                                     2014 IL App (1st) 122126


                                                                             SIXTH DIVISION
                                                                             June 30, 2014


                                          No. 1-12-2126


                                                                 )    Appeal from the
THE PEOPLE OF THE STATE OF ILLINOIS,                             )    Circuit Court of
                                                                 )    Cook County
               Plaintiff-Appellee,                               )
                                                                 )
v.                                                               )    No. 11 CR 12612
                                                                 )
JOSEPH LEWIS,                                                    )
                                                                 )    Honorable Stanley J. Sacks,
               Defendant-Appellant.                              )    Judge Presiding.
                                                                 )


       JUSTICE REYES delivered the judgment of the court, with opinion.
       Presiding Justice Rochford and Justice Hall concurred in the judgment and opinion.


                                            OPINION

¶1     Defendant Joseph Lewis appeals his conviction of unlawful use of a weapon by a felon

(UUW by a felon) after a jury trial. 720 ILCS 5/24-1.1(a) (West 2010). Defendant was

sentenced to five years' imprisonment as a Class 2 offender. 720 ILCS 5/24-1.1(e) (West 2010).

On appeal, Lewis contends the trial court erred in sentencing him as a Class 2 offender for two

reasons: (1) the State failed to provide notice pursuant to section 111-3(c) of the Code of

Criminal Procedure of 1963 (Code) (725 ILCS 5/111-3(c) (West 2010)) that the State would seek

a Class 2 sentence; and (2) the trial court engaged in double enhancement by applying his one

prior conviction for aggravated robbery, both as an element of his offense and to enhance his

sentence. Defendant further contends the trial court erred in instructing the jury that it could
1-12-2126


consider his prior aggravated robbery conviction in determining whether the State proved the

UUW by a felon charge beyond a reasonable doubt. For the reasons which follow, we affirm.

¶2                                       BACKGROUND

¶3     On August 15, 2011, defendant was charged by information with one count of UUW by a

felon pursuant to section 24-1.1(a) of the Criminal Code of 1961 (Criminal Code) (720 ILCS

5/24-1.1(a) (West 2010)) and two counts of aggravated unlawful use of a weapon (720 ILCS

5/24-1.6(a) (West 2010)).1 Specifically, defendant's information as to the UUW by a felon

charge alleged that he committed the "offense of unlawful use or possession of a weapon by a

felon" as he "knowingly possessed on or about his person any firearm, to wit: a shotgun, after

having been previously convicted of the felony offense of aggravated robbery, under case

number 08CR17706." The two aggravated unlawful use of a weapon counts were nol-prossed

prior to trial. The record discloses the following facts.

¶4     Officer John Sego (Sego) of the ninth district of the Chicago police department testified

that on July 27, 2011, at 1:30 a.m. he was on routine patrol with his partner, Officer Michael

Alaniz (Alaniz), on the middle of the block between 4700 to 4800 on Winchester when he heard

three loud shots. Sego and Alaniz lowered the windows of the police vehicle and Alaniz began

driving at a "real slow pace down Winchester." Two minutes later, Sego received a call over the

police radio of "male with a gun, shots fired" at 4839 South Winchester. Sego and Alaniz were

half a block away from the location when they responded to the call. Officer Robert Caulfield

along with his partner Officer David Carey also responded to the call. Sego testified Alaniz

"pulled up to roughly 4835 South Winchester" and both officers exited the vehicle. The officers

approached the front of 4839 South Winchester, looked down the gangway on the south side of

       1
         Aggravated unlawful use of a weapon counts indicated the State intended to seek a
Class 2 sentence.
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the residence, and observed defendant standing at the end of the gangway holding a shotgun to

his side. No lighting illuminated the gangway, however, Sego testified he could see defendant's

face. Both officers announced their office. The defendant then ran.

¶5     Sego further testified the officers then pursued defendant down the gangway, with Alaniz

running in front of him. Defendant ran to the rear of the residence, up a flight of stairs, and

through the back door of an enclosed porch that led to the first-floor apartment. The officers

pursued defendant up the back stairs and Alaniz then kicked the porch door open. Sego testified

he could see defendant standing in the door way of the first-floor apartment. Sego observed

defendant enter the unit. The officers followed defendant into the illuminated residence, where

Sego observed defendant "pitch the shotgun to the left side into an adjacent bedroom" next to the

kitchen. The officers then placed defendant in custody. Sego testified Chicago police officer

Robert Caulfield (Caulfield), who was "working another beat car," was "right behind" him. Sego

indicated to Caulfield that there was a shotgun on the bedroom floor. Caulfield recovered the

shotgun and a spent shell casing from inside the weapon.

¶6     Sego testified that defendant was removed from the apartment and then placed in his

police vehicle. After advising defendant of his Miranda rights, and defendant acknowledging

those rights, Sego testified he asked defendant "who he was shooting at." Sego testified that

defendant's response was, "we were just having fun with it, I wasn't popping at anyone." Sego

testified "popping" is "a term used for shooting at one particular individual or place." In

addition, Sego testified that while he and his partner were chasing defendant they did not observe

anyone else inside the residence. After defendant was placed under arrest Sego testified that two

of the residents of 4839 South Winchester, James McCain (McCain) and Ms. McCain, McCain's




                                                  3
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mother,2 approached him, but they were not in the bedroom where the shotgun was located.

¶7      On cross-examination, Sego testified that when he observed defendant in the gangway,

defendant was approximately 50 feet away from him. Once defendant gave chase, defendant

was out of Sego's sight-line for three to four seconds. Sego did not have his weapon drawn, but

believed his partner did have his weapon drawn when he was inside the residence. Sego testified

that someone in the residence other than defendant may have had a weapon. When asked

whether any of the officers on the scene searched the entire residence, Sego testified he did not

know.

¶8      Officer Michael Alaniz testified consistently with Sego's testimony. On July 27, 2011, at

1:30 a.m. while on routine patrol in the 4700 block of South Winchester he heard three loud

gunshots. Alaniz proceeded driving his unmarked police vehicle at approximately 10 to 15 miles

per hour down Winchester with the windows down and the headlamps off to achieve an "element

of surprise." He stopped the vehicle at 4800 South Winchester because he received a call over

the police radio indicating shots were fired at 4938 South Winchester. Once he arrived at the

location, he and Sego exited the vehicle and approached the residence. Alaniz observed

defendant standing at the end of the gangway holding a shotgun. Alaniz could not view

defendant as he rounded the rear of the building because defendant was already in the back of the

building. Once Alaniz was 10 to 15 feet away from defendant in the back of the building he

observed defendant enter the residence through the back door. When Alaniz reached the back

door, he proceeded to "kick the door in." Alaniz observed defendant go into the "actual house,"

which was the first-floor apartment of a two-flat building. Alaniz testified defendant entered an

        2
          Sego's partner, Officer Michael Alaniz, testified McCain's father also resided at the
property. Alaniz testified he never spoke with McCain's parents regarding the incident and did
not get their names or phone numbers. Accordingly, the record is devoid of any reference to
James McCain's parents' first names.
                                                 4
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illuminated kitchen and observed defendant was still in possession of the shotgun. Alaniz

followed defendant into the kitchen with Sego behind him. Alaniz then observed defendant toss

the shotgun into a bedroom, which was adjacent to the kitchen. Alaniz testified at the time

defendant tossed the shotgun into the bedroom, he did not know whether any one was in the

bedroom. He later learned the bedroom was not occupied. Alaniz testified he, along with Sego,

placed defendant in custody while in the kitchen. Alaniz further testified that as he was placing

defendant in custody, Caulfield entered the residence and he informed Caulfield that the shotgun

was in the bedroom. Alaniz further testified 8 to 10 seconds elapsed from the moment he first

observed defendant standing in the gangway with the shotgun until he detained defendant in the

kitchen of the residence.

¶9     On cross-examination, Alaniz testified that when he approached 4839 South Winchester

he had his weapon drawn. Alaniz further testified that prior to kicking it in, he did not know

whether the porch door was locked. Alaniz's weapon was not drawn when he was in the kitchen

of the residence. He did not search the remainder of the residence.

¶ 10   Officer Robert Caulfield testified he was working and assigned to the ninth district on the

night of July 27, 2011. He was working with Officer David Carey when he received a call of

shots fired at 4839 South Winchester at 1:30 a.m. He and his partner responded to the call.

Upon arriving at the location, Caulfield testified he observed fellow officers Sego and Alaniz

chasing an individual down a gangway. Caulfield exited his vehicle and gave chase toward

defendant, following the officers down the gangway into the back door of the first floor

apartment. Upon entering the apartment, Caulfield testified that Alaniz told him, "Rob, there is a

gun in the bedroom." Caulfield then retrieved a Remmington 870, 20-gauge shotgun from the

bedroom that was directly off of the kitchen. Caulfield testified at the time he retrieved the



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weapon, Sego and Alaniz were placing the subject into custody. Caulfield cleared the weapon to

ensure it had no live rounds and observed one spent 20-gauge shell casing in the weapon.

Caulfield identified defendant in court as the subject he observed being placed into custody.

Caulfield further identified the shotgun in court as the weapon he recovered from 4839 South

Winchester.

¶ 11      On cross-examination, Caulfield testified he did not request an evidence technician come

to the apartment to examine the scene, nor did he request the weapon be tested for DNA or

fingerprints.

¶ 12      The parties then stipulated that defendant had a prior felony conviction in case number 08

CR 17706. The State rested its case and defendant moved for a directed verdict which was

denied.

¶ 13      Defendant then testified to the following facts. At the time of trial, defendant was 20

years of age and resided at 5116 South Hoyne in Chicago. He had completed his formal

education through the ninth grade. On the night of July 27, 2011, he was going to eat some food

with his friend, McCain, and then spend the evening at McCain's residence. He arrived at the

McCain residence at 7:30 p.m. and began playing video games. A little after 1 a.m. he heard

gunshots and he and McCain got up and looked around. Defendant and McCain stayed in the

front room and did nothing. At this time, McCain's mother and stepfather were at the residence,

as well. Five or ten minutes later there was a knock at the door. Defendant knew it was the

Chicago police because he observed flashing lights through the window and they were "knocking

loud," but neither he nor James answered the door. After five minutes had passed, McCain's

stepfather opened the door. The police officers, Sego and Alaniz, requested defendant step out

of the residence and then they placed him under arrest. There were five, six, or seven police



                                                   6
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officers who arrived at the McCain residence. Alaniz placed defendant in handcuffs and

requested defendant go to the police vehicle. Defendant walked to the police vehicle

unaccompanied. At this time, the police were searching inside and outside of the McCain

residence. Defendant further observed officers knocking at the basement apartment door and

searching that individual's unit. Ten minutes from when he initially entered the McCain

residence, Alaniz exited the residence with a shotgun.

¶ 14   Defendant further testified in 2008 he was convicted of aggravated robbery.3

Additionally, defendant testified he usually stayed over at McCain's residence twice a week due

to the fact it is too dangerous to walk back to his own residence alone. Defendant testified that

on July 27, 2011, he did not have a shotgun, did not fire a shotgun, did not run from police, and

did not say anything to the police.

¶ 15   On cross-examination, defendant testified the "second officer lead me to the back and

placed me in the back of the car and then went into the house and proceeded and searched."

Defendant further testified an officer came out of the front of the house and informed defendant

he found the shotgun.4 The defense rested its case.

¶ 16   The trial court and the parties, outside the presence of the jury, considered which jury

instructions would be utilized. The trial court suggested the use of Illinois Pattern Jury

Instructions, Criminal, No. 3.13X (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 3.13X);

relating to evidence of a defendant's prior conviction for two relevant purposes: an element of the

crime and credibility. IPI Criminal 4th No. 3.13X, as given, stated:

       3
         The record does not indicate under which section of the aggravated robbery statute
defendant was convicted. Throughout the trial and at the sentencing hearing, all parties,
including defendant, stated defendant was previously convicted of aggravated robbery, a Class 1
felony.
       4
         The record of proceedings is not clear as to which officer defendant is speaking about
on cross-examination.
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               "Ordinarily, evidence of a defendant's prior conviction of an offense may be

       considered by you only as it may affect his believability as a witness and must not be

       considered by you as evidence of his guilt of the offense with which he is charged.

               However, in this case, because the State must prove beyond a reasonable doubt

       the proposition that the defendant has previously been convicted of a felony offense, you

       may also consider evidence of defendant's prior conviction of the offense of Aggravated

       Robbery for the purpose of determining whether the State has proved that proposition."

During the instruction conference, defendant objected to the use of IPI Criminal 4th No. 3.13X

as he believed the instruction would be confusing and would serve the jury better by being

separated into two different instructions. The trial court concluded it would utilize IPI Criminal

4th No. 3.13X, stating:

               "I think that is why it [IPI Criminal 4th No. 3.13X] was enacted by the Supreme

       Court Rule Committee for situations just like this. This is what the committee notes say:

       This instruction should be given only when an element of the charged offense is

       defendant previously committing prior offense. That is when it should be given. Those

       are the exact circumstances in this case. Prior conviction for the felony for impeachment,

       prior conviction of felony for the element of the crime weapon violation by a felon."

Defendant offered no further objections to the jury instructions.

¶ 17   Following closing arguments, the reading of the jury instructions, and deliberations, the

jury found defendant guilty of UUW by a felon. The trial court denied defendant's motion for a

new trial. Defendant did not raise an objection to IPI Criminal 4th No. 3.13X in his posttrial

motion.

¶ 18   At the sentencing hearing, the State presented the presentence investigative report, which



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indicated defendant's prior aggravated robbery conviction was a Class 1 offense, and requested

defendant be sentenced as a Class 2 offender. Defense counsel asserted that defendant should

not be sentenced as a Class 2 offender as aggravated robbery is not a forcible felony. There was,

however, no further explanation or argument. The trial court responded:

               "It's a class 1 anyway aggravated robbery. So whether it's forceable [sic] felony

       or not is academic. He is eligible to 3 to 14 based on the fact the prior conviction for

       aggravated robbery is a class 1 felony. So the range is 3 to 14."

The trial court provided no further explanation for its ruling.

¶ 19   After considering all the factors in aggravation and mitigation the trial court determined

defendant to be a Class 2 offender and sentenced him to five years' imprisonment with two years

of mandatory supervised release. Thereafter, defendant filed a motion to reconsider in which he

argued only that his sentence was excessive. On July 6, 2012, the trial court denied the motion.

That same day, defendant filed this timely notice of appeal.

¶ 20                                        ANALYSIS

¶ 21   On appeal, defendant contends the trial court erred in sentencing him as a Class 2

offender for two reasons: (1) the State failed to provide notice pursuant to section 111-3(c) of

the Code (725 ILCS 5/111-3(c) (West 2010)) that the State would seek a Class 2 sentence; and

(2) the trial court engaged in double enhancement by using his prior conviction of aggravated

robbery both as an element of the offense and to enhance his sentence. Defendant further

contends the trial court erred in instructing the jury that it could consider his prior aggravated

robbery conviction in determining whether the State proved the UUW by a felon charge beyond

a reasonable doubt when the parties previously stipulated to the prior felony conviction. We

address defendant's contentions in turn.



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¶ 22                  Whether the Trial Court Erred in Sentencing Defendant

¶ 23                             Notice pursuant to Section 111-3(c)

¶ 24    On appeal, defendant contends he is not eligible for Class 2 sentencing because the State

failed to notify him under section 111-3(c) of its intent to seek a Class 2 sentence. Defendant

maintains that "[o]rdinarily, the UUW-felon offense is a Class 3 felony," therefore, the State

must expressly indicate in the charging instrument that it intends to seek a Class 2 sentence.

Defendant asserts that because his UUW by a felon charge was premised on his prior aggravated

robbery conviction, and aggravated robbery is not one of the enumerated forcible felonies listed

in section 2-8 of the Criminal Code, his information did not notify him of the State's intent to

seek a Class 2 sentence. Defendant acknowledges that he raises this issue for the first time on

appeal, but asserts a void sentence may be attacked at any time. Alternatively, he requests we

review his claim for plain error, as it affects his substantial rights.

¶ 25    The State responds that the trial court did not err in sentencing defendant as a Class 2

offender because a Class 2 sentence was the only sentence defendant could have received under

the UUW by a felon statute (720 ILCS 5/24-1.1(e) (West 2010)). Moreover, because the prior

felony conviction for aggravated robbery was an element of the UUW by a felon offense and

also a forcible felony, defendant was notified the State intended to seek a Class 2 sentence.

¶ 26    Initially, we agree defendant failed to preserve this issue for review. A void sentence,

however, may be attacked at any time. People v. Arna, 168 Ill. 2d 107, 113 (1995). Further, "[i]t

is well established that a sentencing judge cannot impose a penalty not otherwise allowed by the

sentencing statute in question." People v. Palmer, 218 Ill. 2d 148, 154 (2006), overruled on other

grounds by, People v. Petrenko, 237 Ill. 2d 490 (2010); see In re Rodney S., 402 Ill. App. 3d

272, 287 (2010) (finding respondent's sentence to be void because the trial court based its



                                                   10
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sentence on an incorrect finding that aggravated battery was a forcible felony).

¶ 27   Alternatively, defendant requests the error be reviewed under the plain-error doctrine.

Supreme Court Rule 615(a) provides that we may review "[p]lain errors or defects affecting

substantial rights," even though the defendant did not object to such errors in a posttrial motion.

Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). The plain-error doctrine allows us to review clear and

obvious errors which were waived below. People v. Nowells, 2013 IL App (1st) 113209, ¶ 18;

People v. Hillier, 237 Ill. 2d 539, 545 (2010). In the sentencing context, the defendant must

demonstrate 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. Under either prong of the plain-error doctrine, the burden of persuasion remains on

the defendant. People v. Bowman, 2012 IL App (1st) 102010, ¶ 30. We elect to consider the

error pursuant to the second prong of the plain-error doctrine. See Nowells, 2013 IL App (1st)

113209, ¶¶ 19-20.

¶ 28   The first step in a plain-error analysis is to determine whether any error occurred at all.

People v. Wilson, 404 Ill. App. 3d 244, 247 (2010). Therefore, in the present case, we first turn

to consider whether the trial court erred in sentencing defendant as a Class 2 offender based on

defendant's argument that the charge failed to notify him that the State would seek a Class 2

sentence, even though the issue was not properly preserved for review. Because this issue

involves an interpretation of section 111-3(c) of the Code, we review it de novo. People v.

Easley, 2014 IL 115581, ¶ 13 (interpreting section 111-3(c) of the Code).

¶ 29   In the present case, to prove UUW by a felon, the State was required to establish that

defendant knowingly possessed a weapon or ammunition and that defendant had previously been

convicted of a felony. 720 ILCS 5/24-1.1(a) (West 2010). Defendant's information alleged he



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committed the "offense of unlawful use or possession of a weapon by a felon" as he "knowingly

possessed on or about his person any firearm, to wit: a shotgun, after having been previously

convicted of the felony offense of aggravated robbery, under case number 08CR17706."

¶ 30   At sentencing, the State sought a Class 2 sentence based on defendant's prior conviction

for aggravated robbery under the portion of section 24-1.1(e) which required that defendants who

had previously been convicted of a forcible felony be sentenced as Class 2 offenders. 720 ILCS

5/24-1.1(e) (West 2010). Section 24-1.1(e) states in relevant part:

               "(e) Sentence. Violation of this Section by a person not confined in a penal

       institution shall be a Class 3 felony for which the person shall be sentenced to no less

       than 2 years and no more than 10 years and any 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. 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. " (Emphases added.) 720

       ILCS 5/24.1-1(e) (West 2010).

¶ 31   Section 2-8 of the Criminal Code defines "forcible felony" to mean:

       "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 kidnapping [sic], kidnapping



                                                12
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       [sic], aggravated battery resulting in great bodily harm or permanent disability or

       disfigurement and any other felony which involves the use or threat of physical force or

       violence against any individual." (Emphases added.) 720 ILCS 5/2-8 (West 2010).

¶ 32   Aggravated robbery is not one of the enumerated offenses defined as a forcible felony.

Id. The State, however, maintains that aggravated robbery is a forcible felony under the residual

clause of section 2-8. Defendant does not argue otherwise.

¶ 33   Defendant contends on appeal the State failed to notify him that it was seeking a Class 2

sentence based on his prior aggravated robbery conviction pursuant to section 111-3(c) of the

Code (725 ILCS 5/111-3(c) (West 2010)). Section 111-3(c) provides:

       "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).

The purpose of section 111-3(c) is "to ensure that a defendant received notice, before trial, of the

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

290 (1994); Easley, 2014 IL 115581, ¶ 18.



                                                 13
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¶ 34   There once existed a split in authority within the divisions of the First District regarding

whether the State must notify a defendant pursuant to section 111-3(c) that it intends to seek a

Class 2 sentence when a defendant is charged with UUW by a felon. In the recent opinions of

People v. Easley, 2012 IL App (1st) 110023, overruled by Easley, 2014 IL 115581; People v.

Whalum, 2012 IL App (1st) 110959, appeal denied, No. 115582 (May 28, 2014; Nowells, 2013

IL App (1st) 113209, appeal denied, No. 116839 (May 28, 2014); People v. Pryor, 2013 IL App

(1st) 121792, appeal denied, No. 117276 (May 28, 2014); People v. Polk, 2014 IL App (1st)

122017; and People v. Soto, 2014 IL App (1st) 121937, the First District of our appellate court

had the occasion to consider how section 111-3(c) should be interpreted in the context of the

UUW by a felon statute. In each of the six cases, the defendant asserted he was not provided

with notice pursuant to section 111-3(c) that he would be sentenced as a Class 2 offender under

section 24-1.1(e) of the Criminal Code based on a prior conviction. Easley, 2012 IL App (1st)

110023, ¶ 23; Whalum, 2012 IL App (1st) 110959, ¶ 32; Nowells, 2013 IL App (1st) 113209, ¶

17; Pryor, 2013 IL App (1st) 121792, ¶ 34; Polk, 2014 IL App (1st) 122017, ¶ 13; Soto, 2014 IL

App (1st) 121937, ¶ 15.

¶ 35   This court in Easley, Whalum, and Pryor held section 111-3(c) requires the State to set

forth its intention to seek a Class 2 sentence for UUW by a felon in the charging instrument, and

that the failure to do so required the vacating of the defendant's Class 2 sentence and

resentencing of the defendant as a Class 3 offender. Easley, 2012 IL App (1st) 110023, ¶ 32;

Whalum, 2012 IL App (1st) 110959, ¶ 37; Pryor, 2013 IL App (1st) 121792, ¶¶ 37, 42. Nowells,

Polk, and Soto, however, held, in the case of UUW by a felon, the prior conviction is not an

enhancement; it is an element of the offense, therefore, section 111-3(c) does not apply when the

prior conviction is already an element of the offense. Nowells, 2013 IL App (1st) 113209, ¶ 27;



                                                14
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Polk, 2014 IL App (1st) 122017, ¶ 28; Soto, 2014 IL App (1st) 121937, ¶ 24. Defendant, here,

requests this court apply the reasoning of the appellate court decision in Easley and its progeny

to his case.

¶ 36    Our supreme court, however, recently addressed the issue of whether the State is required

to notify a defendant pursuant to section 111-3(c) of the Code of its intent to seek a Class 2

sentence under section 24-1.1(e) of the Criminal Code in People v. Easley, 2014 IL 115581; 720

ILCS 5/24-1.1(e) (West 2008). In Easley, the defendant was charged with aggravated unlawful

use of a weapon and UUW by a felon in violation of section 24-1.1(a) of the Criminal Code (720

ILCS 5/24-1.1(a) (West 2008)) based on defendant's prior conviction for UUW by a felon.

Easley, 2014 IL 115581, ¶ 10. After a bench trial, the trial court found the defendant guilty of

aggravated unlawful use of a weapon and UUW by a felon and merged all counts into the UUW

by a felon count. Id. The defendant was sentenced to nine years in prison as a Class 2 offender

based on his prior conviction for UUW by a felon. Id. Before the appellate court, the defendant

asserted that the trial court improperly sentenced him as a Class 2 offender where the State

charged him with a Class 3 offense and did not provide notice that it intended to seek a Class 2

sentence, in violation of section 111-3(c) of the Code of Criminal Procedure. Id. ¶ 11. The

appellate court vacated defendant's Class 2 sentence and remanded the matter to the trial court

with directions to sentence defendant as a Class 3 offender, concluding the defendant did not

receive notice pursuant to the statute. Id.

¶ 37    Our supreme court held that "notice under section 111-3(c) is not necessary when the

prior conviction is a required element of the offense." Id. ¶ 19. The supreme court reasoned:

               "In construing the language of section 111-3(c), it is clear that the notice

        provision applies only when the prior conviction that would enhance the sentence is not



                                                 15
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       already an element of the offense. 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 and may not be disclosed to the jury during trial unless otherwise

       permitted by issues properly raised during such trial.' (Emphasis added.) [Citation.] This

       language necessarily implies that section 111-3(c) applies only when the prior conviction

       is not an element of the offense. *** Under these circumstances, only one class of

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

       Id.

Applying this reasoning to the facts of the case, our supreme court explained:

       "The indictment in this case alleged that defendant was guilty of unlawful use of a

       weapon by a felon in that he was previously convicted of unlawful use of a weapon by a

       felon. The section 111-3(c) notice provision clearly does not apply in this case 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 (720 ILCS 5/24-1.1(e) (West

       2008)). Defendant could not have been given a Class 3 sentence under the applicable

       sentencing statute." Id. ¶ 22.

¶ 38   In this case, defendant's prior aggravated robbery conviction was an element of his UUW

by a felon charge and was set forth in the information. Moreover, where the aggravated robbery

is a forcible felony under the residual clause of section 2-8 the only statutorily allowed sentence

under section 24-1.1(e) would be a Class 2 sentence. Defendant's Class 2 sentence was based on

the prior conviction which was an element of the charged offense and required by the statutory

provisions of section 24-1.1(e). Accordingly, under Easley, the section 111-3(c) notice provision



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does not apply. Id. ¶ 19.

¶ 39    We note that although defendant raised an objection at sentencing to the trial court

considering his prior aggravated robbery conviction to be a forcible felony, he filed no written

motion (or posttrial motion) raising this issue and did not fully argue this issue before the trial

court. In addition, on appeal, defendant does not assert that his aggravated robbery conviction

was not a forcible felony within the residual clause of section 2-8. Because defendant fails to

assert these issues on appeal, we decline to consider whether felonies which fall under the

residual clause of section 2-8 are to be considered any differently than enumerated felonies for

the purposes of the UUW by a felon statute and section 111-3(c). See Polk, 2014 IL App (1st)

122017, ¶ 56. Accordingly, since defendant's prior felony conviction for aggravated robbery is

an element of the offense of the Class 2 UUW by a felon, section 111-3(c) does not apply and the

trial court did not err in sentencing him as a Class 2 offender. Easley, 2014 IL 115581, ¶ 19.

¶ 40                                    Double Enhancement

¶ 41    Defendant contends he was improperly subjected to double enhancement because his

prior aggravated robbery felony conviction was used both to prove an element of the UUW by a

felon offense and to elevate his sentence to a Class 2 offense and impose a harsher sentence. Our

supreme court in Easley, determined that when a defendant is charged, convicted, and sentenced

as a Class 2 offender, the double enhancement claim necessarily fails. Easley, 2014 IL 115581,

¶ 28.

¶ 42                                      Jury Instructions

¶ 43    Defendant contends the trial court improperly instructed the jury, which, in turn, misled

or confused the jury, thereby depriving him of his constitutional right to a fair trial. Specifically,

defendant asserts the trial court erred in providing IPI Criminal 4th No. 3.13X, as defendant had



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previously stipulated to his prior felony conviction, thereby satisfying the felon element of his

charged offense. Defendant concludes that IPI Criminal 4th No. 3.13X inappropriately suggests

to the jury that it may consider the prior conviction as propensity evidence of defendant's guilt.

¶ 44   The State responds that defendant forfeited this issue when he filed a posttrial motion for

a new trial and failed to include any claim of improper jury instructions. In addition, the State

asserts defendant cannot demonstrate that plain error occurred because the trial court did not err

in using IPI Criminal 4th No. 3.13X.

¶ 45   "The sole function of jury instructions is to convey to the jury the correct principles of

law applicable to the evidence submitted to it in order that, having determined the final state of

facts from the evidence, the jury may, by the application of proper legal principles, arrive at a

correct conclusion according to the law and the evidence." People v. Pinkney, 322 Ill. App. 3d

707, 717 (2000). Jury instructions should not be misleading nor confusing. Id. Their

correctness does not depend on whether defense counsel can imagine a problematic meaning, but

whether ordinary persons acting as jurors would fail to understand them. People v. Herron, 215

Ill. 2d 167, 188 (2005).

¶ 46   Generally, we will reverse a trial court's determination regarding what instruction to give

only if the trial court abused its discretion.5 People v. Rodriguez, 387 Ill. App. 3d 812, 821

(2008). An abuse of discretion occurs only where the trial court's ruling is arbitrary, fanciful or

unreasonable, or where no reasonable person could take the view adopted by the trial court. Id.



       5
          Defendant argues that we should review this matter de novo, as it involves whether the
instruction accurately conveyed to the jury the law applicable to the case. Defendant, however,
does not dispute that the information contained in IPI Criminal 4th No. 3.13X (that the jury
could consider the prior felony as an element of the crime and for purposes of credibility) should
have been provided to the jury. Instead, defendant asserts it should have been provided in two
separate instructions. This is does not raise a question of law. Therefore, we review the matter
for an abuse of discretion.
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¶ 47    Defendant acknowledges he forfeited this issue by failing to raise it in his posttrial

motion and asks us to review it under the plain-error doctrine. Illinois Supreme Court Rule

451(c) (eff. July 1, 2006) states, "substantial defects [in jury instructions in criminal cases] are

not waived by failure to make timely objections thereto if the interests of justice require." "Rule

451(c)'s exception to the waiver rule for substantial defects applies when there is a grave error or

when the case is so factually close that fundamental fairness requires that the jury be properly

instructed." People v. Hopp, 209 Ill. 2d 1, 7 (2004). This analysis is identical to the plain-error

doctrine of Illinois Supreme Court Rule 615(a). See People v. Durr, 215 Ill. 2d 283, 296 (2005)

(Rule 451(c) and Rule 615(a) are construed identically).

¶ 48    As previously discussed, the plain-error doctrine carves out an exception to forfeiture in

order to permit review of issues otherwise procedurally defaulted. People v. Lewis, 234 Ill. 2d

32, 42 (2009). Under the plain-error doctrine, this court will review forfeited challenges when:

(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; or (2) a clear or obvious error

occurred, and the error is so serious that it affected the fairness of the defendant's trial and the

integrity of the judicial process, regardless of the closeness of the evidence. Herron, 215 Ill. 2d

at 178-79. The defendant bears the burden of persuasion under each prong of the doctrine.

People v. Naylor, 229 Ill. 2d 584, 593 (2008). If "the error is found not to rise to the level of a

plain error as contemplated by Rule 615(a), the procedural default must be honored." People v.

Keene, 169 Ill. 2d 9, 17 (1995). A jury instruction error rises to the level of plain error only

when it "creates a serious risk that the jurors incorrectly convicted the defendant because they

did not understand the applicable law, so as to severely threaten the fairness of the trial." Hopp,

209 Ill. 2d at 8. Accordingly, any alleged jury instruction error in this case is forfeited unless



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defendant can show such error threatened the fundamental fairness of his trial. Our first step "is

to determine whether error occurred in the giving of the instruction." People v. Piatkowski, 225

Ill. 2d 551, 565 (2007).

¶ 49   In defendant's case, the jury was issued the following instruction:

               "Ordinarily, evidence of a defendant's prior conviction of an offense may be

       considered by you only as it may affect his believability as a witness and must not be

       considered by you as evidence of his guilt of the offense with which he is charged.

               However, in this case, because the State must prove beyond a reasonable doubt

       the proposition that the defendant has previously been convicted of a prior felony offense,

       you may also consider evidence of the defendant's prior conviction of the offense of

       Aggravated Robbery for the purpose of determining whether the state has proved that

       proposition." IPI Criminal 4th No. 3.13X.

This instruction is employed when a defendant has been previously convicted of committing a

prior offense and he testifies at his trial. See Illinois Pattern Jury Instructions, Criminal, No.

3.13X, Committee Note (4th ed. 2000). This instruction informs the jury that the prior

conviction is admissible as substantive evidence of the prior conviction as well as for

impeachment purposes against the defendant. Id.

¶ 50   Defendant asserts People v. Hughes, 343 Ill. App. 3d 506 (2003), supports his argument

that since he stipulated to his prior conviction the jury should have been instructed that the

conviction should not be considered as evidence of his propensity to commit the charged crime.

The defendant in Hughes was also charged with UUW by a felon. The parties stipulated to the

defendant's prior felony conviction and the defendant also testified he was a convicted felon.

Following the stipulation, the trial court instructed the jury:



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                   " '[W]hat this means, Ladies and Gentlemen, is that since the parties agree to it,

        that's a matter that does not have to be proven since the defense and the State agree to

        that fact.' " Id. at 516.

At the close of the trial, the jury was instructed pursuant to Illinois Pattern Jury Instructions,

Criminal, No. 3.13 (4th ed. 2000) on the elements of unlawful possession of a weapon by a felon

which provided the State was required to prove defendant knowingly possessed firearm

ammunition and defendant had previously been convicted of a felony. Hughes, 343 Ill. App. 3d

at 515-16. This instruction also provided that the parties stipulated that defendant had been

previously convicted of a felony. Id. at 516. The jury was further instructed that the evidence of

defendant's prior conviction could not be used as substantive evidence, but only as to defendant's

credibility. Id.

¶ 51    In Hughes, the defendant on appeal challenged the sufficiency of the evidence upon

which the jury convicted him of UUW by a felon. Id. at 514-15. The defendant specifically

argued that because the jury is presumed to have followed the instructions and was instructed

that it could not consider the defendant's prior conviction as substantive evidence, the evidence

was insufficient to support a conviction for unlawful use or possession of weapons by a felon.

Id. at 515. We noted that the parties stipulated to the defendant's prior felony conviction and that

during the trial after the stipulation was made, the jury was instructed that, based on the

stipulation between the parties, the State did not have to prove that the defendant was a felon for

purposes of establishing the offense. Id. at 516. We concluded that under all the circumstances,

the jury could have found the defendant guilty of UUW by a felon beyond a reasonable doubt.

Id.

¶ 52    The Hughes decision does not support a conclusion that the instructions here caused



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confusion. The jury was apprised of the meaning and significance of a stipulation, the elements

of UUW by a felon, and how to consider defendant's prior felony conviction in light of his

testifying on his own behalf. Upon the stipulation of the parties to defendant's prior felony

conviction, the court instructed the jury, "A stipulation, ladies and gentlemen, means that the

lawyers agree that certain facts exist. There is no need to see the witness testify to those facts.

The parties agree to the facts. You can take a stipulation as if the person were here testifying."

The defendant then testified on direct examination to his prior aggravated robbery conviction.

The jury was instructed on the elements of UUW by a felon and was also instructed that, because

defendant testified, his prior felony conviction could be used as impeachment evidence against

defendant. The jury was further provided with the limiting instruction, "[o]rdinarily, evidence of

a defendant's prior conviction of an offense may be considered by you only as it may affect his

believability as a witness and must not be considered by you as evidence of his guilt of the

offense with which he is charged" as part of IPI Criminal 4th No. 3.13X. There was no error in

the jury instructions.

¶ 53    Defendant further relies on People v. Peete, 318 Ill. App. 3d 961, 969 (2001), for what he

believes is the proposition that where the defendant stipulates to his prior conviction as an

element of the charged offense trial courts should "instruct the jury that it can consider the

convicted-felon-status element of the crime as proved by the stipulation." This quotation from

the case, however, is taken out of context. The Peete court was actually suggesting a procedure

regarding stipulations on prior convictions that are an element of the crime charged as originally

set forth in Old Chief v. United States, 519 U.S. 172 (1997). The Peete court was not

considering whether jury instructions regarding the elements of the offense and the prior

conviction were confusing, as defendant asserts here. Moreover, in the present case the trial



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court instructed the jury directly after the parties submitted the stipulation that it can consider the

convicted-felon-status element of the crime as proven by stipulation.

¶ 54   Defendant cites no authority which holds that submitting IPI Criminal 4th No. 3.13X to

the jury when the parties have stipulated to the prior felony conviction element of the offense,

leads to jury confusion. Defendant sets forth generally that "providing jurors with conflicting

pieces of information leads to confusion." We, however, find that the jury instruction provided

was not confusing, as it accurately set forth the elements of the offense of UUW by a felon and

informed the jury how to view defendant's prior conviction in light of the offense charged and

his testimony. Moreover, the record is devoid of any evidence of jury confusion. The jury sent

no correspondence to the judge during the course of their deliberations. See cf. People v. Hobbs,

249 Ill. App. 3d 679, 684-85 (1993) (noting there was "little doubt" the jury was confused by the

instruction, as it sent two notes to the judge and found the defendant not guilty of first-degree

murder, but guilty of armed violence based on first-degree murder). Accordingly, we conclude

that no error occurred. A jury instruction error rises to the level of plain error only when it

"creates a serious risk that the jurors incorrectly convicted the defendant because they did not

understand the applicable law, so as to severely threaten the fairness of the trial." Hopp, 209 Ill.

2d at 8. Even if there was error, we cannot say the instructions contained in IPI Criminal 4th No.

3.13X created a serious risk that the jurors incorrectly convicted defendant because they did not

understand the law. Therefore, based on the record before us, we conclude no error, and, thus,

no plain error, occurred.

¶ 55                                       CONCLUSION

¶ 56   For the above reasons we affirm the judgment of the trial court.

¶ 57   Affirmed.



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