                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Powell, 2012 IL App (1st) 102363




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


District & No.             First District, Second Division
                           Docket No. 1-10-2363


Rule 23 Order filed    January 31, 2012
Rule 23 Order
withdrawn              May 1, 2012
Modified Opinion filed
upon granting of       May 8, 2012
rehearing


Held                       The sentence imposed on defendant for unlawful use of a weapon by a
(Note: This syllabus       felon was upheld on appeal, despite defendant’s contention that the trial
constitutes no part of     court violated the prohibition against “double enhancement” by
the opinion of the court   considering his prior burglary conviction as both an element of the
but has been prepared      offense and a sentence enhancement, since an exception to the prohibition
by the Reporter of         against double enhancement occurs when the legislature clearly intends
Decisions for the          to enhance a penalty based on some aspect of the crime, and in the instant
convenience of the         case, the legislature’s enactment of section 24-1.1(a) of the Criminal
reader.)
                           Code elevated defendant’s offense to a Class 2 felony and once he was
                           convicted of a Class 2 felony, no further enhancement occurred.


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-CR-15613; the
Review                     Hon. Thomas M. Davy, Judge, presiding.


Judgment                   Affirmed.
Counsel on                   Michael J. Pelletier, Alan D. Goldberg, and Emily S. Wood, all of State
Appeal                       Appellate Defender’s Office, of Chicago, for appellant.

                             Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Amy
                             Watroba Kern, and Judy L. DeAngelis, Assistant State’s Attorneys, of
                             counsel), for the People.


Panel                        PRESIDING JUSTICE QUINN delivered the judgment of the court, with
                             opinion.
                             Justices Cunningham and Harris concurred in the judgment and opinion.



                                                 OPINION

¶1          Following a bench trial, defendant Wilson Powell was convicted of unlawful use of a
        weapon (UUW) by a felon after having been convicted previously of burglary and was
        sentenced to 4½ years in prison. On appeal, defendant contends the trial court impermissibly
        counted his prior burglary conviction as both an element of the offense and a sentence
        enhancement, resulting in an impermissible “double enhancement” of sentence.1 We affirm.

¶2                                        BACKGROUND
¶3          Defendant and a codefendant were arrested after a police officer observed each of them
        in possession of a sawed-off shotgun, and they were charged by information with multiple
        weapons violations. Count I of the information charged defendant with UUW by a felon
        pursuant to section 24-1.1(a) of the Criminal Code of 1961 (Code) (720 ILCS 5/24-1.1(a)
        (West 2008)) in that “he knowingly possessed on or about his person, a firearm, to wit: a
        shotgun, after having been previously convicted of the felony offense of burglary.” The trial
        evidence included the State’s submission to the court of a certified conviction of defendant
        for burglary. The State also presented testimony that a police officer observed defendant in
        possession of a shotgun having a barrel length of 13½ inches. The trial court found defendant
        guilty on three counts, including count I, which charged that defendant was in knowing
        possession of a shotgun after having been convicted previously of burglary.
¶4          At the subsequent sentencing hearing, the trial court stated: “The Defendant has been


                1
                  This decision was initially issued as an order under Supreme Court Rule 23 on January 31,
        2012. Ill. S. Ct. R. 23 (eff. July 1, 2011). Defendant filed a petition for rehearing. After considering
        the State’s answer to the petition for rehearing and defendant’s reply, we have withdrawn the Rule
        23 order and now issue this opinion, which contains new material found in paragraphs 13 through
        17.

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     convicted and I will impose sentence on Count 1, the unlawful use of weapon. That is a Class
     2 with a 3 to 14 year sentence range.” The court sentenced defendant only on that count,
     imposing a prison term of 4½ years. Defendant’s motion to reconsider sentence, in which he
     argued only that the sentence was “excessive in view of the Defendant’s background and the
     nature of his participation in the defense,” was denied.

¶5                                         ANALYSIS
¶6        On appeal, defendant contends that the trial court erred in sentencing him as a Class 2
     felon when, after using defendant’s prior burglary conviction to upgrade his UUW conviction
     from a misdemeanor2 to a felony, the court impermissibly reused the same prior burglary
     conviction to further enhance his sentence. The State asserts that defendant has forfeited his
     claim where his motion to reconsider sentence did not mention the issue he now raises for
     the first time. Defendant replies that the sentence imposed was void and may be challenged
     at any time and, alternatively, asks us to consider his claim under the first prong of the plain-
     error rule.
¶7        Where a defendant challenges his sentence as void, we will review the sentencing issue
     even though it was not properly preserved for review because a void sentence can be
     corrected at any time. People v. Arna, 168 Ill. 2d 107, 113 (1995). A sentencing issue is
     forfeited unless the defendant both objects to the error at the sentencing hearing and raises
     the objection in a postsentencing motion. People v. Freeman, 404 Ill. App. 3d 978, 994
     (2010) (citing People v. Hillier, 237 Ill. 2d 539, 544 (2010)). Nevertheless, forfeited claims
     related to sentencing issues may be reviewed for plain error. Hillier, 237 Ill. 2d at 545. The
     plain-error rule allows a reviewing court to consider trial errors not properly preserved in a
     criminal case when (1) the evidence is closely balanced or (2) the error is so fundamental and
     of such magnitude that the accused was denied his right to a fair trial. People v. Harvey, 211
     Ill. 2d 368, 387 (2004). Before we consider application of the plain-error doctrine, however,
     we must determine whether the trial court committed error. People v. Staple, 402 Ill. App.
     3d 1098, 1105 (2010).
¶8        A single factor cannot be used both as an element of an offense and as a basis for
     imposing a sentence harsher than might otherwise have been imposed. People v. Phelps, 211
     Ill. 2d 1, 11-12 (2004). Such dual use of a single factor is often referred to as a “double
     enhancement.” Id. at 12. However, an exception to the prohibition against double
     enhancement occurs where the legislature clearly intends to enhance the penalty based upon
     some aspect of the crime and that intention is clearly expressed. Id. (citing People v. Rissley,
     165 Ill. 2d 364, 390 (1995)). To determine whether the legislature intended such an
     enhancement, we look to the statute itself as the best indication of the legislature’s intent.
     Rissley, 165 Ill. 2d at 390-91. As the issue is one of statutory construction, the standard of


             2
               While another count charged, and the evidence showed, defendant possessed a shotgun with
     a barrel less than 18 inches in length, a Class 3 felony (720 ILCS 5/24-1(a)(7)(ii), (b) (West 2008)),
     count I charged defendant only with possession of a shotgun, a Class A misdemeanor (720 ILCS
     5/24-1(a)(4) (West 2008)), without specifying the length of its barrel.

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       review is de novo. Phelps, 211 Ill. 2d at 12.
¶9         The record confirms that defendant was sentenced as a Class 2 offender because of his
       prior conviction for burglary, a forcible felony. The relevant portion of section 24-1.1(a)
       states:
               “(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).
¶ 10       The pertinent portion of section 24-1.1(e) states:
               “(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, if sentenced to a term of imprisonment,
           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 *** is a Class 2 felony for 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 2008).
¶ 11       The language of the statute demonstrates that the legislature clearly expressed the intent
       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. Phelps, 211 Ill. 2d at 15.
       Burglary is a forcible felony (720 ILCS 5/2-8 (West 2008)), and section 24-1.1(e) (720 ILCS
       5/24-1.1(e) (West 2008)) specifically states that a violation of section 24-1.1 “by a person
       *** who has been convicted of a forcible felony *** is a Class 2 felony,” not a Class 3
       felony. Defendant’s conviction as a Class 2 felon and resulting Class 2 sentence were
       appropriate. Once defendant was convicted of the Class 2 felony, no further enhancement
       occurred.
¶ 12       Defendant erroneously interprets section 24-1.1(e) as a two-step process. He contends:
       “Ordinarily, UUW-felon is a Class Three Felony with a sentence of probation or two to 10
       years in prison.” Ignoring the remaining language of section 24-1.1(e), defendant concludes
       that “the court’s determination that Powell committed a non-probationable Class Two Felony
       was improper.” 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). Defendant’s prior burglary conviction elevated
       his commission of unlawful use of weapons from a Class A misdemeanor to a Class 2 felony,
       not to a Class 3 felony, and left the trial court with no option but to sentence defendant as a
       Class 2 felon within a range of 3 to 14 years in prison. The sentence of 4½ years was well
       within the mandated range. 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.
¶ 13       We reject defendant’s contention that the legislature’s intention, to impose a more severe
       penalty for an offender previously convicted of a forcible felony, is not clearly expressed in

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       section 24-1.1. The language of subsection 24-1.1(e) readily reflects the legislature’s intent
       to enhance the offense either to a Class 2 felony where the prior conviction is a forcible
       felony or to a Class 3 felony where it is not a forcible felony. In People v. Kelly, 347 Ill. App.
       3d 163 (2004), we rejected the same argument defendant advances here.
           “The plain language of section 24-1.1 reveals that the legislature’s intent was to keep
           dangerous weapons, including but not limited to firearms, out of the hands of convicted
           felons in any situation whether it be in the privacy of their own home or in a public place.
           [Citations.] In addition, the legislature intended to impose a harsher penalty for those
           felons in possession of a weapon when they have committed a forcible felony in the past
           because they necessarily had a history of using or threatening physical force or violence
           against another individual. 720 ILCS 5/24-1.1(e), 2-8 (West 2000).” (Emphases in
           original.) Id. at 167.
¶ 14       Defendant contends, however, that the “double enhancement” he claims occurred here
       has been ruled impermissible in other cases, referring us to People v. Owens, 377 Ill. App.
       3d 302 (2007), and People v. Chaney, 379 Ill. App. 3d 524 (2008).3 Owens and Chaney are
       factually inapposite, as both involved a second enhancement where Class X penalties were
       imposed.
¶ 15       In Chaney, the defendant was convicted on counts I and II of the indictment charging
       UUW by a felon, and on counts III and IV charging aggravated UUW which merged into
       counts I and II. As the defendant had been convicted previously of two Class 2 felonies, the
       court identified counts I and II as Class 2 felonies. Moreover, the court sentenced the
       defendant as a Class X offender on each charge. Significantly, on appeal we ruled that the
       defendant’s convictions for UUW by a felon, normally a Class 3 felony, properly resulted in
       the offenses constituting Class 2 felonies under section 24-1.1 because of his prior
       convictions. Chaney, 379 Ill. App. 3d at 529. However, we held that the defendant’s Class
       X sentences constituted impermissible double enhancement where at least one of the
       defendant’s prior felony convictions was used both to establish the UUW as a Class 2 felony
       and also to impose Class X sentencing. Id. at 532. In the instant case, there was only one
       enhancement, an upgrade of the offense to a Class 2 felony because of defendant’s prior
       forcible felony conviction. There was no further enhancement where the sentence imposed
       was well within the specified range for that Class 2 offense.
¶ 16       In Owens, the defendant was charged with one count of aggravated UUW under section
       24-1.6 of the Code (720 ILCS 5/24-1.6 (West 2004)) and one count of UUW by a felon. The
       aggravated UUW charge alleged that the defendant previously had been found guilty of a
       felony which enhanced the severity of the aggravated UUW charge from a Class 4 felony to
       a Class 2 felony. The defendant was found guilty on both counts. Stating that the defendant
       was eligible for a Class X sentence, the trial court sentenced him to a seven-year prison term.


               3
                Defendant also refers us to People v. Culpepper, No. 1-09-1590 (2010) (unpublished order
       under Supreme Court Rule 23). However, Illinois Supreme Court Rule 23(e) (eff. July 1, 2011)
       plainly provides that an appellate court’s unpublished order “is not precedential and may not be cited
       by any party.”

                                                    -5-
       On appeal, we held that “the use of the same felony to enhance both the class of the
       aggravated UUW offense and the punishment for that offense amounted to an impermissible
       double enhancement.” Owens, 377 Ill. App. 3d at 305. Section 24-1.1 was not the basis for
       the unsupportable double enhancement.
¶ 17       Unlike Owens and Chaney, the instant case did not involve the use by the State of a prior
       felony conviction first to enhance the charged offense from a lower class felony to a Class
       2 felony and then to make defendant eligible for a Class X sentence. Section 24-1.1 does not
       specifically provide for an upgrade to Class X. The section differentiates only between a
       Class 3 conviction and a Class 2 conviction based on the nature of the accused’s prior felony
       and, as our decision in Kelly illustrates, reflects the General Assembly’s intent to enhance
       the class of felony, with its concomitant harsher sentencing range, for felons in possession
       of a weapon who have committed a forcible felony in the past.

¶ 18                                     CONCLUSION
¶ 19      For the reasons stated above, the sentence imposed by the trial court was proper and not
       void. Because the trial court committed no error in sentencing defendant, we need not
       consider defendant’s contention under plain-error analysis. People v. Willhite, 399 Ill. App.
       3d 1191, 1197 (2010). Accordingly, we affirm the judgment of the trial court.

¶ 20      Affirmed.




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