People v. Pryor

2013 IL App (1st) 121792

FIFTH DIVISION
December 27, 2013
No. 1-12-1792

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 11 CR 3619
)
ANTHONY PRYOR, ) Honorable
) Stanley J. Sacks,
Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
Justice Taylor concurred in the judgment and opinion.
Justice Palmer dissented, with opinion.

OPINION

¶1 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, defendant 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
No. 1-12-1792

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.

¶2 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., 224 Ill. 2d 172, 178 (2006) ("cases

should be decided on nonconstitutional grounds whenever possible, reaching

constitutional issues only as a last resort").

¶3 In support of his statutory claim, defendant relies on two opinions recently

issued by the 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, 2012 IL App (1st) 110023; and

People v. Whalum, 2012 IL App (1st) 110959. The State asks us to find that

Easley and Whalum were wrongly decided and cites in support People v. Nowells,

2013 IL App (1st) 113209, which is readily distinguishable for reasons we discuss

below.

¶4 The Illinois Supreme Court granted a petition for leave to appeal in March

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No. 1-12-1792

2013 in the Easley case, which is one of the cases relied on by defendant. People

v. Easley, No. 115581 (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.

¶5 BACKGROUND

¶6 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 firearm 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:

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No. 1-12-1792

"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.

¶9 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 amended." However, according to defendant's presentence

report, defendant's prior conviction was a violation of section 24-1, not section 24-

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No. 1-12-1792

1.1.

¶ 10 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.

¶ 11 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.

¶ 12 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).

¶ 13 Following a bench trial, defendant was found guilty on January 3, 2012, of

count I, quoted 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.

¶ 14 At sentencing on May 29, 2012, the following discussion about the correct

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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?

DEFNSE 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

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No. 1-12-1792

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 becomes 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

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No. 1-12-1792

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.

¶ 15 ANALYSIS

¶ 16 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 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.

¶ 17 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.,

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224 Ill. 2d at 178 ("cases should be decided on nonconstitutional grounds

whenever possible, reaching constitutional issues only as a last resort").

¶ 18 In recent cases, the First District has already ruled twice in defendant's

favor on the statutory issue: (1) People v. Easley, 2012 IL App (1st) 110023; and

(2) People v. Whalum, 2012 IL App (1st) 110959. In this appeal, the State asks us

to find that this recent precedent was wrongly decided and cites in support dicta in

People v. Nowells, 2013 IL App (1st) 113209, which did not find these cases

persuasive. For the reasons stated below, we remand for resentencing as a Class 3

felony.

¶ 19 I. Standard of Review

¶ 20 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, 228 Ill. 2d 79, 82 (2008). De novo consideration means we perform

the same analysis that a trial judge would perform. People v. Colquitt, 2013 IL

App (1st) 121138, ¶ 29.

¶ 21 When we interpret a statute, our primary objective is to determine and give

effect to the legislature's intent. Crawford Supply Co. v. Schwartz, 396 Ill. App.

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No. 1-12-1792

3d 111, 117 (2009). The most reliable indication of the legislature's intent is the

plain language of the statute itself. Crawford, 396 Ill. App. 3d at 117. When the

language of the statute is clear, we must apply it as written. Crawford, 396 Ill.

App. 3d at 117.

¶ 22 According to well-established rules of statutory interpretation, we must

interpret a statute 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, 397 Ill. App. 3d

651, 657 (2009). See also People v. Jones, 214 Ill. 2d 187, 193 (2005) (the statute

must be "construed so that no part of it is rendered meaningless or superfluous");

Crawford, 396 Ill. App. 3d at 117.

¶ 23 II. Waiver

¶ 24 To preserve a sentencing issue for appellate review, a defendant must both

object at sentencing and raise the issue in a postsentencing motion. People v.

Hillier, 237 Ill. 2d 539, 544 (2010); People v. Easley, 2012 IL App (1st) 110223,

¶ 16. On this appeal, defendant concedes that he failed to do either. However, he

argues that we may still review this issue because his sentence is void and

therefore can be reviewed at anytime. People v. Arna, 168 Ill. 2d 107, 113 (1995).

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No. 1-12-1792

Since defendant's 5-year sentence was well within the 2- to 10-year sentencing

range for the Class 2 sentence which he seeks, we do not find his sentence void.

Easley, 2012 IL App (1st) 110023, ¶ 21 (finding that defendant's sentence was not

void when defendant was sentenced "well within the range authorized by the

statute"). "It is the function of the legislature to determine what is considered

criminal conduct and to assign penalties for that conduct." Easley, 2012 IL App

(1st) 110023, ¶ 17 (citing People v. Taylor, 102 Ill. 2d 201, 206 (1984)).

Defendant fails to explain how his sentence exceeds the penalties assigned by the

legislature for his conduct, and thus we do not find persuasive his voidness

argument.

¶ 25 In the alternative, defendant asks us to review the error under the plain

error doctrine. The plain error doctrine permits review of clear and obvious errors

that were waived below. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). "In

the sentencing context, a defendant must then show either that (1) the evidence at

the sentencing hearing was closely balanced, or (2) the error was so egregious as

to deny the defendant a fair sentencing hearing." Hillier, 237 Ill. 2d at 545.

"[S]entencing issues are excepted from the doctrine of waiver when they affect a

defendant's substantial rights." People v. Carmichael, 343 Ill. App. 3d 855, 859

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No. 1-12-1792

(2003). In Carmichael, we held: "We find that the defendant's contention that the

offense of which he was convicted was improperly enhanced from a Class 3 felony

to a Class 2 felony implicates substantial rights justifying review of the issue."

343 Ill. App. 3d at 859.

¶ 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. Easley, 2012 IL App (1st) 110023, ¶ 30; see also Whalum, 2012

IL App (1st) 110959, ¶ 34. In both cases, we found that the sentencing error

warranted a remand for resentencing. Easley, 2012 IL App (1st) 110023, ¶ 34; see

also Whalum, 2012 IL App (1st) 110959, ¶ 37.

¶ 27 Our first task, which we begin below, is to determine whether there was any

error. Piatkowski, 225 Ill. 2d at 565.

¶ 28 III. Defendant's Sentence

¶ 29 Defendant was charged and convicted of UUW by a felon which provides,

in relevant part:

"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

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has been convicted of a felony ***." 720 ILCS 5/24-

1.1(a) (West 2010).

¶ 30 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).

¶ 31 Next it provides that the sentence shall be enhanced to a Class 2 felony if

the defendant 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-

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No. 1-12-1792

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).

¶ 32 Next, subsection (e) provides that the sentence shall be enhanced 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 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).

¶ 33 IV. Notice Violation

¶ 34 Defendant claims that the State failed to provided him with notice of the

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No. 1-12-1792

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).

¶ 35 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 when 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.

¶ 36 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

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No. 1-12-1792

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 to 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

conviction was mentioned somewhere in the charging instrument is not enough to

satisfy the requirements of section c.

¶ 37 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).

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No. 1-12-1792

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.

¶ 38 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, 225 Ill. 2d at 565-66 (the

error was clear and obvious from a plain reading of the instruction).

¶ 39 Even though defendant received a 5-year sentence which was well within

the 2- to 10-year 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, 162 Ill. 2d 282, 288 (1994), our supreme court held:

"When the language of section 1113(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

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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, 162 Ill. 2d at 288.

See Carmichael, 343 Ill. App. 3d at 861-62 (rejecting the State's argument that no

remand for resentencing was needed since "the five-year sentence imposed still

fell well below the maximum sentence for the Class 3 felony").

¶ 40 As this court has previously observed, "even if a sentence imposed under a

wrong 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,

377 Ill. App. 3d 302, 305-06 (2007). Similarly, in Carmichael, we held: "where

we are unable to determine whether the trial court's mistaken belief that the Class

2 sentencing range of 3 to 14 years, rather than the Class 3 sentencing range of 2

to 10 years, applied affected the sentence it imposed, the appropriate course of

action will generally be to vacate the defendant's sentence and remand for

resentencing." Carmichael, 343 Ill. App. 3d at 862.

¶ 41 "Just as a trial judge has discretion in sentencing, he should be permitted

[the discretion] to determine the effect, if any, of any errors" in sentencing. People

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v. Nunez, 263 Ill. App. 3d 740, 758 (1994).

¶ 42 In two recent cases, this court has held that, when the State fails to state in

the charging 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. Whalum, 2012 IL App (1st) 110959, ¶ 37; Easley,

2012 IL App (1st) 110023, ¶¶ 32, 34. In both prior cases, the offense at issue was

the same offense at issue here: unlawful use or possession of weapons by a felon,

in violation of section 24.1 (720 ILCS 5/24-1.1(a) (West 2010)). In both prior

cases, as in our case, the offense had been waived below. With two cases from this

district directly on point, we see no reason to depart from our established

precedent.

¶ 43 The State cites in support People v. Nowells, 2013 IL App (1st) 113209,

which did not find 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 sentence 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

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No. 1-12-1792

offense from "the certified statement of conviction and disposition in the No. 02

CR 15722 case, which was entered into evidence at trial." Nowells, 2013 IL App

(1st) 113209, ¶ 29. By contrast, in the case at bar, no certified statement of

conviction and disposition was entered into evidence at trial. In addition, as

discussed above in the Background section, defendant's information was

ambiguous at best, and misleading at worst, about the statutory section violated in

the prior offense. In contrast to the certified statement of conviction and

disposition entered during the Nowells trial, the stipulation entered at defendant's

trial stated only that "defendant has a prior felony conviction under case number

07 CR 18901." The stipulation did not even state what the prior felony conviction

was for. Thus, Nowells is distinguishable in that, in the case at bar, defendant did

not receive the notice during trial that the Nowells defendant did.

¶ 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, 396 Ill. App. 3d at 117 ("courts

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No. 1-12-1792

should not depart from a statute's plain language by reading into it exceptions").

Thus, in addition to finding Nowells readily distinguishable, we also do not find it

persuasive.

¶ 45 CONCLUSION

¶ 46 For the foregoing reasons, we vacate defendant's sentence and remand for

resentencing.

¶ 47 Sentence vacated; remanded for resentencing.

¶ 48 JUSTICE PALMER, dissenting

¶ 49 I respectfully dissent. The recent cases upon which the majority relies are

the First District's decisions in Easley, 2012 IL App (1st) 110023, and Whalum,

2012 IL App (1st) 110959, where it was held that section 111-3(c) of the Code of

Criminal Procedure of 1963 (725 ILCS 5/111-3(c) (West 2010)) applies to

prosecutions for unlawful use of a weapon by a felon (UUW by felon). Easley,

2012 IL App (1st) 110023, ¶ 32; Whalum, 2012 IL App (1st) 110959, ¶ 37. This,

however, is far from a settled question in the First District.

¶ 50 Easley and Whalum were decided on the same day, by the same division

(Second) and written by the same author. More recently, however, in Nowells,

2013 IL App (1st) 113209, another division of the First District (Fourth) explicitly

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No. 1-12-1792

rejected the holdings in Easley and Whalum in finding that section 111-3(c) does

not apply to UUW by felon. Nowells, 2013 IL App (1st) 113209, ¶¶ 26-30.

Contrary to the majority's contention, I find that Nowells is not distinguishable in

any meaningful way. As a result, I find the more useful approach is to recognize

that there is a split of authority in the First District and then to discuss what I find

to be the more reasoned position.

¶ 51 As I noted above, I do not believe that Nowells is distinguishable in any

meaningful way. First, our Fourth Division explicitly rejected the holdings in

Easley and Whalum. Nowells, 2013 IL App (1st) 113209, ¶ 28. Second, the

majority finds that Nowells is distinguishable in that, there, the appellate court

found as a factual matter that the defendant was placed on actual notice about the

type and class of the prior offense being relied upon by the State. However, actual

notice of the prior offense alone would not be enough to satisfy the requirements

of section 111-3(c). In fact, the majority today makes much of the fact that section

111-3(c) has two requirements and points to the word "and" in the section. The

majority noted that section 111-3(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). In Nowells, while the court

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found that notice of the prior conviction was given, there was no notice given of

the intention to seek an enhanced sentence. As a result, section 111-3(c) was not

satisfied. Nevertheless, and even though section 111-3(c) was not satisfied, the

Nowells court affirmed the judgment of the trial court imposing the sentence on

the greater class felony. Nowells, 2013 IL App (1st) 113209, ¶ 30. Simply put,

Nowells found that, as a matter of law, section 111-3(c) did not apply.

Consequently, in that this holding was essential to the outcome of the case, I also

must respectfully disagree with the majority's characterization of it as dicta. See

Exelon Corp. v. Department of Revenue, 234 Ill. 2d 266, 277-78 (2009).

¶ 52 To put a finer point on this, the same situation was present in Easley. The

Easley court 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

Easley panel held that section 111-3(c) was not satisfied and reversal was

required. Easley, 2012 IL App (1st) 110023, ¶ 32.1 Nowells is not distinguishable

on the grounds cited by the majority. There simply exists a split of authority.

1
Unfortunately, in Whalum, the appellate court did not discuss whether
notice of the prior offense was given.

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No. 1-12-1792

¶ 53 I believe that Nowells is correctly decided. In the case of UUW by felon,

the prior 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 the statute itself." I disagree.

¶ 54 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

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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, 2013 IL App (1st)

113209, ¶ 26.

¶ 55 Illinois law has long held that, in prosecutions for the offense of UUW by

felon, the prior 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, 211 Ill. 2d 317 (2004) (recognizing that the prior felony

conviction is an element of the offense of our UUW by felon statute and adopting

the reasoning of Old Chief v. United States, 519 U.S. 172 (1997)). I feel that the

majority's decision today fails to account for the underlying logic of Old Chief

adopted by our supreme court in Walker.

¶ 56 Old Chief and Walker held that, in situations where a prior felony

conviction was an 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

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the conviction. Walker, 211 Ill. 2d at 338, 341 (citing Old Chief, 519 U.S. 172).

This was done to lessen the prejudicial impact of telling the jury about the nature

of the prior felony while at the same time informing the jury of its existence.

Walker, 211 Ill. 2d at 341 (citing Old Chief, 519 U.S. 172). If the above-cited

provision of section 111-3(c) applied to UUW by felon prosecutions whereby "the

fact of such prior conviction *** are not elements of the offense and may not be

disclosed to the jury during trial" (725 ILCS 5/111-3(c) (West 2010)), then the

Walker decision adopting Old Chief was a wholly unnecessary exercise. That, of

course, is not the case. Those cases were decided because our statute provides that

the fact of the prior felony conviction is an element of the offense that must be

proven before the jury. As section 111-3(c) provides that "the fact of such prior

conviction *** are not elements of the offense and may not be disclosed to the jury

during trial," these statutory provisions are incompatible. I believe, therefore, that

section 111-3(c) does not apply to UUW by felon and would not reverse the

judgment of the trial court on that basis.

¶ 57 As I would not reverse on statutory grounds, as the majority has, I would

turn our attention to the constitutional claim that the defendant has been subjected

to an impermissible double enhancement. I agree with the reasoning of our court

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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, 2012 IL App (1st) 102363, ¶ 12-17.

¶ 58 Accordingly, in the matter at bar, I would affirm the judgment of the trial

court and, thus, I respectfully dissent.

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