2014 IL App (1st) 121792-B
FIFTH DIVISION
JULY 25, 2014
No. 1-12-1792
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
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.
Justices Palmer and Taylor concurred in the judgment and 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 direct appeal, defendant
raised claims that challenged only his sentence. Defendant claimed: (1) that his UUW conviction
was improperly enhanced from a Class 3 to a Class 2 offense where the State's charging
instrument failed to provide the notice required by the Code of Criminal Procedure of 1963 (725
ILCS 5/111-3(c) (West 2010)) when the State was seeking an enhanced classification of the
offense; and (2) that defendant was subjected to an improper double jeopardy enhancement
because the same prior felony conviction was used both to prove an element of the offense and to
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elevate the class of offense from a Class 3 to a Class 2 felony. People v. Pryor, 2013 IL App
(1st) 121792, ¶ 1.
¶2 In support of his statutory claim, defendant relied on two opinions recently issued by the
First District that 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.
¶3 On December 27, 2013, we delivered judgment in favor of defendant, invalidating
defendant’s Class 2 conviction and remanding the case for resentencing as a Class 3 felony.
Pryor, 2013 IL App (1st) 121792, ¶ 4. We reasoned that “until directed otherwise by our
supreme court, we decline the State's request to conclude that [Easley and Whalum were]
wrongly decided.” Pryor, 2013 IL App (1st) 121792, ¶ 4. We observed that the Illinois Supreme
Court had granted a petition for leave to appeal in the Easley case, and thus, “we [would] have a
definitive answer shortly by our supreme court on the question that we [were] called upon to
answer.” Pryor, 2013 IL App (1st) 121792, ¶ 4.
¶4 Since we delivered our judgment, the supreme court ruled in Easley that notice of
enhancement is not required when a prior conviction is already an element of the offense. People
v. Easley, 2014 IL 115581, ¶ 19. Accordingly, the supreme court issued a supervisory order
directing us to vacate our judgment in Pryor, 2013 IL App (1st) 121792, and to reconsider our
judgment in light of the supreme court’s decision in Easley. People v. Pryor, No. 117276 (Ill.
Mar. 10, 2014). We now affirm defendant’s Class 2 conviction.
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¶5 BACKGROUND
¶6 As there is no factual issue before us, we set forth only the few relevant facts, which are
the facts concerning the charging instrument, those concerning his conviction, 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:
"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
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"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 24-1.1.
¶ 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)." See 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.
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¶ 14 At sentencing on May 29, 2012, the following discussion about the correct class of
sentence occurred:
"THE COURT: State, do you believe — It's a Class Two,
we know that, what's the range on this kind of charge?
PROSECUTOR: Judge, it's the State's position it's 3 to 14
years.
THE COURT: [Defense counsel], do you agree or disagree
with the range?
DEFENSE COUNSEL: It's 3 to 7 years.
THE COURT: It's not 3 to 7. I think it's at least 3 to 10 but
we'll see. Will somebody get me the file on Pryor, please, the one
that's involved with the gun charge, 11 CR 3619.
PROSECUTOR: Judge, I have the statute.
THE COURT: What is it?
PROSECUTOR: 720 ILCS 5/24-1.1
THE COURT: Okay. Thanks. It's unlawful for any person
to knowingly possess on or about his person on his own land or
abode, et cetera, any weapon if convicted of a felony previously.
So far that applies in this case. And then penalty, violation of this
section for anyone I just read by a person not confined to a penal
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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 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.
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¶ 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 (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 Since we must always resolve a case on a nonconstitutional issue if possible, we must
first consider defendant’s statutory claim. 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").
¶ 18 I. Standard of Review
¶ 19 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.
¶ 20 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. 3d 111, 117 (2009). The
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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.
¶ 21 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.
¶ 22 II. Waiver
¶ 23 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) 110023, ¶ 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 any time. People v. Arna, 168 Ill. 2d 107, 113 (1995).
Since defendant's five-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, overruled on other grounds, 2014 IL 115581 (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
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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.
¶ 24 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 (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." Carmichael, 343 Ill. App. 3d at 859.
¶ 25 Our first task, which we begin below, is to determine whether there was any error.
Piatkowski, 225 Ill. 2d at 565.
¶ 26 III. Defendant’s Sentence
¶ 27 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 has been convicted of a felony
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***." 720 ILCS 5/24-1.1(a) (West 2010).
¶ 28 Subsection (e) of section 24-1.1 governs the classification and 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).
¶ 29 Next it provides that the offense is 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 24-1.1. 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).
¶ 30 Next, subsection (e) provides that the offense is a Class 2 felony if defendant was
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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).
At sentencing, the prosecutor stated that the offense is a Class 2 felony due to defendant’s "prior
gun conviction," and the trial court agreed. Article 24 of the Criminal Code of 1961, referred to
in the quote above, is entitled "Deadly Weapons," and describes gun offenses. 720 ILCS 5/24-1
et seq. (West 2010).
¶ 31 IV. Notice Violation
¶ 32 Defendant claims that the State failed to provide him with notice of the State's intent to
seek an enhanced sentence, as required by section 111-3(c) of the Code of Criminal Procedure of
1963. 725 ILCS 5/111-3 (West 2010). As a result, defendant’s argument relies on the premise that
he was convicted of a Class 3 offense but received a Class 2 sentence without notice. However, as
explained below, defendant’s premise that he was convicted of a Class 3 offense is mistaken. As
our supreme court explained in Easley, defendant’s sentence could not be “enhanced” to a Class 2
felony because defendant was convicted of a Class 2 felony. Thus, defendant was not entitled to
notice under section 111-3(c) of the Code of Criminal Procedure of 1963. 725 ILCS 5/111-3 (West
2010).
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¶ 33 Our supreme court’s decision in Easley controls the outcome of the present appeal. Easley,
2014 IL 115581, ¶ 1. As in the present case, the defendant in Easley was convicted of unlawful use
of a weapon by a felon pursuant to section 24-1.1(a). Easley, 2014 IL 115581, ¶ 20; see also 720
ILCS 5/24-1.1(a) (West 2008). The defendant in Easley also argued that he was convicted of a
Class 3 felony and did not receive notice that he would receive a Class 2 sentence as required by
section 111-3(c). Easley, 2014 IL 115581, ¶ 13.
¶ 34 Holding that the defendant was not entitled to notice, the Easley court reasoned that the
“defendant’s entire argument is based on the faulty premise that he was found guilty of a Class 3
offense but was given a Class 2 sentence.” Easley, 2014 IL 115581, ¶ 26. The court found that
notice under section 111-3(c) was required “only when the prior conviction that would enhance the
sentence is not already an element of the offense.” Easley, 2014 IL 115581, ¶ 19; see 725 ILCS
5/111-3(c) (West 2008). The supreme court reasoned:
“The language of section 111-3(c) states that ‘the fact of such prior
conviction and the State’s intention to seek an enhanced sentence
are not elements of the offense’ ***.*** [N]otice under section
111-3(c) is not necessary when the prior conviction is a required
element of the offense. *** [O]nly one class of felony conviction is
possible for the offense as alleged in the charging instrument.”
(Emphasis in original.) Easley, 2014 IL 115581, ¶ 19 (quoting 725
ILCS 5/111-3(c) (West 2008)).
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¶ 35 Applying this reasoning, the Easley court noted that a prior conviction is a necessary
element for the offense of unlawful use of a weapon by a felon. Easley, 2014 IL 115581, ¶ 22
(citing 720 ILCS 5/24-1.1(e) (West 2008)). It further noted that the defendant’s prior conviction
was also unlawful use of a firearm, and that the sentencing statute plainly stated that “ 'any second
or subsequent violation [of section 24-1.1(a)] shall be a Class 2 felony.' ” (Emphasis added.)
Easley, 2014 IL 115581, ¶¶ 20-21, (quoting 720 ILCS 5/24-1.1(e) (West 2008)). Thus, the Easley
court found that the defendant was never entitled to notice of enhancement under section 111-3(c)
because the defendant’s sentence was never “enhanced” in the first place. Easley, 2014 IL 115581,
¶ 24. “Simply stated, [the] defendant was consistently charged with a Class 2 offense, found guilty
of a Class 2 offense, and sentenced as a Class 2 offender.” Easley, 2014 IL 115581, ¶ 26.
¶ 36 There is no meaningful distinction between Easley and the case at bar. Like the defendant
in Easley, defendant in the present case was convicted of unlawful use of a weapon by a felon
pursuant to section 24-1.1(a) and sentenced under section 24-1.1(e). See Easley, 2014 IL 115581,
¶¶ 20-21. Section 24-1.1(e) requires defendant’s conviction to be a Class 2 felony:
“[A]ny second or subsequent violation [of section 24-1.1(a)] shall
be a Class 2 felony ***. [Additionally,] [v]iolation of this Section
by a person not confined in a penal institution who has been
convicted of *** a felony in violation of Article 24 of this Code ***
is [also] a Class 2 felony ***.” 720 ILCS 5/24-1.1(e) (West 2010).
In the case at bar, defendant’s prior conviction was a violation of article 24. While the trial court
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did not explicitly state whether it was charging defendant with a Class 2 or Class 3 felony, it
necessarily follows from defendant’s prior conviction that defendant was charged with a Class 2
felony, found guilty of a Class 2 offense, and sentenced as a Class 2 offender. See Easley, 2014 IL
115581, ¶ 26. Therefore, as defendant’s sentence was never “enhanced,” defendant was not
entitled to notice of enhancement under section 111-3(c).
¶ 37 V. Constitutional Issues
¶ 38 Defendant argues that he 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. However, since defendant’s
sentence was never “enhanced,” defendant’s double enhancement claim necessarily fails. See
Easley, 2014 IL 115581, ¶ 28 (“Because we have found that defendant was charged, convicted,
and sentenced as a Class 2 offender, defendant’s double enhancement claim necessarily fails.
The prior conviction *** was used only once, as an element of the offense, and not also to
enhance the offense.”); see also People v. Polk, 2014 IL App (1st) 122017, ¶ 32.
¶ 39 Finally, we briefly note that our Illinois Supreme Court recently considered the
constitutionality of certain provisions in article 24. See People v. Aguilar, 2013 IL 112116, ¶ 1.
However, the provision in the present case is different from the provisions in Aguilar, and thus,
there is no need to consider its constitutionality. See Aguilar, 2013 IL 112116, ¶¶ 26-27 (quoting
District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008), the court noted that the right to bear
arms under the second amendment is not unlimited, and that certain prohibitions, such as those
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prohibiting “ ‘the possession of firearms by felons,’ ” are constitutional).
¶ 40 CONCLUSION
¶ 41 For the foregoing reasons, defendant was not entitled to notice under section 111-3(c) and
was not subjected to an improper double jeopardy enhancement
¶ 42 Affirmed.
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