2014 IL App (1st) 122017
FIFTH DIVISION March 14, 2014
No. 1-12-2017
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 11 CR 12507 ) LOVELL POLK, ) Honorable ) Clayton J. Crane, Defendant-Appellant. ) Judge Presiding.
JUSTICE PALMER delivered the judgment of the court, with opinion Justice McBride concurred in the judgment and opinion. Presiding Justice Gordon dissented, with opinion.
OPINION
¶1 Following a jury trial, defendant Lovell Polk was convicted of the Class 2 offense of
unlawful use or possession of a weapon (UUW) by a felon (720 ILCS 5/24-1.1(a) (West 2010))
and he was sentenced to four years and six months in prison. On direct appeal to this court,
defendant contends in his opening and supplemental briefs that (1) the sentence for his UUW by
a felon conviction must be reduced from a Class 2 offense to a Class 3 offense as the State failed
to notify him of its intent to seek an enhanced sentence; (2) he was subject to an improper double
enhancement because the same prior felony conviction was used to prove an element of the
UUW by a felon offense and to elevate it to a Class 2 felony; and (3) his mittimus must be
corrected. For the reasons discussed below, we affirm defendant’s conviction and sentence for 1-12-2017
the Class 2 offense of UUW by a felon, but order that the mittimus must be corrected to exclude
reference to the two counts that were dismissed via nolle prosequi before jury selection. 1
¶2 BACKGROUND
¶3 At trial, Chineetha Curtis testified that on July 25, 2011, she was working as a security
agent for the Chicago Transit Authority (CTA) at the Homan and Congress Blue Line Station in
the city of Chicago. Curtis stated that on that date, defendant approached her and told her that he
had fought with a man and the man had taken his earrings. When he asked whether she knew
who had had been fighting earlier that day, Curtis responded that she did not know. Curtis
testified that defendant then lifted his shirt, revealing a gun inside his waistband. 2 Curtis
testified that defendant stated, "I'm going to bust a cap in his a***." Curtis returned to her kiosk
in the station.
¶4 Curtis testified that as she approached her kiosk, two police officers were walking toward
her kiosk. One of the officers walked toward defendant, who was standing in front of the station,
and the other officer asked Curtis what was wrong. Curtis testified that she pointed at defendant
and told the officer that he had a gun. The officer left and Curtis began to help a customer.
Curtis testified that she then heard an officer yell "freeze"; she turned and saw defendant twist
around and run away from the officers.
¶5 Chicago police officers James Norris and Michael Brosnan each testified that on July 25,
2011, they were in uniform and working special enforcement for the CTA at the Homan station.
Brosnan testified that Curtis got his attention and told him that defendant had a gun in his
1 We note that, in addition the UUW by a felon charge, defendant was initially charged in the information with two counts of aggravated unlawful use of a weapon, which the State dismissed by nolle prosequi before jury selection. 2 Curtis identified the gun she saw on defendant as the gun that was admitted into evidence at trial. 2 1-12-2017
waistband. Brosnan informed Norris of this and they then approached defendant. Brosnan
testified that Norris put his hand on defendant’s shoulder and asked defendant if he had anything
on him that could hurt Norris. Brosnan testified that defendant then "spun around, reached into
his pants pocket as he was crossing Homan Avenue, pulled out a silver automatic handgun and
threw it to the ground." Brosnan was only five feet behind him at the time. Brosnan testified
that they chased after defendant and he was apprehended about a block later.
¶6 Similarly, Norris testified that as he moved closer to defendant perform a protective pat-
down, defendant moved around him and ran west down Homan Avenue. Norris also testified
that he told defendant to drop the gun, and defendant reached into his right pocket as he ran and
dropped a gun in the street; it looked like the gun came from his right pocket or right waistband.
Norris was chasing after defendant and was only about two feet behind him when this occurred.
Norris recovered the gun, which was a silver-plated .380-caliber automatic pistol and continued
to pursue defendant. Norris testified that he subsequently placed the gun, which did not contain
any ammunition, in inventory.
¶7 In addition, Chicago police officer Hanrahan testified that he was driving an unmarked
police car in the vicinity that day when Hanrahan observed defendant run across Homan Avenue
with a uniformed police officer running after him. Hanrahan testified that he followed defendant
in the police car until defendant stopped running due to fatigue. Defendant was arrested and
taken to the station.
¶8 Before resting its case, the State submitted an agreed stipulation to the jury that defendant
had previously been convicted of a felony. The defense then rested without presenting any
evidence. The jury found defendant guilty of UUW by a felon.
¶9 At sentencing, the State argued that defendant had one prior conviction in 2006 for
3 1-12-2017
conspiracy to commit murder, for which he received a seven-year sentence. Defense counsel
argued in mitigation that defendant was a good family man. In announcing defendant’s sentence,
the trial court stated that it had reviewed the presentence investigation and considered the
presentation made by the defendant and "all statutory factors required of this Court for the
sentencing." The trial court sentenced defendant to 4 ½ years' imprisonment, with credit for time
served.
¶10 Defendant’s mittimus set forth his sentence of four years, six months for the offense of
"720-5/24-1.1(a) FELON POSS/USE FIREARM PRIOR," and listed it as a Class 2 felony. The
mittimus also reflected the credit for time served and provided that "counts 2 and 3 merge with
count 1."
¶11 Defendant filed a motion to reconsider and vacate the judgment, which the trial court
denied. Defendant also filed a motion to reconsider his sentence on grounds that the sentence
was excessive given his background and the nature of the offense, but the trial court denied the
motion on June 20, 2012. Defendant filed a notice of appeal the same day.
¶12 ANALYSIS
¶13 In his first argument on appeal, defendant asserts that pursuant to section 111-3(c) of the
Code of Criminal Procedure of 1963 (725 ILCS 5/111-3(c) (West 2010)), the State was required
to give notice in the charging instrument of its intent to seek an enhanced sentence, i.e., that it
was charging him with a Class 2 felony. According to defendant, the failure to do so requires
that his conviction be reduced to a Class 3 conviction. In response, the State maintains that
because defendant was charged and convicted of UUW by a felon expressly premised on a prior
forcible felony (conspiracy to commit murder), he could receive only one class of sentence – a
Class 2 – and therefore a Class 3 sentence was unauthorized and the notice provision did not
4 1-12-2017
apply.
¶14 As an initial matter, this court recognizes that there is a split of authority in the First
District regarding this issue. See generally People v. Whalum, 2012 IL App (1st) 110959, pet.
for leave to appeal pending, No. 115582 (filed Jan. 28, 2013); People v. Nowells, 2013 IL App
(1st) 113209, pet. for leave to appeal pending, No. 116839 (filed Oct. 31, 2013); People v.
Pryor, 2013 IL App (1st) 121792, pet. for leave to appeal pending, No. 117276 (filed Jan. 31,
2014 ). We further note that this issue is currently under review by our Supreme Court. People
v. Easley, 2012 IL App (1st) 110023, appeal allowed, No. 115581 (Ill. Mar. 27, 2013).
¶15 We also note that, in the present case, defendant concedes that he failed to preserve this
issue for appellate review, but he argues that his claim of error is nevertheless reviewable
because (1) his sentence is void and may be challenged at any time, (2) the error implicated his
substantial rights and is thus subject to plain error review, and/or (3) his counsel rendered
ineffective assistance in failing to properly preserve the issue and defendant suffered prejudice as
a result. "Where a defendant challenges his sentence as void, *** as defendant does here, we
will review the sentencing issue even though it was not properly preserved for review because a
void sentence can be corrected at any time." Nowells, 2013 IL App (1st) 113209, ¶ 18.
Moreover, forfeited claims of sentencing error "may be reviewed for plain error," and the
defendant has the burden of demonstrating " 'either that (1) the evidence at the sentencing
hearing was closely balanced, or (2) the error was so egregious as to deny the defendant a fair
sentencing hearing.' " Id. (quoting People v. Hillier, 237 Ill. 2d 539, 545 (2010)). Under plain
error review, we start by reviewing defendant's claim to determine whether any error occurred.
Id. ¶ 20.
¶16 Additionally, this case requires that we interpret statutory language, which presents a
5 1-12-2017
question of law reviewed de novo. People v. Harris, 203 Ill. 2d 111, 116 (2003). We are
mindful that "[i]t is the purview of the legislature to determine what is considered criminal
conduct, to assign penalties for that conduct, and to enact statutory provisions which enhance a
criminal offense or enhance the applicable range of punishment for an offense. [Citation.]
Although the trial court has discretion to impose a sentence, we review this issue de novo
because it involves a question of law. [Citation.]" Nowells, 2013 IL App (1st) 113209, ¶ 21.
¶17 Turning to the statutory language involved in the case at bar, the UUW by a felon statute,
section 24-1.1, sets forth the elements of the offense, along with the potential classifications and
sentences:
"(a) It is unlawful for a person to knowingly possess on or about his person or on
his land or in his own abode or fixed place of business any weapon prohibited under
Section 24-1 of this Act or any firearm or any firearm ammunition if the person has been
convicted of a felony under the laws of this State or any other jurisdiction. This Section
shall not apply if the person has been granted relief by the Director of the Department of
State Police under Section 10 of the Firearm Owners Identification Card Act
***
(e) Sentence. Violation of this Section by a person not confined in a penal
institution shall be a Class 3 felony for which the person, *** shall be sentenced to no
less than 2 years and no more than 10 years and any second or subsequent violation shall
be a Class 2 felony for which the person shall be sentenced to a term of imprisonment of
not less than 3 years and not more than 14 years. Violation of this Section by a person
not confined in a penal institution who has been convicted of a forcible felony, a felony
violation of Article 24 of this Code or of the Firearm Owners Identification Card Act,
6 1-12-2017
stalking or aggravated stalking, or a Class 2 or greater felony under the Illinois
Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control
and Community Protection Act is a Class 2 felony for which the person shall be
sentenced to not less than 3 years and not more than 14 years." (Emphasis added.) 720
ILCS 5/24-1.1(a), (e) (West 2010).
¶18 Based on the above provision, in order to prove the offense of UUW by a felon the State
must establish that a defendant "knowingly possessed a weapon or ammunition and that the
defendant had previously been convicted of a felony." Nowells, 2013 IL App (1st) 113209, ¶ 22
(citing 720 ILCS 5/24-1.1(a) (West 2010)). Our court has recognized that the legislature, as
reflected in the plain language of section 24-1.1, intended to prohibit convicted felons from
possessing dangerous weapons. Id. ¶ 22 (citing People v. Kelly, 347 Ill. App. 3d 163, 167
(2004)). Of particular relevance in the present case is the provision that a "[v]iolation of this
Section by a person not confined in a penal institution who has been convicted of a forcible
felony *** is a Class 2 felony." 720 ILCS 5/24-1.1(e) (West 2010). A "forcible felony"
includes, among other crimes, "first degree murder, second degree murder, *** and any other
felony which involves the use or threat of physical force or violence against any individual." 720
ILCS 5/2-8 (West 2010).
¶19 In addition, section 111-3 of the Code outlines the information required when instituting
criminal charges and for seeking an enhanced sentence:
"Form of charge.
(a) A charge shall be in writing and allege the commission of an offense by:
(1) Stating the name of the offense;
(2) Citing the statutory provision alleged to have been violated;
7 1-12-2017
(3) Setting forth the nature and elements of the offense charged;
(4) Stating the date and county of the offense as definitely as can be done;
and
(5) Stating the name of the accused, if known, and if not known, designate
the accused by any name or description by which he can be identified with
reasonable certainty.
(c) When the State seeks an enhanced sentence because of a prior conviction, the
charge shall also state the intention to seek an enhanced sentence and shall state such
prior conviction so as to give notice to the defendant. However, 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 during trial unless otherwise permitted by
issues properly raised during such trial. For the purposes of this Section, 'enhanced
sentence' means a sentence which is increased by a prior conviction from one
classification of offense to another higher level classification of offense set forth in
Section 5-4.5-10 of the Unified Code of Corrections (730 ILCS 5/5-4.5-10); it does not
include an increase in the sentence applied within the same level of classification of
offense." 725 ILCS 5/111-3(a), (c) (West 2010).
¶20 In interpreting this section, the Second Division of this court held in People v. Whalum
that where the State charged the defendant with two counts of UUW by a felon, but did not state
in the charging instrument what class conviction it sought, the State failed to provide the notice
required by section 111-3(c) of the Code that it planned to seek to increase the classification of
offense from a Class 3 to a Class 2. Whalum, 2012 IL App (1st) 110959, ¶ 37. Thus, the Second
8 1-12-2017
Division held that the defendant was consequently entitled to be resentenced for a Class 3 felony.
Id.
¶21 Along similar lines, the defendant in People v. Easley was convicted of UUW by a felon
premised on his prior felony conviction of UUW. Easley, 2012 IL App (1st) 110023, ¶ 16. The
State gave the defendant notice of the prior offense upon which it relied, but did not state its
intention to seek an enhanced sentence pursuant to the " 'any second or subsequent violation shall
be a Class 2 felony' " language in section 24-1.1(e). Id. ¶ 21 (quoting 720 ILCS 5/24-1.1(e)
(West 2008)). On the same day, the Second Division of this court again concluded that, pursuant
to section 111-3(c), the State was required to give notice to the defendant that it intended to
charge him with a Class 2 rather than a Class 3 offense, and therefore, it vacated his sentence and
remanded for resentencing as a Class 3 offense. Id. See also People v. Pryor, 2013 IL App (1st)
121792, ¶ 42 (vacating the defendant's sentence and remanding for resentencing as a Class 3
felony where the State failed to state in the charging instrument that it intended to seek
enhancement from a Class 3 to a Class 2).
¶22 On the other hand, the Fourth Division of this court, in addition to the dissent in the
People v. Pryor case from the Fifth Division, disagreed with the Second Division's holdings in
Easley and Whalum with respect to the interpretation and application of section 111-3(c)
involving a UUW by a felon charge. See Nowells, 2013 IL App (1st) 113209, ¶ 28; Pryor, 2013
IL App (1st) 121792, ¶¶ 49-58 (Palmer, J., dissenting).
¶23 In Nowells, the Fourth Division held that there was no error in sentencing the defendant
to a Class 2 sentence for his UUW by a felon conviction despite the defendant's contention that
the State failed to provide proper notice. Nowells, 2013 IL App (1st) 113209, ¶ 30. The
defendant was convicted of UUW by a felon and sentenced as a Class 2 offender. The
9 1-12-2017
indictment for the UUW by a felon charge was premised on his prior felony conviction of
delivery of a controlled substance. Id. ¶¶ 3, 27. Examining the language of the UUW by a felon
statute, section 24-1.1(e), and section 111-3 of the Code, the Nowells court reasoned:
"In looking at the language of this statute, it is clear to us that the section 111–3(c) notice
provision with which defendant is concerned only applies when the prior conviction that
would enhance the sentence is not already an element of the offense. Specifically, the
language of the section 111–3(c) notice provision itself implies as much when it states
'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 during trial unless
otherwise permitted by issues properly raised during such trial.' (Emphasis added.) 725
ILCS 5/111–3(c) (West 2010). Therefore, notice is not necessary when the prior
conviction is a required element of the offense, such that only one class of felony
conviction is possible for that offense as alleged in the charging instrument." Nowells,
2013 IL App (1st) 113209, ¶ 26.
¶24 The Nowells court therefore concluded that the notice provision in section 111-3(c) was
not applicable "because the State did not seek to enhance defendant's sentence; as alleged in the
indictment, defendant's Class 2 sentence was the only statutorily allowed sentence available in
this situation." (Emphasis in original.) Nowells, 2013 IL App (1st) 113209, ¶ 27. In support, the
court relied on the language of section 24-1.1(e) (720 ILCS 5/24-1.1(e) (West 2010)) ("Violation
of this section by a person *** who has been convicted of *** a Class 2 or greater felony under
the Illinois Controlled Substances Act *** is a Class 2 felony ***") and cited the holding in
People v. Powell, 2012 IL App (1st) 102363, ¶ 12 (concluding the trial court did not
impermissibly enhance the defendant's penalty for his UUW by a felon conviction because the
10 1-12-2017
legislature, in enacting section 24-1.1(e), determined that he committed a Class 2 felony and
established a special penalty range). Nowells, 2013 IL App (1st) 113209, ¶ 27. The Nowells
court found no error because "the record establishes that a Class 2 sentence was the only possible
sentence classification defendant could have received after having been charged with the crime
of UUW by a felon specifically premised on his prior Class 2 felony drug conviction." Id. ¶ 30.
¶25 This court finds that the reasoning in Nowells and the dissent in Pryor to be more
persuasive on this issue. In the case of UUW by felon, the prior conviction is not an
enhancement; it is an element of the offense. Therefore, it defines the offense and establishes its
class. As noted in another recent case from our Second Division, "Illinois law has long held that,
in prosecutions for the offense of UUW by felon, the prior felony conviction is an element of the
offense which must be proven beyond a reasonable doubt by the State before the jury in its case
in chief." People v. McFadden, 2014 IL App (1st) 102939, ¶ 42 (citing People v. Walker, 211
Ill. 2d 317 (2004), for its holding that having a "prior felony conviction is an element of the
offense of our UUW by [a] felon statute and adopting the reasoning of Old Chief v. United
States, 519 U.S. 172 (1997)").
¶26 Defendant fails to account for the underlying logic of Old Chief, adopted by our supreme
court in Walker. As explained by the dissent in Pryor:
"Old Chief and Walker held that, in situations where a prior felony conviction was
an element of the offense and had to be proven before a jury, it was error not to accept a
defendant's offer to stipulate before the jury as to the fact of the conviction. Walker, 211
Ill. 2d at 338, 341 (citing Old Chief, 519 U.S. 172). This was done to lessen the
prejudicial impact of telling the jury about the nature of the prior felony while at the same
time informing the jury of its existence. Walker, 211 Ill. 2d at 341 (citing Old Chief, 519
11 1-12-2017
U.S. 172). If the above-cited provision of section 111-3(c) applied to UUW by felon
prosecutions whereby 'the fact of such prior conviction *** are not elements of the
offense and may not be disclosed to the jury during trial' (725 ILCS 5/111-3(c) (West
2010)), then the Walker decision adopting Old Chief was a wholly unnecessary exercise.
That, of course, is not the case. Those cases were decided because our statute provides
that the fact of the prior felony conviction is an element of the offense that must be
proven before the jury. As section 111-3(c) provides that 'the fact of such prior
conviction *** are not elements of the offense and may not be disclosed to the jury
during trial,' these statutory provisions are incompatible." People v. Pryor, 2013 IL App
(1st) 121792, ¶ 56 (Palmer, J., dissenting).
¶27 Based on our above analysis, we conclude that section 111-3(c) does not apply to UUW
by a felon in this case. Turning to the charging document in case at hand, we note that count I of
the information alleged that on July 25, 2011, in Cook County, defendant committed the offense
of:
"UNLAWFUL USE OR POSSESSION OF A WEAPON BY A FELON
In that HE, KNOWINGLY POSSESED ON OR ABOUT HIS PERSON ANY
FIREARM, AFTER HAVING BEEN PREVIOUSLY CONVICTED OF THE FELONY
OFFENSE OF CONSPIRACY TO COMMIT MURDER, UNDER CASE NUMBER
04CR2953202,
IN VIOLATION OF CHAPTER 720 ACT 5 SECTION 24-1.1(a) OF THE
ILLINOIS COMPILED STATUTES 1992 AS AMENDED ***."
¶28 The record reflects that the charging instrument complied with section 111-3(a) of the
Code. Defendant was provided with notice of the nature of the prior conviction upon which the
12 1-12-2017
UUW by a felon charge was predicated, in addition to the name of the charged offense, the
statutory citation of the offense, the nature and elements of the charged offense, the date and
county of the offense, and the name of the accused. We also note that the information indictment
return sheet listed the UUW by a felon charge as a Class 2 felony. 3 Moreover, defendant does
not argue that he was unaware of what prior felony was serving as the basis for his UUW charge.
Conspiracy to commit murder qualifies as a forcible felony. 720 ILCS 5/2-8 (West 2010).
Accordingly, the charge of UUW by a felon could only be a Class 2 felony. 720 ILCS 5/24-
1.1(e) (West 2010).
¶29 As the Nowells court held, the notice provision in section 111-3(c) was not applicable
here "because the State did not seek to enhance defendant's sentence; as alleged in the
indictment, defendant's Class 2 sentence was the only statutorily allowed sentence available in
this situation." (Emphasis in original.) Nowells, 2013 IL App (1st) 113209, ¶ 27. Thus, in
arguing that he should be resentenced for a Class 3 offense, defendant essentially asks this court
to reduce his sentence to one that is not authorized by the legislature. We decline to do so.
Because the sentence imposed by the trial court was proper, we conclude that no error occurred,
and defendant's sentence is not void. Nowells, 2013 IL App (1st) 113209, ¶ 30. Nor did
defendant receive ineffective assistance of counsel, as counsel was not obligated to advance
meritless arguments. People v. Ivy, 313 Ill. App. 3d 1011, 1018 (2000).
¶30 Defendant contends in his supplemental briefing that he was subjected to an improper
double enhancement because the same prior felony conviction was used to prove an element of
3 At trial, defendant stipulated that he had previously been convicted of a felony; the nature of the felony was not disclosed to the jury, but outside the jury's presence the court and the parties discussed the fact that it was a conviction for conspiracy to commit murder. 13 1-12-2017
the UUW by a felon offense and to elevate it to a Class 2 felony. 4 Defendant again concedes that
this claim of error was not properly preserved below, but urges this court's review under the plain
error doctrine. Nowells, 2013 IL App (1st) 113209, ¶¶ 18-20; Hillier, 237 Ill. 2d at 545. See
People v. Powell, 2012 IL App (1st) 102363, ¶ 7 (deciding to review the defendant's forfeited
claim of improper double enhancement in sentencing under the plain error rubric).
¶31 According to the general prohibition against double enhancement, "[a] single factor
cannot be used both as an element of an offense and as a basis for imposing a sentence harsher
than might otherwise have been imposed." People v. Powell, 2012 IL App (1st) 102363, ¶ 8
(citing People v. Phelps, 211 Ill. 2d 1, 11-12 (2004)). "The prohibition against double
enhancements is based on the assumption that, in designating the appropriate range of
punishment for a criminal offense, the legislature necessarily considered the factors inherent in
the offense." Phelps, 211 Ill. 2d at 12. However, an exception to this general rule arises where
"the legislature clearly intends to enhance the penalty based upon some aspect of the crime and
that intention is clearly expressed." Powell, 2012 IL App (1st) 102363, ¶ 8 (citing Phelps, 211
Ill. 2d at 12). The best evidence of such an intention is gleaned from the text of the statute itself.
Id. As the rule against double enhancement "is one of statutory construction," we review this
issue de novo. Phelps, 211 Ill. 2d at 12.
¶32 Defendant is correct in asserting that a single factor cannot be used both as an element of
an offense and as a basis for imposing a sentence harsher than might otherwise have been
imposed, as it would constitute a double enhancement. Powell, 2012 IL App (1st) 102363, ¶ 8.
However, we find that, based on the clear language of section 24-1.1(e), the legislature explicitly
4 We note that this argument must be considered to be in the alternative, as the premise of defendant's first argument is that the prior felony is not an element of the crime, where here defendant claims exactly the opposite is the case. 14 1-12-2017
stated its intention to enhance the penalty based on some aspect of the offense. As previously set
forth, section 24-1.1(e) provides in relevant part that a "[v]iolation of this Section by a person not
confined in a penal institution who has been convicted of a forcible felony *** is a Class 2
felony." 720 ILCS 5/24-1.1(e) (West 2010). Accordingly, given this clear directive, we find that
this created an exception to the prohibition against double enhancement. Powell, 2012 IL App
(1st) 102363, ¶¶ 11-17. We agree with the reasoning in Powell that no impermissible double
enhancement occurs when the legislature clearly intends, as it did here, to enhance the penalty
based upon some aspect of the crime and that intention is clearly expressed. Id. See also Easley,
2012 IL App (1st) 110023, ¶¶ 16-22 (finding that the defendant's sentence did not constitute an
improper double enhancement where the defendant's prior conviction of UUW was used to
convict him of the current UUW offense and also to elevate his current UUW conviction to a
Class 2 felony pursuant to section 24-1.1(e) as a "second or subsequent violation").
Accordingly, we conclude that no improper double enhancement occurred in this case.
¶33 Defendant also argues on appeal that his mittimus should be corrected to strike the
language merging the counts into his conviction that were dismissed prior to trial, and to strike
the term "use" from the name of the offense in the mittimus. The State agrees that the language
"counts 2 and 3 to merge with count 1" should be stricken from the mittimus because they were
dismissed via nolle prosequi before jury selection. Accordingly, we direct the clerk of the circuit
court of Cook County to correct the mittimus by removing mention of those counts. See People
v. Harper, 387 Ill. App. 3d 240, 244 (2008) (indicating that this court has the authority to correct
the mittimus at any time without remanding the matter to the trial court). However, we deny
defendant's request to strike the word "use" from the mittimus, as this term was correctly
15 1-12-2017
included. 5 Defendant was tried and convicted for violation of section 24-1.1(a); the offense
defined in that section is entitled, "Unlawful Use or Possession of Weapons by Felons or Persons
in the Custody of the Department of Corrections Facilities." 720 ILCS 5/24-1.1(e) (West 2010).
Given that the language used to denote defendant's UUW by a felon conviction adheres to the
title of the statute itself, it was correct to allow the mittimus to be labeled with this same term.
¶34 CONCLUSION
¶35 For the reasons stated above, the judgment of the circuit court of Cook County is
affirmed. We order that defendant's mittimus be corrected as directed.
¶36 Affirmed; mittimus corrected.
¶37 PRESIDING JUSTICE GORDON, dissenting.
¶38 I must respectfully dissent from the majority's holding, which concludes that defendant
was properly convicted of the Class 2 form of the UUW offense rather than the Class 3 form of
the offense, because the State failed to give him notice that it was seeking to charge him with an
enhanced Class 2 form of the UUW offense, as required by section 111-3(c) of the Code of
Criminal Procedure (725 ILCS 5/111-3(c) (West 2010)).
¶39 The majority reaches this holding by suggesting that an opinion that I recently authored,
People v. Pryor, 2013 IL App (1st) 121792, was wrongly decided. In Pryor, Justice Taylor
concurred with the opinion that I authored and Justice Palmer dissented. In today's opinion,
Justice Palmer, as the author, together with Justice McBride constitute the majority.
¶40 The majority's opinion acknowledges that there is a split in authority among the appellate
courts on this issue and that our supreme court has already accepted this issue for review. For
5 The name of the offense in the mittimus is listed as "FELON POSS/USE FIREARM PRIOR." 16 1-12-2017
the reasons that I already stated in the Pryor opinion, which I authored just a few months ago, I
dissent here.
17 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
LOVELL POLK,
Defendant-Appellant.
Appellate Court of Illinois First District, Fifth Division
March 14, 2014
JUSTICE PALMER delivered the judgment of the court, with opinion. Justice McBride concurred in the judgment and opinion. Presiding Justice Gordon dissented, with opinion.
Appeal from the Circuit Court of Cook County.
For APPELLANT: Michael J. Pelletier, Alan D. Goldberg, and Kristen E. Mueller, all of the State Appellate Defender's Office, of Chicago
For APPELLEE: Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, Assistant State's Attorneys, of counsel).