                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Brooks, 2012 IL App (4th) 100929




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    NICHOLAS CARLOS BROOKS, Defendant-Appellant.



District & No.             Fourth District
                           Docket No. 4-10-0929


Filed                      March 7, 2012
Rehearing denied           March 21, 2012
Held                       Defendant’s conviction for violating an order of protection and his five-
(Note: This syllabus       year extended-term sentence were upheld over his contentions that the
constitutes no part of     extended-term sentence was not proper where he was not convicted of a
the opinion of the court   felony and that he was not proved guilty of “violation of an order of
but has been prepared      protection–subsequent offense felony” beyond a reasonable doubt, since
by the Reporter of         the evidence was sufficient to establish beyond a reasonable doubt that
Decisions for the          defendant violated an order of protection, the basis for the enhancement
convenience of the         of the offense to a felony was disclosed in the indictment, defendant’s
reader.)
                           prior conviction for unlawful restraint was introduced to the trial court
                           outside the jury’s presence, and section 111-3(c) of the Code of Criminal
                           Procedure specifically prohibits the introduction of proof of a prior
                           conviction to the jury and provides that such a prior conviction is not an
                           element of the crime charged.
Decision Under             Appeal from the Circuit Court of McLean County, No. 09-CF-617; the
Review                     Hon. Robert L. Freitag, Judge, presiding.


Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Karen Munoz, and Gary R. Peterson, all of State
Appeal                     Appellate Defender’s Office, of Springfield, for appellant.

                           William A. Yoder, State’s Attorney, of Bloomington (Patrick Delfino,
                           Robert J. Biderman, and Aimee Sipes Johnson, all of State’s Attorneys
                           Appellate Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE POPE delivered the judgment of the court, with opinion.
                           Presiding Justice Turner and Justice Steigmann concurred in the
                           judgment and opinion.



                                            OPINION

¶1          In May 2010, a jury convicted defendant, Nicholas Carlos Brooks, of violating an order
        of protection (720 ILCS 5/12-30(a)(1) (West 2008)). In August 2010, the trial court
        sentenced defendant to a five-year extended-term sentence. Defendant appeals, arguing (1)
        the court improperly sentenced him to an extended-term sentence where he was not
        convicted of a felony, and (2) the State failed to prove him guilty of violating an order of
        protection beyond a reasonable doubt. We affirm.

¶2                                       I. BACKGROUND
¶3          In August 2009, the State charged defendant by indictment with “violation of order of
        protection–subsequent offense felony” (720 ILCS 5/12-30(a)(1) (West 2008)). The
        indictment alleged defendant intentionally violated an order of protection after being served
        with notice of its contents. Due to defendant’s conviction for unlawful restraint in McLean
        County case No. 04-CF-485, the charge in the present case was a Class 4 felony. See 720
        ILCS 5/12-30(d) (West 2008)). Defendant pleaded not guilty and requested a jury trial.
        Evidence introduced during defendant’s trial showed the following.
¶4          McLean County deputy sheriff Chad Witkowski testified he spoke with Vanessa
        Middlebrooks in July 2009 regarding her contact with defendant. Witkowski knew
        Middlebrooks had an active order of protection against defendant. The order of protection
        required defendant to remain at least 500 feet away from Middlebrooks’s residence and her
        children. Defendant was served with the order of protection on June 1, 2009, and it expired
        on May 21, 2011. Witkowski testified Middlebrooks told him defendant came to her
        residence on July 12, 2009, while the order of protection was in effect. Witkowski further
        testified Middlebrooks moved to dismiss the order of protection in September 2009. The
        State then offered the order of protection and Middlebrooks’s petition to dismiss the order
        of protection into evidence as People’s exhibit Nos. 2 and 3, respectively. Defense counsel
        did not cross-examine Witkowski.

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¶5         Middlebrooks testified defendant was the father of her two children. In May 2009,
       Middlebrooks obtained an order of protection against defendant, which was valid until May
       2011. In July 2009, Middlebrooks spoke with police and told them defendant had recently
       come to her residence to see their children. Though she could not remember if defendant
       actually came inside the house, Middlebrooks stated she and defendant spoke to each other.
       Middlebrooks further stated she filed a petition to dismiss the order of protection against
       defendant in September 2009, and the motion was granted later in the month.
¶6         On cross-examination, Middlebrooks testified she did not mind defendant coming to her
       residence and visiting their children. Middlebrooks testified she did not contact the police
       regarding defendant’s alleged violation of the order of protection; rather, the police contacted
       her and asked her if she had had any recent contact with defendant. In September 2009,
       Middlebrooks voluntarily petitioned to dismiss the order of protection.
¶7         Outside the presence of the jury, the trial court took judicial notice of defendant’s
       conviction for unlawful restraint in case No. 04-CF-485 without objection. Both parties then
       rested.
¶8         The jury found defendant guilty of violating an order of protection. In June 2010,
       defendant filed a motion for a new trial. In August 2010, the trial court denied defendant’s
       motion for a new trial and sentenced him to a five-year extended-term sentence. Defendant’s
       presentence investigation report showed he had multiple felony convictions in the past 10
       years. In September 2010, defendant filed a pro se motion for reduction of his sentence.
       Defendant’s appointed counsel subsequently filed an amended motion for reduction of
       defendant’s sentence, arguing the sentence was excessive and the court failed to consider
       relevant mitigating factors. In October 2010, the court denied defendant’s motion to
       reconsider his sentence.
¶9         This appeal followed.

¶ 10                                       II. ANALYSIS
¶ 11       On appeal, defendant argues (1) his extended-term sentence must be vacated because his
       conviction for violating an order of protection did not constitute a felony, and (2) the State
       failed to prove him guilty of “violation of an order of protection-subsequent offense felony”
       because it failed to introduce evidence to prove his crime was a felony.

¶ 12                        A. Defendant’s Extended-Term Sentence
¶ 13        Defendant argues his conviction for violating an order of protection did not constitute a
       felony conviction for extended-term sentencing purposes pursuant to section 5-5-3.2(b)(1)
       of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-5-3.2(b)(1) (West 2008)).
       We disagree.
¶ 14        Though defendant failed to raise this issue before the trial court, the improper imposition
       of an extended-term sentence results in a void sentence, which can be attacked any time and
       is reviewed de novo. See People v. Thompson, 209 Ill. 2d 19, 22-25, 805 N.E.2d 1200, 1202-
       03 (2004).


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¶ 15       A person commits the offense of violating an order of protection when he or she commits
       an act prohibited by a court-imposed order of protection after receiving notice of the contents
       of the order. See 720 ILCS 5/12-30(a)(1) (West 2008). Violating an order of protection is a
       Class 4 felony if the defendant has a prior conviction for unlawful restraint. See 720 ILCS
       5/12-30(d) (West 2008). Under section 111-3(c) of the Code of Criminal Procedure of 1963
       (Criminal Procedure Code) (725 ILCS 5/111-3(c) (West 2008)), the State is required to
       inform the defendant in the charging instrument of its intent to seek an enhanced sentence
       based on a prior conviction. “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 ***.” 725 ILCS 5/111-3(c) (West
       2008). Under section 5-5-3.2(b)(1) of the Unified Code (730 ILCS 5/5-5-3.2(b)(1) (West
       2008)), a defendant convicted of a felony is subject to an extended-term sentence if they have
       been convicted in Illinois of “any felony” of the same or greater class in the past 10 years.
¶ 16       In addressing the issue of whether an enhanced misdemeanor constitutes a “felony” under
       section 5-5-3.2(b)(1) of the Unified Code, our supreme court has stated: “The plain language
       of the extended-term sentencing provision explicitly states that it applies to ‘any felony.’ The
       statutory provision makes no exception for misdemeanors *** that have been enhanced to
       a felony in accordance with the legislature’s direction.” People v. Hicks, 164 Ill. 2d 218, 223,
       647 N.E.2d 257, 260 (1995). The court in Hicks, 164 Ill. 2d at 223, 647 N.E.2d at 260, went
       on to state “the words ‘any felony’ are broad in scope and apply to the defendant’s enhanced
       felony conviction *** in the present cause.” See also People v. Granados, 172 Ill. 2d 358,
       364-65, 666 N.E.2d 1191, 1193-94 (1996) (Enhanced misdemeanors are subject to extended-
       term sentencing under unambiguous statutory language.).
¶ 17       Under Hicks and Granados, defendant’s enhanced misdemeanor conviction is sufficient
       to allow for an extended-term sentence. Defendant contends neither Hicks nor Granados is
       controlling here; we disagree. We conclude defendant was convicted of a felony offense as
       required in section 5-5-3.2(b)(1) of the Unified Code and properly received an extended-term
       sentence.
¶ 18       Here, defendant’s conviction for violating an order of protection constituted a Class 4
       felony based on his prior unlawful-restraint conviction. The State properly charged defendant
       and disclosed the basis for the enhancement in the indictment. Further, the unlawful-restraint
       conviction was properly introduced to the trial court outside the jury’s presence.
¶ 19       Defendant relies on our supreme court’s decision in People v. Palmer, 104 Ill. 2d 340,
       472 N.E.2d 795 (1984), as support for his argument his conviction for unlawful restraint was
       an element of the offense and had to be presented to the jury. We do not agree with
       defendant’s reliance on Palmer because Palmer was decided before the legislature enacted
       section 111-3(c) of the Criminal Procedure Code. Pursuant to paragraph (c) of section 111-3
       of the Criminal Procedure Code, defendant’s prior conviction for unlawful restraint was not
       an element of the offense.
¶ 20       In Palmer, the State charged defendant with unlawful use of weapons (UUW) and alleged
       he had committed that offense within five years of his release from the penitentiary for the
       felony offense of murder. Ill. Rev. Stat. 1981, ch. 38, ¶ 24-1(a)(10), (b). However, the court


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       barred the State from introducing evidence of the defendant’s prior conviction at trial on the
       ground such evidence would prejudice the defendant. Palmer, 104 Ill. 2d at 342, 472 N.E.2d
       at 796. Ultimately, the matter reached the supreme court, which concluded for the State to
       secure a felony conviction for UUW, it needed to prove the defendant’s prior conviction.
       Otherwise, the offense remained a misdemeanor. Palmer, 104 Ill. 2d at 343-44, 472 N.E.2d
       at 797.
¶ 21       However, subsequent to Palmer and similar decisions, the legislature enacted Public Act
       86-964 (Pub. Act 86-964, § 1 (eff. July 1, 1990) (1989 Ill. Laws 6509, 6510)) adding
       paragraph (c) to section 111-3 of the Criminal Procedure Code. That section provides, to
       obtain an enhanced sentence based upon a prior conviction, the charging instrument must
       inform the defendant of the prior conviction and its intent to seek an enhanced sentence
       based upon that conviction. As stated earlier, it contains an important proviso rendering the
       decision in Palmer no longer applicable here: “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.” 725 ILCS 5/111-
       3(c) (West 2008).
¶ 22       The supreme court in People v. Lucas, 231 Ill. 2d 169, 897 N.E.2d 778 (2008), stated:
           “Section 111-3(c) applies where the State seeks an enhanced sentence due to a prior
           conviction. ‘Enhanced sentence’ means a sentence that is increased by a prior conviction
           from one classification of offense to another higher classification of offense. 725 ILCS
           5/111-3(c) (West 2004). Section 111-3(c) prohibits the use at trial of the fact of the prior
           conviction or the State’s intent to seek an enhanced sentence. They are not elements of
           the offense and may not be disclosed to the jury. The existence of the prior conviction
           is used after a defendant’s conviction to increase the classification of the crime at
           sentencing.” Lucas, 231 Ill. 2d at 181, 897 N.E.2d at 785.
¶ 23       As for defendant’s argument the supreme court’s ruling in Lucas, 231 Ill. 2d at 183, 897
       N.E.2d at 786, established “that a misdemeanor offense which is enhanced to a felony for
       sentencing purposes is not itself a felony conviction,” we find defendant’s interpretation of
       Lucas is erroneous. The due-process violation in Lucas, 231 Ill. 2d at 181-82, 897 N.E.2d
       at 785-86, stemmed from the conflict which exists between the armed-violence statute and
       section 111-3(c) of the Criminal Procedure Code. In Lucas, 231 Ill. 2d at 183, 897 N.E.2d
       at 786, the court found the State could not use an enhanced misdemeanor as the predicate
       felony offense for an armed-violence charge without introducing evidence of the prior
       conviction which served to enhance the original misdemeanor charge to a felony. In other
       words, the State had to prove in Lucas that defendant had committed a felony and, while
       committing the felony, he was armed with a dangerous weapon. The State only proved
       defendant committed a misdemeanor offense, and thus the armed violence conviction had
       to be vacated.

¶ 24                        B. Sufficiency of the State’s Evidence
¶ 25       Defendant next argues the State failed to convict him of “violation of an order of
       protection–subsequent offense felony” because the crime, as charged, required the State to

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       prove this was a subsequent-offense felony to the jury as an element of the crime.
¶ 26       A defendant violates an order of protection when he or she commits an act prohibited by
       an order of protection and he or she had notice of the order. 720 ILCS 5/12-30(a)(1) (West
       2008). A conviction for violating an order of protection is a Class 4 felony if the defendant
       has previously been convicted of, inter alia, unlawful restraint. 720 ILCS 5/12-30(d) (West
       2008). Section 111-3(c) of the Criminal Procedure Code (725 ILCS 5/111-3(c) (West 2008))
       specifically prohibits the State from introducing proof of a prior conviction to the jury and
       states the fact of such a prior conviction is not an element of the crime charged. We conclude
       the State was not required to prove the fact of defendant’s prior conviction for unlawful
       restraint to the jury.

¶ 27                                   III. CONCLUSION
¶ 28      For the foregoing reasons, we affirm the trial court’s judgment. As part of our judgment,
       we award the State its $50 statutory assessment against defendant as costs of this appeal.

¶ 29      Affirmed.




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