People v. Wheatley

2022 IL App (1st) 200171-U

• Court: Appellate Court of Illinois
• Decided: February 28, 2022
• Docket: 1-20-0171
• Status: Unpublished

Opinion

2022 IL App (1st) 200171-U No. 1-20-0171 Order filed February 28, 2022 First Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 19 CR 5898 ) DOMINIC WHEATLEY, ) Honorable ) Charles P. Burns, Defendant-Appellant. ) Judge, presiding.

JUSTICE WALKER delivered the judgment of the court. Presiding Justice Hyman and Justice Pucinski concurred in the judgment.

ORDER

¶1 Held: Defendant’s seven-year sentence for unlawful use of a weapon by a felon is affirmed where the trial court did not improperly consider a factor inherent in the offense.

¶2 Following a bench trial, defendant Dominic Wheatley was found guilty of unlawful use of

a weapon by a felon (UUWF) (720 ILCS 5/24-1.1(a) (West 2018)) and sentenced to seven years’

imprisonment. Wheatley contends the trial court improperly relied on factors inherent in the No. 1-20-0171

offense when it declined to depart from the statutory sentencing guidelines for individuals with

prior felony firearm convictions. We affirm.

¶3 BACKGROUND

¶4 Wheatley was charged by indictment with UUWF (counts I-IV) and aggravated unlawful

use of a weapon (counts V-VIII) arising from an incident on April 8, 2019.1 The State proceeded

on the UUWF counts. Counts I and II asserted that the State sought to sentence Wheatley as a

Class 2 offender because he was on parole or mandatory supervised release at the time of the

offense. Because Wheatley does not challenge the sufficiency of the evidence, we recount only the

facts necessary to resolve the issue on appeal.

¶5 The evidence at trial showed that at 3 p.m. on April 8, 2019, Chicago police officer Javier

Collazo observed a group of people, including Wheatley and Walter Talbert, on the sidewalk on

the 900 block of North Springfield Avenue in Chicago. Talbert adjusted his waistband, which

appeared to hold a heavy object. Collazo approached the group, and Talbert and Wheatley fled.

During the ensuing pursuit, Collazo observed Wheatley drop a black and gray firearm. Collazo

recovered the weapon, which contained a loaded extended magazine. Eventually, assisting officers

found Wheatley among boxes and clutter in a storage area or attic of a nearby house. They asked

Wheatley if he had a Firearm Owners Identification (FOID) card or concealed carry license, and

Wheatley asked, “What is that?” The officers then arrested Wheatley.

¶6 At the bench trial, the State published body camera footage showing officers recovering

the firearm and discovering Wheatley, and a certification showing that on December 13, 2016,

1 Wheatley was indicted with Walter Talbert, who was tried in a separate proceeding and is not a party to this appeal.

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Wheatley had pled guilty to possession of a firearm by a gang member, a Class 2 felony, in case

number 16 CR 14787. The trial court found Wheatley guilty of UUWF (counts I-IV) and denied

his motion for a new trial.

¶7 Wheatley’s presentence investigation report (PSI) showed the prior conviction for

possession of a firearm by a gang member and a separate conviction for possession of a controlled

substance, with prison sentences of three years and one year, respectively. Wheatley, age 24 at the

time of the instant offense, was raised by his mother and reported an “average” childhood.

Wheatley frequently spoke with his mother, who lived in Chicago, and with his father, who resided

in Detroit, and reported a “perfect” relationship with his older brother. He had a three-year-old

daughter, with whom he had a “perfect” relationship and frequent contact when not incarcerated.

¶8 Wheatley graduated from Austin Career Academy and expressed a desire to enroll in

college and major in business. He last worked at a staffing agency in early 2019. Wheatley denied

gang affiliation and reported seeing a psychiatrist for post-traumatic stress disorder (PTSD) during

his previous incarceration. He experienced excessive anxiety and stress due to his current

incarceration and took the psychotropic medication Remeron and a second unnamed medication.

Wheatley regularly consumed alcohol, marijuana, codeine, and ecstasy, and stated that he would

cooperate with any court-ordered substance abuse program.

¶9 At sentencing, the parties disputed whether Wheatley qualified for sentencing under the

guidelines for individuals with prior felony firearm convictions. The State argued Wheatley should

receive seven years’ imprisonment under the guidelines. Defense counsel argued that Wheatley’s

prior conviction for possession of a firearm by a gang member was not a qualifying conviction,

and, therefore, the minimum sentence was not seven years’ imprisonment, but three. Counsel also

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contended that Wheatley self-medicated for PTSD and requested a recommendation to a drug

treatment facility and a sentence of four years’ imprisonment.

¶ 10 In allocution, Wheatley apologized for “wasting” the court’s time and asserted that he

wanted to change his life for the better. Wheatley stated that he planned to move to Minnesota

with his uncle “to help him with construction and make [his] future brighter.”

¶ 11 In announcing sentencing, the court noted that it considered the statutory and non-statutory

factors in aggravation and mitigation and “took a lot of time” reading the PSI. The court

acknowledged Wheatley’s good childhood, family relationships, and PTSD. The court also noted

that Wheatley was 25 years old, carried a weapon with an extended clip during the afternoon, and

committed the instant offense less than a year after being paroled for his prior two convictions.

The court observed that Wheatley’s conviction for possession of a firearm by a gang member was

a predicate felony requiring the “presumptive” sentencing range. The court imposed seven years’

imprisonment with a recommendation of drug treatment and noted that even if the “presumptive”

range did not apply, the sentence would be fair. 2

¶ 12 Defense counsel filed a motion to reconsider the sentence, arguing it was excessive and

penalized Wheatley for exercising his right to trial. During the hearing, counsel further argued that

under the applicable statute, a conviction for possession of a firearm by a gang member did not

trigger the sentencing guidelines for individuals with prior felony firearm convictions.

2 The court did not state whether the counts merged, but the mittimus shows defendant was convicted on count I for UUWF.

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¶ 13 The court denied Wheatley’s motion, noting that even if that conviction did not trigger the

sentencing guidelines at issue, seven years’ imprisonment was “proper” based on Wheatley’s

background and the factors in aggravation and mitigation. Wheatley now appeals.

¶ 14 ANALYSIS

¶ 15 On appeal, Wheatley challenges only the sentence, not the conviction. Wheatley argues he

established grounds for a reduced sentence because he started carrying the gun only after he had

been shot, and he suffered from PTSD and drug addiction, which reduced his culpability. Wheatley

asserts that he had limited criminal history, with only one narcotics possession charge in addition

to the predicate offense; he had finished high school; and he had rehabilitative employment

prospects. Wheatley contends the trial court doubly enhanced his sentence by improperly relying

on factors inherent in the offense when it declined to depart from the statutory sentencing

guidelines for individuals with prior felony firearm convictions.

¶ 16 Wheatley acknowledges that he did not object during sentencing, and thus did not preserve

this issue for review. See People v. Hillier, 237 Ill. 2d 539, 544 (2010) (to preserve a claim of

sentencing error, a defendant must raise both a contemporaneous objection and a written post-

sentencing motion addressing the issue). Nevertheless, he requests we review his appeal under

either prong of the plain error doctrine.

¶ 17 In the sentencing context, a reviewing court may address a forfeited claim under the plain

error doctrine if a clear and obvious error occurred, and either (1) the evidence at the sentencing

hearing was closely balanced, or (2) the error was so serious that it deprived the defendant of a fair

sentencing hearing. Id. at 545. “When a defendant fails to establish plain error, the result is that

the ‘procedural default must be honored.’” People v. Naylor, 229 Ill. 2d 584, 593 (2008) (quoting

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People v. Keene, 169 Ill. 2d 1, 17 (1995)). The initial consideration is whether a clear and obvious

error occurred. Hillier, 237 Ill. 2d at 545.

¶ 18 The parties dispute the applicable standard of review. Wheatley contends that we should

review this issue de novo, because whether the court relied on an improper factor during sentencing

is a question of law. See People v. Chaney, 379 Ill. App. 3d 524, 527 (2008). The State, citing

People v. Steel, 2021 IL App (1st) 192518-U, argues the proper standard is abuse of discretion, as

courts have broad discretion regarding whether to depart from the sentencing guidelines. 3 In

imposing sentence, the court must balance the seriousness of the offense with the objective of

restoring the defendant to useful citizenship. Ill. Const. 1970, art. I, § 11. A reviewing court gives

substantial deference to the sentencing court because the sentencing court is better positioned to

consider the defendant's credibility, demeanor, moral character, mentality, environment, habits,

and age. People v. Snyder, 2011 IL 111382, ¶ 36. We will not modify a sentence absent an abuse

of discretion. Id. We review this matter for an abuse of discretion.

¶ 19 Wheatley was convicted of UUWF after previously being convicted of possession of a

firearm by a gang member. UUWF generally is a Class 3 felony, but in this case, due to Wheatley

having been on parole or mandatory supervised release at the time of the offense, UUWF was a

Class 2 felony with a sentencing range of 3 to 14 years’ imprisonment. 720 ILCS 5/24-1.1(e) (West

2018). The trial court determined, and the parties agreed, that Wheatley’s previous conviction for

possession of a firearm by a gang member triggered the statutory sentencing guidelines for

3 See Illinois Supreme Court Rule 23(e)(1) (eff. Jan. 1, 2021) (allowing a nonprecedential order entered under Rule 23(b) after January 1, 2021, to be cited for persuasive purposes).

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individuals with prior felony firearm convictions, subjecting Wheatley to a sentencing range of 7

to 14 years’ imprisonment. See 730 ILCS 5/5-4.5-110(a)(A), (c)(1) (West 2018).

¶ 20 Under section 5-4.5-110 of the Code, a defendant found guilty of UUWF who has a prior

conviction for one of the predicate offenses listed in the section “shall be sentenced to a term of

imprisonment within the sentencing range of not less than 7 years and not more than 14 years,

unless the court finds that a departure from the sentencing guidelines under this paragraph is

warranted under subsection (d) of this Section.” 730 ILCS 5/5-4.5-110 (West 2018).

¶ 21 Subsection (d) provides:

“[T]he court may depart from the sentencing guidelines *** if the court, after

considering any factor under paragraph (2) of this subsection (d) relevant to the

nature and circumstances of the crime and to the history and character of the

defendant, finds on the record substantial and compelling justification that the

sentence within the sentencing guidelines would be unduly harsh and that a

sentence otherwise authorized by law would be consistent with public safety and

does not deprecate the seriousness of the offense.

In deciding whether to depart from the sentencing guidelines under this paragraph,

the court shall consider:

(A) the age, immaturity, or limited mental capacity of the defendant at the time of

commission of the qualifying predicate or current offense, including whether the

defendant was suffering from a mental or physical condition insufficient to

constitute a defense but significantly reduced the defendant's culpability;

(B) the nature and circumstances of the qualifying predicate offense;

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(C) the time elapsed since the qualifying predicate offense;

(D) the nature and circumstances of the current offense;

(E) the defendant's prior criminal history;

(F) whether the defendant committed the qualifying predicate or current offense

under specific and credible duress, coercion, threat, or compulsion;

(G) whether the defendant aided in the apprehension of another felon or testified

truthfully on behalf of another prosecution of a felony; and

(H) whether departure is in the interest of the person's rehabilitation, including

employment or educational or vocational training, after taking into account any past

rehabilitation efforts or dispositions of probation or supervision, and the defendant's

cooperation or response to rehabilitation.” 730 ILCS 5/5-4.5-110 (d) (West 2018)

¶ 22 Wheatley does not challenge whether his prior conviction for possession of a firearm by a

gang member was a felony which triggered the sentencing guidelines for individuals with prior

felony firearm convictions. Instead, Wheatley argues the trial court improperly considered his

possession of a firearm, his previous conviction for possession of a firearm by a gang member,

and his parole status in declining to depart from the statutory sentencing guidelines for individuals

with prior felony firearm convictions when those same factors are also implicit in the Class 2

charge of UUWF (720 ILCS 5/24-1.1(a), (e) (West 2018)). See, e.g., People v. Phelps, 211 Ill. 2d

1, 11 (2004) (“[A] factor implicit in the offense for which the defendant has been convicted cannot

be used as an aggravating factor in sentencing for that offense.”).

¶ 23 We agree that elements of an offense are “off-limits as aggravating factors.” People v.

Valadovinos, 2014 IL App (1st) 130076, ¶ 55. The trial court cannot use a factor “both as an

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element of an offense and as a basis for imposing a harsher sentence than might otherwise have

been imposed.” People v. Guevara, 216 Ill. 2d 533, 545 (2005); see also People v. Dowding, 388

Ill. App. 3d 936, 942 (2d Dist. 2009) (“[I]t is well established that a factor inherent in the offense

should not be considered as a factor in aggravation at sentencing.”) The dual use of a single factor

is often referred to as a “double enhancement.” People v. Gonzalez, 151 Ill. 2d 79, 85 (1992). This

prohibition reflects the common-sense notion that a given offense’s sentencing range already

reflects the elements of the offense. See People v. Conover, 84 Ill. 2d 400, 405 (1981). If the

legislature wanted an element to be usable again in aggravation, “such intent would be more clearly

expressed.” Id.

¶ 24 Our supreme court has ruled that the legislature is authorized “to codify provisions which

enhance a criminal offense (e.g., misdemeanor to a felony) or enhance the applicable range of

punishment (e.g., extended term sentence or Class X sentencing). This is known as ‘single

enhancement.’” People v. Thomas, 171 Ill. 2d 207, 223 (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. Id.

¶ 25 Although Wheatley frames the issue on appeal as whether the court imposed a double

enhancement, the issue here is whether the trial court properly applied the factors to determine if

it should depart from the sentencing guidelines based on a “substantial and compelling justification

that the sentence within the sentencing guidelines would be unduly harsh and that a sentence

otherwise authorized by law would be consistent with public safety and does not deprecate the

seriousness of the offense.” 730 ILCS 5/5-4.5-110(d)(2). Wheatley does not dispute that section

730 ILCS 5/5-4.5-110(d)(2) applies, and Wheatley concedes that the record shows the trial court

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identified the appropriate statutory factors in deciding whether to depart from the sentencing

guidelines. As required, the trial court addressed Wheatley’s age and mental condition, the nature

and circumstances of the qualifying predicate offense, the time elapsed since the qualifying

offense, the nature and the circumstances of the current offense, and Wheatley’s criminal history.

See 730 ILCS 5/5-4.5-110(d)(2) (West 2018). Although Wheatley’s prior UUWF conviction was

used as a predicate offense for the conviction at issue, the trial court could properly consider the

UUWF conviction in this instance. See People v. Brown, 2018 IL App (1st) 160924. The trial court

determined that the statutorily-mandated guidelines applied, and sentenced Wheatley to the

minimum sentence of seven years’ imprisonment.

¶ 26 Wheatley argues that the court only commented on the existence of the nature and

circumstances of the offense but did not address the issue because no evidence was provided.

Wheatley further contends that without discussing the nature and circumstances of both offenses,

it was improper for the court to rely upon those facts in sentencing. See People v. Abdelhadi, 2012

IL App (2d) 111053, ¶ 14 (the trial court’s reference to the defendant’s threat of harm to others

and the fact he was on probation as an aggravating factor, “with no elaboration or description” of

either factor, did not amount to mentioning the “nature and circumstances” of the crime of

aggravated arson).

¶ 27 Despite Wheatley’s contention, the trial court’s recital of the factors applicable for

determining whether to depart from the sentencing guidelines is not a double enhancement. See

People v. Garcia, 2018 IL App (4th) 170339, ¶ 37 (“The trial court’s exercise of discretion when

selecting an appropriate sentence within the statutory framework is not a double enhancement.”).

After considering the statutorily required factors, the court determined that seven years in prison

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was appropriate. See 730 ILCS 5/5-4.5-110(d)(2) (West 2018). A double enhancement is an

increased sentence. Here, the applicable statute has nothing to do with enhancement, instead it

authorizes the trial court to reduce or diminish a sentence when appropriate. Enhancement is the

opposite of what the statute allows. The trial court considered those required factors and did not

reduce or increase the sentence, but instead, the trial court sentenced Wheatley to the minimum.

We find the trial court did not abuse its discretion when it found no substantial and compelling

justification for departing from the statutory sentencing range, and we find no error in the trial

court’s analysis. Absent error, there can be no plain error, and therefore, defendant’s procedural

default must be honored. See Naylor, 229 Ill. 2d at 593.

¶ 28 CONCLUSION

¶ 29 For the foregoing reasons, we affirm the trial court’s judgment.

¶ 30 Affirmed.

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