The 725 ILCS 5/111-3(c) notice requirement doesn't have to be complicated or hard to understand. Things would be easier to understand if it was not thrown around necessarily.
The 725 ILCS 5/111-3(c) Notice Requirement
Just so we all know what I am talking about, I mean the Illinois Code of Criminal Procedure Section 111-3(c). It provides:
“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.”
Nothing To See Here Folks
In the end, this is may be just be a little case with no big ramifications.
I agree with the results. In the end, they got it right.
My first reaction was that it could not be right. But upon further, careful review I adjusted my thoughts.
I have figured out my original discontent. I’ll explain, but basically I think I may have been reacting to broad sounding language that was in the opinion. I’ll talk about it and highlight it.
I'll get over it.
So what exactly happened?
I’ll try to explain this from a big picture perspective, then I’ll drill down just a bit.
The case at hand appears to expand the list of cases that are exempt from the 725 ILCS 5/111-3(c) notice requirement. Generally, the defense bar doesn’t like that. Of course, that section purportedly requires the State to give written notice of an intent to seek an enhanced felony based on prior convictions.
We want all the notice we can get get.
Up until now, the only exception to that rule were UUW Felon charges.
This decision makes it appear as though new charges have been added to that list.
Ostensibly, the new charge would be a felony domestic battery. But the charge at issue in the case was really an aggravated kidnapping.
So if the court is trying to slip an expansion of the notice exemption past us, it is with one of these charges.
Before I muttle this up even more, let's first cover some brief history.
The UUW Felon Exception Under Easley
Defendant in People v. Easley, 2014 IL 115581 (03/20/2014) was charged with unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a)).
Defendant challenged that this was a class 2, and argued he was only convicted of a class 3 offense because the State did not comply with section 111-3(c) nor formally notify him of their intent to seek an enhanced sentence.
In Easley, the Illinois Supreme Court discussed the types of charges where this notice requirement applied. The court noted there were at least 26 crimes that could be enhanced to a higher offense classification based on a prior conviction. Additionally, “the prior conviction that allowed the State to increase the offense classification was not an element of the offense.” Easley, 2014 IL 115581, ¶ 18.
In explaining when the Section applied, it noted that “it is clear that the notice provision applies only when the prior conviction that would enhance the sentence is not already an element of the offense…section 111-3(c) applies only when the prior conviction is not an element of the offense.” Easley, 2014 IL 115581, ¶ 19.
The indictment against Easley precisely alleged that he was guilty of unlawful use of a weapon by a felon in that he was previously convicted of unlawful use of a weapon by a felon.
Thus, the language of the charge also clearly indicated that the prior conviction was an element of the offense that must be presented to the trier of fact. Indeed, in that case the jury heard evidence of Defendant’s prior UUW-Felon conviction. See 720 ILCS 5/24-1.1(e); see also Easley, 2014 IL 115581, ¶ 6.
Given these facts the Illinois Supreme Court held that the defendant could only be sentenced as a class 2 offender because that was the only statutorily allowed sentence under section 24-1.1(e), the law allowed nothing else.
The Case At Hand
So Lets talk about the case at hand.
Here, we have a defendant charged with aggravated kidnapping, violation of order of protection and domestic battery. He was sentenced to 28 years in IDOC.
The gist of the fact pattern included an allegation that Defendant
- Battered the victim
- Drove off with her trapped in her own car, then
- Abruptly stops the car and
- Throws victim out the car.
A kidnapping is committed when a person –
- Knowingly and secretly
- Confines another
- Against her will; or
- By force or threat of imminent force
- Carries another from one place to another
- With intent secretly to confine that other person against her will.
See 720 ILCS 5/10-1.
However, a person commits the offense of aggravated kidnapping when, in pertinent part, at the time he commits the offense of kidnapping, he commits another felony upon his victim. 720 ILCS 5/10-2(a)(3).
Thus, for an aggravated kidnapping, as charged here, part of the element of that crime is proving to the jury that Defendant committed a felony upon the victim during the kidnapping.
Things got a little tricky here because the State was alleging and proving that the felony Defendant committed during the kidnapping was a felony domestic battery. This offense was itself an enhanced charged from an ordinary misdemeanor domestic battery.
Domestic battery is a Class 4 felony if the defendant has any prior conviction for domestic battery. See 720 ILCS 5/12-3.2(b).
The State alleged that they were seeking an “Aggravated Kidnapping” conviction and indeed alleged in the charging language that during the kidnapping of the victim Defendant “committed another felony upon [the victim] to wit: domestic battery…” ¶ 31.
Additionally, the other charges made it clear that Defendant committed a felony domestic battery. The State was seeking an enhanced domestic battery and followed all the notice requirements required by section 111-3(c).
Nonetheless, Defendant contended that his aggravated kidnapping conviction should be reduced to kidnapping because the State failed to introduce evidence during trial of his prior domestic battery conviction that enhanced his domestic battery to a felony domestic battery.
Now, this court held that notice under 111-3(c) was not required.
This is the right decision. It has to be this way. Otherwise, we are brining prior convictions before the jury.
And no we don’t really want that.
Appropriately, the jury was not informed about the prior domestic battery convictions. That was an issue that was brought up and proved up and sentencing.
Why They Talking Like That?
If I had a bone to pick with the decision, and as an explanation for my original hesitation it was the fact that the court used language like this.
In their ruling the court said:
“Here, defendant had a previous conviction for domestic battery at the time he committed the domestic battery at issue in this cause. Thus, when defendant was charged with domestic battery, only a felony was statutorily available. 720 ILCS 5/12-3.2(b)” ¶ 44.
That’s not true. A misdemeanor was available also. But the charging instrument was clear and he was given notice that they were seeking a felony.
Further in explaining why this was an aggravated kidnapping they wrote:
“The State also proved defendant committed domestic battery beyond a reasonable doubt where it established defendant knowingly caused bodily harm to [the victim], with whom he had three children. This domestic battery conviction was a felony because, where defendant had a prior conviction for domestic battery, he could not be charged with or convicted of anything less than the felony. Accordingly, the State proved defendant committed felony domestic battery while also committing aggravated kidnapping.” ¶ 45.
And then they use this kind of language that is just unnecessary, they say:
“Our analysis here shows that, in line with our supreme court's opinion in Easley, defendant was charged with and convicted of felony domestic battery as a matter of law. Felony domestic battery was the only conviction possible for the offense of domestic battery as alleged in the charging instrument.” ¶ 48.
We can see what they are doing. They are just taking the language from Easley and borrowing it. But it is horribly out of context. They don’t have to say it that way to get to the right result.
Lets Keep It Simple
It’s the aggravated kidnapping that they should be talking about. That’s the issue. More importantly. Aggravated kidnapping is not even necessarily implicated by section 111-3(c) because it doesn’t involve a prior conviction.
First of all Defendant, was not challenging the felony domestic battery conviction (well he was but as a lesser included) he was challenging the aggravated kidnapping.
So, the court has to uphold the felony domestic battery in order to keep the aggravated kidnapping conviction.
But all they had to do was just say that he had notice for the felony domestic battery and 111-3(c) wasn’t required for the aggravated kidnapping.
That’s all they had to do.
Section 111-3(c) is tricky enough as it is. Lets keep it simple and we’ll be better off.
Why It Matters
Anytime, an appellate court tries to expand upon an Illinois Supreme Court decision we need to be there to evaluate if the expansion is justified.
Again, let me say the decision came out right here. However, I think Easley was probably unnecessarily stretched into something that just looks really horrible.