                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                         People v. Edgecombe, 2011 IL App (1st) 092690




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee,
Caption                      v. XAVIER EDGECOMBE, Petitioner-Appellant.



District & No.               First District, Sixth Division
                             Docket No. 1–09–2690


Filed                        June 30, 2011


Held                         The sentences imposed on defendant following a jury’s findings that
(Note: This syllabus         defendant was guilty of first-degree murder and attempted first-degree
constitutes no part of the   murder, and that during the commission of first-degree murder,
opinion of the court but     defendant personally discharged a firearm that proximately caused the
has been prepared by the     victim’s death were remanded for resentencing where the sentences
Reporter of Decisions for    were made to run cumulatively, rather than consecutively, and the
the convenience of the       sentencing order was unclear as to what weight in sentencing was given
reader.)                     to the fact that defendant received convictions on multiple counts when
                             he should have been sentenced on only one count of each offense;
                             therefore, the cause was remanded for resentencing on one count of
                             each offense, and the 25-year sentencing enhancement applied only to
                             the first-degree murder conviction and not the attempted first-degree
                             murder conviction.


Decision Under               Appeal from the Circuit Court of Cook County, No. 01–CR–27398; the
Review                       Hon. Douglas J. Simpson, Judge, presiding.



Judgment                     Remanded for resentencing.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Robert N. Markfield, all of
Appeal                     State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                           Kathleen Warnick, and Adam W. Delderfield, Assistant State’s
                           Attorneys, of counsel), for the People.


Panel                      JUSTICE R. GORDON delivered the judgment of the court, with
                           opinion.
                           Presiding Justice Garcia and Justice McBride concurred in the
                           judgement and opinion.



                                            OPINION

¶1          On January 21, 2005, defendant was found guilty by a jury of the first-degree murder of
        Jerome Anderson, of the attempted first-degree murder of Antwon Walker, and of the
        aggravated battery with a firearm of Antwon Walker. The jury also found that, during the
        commission of the first-degree murder, defendant personally discharged a firearm that
        proximately caused the death of Jerome Anderson.
¶2          On this postconviction appeal, both parties ask us to remand for resentencing and to
        decide the mandatory minimum cumulative sentence which defendant faces on resentencing.
        Defendant argues that the mandatory minimum cumulative sentence is 51 years. The
        minimum sentence for the first-degree murder is 45 years, which includes a 25-year
        enhancement for personally discharging a firearm. 730 ILCS 5/5–8–1(a)(1)(a) (West 2000)
        (20-year minimum for first-degree murder); 730 ILCS 5/5–8–1(a)(1)(d)(iii) (West 2000) (25-
        year enhancement). The minium sentence for attempted murder is six years. 720 ILCS
        5/8–4(c)(1) (West 2000) (same as the sentence for a Class X felony); 730 ILCS 5/5–4.5–25
        (West 2008) (the minimum sentence for a Class X felony is six years). With the two
        sentences running consecutively, defendant argues that the minimum cumulative sentence
        is 45 years plus 6 years, or 51 years.
¶3          The State argues that the minimum cumulative sentence is 76 years, which includes 45
        years for the first-degree murder and 31 years for the attempted murder. The State calculates
        the attempted murder sentence at 31 years, because it includes a 25-year enhancement for
        personally discharging a firearm during the offense. 720 ILCS 5/8–4(c)(1)(D) (West 2000)
        (25-year enhancement for personally discharging a firearm during attempted murder). Thus
        the issue that the parties ask this court to decide is whether the enhancement applies to the
        attempted murder charge.
¶4          Although a special verdict form was submitted to the jury allowing it to find that
        defendant personally discharged a firearm during the first-degree murder, the State did not

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       request such a similar verdict form for the attempted murder charge. The State also did not
       ask at the original sentencing for imposition of the enhancement for the attempted murder,
       and the State did not raise the issue on direct appeal or in its original briefs on this
       postconviction appeal.
¶5         For the reasons stated below, we remand for resentencing on one count of first-degree
       murder and one count of attempted murder. We also hold that, while a 25-year enhancement
       for personally discharging a firearm applies to the first-degree murder conviction, it does not
       apply to the attempted murder conviction.

¶6                                        BACKGROUND
¶7          Since we already described the evidence at trial in our prior order on direct appeal, and
       since the facts established at trial do not affect our decision today, we incorporate by
       reference our prior order. People v. Edgecombe, No. 1–06–2571 (2008) (unpublished order
       under Supreme Court Rule 23).
¶8          At the conclusion of defendant’s trial, the trial court held a jury instruction conference
       off the record. On the record, the trial court observed that the State had “submitted a packet”
       of proposed instructions, and the defense had no objections to “the existing jury
       instructions.” The instructions included a special verdict form which asked the jury to find
       whether “the fact does exist that, during the commission of the offense, of First-Degree
       Murder the defendant personally discharged a firearm which proximately caused the death
       of Jerome Anderson.” However, the instructions did not include a similar form with respect
       to the attempted murder of Antwon Walker.
¶9          As already noted above, defendant was found guilty on January 21, 2005, by a jury of the
       first-degree murder of Jerome Anderson, of the attempted first-degree murder of Antwon
       Walker, and of the aggravated battery with a firearm of Antwon Walker. The jury also found
       that, during the commission of the first-degree murder, defendant personally discharged a
       firearm that proximately caused the death of Jerome Anderson.
¶ 10        At the sentencing on February 16, 2005, the prosecutor brought to the court’s attention
       the fact that defendant was subject to a 25-year enhancement for the first-degree murder, but
       he made no such statement with respect to the attempted murder. The trial court orally stated
       that, on counts I, II and III, which all charged the first-degree murder of Jerome Anderson,
       defendant was sentenced to 55 years of imprisonment. On counts X and XI, which both
       concerned the shooting of Antwon Walker, the trial court sentenced defendant to 25 years
       of imprisonment. The trial court also orally stated that the 25-year sentence was to run
       concurrently with the 55-year sentence. However, the mittimus did not direct the concurrent
       running of the 55-year sentence and the 25-year sentence.
¶ 11        Defendant filed a direct appeal; and on May 12, 2008, this court affirmed the judgment
       of the trial court. Edgecombe, order at 24. On May 18, 2009, defendant filed a pro se petition
       for postconviction relief. After the trial court dismissed his petition, this postconviction
       appeal was filed on September 10, 2009.
¶ 12        In defendant’s original briefs on this postconviction appeal, defendant alleged that the
       trial court violated his right to a public trial by discussing a jury note in his absence. The

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       State conceded on appeal that defendant was, in fact, absent during the discussion of the jury
       note. Defendant also claimed that his appellate counsel was ineffective for failing to raise this
       issue on appeal.
¶ 13       The original briefs filed on this postconviction appeal reflected a confusion among the
       parties about whether the 55-year sentence for the murder of Jerome Anderson was to run
       concurrently or consecutively to the 25-year sentence for the shooting of Antwon Walker.
       Ironically, it was the State who stated that the sentences were to run concurrently and the
       defendant who stated that they were to run consecutively. In order to eliminate the apparent
       confusion and to clarify this important fact, this court ordered supplemental briefing about
       whether the mittimus should be corrected.
¶ 14       In the supplemental briefing, both parties agreed that, at the original sentencing,
       defendant should have been sentenced on only one count of first-degree murder and one
       count of attempted murder.1 In addition, both parties agreed that, at the original sentencing,
       the sentences should have been ordered to run consecutively.2
¶ 15       In its supplemental brief, the State argued that the sentencing order was void and thus we
       should remand for resentencing. In his supplemental brief, defendant argued that the
       sentencing order was merely voidable and that we should correct the mittimus to conform
       to what the trial court orally ordered, namely, concurrent sentences. Defendant conceded that
       the only way we could reach this result was by holding that a prior Illinois Supreme Court
       decision was no longer good law. However, at oral argument, defendant also asked us to
       remand for resentencing.
¶ 16       In its supplemental brief and at oral argument, the State asked us to find that defendant
       was subject to the sentencing enhancement for personally discharging a firearm during the
       attempted murder of Antwon Walker. The State argued that we could hold that the
       enhancement still applied, despite the absence of a special verdict form, since the jury would
       have had to find that defendant personally discharged a firearm toward Antwon Walker in
       order to have found him guilty of the aggravated battery with a firearm of Antwon Walker.
       As we explain below, the State’s argument overlooks the fact that the sentencing
       enhancement has additional elements.

¶ 17                                         ANALYSIS


               1
                The State’s supplemental brief stated that “[t]he People agree that petitioner killed one
       person, and that the aggravated battery with a firearm is based on the same act as petitioner’s
       attempted murder conviction. This Court should therefore amend the mittimus to reflect only one
       count of intentional, first-degree murder and one count of attempted murder.” Defendant’s
       supplemental brief also asked us “to vacate Edgecombe’s conviction and sentence for aggravated
       battery with a firearm.”
               2
                Defendant’s supplemental brief stated: “Edgecombe concedes that, under the relevant
       statute and case law, the [trial] court’s judgment in imposing concurrent, rather than consecutive
       terms, on Xavier Edgecombe, was erroneous.”

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¶ 18       On this postconviction appeal, the State asks us to remand for resentencing with
       instructions to the trial court to impose a 25-year sentencing enhancement for the attempted
       murder charge.
¶ 19       First, the State has forfeited this claim, many times over.3 People v. McKown, 236 Ill. 2d
       278, 308 (2010) (doctrine of forfeiture applies to the State as well as to the defendant);
       People v. Williams, 193 Ill. 2d 306, 347 (2000) (“The rules of waiver are applicable to the
       State as well as the defendant in criminal proceedings ***.”); People v. Henderson, 142 Ill.
       2d 258, 283 (1990); People v. O’Neal, 104 Ill. 2d 399, 407 (1984) (“The principle of waiver
       applies to the State as well as the defendant in a criminal case.”). Although a special verdict
       form was submitted to the jury allowing it to find that defendant personally discharged a
       firearm during the first-degree murder, the State did not request such a verdict form for the
       attempted murder. The State also did not ask at the original sentencing for imposition of the
       enhancement for the attempted murder, and the State did not raise the issue during the
       posttrial motions or on direct appeal or in its original briefs on this postconviction appeal.
       Thus, the State has forfeited this claim several times.
¶ 20       Second, and most importantly, the elements required for aggravated battery with a
       firearm are not the same as the elements required for the sentencing enhancement.
¶ 21       During jury instructions, the trial court instructed the jury as follows concerning the
       elements of aggravated battery with a firearm:
                    “To sustain the charge of aggravated battery with a firearm, the State must prove
               the following propositions:
                    First Proposition: That the defendant intentionally caused injury to Antwon
               Walker; and
                    Second Proposition: That the defendant did so by discharging a firearm.
                    Third Proposition: That the defendant was not justified in using the force which
               he used.” (Emphasis added.)
       By contrast, the sentencing enhancement, which the State now seeks in its supplemental
       brief, provides:
               “[A]n attempt to commit first-degree murder during which the person personally
               discharged a firearm that proximately caused great bodily harm, permanent
               disability, permanent disfigurement, or death to another person, is a Class X felony
               for which 25 years or up to a term of natural life shall be added to the term of
               imprisonment imposed by the court.” (Emphasis added.) 720 ILCS 5/8–4(c)(1)(D)
               (West 2000).
       An “injury” is not the same as “great bodily harm, permanent disability, permanent
       disfigurement, or death.” Thus, the elements for the aggravated battery charge and the
       elements for the sentencing enhancement are not the same.


               3
                In criminal cases, the State may appeal only on limited grounds, and sentencing error is not
       one of them. Ill. S. Ct. R. 604(a) (eff. July 1, 2006). By holding that the State forfeited the issue here,
       we do not mean to suggest that this claim would have fallen within one of these grounds.

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¶ 22       The elements of the attempted murder charge also do not supply the elements required
       for the sentencing enhancement. During jury instructions, the trial court instructed the jury
       about the elements of attempted murder, as follows:
                   “To sustain the charge of attempt first-degree murder, the State must prove the
               following propositions:
                   First Proposition: That the defendant performed an act which constituted a
               substantial step toward the killing of Antwon Walker; and
                   Second Proposition: That the defendant did so with the intent to kill an
               individual;
                   Third Proposition: That the defendant was not justified in using the force which
               he used.”
       The attempted murder charge required “a substantial step,” but not necessarily an injury, and
       certainly not the extreme injury required by the sentencing enhancement. Thus, since the
       elements for the convicted charges are not the same as the elements for the sentencing
       enhancement, we do not find the State’s argument persuasive.
¶ 23       The State cites in support one case: People v. Hopkins, 201 Ill. 2d 26 (2002). In Hopkins,
       prior to the effective date of the statute discussed above, a jury returned a verdict on an
       aggravated battery charge which included, as an element of the offense, the victim’s age.
       Hopkins, 201 Ill. 2d at 39. Our supreme court held that the trial court could then rely on the
       victim’s age as an aggravating factor when imposing an extended-term sentence for first-
       degree murder. Hopkins, 201 Ill. 2d at 39.
¶ 24       Hopkins is completely distinguishable from the case at bar. First, the conduct in Hopkins
       occurred after the effective date of the statute, quoted above. Second, in Hopkins, the precise
       element at issue was required for both the convicted offense and for the sentencing
       enhancement, namely, the victim’s age. Hopkins, 201 Ill. 2d at 39. By contrast, in the case
       at bar, the convicted offense required only an injury, while the sentencing enhancement
       required “great bodily harm, permanent disability, permanent disfigurement, or death.” 720
       ILCS 5/8–4(c)(1)(D) (West 2000). Thus, the elements were not the same.
¶ 25       Third, the fact at issue was never submitted to the jury as an aggravating factor for this
       offense, as Illinois law requires. Illinois law provides that “[n]otwithstanding any other
       provision of law *** if an alleged fact (other than the fact of a prior conviction) is not an
       element of an offense but is sought to be used to increase the range of penalties for the
       offense beyond the statutory maximum that could otherwise be imposed for the offense, the
       alleged fact must be included in the charging instrument ***, submitted to a trier of fact as
       an aggravating factor, and proved beyond a reasonable doubt.” (Emphasis added.) 725 ILCS
       5/111–3(c–5) (West 2000).
¶ 26       The fact at issue–namely, personal discharge of a firearm–was not “submitted to a trier
       of fact as an aggravating factor” for attempted murder. (Emphasis added.) 725 ILCS
       5/111–3(c–5) (West 2000). Both the jury instruction and the jury verdict form for attempted
       murder lacked any reference to the personal discharge of a firearm.
¶ 27       The State asks us to find that the fact was submitted to the jury when the jury was asked


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       to decide whether defendant committed aggravated battery with a firearm. However, the
       statute does not say simply “submitted to a trier of fact.” The statute says, if the State seeks
       “to increase the range of penalties for the offense,” the fact must be “submitted to a trier of
       fact as an aggravating factor.” (Emphasis added.) 725 ILCS 5/111–3(c–5) (West 2000). The
       State is asking us to rewrite the statute, and this we cannot do.
¶ 28        There is good reason to leave the statute as written. By requiring that the fact be included
       “as an aggravating factor” for the specific offense, the statute requires the jury to consider
       the specific elements required for an aggravating factor for that offense. As we already
       explained above, the elements are not the same. In addition, the statute provides the benefit
       of placing defendant on notice prior to his closing argument and sentencing as to the exact
       potential sentencing range he is facing.
¶ 29        Hopkins, the case cited by the State, does not discuss or apply the language of the statute.
       The conduct at issue in Hopkins occurred in 1995, and the relevant portion of the statute,
       namely, subsection (c–5), did not take effect until February 23, 2001. As a result, Hopkins
       does not aid us in interpreting the statute’s plain language.
¶ 30        For these reasons, we hold that, while a 25-year enhancement for personally discharging
       a firearm applies to the first-degree murder count, it does not apply to the attempted murder
       count.
¶ 31        Since a defendant has the right to file a direct appeal “from sentences entered on
       conviction,” defendant may file a direct appeal after the entry of the new sentencing order,
       if he so chooses. 730 ILCS 5/5–5–4.1 (West 2008) (“The defendant has the right of appeal
       in all cases from sentences entered on conviction” in felony cases.); People v. Lopez, 129 Ill.
       App. 3d 488, 491 (1984) (“Final judgment in a criminal case is not entered until the
       imposition of the sentence. The final judgment in a criminal case is the sentence.”). Our
       action today does not affect the claims that defendant made concerning the jury note. Since
       defendant may decide not to pursue these claims depending on the outcome of his
       resentencing, it is in the interest of judicial economy for us not to address these claims
       prematurely.
¶ 32        The State argues that the imposition of concurrent sentences for murder and attempted
       murder rendered the sentencing order void. The defendant concedes that, if we follow People
       v. Arna, 168 Ill. 2d 107 (1995), the sentences should run consecutively. However, the
       sentencing order is unclear. Also, since “we cannot determine what weight in sentencing was
       given by the trial court to the fact” that defendant received double the convictions that he
       should have, “defendant must be resentenced.” People v. Durdin, 312 Ill. App. 3d 4, 10
       (2000). For these reasons, we remand for resentencing. Since we agree with the parties that
       we must vacate defendant’s sentence and remand for a new sentencing hearing, we need not
       decide whether the sentences were void.

¶ 33                                     CONCLUSION
¶ 34       For the foregoing reasons, we remand for resentencing on one count of first-degree
       murder and one count of attempted murder. We also hold that, while a 25-year enhancement
       for personally discharging a firearm applies to the first-degree murder, it does not apply to

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       the attempted murder.
¶ 35       Remanded for resentencing.




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