                                               FIRST DIVISION
                                               November 5, 2007



No. 1-06-0445

THE PEOPLE OF THE STATE OF ILLINOIS,      )    Appeal from the
                                          )    Circuit Court of
     Plaintiff-Appellee,                  )    Cook County.
                                          )
            v.                            )
                                          )
CALVIN OWENS,                             )    Honorable
                                          )    Michael Brown,
     Defendant-Appellant.                 )    Judge Presiding.


     JUSTICE WOLFSON delivered the opinion of the court:

     Aggravated unlawful use of a weapon is a Class 4 offense.

Because the defendant was charged with committing that offense

after having been convicted of delivery of a controlled

substance, the indictment accused him of a Class 2 offense.   He

was convicted of the Class 2 offense, but, through enhancement,

he was sentenced as a Class X offender.   This appeal challenges

the trial court’s determination that the defendant was Class X

eligible.    For reasons that follow, we vacate the trial court’s

sentencing order and remand the cause for a new sentencing

hearing.

FACTS

     On May 27, 2005, defendant was charged with aggravated

unlawful use of a weapon (aggravated UUW) and unlawful use of a

weapon by a felon.   The aggravated UUW indictment alleged

defendant had previously been found guilty of a felony under case
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number 97 CR 32675 (delivery of a controlled substance), which

enhanced the severity of the charge from a Class 4 felony to a

Class 2 felony.   See 720 ILCS 5/24-1.6(d) (West 2004).     Defendant

was found guilty on both counts.      Defendant does not challenge

his conviction on appeal.

     During the sentencing hearing, the State introduced “three

other certified statements of conviction.”      They were not

included in the record on appeal.      The PSI report indicates

defendant had two Class 2 or higher felony convictions: for

delivery of a controlled substance and for narcotics possession.

The PSI report also lists several Class 3 and Class 4 felony

convictions.   The State asserted defendant’s criminal background

made him “class X mandatory.”

     During mitigation, defense counsel stressed defendant’s

history of employment and support of his children.      Defense

counsel said “this case is already enhanced, so we would ask that

you sentence him to the minimum.”      When the trial court asked

counsel what she meant by “already enhanced,” she answered:

“Well, normally a class 2 is a range of 3 to 7.      Because of some

previous convictions he’s mandatory and has sentencing so we

would ask you to sentence him to the minimum.”

     The trial court held defendant was “eligible for class X

sentence” because of his prior criminal history.      After merging



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the counts, the trial court sentenced defendant to a seven-year

prison term.    The court did not say which convictions it

considered in determining defendant’s Class X eligibility.    The

mittimus indicates defendant was sentenced to seven years for the

Class 2 felony of “AGG UUW/VEH/PREV Conviction.”    The mittimus

did not indicate he was sentenced as a Class X offender.

Defendant’s motion to reconsider sentence did not challenge his

eligibility for Class X sentencing.

DECISION

     Defendant contends the trial court erred in determining he

was eligible for Class X sentencing.    Defendant contends the

court’s finding relied on either an impermissible double

enhancement, or an insufficient number of Class 2 or greater

felony convictions.

     Initially, the State contends defendant forfeited this issue

by failing to object during the sentencing hearing or raise the

issue in his motion to reconsider sentence.    See People v. Dycus,

291 Ill. App. 3d 14, 15, 683 N.E.2d 200 (1997).    While we

recognize defendant did not properly preserve the issue for

review, we note that, pursuant to Supreme Court Rule 615(a),

plain errors or defects affecting substantial rights may be

addressed on review even when not properly preserved.    134 Ill.

2d R. 615(a).    “Sentencing issues are regarded as matters



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affecting a defendant’s substantial rights and are thus excepted

from the doctrine of waiver.”    People v. Baaree, 315 Ill. App. 3d

1049, 1050, 735 N.E.2d 720 (2000).

     Section 5-5-3(c)(8) of the Unified Code of Corrections

(Code) provides:

            “When a defendant over the age of 21 years,

            is convicted of a Class 1 or Class 2 felony,

            after having twice been convicted in any

            state or federal court of an offense that

            contains the same elements as an offense now

            classified in Illinois as a Class 2 or

            greater Class felony and such charges are

            separately brought and tried and arise out of

            different series of acts, such defendant

            shall be sentenced as a Class X offender.”

            730 ILCS 5/5-5-3(c)(8) (West 2004).

     A double enhancement occurs when either: “(1) a single

factor is used both as an element of an offense and as a basis

for imposing a harsher sentence than might otherwise have been

imposed, or (2) the same factor is used twice to elevate the

severity of the offense itself.”       People v. Guevara, 216 Ill. 2d

533, 545, 837 N.E.2d 901 (2005), citing      People v. Phelps, 211

Ill. 2d 1, 11-13, 809 N.E.2d 1214 (2004).      A double enhancement



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is not improper, however, if the legislature clearly expresses an

intent to allow double enhancement.    Phelps, 211 Ill. 2d at 15.

       In People v. Hobbs, 86 Ill. 2d 242, 427 N.E.2d 558 (1981),

the defendant’s misdemeanor theft conviction was enhanced to a

Class 4 felony based on a prior felony theft conviction.    The

same prior felony theft conviction was used to impose an extended

term sentence under section 5-5-3.2(b) of the Code.    Because the

prior felony theft conviction was an element of the current

felony theft charge, serving to enhance the offense from a

misdemeanor to a felony, the court concluded the use of the same

prior felony conviction to impose an extended sentence

constituted an impermissible double enhancement.    Hobbs, 86 Ill.

2d at 246.    The court held the use of the same prior conviction

violated section 5-5-3.2(b)’s requirement that the charges used

to enhance a sentence must be “separately brought and tried and

arise out of different series of acts.”    Hobbs, 86 Ill. 2d at

246.

       Although the State concedes the trial court engaged in

double enhancement in this case, it contends double enhancement

is proper when determining eligibility for Class X sentencing

because it is specifically authorized by the legislature in

section 5-5-3(c)(8).    Given the mandatory nature of Class X

sentencing, the State contends there is sufficiently clear



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legislative intent to permit double enhancement in this type of

case.    See People v. Thomas, 171 Ill. 2d 207, 222, 664 N.E.2d 76

(1996) (“We believe the appellate court correctly found the

legislature intended the phrase ‘defendant shall be sentenced as

a Class X offender’ to have a mandatory meaning, precluding any

exceptions.”)

     We find Thomas does not support the State’s contention.     In

Thomas, the court upheld Hobbs but limited its application to

“situations where the same prior conviction is used both to

enhance the class of an offense and to enhance the punishment for

that offense.”    Thomas, 171 Ill. 2d at 226.   Hobbs did not

address the issue presented in Thomas: whether a sentencing

court’s use of a prior conviction to impose a Class X sentence

precludes the court from considering the same prior conviction as

an aggravating factor under section 5-5-3.2(a)(3).

        Contrary to the State’s contention, we find nothing in the

statutory language of section 5-5-3(c)(8) of the Code expressly

indicates the legislature intended double enhancement to be

permissible in Class X sentencing.

     Here, the record reflects defendant had only two prior Class

2 or higher felony convictions–-convictions for delivery of a

controlled substance and for possession of a controlled

substance.    Similar to Hobbs, the use of the same felony to



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enhance both the class of the aggravated UUW offense and the

punishment for that offense amounted to an impermissible double

enhancement.   See Thomas, 171 Ill. 2d at 226; Hobbs, 86 Ill. 2d

at 246.

     Although the trial court did not specifically indicate which

prior convictions it used to determine Class X eligibility, it is

clear from the record before us that the trial court either

relied on an insufficient number of Class 2 or greater felony

convictions, or relied on an impermissible double enhancement to

find defendant eligible for Class X sentencing.   Either way, we

find the court erred in determining defendant was eligible for

Class X sentencing.   See 730 ILCS 5/5-5-3(c)(8) (West 2004);

Hobbs, 86 Ill. 2d at 246.

     We recognize defendant’s seven-year sentence still fell

within the permissible sentencing range for a Class 2 felony.

See 730 ILCS 5/5-8-1(a) (West 2004).   However, “even if a

sentence imposed under a wrong sentencing range fits within a

correct sentencing range, the sentence must be vacated due to the

trial court’s reliance on the wrong sentencing range in imposing

the sentence.”   People v. Brooks, 202 Ill. App. 3d 164, 172, 559

N.E.2d 859 (1990).

     We urge the trial court to make specific findings concerning

the convictions used to enhance the class of the offense and the



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sentence imposed on that enhanced offense.   A passing reference

to the presentence investigation report, without more, offers

little guidance for our review.

     Accordingly, we vacate the trial court’s sentencing order

and remand the cause for a new sentencing hearing.   We also order

the court on remand to correct the mittimus to reflect the proper

offense.

     Vacated and remanded.

     CAHILL, P.J., and R. GORDON, J., concur.




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