposition in the No. 02 CR
15722 case, which was entered into evidence at trial.”
Nowells
,
¶ 44 In addition, the Nowells court reads into the statute an exception which is nowhere stated in
the statute itself. The
Nowells
court reads section 111-3(c) to state that “notice is not necessary
when the prior conviction is a required element of the offense.”
Nowells
, 2013 IL App (1st)
113209, ¶ 26. However, nowhere does the statute actually say that and we hesitate to read into
a statute exceptions which the legislature did not author.
Crawford
,
written by the same author. More recently, however, in
Nowells
,
First, our Fourth Division explicitly rejected the holdings in
Easley
and
Whalum
.
Nowells
,
noted that the parties had agreed that the State had given prior notice of the offense it was
relying on, but it did not state its intention to seek an enhanced sentence.
Easley
, 2012 IL App
(1st) 110023, ¶ 32. As a result, the panel held that section 111-3(c) was not satisfied and
reversal was required. ,
conviction is not an enhancement; it is an element of the offense. It, therefore, defines the offense and establishes its class. The majority states that Nowells , in finding that section 111-3(c) does not apply to prior convictions that are elements of the offense, has “read[ ] into the statute an exception which is nowhere stated in thе statute itself.” Supra ¶ 44. I disagree. The majority fails to set forth the statute in its entirety. Section 111-3(c) provides in full:
“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 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.” (Emphasis added.) 725 ILCS 5/111-3(c) (West 2010).
The
Nowells
court relied on the above italicized sentence of section 111-3(c) and found that it
necessarily implies that the section only applies when the prior conviction is not already an
element of the offense.
Nowells
,
felony conviction is an element of the offense which must be proven beyond a reasonable
doubt by the State before the jury in its case in chief. See
People v. Walker
,
element of the offense and had to be proven before a jury, it was error not to accept a
defendant’s offer to stipulate before the jury as to the fact of the conviction.
Walker
, 211 Ill. 2d
at 338, 341 (citing
Old Chief
,
to the constitutional claim that the defendant has been subjected to an impermissible double
enhancement. I agree with the reasoning of our court in
People v. Powell
, 2012 IL App (1st)
102363, that no impermissible double enhancement occurs when the legislature clearly
intends, as it did here, to enhance the penalty based upon some aspect of the crime and that
intention is clearly expressed.
Powell
,
respectfully dissent.
Notes
[1] Unfortunately, in , the appellate court did not discuss whether notice of the prior offense was given.