                                          2016 IL App (1st) 141381
                                                                                   THIRD DIVISION
                                                                                   April 20, 2016

                                                  No. 1-14-1381

     THE PEOPLE OF THE STATE OF ILLINOIS,                  )               Appeal from the
                                                           )               Circuit Court of
                            Plaintiff-Appellee,            )               Cook County, Illinois.
                                                           )
     v.                                                    )               No. 12 CR 18597
                                                           )
     NICHOLAS SANDERSON,                                   )               Honorable
                                                           )               Evelyn B. Clay,
                            Defendant-Appellant.           )               Judge Presiding.

            PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion.
            Justices Fitzgerald Smith and Pucinski concurred in the judgment and opinion.

                                                   OPINION

¶1          The offense of armed habitual criminal requires the State to prove that a defendant

     possessed a firearm after having been convicted of two or more forcible felonies or other

     enumerated offenses. Defendant Nicholas Sanderson’s conviction for being an armed habitual

     criminal was predicated on prior convictions for aggravated unlawful use of a weapon (AUUW)

     and attempted residential burglary. Sanderson contends that attempted residential burglary is not

     a “forcible felony” as defined in the Criminal Code of 2012 (Code) (720 ILCS 5/2-8 (West

     2012)) and requests that we reverse his armed habitual criminal conviction. We agree. He also

     argues, and the State concedes, that one of his remaining convictions for unlawful use of a

     weapon (UUW) by a felon and AUUW must be vacated because both convictions were based on

     the single act of possession of a firearm. Finally, the State agrees that Sanderson is entitled to an

     additional day of credit for time served.

¶2          The circumstances of Sanderson’s arrest are immaterial to the issues raised on appeal,

     and as Sanderson does not contend on appeal that the evidence was insufficient to support his
     No. 1-14-1381


     convictions, we will not recite that evidence here. Sanderson was ultimately convicted of three

     offenses—armed habitual criminal, UUW by a felon, and AUUW, for which he was sentenced to

     three concurrent terms of six years in prison.

¶3           In the trial court, Sanderson moved to dismiss the armed habitual criminal conviction

     charge on the grounds that his attempted residential burglary conviction could not serve as one of

     the predicate offenses because it was not a forcible felony. Other than a certified copy of the

     conviction, the State introduced no evidence at Sanderson’s trial of the circumstances of the prior

     offense. Although Sanderson’s posttrial motion did not preserve this issue, the State does not

     argue forfeiture, and thus we will address the issue. People v. Beachem, 229 Ill. 2d 237, 241 n.2

     (2008) (forfeiture is in the nature of an affirmative defense that State may raise, waive, or

     forfeit).

¶4           The Code defines “forcible felony” as follows:

             “[T]reason, first degree murder, second degree murder, predatory criminal sexual assault

             of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary,

             residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping,

             aggravated battery resulting in great bodily harm or permanent disability or disfigurement

             and any other felony which involves the use or threat of physical force or violence

             against any individual.” (Emphases added.) 720 ILCS 5/2-8 (West 2012).

     The State argues that based on the Code’s specific reference to residential burglary, attempted

     residential burglary is inherently forcible given that anyone who attempts residential burglary

     necessarily contemplates that “violence might be necessary.” In effect, the State’s position is

     that an attempt to commit any of the enumerated offenses necessarily qualifies as a forcible

     felony. For his part, Sanderson contends that the prior attempted felony falls within the Code’s



                                                      -2-
     No. 1-14-1381


     definition only if the State proves that the particular circumstances of the prior offense support

     the inference that defendant contemplated that violence might be necessary to carry out the

     crime. In the absence of any such evidence here, Sanderson maintains that the State failed in its

     burden to prove the necessary predicate offenses for armed habitual criminal.

¶5          To resolve this issue, we look to the residual clause of the forcible felony definition,

     which includes unspecified felonies that involve the use or threat of physical force. An

     unenumerated felony falls within the residual clause if the defendant “contemplated that the use

     of force or violence against an individual might be involved and [was] willing to use such force

     or violence.” (Emphasis in original.) People v. Belk, 203 Ill. 2d 187, 196 (2003). But the

     defendant need not actually inflict physical injury. People v. Thomas, 407 Ill. App. 3d 136, 140

     (2011). Interpretation of the forcible felony statute is an issue of law, which we review de novo.

     Belk, 203 Ill. 2d at 192.

¶6          Courts confronting this issue have found that crimes fall under the residual clause in one

     of two ways. First, where one of a crime’s elements is “a specific intent” to carry out a violent

     act, every instance of that crime “necessarily qualifies” as a forcible felony. Thomas, 407 Ill.

     App. 3d at 139-40. For instance, Thomas held that attempted murder is always a forcible felony

     based upon the statutory definition of murder:

            “Because every attempted murder involves a specific intent to cause death, the trier of

            fact who finds a person guilty of attempted murder must find that the guilty person

            contemplated the use of sufficient force to cause very serious injury, injury that can lead

            to death. Accordingly, we hold that every attempted murder qualifies as a forcible felony

            for purposes of the armed habitual criminal statute ***.” Id. at 140.




                                                      -3-
     No. 1-14-1381


     As an initial matter, we reject the State’s position that Thomas stands for the proposition that

     every attempt to commit an enumerated forcible felony falls within the residual clause. Rather,

     Thomas requires an analysis of the elements of the underlying offense to determine whether

     proof of those elements necessarily entails the use or threat of force or violence against an

     individual.

¶7           The second way a felony can qualify as a forcible felony, even if a crime does not have

     violent intent as an element, is if the State proves that “under the particular facts of this case,” the

     defendant contemplated the use of force and was willing to use it. Belk, 203 Ill. 2d at 195. In

     Belk, a felony murder case, aggravated possession of a stolen motor vehicle was deemed not to

     be a forcible felony. Felony murder requires the State to show that defendant unjustifiably killed

     another while “attempting or committing a forcible felony other than second degree murder.”

     720 ILCS 5/9-1(a)(3) (West 2012). In Belk, defendant was fleeing from police in a stolen van

     when he crashed into another vehicle, killing both occupants. Considering whether these facts

     gave rise “to an inference that at some point during his attempt to elude the police, [defendant]

     contemplated that escape might involve the use of force or violence against an individual,” our

     supreme court concluded that although the defendant was reckless and injury to pedestrians and

     other motorists was certainly foreseeable, nothing supported the inference that he believed “the

     use of force or violence against an individual might be necessary in order for him to accomplish

     his escape.” (Emphasis in original.) Belk, 203 Ill. 2d at 195.

¶8           By contrast, in People v. Greer, 326 Ill. App. 3d 890 (2002), the issue was whether

     defendant’s conviction for armed violence based on unlawful possession of a controlled

     substance with intent to deliver was a “forcible felony” for purposes of his felony murder charge.

     Despite its label, armed violence (which involves the use of a firearm in the commission of a



                                                       -4-
       No. 1-14-1381


       felony (720 ILCS 5/33A-2 (West 2012))) does not inherently involve the use or threat of force or

       violence against another. Rather, a person can be guilty of armed violence when committing a

       felony while armed with a firearm even if he does not display or intend to use it. See People v.

       Bond, 178 Ill. App. 3d 1020 (1989) (affirming armed violence conviction where police found

       handgun under a sofa cushion where defendant was sitting, even though the gun was not in plain

       view and defendant testified he never intended to use it). In Greer, 326 Ill. App. 3d at 892,

       defendant and his cousin brought a gun to a drug sale, intending to collect past debts owed to

       them for prior sales. Greer held on these facts that armed violence was a forcible felony. The

       court found that, under the circumstances, “[t]here can be little doubt that defendant

       contemplated that the threat of violence would be used to carry out the scheme upon which the

       two had embarked.” Id. at 894.

¶9            Sanderson’s conviction for attempted residential burglary is neither by definition nor by

       circumstance a forcible felony. First, attempted residential burglary is not inherently a forcible

       felony, since its elements do not include a specific intent to carry out a violent act. The Criminal

       Code defines residential burglary as “knowingly and without authority enter[ing] or knowingly

       and without authority remain[ing] within the dwelling place of another, or any part thereof, with

       the intent to commit therein a felony or theft.” 720 ILCS 5/19-3(a) (West 2012). Attempted

       residential burglary is committing a substantial step toward the commission of residential

       burglary with the intent to commit that offense. 720 ILCS 5/8-4(a) (West 2012) (defining crimes

       of attempt).

¶ 10          None of the elements of attempted residential burglary requires that the defendant

       contemplate the use of violence. For instance, it could qualify as attempted burglary if a would-

       be thief tested the window of a rental home he knew was vacant. See People v. Pearson, 183 Ill.



                                                       -5-
       No. 1-14-1381


       App. 3d 72, 75 (1989) (for purposes of the residential burglary statute, vacant residential

       property qualifies as a dwelling place if new residents are planning to move in within a

       reasonable period of time). Alternately, if the prospective thief cased the property, found it

       unexpectedly to be occupied, and left without attempting entry, that could also qualify as

       attempted burglary—even if he left specifically to avoid the possibility of confrontation. See

       People v. Jiles, 364 Ill. App. 3d 320, 334-35 (2006) (evidence was sufficient to convict

       defendant of attempted residential burglary where he reconnoitered a residence with burglary

       tools in his possession, but did not attempt entry). As these examples show, it is entirely possible

       for a defendant to be found guilty of attempted residential burglary even where the defendant did

       not contemplate using force or violence in furtherance of the crime.

¶ 11          Second, there is no evidence that, under the particular facts of this case, Sanderson

       contemplated the use of force. As noted, the State presented no evidence at all regarding the

       particulars of Sanderson’s attempted residential burglary conviction, much less any facts that

       could be used to infer his intent.

¶ 12          The State stresses that residential burglary is a dangerous crime because of the possibility

       of violent confrontation with people in the home. On this point, the State cites our supreme

       court’s statement that residential burglaries are more dangerous than other burglaries because

       “[t]here is a considerably greater chance of injury and danger to persons in the home context.”

       (Internal quotation marks omitted.) People v. Bales, 108 Ill. 2d 182, 193 (1985) (holding that it

       is not unconstitutionally disproportionate to impose greater penalties for residential burglary than

       for burglary). We do not downplay these risks. Many people who attempt residential burglary—

       possibly even Sanderson himself—contemplate violence in furtherance of their criminal

       schemes. But without any evidence of the facts underlying Sanderson’s conviction, we cannot



                                                       -6-
       No. 1-14-1381


       say that the State has proven beyond a reasonable doubt his willingness to use violence against

       another, which would be necessary for his conviction to constitute a forcible felony.

¶ 13          Because we have concluded that Sanderson’s conviction for attempted residential

       burglary could not serve as one of the predicate offenses for armed habitual criminal, his

       conviction for that offense must be reversed.

¶ 14          As noted, Sanderson raises two additional issues, with which the State agrees. First, he

       contends that one of his convictions arising out of possession of the weapons must be vacated

       under the one-act, one-crime rule. See People v. Artis, 232 Ill. 2d 156, 165 (2009) (multiple

       convictions improper where they are based on a single physical act); People v. Rodriguez, 169

       Ill. 2d 183, 186 (1996) (rule allows for only one criminal conviction for a single act). Because

       both of Sanderson’s weapons convictions were based on the single physical act of possessing a

       handgun, we affirm the trial court’s sentence on the more serious charge, UUW by a felon (720

       ILCS 5/24-1.1(e) (West 2012) (Class 2 sentence of 3 to 14 years)), and vacate the conviction for

       AUUW (720 ILCS 5/24-1.6(1), (3) (West 2012) (Class 2 sentence of 3 to 7 years)).

¶ 15          The State also agrees that Sanderson is entitled to an additional day of credit for his

       presentence detention. We direct the clerk to correct the mittimus to reflect 583 days credit for

       time served. People v. Sample, 326 Ill. App. 3d 914, 931 (2001) (remand unnecessary because

       court has the authority to direct the clerk of the circuit court to make appropriate corrections).

¶ 16          Affirmed in part; reversed in part; mittimus corrected.




                                                        -7-
