                                        2017 IL App (1st) 121645
                                                                              SECOND DIVISION
                                                                              June 13, 2017



                                                 No. 1-12-1645


     THE PEOPLE OF THE STATE OF ILLINOIS,                 )           Appeal from the
                                                          )           Circuit Court of
                           Plaintiff-Appellee,            )           Cook County, Illinois.
                                                          )
     v.                                                   )           No. 11 CR 1817
                                                          )
     RONALD CROSBY,                                       )           Honorable
                                                          )           Domenica A. Stephenson,
                           Defendant-Appellant.           )           Judge Presiding.

            JUSTICE MASON delivered the judgment of the court, with opinion.
            Presiding Justice Hyman and Justice Pucinski concurred in the judgment and opinion.

                                                  OPINION

¶1          This case comes to us following a jury trial, a direct appeal, a supervisory order, and

     three rounds of supplemental briefing. It has been over six years since defendant Ronald Crosby

     was charged with the crimes of armed habitual criminal (AHC) and unlawful use of a weapon by

     a felon (UUWF) and over five years since his conviction and sentencing for AHC. For the

     reasons that follow, we reverse Crosby’s conviction.

¶2                                          BACKGROUND

¶3          Crosby was charged with four counts of UUWF and AHC based on the events of

     December 31, 2010, when two Chicago police officers responded to a disturbance call at 1119

     South Mozart Street. The officers entered the building and found Crosby inside the third floor

     apartment, holding a handgun and attempting to empty it out. When the officers instructed
     No. 1-12-1645


     Crosby to drop the weapon and show his hands, Crosby fled, but he was caught after he jumped

     out of the bedroom window.

¶4          The charging instrument cited two prior felonies as the predicate offenses for Crosby’s

     AHC charge: a 2001 conviction for Class 4 AUUW and a 2003 conviction for aggravated battery

     of a police officer. With regard to the UUWF charges, two counts were premised on Crosby’s

     2001 conviction, and two counts were premised on the 2003 conviction. The State represents that

     before trial, it nolle prossed the UUWF count based on Crosby’s 2001 conviction for Class 4

     AUUW. 1 Ultimately, the State proceeded to trial on the AHC count as well as one count alleging

     UUWF based on Crosby’s possession of a firearm after having been convicted of aggravated

     battery in 2003. The parties entered into a stipulation that the two prior felonies were “qualifying

     offenses under the Armed Habitual Criminal Statute.”

¶5          Following a jury trial, Crosby was acquitted of UUWF and found guilty of being an

     AHC. On May 11, 2012, the trial court denied Crosby’s motion for a new trial and sentenced him

     to eight years’ imprisonment.

¶6          Crosby appealed, arguing (1) Judge Evelyn Clay abused her discretion when she denied

     Crosby the right to represent himself, (2) the trial court erred in permitting impeachment of

     defense witness Keona Montgomery, and (3) he was subjected to improper double enhancement

     where the same prior felony convictions were used to prove an element of the AHC offense and

     served as an aggravating factor in determining his sentence. Finally, in a supplemental brief filed

     after our supreme court’s decision in People v. Aguilar, 2013 IL 112116, Crosby argued for

     reversal of his AHC conviction because it was predicated in part on his earlier conviction for

     aggravated unlawful use of a weapon (AUUW) under a statute that the Aguilar court found to be

     unconstitutional.
            1
                Our review of the record revealed no support for this representation, but we accept it as true.

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¶7             On March 12, 2014, we reversed Crosby’s AHC conviction relying on Aguilar. People v.

       Crosby, 2014 IL App (1st) 121645-U, ¶ 4. In light of our conclusion, we did not address the

       other issues on appeal. Id. at ¶ 2.

¶8             On September 28, 2016, the supreme court denied the State’s petition for leave to appeal,

       but directed us to vacate our March 2014 order and reconsider it in light of People v. McFadden,

       2016 IL 117424. We permitted the parties to file supplemental briefs regarding McFadden.

¶9             Following the completion of briefing, we set this matter for oral argument in March 2017,

       at which point Crosby moved to file a third supplemental brief, arguing for the first time that his

       2003 conviction for aggravated battery to a peace officer could not serve as a predicate offense

       for his AHC conviction and seeking to be relieved of the effect of his trial counsel’s stipulation.

       The parties have now fully briefed this issue.

¶ 10                                                ANALYSIS

¶ 11           Of the numerous issues raised over the course of three years of briefing, we find the final

       issue argued—the effect of Crosby’s stipulation to his 2003 conviction of aggravated battery of a

       peace officer—dispositive, and so do not consider Crosby’s other arguments for reversal or a

       new trial.

¶ 12           A defendant commits the offense of AHC when he possesses a firearm after having been

       convicted of 2 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 ***; intimidation; aggravated




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              intimidation; gunrunning; home invasion; or aggravated battery with a firearm

              ***; or

                  (3) any violation of the Illinois Controlled Substances Act or the Cannabis

              Control Act that is punishable as a Class 3 felony or higher.” 720 ILCS 5/24-

              1.7(a) (West 2010).

¶ 13          Aggravated battery of a peace officer is not among the specified offenses listed under

       subsection (a)(2) or (a)(3) of section 1.7, nor does it qualify as a “forcible felony as defined in

       Section 2-8.” See People v. Smith, 2016 IL App (1st) 140496, ¶ 11; People v. Schmidt, 392 Ill.

       App. 3d 689, 695-96 (2009); see also 720 ILCS 5/2-8 (West 2010) (defining forcible 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 disfigurement and any other felony which

       involves the use or threat of physical force or violence against any individual.”). In Schmidt, we

       explained that because section 2-8 of the Code “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. Because Crosby’s

       conviction for aggravated battery of a peace officer was not based on “great bodily harm or

       permanent disability or disfigurement” and was not an “other felony,” it does not satisfy the

       definition of forcible felony, and it cannot serve as a predicate offense to support a conviction of

       AHC.

¶ 14          While Crosby, through counsel, stipulated in February 2012 that his conviction for

       aggravated battery of a peace officer was a qualifying offense for purposes of AHC, the State



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       No. 1-12-1645


       concedes that his conviction for AHC should nevertheless be reversed, as absent the stipulation,

       it could not have proved Crosby guilty of the crime.

¶ 15          But the State goes on to argue that we should reduce Crosby’s conviction for AHC to the

       lesser included offense of UUWF and remand to the trial court for sentencing. The State

       acknowledges that Crosby was “inexplicably” acquitted of UUWF based on his 2003 conviction,

       but contends that this does not preclude us from reducing his conviction to UUWF based on his

       2001 conviction. We disagree.

¶ 16          The UUWF statute prohibits a person who “has been convicted of a felony under the laws

       of this State or any other jurisdiction” from possessing a firearm or firearm ammunition on his

       person or on his land or place of business. 720 ILCS 5/24-1.1(a) (West 2010). Unlike the AHC

       statute, a defendant need not be convicted of certain limited prior felonies in order to be subject

       to its provisions. Instead, if a defendant has been convicted of any prior felony, the UUWF

       statute prohibits him from possessing a firearm or firearm ammunition. Id. As our supreme court

       explained in McFadden, the language of the UUWF statute “requires the State to prove only ‘the

       defendant’s felon status,’ ” and “does not require the State to prove the predicate offense at trial.”

       McFadden, 2016 IL 117424, ¶ 27 (quoting People v. Walker, 211 Ill. 2d 317, 337 (2004)).

¶ 17          Here, when the State elected to prosecute Crosby for UUWF premised on Crosby’s 2003

       conviction, it had to prove only (1) that Crosby possessed a firearm and (2) that Crosby had

       previously committed a felony. The jury did not believe the State met its burden of proof and

       acquitted Crosby of this charge. The State now asks that we enter a conviction and remand for

       sentencing on a UUWF offense that, though it is premised on a different prior felony conviction,

       still requires proof of the same two elements.




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       No. 1-12-1645


¶ 18          We agree with Crosby that this runs afoul of double jeopardy, which prohibits a second

       prosecution for the same offense following acquittal. People v. Henry, 204 Ill. 2d 267, 283

       (2003). To determine what constitutes the “same offense,” our supreme court has adopted the

       same-elements test first described in Blockburger v. United States, 284 U.S. 299 (1932). See

       People v. Sienkiewicz, 208 Ill. 2d 1, 4-5 (2003). The test inquires “whether each offense contains

       an element not contained in the other; if not, they are the same offense and double jeopardy bars

       additional punishment and successive prosecution.” Id. at 5. Here, both UUWF offenses—the

       one of which Crosby was acquitted (predicated on his 2003 felony), and the one the State now

       contends is a lesser-included offense of AHC (predicated on his 2001 felony)—contain the same

       elements, and the prohibition against double jeopardy precludes us from entering a conviction on

       the latter following Crosby’s acquittal of the former.

¶ 19          For these reasons, we reverse Crosby’s AHC conviction outright.

¶ 20                                            CONCLUSION

¶ 21          Reversed.




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