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 1-06-0445
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
-2- 1-06-0445
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
-3- 1-06-0445
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
-4- 1-06-0445
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
-5- 1-06-0445
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
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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 1-06-0445
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
-2- 1-06-0445
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
-3- 1-06-0445
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
-4- 1-06-0445
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
-5- 1-06-0445
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
-6- 1-06-0445
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
-7- 1-06-0445
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.
-8-