Filed 5/13/10                NO. 4-08-0752

                     IN THE APPELLATE COURT

                              OF ILLINOIS

                            FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Vermilion County
DENNIS GRIHAM,                         )    No. 08CF242
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    Nancy S. Fahey,
                                       )    Judge Presiding.
_________________________________________________________________

          JUSTICE KNECHT delivered the opinion of the court:

          On August 20, 2008, a jury convicted defendant, Dennis

Griham, of unlawful possession of a weapon by a felon (720 ILCS

5/24-1.1(a) (West 2008)).    The offense was elevated to a Class 2

felony (720 ILCS 5/24-1.1(e) (West 2008)) due to defendant’s 1996

Class 2 felony conviction under the Controlled Substances Act

(720 ILCS 570/401(d) (West 1996)).    Defendant also has a 1997

Class 2 felony burglary conviction and a 1993 Class 3 felony

conviction for unlawful possession of a weapon by a felon.    On

October 3, 2008, the trial court sentenced defendant to 25 years’

imprisonment as a Class X offender based upon defendant’s pair of

prior Class 2 felony convictions.    730 ILCS 5/5-5-3(c)(8) (West

2008).

          Defendant appeals, arguing (1) his conviction should be

reversed because the State failed to prove guilt beyond a reason-

able doubt since both eyewitnesses recanted their earlier state-
ments, and (2) the sentence was an improper double enhancement.

            We affirm in part, vacate in part, and remand with

directions.

                            I. BACKGROUND

            On May 1, 2008, Danville police responded to a call

reporting a man with a gun in a gray Jeep.    Defendant matched the

description of the gunman given to the police.    Police confronted

defendant while he was sitting in a gray Jeep parked on the

street in front of his home.    Defendant’s home was approximately

six blocks from the location where the gunman was originally

reported.    When the police told defendant to stop, he responded

by running into his home.    Defendant’s wife allowed police into

the home, where defendant was found hiding in the attic.    Defen-

dant was arrested.    Police searched the home and Jeep, but no gun

was found.

            That same day, Travis Lester gave a recorded statement

to the police stating defendant threatened him with a handgun in

his driveway.    In his recorded statement, Travis said while

defendant pointed a handgun at him, defendant stated if Travis’s

brother or cousin testified in court against defendant’s friends

regarding an earlier robbery, there "was gonna be some

bloodsheddin’."    Paulette Lester, Travis’s sister, also gave a

recorded statement to police on May 1, 2008.    In her recorded

statement, Paulette said she saw defendant pull a handgun on


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Travis.

           At trial, the recorded statements of both Travis and

Paulette were admitted into evidence and played for the jury.       In

his actual trial testimony, Travis stated he had never seen

defendant in possession of a handgun.     When impeached with

portions of his recorded statement, Travis repeatedly answered he

did not remember saying such things earlier.     In her trial

testimony, Paulette stated the handgun possessed by defendant was

a toy and not a real firearm.   Paulette had never previously made

such a claim.

           On this evidence, the jury convicted defendant as

stated.   At the October 2008 sentencing hearing, defendant told

the court, "I did not know I was *** facing 6 to 30 years.      I

would have [accepted a plea bargain] if I’d [known] that [I

could] be enhanced to [a] Class X felony."     Defendant was sen-

tenced to 25 years’ imprisonment.

           This appeal followed.

                           II. ANALYSIS

                   A. Reasonable-Doubt Challenge

           Defendant argues he was not proven guilty beyond a

reasonable doubt because both eyewitnesses recanted their earlier

statements at trial.

           When reviewing the sufficiency of the evidence, we will

not reverse a conviction where when viewing the evidence in the


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light most favorable to the State, any rational finder of fact

could have found the defendant guilty beyond a reasonable doubt.

People v. Ross, 229 Ill. 2d 255, 272, 891 N.E.2d 865, 876 (2008).

           We conclude the jury in this case could have found the

prior inconsistent recorded statements of Travis and Paulette

were more believable than their testimony at trial.   See People

v. Curtis, 296 Ill. App. 3d 991, 999-1000, 696 N.E.2d 372, 378-79

(1998).   The jury could have believed Travis and Paulette changed

their testimony solely in response to threats by defendant or

persons wishing to help defendant avoid conviction.

                  B. Improper Double Enhancement

           Defendant also argues, for the first time on appeal,

his sentence was an improper double enhancement because the same

1996 Class 2 felony conviction under the Controlled Substances

Act was used both to elevate the instant charge to a Class 2

felony and to enhance his sentence as a Class X offender.

Defendant requests vacature of his Class X sentence and remand

for resentencing within the 3- to 14-year Class 2 penalty range

(720 ILCS 5/24-1.1(e) (West 2008)).

           The information charging defendant only mentions the

1996 Class 2 felony conviction under the Controlled Substances

Act.   Defendant is correct, the same conviction was used to

establish guilt and enhance his sentence.   People v. Gonzalez,

151 Ill. 2d 79, 86, 600 N.E.2d 1189, 1192 (1992).   Defendant was


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sentenced as a Class X offender because he had a 1997 Class 2

burglary conviction and the 1996 Class 2 conviction under the

Controlled Substances Act.

          The State argues defendant’s 1993 felony conviction for

unlawful possession of a weapon by a felon is sufficient to

elevate the instant conviction to a Class 2 felony.   Thus, use of

the 1997 Class 2 burglary conviction and 1996 Class 2 conviction

under the Controlled Substances Act to then sentence defendant as

a Class X offender would not be an improper double enhancement

because the Controlled Substances Act conviction was not needed

to establish guilt.    Defendant counters the State should be bound

by the exact wording of the charge in the information.

          A double enhancement is not improper if the legislature

clearly expresses an intent to allow it.    People v. Owens, 377

Ill. App. 3d 302, 304, 878 N.E.2d 1189, 1191-92 (2007).   However,

the First District has held "nothing in the statutory language of

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

Code) (730 ILCS 5/5-5-3(c)(8) (West 2008))] expressly indicates

the legislature intended double enhancement to be permissible in

Class X sentencing."    Owens, 377 Ill. App. 3d at 305, 878 N.E.2d

at 1192; see also People v. Chaney, 379 Ill. App. 3d 524, 532,

884 N.E.2d 783, 789 (2008).

          Defendant was not eligible to be sentenced as a Class X

offender pursuant to section 5-5-3(c)(8) of the Unified Code


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because the State chose to use one of defendant's two prior Class

2 felony convictions to enhance his current offense from a Class

3 to a Class 2 felony.   This same conviction could not also be

used to make him eligible for Class X sentencing, as this would

result in an impermissible double enhancement.    See People v.

Thomas, 171 Ill. 2d 207, 223, 664 N.E.2d 76, 85 (1996) ("Double

enhancement occurs when a factor already used to enhance an

offense or penalty is reused to subject a defendant to a further

enhanced offense or penalty");     People v. Hobbs, 86 Ill. 2d 242,

427 N.E.2d 558 (1981).   A sentence outside the statutorily

permissible range is void and subject to attack at any time,

regardless of whether a motion to reconsider was filed.     People

v. Arna, 168 Ill. 2d 107, 113, 658 N.E.2d 445, 448 (1995); People

v. Rankin, 297 Ill. App. 3d 818, 821, 697 N.E.2d 1246, 1248

(1998).

          The State charged defendant by information with unlaw-

ful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West

2008)).   The information alleged defendant had been convicted of

a Class 2 or greater felony under the Controlled Substances Act.

Before a trier of fact could find defendant guilty of unlawful

possession of a weapon by a felon, the State had to meet an

essential element of the offense, proving defendant was a con-

victed felon.   People v. Adams, 388 Ill. App. 3d 762, 766, 903

N.E.2d 892, 896-97 (2009).   The State chose to do so by estab-


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lishing defendant had a 1996 felony conviction under the Con-

trolled Substances Act.   The State introduced no evidence to the

jury in an attempt to prove defendant had a 1993 felony convic-

tion for unlawful possession of a weapon by a felon.     Needless to

say, the jury never found defendant had that 1993 felony convic-

tion beyond a reasonable doubt.     If the State had intended to

enhance defendant's charge from a Class 3 to a Class 2 felony

because of his 1993 felony conviction for unlawful possession of

a weapon by a felon, section 111-3(c) of the Code of Criminal

Procedure of 1963 required the State to not only state its

intention of increasing the classification of his offense based

on a prior conviction but to also "state such prior conviction so

as to give notice to the defendant."     725 ILCS 5/111-3(c) (West

2008).   The State did not do so.

            Further, while in most instances, the fact of such

prior conviction and the State's intention to seek an enhanced

sentence are not elements of the offense and may not be disclosed

to the jury (725 ILCS 5/111-3(c) (West 2008)), the case before us

is one of those few instances where the defendant's prior convic-

tion is actually an element of the offense and must be proved to

the jury beyond a reasonable doubt.     Defendant was charged with

unlawful possession of a firearm by a felon.     The State charged

and proved defendant was a felon as a result of his 1996 Class 2

felony conviction.   The jury was instructed it had to find


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defendant was convicted of the 1996 Class 2 felony before it

could convict.   That felony, since it was used to enhance the

underlying offense, was no longer available to enhance defen-

dant's sentence to a Class X.   This court has no authority to

insert itself into the State's Attorney's charging decision.

           Because the State chose to enhance the classification

of defendant's offense from a Class 3 felony to a Class 2 felony

with his 1996 conviction under the Controlled Substances Act, it

could not use that same conviction to qualify defendant for Class

X sentencing under section 5-5-3(c)(8) of the Unified Code (730

ILCS 5/5-5-3(c)(8) (West 2008)).   As a result, we vacate defen-

dant's Class X sentence and remand this case to the trial court

with directions to sentence defendant to between 3 and 14 years

in prison, the special penalty range established for the offense

(720 ILCS 5/24-1.1(e) (West 2008)).

                          III. CONCLUSION

           For the reasons stated, we affirm defendant’s convic-

tion, vacate defendant’s Class X sentence, and remand with

directions to sentence defendant to between 3 and 14 years in

prison.   As part of our judgment, we grant the State its $50

statutory assessment against defendant as costs of this appeal.

           Affirmed in part and vacated in part; cause remanded

with directions.

           STEIGMANN and POPE, JJ., concur.


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