                                  Illinois Official Reports

                                          Appellate Court



                             People v. Wilbourn, 2014 IL App (1st) 111497




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



District & No.               First District, Third Division
                             Docket No. 1-11-1497


Filed                        April 30, 2014



Held                         Although defendant waived his challenge to his sentence for unlawful
(Note: This syllabus         use of a weapon by a felon by failing to file a motion to reconsider, his
constitutes no part of the   claim that the sentence was improper was considered on the ground
opinion of the court but     that sentencing issues are matters affecting defendant’s substantial
has been prepared by the     rights and are excepted from the waiver doctrine, but defendant’s
Reporter of Decisions        challenge was rejected, since he was appropriately sentenced for a
for the convenience of       Class 2 felony pursuant to the decisions in Powell and Easley without
the reader.)
                             any improper double enhancement based on his prior conviction for
                             aggravated battery resulting in great bodily harm; furthermore, the
                             prior aggravated battery conviction was an element of the weapons
                             offense and the charging instrument did not have to inform defendant
                             that a sentence enhancement was sought based on the prior conviction.




Decision Under               Appeal from the Circuit Court of Cook County, No. 10-CR-10373; the
Review                       Hon. Jorge Luis Alonso, Judge, presiding.



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

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              John E. Nowak, and Jon Walters, Assistant State’s Attorneys, of
                              counsel), for the People.




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




                                               OPINION

¶1         Following a bench trial, the trial court found the defendant, Valentino Wilbourn, guilty of
       unlawful use of a weapon by a felon and possession of marijuana with intent to distribute. On
       appeal, Wilbourn seeks to challenge only the sentence on the weapons charge. Wilbourn
       argues that the charging instrument did not adequately notify him of the State’s intention to
       seek an enhanced sentence, and the court impermissibly used his prior conviction first as an
       element of the offense and second as grounds for enhancing his sentence. We find that our
       supreme court’s decision in People v. Easley, 2014 IL 115581, resolves both issues adversely
       to Wilbourn’s arguments. Therefore, we affirm the trial court’s judgment.

¶2                                          BACKGROUND
¶3         On April 30, 2010, Sergeant Martin Murphy and other police officers executed a search
       warrant on an apartment located on the south side of Chicago. When the officers entered the
       apartment, they saw a woman sitting at a kitchen table, a man just leaving the apartment, and
       Wilbourn coming out of a bathroom. The officers found 45 bags of marijuana on the kitchen
       table and a loaded gun hidden in the cushions of the sofa. After an officer reminded Wilbourn
       of his constitutional rights, Wilbourn told the officers that the gun and all of the marijuana
       belonged to him. The officers arrested Wilbourn.
¶4         Prosecutors charged Wilbourn with possession of more than 30 grams of marijuana with
       intent to distribute. See 720 ILCS 550/5(d) (West 2010). Because Wilbourn had a prior
       conviction from 2002 for aggravated battery resulting in great bodily harm, prosecutors also
       charged Wilbourn with unlawful use of a weapon by a felon. See 720 ILCS 5/24-1.1(a) (West
       2010).
¶5         The trial court, after a bench trial, found Wilbourn guilty on those charges. The court
       denied Wilbourn’s motion for a new trial and sentenced him to concurrent terms of five years
       in prison on each charge. At the sentencing hearing, the court admonished Wilbourn that if he


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       wanted to challenge the sentence, he needed to file a motion to reconsider the sentence within
       30 days of sentencing, and that if he failed to file such a motion, he would lose the right to
       challenge the sentence on appeal. See Ill. S. Ct. R. 605 (eff. Oct. 1, 2001).
¶6        Wilbourn filed no motion to reconsider the sentence. He filed a timely notice of appeal.

¶7                                            ANALYSIS
¶8                                              Waiver
¶9         In this appeal, Wilbourn seeks to challenge only the propriety of the sentence. The State
       contends that Wilbourn waived this issue by failing to file a motion to reconsider the sentence.
       See 730 ILCS 5/5-4.5-50(d) (West 2010); People v. Reed, 177 Ill. 2d 389, 393 (1997).
       However, this court has held that “[s]entencing issues are regarded as matters affecting a
       defendant’s substantial rights and are thus excepted from the doctrine of waiver.” People v.
       Baaree, 315 Ill. App. 3d 1049, 1050 (2000); see also People v. Owens, 377 Ill. App. 3d 302,
       304 (2007); People v. Carmichael, 343 Ill. App. 3d 855, 859 (2003); People v. Brials, 315 Ill.
       App. 3d 162, 170 (2000). We will review the sentencing issues on their merits.

¶ 10                                       Double Enhancement
¶ 11        Wilbourn argues that the trial court used the 2002 aggravated battery conviction to doubly
       enhance his sentence. First, the court used the 2002 conviction as an element of the Class 3
       offense of unlawful use of a weapon by a felon. Second, the court used the same prior
       conviction for a forcible felony to enhance the offense to a Class 2 felony. Section 24-1.1 of the
       Criminal Code of 1961 establishes that if a person guilty of a forcible felony knowingly
       possesses a prohibited weapon, that person has committed a Class 2 felony of unlawful use of a
       weapon by a felon. 720 ILCS 5/24-1.1(a), (e) (West 2010). Section 2-8 of the Criminal Code
       lists aggravated battery resulting in great bodily harm as a forcible felony. 720 ILCS 5/2-8
       (West 2010).
¶ 12        Wilbourn acknowledges that the appellate court in People v. Powell, 2012 IL App (1st)
       102363, decided the same issue. The court there held that section 24-1.1 creates a Class 3
       felony of unlawful use of a weapon by a person who committed a prior nonforcible felony, and
       a Class 2 felony of unlawful use of a weapon by a person who committed a prior forcible
       felony. Powell, 2012 IL App (1st) 102363, ¶ 12. The Powell court found that the trial court had
       not enhanced the penalty on Powell at all by imposing a sentence appropriate for a Class 2
       felony, because Powell had a prior conviction for a forcible felony when he possessed a
       weapon. Wilbourn argues that we should not follow Powell because the Powell court
       misconstrued the statute.
¶ 13        During the pendency of this appeal, our supreme court resolved the issue, as it approved the
       reasoning of Powell. Easley, 2014 IL 115581, ¶¶ 29-30. Following Powell and Easley, we find
       that the trial court here imposed a sentence appropriate for the Class 2 felony of unlawful use
       of a weapon by a felon who committed a prior forcible felony. The trial court did not doubly
       enhance Wilbourn’s sentence.

¶ 14                                     Charging Instrument
¶ 15      Next, Wilbourn argues that the trial court should not have sentenced him as a Class 2 felon,
       because the charging instrument did not specifically notify him that the State sought to

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       enhance the level of the charged weapons offense to a Class 2 felony based on the prior
       conviction. See 725 ILCS 5/111-3 (West 2010).
¶ 16       The Easley court rejected an indistinguishable argument. The Easley court held that “the
       notice provision applies only when the prior conviction that would enhance the sentence is not
       already an element of the offense.” Easley, 2014 IL 115581, ¶ 19. Because the prior conviction
       for aggravated battery resulting in great bodily harm is an element of the offense of unlawful
       use of a weapon by a felon, “notice under section 111-3(c) [of the Code of Criminal Procedure
       of 1963 (725 ILCS 5/111-3(c) (West 2008))] is not necessary.” Easley, 2014 IL 115581, ¶ 19.
¶ 17       Following Easley, we hold that the charging instrument permitted the court to sentence
       Wilbourn for the Class 2 felony of unlawful use of a weapon by a felon.

¶ 18                                         CONCLUSION
¶ 19       The Easley and Powell courts held that section 24-1.1 creates two separate levels of the
       offense of unlawful use of a weapon by a felon, and the possession of a weapon by a person
       who committed a prior forcible felony constitutes a Class 2 felony. Under Easley and Powell,
       the trial court properly sentenced Wilbourn for the Class 2 felony of unlawful use of a weapon
       by a felon. The prosecutor’s failure to specify, in the charging instrument, that he sought a
       conviction for a Class 2 felony did not violate section 111-3 of the Code of Criminal
       Procedure. Accordingly, we affirm the sentence the trial court imposed on the weapons charge.

¶ 20      Affirmed.




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