                                  Illinois Official Reports

                                          Appellate Court



                              People v. Pryor, 2013 IL App (1st) 121792




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


District & No.               First District, Fifth Division
                             Docket No. 1-12-1792


Filed                        December 27, 2013


Held                         Defendant’s sentence for unlawful use or possession of a weapon by a
(Note: This syllabus         felon was vacated and the cause was remanded for resentencing since
constitutes no part of the   the conviction was improperly enhanced from a Class 3 to a Class 2
opinion of the court but     offense where the charging instrument failed to give defendant the
has been prepared by the     notice required by section 111-3(c) of the Code of Criminal Procedure
Reporter of Decisions        that an enhanced sentence was being sought.
for the convenience of
the reader.)


Decision Under               Appeal from the Circuit Court of Cook County, No. 11-CR-3619; the
Review                       Hon. Stanley J. Sacks, Judge, presiding.



Judgment                     Sentence vacated; remanded for resentencing.


Counsel on                   Michael J. Pelletier, Alan D. Goldberg, and James J. Morrissey, all of
Appeal                       State Appellate Defender’s Office, of Chicago, for appellant.

                             Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                             John E. Nowak, Assistant State’s Attorneys, of counsel), for the
                             People.
     Panel                    PRESIDING JUSTICE GORDON delivered the judgment of the
                              court, with opinion.
                              Justice Taylor concurred in the judgment and opinion.
                              Justice Palmer dissented, with opinion.


                                             OPINION

¶1          Defendant Anthony Pryor was convicted of one count of unlawful use or possession of a
       weapon (UUW) by a felon and sentenced to five years in prison. On this direct appeal,
       defendant raises claims that challenge only his sentence. Defendant claims: (1) that his UUW
       conviction was improperly enhanced from a Class 3 to a Class 2 offense where the State’s
       charging instrument failed to provide the notice required by the Code of Criminal Procedure of
       1963 (725 ILCS 5/111-3(c) (West 2010)) when the State was seeking an enhanced
       classification of the offense; and (2) that defendant was subjected to an improper double
       jeopardy enhancement because the same prior felony conviction was used both to prove an
       element of the offense and to elevate the class of offense from a Class 3 to a Class 2 felony.
¶2          Since the second claim presents a constitutional issue and since we must always resolve a
       case on a nonconstitutional issue when possible, we must consider the statutory issue first. In
       re E.H., 224 Ill. 2d 172, 178 (2006) (“cases should be decided on nonconstitutional grounds
       whenever possible, reaching constitutional issues only as a last resort”).
¶3          In support of his statutory claim, defendant relies on two opinions recently issued by the
       First District which invalidated Class 2 convictions for UUW when the State failed to comply
       with the notice requirement in section 111-3(c) (725 ILCS 5/111-3(c) (West 2010)): People v.
       Easley, 2012 IL App (1st) 110023; and People v. Whalum, 2012 IL App (1st) 110959. The
       State asks us to find that Easley and Whalum were wrongly decided and cites in support People
       v. Nowells, 2013 IL App (1st) 113209, which is readily distinguishable for reasons we discuss
       below.
¶4          The Illinois Supreme Court granted a petition for leave to appeal in March 2013 in the
       Easley case, which is one of the cases relied on by defendant. People v. Easley, No. 115581
       (Ill. Mar. 27, 2013). Thus, we will have a definitive answer shortly by our supreme court on the
       question that we are called upon to answer today. Unless and until directed otherwise by our
       supreme court, we decline the State’s request to conclude that our own recent precedent was
       wrongly decided. Thus, as we have done before in two prior cases from this district, we vacate
       defendant’s sentence and remand for resentencing as a Class 3 felony.

¶5                                         BACKGROUND
¶6        Since there is no factual issue before us and no issue concerning defendant’s conviction,
       we set forth only the few relevant facts, which are the facts concerning the charging instrument
       and those concerning his sentencing.

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¶7         Defendant was charged by information with two counts of UUW by a felon and with four
       counts of aggravated UUW. Counts I and II, which were the two counts of UUW by a felon,
       were for possession of a firearm and firearm ammunition, respectively. Both counts were
       based on defendant’s “having been previously convicted of the felony offense of unlawful use
       of weapon, under case number 07 CR 18901.”
¶8         Defendant was convicted of count I, which stated:
                   “Anthony Pryor committed the offense of unlawful use or possession of a weapon
               by a felon in that he knowingly possessed on or about his person any firearm, to wit,
               handgun, after having been previously convicted of the felony offense of unlawful use
               of a weapon, under case number 07 CR 18901, under the laws of the State of Illinois, in
               violation of Chapter 720, Act 5, Section 24-1.1(a) of the Illinois Compiled Statutes
               1992 as amended ***.”
       The count did not state whether it was charging a Class 2 or Class 3 felony, and it did not state
       that the prosecutor was seeking an enhanced sentence.
¶9         The count, as written, appears to state that defendant’s prior conviction was a violation of
       “Chapter 720, Act 5, Section 24-1.1(a).” The count states that defendant was “previously
       convicted of the felony offense of unlawful use of a weapon, under case number 07 CR 18901,
       under the laws of the State of Illinois, in violation of Chapter 720, Act 5, Section 24-1.1(a) of
       the Illinois Compiled Statutes 1992 as amended.” However, according to defendant’s
       presentence report, defendant’s prior conviction was a violation of section 24-1, not section
       24-1.1.
¶ 10       During trial, the State’s evidence established that defendant possessed a gun on the night of
       February 7, 2011, and no issues are raised on appeal concerning the sufficiency of the State’s
       evidence.
¶ 11       Before the State rested, the prosecutor stated, and the defense counsel agreed, that there
       was “a stipulation by and between the parties that the defendant has a prior felony conviction
       under case number 07 CR 18901.” The stipulation did not state what the prior felony
       conviction was for, and the State did not introduce a certified copy of the conviction. The
       appellate record does not contain a certified copy of the conviction.
¶ 12       Although the stipulation did not describe the prior offense, the subsequent presentence
       report indicated that “Case # 07 CR 1891901” concerned a violation of “Statute
       720-5/24-1(a)(7)(ii).” 720 ILCS 5/24-1(a)(7)(ii) (West 2010) (prohibiting the possession of a
       short-barreled shotgun).
¶ 13       Following a bench trial, defendant was found guilty on January 3, 2012, of count I, quoted
       above. The trial court did not enter any findings on the remaining counts, and it sentenced
       defendant to a Class 2 sentence of five years in prison.
¶ 14       At sentencing on May 29, 2012, the following discussion about the correct class of
       sentence occurred:
                   “THE COURT: State, do you believe–It’s a Class Two, we know that, what’s the
               range on this kind of charge?
                   PROSECUTOR: Judge, it’s the State’s position it’s 3 to 14 years.
                                                   -3-
                   THE COURT: [Defense counsel], do you agree or disagree with the range?
                   DEFENSE COUNSEL: It’s 3 to 7 years.
                   THE COURT: It’s not 3 to 7. I think it’s at least 3 to 10 but we’ll see. Will
               somebody get me the file on Pryor, please, the one that’s involved with the gun charge,
               11 CR 3619.
                   PROSECUTOR: Judge, I have the statute.
                   THE COURT: What is it?
                   PROSECUTOR: 720 ILCS 5/24-1.1.
                   THE COURT: Okay. Thanks. It’s unlawful for any person to knowingly possess on
               or about his person on his own land or abode, et cetera, any weapon if convicted of a
               felony previously. So far that applies in this case. And then penalty, violation of this
               section for anyone I just read by a person not confined to a penal institution, he wasn’t
               confined at the time of the offense, it would be a Class Three felony. The person shall
               be sentenced to a term of not less than 2, no more than 10 years. Okay. So it’s 2 to 10.
               State agree or disagree?
                   PROSECUTOR: Judge, I disagree. I think if there’s a prior gun conviction it
               becomes 3 to 14.
                   THE COURT: Okay, let’s see if you’re right about that. The State is right, it’s a
               Class Two, it carries 3 to 14. It’s a very long sentencing paragraph, it takes about three
               inches, the print is small. [The prosecutor] is correct. It’s a Class Two, 3 to 14 as
               opposed to 2 to 10. It won’t be the top number anyway so it’s academic but it’s 3 to 14.
               ***
                   On the case before me, the weapons charge, 11 CR 3619, he’ll be sentenced to five
               years in the Department of Corrections.”
       When the trial court observed “the State is right,” defense counsel did not object. The trial
       court then sentenced defendant to a Class 2 sentence of five years in prison, and the mittimus
       also reflects a five-year sentence for a Class 2 felony. Defendant did not file a postsentencing
       motion and instead filed a notice of appeal on June 1, 2012; and this timely appeal followed.

¶ 15                                           ANALYSIS
¶ 16       On this direct appeal, defendant claims: (1) that his UUW conviction was improperly
       enhanced from a Class 3 to a Class 2 offense where the State’s charging instrument failed to
       provide the notice required by the Code of Criminal Procedure of 1963 (725 ILCS 5/111-3(c)
       (West 2010)) that the State was seeking an enhanced classification of the offense; and (2) that
       defendant was subjected to an improper double jeopardy enhancement because the same prior
       felony conviction was used both to prove an element of the offense and to elevate the class of
       offense from a Class 3 to a Class 2 felony.
¶ 17       As we previously observed, we must consider the statutory claim first, since we must
       always resolve a case on a nonconstitutional issue if possible. In re E.H., 224 Ill. 2d at 178
       (“cases should be decided on nonconstitutional grounds whenever possible, reaching
       constitutional issues only as a last resort”).
                                                      -4-
¶ 18       In recent cases, the First District has already ruled twice in defendant’s favor on the
       statutory issue: (1) People v. Easley, 2012 IL App (1st) 110023; and (2) People v. Whalum,
       2012 IL App (1st) 110959. In this appeal, the State asks us to find that this recent precedent
       was wrongly decided and cites in support dicta in People v. Nowells, 2013 IL App (1st)
       113209, which did not find these cases persuasive. For the reasons stated below, we remand for
       resentencing as a Class 3 felony.

¶ 19                                     I. Standard of Review
¶ 20       Whether the State’s charging instrument failed to provide the notice required by the Code
       of Criminal Procedure of 1963 (725 ILCS 5/111-3(c) (West 2010)) is a question of statutory
       interpretation, which this court reviews de novo. People v. Caballero, 228 Ill. 2d 79, 82 (2008).
       De novo consideration means we perform the same analysis that a trial judge would perform.
       People v. Colquitt, 2013 IL App (1st) 121138, ¶ 29.
¶ 21       When we interpret a statute, our primary objective is to determine and give effect to the
       legislature’s intent. Crawford Supply Co. v. Schwartz, 396 Ill. App. 3d 111, 117 (2009). The
       most reliable indication of the legislature’s intent is the plain language of the statute itself.
       Crawford, 396 Ill. App. 3d at 117. When the language of the statute is clear, we must apply it as
       written. Crawford, 396 Ill. App. 3d at 117.
¶ 22       According to well-established rules of statutory interpretation, we must interpret a statute
       so that all the language used in the statute is given some effect and so that no word, clause or
       sentence is “rendered meaningless [or] superfluous.” (Internal quotation marks omitted.)
       People v. Jones, 397 Ill. App. 3d 651, 657 (2009). See also People v. Jones, 214 Ill. 2d 187,
       193 (2005) (the statute must be “construed so that no part of it is rendered meaningless or
       superfluous”); Crawford, 396 Ill. App. 3d at 117.

¶ 23                                           II. Waiver
¶ 24       To preserve a sentencing issue for appellate review, a defendant must both object at
       sentencing and raise the issue in a postsentencing motion. People v. Hillier, 237 Ill. 2d 539,
       544 (2010); People v. Easley, 2012 IL App (1st) 110223, ¶ 16. On this appeal, defendant
       concedes that he failed to do either. However, he argues that we may still review this issue
       because his sentence is void and therefore can be reviewed at anytime. People v. Arna, 168 Ill.
       2d 107, 113 (1995). Since defendant’s 5-year sentence was well within the 2- to 10-year
       sentencing range for the Class 2 sentence which he seeks, we do not find his sentence void.
       Easley, 2012 IL App (1st) 110023, ¶ 21 (finding that defendant’s sentence was not void when
       defendant was sentenced “well within the range authorized by the statute”). “It is the function
       of the legislature to determine what is considered criminal conduct and to assign penalties for
       that conduct.” Easley, 2012 IL App (1st) 110023, ¶ 17 (citing People v. Taylor, 102 Ill. 2d 201,
       206 (1984)). Defendant fails to explain how his sentence exceeds the penalties assigned by the
       legislature for his conduct, and thus we do not find persuasive his voidness argument.
¶ 25       In the alternative, defendant asks us to review the error under the plain error doctrine. The
       plain error doctrine permits review of clear and obvious errors that were waived below. People

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       v. Piatkowski, 225 Ill. 2d 551, 565 (2007). “In the sentencing context, a defendant must then
       show 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. “[S]entencing issues are excepted from the doctrine of waiver when they affect a
       defendant’s substantial rights.” People v. Carmichael, 343 Ill. App. 3d 855, 859 (2003). In
       Carmichael, we held: “We find that the defendant’s contention that the offense of which he
       was convicted was improperly enhanced from a Class 3 felony to a Class 2 felony implicates
       substantial rights justifying review of the issue.” 343 Ill. App. 3d at 859.
¶ 26       In addition, in both of the recent cases, the defendants failed to preserve the error below
       and we still reviewed the issue, since the issue affected defendant’s substantial rights. Easley,
       2012 IL App (1st) 110023, ¶ 30; see also Whalum, 2012 IL App (1st) 110959, ¶ 34. In both
       cases, we found that the sentencing error warranted a remand for resentencing. Easley, 2012 IL
       App (1st) 110023, ¶ 34; see also Whalum, 2012 IL App (1st) 110959, ¶ 37.
¶ 27       Our first task, which we begin below, is to determine whether there was any error.
       Piatkowski, 225 Ill. 2d at 565.

¶ 28                                   III. Defendant’s Sentence
¶ 29       Defendant was charged and convicted of UUW by a felon which provides, in relevant part:
               “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 firearm *** if the person has
               been convicted of a felony ***.” 720 ILCS 5/24-1.1(a) (West 2010).
¶ 30       Subsection (e) of section 24-1.1 governs sentencing for this offense and it is, as the trial
       court observed at sentencing, a long and detailed paragraph. It describes, first, when a violation
       shall be a Class 3 felony:
               “Violation of this Section by a person not confined in a penal institution shall be a Class
               3 felony for which the person, if sentenced to a term of imprisonment, shall be
               sentenced to no less than 2 years and no more than 10 years ***.” 720 ILCS 5/24-1.1(e)
               (West 2010).
¶ 31       Next it provides that the sentence shall be enhanced to a Class 2 felony if the defendant was
       previously convicted of violating this same section:
               “[A]ny 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 2010).
       As noted above, count I, of which he was convicted, appeared to charge defendant with a
       “second or subsequent” violation of this same section, namely, section 24-1.1. 720 ILCS
       5/24-1.1(e) (West 2010). However, the presentence report stated that defendant’s prior
       violation was actually a violation of section 24-1. 720 ILCS 5/24-1 (West 2010).
¶ 32       Next, subsection (e) provides that the sentence shall be enhanced to a Class 2 felony if
       defendant was previously convicted of another firearms violation:
               “Violation of this Section by a person not confined in a penal institution who has been
               convicted of *** a felony violation of Article 24 of this Code *** is a Class 2 felony for
                                                    -6-
                which the person shall be sentenced to not less than 3 years and not more than 14
                years.” 720 ILCS 5/24-1.1(e) (West 2010).
       It is pursuant to the above sentence that the prosecutor requested a sentence enhancement. At
       sentencing, the prosecutor stated that the sentence should be enhanced due to “a prior gun
       conviction,” and the trial court agreed. Article 24 of the Criminal Code of 1961, referred to in
       the sentence above, is entitled “Deadly Weapons,” and describes gun offenses. 720 ILCS
       5/24-1 et seq. (West 2010).

¶ 33                                        IV. Notice Violation
¶ 34        Defendant claims that the State failed to provide him with notice of the State’s intent to
       seek an enhanced sentence, as required by section 111-3 of the Code of Criminal Procedure of
       1963. 725 ILCS 5/111-3 (West 2010).
¶ 35        Section 111-3 is entitled “Form of charge” and it proscribes what a charging instrument
       must state. 725 ILCS 5/111-3 (West 2010). Subsection (c) requires the charging document to
       specifically state when the prosecutor intends to seek an enhanced sentence. Section 111-3
       provides that, “[w]hen the State seeks an enhanced sentence because of a prior conviction, the
       charge shall also state the intention to seek an enhanced sentence.” 725 ILCS 5/111-3(c) (West
       2010). In the case at bar, there is no dispute that the prosecutor, at sentencing, sought “an
       enhanced sentence because of a prior conviction.” 725 ILCS 5/111-3(c) (West 2010). In
       addition, count I, which is quoted in the Background section above, did not “state the
       [prosecutor’s] intention to seek an enhanced sentence.” 725 ILCS 5/111-3(c) (West 2010).
       Thus, the State violated the plain language of section 111-3.
¶ 36        In addition to stating “the intention to seek an enhanced sentence,” section (c) also requires
       the charging instrument to state the prior conviction which is serving as the basis of the
       enhancement. 725 ILCS 5/111-3(c) (West 2010). Section (c) provides that the charge shall
       “state the intention to seek an enhanced sentence and shall state such prior conviction.”
       (Emphasis added.) 725 ILCS 5/111-3(c) (West 2010). The “and” in this sentence indicates that
       both are required–both a statement of the State’s intent to seek an enhanced sentence and a
       statement of what the prior conviction is. If a statement of only the prior conviction satisfied
       the requirements of the sentence, then the words about “intention” would become unnecessary,
       and we must interpret a statute in such a way as not to make any part superfluous. Jones, 397
       Ill. App. 3d at 657. Since we must construe a statute such that no word or clause is rendered
       meaningless or superfluous, we cannot read “intention” and “conviction” as synonymous.
       Jones, 397 Ill. App. 3d at 657. Thus, the fact that the case number of defendant’s prior
       conviction was mentioned somewhere in the charging instrument is not enough to satisfy the
       requirements of section (c).
¶ 37        Subsection (c) defines an enhanced sentence as follows:
                “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 ***.” 725 ILCS 5/111-3(c) (West 2010).


                                                    -7-
       In the case at bar, defendant’s “sentence” was “increased by a prior conviction from one
       classification of offense,” namely, Class 3, “to another higher level classification of offense,”
       namely, Class 2. Thus, according to the plain words of the statute, defendant received an
       “enhanced sentence” and, as discussed above, did not receive the notice required in the
       charging instrument.
¶ 38        As a result, there was error and, as we just explained, the error was clear and obvious from
       a plain reading of the statute. Piatkowski, 225 Ill. 2d at 565-66 (the error was clear and obvious
       from a plain reading of the instruction).
¶ 39        Even though defendant received a 5-year sentence which was well within the 2- to 10-year
       range for the lower Class 3 offense, that fact does not eliminate the section 111-3(c) violation
       or the effect on his substantial rights. In People v. Jameson, 162 Ill. 2d 282, 288 (1994), our
       supreme court held:
                    “When the language of section 111-3(c) is considered in light of the legislative
                history of that statute, it is evident that the legislature intended that statute to reach
                those instances in which a prior conviction elevates the classification of the offense
                with which a defendant is charged and convicted, rather than simply the sentence
                imposed.” (Emphasis in original.)
       Thus, it is “the classification of the offense” which is at issue in section (c), not the actual
       “sentence imposed.” (Emphasis in original.) Jameson, 162 Ill. 2d at 288. See Carmichael, 343
       Ill. App. 3d at 861-62 (rejecting the State’s argument that no remand for resentencing was
       needed since “the five-year sentence imposed still fell well below the maximum sentence for
       the Class 3 felony”).
¶ 40        As this court has previously observed, “even if a sentence imposed under a wrong
       sentencing range fits within a correct sentencing range, the sentence must be vacated due to the
       trial court’s reliance on the wrong sentencing range in imposing the sentence.” (Internal
       quotation marks omitted.) People v. Owens, 377 Ill. App. 3d 302, 305-06 (2007). Similarly, in
       Carmichael, we held: “where we are unable to determine whether the trial court’s mistaken
       belief that the Class 2 sentencing range of 3 to 14 years, rather than the Class 3 sentencing
       range of 2 to 10 years, applied affected the sentence it imposed, the appropriate course of
       action will generally be to vacate the defendant’s sentence and remand for resentencing.”
       Carmichael, 343 Ill. App. 3d at 862.
¶ 41        “Just as a trial judge has discretion in sentencing, he should be permitted [the discretion] to
       determine the effect, if any, of any errors” in sentencing. People v. Nunez, 263 Ill. App. 3d 740,
       758 (1994).
¶ 42        In two recent cases, this court has held that, when the State fails to state in the charging
       instrument its intention to seek an enhancement in the classification of offense from Class 3 to
       Class 2, the sentence must be vacated and remanded for sentencing as a Class 3 felony.
       Whalum, 2012 IL App (1st) 110959, ¶ 37; Easley, 2012 IL App (1st) 110023, ¶¶ 32, 34. In both
       prior cases, the offense at issue was the same offense at issue here: unlawful use or possession
       of weapons by a felon, in violation of section 24.1 (720 ILCS 5/24-1.1(a) (West 2010)). In both


                                                    -8-
       prior cases, as in our case, the offense had been waived below. With two cases from this district
       directly on point, we see no reason to depart from our established precedent.
¶ 43       The State cites in support People v. Nowells, 2013 IL App (1st) 113209, which did not find
       the Easley and Whalum cases persuasive. However, Nowells is readily distinguishable from the
       case at bar. In Nowells, the appellate court found that the defendant was placed on actual notice
       during trial about the type and class of the prior offense, which would then dictate the higher
       Class 2 sentence for his current offense. Nowells, 2013 IL App (1st) 113209, ¶ 29. The
       appellate court concluded that the defendant received notice about the type and class of his
       prior offense from “the certified statement of conviction and disposition in the No. 02 CR
       15722 case, which was entered into evidence at trial.” Nowells, 2013 IL App (1st) 113209,
       ¶ 29. By contrast, in the case at bar, no certified statement of conviction and disposition was
       entered into evidence at trial. In addition, as discussed above in the Background section,
       defendant’s information was ambiguous at best, and misleading at worst, about the statutory
       section violated in the prior offense. In contrast to the certified statement of conviction and
       disposition entered during the Nowells trial, the stipulation entered at defendant’s trial stated
       only that “defendant has a prior felony conviction under case number 07 CR 18901.” The
       stipulation did not even state what the prior felony conviction was for. Thus, Nowells is
       distinguishable in that, in the case at bar, defendant did not receive the notice during trial that
       the Nowells defendant did.
¶ 44       In addition, the Nowells court reads into the statute an exception which is nowhere stated in
       the statute itself. The Nowells court reads section 111-3(c) to state that “notice is not necessary
       when the prior conviction is a required element of the offense.” Nowells, 2013 IL App (1st)
       113209, ¶ 26. However, nowhere does the statute actually say that and we hesitate to read into
       a statute exceptions which the legislature did not author. Crawford, 396 Ill. App. 3d at 117
       (“[c]ourts should not depart from a statute’s plain language by reading into it exceptions”).
       Thus, in addition to finding Nowells readily distinguishable, we also do not find it persuasive.

¶ 45                                     CONCLUSION
¶ 46      For the foregoing reasons, we vacate defendant’s sentence and remand for resentencing.

¶ 47      Sentence vacated; remanded for resentencing.

¶ 48       JUSTICE PALMER, dissenting.
¶ 49       I respectfully dissent. The recent cases upon which the majority relies are the First
       District’s decisions in Easley, 2012 IL App (1st) 110023, and Whalum, 2012 IL App (1st)
       110959, where it was held that section 111-3(c) of the Code of Criminal Procedure of 1963
       (725 ILCS 5/111-3(c) (West 2010)) applies to prosecutions for unlawful use of a weapon by a
       felon (UUW by felon). Easley, 2012 IL App (1st) 110023, ¶ 32; Whalum, 2012 IL App (1st)
       110959, ¶ 37. This, however, is far from a settled question in the First District.
¶ 50       Easley and Whalum were decided on the same day, by the same division (Second) and
       written by the same author. More recently, however, in Nowells, 2013 IL App (1st) 113209,

                                                    -9-
       another division of the First District (Fourth) explicitly rejected the holdings in Easley and
       Whalum in finding that section 111-3(c) does not apply to UUW by felon. Nowells, 2013 IL
       App (1st) 113209, ¶¶ 26-30. Contrary to the majority’s contention, I find that Nowells is not
       distinguishable in any meaningful way. As a result, I find the more useful approach is to
       recognize that there is a split of authority in the First District and then to discuss what I find to
       be the more reasoned position.
¶ 51       As I noted above, I do not believe that Nowells is distinguishable in any meaningful way.
       First, our Fourth Division explicitly rejected the holdings in Easley and Whalum. Nowells,
       2013 IL App (1st) 113209, ¶ 28. Second, the majority finds that Nowells is distinguishable in
       that, there, the appellate court found as a factual matter that the defendant was placed on actual
       notice about the type and class of the prior offense being relied upon by the State. However,
       actual notice of the prior offense alone would not be enough to satisfy the requirements of
       section 111-3(c). In fact, the majority today makes much of the fact that section 111-3(c) has
       two requirements and points to the word “and” in the section. The majority noted that section
       111-3(c) provides that the charge shall “state the intention to seek an enhanced sentence and
       shall state such prior conviction.” (Emphasis added.) 725 ILCS 5/111-3(c) (West 2010). In
       Nowells, while the court found that notice of the prior conviction was given, there was no
       notice given of the intention to seek an enhanced sentence. As a result, section 111-3(c) was
       not satisfied. Nevertheless, and even though section 111-3(c) was not satisfied, the Nowells
       court affirmed the judgment of the trial court imposing the sentence on the greater class felony.
       Nowells, 2013 IL App (1st) 113209, ¶ 30. Simply put, Nowells found that, as a matter of law,
       section 111-3(c) did not apply. Consequently, in that this holding was essential to the outcome
       of the case, I also must respectfully disagree with the majority’s characterization of it as dicta.
       See Exelon Corp. v. Department of Revenue, 234 Ill. 2d 266, 277-78 (2009).
¶ 52       To put a finer point on this, the same situation was present in Easley. The Easley court
       noted that the parties had agreed that the State had given prior notice of the offense it was
       relying on, but it did not state its intention to seek an enhanced sentence. Easley, 2012 IL App
       (1st) 110023, ¶ 32. As a result, the Easley panel held that section 111-3(c) was not satisfied and
       reversal was required. Easley, 2012 IL App (1st) 110023, ¶ 32. 1 Nowells is not distinguishable
       on the grounds cited by the majority. There simply exists a split of authority.
¶ 53       I believe that Nowells is correctly decided. In the case of UUW by felon, the prior
       conviction is not an enhancement; it is an element of the offense. It, therefore, defines the
       offense and establishes its class. The majority states that Nowells, in finding that section
       111-3(c) does not apply to prior convictions that are elements of the offense, has “read[ ] into
       the statute an exception which is nowhere stated in the statute itself.” Supra ¶ 44. I disagree.
¶ 54       The majority fails to set forth the statute in its entirety. Section 111-3(c) provides in full:
                “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

           1
           Unfortunately, in Whalum, the appellate court did not discuss whether notice of the prior offense
       was given.
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                 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.” (Emphasis added.) 725 ILCS 5/111-3(c) (West 2010).
       The Nowells court relied on the above italicized sentence of section 111-3(c) and found that it
       necessarily implies that the section only applies when the prior conviction is not already an
       element of the offense. Nowells, 2013 IL App (1st) 113209, ¶ 26.
¶ 55        Illinois law has long held that, in prosecutions for the offense of UUW by felon, the prior
       felony conviction is an element of the offense which must be proven beyond a reasonable
       doubt by the State before the jury in its case in chief. See People v. Walker, 211 Ill. 2d 317
       (2004) (recognizing that the prior felony conviction is an element of the offense of our UUW
       by felon statute and adopting the reasoning of Old Chief v. United States, 519 U.S. 172
       (1997)). I feel that the majority’s decision today fails to account for the underlying logic of Old
       Chief adopted by our supreme court in Walker.
¶ 56        Old Chief and Walker held that, in situations where a prior felony conviction was an
       element of the offense and had to be proven before a jury, it was error not to accept a
       defendant’s offer to stipulate before the jury as to the fact of the conviction. Walker, 211 Ill. 2d
       at 338, 341 (citing Old Chief, 519 U.S. 172). This was done to lessen the prejudicial impact of
       telling the jury about the nature of the prior felony while at the same time informing the jury of
       its existence. Walker, 211 Ill. 2d at 341 (citing Old Chief, 519 U.S. 172). If the above-cited
       provision of section 111-3(c) applied to UUW by felon prosecutions whereby “the fact of such
       prior conviction *** are not elements of the offense and may not be disclosed to the jury during
       trial” (725 ILCS 5/111-3(c) (West 2010)), then the Walker decision adopting Old Chief was a
       wholly unnecessary exercise. That, of course, is not the case. Those cases were decided
       because our statute provides that the fact of the prior felony conviction is an element of the
       offense that must be proven before the jury. As section 111-3(c) provides that “the fact of such
       prior conviction *** are not elements of the offense and may not be disclosed to the jury during
       trial,” these statutory provisions are incompatible. I believe, therefore, that section 111-3(c)
       does not apply to UUW by felon and would not reverse the judgment of the trial court on that
       basis.
¶ 57        As I would not reverse on statutory grounds, as the majority has, I would turn our attention
       to the constitutional claim that the defendant has been subjected to an impermissible double
       enhancement. I agree with the reasoning of our court in People v. Powell, 2012 IL App (1st)
       102363, that no impermissible double enhancement occurs when the legislature clearly
       intends, as it did here, to enhance the penalty based upon some aspect of the crime and that
       intention is clearly expressed. Powell, 2012 IL App (1st) 102363, ¶¶ 12-17.
¶ 58        Accordingly, in the matter at bar, I would affirm the judgment of the trial court and, thus, I
       respectfully dissent.
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