People v. Williams

2020 IL App (1st) 190414

FIRST DISTRICT
SIXTH DIVISION
November 20, 2020

No. 1-19-0414

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 18 CR 8690
)
DE’ANDRE WILLIAMS, ) Honorable
) Charles P. Burns,
Defendant-Appellant. ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justice Connors and Justice Griffin concurred in the judgment and opinion.

OPINION

¶1 Defendant, De’Andre Williams, was convicted of robbery and sentenced to nine years’

imprisonment under section 5-4.5-95(b) of the Unified Code of Corrections (Code) (730 ILCS 5/5-

4.5-95(b) (West 2016)). On appeal, defendant contends that his Class X sentence was error where

he was only 17 years old when he committed one of the predicate offenses. For the following

reasons, we vacate defendant’s sentence and remand for a new sentencing hearing.

¶2 I. JURISDICTION

¶3 The trial court sentenced defendant on February 5, 2019, and denied his motion to

reconsider sentence that same day. Defendant filed a notice of appeal on March 4,

2019.Accordingly, this court has jurisdiction pursuant to Article VI, section 6, of the Illinois

Constitution (Ill. Const. 1970, art. VI, §6) and Rule 603 (eff. Feb. 6, 2013) and Rule 606 (eff. July

1, 2017), governing appeals from a final judgment of conviction in a criminal case entered below.
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¶4 II. BACKGROUND

¶5 The evidence at trial established that on June 7, 2018, Chicago Police Officer Kenneth

Galvin was working undercover in the area of 76th Street and Racine Avenue in Chicago, Illinois.

He had in his possession $50 in prerecorded funds, including a $20 bill, two $10 bills, and two $5

bills. Around 11:30 a.m. or noon, Officer Galvin observed defendant and another person standing

on the south side of 76th Street. Defendant yelled, “Yo” in Officer Galvin’s direction, which the

officer interpreted as defendant trying to get his attention. He approached defendant and asked him

if he had the “hard,” a street term for crack cocaine. Defendant stated that he “ain’t got that,” but

he nodded in the direction of an alley across the street.

¶6 Officer Galvin went to the alley where he observed three men. After conversing with the

men, Officer Galvin determined that they were not going to sell him narcotics. When Officer

Galvin returned to 76th Street, he saw defendant talking with a woman. He asked defendant again

if he knew anyone else who had crack cocaine. Williams again replied no, stating that “they won’t

let me bring anyone new over there.” Officer Galvin decided to abort his attempt to buy narcotics

and he walked back to his unmarked vehicle.

¶7 As he approached his vehicle, Officer Galvin noticed defendant and one of the men in the

alley watching him. He walked past his car, and when he no longer saw them, he walked back to

his car. As he walked, he saw defendant and the woman walking towards him. Defendant said,

“Come on,” and Officer Galvin followed defendant and the woman for a couple of blocks. Officer

Galvin believed that defendant would take him somewhere to buy narcotics. Officers Pagan and

Hampton followed in an unmarked surveillance vehicle.

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¶8 On 77th Street, defendant and the woman walked up to the padlocked front door of a multi-

unit building. They then walked into the adjacent alley, out of sight. Defendant came out of the

alley and told Officer Galvin, “she got you,” which the officer took to mean the woman would sell

him narcotics. Defendant said he would remain outside the alley and act as a “look out.”

¶9 Holding the $20 bill in his hand, Officer Galvin approached the woman and saw that she

had something in her hand. As the officer held out the $20 bill in exchange for the narcotics,

defendant suddenly came up from behind and grabbed Officer Galvin with his forearm. Defendant

had the officer in a headlock, applying “a tremendous amount of pressure against his neck.” The

woman grabbed the $20 bill from Officer Galvin’s hand and started going through his pockets.

Officer Pagan, after losing sight of everyone and counting to 10, drove into the alley where she

saw defendant holding Officer Galvin by his neck. She exited her vehicle, pointing a gun at

defendant. After a struggle, Officer Pagan and another officer brought defendant to the ground and

arrested him. The woman fled and was never apprehended. Officer Galvin’s marked $20 bill was

recovered nearby in the alley.

¶ 10 The jury found defendant guilty of robbery and aggravated battery. Defendant filed a

motion for a new trial which the trial court denied. The trial court also inquired into defendant’s

claim that his counsel was ineffective, but subsequently found that none of his claims were

meritorious.

¶ 11 At defendant’s sentencing, the State advised the court of defendant’s mandatory Class X

sentencing, based on his prior conviction of robbery in 2014, and his 2013 burglary conviction.

Defense counsel acknowledged defendant’s eligibility for Class X sentencing but argued, in light

of defendant’s youth and difficult upbringing, that he receive the minimum sentence of six years’

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imprisonment. Noting that at the time defendant committed these offenses, he was on Mandatory

Supervised Release after serving a five year sentence for an earlier robbery conviction, the trial

court believed it was “necessary for defendant to be punished for his actions of this repeated

pattern.” The court was “concerned about the violence here” and found that defendant “was a

danger to the community.” However, the court also believed that defendant “can make corrections

in his life” and did not “want to throw him away.” The trial court sentenced defendant to nine

years’ imprisonment. After the trial court denied defendant’s motion to reconsider his sentence, he

filed this appeal.

¶ 12 III. ANALYSIS

¶ 13 Defendant was sentenced pursuant to section 5-4.5-95(b) of the Code, which mandates

Class X sentencing if defendant had been convicted of two prior Class 2 or greater class felonies.

See 730 ILCS 5/5-4.5-95(b) (West 2016).Defendant argues that he was subject to mandatory Class

X sentencing in error, where one of his prior convictions did not qualify as a predicate conviction

under the statute. Defendant acknowledges that he forfeited review of this issue, since he did not

object or raise the issue before the trial court. This court, however, may review defendant’s claim

as plain error if “(1) a clear or obvious error occurred and the evidence is so closely balanced that

the error alone threatened to tip the scales of justice against the defendant, regardless of the

seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it

affected the fairness of the defendant’s trial and affected the integrity of the judicial process,

regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).

The imposition of an unauthorized sentence may be reviewed as second prong plain error because

such a sentence affects defendant’s substantial rights. People v. Hicks, 181 Ill. 2d 541, 545 (1998).

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But first, we determine whether any error occurred. Piatkowski, 225 Ill. 2d at 565. Whether

defendant’s prior convictions constitute qualifying offenses for purposes of mandatory Class X

sentencing is a question of statutory construction that we review de novo. People v. Baskerville,

2012 IL 111056, ¶ 18.

¶ 14 Section 5-4.5-95(b) provides:

“When a defendant over the age of 21 years, is convicted of a Class 1 or Class 2

felony, after having twice been convicted in any state or federal court of an offense that

contains the same elements as an offense now (the date the Class 1 or Class 2 felony was

committed) classified in Illinois as a Class 2 or greater Class felony and those charges are

separately brought and tried and arise out of different series of acts, that defendant shall be

sentenced as a Class X offender.” 730 ILCS 5/5-4.5-95(b) (West 2016).

The State presented evidence of defendant’s 2014 conviction of robbery, and his 2013 conviction

for burglary, as qualifying convictions for a mandatory Class X sentence under the statute.

Defendant argues that his 2013 conviction of burglary, an offense he committed when he was 17

years old, does not count as a qualifying offense. As support, he cites the recent case of People v.

Miles, 2020 IL App (1st) 180736.

¶ 15 In Miles, the defendant was convicted of burglary that occurred on June 9, 2016, and

sentenced as a Class X offender pursuant to the statute. One of the qualifying felony convictions

the State used was a 2006 conviction for aggravated vehicular hijacking with a firearm and armed

robbery committed when the defendant was 15 years old. Id. ¶ 3. The defendant pointed out that

in 2013, the legislature amended section 5-120 of the Juvenile Court Act so that a 15-year-old who

committed armed robbery would now be excluded from adult court jurisdiction. Id. ¶ 6. Also, in

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2016 the legislature amended section 5-130 of the Juvenile Court Act to remove aggravated

vehicular hijacking with a firearm from the list of offenses that disqualified a defendant from

juvenile court jurisdiction. Id. The defendant argued that due to these amendments that took effect

after his 2006 conviction, his 2006 armed robbery conviction is not “‘an offense now [on June 9,

2016] classified in Illinois as a Class 2 or greater Class felony,’” but instead would have been

resolved in 2016 through delinquency proceedings in juvenile court. Id. ¶ 7.

¶ 16 The court in Miles agreed, finding that the language of section 5-4.5-95(b) is clear and

unambiguous, and that the proper focus of the provision is “‘on the elements of the prior offense.’”

Id. ¶ 10 quoting People v. Foreman, 2019 IL App (3d) 160334, ¶ 46. With that focus in mind, the

court found that the defendant’s 2006 conviction of aggravated vehicular hijacking with a firearm

and armed robbery was not the same as an offense now classified as a Class 2 or greater Class

felony, because “had it been committed on June 9, 2016, [it] would have been resolved with

delinquency proceedings in juvenile court rather than criminal proceedings.” Id. ¶¶ 10-11.

¶ 17 The State, however, argues that the convictions referenced in section 5-4.5-95(b) make no

distinction between convictions of juveniles in criminal court and the convictions of adults. The

State contends that defendant was properly convicted of burglary in 2013 when he was 17 years

old, and since burglary is presently an offense classified as a Class 2 or greater Class felony, his

prior conviction should qualify as a predicate offense for Class X sentencing pursuant to section

5-4.5-95(b). As support, the State relies primarily on Fitzsimmons v. Norgle, 104 Ill. 2d 369 (1984),

People v. Bryant, 278 Ill. App. 3d 578 (1996), and People v. Banks, 212 Ill. App. 3d 105 (1991).

¶ 18 In Fitzsimmons, the defendant pled guilty to burglary and the State argued that since he

had a prior conviction of burglary within 10 years of his recent burglary conviction, he was not

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eligible for probation. Fitzsimmons, 104 Ill. 2d at 371-2. The trial court, however, ruled that

because the prior burglary conviction occurred when the defendant was a juvenile, it was not the

type of conviction contemplated by the statute as prohibiting probation. Id. at 372. The supreme

court looked at the general definition of conviction in both the Criminal Code of 1961 and the

Unified Code of Corrections, and found that “[n]o distinction is drawn between convictions

rendered while the defendant was a juvenile and those which occur after the defendant is no longer

subject to the authority of the juvenile court.” Id. It held that the defendant’s conviction in criminal

court as a juvenile is “a conviction within 10 years of the second offense,” and therefore the trial

court erred in sentencing him to probation. Id. at 373.

¶ 19 In both Bryant and Banks, the defendant was found to be a habitual criminal pursuant to

the Habitual Criminal Act (now codified as 730 ILCS 5/5-4.5-95(a) (West 2016)). The statute

provided, in relevant part, that a defendant who had been “twice convicted in any state or federal

court of an offense that contains the same elements as an offense now classified in Illinois as a

Class X felony***” be adjudged a habitual criminal. Id. Both defendants argued that their habitual

criminal adjudications constituted error because they committed the underlying crimes when they

were juveniles. Banks, 212 Ill. App. 3d at 106; Bryant, 278 Ill. App. 3d at 586. This court rejected

their argument, finding that the statute referred to any former convictions, with no indication that

“criminal convictions obtained while the defendant is a minor should be treated any differently

than criminal convictions of an adult.” Banks, 212 Ill. App. 3d at 107; see also Bryant, 278 Ill.

App. 3d at 586 (finding that the defendant’s argument was without merit because the statute

referenced “‘[a]ny convictions’”).

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¶ 20 Fitzsimmons, Banks and Bryant, however, were decided before the amendment to section

5-120 of the Juvenile Court Act went into effect. This amendment vested the juvenile court with

exclusive jurisdiction over a defendant who, like defendant here, was 17 years old when he

committed burglary. See Pub. Act 98-61 (eff. Jan 1, 2014) (amending 705 ILCS 405/5-120 (West

2016)). As the court in Miles noted, the amendment provided some indication that the legislature

intended to treat minors who commit certain crimes differently from adults charged with those

crimes. Miles, 2020 IL App (1st) 180736, ¶ 21. The amendment, and the corresponding indication

of the legislature’s intent, were not present when Fitzsimmons, Banks, and Bryant were decided.

As such, there was nothing for the court in those cases to consider that would have made the

defendants’ prior offenses, if presently charged, subject to juvenile delinquency proceedings rather

than criminal proceedings. Unlike the case here and in Miles, the offenses committed by the

defendants in Fitzsimmons, Bryant, and Banks as juveniles would still have been subject to

criminal proceedings at the time they committed their most recent offenses as adults. We agree

with Miles that these cases “do not dictate a decision in the instant case.” Id.

¶ 21 Defendant here was properly convicted of burglary in criminal court when he was 17 years

old, but a 2014 amendment to the Juvenile Court Act has since given the juvenile court exclusive

jurisdiction over 17-year-old defendants charged with burglary. As Miles instructs, we look at the

elements of his prior conviction as of the date defendant committed his current offense. Id. ¶ 11.

On the date he committed the present offense, June 7, 2018, defendant’s 2013 burglary conviction

would have been resolved in delinquency proceedings rather than criminal court proceedings, and

his predicate offense would have been a juvenile adjudication instead of a Class 2 or greater Class

felony conviction. Section 5-4.5-95(b) is silent as to whether an adjudication in juvenile court is a

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conviction under the provision. “In the absence of a statute expressly defining a juvenile

adjudication as a conviction, Illinois courts have consistently held that juvenile adjudications do

not constitute convictions.” People v. Taylor, 221 Ill. 2d 157, 176 (2006).Following Miles, we find

that defendant’s prior burglary conviction is not “‘an offense now *** classified in Illinois as a

Class 2 or greater Class felony’ and, therefore, is not a qualifying offense for Class X sentencing.”

Miles, 2020 IL App (1st) 180736, ¶ 11.

¶ 22 The State contends that if we find defendant’s 2013 burglary conviction cannot be used as

a qualifying conviction for Class X sentencing, we should affirm his sentence of nine years’

imprisonment because defendant was eligible for a Class 2 extended term sentence of up to 14

years based on his 2014 robbery conviction. Although defendant’s sentence falls within the

extended-term sentencing range for a Class 2 felony, we believe the better course is to vacate his

Class X sentence and remand the cause for resentencing as a Class 2 offender. See Miles, 2020 IL

App (1st) 180736, ¶ 23; People v. Hall, 2014 IL App (1st) 122868, ¶ 15.

¶ 23 IV. CONCLUSION

¶ 24 For the foregoing reasons, we vacate defendant’s Class X sentence and remand for

resentencing as a Class 2 offender.

¶ 25 Sentence vacated; cause remanded for further proceedings.

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No. 1-19-0414

Cite as: People v. Williams, 2020 IL App (1st) 190414

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-CR-8690;
the Hon. Charles P. Burns, Judge, presiding.

Attorneys James E. Chadd, Patricia Mysza, and Ian R. Jackson, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J.
for Spellberg, and Mari R. Hatzenbuehler, Assistant State’s
Appellee: Attorneys, of counsel), for the People.

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