People v. Sanderson, 2016 IL App (1st) 141381 (April). Episode 180 (Duration 6:40)
Attempted residential burglary is not a forcible felony that can be used to sustain an armed habitual criminal conviction.
What is a Forcible Felony?
The Code defines “forcible felony” as follows:
“Treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual.”
An unenumerated felony falls within the residual clause if the defendant “contemplated that the use of force or violence against an individual might be involved and [was] willing to use such force or violence.” (Emphasis in original.) People v. Belk, 203 Ill. 2d 187, 196 (2003).
But the defendant need not actually inflict physical injury.
Case Law on Attempt Murder
Additionally, “Because every attempted murder involves a specific intent to cause death, the trier of fact who finds a person guilty of attempted murder must find that the guilty person contemplated the use of sufficient force to cause very serious injury, injury that can lead to death.”
Reviewing courts have held that every attempted murder qualifies as a forcible felony for purposes of the armed habitual criminal statute.
Technically Any Crime Can Be a Forcible Felony
A felony can qualify as a forcible felony, even if a crime does not have violent intent as an element, is if the State proves that “under the particular facts of this case,” the defendant contemplated the use of force and was willing to use it.
Holding
Defendant’s conviction for attempted residential burglary is neither by definition nor by circumstance a forcible felony.
None of the elements of attempted residential burglary requires that the defendant contemplate the use of violence. Second, there is no evidence that, under the particular facts of this case, Defendant contemplated the use of force.
See Also People v. White, 2015 IL App (1st) 131111 (December). Episode 126 (Duration 3:01)
- Battery With only Mere Harm Not a Forcible Felony
- Domestic Batteries in That Case Not a Forcible Felony
More Illinois Sentencing Information
Hey, to learn more about Illinois sentencing parameters check out my Illinois Sentencing Guide.
Samuel Partida, Jr. is now prosecuting criminal law cases in an Illinois county near you. He is, therefore, unavailable to answer questions on this site. Always remember, there is no substitute for steady, persistent attention to the cases.