People v. Whalum

2014 IL App (1st) 110959-B

FIRST DIVISION
September 15, 2014

No.1-11-0959

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County, Illinois
)
v. ) No. 10 CR 11294
)
DAMIAN WHALUM, ) Honorable
) Nicholas Ford,
Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Connors and Simon concurred in the judgment and opinion.

OPINION

¶1 This cause comes before us on remand from our supreme court to determine whether a

different result is warranted in our December 24, 2012, decision in People v. Whalum, 2012 IL

App (1st) 110959, in light of its March 20, 2014, decision in People v. Easley, 2014 IL 115581.

People v. Whalum, 2014 IL 115582. We held that the State failed to give defendant notice

pursuant to section 111-3(c) of the Code of Criminal Procedure of 1963 of its intent to seek an

increase in the classification of defendant's conviction for unlawful use of a weapon by a felon

(720 ILCS 5/24-1.1(a), (e) (West 2010)) from a Class 3 offense to a Class 2 offense. Whalum,

2012 IL App (1st) 110959, ¶ 37. Our supreme court in Easley held that notice to a defendant,

also convicted of unlawful use of a weapon by a felon, albeit for a second time (720 ILCS

5/24-1.1(a) (West 2008)), did not have to be given because "section 111-3(c) applies only when

the prior conviction is not an element of the offense." Easley, 2014 IL 115581, ¶ 19. Our
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supreme court explained that the defendant's prior conviction as charged in the indictment, i.e.,

his first conviction for unlawful use of a weapon by a felon, was a required element of the

offense with only one resulting possible classification of felony. Id.; see 720 ILCS 5/24-1.1(e)

(West 2008) (providing that "second or subsequent violation" of the unlawful use of a weapon by

a felon statute results in "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").

¶2 In this case, a jury convicted defendant, Damian Whalum, of unlawful use of a weapon

by a felon. 720 ILCS 5/24-1.1(a), (e) (West 2010). The underlying felony, as put forth in the

State's charging instrument, was defendant's felony conviction for "delivery of a controlled

substance *** under the laws of the State of Wisconsin." After carefully considering Easley,

we hold that under the unique facts of this case, a different result is not warranted. Section

24-1.1(e) of the Criminal Code of 1961 lists the classification and possible sentences for

unlawful use of a weapon by a felon violations. 720 ILCS 5/24-1.1(e) (West 2010).

Defendant's Wisconsin felony conviction for delivery of a controlled substance is not listed as an

elevated classification under section 24-1.1(e). 720 ILCS 5/24-1.1(e) (West 2010). Therefore,

the State needed to provide defendant here, unlike the defendant in Easley, with notice pursuant

to section 111-3(c) of the Code of Criminal Procedure in order to enhance the classification of

the offense by using another one of defendant's felony convictions not stated in the charging

instrument. 725 ILCS 5/111-3(c) (West 2010). The State, however, failed to do so.

Therefore, on remand, defendant's conviction should be classified as a Class 3 felony.

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¶3 BACKGROUND

¶4 We will only address the facts relevant to our supreme court's holding in Easley. A more

in-depth discussion of the facts of defendant's arrest and trial can be found in our prior opinion and

need not be repeated here. Whalum, 2012 IL App (1st) 110959,¶ ¶4-15.

¶5 The State charged defendant by information with two counts of unlawful use of a weapon

by a felon. Under count I, the State charged defendant with committing the unlawful use of a

weapon by a felon as follows:

"He, knowingly possessed on or about his person firearm

ammunition, to wit: .357 caliber rounds, after having been

previously convicted of the felony offense of delivery of a

controlled substance, under case number 03CF000296, under the

laws of the State of Wisconsin."

Count II is identical to count I, except the firearm ammunition listed was ".40 caliber rounds." 1

¶6 After trial, the jury returned a verdict finding defendant guilty of unlawful use of a weapon

by a felon. The circuit court denied defendant's motion for a new trial.

¶7 At sentencing, the State asserted that due to defendant's background, he qualified for

mandatory Class X sentencing of between 6 and 60 years' imprisonment. The State provided

certified copies of conviction for the following five offenses, all from Wisconsin: battery by a

prisoner, bail jumping, "substantial battery intend bodily harm," "vehicle operator flee/elude," and

felony delivery of a controlled substance. The State also informed the court that defendant had

been convicted in Wisconsin of the following three misdemeanor offenses: resisting or obstructing

1
In our prior opinion, we held the circuit court merged defendant's two convictions under
one count. Whalum, 2012 IL App (1st) 110959, ¶ 42.

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a police officer, battery, and disorderly conduct. After considering the evidence in aggravation

and mitigation, the presentence investigative report, the arguments of counsel, and the evidence at

trial, the circuit court found that because defendant had two prior Class 2 felonies, it had to

sentence him as a Class X offender. The court sentenced defendant to 10 years in prison with 2

years of mandatory supervised release (MSR). The circuit court calculated that defendant should

receive 174 days of credit for time served. Although the mittimus initially showed defendant's

sentence to include a two-year term of MSR upon his release from prison, the circuit court issued a

corrected mittimus showing defendant was to serve a three-year term of MSR.

¶8 Defendant raised one trial issue and several issues regarding his sentence on appeal.

Whalum, 2012 IL App (1st) 110959, ¶ 1. The State disputed the trial issue and two of defendant's

sentencing issues, but agreed that the matter had to be remanded for resentencing because the

circuit court improperly sentenced defendant as a Class X offender and that defendant's mittimus

needed correction to reflect the full number of days spent in custody prior to sentencing. Id. We

entered judgment in the State's favor regarding the trial issue but in defendant's favor regarding the

disputed sentencing issues. Id. Relevant here, we held that the State failed to provide defendant

notice according to section 111-3(c) of the Code of Criminal Procedure (725 ILCS 5/111-3(c)

(West 2010)) of its intention to seek an enhanced felony classification and sentence for defendant's

conviction for unlawful use of a weapon by a felon (720 ILCS 5/24-1.1 (a), (e) (West 2010)).

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

¶9 ANALYSIS

¶ 10 As discussed in our previous opinion, the parties agreed that the circuit court improperly

sentenced defendant as a Class X offender and that defendant's mittimus needed to be corrected

to reflect 261 days of presentence credit. Whalum, 2012 IL App (1st) 110959, ¶¶ 1, 28-29.

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We also held that defendant's mittimus needed further correction to reflect only one conviction

for unlawful use of a weapon by a felon. Id. ¶¶ 39-42. Below we will address, in light of our

supreme court's decision in Easley, whether a different result is warranted on the issue of

whether the State was required to provide defendant notice pursuant to section 111-3(c) of the

Code of Criminal Procedure (725 ILCS 5/111-3(c) (West 2010)) of its intention to seek an

enhanced classification of defendant's conviction.

¶ 11 Defendant argues the circuit court erred when it enhanced his conviction from a Class 3

offense to a Class 2 offense because the State failed to give notice in its charging instrument that

it was seeking an enhanced sentence under section 111-3(c) of the Code of Criminal Procedure.

725 ILCS 5/111-3(c) (West 2010). Defendant admits that he did not properly preserve this

issue for appellate review, but contends that his sentence is void and, therefore, can be

challenged at any time.

¶ 12 In response, the State argues defendant forfeited review of this claim for failing to

properly preserve it for appellate review. Alternatively, the State argues that it was not required

to give defendant notice because it was not seeking an enhanced sentence based on defendant's

prior conviction; rather, it was imposing the sentence that was mandated by statute. The State

maintains that defendant's Wisconsin convictions qualify as forcible felonies under the residual

clause of section 2-8 of the Criminal Code. 720 ILCS 5/2-8 (West 2010).

¶ 13 We will review the merits of defendant's claim because he challenges his sentence as

void, an error that can be corrected at any time. People v. Arna, 168 Ill. 2d 107, 113 (1995).

Our review is de novo because it involves interpreting the construction of a statute. People v.

Robinson, 172 Ill. 2d 452, 457 (1996). In doing so, we must ascertain and give effect to the

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legislature's intent. Easley, 2014 IL 115581, ¶ 16. The legislature's intent is best shown by

the plain and ordinary meaning of the language of the statute. Id.

¶ 14 Section 111-3 of the Code of Criminal Procedure addresses the requirements and form of

a criminal charging instrument. 725 ILCS 5/111-3 (West 2010); People v. Nowells, 2013 IL

App (1st) 113209, ¶ 23. Subsection (c) of section 111-3 provides, in relevant part:

"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(c) (West 2010).

¶ 15 Section 111-3(c) ensures "that a defendant received notice, before trial, of the offense for

which he is charged." (Emphasis in original.) People v. Jameson, 162 Ill. 2d 282, 290 (1994).

In enacting the statute, the legislature "intended [the] statute to reach those instances in which a

prior conviction elevates the classification of the offense with which a defendant is charged and

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convicted, rather than simply the sentence imposed." (Emphasis in original.) Id. at 288. The

notice provision contained in section 111-3(c), however, "applies only when the prior conviction

that would enhance the sentence is not already an element of the offense." Easley, 2014 IL

115581, ¶ 19. Where a prior conviction is a required element of the offense, "only one class of

felony conviction is possible for the offense as alleged in the charging instrument." Id.;

Nowells, 2013 IL App (1st) 113209, ¶ 26 ("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").

¶ 16 In the case at bar, the State charged defendant by information with unlawful use of a

weapon by a felon for possessing ammunition "after having been previously convicted of the

felony offense of delivery of a controlled substance *** under the laws of the State of

Wisconsin" in violation of section 24-1.1(a) of the Criminal Code. 720 ILCS 5/24-1.1(a) (West

2010) ("It is unlawful for a person to knowingly possess *** any firearm ammunition if the

person has been convicted of a felony under the laws of this State or any other jurisdiction."

(Emphasis added.)). At trial, the State proved, and defendant does not dispute here, that

defendant knowingly possessed the ammunition and, through a certified copy of his Wisconsin

conviction for delivery of a controlled substance, that he had a prior felony. Accordingly, under

section 24-1.1 of the Criminal Code, the class of the offense, and the possible sentence, is

dictated by subsection (e). 720 ILCS 5/24-1.1(e) (West 2010). An initial violation of section

24-1.1 by a person not in a penal institution results in a Class 3 felony, with a possible sentence

of between 2 and 10 years in prison. 720 ILCS 5/24-1.1(e) (West 2010). A second or

subsequent violation of section 24-1.1 results in a Class 2 felony with a sentencing range of

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between 3 and 14 years in prison. 720 ILCS 5/24-1.1(e) (West 2010). The other Class 2

felonies, as dictated by Section 24-1.1(e) are as follows:

"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. Violation of this Section by a person who is on parole or

mandatory supervised release is a Class 2 felony for which the

person, if sentenced to a term of imprisonment, shall be sentenced

to not less than 3 years and not more than 14 years." 720 ILCS

5/24-1.1(e) (West 2010).

¶ 17 Applying defendant's underlying felony as stated in the charging instrument, i.e.,

"delivery of a controlled substance *** under the laws of the state of Wisconsin," to the possible

classification and sentences he could receive under section 24-1.1(e), we hold his Wisconsin

felony could only result in a Class 3 felony and a prison sentence of between 2 and 10 years.

720 ILCS 5/24-1.1(e) (West 2010). Defendant's Wisconsin felony does not fall under any of

the specific types of felonies listed under section 24-1.1(e) that require a violation to be classified

as a Class 2 felony because it is not a violation of article 24 of the Criminal Code of 1961, the

Firearm Owners Identification Card Act, the Illinois Controlled Substances Act, the Cannabis

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Control Act, the Methamphetamine Control and Community Protection Act, or a second

violation of section 24-1.1. 720 ILCS 5/24-1.1(e) (West 2010). Similarly, it also does not fall

under any of the more general categories listed under section 24-1.1(e), i.e., a conviction for a

forcible felony, 2 stalking, aggravated stalking, or status as a parolee. 3 720 ILCS 5/24-1.1(e)

(West 2010). Had defendant's prior Wisconsin felony fallen into any one of the above

categories, defendant's conviction would be a Class 2 felony and notice under section 111-3(c) of

the Code of Criminal Procedure would not have been required because "such notice is

unnecessary when the prior conviction is already a required element of the offense and only one

class of felony is possible for that offense as alleged in the charging instrument." Easley, 2014

IL 115581, ¶ 24. Defendant's Wisconsin felony conviction for delivery of a controlled

substance, however, does not fall into any of the delineated categories under section 24-1.1(e).

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

¶ 18 Accordingly, it follows that if the State wanted defendant's conviction for unlawful use of

a weapon by a felon to be a Class 2 felony, it could have done so by using a different prior

conviction or by giving defendant notice. The State could have used a different prior

conviction for the enhanced classification and sentence, one that falls under one of the categories

listed in section 24-1.1(e), as an element of the offense. This would have eliminated the need to

provide notice for an enhanced sentence under section 111-3(c) of the Code of Criminal

Procedure. Easley, 2014 IL 115581, ¶ 19. Or, the State could have used defendant's

Wisconsin felony conviction for delivery of a controlled substance, as it did, but given defendant

notice in the charging instrument according to section 111-3(c) of the Code of Criminal

2
See 720 ILCS 5/2-8 (West 2010) (for the list of forcible felonies.)
3
The State does not raise any argument that defendant was on parole at the time of his
arrest for the underlying conviction of delivery of a controlled substance.

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Procedure. Here, as argued by the State, that other prior conviction is defendant's Wisconsin

conviction for substantial battery. 4 The State's failure to do either results in defendant's proper

felony classification being a Class 3 felony under section 24-1.1(e) and its resulting possible

prison sentence, 2 to 10 years. 720 ILCS 5/24-1.1(e) (West 2010).

¶ 19 The State's use of defendant's prior felony conviction for delivery of a controlled

substance under the laws of the Wisconsin as an element in its charge of unlawful use of a

weapon by a felon makes this case factually unique because it does not fall into any of the Class

2 felony categories in section 24-1.1(e) of the Criminal Code. 720 ILCS 5/24-1.1(e) (West

2010). It could be argued, although the State did not do so here, that notice under section

111-3(c) of the Code of Criminal Procedure was not required because defendant's Wisconsin

conviction for delivery of a controlled substance would be the equivalent of a "Class 2 or greater

felony under the Illinois Controlled Substances Act" or one of the other drug related Acts listed

in section 24-1.1(e) of the Criminal Code. See 720 ILCS 5/24-1.1(e) (West 2010).

¶ 20 Even if such argument had been made, we find it would have been unsuccessful. The

legislature's intent is best shown by the plain and ordinary meaning of the language of the statute.

Easley, 2014 IL 115581, ¶ 16. Here, the legislature listed the following Illinois statutes

specifically: the Illinois Controlled Substances Act, Article 24 of the Criminal Code, the Firearm

Owners Identification Card Act, the Cannabis Control Act, and the Methamphetamine Control

and Community Protection Act. Had the legislature wanted to include violations of similar

crimes in other states, it would have done so. Presumably, it would have done so not by listing

4
As explained by the parties, Wisconsin has a category of battery titled substantial battery,
which is a step below aggravated battery. Wis. Stat. § 940.19 (2010). The parties dispute
whether a Wisconsin substantial battery is a forcible felony. Due to our conclusion in this case,
we need not resolve this dispute.

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specific statutes but, rather, setting out a general description of the crime. For example, within

section 24-1.1(e), the legislature listed the following crimes generally, without stating the

specific Illinois statute they fall under, as Class 2 felonies: a forcible felony, stalking, aggravated

stalking, or status as a parolee. 720 ILCS 5/24-1.1(e) (West 2010). As discussed above, the

prior conviction the State charged as an element of the offense of unlawful use of a weapon by a

felon, defendant's Wisconsin conviction for delivery of a controlled substance, does not fall

within any of the specific or general categories listed under section 24-1.1(e).

¶ 21 The unique factual situation of this case also makes it distinguishable from other recent

Illinois cases where a defendant convicted of unlawful use of a weapon by a felon alleges

improper notice under section 113(c) of the Code of Criminal Procedure. In People v. Easley,

the defendant, like defendant here, was convicted of unlawful use of a weapon by a felon.

Easley, 2014 IL 115581, ¶ 1. Unlike defendant in the case at bar, however, the Easley

defendant's prior conviction supporting the charge, as stated in the indictment, was a prior

conviction for unlawful use of a weapon by a felon. Id. ¶ 22. Section 24-1.1(e) of the Criminal

Code provides that " 'any second or subsequent violation' " of the unlawful use of a weapon

statute is a Class 2 felony with a sentencing range of 3 to 14 years' imprisonment. (Emphasis

omitted.). Id. ¶ 21 (quoting 720 ILCS 5/24-1.1(e) (West 2008)). Our supreme court held that

the notice provision of section 111-3(c) did not apply "because the State did not seek to enhance

defendant's sentence with his prior conviction. Rather, as alleged in the indictment, defendant's

Class 2 sentence was the only statutorily allowed sentence under section 24-1.1(e) of the

Criminal Code." Id. ¶ 22.

¶ 22 Other divisions of this court have also addressed similar factual situations to Easley and

held that notice according to section 111-3(c) of the Criminal Code of Procedure was not

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necessary where the prior conviction used as an element of the crime of unlawful use of a

weapon mandated a specific classification under section 24-1.1(e). See Nowells, 2013 IL App

(1st) 113209, ¶ 24 (defendant's prior conviction for delivery of a controlled substance under the

Illinois Controlled Substances Act); People v. Wilbourn, 2014 IL App (1st) 111497, ¶ 4 (prior

conviction of aggravated battery resulting in great bodily harm, a forcible felony); People v.

Polk, 2014 IL App (1st) 122017, ¶ 13 (prior conviction of the forcible felony of conspiracy to

commit murder); People v. Lewis, 2014 IL App (1st) 122126, ¶¶ 29-30 (prior conviction of the

forcible felony of aggravated robbery); People v. Pryor, 2014 IL App (1st) 121792-B, ¶ 7 (prior

conviction for unlawful use of a weapon by a felon). In the case at bar, however, the State is

attempting to have defendant's conviction classified as a Class 2 felony based on a substantial

battery conviction from Wisconsin. Because the substantial battery conviction was not charged

as an element of the offense of unlawful use of a weapon by a felon, the State needed to provide

notice under section 111-3(c) of the Criminal Code of Procedure before the substantial batter

conviction could elevate the classification of the conviction from a Class 3 felony to a Class 2

felony. 5 The State failed to do so here. Accordingly, on remand, defendant should be

classified and sentenced for a Class 3 felony.

¶ 23 To avoid confusion, we will repeat our conclusion from our initial opinion, but stress that

we have carefully considered our supreme court's holding in Easley upon reconsideration. The

unique facts of this case, specifically the State's use of defendant's Wisconsin felony conviction

for delivery of a controlled substance as the element of a prior felony conviction in the charging

5
We stress that we make no judgment on whether defendant's substantial battery
conviction would qualify as a forcible felony under section 24-1.1(e). Rather, we merely hold
that if the State wanted to enhance the classification of defendant's felony from a Class 3 to a Class
2, it had to provide defendant with notice in this case because the substantial battery conviction
was not an element of the offense charged.

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instrument, render this case factually distinguishable to the facts of Easley. Accordingly, as

stated in our prior opinion, we affirm defendant's conviction but remand the matter for

resentencing. Whalum, 2012 IL App (1st) 110959, ¶ 1. Upon resentencing, defendant should

be sentenced for a Class 3 felony pursuant to section 24-1.1(e) of the Criminal Code. 720 ILCS

5/24-1.1(e) (West 2010). Defendant's mittimus should also be corrected to reflect 261 days of

presentence credit and a conviction for a single count of unlawful use of a weapon by a felon.

Whalum, 2012 IL App (1st) 110959, ¶¶ 1, 28-29, 42. Defendant's term of MSR should be also

be reduced to one year. Id. ¶ 44 (citing 730 ILCS 5/5-4.5-40 (l) (West 2010)).

¶ 24 CONCLUSION

¶ 25 The judgment of the circuit court of Cook County is affirmed in part, reversed in part, and

remanded for resentencing.

¶ 26 Affirmed in part and reversed in part; cause remanded for resentencing.

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