People v. Polk

2014 IL App (1st) 122017

FIFTH DIVISION
Opinion filed March 14, 2014
Supplemental opinion upon denial of rehearing filed June 27, 2014

No. 1-12-2017

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 11 CR 12507
)
LOVELL POLK, ) Honorable
) Clayton J. Crane,
Defendant-Appellant. ) Judge Presiding.

JUSTICE PALMER delivered the judgment of the court, with opinion
Justice McBride concurred in the judgment and opinion.
Presiding Justice Gordon dissented, with opinion.
Presiding Justice Gordon also dissented upon denial of rehearing, with opinion.

OPINION

¶1 Following a jury trial, defendant Lovell Polk was convicted of the Class 2 offense of

unlawful use or possession of a weapon (UUW) by a felon (720 ILCS 5/24-1.1(a) (West 2010))

and he was sentenced to four years and six months in prison. On direct appeal to this court,

defendant contends in his opening and supplemental briefs that (1) the sentence for his UUW by

a felon conviction must be reduced from a Class 2 offense to a Class 3 offense as the State failed

to notify him of its intent to seek an enhanced sentence; (2) he was subject to an improper double

enhancement because the same prior felony conviction was used to prove an element of the

UUW by a felon offense and to elevate it to a Class 2 felony; and (3) his mittimus must be

corrected. For the reasons discussed below, we affirm defendant’s conviction and sentence for
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the Class 2 offense of UUW by a felon, but order that the mittimus must be corrected to exclude

reference to the two counts that were dismissed via nolle prosequi before jury selection.1

¶2 BACKGROUND

¶3 At trial, Chineetha Curtis testified that on July 25, 2011, she was working as a security

agent for the Chicago Transit Authority (CTA) at the Homan and Congress Blue Line Station in

the city of Chicago. Curtis stated that on that date, defendant approached her and told her that he

had fought with a man and the man had taken his earrings. When he asked whether she knew

who had had been fighting earlier that day, Curtis responded that she did not know. Curtis

testified that defendant then lifted his shirt, revealing a gun inside his waistband.2 Curtis testified

that defendant stated, "I'm going to bust a cap in his a***." Curtis returned to her kiosk in the

station.

¶4 Curtis testified that as she approached her kiosk, two police officers were walking toward

her kiosk. One of the officers walked toward defendant, who was standing in front of the station,

and the other officer asked Curtis what was wrong. Curtis testified that she pointed at defendant

and told the officer that he had a gun. The officer left and Curtis began to help a customer.

Curtis testified that she then heard an officer yell "freeze"; she turned and saw defendant twist

around and run away from the officers.

¶5 Chicago police officers James Norris and Michael Brosnan each testified that on July 25,

2011, they were in uniform and working special enforcement for the CTA at the Homan station.

Brosnan testified that Curtis got his attention and told him that defendant had a gun in his

1
We note that, in addition the UUW by a felon charge, defendant was initially charged in
the information with two counts of aggravated unlawful use of a weapon, which the State
dismissed by nolle prosequi before jury selection.
2
Curtis identified the gun she saw on defendant as the gun that was admitted into evidence
at trial.
2
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waistband. Brosnan informed Norris of this and they then approached defendant. Brosnan

testified that Norris put his hand on defendant’s shoulder and asked defendant if he had anything

on him that could hurt Norris. Brosnan testified that defendant then "spun around, reached into

his pants pocket as he was crossing Homan Avenue, pulled out a silver automatic handgun and

threw it to the ground." Brosnan was only five feet behind him at the time. Brosnan testified

that they chased after defendant and he was apprehended about a block later.

¶6 Similarly, Norris testified that as he moved closer to defendant perform a protective pat-

down, defendant moved around him and ran west down Homan Avenue. Norris also testified

that he told defendant to drop the gun, and defendant reached into his right pocket as he ran and

dropped a gun in the street; it looked like the gun came from his right pocket or right waistband.

Norris was chasing after defendant and was only about two feet behind him when this occurred.

Norris recovered the gun, which was a silver-plated .380-caliber automatic pistol and continued

to pursue defendant. Norris testified that he subsequently placed the gun, which did not contain

any ammunition, in inventory.

¶7 In addition, Chicago police officer Hanrahan testified that he was driving an unmarked

police car in the vicinity that day when Hanrahan observed defendant run across Homan Avenue

with a uniformed police officer running after him. Hanrahan testified that he followed defendant

in the police car until defendant stopped running due to fatigue. Defendant was arrested and

taken to the station.

¶8 Before resting its case, the State submitted an agreed stipulation to the jury that defendant

had previously been convicted of a felony. The defense then rested without presenting any

evidence. The jury found defendant guilty of UUW by a felon.

¶9 At sentencing, the State argued that defendant had one prior conviction in 2006 for

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conspiracy to commit murder, for which he received a seven-year sentence. Defense counsel

argued in mitigation that defendant was a good family man. In announcing defendant’s sentence,

the trial court stated that it had reviewed the presentence investigation and considered the

presentation made by the defendant and "all statutory factors required of this Court for the

sentencing." The trial court sentenced defendant to 4 ½ years' imprisonment, with credit for time

served.

¶10 Defendant’s mittimus set forth his sentence of four years, six months for the offense of

"720-5/24-1.1(a) FELON POSS/USE FIREARM PRIOR," and listed it as a Class 2 felony. The

mittimus also reflected the credit for time served and provided that "counts 2 and 3 merge with

count 1."

¶11 Defendant filed a motion to reconsider and vacate the judgment, which the trial court

denied. Defendant also filed a motion to reconsider his sentence on grounds that the sentence

was excessive given his background and the nature of the offense, but the trial court denied the

motion on June 20, 2012. Defendant filed a notice of appeal the same day.

¶12 ANALYSIS

¶13 In his first argument on appeal, defendant asserts that pursuant to section 111-3(c) of the

Code of Criminal Procedure of 1963 (725 ILCS 5/111-3(c) (West 2010)), the State was required

to give notice in the charging instrument of its intent to seek an enhanced sentence, i.e., that it

was charging him with a Class 2 felony. According to defendant, the failure to do so requires

that his conviction be reduced to a Class 3 conviction. In response, the State maintains that

because defendant was charged and convicted of UUW by a felon expressly premised on a prior

forcible felony (conspiracy to commit murder), he could receive only one class of sentence – a

Class 2 – and therefore a Class 3 sentence was unauthorized and the notice provision did not

4
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apply.

¶14 As an initial matter, this court recognizes that there is a split of authority in the First

District regarding this issue. See generally People v. Whalum, 2012 IL App (1st) 110959, pet.

for leave to appeal pending, No. 115582 (filed Jan. 28, 2013); People v. Nowells, 2013 IL App

(1st) 113209, pet. for leave to appeal pending, No. 116839 (filed Oct. 31, 2013); People v.

Pryor, 2013 IL App (1st) 121792, pet. for leave to appeal pending, No. 117276 (filed Jan. 31,

2014 ). We further note that this issue is currently under review by our Supreme Court. People

v. Easley, 2012 IL App (1st) 110023, appeal allowed, No. 115581 (Ill. Mar. 27, 2013).

¶15 We also note that, in the present case, defendant concedes that he failed to preserve this

issue for appellate review, but he argues that his claim of error is nevertheless reviewable

because (1) his sentence is void and may be challenged at any time, (2) the error implicated his

substantial rights and is thus subject to plain-error review, and/or (3) his counsel rendered

ineffective assistance in failing to properly preserve the issue and defendant suffered prejudice as

a result. "Where a defendant challenges his sentence as void, *** as defendant does here, we

will review the sentencing issue even though it was not properly preserved for review because a

void sentence can be corrected at any time." Nowells, 2013 IL App (1st) 113209, ¶ 18.

Moreover, forfeited claims of sentencing error "may be reviewed for plain error," and the

defendant has the burden of demonstrating " '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.' " Id. (quoting People v. Hillier, 237 Ill. 2d 539, 545 (2010)). Under plain-

error review, we start by reviewing defendant's claim to determine whether any error occurred.

Id. ¶ 20.

¶16 Additionally, this case requires that we interpret statutory language, which presents a

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question of law reviewed de novo. People v. Harris, 203 Ill. 2d 111, 116 (2003). We are

mindful that "[i]t is the purview of the legislature to determine what is considered criminal

conduct, to assign penalties for that conduct, and to enact statutory provisions which enhance a

criminal offense or enhance the applicable range of punishment for an offense. [Citation.]

Although the trial court has discretion to impose a sentence, we review this issue de novo

because it involves a question of law. [Citation.]" Nowells, 2013 IL App (1st) 113209, ¶ 21.

¶17 Turning to the statutory language involved in the case at bar, the UUW by a felon statute,

section 24-1.1, sets forth the elements of the offense, along with the potential classifications and

sentences:

"(a) 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 weapon prohibited under

Section 24-1 of this Act or any firearm or any firearm ammunition if the person has been

convicted of a felony under the laws of this State or any other jurisdiction. This Section

shall not apply if the person has been granted relief by the Director of the Department of

State Police under Section 10 of the Firearm Owners Identification Card Act

***

(e) Sentence. Violation of this Section by a person not confined in a penal

institution shall be a Class 3 felony for which the person, *** shall be sentenced to no

less than 2 years and no more than 10 years and any 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. Violation of this Section by a person

not confined in a penal institution who has been convicted of a forcible felony, a felony

violation of Article 24 of this Code or of the Firearm Owners Identification Card Act,

6
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stalking or aggravated stalking, or a Class 2 or greater felony under the Illinois

Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control

and Community Protection Act is a Class 2 felony for which the person shall be

sentenced to not less than 3 years and not more than 14 years." (Emphasis added.) 720

ILCS 5/24-1.1(a), (e) (West 2010).

¶18 Based on the above provision, in order to prove the offense of UUW by a felon the State

must establish that a defendant "knowingly possessed a weapon or ammunition and that the

defendant had previously been convicted of a felony." Nowells, 2013 IL App (1st) 113209, ¶ 22

(citing 720 ILCS 5/24-1.1(a) (West 2010)). Our court has recognized that the legislature, as

reflected in the plain language of section 24-1.1, intended to prohibit convicted felons from

possessing dangerous weapons. Id. ¶ 22 (citing People v. Kelly, 347 Ill. App. 3d 163, 167

(2004)). Of particular relevance in the present case is the provision that a "[v]iolation of this

Section by a person not confined in a penal institution who has been convicted of a forcible

felony *** is a Class 2 felony." 720 ILCS 5/24-1.1(e) (West 2010). A "forcible felony"

includes, among other crimes, "first degree murder, second degree murder, *** and any other

felony which involves the use or threat of physical force or violence against any individual." 720

ILCS 5/2-8 (West 2010).

¶19 In addition, section 111-3 of the Code outlines the information required when instituting

criminal charges and for seeking an enhanced sentence:

"Form of charge.

(a) A charge shall be in writing and allege the commission of an offense by:

(1) Stating the name of the offense;

(2) Citing the statutory provision alleged to have been violated;

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(3) Setting forth the nature and elements of the offense charged;

(4) Stating the date and county of the offense as definitely as can be done;

and

(5) Stating the name of the accused, if known, and if not known, designate

the accused by any name or description by which he can be identified with

reasonable certainty.

***

(c) 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." 725 ILCS 5/111-3(a), (c) (West 2010).

¶20 In interpreting this section, the Second Division of this court held in People v. Whalum

that where the State charged the defendant with two counts of UUW by a felon, but did not state

in the charging instrument what class conviction it sought, the State failed to provide the notice

required by section 111-3(c) of the Code that it planned to seek to increase the classification of

offense from a Class 3 to a Class 2. Whalum, 2012 IL App (1st) 110959, ¶ 37. Thus, the Second

8
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Division held that the defendant was consequently entitled to be resentenced for a Class 3 felony.

Id.

¶21 Along similar lines, the defendant in People v. Easley was convicted of UUW by a felon

premised on his prior felony conviction of UUW. Easley, 2012 IL App (1st) 110023, ¶ 16. The

State gave the defendant notice of the prior offense upon which it relied, but did not state its

intention to seek an enhanced sentence pursuant to the " 'any second or subsequent violation shall

be a Class 2 felony' " language in section 24-1.1(e). Id. ¶ 21 (quoting 720 ILCS 5/24-1.1(e)

(West 2008)). On the same day, the Second Division of this court again concluded that, pursuant

to section 111-3(c), the State was required to give notice to the defendant that it intended to

charge him with a Class 2 rather than a Class 3 offense, and therefore, it vacated his sentence and

remanded for resentencing as a Class 3 offense. Id. See also People v. Pryor, 2013 IL App (1st)

121792, ¶ 42 (vacating the defendant's sentence and remanding for resentencing as a Class 3

felony where the State failed to state in the charging instrument that it intended to seek

enhancement from a Class 3 to a Class 2).

¶22 On the other hand, the Fourth Division of this court, in addition to the dissent in the

People v. Pryor case from the Fifth Division, disagreed with the Second Division's holdings in

Easley and Whalum with respect to the interpretation and application of section 111-3(c)

involving a UUW by a felon charge. See Nowells, 2013 IL App (1st) 113209, ¶ 28; Pryor, 2013

IL App (1st) 121792, ¶¶ 49-58 (Palmer, J., dissenting).

¶23 In Nowells, the Fourth Division held that there was no error in sentencing the defendant

to a Class 2 sentence for his UUW by a felon conviction despite the defendant's contention that

the State failed to provide proper notice. Nowells, 2013 IL App (1st) 113209, ¶ 30. The

defendant was convicted of UUW by a felon and sentenced as a Class 2 offender. The

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indictment for the UUW by a felon charge was premised on his prior felony conviction of

delivery of a controlled substance. Id. ¶¶ 3, 27. Examining the language of the UUW by a felon

statute, section 24-1.1(e), and section 111-3 of the Code, the Nowells court reasoned:

"In looking at the language of this statute, it is clear to us that the section 111–3(c) notice

provision with which defendant is concerned only applies when the prior conviction that

would enhance the sentence is not already an element of the offense. Specifically, the

language of the section 111–3(c) notice provision itself implies as much when it states

'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.' (Emphasis added.) 725

ILCS 5/111–3(c) (West 2010). Therefore, notice is not necessary when the prior

conviction is a required element of the offense, such that only one class of felony

conviction is possible for that offense as alleged in the charging instrument." Nowells,

2013 IL App (1st) 113209, ¶ 26.

¶24 The Nowells court therefore concluded that the notice provision in section 111-3(c) was

not applicable "because the State did not seek to enhance defendant's sentence; as alleged in the

indictment, defendant's Class 2 sentence was the only statutorily allowed sentence available in

this situation." (Emphasis in original.) Nowells, 2013 IL App (1st) 113209, ¶ 27. In support, the

court relied on the language of section 24-1.1(e) (720 ILCS 5/24-1.1(e) (West 2010)) ("Violation

of this section by a person *** who has been convicted of *** a Class 2 or greater felony under

the Illinois Controlled Substances Act *** is a Class 2 felony ***") and cited the holding in

People v. Powell, 2012 IL App (1st) 102363, ¶ 12 (concluding the trial court did not

impermissibly enhance the defendant's penalty for his UUW by a felon conviction because the

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legislature, in enacting section 24-1.1(e), determined that he committed a Class 2 felony and

established a special penalty range). Nowells, 2013 IL App (1st) 113209, ¶ 27. The Nowells

court found no error because "the record establishes that a Class 2 sentence was the only possible

sentence classification defendant could have received after having been charged with the crime

of UUW by a felon specifically premised on his prior Class 2 felony drug conviction." Id. ¶ 30.

¶25 This court finds that the reasoning in Nowells and the dissent in Pryor to be more

persuasive on this issue. In the case of UUW by felon, the prior conviction is not an

enhancement; it is an element of the offense. Therefore, it defines the offense and establishes its

class. As noted in another recent case from our Second Division, "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." People v. McFadden, 2014 IL App (1st) 102939, ¶ 42 (citing People v. Walker, 211

Ill. 2d 317 (2004), for its holding that having a "prior felony conviction is an element of the

offense of our UUW by [a] felon statute and adopting the reasoning of Old Chief v. United

States, 519 U.S. 172 (1997)").

¶26 Defendant fails to account for the underlying logic of Old Chief, adopted by our supreme

court in Walker. As explained by the dissent in Pryor:

"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 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

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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." People v. Pryor, 2013 IL App

(1st) 121792, ¶ 56 (Palmer, J., dissenting).

¶27 Based on our above analysis, we conclude that section 111-3(c) does not apply to UUW

by a felon in this case. Turning to the charging document in case at hand, we note that count I of

the information alleged that on July 25, 2011, in Cook County, defendant committed the offense

of:

"UNLAWFUL USE OR POSSESSION OF A WEAPON BY A FELON

In that HE, KNOWINGLY POSSESED ON OR ABOUT HIS PERSON ANY

FIREARM, AFTER HAVING BEEN PREVIOUSLY CONVICTED OF THE FELONY

OFFENSE OF CONSPIRACY TO COMMIT MURDER, UNDER CASE NUMBER

04CR2953202,

IN VIOLATION OF CHAPTER 720 ACT 5 SECTION 24-1.1(a) OF THE

ILLINOIS COMPILED STATUTES 1992 AS AMENDED ***."

¶28 The record reflects that the charging instrument complied with section 111-3(a) of the

Code. Defendant was provided with notice of the nature of the prior conviction upon which the

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UUW by a felon charge was predicated, in addition to the name of the charged offense, the

statutory citation of the offense, the nature and elements of the charged offense, the date and

county of the offense, and the name of the accused. We also note that the information indictment

return sheet listed the UUW by a felon charge as a Class 2 felony.3 Moreover, defendant does

not argue that he was unaware of what prior felony was serving as the basis for his UUW charge.

Conspiracy to commit murder qualifies as a forcible felony. 720 ILCS 5/2-8 (West 2010).

Accordingly, the charge of UUW by a felon could only be a Class 2 felony. 720 ILCS 5/24-

1.1(e) (West 2010).

¶29 As the Nowells court held, the notice provision in section 111-3(c) was not applicable

here "because the State did not seek to enhance defendant's sentence; as alleged in the

indictment, defendant's Class 2 sentence was the only statutorily allowed sentence available in

this situation." (Emphasis in original.) Nowells, 2013 IL App (1st) 113209, ¶ 27. Thus, in

arguing that he should be resentenced for a Class 3 offense, defendant essentially asks this court

to reduce his sentence to one that is not authorized by the legislature. We decline to do so.

Because the sentence imposed by the trial court was proper, we conclude that no error occurred,

and defendant's sentence is not void. Nowells, 2013 IL App (1st) 113209, ¶ 30. Nor did

defendant receive ineffective assistance of counsel, as counsel was not obligated to advance

meritless arguments. People v. Ivy, 313 Ill. App. 3d 1011, 1018 (2000).

¶30 Defendant contends in his supplemental briefing that he was subjected to an improper

double enhancement because the same prior felony conviction was used to prove an element of

3
At trial, defendant stipulated that he had previously been convicted of a felony; the nature
of the felony was not disclosed to the jury, but outside the jury's presence the court and the
parties discussed the fact that it was a conviction for conspiracy to commit murder.
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the UUW by a felon offense and to elevate it to a Class 2 felony.4 Defendant again concedes that

this claim of error was not properly preserved below, but urges this court's review under the

plain-error doctrine. Nowells, 2013 IL App (1st) 113209, ¶¶ 18-20; Hillier, 237 Ill. 2d at 545.

See People v. Powell, 2012 IL App (1st) 102363, ¶ 7 (deciding to review the defendant's

forfeited claim of improper double enhancement in sentencing under the plain-error rubric).

¶31 According to the general prohibition against double enhancement, "[a] single factor

cannot be used both as an element of an offense and as a basis for imposing a sentence harsher

than might otherwise have been imposed." People v. Powell, 2012 IL App (1st) 102363, ¶ 8

(citing People v. Phelps, 211 Ill. 2d 1, 11-12 (2004)). "The prohibition against double

enhancements is based on the assumption that, in designating the appropriate range of

punishment for a criminal offense, the legislature necessarily considered the factors inherent in

the offense." Phelps, 211 Ill. 2d at 12. However, an exception to this general rule arises where

"the legislature clearly intends to enhance the penalty based upon some aspect of the crime and

that intention is clearly expressed." Powell, 2012 IL App (1st) 102363, ¶ 8 (citing Phelps, 211

Ill. 2d at 12). The best evidence of such an intention is gleaned from the text of the statute itself.

Id. As the rule against double enhancement "is one of statutory construction," we review this

issue de novo. Phelps, 211 Ill. 2d at 12.

¶32 Defendant is correct in asserting that a single factor cannot be used both as an element of

an offense and as a basis for imposing a sentence harsher than might otherwise have been

imposed, as it would constitute a double enhancement. Powell, 2012 IL App (1st) 102363, ¶ 8.

However, we find that, based on the clear language of section 24-1.1(e), the legislature explicitly

4
We note that this argument must be considered to be in the alternative, as the premise of
defendant's first argument is that the prior felony is not an element of the crime, where here
defendant claims exactly the opposite is the case.
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stated its intention to enhance the penalty based on some aspect of the offense. As previously set

forth, section 24-1.1(e) provides in relevant part that a "[v]iolation of this Section by a person not

confined in a penal institution who has been convicted of a forcible felony *** is a Class 2

felony." 720 ILCS 5/24-1.1(e) (West 2010). Accordingly, given this clear directive, we find that

this created an exception to the prohibition against double enhancement. Powell, 2012 IL App

(1st) 102363, ¶¶ 11-17. We agree with the reasoning in Powell 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. Id. See also Easley,

2012 IL App (1st) 110023, ¶¶ 16-22 (finding that the defendant's sentence did not constitute an

improper double enhancement where the defendant's prior conviction of UUW was used to

convict him of the current UUW offense and also to elevate his current UUW conviction to a

Class 2 felony pursuant to section 24-1.1(e) as a "second or subsequent violation").

Accordingly, we conclude that no improper double enhancement occurred in this case.

¶33 Defendant also argues on appeal that his mittimus should be corrected to strike the

language merging the counts into his conviction that were dismissed prior to trial, and to strike

the term "use" from the name of the offense in the mittimus. The State agrees that the language

"counts 2 and 3 to merge with count 1" should be stricken from the mittimus because they were

dismissed via nolle prosequi before jury selection. Accordingly, we direct the clerk of the circuit

court of Cook County to correct the mittimus by removing mention of those counts. See People

v. Harper, 387 Ill. App. 3d 240, 244 (2008) (indicating that this court has the authority to correct

the mittimus at any time without remanding the matter to the trial court). However, we deny

defendant's request to strike the word "use" from the mittimus, as this term was correctly

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included.5 Defendant was tried and convicted for violation of section 24-1.1(a); the offense

defined in that section is entitled, "Unlawful Use or Possession of Weapons by Felons or Persons

in the Custody of the Department of Corrections Facilities." 720 ILCS 5/24-1.1(e) (West 2010).

Given that the language used to denote defendant's UUW by a felon conviction adheres to the

title of the statute itself, it was correct to allow the mittimus to be labeled with this same term.

¶34 CONCLUSION

¶35 For the reasons stated above, the judgment of the circuit court of Cook County is

affirmed. We order that defendant's mittimus be corrected as directed.

¶36 Affirmed; mittimus corrected.

¶37 PRESIDING JUSTICE GORDON, dissenting.

¶38 I must respectfully dissent from the majority's holding, which concludes that defendant

was properly convicted of the Class 2 form of the UUW offense rather than the Class 3 form of

the offense, because the State failed to give him notice that it was seeking to charge him with an

enhanced Class 2 form of the UUW offense, as required by section 111-3(c) of the Code of

Criminal Procedure (725 ILCS 5/111-3(c) (West 2010)).

¶39 The majority reaches this holding by suggesting that an opinion that I recently authored,

People v. Pryor, 2013 IL App (1st) 121792, was wrongly decided. In Pryor, Justice Taylor

concurred with the opinion that I authored and Justice Palmer dissented. In today's opinion,

Justice Palmer, as the author, together with Justice McBride constitute the majority.

¶40 The majority's opinion acknowledges that there is a split in authority among the appellate

courts on this issue and that our supreme court has already accepted this issue for review. For

5
The name of the offense in the mittimus is listed as "FELON POSS/USE FIREARM
PRIOR."
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the reasons that I already stated in the Pryor opinion, which I authored just a few months ago, I

dissent here.

¶41 SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING

¶42 In a petition for rehearing, defendant claims that his prior conviction of conspiracy to

commit murder did not constitute a forcible felony for purposes of section 24-1.1(e) and section

2-8 (720 ILCS 5/24-1.1(e), 5/2-8 (West 2010)), and that this court failed to address this argument

in our opinion. However, the issue of whether conspiracy to commit murder is a forcible felony

has been waived or forfeited for multiple reasons.

¶43 First, defendant failed to take the necessary steps in the trial court to properly preserve

this issue. "It is well settled that, to preserve a claim of sentencing error, both a

contemporaneous objection and a written postsentencing motion raising the issue are required."

People v. Hillier, 237 Ill. 2d 539, 544 (2010) (citing People v. Bannister, 232 Ill. 2d 52, 76

(2008)). See also 730 ILCS 5/5-4.5-50(d) (West 2010) ("A defendant's challenge to the

correctness of a sentence or to any aspect of the sentencing hearing shall be made by a written

motion filed with the circuit clerk within 30 days following the imposition of sentence."). In

Hillier, for example, the court held that the defendant forfeited his contention on appeal that the

trial court erred in ordering a sex offender evaluation as part of the presentence investigation and

in relying on the evaluation at sentencing because the defendant failed to object at sentencing or

raise the issue in a postsentencing motion. Hillier, 237 Ill. 2d at 544-45. See also People v.

Nieves, 192 Ill. 2d 487, 502-03 (2000) (finding that the defendant waived his argument on appeal

that his constitutional right to a fair death penalty sentencing hearing was violated by the

introduction of hearsay evidence where he failed to object in the trial court). In the present case,

defendant never objected to this purported error at trial or sentencing, or in a motion to

17
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reconsider the sentence. 6 Thus, defendant's failure to do so constituted a procedural default of

this issue. Hillier, 237 Ill. 2d at 545.

¶44 We further note that any suggestion that defendant did not know or was not provided

with notice that the UUW by a felon offense was a Class 2 felony, and that he therefore could not

have timely raised this issue in the trial court, is inconsistent with the common law record in this

case. The indictment return sheet contained in the common law record provided notice to

defendant because it listed the UUW by a felon offense as a Class 2 offense. The indictment

listed his prior felony of conspiracy to commit murder. Additionally, the sentencing order,

which was issued on the date of sentencing on June 20, 2012, specifically listed his UUW by a

felon conviction as a Class 2 felony. Given these facts, it was incumbent upon defendant to raise

this claim of error before the trial court. Certainly after issuance of his sentence, he was required

to raise this claim in a postsentence motion. Failure to do so results in forfeiture.

¶45 In addition, any reliance on People v. Carmichael, 343 Ill. App. 3d 855 (2003), to argue

that sentencing issues are exempt from forfeiture must fail when considered in light of our

supreme court's guidance regarding the doctrine of forfeiture and plain error. Two of the most

important functions of an appellate court are to determine our jurisdiction and make certain that

issues have not been forfeited. People v. Smith, 228 Ill. 2d 95, 106 (2008). For instance, as

stated, our supreme court held in both Hillier and Nieves that the defendants forfeited review of

their purported sentencing errors by failing to object at sentencing or raise the alleged errors in a

postsentencing motion to reconsider. Hillier, 237 Ill. 2d at 544-45; Nieves, 192 Ill. 2d at 502-03.

¶46 Our supreme court further has instructed that, where a defendant forfeits an issue on

6
While defendant filed a motion to reconsider sentence, the only argument he raised was
that the sentence was excessive in light of his background and the nature of his participation in
the offense.
18
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appeal by failing to properly preserve it in the trial court, appellate review of the issue under the

plain-error rubric is likewise forfeited unless the defendant specifically sets forth on appeal the

grounds establishing plain error. Hillier, 237 Ill. 2d at 545-46; Nieves, 192 Ill. 2d at 502-03. The

plain-error doctrine provides a "narrow and limited exception" to forfeiture and requires that the

defendant show that "a clear or obvious error occurred." Hillier, 237 Ill. 2d at 545.

"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. [Citation.] Under both prongs of the plain-error

doctrine, the defendant has the burden of persuasion. [Citations.] If the defendant fails to

meet his burden, the procedural default will be honored. [Citation.]" Hillier, 237 Ill. 2d

at 545.

¶47 In Hillier, our supreme court held that the defendant failed to meet his burden of

establishing plain error because he did not argue for plain-error review. Hillier, 237 Ill. 2d at

545-46. "A defendant who fails to argue for plain-error review obviously cannot meet his

burden of persuasion. As we explained in People v. Nieves, 192 Ill. 2d 487, 502-03 (2000),

when a defendant fails to present an argument on how either of the two prongs of the plain-error

doctrine is satisfied, he forfeits plain-error review." Hillier, 237 Ill. 2d at 545-46. See also

Nieves, 192 Ill. 2d at 503 (finding that the defendant waived his plain-error argument where his

argument merely consisted of "a single sentence asking us to employ the plain-error rule because

the right to a fair death penalty sentencing hearing is a fundamental right.").

¶48 With this in mind, in order for this court to properly consider defendant's contention that

conspiracy to commit murder did not constitute a forcible felony, defendant must argue that plain

error occurred, and that argument must also be sufficiently developed, or it is also forfeited.

19
1-12-2017

Hillier, 237 Ill. 2d at 545-46; Nieves, 192 Ill. 2d at 502-03. At no point, however, did defendant

set forth, let alone develop, any argument that his forfeiture should be excused by plain error. By

failing to argue for plain-error review, defendant "obviously cannot meet his burden of

persuasion" under the plain-error doctrine. Hillier, 237 Ill. 2d at 545-46. Accordingly, any

plain-error argument has also been forfeited.

¶49 Finally, we conclude that defendant has introduced a third layer of forfeiture with respect

to this issue because he raised it for the first time in his reply brief. Defendant failed to raise or

argue it in his opening brief or supplemental brief on appeal. "According to Rule 341(h)(7),

points not argued in the appellant's brief 'are waived and shall not be raised in the reply brief, in

oral argument, or on petition for rehearing.' " BAC Home Loans Servicing, LP v. Mitchell, 2014

IL 116311, ¶ 23 (quoting Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013)). Our supreme court "has

repeatedly held an appellant's failure to argue a point in the opening brief results in forfeiture

under Supreme Court Rule 341(h)(7)." Id. We are also mindful that "all of the Illinois Supreme

Court rules are mandatory rules of procedure, not mere suggestions." People v. Garstecki, 382

Ill. App. 3d 802, 811 (2008). Defendant, therefore, has forfeited his claim that his prior

conviction of conspiracy to commit murder did not constitute a forcible felony in the first

instance for failure to present it to the trial court at the time of sentencing or in a motion to

reconsider, and in the second instance by failing to argue for plain-error review, and, lastly, in

the third instance for raising it for the first time on appeal in his reply brief.

¶50 Any suggestion that defendant should not be constrained by Rule 341(h)(7) because the

issue was first mentioned in the State's response brief is misguided. As previously discussed, the

common law record reveals that defendant was on notice that the UUW by a felon offense was a

Class 2 offense. It was indicated as such in the indictment return sheet and on his sentencing

20
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order. As set forth in our initial opinion and as the dissent notes, the fact that defendant had a

prior conviction of conspiracy to commit murder was noted at the sentencing hearing, and the

charging instrument indicated that the prior felony conviction relied upon was conspiracy to

commit murder. And we have also previously stated that the UUW by a felon statute specifically

authorizes only four ways in which the UUW by a felon offense becomes a Class 2 offense based

on a prior felony, with one of the four provided options being a prior conviction of a forcible

felony, as is the case here.

"Violation of this Section by a person not confined in a penal institution who has been

convicted of a forcible felony, a felony violation of Article 24 of this Code or of the

Firearm Owners Identification Card Act, stalking or aggravated stalking, or a Class 2 or

greater felony under the Illinois Controlled Substances Act, the Cannabis Control Act, or

the Methamphetamine Control and Community Protection Act 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).

¶51 Once defendant came before the reviewing court, bearing in mind that he was on notice

that he was convicted of a Class 2 offense, it was incumbent upon him to raise in his opening

brief the issue of whether his prior conviction of conspiracy to commit murder constituted a prior

conviction listed in section 24-1.1(e) that would define his offense as a Class 2 felony. Failure to

do so constituted forfeiture under Rule 341.7 Additionally, in defendant's opening brief, he

acknowledged that he was sentenced for a Class 2 offense. However, other than raising his claim

under section 111-3(c), defendant failed to allege that his conviction did not satisfy any of the

7
We additionally note that defendant does not argue that his sentence was void. "A void
order can be attacked at any time" and "[a] sentence not authorized by statute is void." Hillier,
237 Ill. 2d at 546-47. However, defendant's 4 ½-year sentence was well within the statutory
range for his Class 2 felony of UUW by a felon. 720 ILCS 5/24-1.1(e) (West 2010).
21
1-12-2017

requirements of the statute to qualify as a Class 2 offense until his reply. As a result of failing to

raise that claim at the outset, it was forfeited pursuant to the rule.

¶52 Forfeiture aside, we find unpersuasive defendant's citation of Carmichael, 343 Ill. App.

3d 855, to support his contention that conspiracy to commit murder did not constitute a forcible

felony. In Carmichael, the court held that the offense of armed violence was not a crime

inherently involving the use or threat of physical force or violence, and therefore not a forcible

felony for purposes of UUW by a felon and section 2-8 (720 ILCS 5/2-8 (West 2008)).

Carmichael, 343 Ill. App. 3d at 861. The court reasoned that armed violence could be

committed by merely possessing a firearm while in the possession of a controlled substance, a

situation which was not inherently violent. Id. Relying on the supreme court case People v.

Golson, 32 Ill. 2d 398 (1965), which involved the felony murder rule in the context of a

conspiracy to commit theft from the U.S. mails during which two postal inspectors were killed,

the Carmichael court observed that the test for determining whether a felony constituted a

forcible felony under the felony murder rule " ' "is not whether the felony is normally classified

as non-violent, but is whether, under the facts of a particular case, it is contemplated that

violence might be necessary to enable the conspirators to carry out their common purpose." ' "

(Emphasis in original.) Carmichael, 343 Ill. App. 3d at 860 (quoting People v. Belk, 203 Ill. 2d

187, 193-94 (2003), quoting Golson, 32 Ill. 2d at 407-08). Similarly, the supreme court in Belk,

in finding that the defendant's commission of aggravated possession of a stolen motor vehicle did

not qualify as a forcible felony for purposes of the felony murder rule, explained that "[i]t is the

contemplation that force or violence against an individual might be involved combined with the

implied willingness to use force or violence against an individual that makes a felony a forcible

felony under the residual category of section 2-8." Belk, 203 Ill. 2d at 196.

22
1-12-2017

¶53 In contrast to Carmichael, Golson, and Belk, the present case involved conspiracy to

commit murder, that is, conspiracy to commit one of the specifically enumerated forcible

felonies under section 2-8. It did not involve a nonforcible felony like theft of United States

mails or aggravated possession of a stolen vehicle. For that reason, it is even more logical to

conclude that conspiracy to commit murder involved the contemplation of force or violence

against an individual and that such force or violence would be necessary to carry out the crime of

murder. Also helpful to our analysis is this court's decision in People v. Thomas, where we held

that every attempted murder constituted a forcible felony for purposes of the armed habitual

criminal statute, which also utilizes the definition of forcible felony from section 2-8, because

"every attempted murder involves a specific intent to cause death," and one who commits

attempted murder "contemplated the use of sufficient force to cause very serious injury, injury

that can lead to death." People v. Thomas, 407 Ill. App. 3d 136, 140 (2011). The Thomas court

also concluded that the definition of forcible felony in section 2-8 "does not require the actual

infliction of physical injury; instead, the statue requires only the 'use or threat of physical force

or violence.' " Id. (quoting 720 ILCS 5/2-8 (West 2006)). This court recognized that our

supreme court "has explained that a felony involves the threat of physical force or violence if the

felon 'contemplated that violence might be necessary' to carry out the crime." Id. (quoting Belk,

203 Ill. 2d at 194).

¶54 Taking into consideration our decision in Thomas and the particular circumstances in the

present case, we are unwilling to extend the reasoning in Carmichael, and the cases cited therein,

to the offense of conspiracy to commit murder, which is, as stated, synonymous with conspiracy

to commit an enumerated forcible felony. We find that the offense of conspiracy to commit

murder necessarily contemplates that violence would be necessary to enable the conspirators to

23
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carry out their common purpose, i.e., murder, and it is wholly irrelevant whether the object of the

conspiracy was ever completed or attempted.

¶55 Lastly, we note that, after we issued our original opinion in this matter, the Illinois

Supreme Court in People v. Easley confirmed our determination in this case that the notice

provision in section 111-3(c) (725 ILCS 5/111-3(c) (West 2010)) does not apply to UUW by a

felon, and that no improper double enhancement occurs when a defendant's prior conviction is

used as an element (as opposed to an enhancement) of the offense of Class 2 UUW by a felon.

People v. Easley, 2014 IL 115581, ¶¶ 22-26, 30.

¶56 We reject any argument that Easley does not apply to the case at bar because this case

involved an unenumerated felony under section 2-8, which defines a "forcible felony" as "first

degree murder, second degree murder, *** and any other felony which involves the use or threat

of physical force or violence against any individual." 720 ILCS 5/2-8 (West 2010). We find no

support in Easley for the contention that unenumerated felonies are to be considered any

differently than enumerated felonies for purposes of UUW by a felon (720 ILCS 5/24-1.1(e)

(West 2010)) and section 3-111(c) (725 ILCS 5/111-3(c) (West 2010)). Such an argument

ignores the core holding of Easley that section 3-111(c) does not apply when the underlying

felony is an element of the offense. Since the prior felony is an element of the offense of Class 2

UUW by a felon, section 3-111(c) does not apply, regardless of whether the prior felony was

enumerated or unenumerated under section 2-8.

¶57 Lastly, the mere fact that notice to enhance was provided for the other two counts of

aggravated unlawful use of a weapon (AUUW), but not for the UUW by a felon charge, is of no

import. The supreme court's holding in Easley confirmed our position that the counts alleging

AUUW required a notice to enhance under section 3-111(c), but no such notice was required in

24
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the case of UUW by a felon. Therefore, the State simply followed the law in giving notice where

it had to, and not giving notice where no notice was required. No negative inference should arise

by simply following the law.

¶58 SEPARATE OPINION UPON DENIAL OF REHEARING

¶59 PRESIDING JUSTICE GORDON, dissenting.

¶60 The majority holds that defendant waived the issue of whether the State's evidence was

sufficient to prove his prior commission of a forcible felony. I must respectfully dissent since,

first, a defendant does not waive a claim of insufficient evidence by not raising it below; second,

this court previously considered this exact same issue of waiver and ruled the other way; and,

last but not least, waiver is a limit on the parties, not on the court.

¶61 In its opinion filed March 14, 2014, the majority held that conviction of a forcible felony,

requiring imposition of a Class 2 sentence, was an element of the offense. Supra ¶ 25. In his

petition for rehearing, defendant argued that the majority failed to consider an issue which he had

raised in his original briefs, namely, that the State failed to prove that his acts in conspiring to

commit murder constituted a forcible felony. In its supplemental opinion, the majority tacitly

acknowledges that it did not address this issue in its prior opinion, but it now holds that

defendant waived this issue by not raising it in a postsentencing motion. However, a claim of

insufficient evidence is not waived, even if it is not contained in a posttrial motion. People v.

Woods, 214 Ill. 2d 455, 470 (2005) ("when a defendant makes a challenge to the sufficiency of

the evidence, his or her claim is not subject to the waiver rule and may be raised for the first time

on direct appeal"). Thus, this claim, that the State failed to prove an element of the offense, is

not waived for our consideration on appeal.

¶62 Second, the procedural facts in the case at bar are exactly the same as the procedural facts

25
1-12-2017

in Carmichael, where this court previously held that the waiver rule was not a bar to

consideration of this exact same issue on appeal. People v. Carmichael, 343 Ill. App. 3d 855,

859 (2003). The majority, however, finds that Justice Hoffman's well-reasoned opinion in

Carmichael is not persuasive. Supra ¶ 45. I must respectfully disagree.

¶63 In Carmichael, as in our case, the defendant was charged with unlawful use of a weapon

by a felon. Carmichael, 343 Ill. App. 3d at 858. In Carmichael, as in our case, a prior conviction

was used to prove that the defendant's offense was a Class 2 rather than a Class 3 offense, and

the defendant argued on appeal that the State had failed to prove that his prior conviction

constituted a forcible felony. Carmichael, 343 Ill. App. 3d at 857-59. In Carmichael, as in our

case, the prior offense was not on the statute's enumerated list of forcible felonies, and "[t]he

State did not either at trial or the sentencing hearing, introduce any evidence regarding the

circumstances surrounding that prior conviction." Carmichael, 343 Ill. App. 3d at 858. In

Carmichael, as in our case, "the [trial] court never made an explicit finding that the defendant's

prior *** conviction constituted a forcible felony," but it did enter an order identifying

defendant's conviction as a Class 2 felony. Carmichael, 343 Ill. App. 3d at 858. As this

description shows, the procedural facts in Carmichael are identical to those in our case.

¶64 In Carmichael, as in our case, the State argued "that the defendant has waived review of

the contention that his prior *** conviction does not constitute a forcible felony by failing to

raise it at trial or in a posttrial motion." Carmichael, 343 Ill. App. 3d at 859. In Carmichael, this

court rejected this argument holding: "sentencing issues are excepted from the doctrine of

waiver when they affect a defendant's substantial rights." Carmichael, 343 Ill. App. 3d at 859.

Thus, as this court previously did in Carmichael, I would reject this exact same waiver argument.

¶65 Third, waiver is a limit on the parties but not on the court. Carmichael, 343 Ill. App. 3d

26
1-12-2017

at 859. Despite waiver, this court may address an issue in order to carry out its responsibility to

reach a just result. Carmichael, 343 Ill. App. 3d at 859.

¶66 In sum, I find that the issue was not waived in the trial court because, first, a defendant

does not waive a sufficiency claim by failing to raise it in the trial court; second, this court

previously considered this exact same waiver argument made by the State and rejected it; and,

third, waiver is not a limit on the court.

¶67 The majority next holds that defendant waived this issue in the appellate court by raising

it first in his reply brief. Supra ¶ 49. As I observed in my prior dissent, some arguments are

properly raised for the first time in the reply brief because they are simply a response to

arguments raised by the State in its brief. For example, a defendant is not required to discuss

plain error in his opening brief. Once the State raises the issue of waiver in its brief, the subject

of plain-error review is then properly raised for the first time in the reply brief. People v.

Ramsey, 239 Ill. 2d 342, 412 (2010) (citing People v. Williams, 193 Ill. 2d 306, 347-48 (2000)).

¶68 Similarly, in the case at bar, defendant in his opening brief observed that, at sentencing,

there was no discussion concerning the class of offense and the State "simply noted in

aggravation that Polk had a prior conviction for conspiracy to commit murder and he was not

extendable based upon the prior conviction." Defendant quoted the statute which required the

State to identify which conviction it was basing an enhancement on, which the State did not do.

The State then responded in its brief that no discussion was needed, because his offense was

"expressly based on a prior forcible felony." Defendant, in turn, responded in his reply brief that

"the State argues for the first time that Mr. Polk's conviction should be a Class 2 offense because

his prior conviction was a forcible felony." The purpose of a reply brief is to reply to arguments

raised in the response brief, and that is what was done here. Ill. S. Ct. R. 341(j) (eff. Feb. 6,

27
1-12-2017

2013) (the reply brief is for "replying to arguments presented in the brief of the appellee"). Thus,

the issue was not waived for our review. See also People v. Carmichael, 343 Ill. App. 3d 855,

859 (2003) ("sentencing issues are excepted from the doctrine of waiver when they affect a

defendant's substantial rights" and "[w]e 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").

¶69 The majority holds that defendant should have anticipated that the State would argue on

appeal that the entry on the mittimus of a Class 2 offense was justified because the prior offense

was a forcible felony. Supra ¶¶ 50-51. First, there is no anticipatory-argument rule in the

appellate court, and with good reason. A party is under no obligation to alert the other side to

arguments that it might otherwise waive.

¶70 Second, the majority overlooks the fact that defendant's prior conviction was in 2006 and

he received a seven-year sentence. The instant offense occurred in 2011, only five years later.

The statute provides: "Violation of this Section by a person who is on parole or mandatory

supervised release is a Class 2 felony ***." 720 ILCS 5/24-1.1 (West 2012). Given the dates of

the prior and current offenses and the length of the prior sentence, there is no reason that

defendant should have guessed that, on appeal, the State would attempt to justify the Class 2

offense based solely on the argument that the prior offense was a forcible felony. Thus,

defendant did not waive this argument by raising it in his reply brief because it was simply a

response to the State's brief.

¶71 Last but not least, the majority holds that, even if the argument was not waived, the State

28
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8
satisfied its burden of proof without any facts. I cannot concur with this conclusion.

¶72 The majority concludes -- without any facts concerning the prior conspiracy conviction --

that it was a "felony which involves the use or threat of physical force or violence against any

individual." 720 ILCS 5/2-8 (West 2010). Our legislature provided a specific list of felonies

that qualify as forcible felonies, and conspiracy is not on the list. 720 ILCS 5/2-8 (West 2010).

When a felony is not on the enumerated list of forcible felonies, an appellate court must consider

"the circumstances surrounding the commission of that particular offense" and decide whether

"the defendant contemplated that the use or threat of force or violence might be necessary to

carry out the offense" of which he was convicted. People v. Carmichael, 343 Ill. App. 3d 855,

861 (2003). Although the prior offense was a conspiracy to commit murder, there is no evidence

in the record that the conspiracy was completed or even attempted. The offense itself was the

agreement plus one act in furtherance of that agreement (720 ILCS 5/8-2 (West 2010)), and there

is no evidence in the record before us that the act at issue involved the use or threat of physical

force. An agreement is simply not "an inherently violent offense." Carmichael, 343 Ill. App. 3d

at 861. The State had the burden to show facts, and it failed to satisfy its burden.

¶73 In addition, I must dissent because the Easley case recently decided by our supreme court

is not dispositive of this case, as the supplemental opinion concludes. First, the Easley case did

not involve, as this case does, an unenumerated forcible felony as the basis for increasing the

class of offense. As a result, the increase in Easley was automatic. Easley, 2014 IL 115581, ¶ 19

("only one class of felony conviction [was] possible"). Second, the Easley case involved no

8
The majority states that defendant did not ask, in the alternative, for plain-error review,
when defendant did, in fact, ask for it in the alternative in his initial brief. Supra ¶ 48. However,
the plain-error doctrine does not apply to a sufficiency claim (Woods, 214 Ill. 2d at 470), and the
majority correctly does not apply it when examining defendant's substantive argument. Supra ¶
52.
29
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notice at all. By contrast, in the case at bar, the State provided notice of its intent to seek an

enhanced sentence on counts I and II, but affirmatively chose not to provide notice for the third

count in the same information. Defendant then reasonably believed that no enhancement would

apply to this third count. Where the State provides notice for some counts but not for others in

the same information, that conduct has the opposite effect of the "notice" envisioned by the

statute. Instead of providing the kind of real information that a notice is supposed to deliver, a

defendant is left simply confused or, at worst, affirmatively misinformed.

¶74 In the case at bar, no class of offense was mentioned at sentencing; the notice previously

given by the State mentioned every offense but this one; no basis for increasing the class of

offense was identified at sentencing; and the basis identified by the State for the first time on

appeal is questionable as a forcible felony. If defendant had received notice at any point along

the way, then he could have challenged the conclusion in the trial court that this was a forcible

felony and the State would have had to provide what is lacking here: facts.

¶75 For the foregoing reasons, I must respectfully dissent from the supplemental opinion, and

I would remand for resentencing to make the State comply with the law as made and provided.

30