FIRST DIVISION March 3, 2008
No. 1-06-1073
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) ) ANTHONY LEWIS, ) Honorable ) Michael Brown, Defendant-Appellant. ) Judge Presiding.
JUSTICE WOLFSON delivered the opinion of the court:
Defendant Anthony Lewis was charged with delivery of heroin
(count 3) and possession of cocaine with intent to deliver (count
4). Following a sentencing hearing, the trial court imposed a
six-year prison sentence on count 3. The only issue in this
appeal is whether the trial court had acquitted defendant of
count 3, rendering the sentence void. We conclude the trial
court found the defendant not guilty of the charge in count 3.
We vacate the defendant’s sentence on that count and remand for
sentencing on count 4, possession only.
FACTS
Detective Jeanne Radjenovich testified that on March 2,
2005, she was the surveillance officer on a narcotics team. From
her vantage point less than a block away, she saw defendant
conduct hand-to-hand transactions with various people. She
radioed undercover Officer McCann. She told McCann to come 1-06-1073
through the alley and try to make a controlled purchase from
defendant. Detective Radjenovich saw Officer McCann talk to
defendant and saw her drive around the block. When Officer
McCann returned, defendant put his hand into her car and walked
away. A short time later, the enforcement officers arrested
defendant. The officers recovered $10 from defendant, but not
the prerecorded funds used during the transaction.
Officer Kathleen McCann testified she drove into the alley
and saw defendant, who matched the surveillance officer's
description of the suspect. She asked defendant for two "blows,"
a street term for heroin. He told her to drive around the block
and meet him in the alley, which she did. Defendant handed her
clear plastic bags containing foil packets, and she gave him $20
in prerecorded funds. She then drove away and radioed the other
officers that a narcotics transaction occurred. Officer McCann
identified defendant after he was detained.
Officer Michael Kublida, an enforcement officer, testified
that Sergeant Nunez and Officer Roman had already detained
defendant when he arrived at the scene. During defendant’s
custodial search, the officers recovered $10 and a clear plastic
bag containing a white rock-like substance they suspected was
cocaine. No heroin was found in defendant’s possession. Officer
Kublida admitted he attested to the police report completed after
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defendant's arrest, but he did not read it.
The parties stipulated that Sergeants Roman and O'Shea would
testify their arrest report stated they recovered prerecorded
funds from defendant. No prerecorded funds were recovered. The
parties also stipulated that the State forensic chemist would
testify the substances tested were less than .1 gram of cocaine
and .3 gram of heroin.
After the State rested, defendant made a motion for a
directed finding, which the court denied as to count 3. As to
count 4, the court found the State had not met its burden of
proof with regard to the intent to deliver element and thus
proceeded with count 4 being the lesser-included offense of
possession of cocaine.
On February 9, 2006, following closing arguments, the court
said:
“The court finds that the State has met its
burden of proof with regard to Count No. 3
and also the remaining part of Count No. 4.
The court finds that the identification of
the Defendant by both surveillance officers
and the undercover officers was strong and
positive.
With regard to the transactions, details
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culminating in Count No. 3 which is the
delivery of a controlled substance, again,
the Court finds that the State has met its
burden of proof, and that in fact the
Defendant delivered some items containing a
substance containing heroin to the undercover
officers.
With regard to Count No. 4, possession
of a controlled substance, the Court finds
that a clear, plastic bag containing cocaine
was found on the Defendant’s person.
The Court finds that the impeachment
that was generated during the examination of
the enforcement officer was for post arrest
and post transaction activities, but I do
find based on all of the evidence and all of
the testimony that the State has met its
burden of proof that this item containing
cocaine was found on Mr. Lewis’ person, and
the impeachment does not rise to the level of
that.
The State has not met its burden of
proof. As a result, there would be a finding
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of not guilty for Count No. 3. There would
be a finding of guilty as to Count No. 4, PCS
only."
The assistant state’s attorney did not ask the trial court
any questions about its “findings.” The half-sheet entry on
February 9, 2006, says “f/g (DCS Ct 3) & 4 - PCS only (Ct 4).”
The State does not contest the accuracy of the transcript of the
trial court’s words.
At defendant’s sentencing hearing on March 15, 2006, the
State observed defendant was convicted of both counts 3 and 4.
Defendant did not object to the State's recitation of his
convictions. The court sentenced defendant as a Class X offender
to six years in prison. Specifically, the court said, "Now, that
is a sentence on Count 3, which is the delivery of a controlled
substance count. Count 4 will be merged into Count 3 for
purposes of sentencing." Defense counsel did not question the
trial court’s authority to sentence the defendant on count 3, the
heroin delivery charge. Defendant appeals.
DECISION
I. Void Sentence
The parties frame this dispute as a double jeopardy issue.
The double jeopardy clauses contained in the United States and
Illinois Constitutions prohibit a person from being put in
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jeopardy twice for the same offense. U.S. Const., amend. V; Ill.
Const. 1970, § 10. The issue may be simpler than that. The
question that controls the outcome of this case is whether the
trial court found defendant guilty or not guilty of count 3. If
it found defendant not guilty, the sentence on that count would
be void. We look to the double jeopardy decisions to guide our
analysis.
Defendant contends the six-year sentence is void because the
court sentenced him for delivery of a controlled substance after
it acquitted him of that offense.
Initially, we reject the State’s contention that defendant
waived this issue by failing to raise it in a written post-trial
motion. Waiver generally does not apply where the judgment is
challenged as void. People v. Thompson, 209 Ill. 2d 19, 27, 805
N.E.2d 1200 (2004). Furthermore, the propriety of an alleged
acquittal necessarily implicates substantial rights requiring our
review. People v. Allen, 344 Ill. App. 3d 949, 954, 801 N.E.2d
1115 (2003).
A defendant is acquitted of an offense when a trial judge
finds the evidence insufficient at trial and finds the defendant
not guilty. People v. Brown, 227 Ill. App. 3d 795, 798, 592
N.E.2d 342 (1992). “A judgment of acquittal stemming from an
evidentiary hearing, however erroneous, bars further prosecution
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on any aspect of the charge.” People v. Carter, 194 Ill. 2d 88,
92, 741 N.E.2d 255, citing Sanabria v. United States, 437 U.S.
54, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978). Whether the trial
judge made a mistake of fact or law when entering an acquittal is
irrelevant. Brown, 227 Ill. App. 3d at 798, citing People v.
Poe, 121 Ill. App. 3d 457, 459 N.E.2d 667 (1984). An acquittal,
however, only triggers the bar against double jeopardy if it “
‘actually represents a resolution, correct or not, of some or all
of the factual elements of the offense charged.’ ” People v.
Henry, 204 Ill. 2d 267, 283, 789 N.E.2d 274 (2003), quoting
United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97
S. Ct. 1349, 1353, 51 L. Ed. 2d 642, 650 (1977).
In People v. Vilt, 119 Ill. App. 3d 832, 457 N.E.2d 136
(1983), the defendant was charged with rape, aggravated
kidnapping, and two counts of deviate sexual assault. At the
close of the State’s case, the defendant moved for a directed
verdict on the count charging deviate sexual assault based on the
act of sodomy. The following colloquy occurred:
“THE COURT: That motion will be allowed.
MR. GERTS (the assistant state’s
attorney): May I ask why?
THE COURT: Wasn’t any evidence of anal
sodomy.
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MR. GERTS: I think she testified that-
Theresa testified of the contact.
THE COURT: Or am I thinking, am I
thinking of the other girl?
MR. GERTS: Tami George there was no anal
act with.
THE COURT: I am sorry, I am sorry, I am
talking, I am thinking of Tami George, thats
right.
***
THE COURT: That motion will be denied.
MR. KIELIAN [defense counsel]: Could I be-
THE COURT: Yes you may be heard on it but I
am sorry, I had the wrong, the wrong cases.”
After the defendant was convicted of one count of deviate sexual
assault, he filed a motion to vacate the judgment. The trial
court granted the motion, finding the defendant had been placed
in double jeopardy.
The appellate court reversed, holding that because the trial
court allowed but then denied the directed verdict “virtually
within the same breath,” the defendant never was acquitted of the
charge. Vilt, 119 Ill. App. 3d at 835. Because no passage of
time intervened, the court held there “simply was no directed
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verdict to reinstate when the defendant’s post-trial motion to
vacate was granted.” Vilt, 119 Ill. App. 3d at 835. See also
People v. Williams, 188 Ill. 2d 293, 306, 721 N.E.2d 524 (1999)
(The trial court did not grant the defendant’s motion for a
finding of not guilty. “The trial judge’s statements were
equivocal and amounted merely to a determination to hold the
ruling on defendant’s motion in abeyance until the following
day.”)
In Allen, the defendant was charged with two separate counts
of aggravated discharge of a firearm–-count five in regards to
Gloria Rainge and count six in regards to Cortez Mukes. The
trial court granted a motion for a directed finding as to count
six. When the trial court entered its finding of guilt at the
close of the case, it said:
“Based on the evidence presented, *** it’s
pretty clear to me that Miss Range was right
in the area of the car when the car was
struck with the bullet, just apparently a car
length away when shots were fired. Now, with
regard to the aggravated discharge of a
firearm, finding of not guilty. I have no
idea where Mr. Mukes was, again, that was a
finding of not guilty.” (Emphasis added.)
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Before the defendant’s post-trial hearing began, the court
addressed the parties, stating:
“I just want the record to reflect that the
defendant was found guilty of three counts.
Finding guilty of aggravated discharge of a
firearm was count five, *** although
reviewing the transcript it doesn’t really
make [it] clear. But I just want the record
to reflect that the defendant was found
guilty of count five, aggravated discharge of
a firearm in regards to Gloria Range. As to
count six with regard to aggravated discharge
of a firearm with regard to Mr. [Mukes], he
was found not guilty.”
On appeal, the defendant contended his conviction for
aggravated discharge of a firearm was barred because the trial
court initially found him not guilty as to count five (“Now, with
regard to the aggravated discharge of a firearm, finding of not
guilty”), then clarified its ruling finding him guilty of the
offense. Rejecting the defendant’s argument, the court held an
examination of the record as a whole revealed the trial court
did, in fact, find defendant guilty of count five. Because the
trial court never specified which count it was entering its
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finding on, the court held the defendant was never actually
acquitted on count five and the judge’s finding of not guilty
pertained only to count six. Allen, 344 Ill. App. 3d at 956.
The court held its conclusion was supported by the trial court’s
half-sheet notations and its clarification of the somewhat
ambiguous court reporter’s transcript of its findings. Allen,
344 Ill. App. 3d at 956.
By contrast, in People v. Brown, 227 Ill. App. 3d 795, 798-
99, 592 N.E.2d 342 (1992), the defendant was charged with armed
violence based on possession of a controlled substance with
intent to deliver. At the close of the State’s case, the
defendant moved for a directed verdict. In ruling on the motion,
the trial court said:
“the Court cannot find that the Defendant
possessed cocaine with intent to deliver and
as to that charge, the Defendant is found not
guilty of the greater offense of possession
with intent to deliver. *** Having found the
Defendant not guilty of the offense of
possession with intent to deliver[,] it
follows that he was not armed with a
dangerous weapon while committing that
offense, and the Defendant is found not
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guilty of Count 1.”
The State contended that even though the judge found the
defendant not guilty of possession with intent to deliver, the
armed violence charge could be based on the lesser-included
offense of possession. The judge agreed with the State and
denied defendant’s motion for a directed verdict. Defendant was
subsequently found guilty of armed violence and possession of a
controlled substance.
The appellate court reversed defendant’s conviction, holding
the trial court’s initial ruling on the directed verdict was “an
acquittal based on insufficient evidence which the trial judge
could not reconsider.” Brown, 227 Ill. App. 3d at 799.
Distinguishing Vilt, the court held the trial judge’s ruling was
“not equivocal.” Brown, 227 Ill. App. 3d at 799. The trial
judge specifically found the evidence was insufficient, that the
defendant was not guilty of armed violence. Brown, 227 Ill. App.
3d at 799. See also People v. Stout, 108 Ill. App. 3d 96, 100,
438 N.E.2d 952 (1982) (“It was error to continue the trial with
respect to count IX after the court had directed the verdict on
that count in defendant’s favor.”)
In Henry, the question presented was whether the trial
court’s oral grant of defendant’s motion for directed verdict on
the charge of aggravated battery was an “unequivocal judgment of
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acquittal.” Henry, 204 Ill. 2d at 284. The defendant was
charged with involuntary manslaughter and aggravated battery. At
the close of the evidence, defendant moved for a directed verdict
on both counts. The trial court granted the directed verdict as
to the aggravated battery charge. After the State then sought
leave to appeal the court’s ruling, the court vacated its
previous order and reserved ruling on the directed verdict. The
court subsequently denied defendant’s motion for directed verdict
on both charges. The jury found defendant guilty of aggravated
battery.
Distinguishing Williams, our supreme court held that, under
the specific facts of the case, the trial judge unequivocally
granted the defendant’s motion for a directed finding on the
aggravated battery charge. Henry, 204 Ill. 2d at 287-88. Unlike
Williams, the judge in Henry neither indicated willingness to
examine additional authority nor offered to postpone the ruling
until the parties had an opportunity to present legal authority.
Henry, 204 Ill. 2d at 287. Because the acquittal represented a
resolution of “ ‘some or all of the factual elements of the
offense charged,’ ” the principles of double jeopardy barred the
aggravated battery charge from being presented to the jury.
Henry, 204 Ill. 2d at 288, quoting Martin Linen Supply Co., 430
U.S. at 571, 97 S. Ct. at 1355, 51 L. Ed. 2d at 651.
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Here, the State contends the trial court’s comments, viewed
in their entirety, clearly indicate it intended to convict
defendant of count 3 and simply “misspoke” when restating its
findings.
The State has not been consistent when addressing the
specificity of the trial judge’s findings. While this appeal was
pending, it filed a motion for limited remand for the circuit
court to clarify the record pursuant to Supreme Court Rule 329,
contending “the People have reviewed the record on appeal and
determined that it is unclear whether defendant was convicted of
Count 3 and the remaining portion of Count 4, or only on the
remaining portion of Count 4.” (Emphasis added). Rule 329
provides limited remand for the purposes of clarifying the
record. It is used when: (1)there is a question regarding
whether the record “accurately discloses what occurred in the
trial court;” (2) the record contains “material omissions” or
“inaccuracies;” or (3) the record is improperly authenticated.
Supreme Court Rule 329 (Official Reports Advanced Sheet No. 22
(October 26, 2006), R. 329, eff. January 1, 2006). The State
never contended the record was inaccurate or contained “material
omissions.” Nor did it contend that the trial court’s findings
were inaccurately disclosed. Instead, the State sought remand
for the sole purpose of allowing the trial court to clarify its
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intentions when declaring the not guilty finding on count 3.
That is not provided for in Rule 329. We denied the State’s
motion.
Now, in this appeal, the State contends the court’s notation
on the half-sheet, defendant’s sentencing hearing, and
defendant’s mittimus constitute evidence that the trial court
simply misspoke when declaring defendant not guilty. The half-
sheet entry on February 9, 2006, says “f/g (DCS Ct 3) & 4 - PCS
only (Ct 4),” which the State contends reflects a finding of
guilty on count 3. The State has abandoned the position it took
in its motion for remand.
A judge’s oral pronouncement is the judgment of the court.
People v. Smith, 242 Ill. App. 3d 399, 402, 609 N.E.2d 1004
(1993). A written order of commitment is merely evidence of that
judgment. Smith, 242 Ill. App. 3d at 402. When a trial court’s
oral pronouncement conflicts with its written judgment, the oral
pronouncement controls. People v. Savage, 361 Ill. App. 3d 750,
762, 838 N.E.2d 247 (2005); Smith, 242 Ill. App. 3d at 402. We
find the trial court’s oral finding determines the outcome of
this case.
Unlike Allen and Williams, there was nothing ambiguous or
equivocal in the trial court’s findings. We recognize the trial
court first indicated the State had “met its burden of proof with
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regard to Count No. 3.” But the trial court used the word
“finding” once and only once–-when saying “there would be a
finding of not guilty for Count No. 3,” just after saying “The
State has not met its burden of proof,” and just before saying
“There would be a finding of guilty as to Count No. 4, PCS only.”
It is the trial court’s “finding” that controls. Smith, 242
Ill. App. 3d at 402. There was nothing equivocal about it. If
the State had any concerns about that finding, it should have
said so when it was pronounced.
While the State suggests we should ignore the acquittal
because the trial court simply “misspoke,” we note “[a] judgment
of acquittal stemming from an evidentiary hearing, however
erroneous, bars further prosecution on any aspect of the charge.”
See Carter, 194 Ill. 2d at 92. The trial court’s “finding of not
guilty” represented an unequivocal resolution of some or all of
the elements of the offense charged.
Unlike the first ruling in Vilt, defendant’s acquittal in
this case stood unchallenged for a significant length of time.
The judge sentenced defendant on count 3 on March 15, 2006, more
than a month after his finding of acquittal on the same charge–-a
far cry from the “virtually within the same breath” that passed
before the trial court corrected its finding in Vilt. See Vilt,
119 Ill. App. 3d at 835. Nor was the trial court holding a
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ruling on the guilt or innocence issue “until the following day.”
Williams, 188 Ill. 2d at 306. We find the length of time
defendant’s acquittal was allowed to stand unchallenged in this
case supports our conclusion.
Because the trial court acquitted defendant of delivery of
a controlled substance and then improperly sentenced him for that
same offense, we find the sentence is void. A judgment of not
guilty on count 3 must be entered by the trial court.
II. Mittimus
Defendant contends his mittimus must be amended to correctly
reflect that he was subject to mandatory Class X sentencing based
on his conviction on count 3 rather than count 2. Because we
vacate defendant’s sentence and remand his case for a new
sentencing hearing consistent with our findings, we need not
consider this issue. On remand, the trial court should sentence
defendant only on the remaining possession of the cocaine
possession charge contained in count 4.
CONCLUSION
We vacate defendant’s sentence on count 3, order that the
mittimus reflect a finding of not guilty on count 3, and remand
the case for a new sentencing hearing on count 4, possession
only, consistent with our findings.
Vacated and remanded.
CAHILL, P.J., and R. GORDON, J., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT (Front Sheet to be Attached to Each Case)
Please use THE PEOPLE OF THE STATE OF ILLINOIS, following form: Plaintiff-Appellee,
Complete v. TITLE of Case ANTHONY LEWIS,
Defendant-Appellant.
Docket Nos. No. 1-06-1073
COURT Appellate Court of Illinois First District, 1st Division Opinion Filed March 3, 2008
(Give month, day and year)
JUSTICES JUSTICE WOLFSON delivered the opinion of the court:
APPEAL from the Lower Court and Trial Judge(s) in form indicated in margin: Circuit Court of Cook County; the Appeal from the Circuit Court of Cook County. Hon.___________, Judge Presiding. The Hon. Michael Brown, Judge Presiding.
For APPELLANTS, Indicate if attorney represents APPELLANTS or APPELLEES and John Doe, of include attorneys of counsel. Indicate the word NONE if Chicago. not represented.
For APPELLEES, For Appellant, Michael J. Pelletier, Deputy Defender, Smith and Smith, and Lauren A. Bauser, Assistant Appellate Defender, of Chicago Office of the State Appellate Defender, of Chicago.
For Appellee, Richard A. Devine, State's Attorney Joseph Brown, of Cook County, of Chicago. (James E. Fitzgerald, of counsel). Alan J. Spellberg, and Margaret M. Smith, of Counsel). Also add attor- neys for third- party appellants and/or appellees.
(USE REVERSE SIDE IF NEEDED)
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