                                      2014 IL App (1st) 111497
                                            No. 1-11-1497
                                     Opinion filed April 30, 2014
                                                                                 THIRD DIVISION


     ___________________________________________________________________________

                                               IN THE
                                 APPELLATE COURT OF ILLINOIS
                                          FIRST DISTRICT
     ______________________________________________________________________________

     THE PEOPLE OF THE STATE OF ILLINOIS )                  Appeal from the Circuit Court
                                         )                  of Cook County.
          Plaintiff-Appellee,            )
                                         )
          v.                             )                  No. 10 CR 10373
                                         )
     VALENTINO WILBOURN,                 )
                                         )                  The Honorable
          Defendant-Appellant.           )                  Jorge Luis Alonso,
                                         )                  Judge presiding.


     ______________________________________________________________________________

                  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 charging instrument did not adequately notify him of the State's
     No. 1-11-1497

        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 wanted to challenge the sentence, he needed to file a motion to reconsider the sentence




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          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


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       No. 1-11-1497

          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 non-forcible 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

          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).




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¶ 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 (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 it

          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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