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                               Appellate Court                            Date: 2018.07.10
                                                                          12:25:44 -05'00'




                  People v. Ephraim, 2018 IL App (1st) 161009



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           DONZELL EPHRAIM, Defendant-Appellant.



District & No.    First District, First Division
                  Docket No. 1-16-1009



Filed             March 19, 2018



Decision Under    Appeal from the Circuit Court of Cook County, No. 13-CR-16403; the
Review            Hon. Thomas J. Byrne, Judge, presiding.



Judgment          Reversed in part; mittimus corrected.


Counsel on        Michael J. Pelletier, Patricia Mysza, and Patrick F. Cassidy, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg
                  and Clare Wesolik Connolly, Assistant State’s Attorneys, of counsel),
                  for the People.



Panel             PRESIDING JUSTICE PIERCE delivered the judgment of the court,
                  with opinion.
                  Justices Harris and Simon concurred in the judgment and opinion.
                                             OPINION

¶1       Following a bench trial, defendant Donzell Ephraim was found guilty of armed habitual
     criminal (AHC) (720 ILCS 5/24-1.7(a) (West 2012)), aggravated fleeing or attempting to
     elude a peace officer (625 ILCS 5/11-204.1(a)(4) (West 2012)), and three counts of aggravated
     unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(C); (a)(2), (a)(3)(C)
     (West 2012)). The court sentenced defendant to concurrent prison terms of 12 years for AHC,
     6 years for the AUUW convictions, and 3 years for aggravated fleeing or attempting to elude a
     peace officer. On appeal, defendant contends that the State failed to prove him guilty of AHC
     because his conviction was predicated on his prior conviction for aggravated battery to a peace
     officer, which is not a qualifying offense for AHC. He therefore requests we reverse his AHC
     conviction. We reverse defendant’s conviction for AHC.
¶2       At trial, Chicago police officer Matthew Mellett testified that, on August 16, 2013, at about
     10:22 p.m., when he was on patrol in his squad car, he heard gunshots in the area of “5741
     South Laflin.” At that location, people told Mellett, “they were shooting,” pointing to a “green
     Buick Le Sabre.” Mellett turned on his lights and sirens and pursued the vehicle, which went
     through two red lights and did not stop. The vehicle eventually stopped because it “spun out”
     after it tried to turn. Mellett went to the vehicle and observed defendant in the driver’s seat.
¶3       Chicago police officer Steven Hefel testified that, at about 10:22 p.m., on August 16, 2013,
     he and his partner were alerted to a “police pursuit,” so they went to a location where they
     could observe it. At Hefel’s parked location, he saw a police car following a “green Buick La
     Sabre [sic]” and, as the vehicle approached Hefel’s car, the driver, identified as defendant,
     stretched his arm outside the driver’s side window and “released” a “blue steal [sic] handgun.”
¶4       After the police cars passed him, Hefel went to the location where he saw the gun drop and
     identified it as “blue steel 357 revolver.” He stayed with the gun until the evidence technician
     arrived at the scene to recover it. Hefel then went to the location where the car chase ended and
     identified the Buick LeSabre as the vehicle he saw drive by him. Later, he went to the police
     station and identified defendant as the person he saw drop the gun.
¶5       The State presented a stipulation that Chicago police officer Philip Ryder, the evidence
     technician, recovered a “Ruger Blackhawk handgun” and “6 expended shell casings” from that
     firearm. The court admitted into evidence a certified record from the Illinois State Police
     showing that defendant had never been issued a Firearm Owner’s Identification (FOID) card.
¶6       The court also admitted into evidence certified copies of defendant’s prior convictions.
     People’s Exhibit No. 7 was a conviction, in case No. 98-CR-0977701, for aggravated battery to
     a peace officer, and People’s Exhibit No. 8 was “a conviction under case number
     08-CR-0640501 for the offenses of unlawful use of a weapon by a felon, two counts of that,
     and three counts of aggravated unlawful use of a weapon by a felon.”
¶7       The court found defendant guilty of AHC, aggravated fleeing or attempting to elude a
     peace officer, and three counts of AUUW. The court denied defendant’s motion for a new trial
     and sentenced him to prison terms: 12 years for AHC, 6 years for the AUUW convictions, and
     3 years for aggravated fleeing or attempting to elude a peace officer. The court stated that
     “Count Two, Three, Four,” the AUUW convictions, would “merge into Count One,” the AHC
     conviction, and the aggravated fleeing or attempting to elude a peace officer would be served
     concurrently with the “merged” AUUW and AHC.


                                                 -2-
¶8         Defendant contends, and the State concedes, that the State did not prove him guilty of AHC
       because his conviction was based on his prior conviction for aggravated battery to a peace
       officer, which is not a qualifying offense under the AHC statute. Defendant requests we vacate
       his AHC conviction and correct the mittimus to show the six-year sentence for the AUUW
       convictions. Defendant does not challenge his convictions for AUUW or aggravated fleeing or
       attempting to elude a peace officer.
¶9         On appeal, when we review the sufficiency of the evidence, the question is whether, “after
       viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
       could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis
       omitted.) Jackson v. Virginia, 443 U.S. 307, 319 (1979). The State must prove “every essential
       element of the crime beyond a reasonable doubt.” People v. Lozano, 2017 IL App (1st)
       142723, ¶ 30.
¶ 10       To prove defendant guilty of AHC, the State had to prove that he possessed a firearm after
       having been convicted of two or more of the following offenses:
                   “(1) a forcible felony as defined in Section 2-8 of this Code;
                   (2) unlawful use of a weapon by a felon; aggravated unlawful use of a weapon;
               aggravated discharge of a firearm; vehicular hijacking; aggravated vehicular hijacking;
               aggravated battery of a child as described in Section 12-4.3 or subdivision (b)(1) of
               Section 12-3.05; intimidation; aggravated intimidation; gunrunning; home invasion; or
               aggravated battery with a firearm as described in Section 12-4.2 or subdivision (e)(1),
               (e)(2), (e)(3), or (e)(4) of Section 12-3.05; or
                   (3) any violation of the Illinois Controlled Substances Act [(720 ILCS 570/100
               et seq. (West 2012))] or the Cannabis Control Act [(720 ILCS 550/1 et seq. (West
               2012))] that is punishable as a Class 3 felony or higher.” 720 ILCS 5/24-1.7(a) (West
               2012).
       See People v. Crosby, 2017 IL App (1st) 121645, ¶ 12.
¶ 11       The information charging defendant with AHC cited two predicate felony convictions for
       the charge: a 1998 conviction for aggravated battery to peace officer and a 2008 conviction for
       unlawful use of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1 (West 2008)). At trial, the
       State presented certified copies of defendant’s prior convictions for aggravated battery to a
       peace officer in 1998 and UUWF in 2008. The parties do not dispute that defendant’s AHC
       conviction was based on these prior two convictions.
¶ 12       The offense of aggravated battery to a peace officer is not an enumerated offense described
       in subsection (a)(2) or (a)(3) of the AHC statute. Therefore, to qualify as predicate offense for
       AHC, the prior aggravated battery to a peace officer conviction must be a “forcible felony”
       under section 2-8 of the Criminal Code of 2012 (Code) (720 ILCS 5/2-8 (West 2012)). See
       People v. White, 2015 IL App (1st) 131111, ¶ 28 (domestic battery was not expressly
       enumerated in the AHC statute so it had to constitute a “forcible felony” to be a qualifying
       offense for AHC).
¶ 13       Section 2-8 defines “[f]orcible felony” as
               “treason, first degree murder, second degree murder, predatory criminal sexual assault
               of a child, aggravated criminal sexual assault, criminal sexual assault, robbery,
               burglary, residential burglary, aggravated arson, arson, aggravated kidnaping,
               kidnaping, aggravated battery resulting in great bodily harm or permanent disability or

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               disfigurement and any other felony which involves the use or threat of physical force or
               violence against any individual.” 720 ILCS 5/2-8 (West 2012).
¶ 14        We conclude that defendant’s conviction for aggravated battery to a peace officer without
       proof that the underlying battery resulted in great bodily harm or permanent disability or
       disfigurement does not qualify as a forcible felony under section 2-8. Aggravated battery to a
       peace officer is not specifically enumerated in section 2-8 as a forcible felony. See Crosby,
       2017 IL App (1st) 121645, ¶ 13. “[A]ggravated battery resulting in great bodily harm or
       permanent disability or disfigurement” is an enumerated offense in the forcible felony
       definition. 720 ILCS 5/2-8 (West 2012); see Crosby, 2017 IL App (1st) 121645, ¶ 13. The
       offense of aggravated battery can be based on the status of the victim without proof that the
       battery resulted in great bodily harm or permanent disability or disfigurement. (“A person
       commits aggravated battery when, in committing a battery, other than by discharge of a
       firearm, he or she knows the individual battered to be *** (4) [a] peace officer ***.” 720 ILCS
       5/12-3.05(d)(4) (West 2012).) However, there is nothing in the record that shows, and the
       parties do not argue otherwise, that defendant’s prior conviction for aggravated battery to a
       peace officer resulted in “great bodily harm or permanent disability or disfigurement” to a
       peace officer. Thus, because the prosecution did not prove beyond a reasonable doubt that
       defendant’s prior conviction for aggravated battery to a peace officer resulted in “great bodily
       harm or permanent disability or disfigurement,” it is not an enumerated offense in the forcible
       felony definition. (Internal quotation marks omitted.) Crosby, 2017 IL App (1st) 121645, ¶ 13.
¶ 15        Further, defendant’s conviction for aggravated battery to a peace officer does not qualify as
       an offense in the “residual clause” of the forcible felony definition, which includes “any other
       felony which involves the use or threat of physical force or violence against any individual.”
       720 ILCS 5/2-8 (West 2012); see White, 2015 IL App (1st) 131111, ¶ 40 (referring to this
       clause in the forcible felony definition as a “residual clause”). As this court explained in
       People v. Schmidt, 392 Ill. App. 3d 689, 695 (2009), “by using the word ‘other’ after listing 14
       specific felonies, the legislature clearly intended the residual category to refer to felonies not
       previously specified.” Thus, “[w]here the statute specifically enumerated aggravated battery
       resulting in great bodily harm or permanent disability or disfigurement, ‘other felony’ must
       refer to felonies other than aggravated battery.” Schmidt, 392 Ill. App. 3d at 695.
¶ 16        Looking to the history of the statute, Schmidt noted that, before the legislature amended the
       forcible felony statute in 1990, the “statute provided that all aggravated batteries constituted
       forcible felonies.” (Emphasis in original.) Schmidt, 392 Ill. App. 3d at 696. But when the
       legislature amended the statute, it “added the phrase ‘resulting in great bodily harm or
       permanent disability or disfigurement’ after ‘aggravated battery,’ ” thus expressing its “intent
       to limit the number and types of aggravated batteries that would qualify as forcible felonies.”
       Schmidt, 392 Ill. App. 3d at 696 (quoting Pub. Act 86-291 (eff. Jan. 1, 1990) (amending 720
       ILCS 5/2-8)).1


           1
            Schmidt noted, “ ‘[a]lthough we believe our interpretation is what the legislature intended, we
       would welcome further clarification by the legislature.’ ” Schmidt, 392 Ill. App. 3d at 696 (quoting
       People v. Jones, 226 Ill. App. 3d 1054, 1056 (1992) (in which the court concluded that the definition of
       forcible felony included “any aggravated battery that involved the use of physical force or violence
       against an individual”)).

                                                      -4-
¶ 17       In People v. Smith, 2016 IL App (1st) 140496, ¶¶ 10-11, this court agreed with the
       reasoning in Schmidt, finding that the “legislature intended the residual category of the forcible
       felony statute to refer to felonies not previously specified in the preceding list of felonies
       contained within that section.” Applying Schmidt, Smith concluded that, because the
       defendant’s aggravated battery to a peace officer conviction was not based on great bodily
       harm or permanent disability or disfigurement, it did not meet the definition of a forcible
       felony. Smith, 2016 IL App (1st) 140496, ¶ 11.
¶ 18       More recently, in Crosby, 2017 IL App (1st) 121645, ¶ 13, following Schmidt and Smith,
       this court concluded that, because the defendant’s conviction for aggravated battery of a peace
       officer was not based on “great bodily harm or permanent disability or disfigurement,” it was
       not considered an “other felony” under section 2-8 and therefore did “not satisfy the definition
       of forcible felony.” (Internal quotation marks omitted.) The Crosby court therefore concluded
       that the defendant’s conviction could not serve as a predicate offense to support the AHC
       conviction. Crosby, 2017 IL App (1st) 121645, ¶ 13.
¶ 19       Following Schmidt, Smith, and Crosby, we find that, because defendant’s prior conviction
       for aggravated battery to a peace officer was not proven to be based on a finding of “great
       bodily harm or permanent disability or disfigurement,” his conviction does not meet the
       definition of a “forcible felony” under section 2-8 as it is not an enumerated offense in the
       definition and does not qualify as an “other felony” in the residual clause. Accordingly,
       because defendant’s conviction for aggravated battery to a peace officer is not an enumerated
       offense in the AHC statute and does not meet the definition of forcible felony in section 2-8, it
       cannot serve as a predicate offense to support his AHC conviction. See Crosby, 2017 IL App
       (1st) 121645, ¶ 13. We, therefore, reverse and vacate defendant’s conviction for AHC.
¶ 20       Defendant also argues, and the State concedes, that remand for resentencing is unnecessary
       because the court already sentenced him to six years in prison for the three AUUW
       convictions. Although the mittimus only reflects defendant’s 12-year sentence for AHC and
       3-year sentence for aggravated fleeing or attempting to elude a peace officer, defendant asserts
       the sentence the trial court issued prevails over the sentence provided in the mittimus. He
       therefore argues that, in addition to vacating his AHC conviction, we should issue an amended
       mittimus to reflect his six-year sentence for AUUW.
¶ 21       We agree that remand for resentencing is unnecessary because the record shows the court
       already issued concurrent sentences on defendant’s convictions for AUUW and aggravated
       fleeing or attempting to elude a peace officer. As previously noted, at sentencing, the court
       orally sentenced defendant to prison terms for his convictions: 12 years for AHC, 6 years for
       the three AUUW convictions, and 3 years for aggravated fleeing or attempting to elude a peace
       officer, to be served concurrently with the “merged” AUUW and AHC counts.
¶ 22       Although the trial court sentenced defendant to six years in prison for the AUUW
       convictions, the mittimus only reflects defendant’s sentences for AHC and aggravated fleeing
       or attempting to elude a peace officer. Because the trial court’s oral pronouncement controls
       (People v. Jones, 376 Ill. App. 3d 372, 395, (2007)), pursuant to our authority under Illinois
       Supreme Court Rule 615(b), we order the clerk of the circuit court to correct the mittimus to
       reflect that the circuit court sentenced defendant to six years in prison for the three AUUW
       convictions.



                                                   -5-
¶ 23       For the reasons stated above, we reverse and vacate defendant’s AHC conviction and order
       the mittimus corrected to show a six-year sentence of imprisonment on the AUUW counts.

¶ 24      Reversed in part; mittimus corrected.




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