                                       2014 IL 115581



                                  IN THE
                             SUPREME COURT
                                    OF
                           THE STATE OF ILLINOIS



                                     (Docket No. 115581)

                THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
                        CHRISTOPHER EASLEY, Appellee.


                                Opinion filed March 20, 2014.



        JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

        Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and Theis
     concurred in the judgment and opinion.



                                          OPINION

¶1       Defendant, Christopher Easley, was convicted of unlawful use of a weapon by a
     felon (720 ILCS 5/24-1.1(a) (West 2008)), and sentenced to nine years in prison. The
     appellate court affirmed defendant’s conviction but vacated his Class 2 sentence and
     remanded with directions to impose a sentence within the Class 3 felony range. The
     appellate court reasoned that the State failed to state its intention to seek an “enhanced”
     sentence prior to trial under section 111-3(c) of the Code of Criminal Procedure of
     1963 (725 ILCS 5/111-3(c) (West 2008)). 2012 IL App (1st) 110023, ¶ 32. We allowed
     the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2013). We now
     affirm in part and reverse in part the judgment of the appellate court.
¶2                                    BACKGROUND

¶3      Defendant, Christopher Easley, was charged by indictment with one count of
     aggravated discharge of a firearm, two counts of unlawful use of a weapon by a felon
     based on a previous conviction for unlawful use of a weapon by a felon, and four
     counts of aggravated unlawful use of a weapon.

¶4       Evidence at defendant’s bench trial established that on December 18, 2008, several
     police officers were conducting narcotics surveillance in the area of 925 East
     Sixty-fifth Street in Chicago. Officer Joseph Watson was working undercover as a
     surveillance officer and was seated alone in a covert vehicle positioned just north of
     Sixty-fifth Street facing southbound. At approximately 11:45 a.m., Officer Watson
     observed defendant exit a gray Nissan and walk in front of his car. Defendant was
     dressed in all black and wearing tan boots. Defendant’s hair was in braids. As
     defendant walked westbound past Officer Watson’s car, Officer Watson observed
     defendant pull a weapon from his right coat pocket. Defendant then started to shoot and
     ran toward another individual who was walking eastbound. The individual
     immediately turned around and ran in the opposite direction, while grabbing his side.
     Defendant fired six shots. After he fired the shots, defendant turned around and began
     to walk towards the gray Nissan. Officer Watson immediately radioed his team
     members to inform them that shots were fired. Officer Watson gave a description of
     defendant and stated that defendant had entered the front passenger seat of the gray
     vehicle. Officer Watson observed the car pull out and drive eastbound on Sixty-fifth
     Street. Once the car was a half block away, Officer Watson followed the vehicle.

¶5       Officer Brian Humpich, who was about two blocks away when he heard Officer
     Watson’s broadcast, followed the Nissan for four to five blocks. The Nissan stopped at
     Sixty-fifth and Dorchester. Defendant and another individual, later identified as
     Marshon Jackson, exited the vehicle and began to run.

¶6       Upon hearing the radio communication, Officer Edwin Utreras pursued the vehicle,
     following Officers Watson and Humpich. Officer Utreras saw defendant exit the
     Nissan and start to run. Defendant was wearing dark clothes, tan boots, and a skull cap.
     After Officer Utreras exited his vehicle and identified himself as a police officer,
     defendant stopped running. Officer Utreras apprehended defendant and immediately
     handcuffed him. Defendant said, “I didn’t shoot nobody. I just picked up the gun.”
     Officer Utreras had not asked defendant anything about the shooting. Officer Utreras
     performed a custodial search of defendant and recovered a .38 caliber handgun from

                                            -2-
     defendant’s right outer coat pocket. He examined the weapon and found six spent shell
     casings inside. The parties stipulated that Officer Utreras learned that defendant had a
     prior conviction for unlawful use of a weapon by a felon under case number 06 CR
     8260, and that the State had a certified copy of that conviction.

¶7       Defendant then testified that on December 18, at approximately 11:00 a.m., he was
     getting dressed at home. Defendant testified that he received a call from Carey
     Williams, and they agreed to meet at Seventy-third and Cottage Grove. Williams was
     the driver of a Nissan. Defendant stated that they met about 10 minutes later. Defendant
     testified that he was wearing all of the clothing that was previously testified to at trial,
     except the skull cap, because he had just paid $50 to get his hair done and did not want
     to mess it up. Defendant was wearing braids. Defendant testified that when he got into
     the car, Williams’s female companion was seated in front, next to Williams, and
     another man was in the backseat with defendant.

¶8        Defendant testified that as they drove down Sixty-fifth, Williams parked the car by
     a stop sign, got out of the car, and started to walk towards a mailbox. Defendant stated
     that he did not know why Williams got out of the car. Defendant testified that he was
     listening to music in the car when he heard gunshots. Defendant stated that he saw
     Williams chasing somebody and that Williams then got back into the car. Defendant
     testified that he did not jump out of the car because he was scared he would be shot.
     Defendant testified that Williams drove off and defendant said, “Let me the F out.”
     Defendant said he then noticed they were being chased and thought that Williams was
     shooting at somebody associated with the person. According to Defendant, once the car
     stopped, he immediately jumped out. Defendant said that he was holding his hands in
     the air when he got out of the car and that Officer Utreras apprehended him in the alley
     and told defendant to get on the ground, and defendant immediately complied.
     Defendant testified that Officer Utreras had his gun drawn, and that he kicked some
     snow in defendant’s face. Defendant said that he told the officer “I ain’t do it. I ain’t do
     nothing.” Defendant stated that he did not have a gun in his possession and that he
     never touched the gun. Defendant admitted that he had a prior conviction for unlawful
     use of a weapon. Defendant testified that Carey Williams had the gun and that he saw
     Williams shoot the gun. He further testified that he never told the police because “[he]
     did not have nothing to say to the police.” On cross-examination, defendant stated that
     he was wearing a white and blue jacket under a black jacket, a black t-shirt, jeans, and
     tan boots.



                                              -3-
¶9         In rebuttal, Officer Utreras testified that he was with Sergeant Roman when they
       took defendant into custody. Officer Utreras handcuffed defendant. Officer Utreras
       denied that he or any other officer kicked snow in defendant’s face. Officer Utreras
       recovered the weapon from defendant’s right outer coat pocket. Without asking him,
       defendant voluntarily stated “I didn’t shoot anyone. I just picked up the gun.”

¶ 10       Following the bench trial, defendant was convicted of two counts of unlawful use
       of a weapon by a felon and two counts of aggravated unlawful use of a weapon. The
       circuit court of Cook County merged both counts of aggravated unlawful use of a
       weapon and one count of unlawful use of a weapon by a felon into Count 2, the
       unlawful use of a weapon by a felon count, based on defendant’s possession of a
       handgun and a previous conviction for the felony offense of unlawful use of a weapon
       by a felon. Defendant was sentenced to nine years in prison.

¶ 11       On appeal, defendant argued that: (1) he was subjected to an improper double
       enhancement because his prior felony conviction for unlawful use of a weapon by a
       felon was used both as an element of his current offense of unlawful use of a weapon by
       a felon and to impose a harsher sentence; and (2) the trial court abused its discretion in
       sentencing him. The appellate court rejected those arguments. However, the appellate
       court agreed with defendant’s argument, raised for the first time during oral argument,
       that he was improperly sentenced as a Class 2 offender when the State charged him
       with the offense of unlawful use of a weapon as a felon without providing notice that it
       intended to charge him with an “enhanced” Class 2 offense. The appellate court held
       that defendant’s Class 2 sentence violated section 111-3(c) of the Code of Criminal
       Procedure. The appellate court therefore vacated defendant’s sentence and remanded to
       the trial court with directions to impose a Class 3 sentence between two and ten years
       because the State failed to give defendant notice of its intention to seek an “enhanced”
       sentence prior to trial. 2012 IL App (1st) 110023, ¶ 32. The appellate court also
       rejected defendant’s claim that he was subjected to an improper double enhancement
       because his prior felony conviction for unlawful use of a weapon by a felon was used
       both as an element of his current offense of unlawful use of a weapon by a felon and to
       impose a harsher sentence. 2012 IL App (1st) 110023, ¶ 16.



¶ 12                                       ANALYSIS

¶ 13      The issue in this case is whether the State was required to notify defendant,
       pursuant to section 111-3(c) of the Code of Criminal Procedure of 1963 (725 ILCS
                                               -4-
       5/111-3(c) (West 2008)), of its intent to seek an enhanced sentence. The parties
       disagree on whether such notice was required. On cross-appeal, defendant contends
       that he was subjected to improper double enhancement when the same prior felony
       conviction was used both to prove an element of the offense and to elevate the class of
       offense to a Class 2 offense and impose a harsher sentence. These issues present
       questions of statutory interpretation that constitute a legal matter, subject to de novo
       review. People v. Davison, 233 Ill. 2d 30, 40 (2009).

¶ 14       The State argues that no notice is required under section 111-3(c) of the Code of
       Criminal Procedure (725 ILCS 5/111-3(c) (West 2008)) because section 24-1.1(e) of
       the Criminal Code of 1961 (720 ILCS 5/24-1.1(e) (West 2008)) classifies a first
       unlawful use of a weapon by a felon conviction as a Class 3 felony, and a second or
       subsequent offense as a Class 2 felony. The State contends that a Class 2 conviction for
       a repeat conviction is not an “enhanced” sentence. Rather, the State claims, the prior
       felony conviction was set forth in the indictment, thus defendant was on notice that he
       was facing a Class 2 felony. According to the State, section 111-3(c) does not apply
       when the “enhancing” prior conviction is already an element of the offense and was
       expressly included in the charging instrument.

¶ 15       Defendant counters that he was improperly sentenced as a Class 2 offender when
       the State charged him with a Class 3 offense and did not give him notice pursuant to
       section 111-3(c) that it intended to charge him with an enhanced Class 2 offense.
       Accordingly, defendant asks this court to affirm the appellate court judgment vacating
       his sentence and remanding for Class 3 sentencing.

¶ 16       This court’s primary objective in interpreting a statute is to ascertain and give effect
       to the intent of the legislature. Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d
       433, 440 (2010). The most reliable indication of the legislature’s intent is the language
       of the statute, given its plain and ordinary meaning. Solon, 236 Ill. 2d at 440.

¶ 17       Section 111-3(c) of the Code of Criminal Procedure provides:

                   “(c) 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’
                                                -5-
              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 2008).

¶ 18        In People v. Jameson, 162 Ill. 2d 282, 290 (1994), this court stated that “[t]he
       legislature enacted section 111-3(c) to ensure that a defendant receive notice, before
       trial, of the offense with which he is charged.” (Emphasis in original.) In Jameson, this
       court delineated 26 statutes that House Sponsor Representative Homer referred to
       when explaining the statutes that section 111-3(c) would apply to. Jameson, 162 Ill. 2d
       at 289-90. We noted:

              “A general notice provision was needed because only 9 of the 26 statutes which
              permit the State to elevate an offense to a higher classification of offense based
              upon a prior conviction include a provision within the statute requiring the State
              to notify the defendant of its intent to elevate the classification of offense
              because of a prior conviction. [Citation.] The notice provisions in these nine
              statutes are almost identical to the notice provision contained in section 111-3.
              The remaining statutes, which similarly allow the State to increase the offense
              classification when a defendant has a prior conviction, do not contain a notice
              provision.” Jameson, 162 Ill. 2d at 289-90.

       In each of the 26 statutes delineated in Jameson, the prior conviction that allowed the
       State to increase the offense classification was not an element of the offense.

¶ 19       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 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.)
       725 ILCS 5/111-3(c) (West 2008). This language necessarily implies that section
       111-3(c) applies only when the prior conviction is not an element of the offense. We
       therefore agree with the State and conclude that notice under section 111-3(c) is not
       necessary when the prior conviction is a required element of the offense. Under these
       circumstances, only one class of felony conviction is possible for the offense as alleged
       in the charging instrument.

                                               -6-
¶ 20       Here, defendant was convicted of unlawful use of a weapon by a felon pursuant to
       section 24-1.1(a) of the Criminal Code of 1961 (720 ILCS 5/24-1.l(a) (West 2008)).
       Section 24-1.1(a) provides, in part:

                  “(a) It is unlawful for a person to knowingly possess on or about his person
              or on his land or in his own abode or fixed place of business any weapon
              prohibited under Section 24-1 of this Act or any firearm or any firearm
              ammunition if the person has been convicted of a felony under the laws of this
              State or any other jurisdiction.” 720 ILCS 5/24-1.1(a) (West 2008).

¶ 21      Defendant was sentenced as a Class 2 offender pursuant to section 24-1.1(e) of the
       Criminal Code. Section 24-1.1(e) provides, 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 in 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 and not more than 14 years. Violation of this
              Section by a person who is on parole or mandatory supervised release is a Class
              2 felony for which the person, if sentenced to a term of imprisonment, shall be
              sentenced to not less than 3 years and not more than 14 years. Violation of this
              Section by a person not confined in a penal institution is a Class X felony when
              the firearm possessed is a machine gun. Any person who violates this Section
              while confined in a penal institution, which is a facility of the Illinois
              Department of Corrections, is guilty of a Class 1 felony, if he possesses any
              weapon prohibited under Section 24-1 of this Code regardless of the intent with
              which he possesses it, a Class X felony if he possesses any firearm, firearm
              ammunition or explosive, and a Class X felony for which the offender shall be
              sentenced to not less than 12 years and not more than 50 years when the firearm
              possessed is a machine gun. A violation of this Section while wearing or in
              possession of body armor as defined in section 33F-1 is a Class X felony
                                              -7-
              punishable by a term of imprisonment of not less than 10 years and not more
              than 40 years. The possession of each firearm or firearm ammunition in
              violation of this Section constitutes a single and separate violation.” (Emphasis
              added.) 720 ILCS 5/24-1.1(e) (West 2008).

¶ 22       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.

¶ 23      As this court recognized in People v. White, 2011 IL 109616, ¶ 20:

              “A court does not have authority to impose a sentence that does not conform
              with statutory guidelines [citations] and a court exceeds its authority when it
              orders a lesser or greater sentence than that which the statute mandates
              [citation]. [Citation.] In such a case, the defendant’s sentence is illegal and
              void.”

¶ 24       Imposing a Class 3 sentence in this case was outside the applicable statutorily
       mandated sentencing range. If the legislature had intended section 111-3(c) to apply
       even when the prior conviction is an element of the offense, it would have clearly said
       so. Logically, such notice is unnecessary when the prior conviction is already a
       required element of the offense and only one class of felony is possible for that offense
       as alleged in the charging instrument. Accordingly, we hold that the appellate court
       erred when it vacated defendant’s Class 2 sentence for repeatedly violating the
       unlawful use of a weapon by a felon statute and remanded for imposition of an
       unauthorized Class 3 sentence on the grounds that the State failed to meet its obligation
       to notify defendant of its intention to seek an “enhanced” sentence.

¶ 25       We also find People v. Nowells, 2013 IL App (1st) 113209, persuasive on this
       issue. Nowells similarly held that the notice provisions of section 111-3(c) are
       inapplicable when the prior conviction is a required element of the offense. In Nowells,
       the defendant was convicted of unlawful use of a weapon by a felon. On appeal, the
       defendant argued that he was not provided notice pursuant to section 111-3(c) that he
       was being charged with a Class 2 offense of unlawful use of a weapon by a felon. The
                                               -8-
       appellate court rejected the defendant’s argument, holding that “[Section 111-3(c)]
       notice is not necessary when the prior conviction is a required element of the offense,
       such that only one class of felony conviction is possible for that offense as alleged in
       the charging instrument.” Nowells, 2013 IL App (1st) 113209, ¶ 26. The court reasoned
       that “[i]n looking at the language of this statute, it is clear to us that the section 111-3(c)
       notice provision with which defendant is concerned only applies when the prior
       conviction that would enhance the sentence is not already an element of the offense.”
       Nowells, 2013 IL App (1st) 113209, ¶ 26.

¶ 26       Here, defendant’s entire argument is based on the faulty premise that he was found
       guilty of a Class 3 offense but was given a Class 2 sentence. Defendant’s prior
       conviction for unlawful use of a weapon by a felon was already included as an element
       of the charged offense, and section 24-1.1(e) clearly dictates that the crime is a Class 2
       offense. See, e.g., People v. Powell, 2012 IL App (1st) 102363, ¶ 12 (“The flaw in
       defendant’s reasoning is that the sentencing court did not determine that defendant
       committed a Class 2 felony; the General Assembly made that determination in enacting
       section 24-1.1(e). *** The trial court did not impermissibly enhance defendant’s
       penalty, but simply imposed the special penalty range established by the legislature for
       defendant’s conduct.”). Simply stated, defendant was consistently charged with a Class
       2 offense, found guilty of a Class 2 offense, and sentenced as a Class 2 offender. There
       is no error here.

¶ 27      On cross-appeal, defendant raises an additional issue. Defendant argues that he was
       subjected to improper double enhancement where the same prior felony conviction was
       used both to prove an element of the offense and to elevate the class of offense to a
       Class 2 offense and impose a harsher sentence.

¶ 28       According to the State, no double enhancement occurred here. Defendant’s prior
       conviction was used only as an element of the offense, and he received the only class of
       offense and sentence he could receive. We agree. Again, defendant’s argument
       erroneously assumes that he was charged and convicted of a Class 3 offense and
       sentenced as a Class 2 offender. Because we have found that defendant was charged,
       convicted, and sentenced as a Class 2 offender, defendant’s double enhancement claim
       necessarily fails. The prior conviction for unlawful use of a weapon by a felon was used
       only once, as an element of the offense, and not also to enhance the offense.

¶ 29       In Powell, 2012 IL App (1st) 102363, the appellate court rejected an argument
       identical to defendant’s argument. Powell addressed the double enhancement concerns

                                                  -9-
       associated with sections 24-1.1(a) and (e). In Powell, the defendant alleged he was
       subject to improper double enhancement when the trial court sentenced him as a Class
       2 felon pursuant to section 24-1.1(e) by using a prior burglary conviction, where the
       same burglary conviction was used to enhance his unlawful use of a weapon conviction
       under section 24-1.1(a). Powell, 2012 IL App (1st) 102363, ¶ 6. The Powell court
       found the legislature clearly intended “to elevate the class of felony and the resulting
       penalty upon some aspect of the crime, as here, where the offender has a previous
       conviction for a forcible felony.” Powell, 2012 IL App (1st) 102363, ¶ 11. The Powell
       court disagreed with the defendant’s argument that he was subject to double
       enhancement. Rather, “[o]nce defendant was convicted of the Class 2 felony, no further
       enhancement occurred.” Powell, 2012 IL App (1st) 102363, ¶ 11. Thus, by sentencing
       the defendant according to section 24-1.1(e), the trial court simply imposed the
       “penalty range established by the legislature for defendant’s conduct” rather than
       “impermissibly enhanc[ing] defendant’s penalty.” Powell, 2012 IL App (1st) 102363,
       ¶ 12.

¶ 30       Similar to Powell, defendant’s prior conviction in this case of unlawful use of a
       weapon by a felon elevated the seriousness of his current unlawful use of a weapon by
       a felon conviction under section 24-1.1(e), providing that “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.” 720 ILCS
       5/24-1.1(e) (West 2008). Here, the trial court sentenced defendant to a Class 2 term of
       nine years, well within the range authorized by section 24-1.1(e). Accordingly, we
       affirm the appellate court’s holding that defendant’s sentence did not constitute an
       improper double enhancement.



¶ 31                                    CONCLUSION

¶ 32       For the foregoing reasons, we reverse that part of the appellate court’s judgment
       vacating defendant’s Class 2 sentence and remanding with directions to sentence
       defendant as a Class 3 offender. We affirm that part of the appellate court’s judgment
       holding that defendant’s sentence did not constitute improper double enhancement.



¶ 33      Appellate court judgment affirmed in part and reversed in part.

¶ 34      Circuit court judgment affirmed.
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