People v. Whalum, 2014 IL App (1st) 110959-B (September).
So, some unlawful use of a weapon by a felon charges DO require notice under 725 ILCS 5/111-3(c). Case after case, the appellate court has been telling us that no such requirement is required. There is an exception.
For Related UUW articles see:
- The Unlawful Use of a Weapon by a Felon Notice Requirement Under 725 ILCS 5/111-3(c) Doe Not Exist
- Illinois Gun Laws Are a Big Mess
- AUUW Gun Conviction Vacated in the 4th District under Aguilar Even When Defendant Was a Felon!
Was the State required to give notice to Defendant pursuant to 725 ILCS 5/111-3(c) that they intended to seek an enhanced felony classification and sentence for defendant’s conviction for unlawful use of a weapon by a felon?
Defendant was charged under the Illinois Compiled Statutes Criminal Code with unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a), (e)). The state alleged in the indictment that defendant was previously convicted of delivery of a controlled substance under a Wisconsin case.
The State did not give notice to Defendant that they would enhance his conviction from a Class 3 offense to a Class 2 offense under section 111-3(c) of the Code of Criminal Procedure. 725 ILCS 5/111-3(c).
Section 111-3 of the Code of Criminal Procedure provides, in relevant part that:
“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.”
In enacting the statute, the legislature “intended the statute to reach those instances in which a prior conviction elevates the classification of the offense with which a defendant is charged and convicted, rather than simply the sentence imposed.” People v. Jameson, 162 Ill. 2d 282, 288 (1994).
The notice provision contained in section 111-3(c), however, “applies only when the prior conviction that would enhance the sentence is not already an element of the offense.” People v. Easley, 2014 IL 115581, ¶ 19. Where a prior conviction is a required element of the offense, “only one class of felony conviction is possible for the offense as alleged in the charging instrument.” Id.; People v. Nowells, 2013 IL App (1st) 113209, ¶ 26 (“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”).
The sentencing provision applicable here states that a Class 2 felony exists as follows:
“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, 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. Violation of this Section by a person who is on parole or mandatory supervised release is a Class 2 felony for which the person, if sentenced to a term of imprisonment, shall be sentenced to not less than 3 years and not more than 14 years.”
A careful reading of the above sentencing statute demonstrates that the verbiage, “or any other jurisdiction”, is not included when the prior crimes that invoke a Class 2 offense are described.
Defendant’s Wisconsin felony does not fall under any of the specific types of felonies listed under section 24-1.1(e) that require a violation to be classified as a Class 2 felony because it is not a violation of article 24 of the Criminal Code of 1961, the Firearm Owners Identification Card Act, the Illinois Controlled Substances Act, the Cannabis No.Control Act, the Methamphetamine Control and Community Protection Act, or a second violation of section 24-1.1. 720 ILCS 5/24-1.1(e). None of these sections are paraphrased with the term “or any other jurisdiction.”
Similarly, the Wisconsin conviction does not fall under any of the more general categories listed under section 24-1.1(e), i.e., a conviction for a forcible felony (720 ILCS 5/2-8), stalking, aggravated stalking, or status as a parolee. 720 ILCS 5/24-1.1(e)
Some Unlawful Use of a Weapon by a Felon Charges DO Require Notice
Simply stated, Defendant’s Wisconsin felony conviction for delivery of a controlled substance, however, does not fall into any of the delineated categories under section 24-1.1(e). Had defendant’s prior Wisconsin felony fallen into any one of the above categories, defendant’s conviction would be a Class 2 felony and notice under section 111-3(c) of the Code of Criminal Procedure would not have been required.
Accordingly, it follows that if the State wanted defendant’s conviction for unlawful use of a weapon by a felon to be a Class 2 felony, it could have done so by using a different prior conviction or by giving defendant notice. The State could have used a different prior conviction for the enhanced classification and sentence, one that falls under one of the categories listed in section 24-1.1(e), as an element of the offense.
This would have eliminated the need to provide notice for an enhanced sentence under section 111-3(c) of the Code of Criminal Procedure. Or, the State could have used defendant’s Wisconsin felony conviction for delivery of a controlled substance, as it did, but given defendant notice in the charging instrument according to section 111-3(c) of the Code of Criminal Procedure.
Some Unlawful Use of a Weapon by a Felon Charges DO Require Notice. Defendant’s Wisconsin felony could only result in a Class 3 felony and a prison sentence of between 2 and 10 years. 720 ILCS 5/24-1.1(e).