                          No. 3--08--0424
 _________________________________________________________________
Filed June 4, 2010
                              IN THE

                   APPELLATE COURT OF ILLINOIS

                          THIRD DISTRICT

                            A.D., 2010

THE PEOPLE OF THE STATE         ) Appeal from the Circuit Court
OF ILLINOIS,                    ) of the 10th Judicial Circuit,
                                 ) Peoria County, Illinois,
     Plaintiff-Appellee,        )
                                 )
     v.                         ) No. 07--CF--1305
                                 )
PHILLIP THOMAS ELLIS,           )   Honorable
                                 ) James E. Shadid,
     Defendant-Appellant.       ) Judge, Presiding.
 _________________________________________________________________

     JUSTICE SCHMIDT delivered the opinion of the court:
_________________________________________________________________

     A jury found defendant, Phillip Thomas Ellis, guilty of

aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(2) (West

2006)), aggravated unlawful use of a weapon (720 ILCS 5/24--

1.6(a)(1) (West 2006)), and unlawful possession of a weapon by a

felon (720 ILCS 5/24--1.1(a) (West 2006)).    The trial court

entered judgment on the first two counts, vacating the conviction

for unlawful possession of a weapon by a felon.     The trial court

sentenced defendant to concurrent terms of 9½ years' imprisonment

for aggravated discharge of a firearm and 6 years' imprisonment

for aggravated unlawful use of a weapon.     Defendant appeals,

arguing that: (1) the wrong conviction was vacated under the one-

act, one-crime doctrine; and (2) the trial court erred in relying

upon the threat of serious harm when sentencing defendant for
aggravated discharge of firearm because it was inherent in the

offense.    We affirm.

                                 FACTS

     Adrian Morris testified that he knew defendant.       On the night

of October 26, 2007, he gave an acquaintance a ride in his two-

door Chevrolet Monte Carlo to the Landmark Apartments on Martin

Luther King Drive in Peoria.     While they were parked in front of

the apartments, a vehicle passed Morris's vehicle on the driver's

side, braked, and backed up, stopping near Morris's vehicle.

Defendant, who was one of the passengers, was saying something to

Morris through the passenger window.       Morris turned down his radio

and opened his driver's side door.       He heard defendant say, "I

heard what you did to my baby mama."       Morris understood that

defendant was referring to the mother of defendant's child, who

was also Morris's on-and-off girlfriend.

     Morris and defendant both exited their vehicles.       Morris's

passenger and the occupants of defendant's car did not exit the

vehicles.   Morris went to grab defendant, and defendant removed a

firearm from the waistband of his pants and told Morris to get

back in the car.    As defendant started to raise his arm, Morris

got back in his car.     As Morris shut his door, he heard shots.

Morris dropped his seat back, trying to avoid getting hit by a

bullet, and sped away.     Morris heard three or four shots, and

heard two bullets strike his car.      Morris identified defendant

from a photo array.


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     Michael Clark, a Peoria police department detective,

testified that he met with Morris at around 2 a.m. on October 27,

2007, at the scene of the altercation on Martin Luther King Drive.

He observed two bullet strikes on the rear quarter panel of

Morris's vehicle, near the driver's side back window.       He also

recovered a bullet shell casing and a bullet fragment from the

scene.

     The jury found defendant guilty of all three counts.       At

sentencing, the State noted that count III, unlawful possession of

a weapon by a felon, should merge into count II, aggravated

unlawful use of a weapon.   The trial court agreed, entering

judgment only on counts I and II.

     At sentencing, the trial court considered the presentence

investigation report, arguments of counsel, defendant's statement,

and a statement by defendant's father.       It found in aggravation

that defendant's conduct threatened serious harm.       Specifically,

the trial court noted that it could not overlook the fact that

defendant's reckless actions threatened not only Morris, but also

Morris's passenger.   The trial court sentenced defendant to 9½

years' imprisonment for aggravated discharge of a firearm and 6

years' imprisonment for aggravated unlawful use of weapon by a

felon, to be served concurrently.

     Defendant filed a motion to reconsider the sentence, arguing

that the 9½ years was excessive.       The trial court denied the

motion.   Defendant appealed.


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                               ANALYSIS

                         I. One Act, One Crime

        On appeal, defendant first argues that the trial court

vacated the wrong conviction under one-act, one-crime principles.

Defendant contends that the offense of unlawful possession of a

weapon by a felon is a more serious offense than aggravated

unlawful use of a weapon.    Thus, defendant argues that the latter

should have been vacated.

        The one-act, one-crime doctrine prohibits multiple

convictions based on the same physical act.      People v. Rodriguez,

169 Ill. 2d 183, 661 N.E.2d 305 (1996).     If a defendant is

convicted of two offenses based on the same act, the conviction

for the less serious offense must be vacated.      People v. Lee, 213

Ill. 2d 218, 821 N.E.2d 307 (2004).     In determining which offense

is less serious, this court defers to the legislature.       Lee, 213

Ill. 2d 218, 821 N.E.2d 307.    We review this question of law de

novo.    People v. Johnson, 237 Ill. 2d 81 (2010).

        Section 24--1.6(d) of the Criminal Code of 1961 (Code)

provides that aggravated unlawful use of a weapon, by a person

previously convicted of a felony, is a Class 2 felony, with a

sentencing range of three to seven years' imprisonment.       720 ILCS

5/24--1.6(d) (West 2006).    Section 24--1.1(e) of the Code provides

that unlawful possession of a weapon by a felon is a Class 3

felony, with a sentencing range of 2 to 10 years' imprisonment.

720 ILCS 5/24--1.1(e) (West 2006).     Both offenses are subject to a


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term of mandatory supervised release, two years and one year,

respectively.   730 ILCS 5/5--8--1(d)(2), (d)(3) (West 2006).    The

Illinois Supreme Court recently specifically ruled on the relative

seriousness of the subject two offenses, aggravated unlawful use

of a weapon and unlawful possession of a weapon by a felon.

Johnson, 237 Ill. 2d 81.   In concluding that it was the

legislature's intent that unlawful possession of a weapon by a

felon is a less serious offense than aggravated unlawful use of a

weapon, it noted that:

                "[U]nlawful possession of a weapon by a

          felon was given a lower felony classification

          by the legislature, was made a probationable

          offense, and was made subject to a shorter

          period of mandatory supervised release.   By

          contrast, aggravated unlawful use of a weapon

          was given a higher felony classification by

          the legislature, was made a nonprobationable

          offense, was given a higher minimum sentence

          of imprisonment, and was made subject to a

          longer period of mandatory supervisory release."

          Johnson, 237 Ill. 2d at 99.

Defendant's convictions for aggravated discharge of a firearm and

aggravated unlawful use of a weapon are affirmed.

                           II. Sentencing

     Defendant contends that when imposing his sentence, the trial


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court improperly considered the aggravating factor that he caused

or threatened serious harm, arguing that it was an inherent

element of the offense of aggravated discharge of a firearm.

     Although a trial court has broad discretion when imposing a

sentence, it may not consider a factor implicit in the offense as

an aggravating factor in sentencing.   People v. Phelps, 211 Ill.

2d 1, 809 N.E.2d 1214 (2004).   In other words, a single factor

cannot be used as both an element of an offense and a basis for

imposing a harsher sentence than would otherwise have been

imposed.   Phelps, 211 Ill. 2d 1, 809 N.E.2d 1214.    However, a

sentence imposed by a trial court will not be reversed unless it

is clearly evident that the sentence was improperly imposed.

People v. Ward, 113 Ill. 2d 516, 499 N.E.2d 422 (1986).     In

determining whether the sentence was properly imposed, a reviewing

court looks to the record as a whole and should not focus on a few

words or statements of the trial court.   Ward, 113 Ill. 2d 516,

499 N.E.2d 422.   "The imposition of a criminal sentence should not

be reduced to a litany of accepted and approved but meaningless

words and phrases."   Ward, 113 Ill. 2d at 527, 499 N.E.2d at 426.



     Section 24--1.2(a)(2) of the Code provides that a person

commits aggravated discharge of a firearm when he knowingly or

intentionally "[d]ischarges a firearm in the direction of another

person or in the direction of a vehicle he or she knows or

reasonably should know to be occupied by a person."     720 ILCS


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5/24--1.2(a)(2) (West 2006).     The threat of serious harm is a

statutory aggravating factor.     730 ILCS 5/5--5--3.2(a)(1) (West

2006).    Defendant argues that the act of discharging a firearm in

the direction of another person always carries with it the threat

of serious harm.

        We find that the threat of serious harm is not an inherent

element of the offense of aggravated discharge of a firearm, which

only requires that a defendant fire in the direction of a person

or occupied car.    See People v. Torres, 269 Ill. App. 3d 339, 645

N.E.2d 1018 (1995).    Aggravated discharge of a firearm is a Class

1 felony, with a sentencing range of 4 to 15 years.     720 ILCS

5/24--1.2(a)(2), (b) (West 2006); 730 ILCS 5/5--8--1(a)(4) (West

2006).    Implicit in every offense of aggravated discharge of a

firearm is the threat of harm.     However, not every aggravated

discharge of a firearm threatens the same amount of harm.     Compare

the "warning shot" that is intended to go and does go six feet

over someone's head to a shot that sends a bullet flying within an

inch of someone's ear.    Equal threats of serious harm?   In this

case, it was not an inherent element of the offense that

defendant's gunshots threaten two people, although defendant's

conduct threatened both Morris and his passenger with serious

harm.    It was also not inherent in the offense that the bullets

actually strike the vehicle or that the bullets strike near a

window of the vehicle.

        The trial court acted within its discretion by considering


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the relative threat of harm caused by defendant's conduct.

Defendant's sentence is affirmed.

                            CONCLUSION

     For the foregoing reasons, the judgment of the circuit court

of Peoria County is affirmed.

     Affirmed.

     CARTER and LYTTON, JJ., concur.




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