conduct he now stands convicted of a class x felony and is serving a sentence of thirty years imprisonment the state's theory behind this this conviction sentence is that it proved that trial that the defendant was driving his license was revoked making his behind up the class a misdemeanor and then at sentencing the state proved that the fine and had a prior conviction of driving license was revoked and that his  revocation was the result of a driving while under the influence conviction thus making his conduct a class four felony which could serve as a predicate offense for armed violence now there are two i think major problems with this theory of prosecution number one this conduct simply is not violence this is driving a car with a knife and secondly this conviction rests in in part on evidence that was present at sentencing there if the state had gone to the sentencing hearing and presented no evidence the defense conviction would have had to be vacated at that point the trial does cannot sentence him because there would be no proof that he committed a felony while he was armed mr hammack we focus for a minute on may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during such trial  so if i understand the facts are directly the evidence relating to defend inspired d w r l conviction was never presented to the jury is that right right instead it was presented to the tribe or the sentencing but nevertheless the jury was allowed to return a verdict on armed violence that's correct what how did the armed violence instruction read in this case the armed violence instruction included the elements of misdemeanor driving while licenses revoked which i think was done in an attempt to comply with section one eleven three c and i think the existence of such one eleven three c is relevant to this case and in really into aspect and and it goes to both of the issues that i was hoping to focus on today i think that the in existence of section well in three c offenses the legislators intent not to make a separate felony  offenses for these enhanced misdemeanors and that in just two reasons for that one is that the the actual language of one of the three seawitch which says that these are not elements of the offense to be proved at trial and if they're omits of the offense that these enhanced missing as others have the same elements as do the misdemeanor versions of the offenses and they're not separate offenses they're simply extended term sentencing provisions which is what the appellate court has held several times in this is come up  different context including their district to which one so the opposite in this case now and then the second part that problem is that it creates this situation where these this this statute to provides that the state forbidden from proving these elements to make these crimes of felonies and that's all well and good if you're doing that and a misdemeanor prosecution or a class for phony prosecution where you're simply given somebody an extended term but this is  by common sense in that a class a misdemeanor is already partial or three hundred sixty four days in jail and that is the maximum any misdemeanor can possibly be punished if you punish them one more day if you can one more day than it's of as a class four felony by definition so the and this is the and this is why the pope chords in turkey in the statute in another context of have all agreed that these really are just this is just really our misdemeanor offenses that are you know they're given an extended term sensing provision for repeat misdemeanors because we have to do something to give them longer longer prison sentences when that when people repeatedly violate them is not intended to create a separate new felony offense that can be a predicate offense to would your argument have to be here and you please correct me on that there was no it was no felony here it was simply it has not necessarily because really from almost day one this court has held but the general point of all three cases is the same and that is in that is that that any felony should not be construed literally that it should be limited ke he drove a car and that was the extent of the of the conduct that he committed to to make him eligible for armed violence here if if this court or the state's theory  a conflict here between one eleven three c and the violence statute and this is this is going back to which case most similar the hair in case the reason why this court found that the that he here the conflict between well of and three c and the on violence statute is is more direct and and the is a much more meaningful conflict because it is a practical matter impossible to  and without that proof you you have a conviction of committing a misdemeanor while armed on the other hand section while loving for you see says they can't prove these elements so the best way to resolve this is ways court resolve the conflict in heron and say these obviously were not meant to driving a car and it's still an offense that was meant to be a misdemeanor as is the conduct before misty were driving the lesson of what is exactly the same as caught the conduct were felony driving license revoked which is also exactly the same as legal activity the only difference is the driving record which has absolutely nothing to do with the nature of the conduct itself it's you know it's a sentencing consideration it's not it is not a consideration for deterring i want to add something is an offense there is a is a would assume would have to be vacated but how can a jury conviction you know undone by evidence presented presented a sentence because evidence was never presented to the jury or when to put it this way the evidence presented to the jury established only a misdemeanor form of you well i don't believe that's correct your honor there are three statutes here each of which have plain an ambiguous language one of process problem but the supreme court of the united states supreme court excuse me has made it clear that it does not in a mandara as torres and it's discussion of that case an appointee it's stated that the fact of a prior conviction  is the one fact essential to a sentence that doesn't need to be proven to a jury because the procedural safeguards attached to the prior conviction mitigate the due process concerns that would otherwise be implicated the elements of violence are that wall armed with a dangerous weapon defending commit any crime defined as a felony b are is unambiguous we defined as a class four felony when it's a prior conviction but that doesn't mean that the prior conviction becomes an element of the crime your argument that the park admission is not an element correct  a it does need to be demonstrated to the judge at sentencing in order for d w i are to can be defined in the case as a felony and the defendant needs to be notified by the charging instrument that the state intends to use the prior conviction hugh define t w r as a felony but it doesn't have it's not an element of the crime and doesn't need to be proven to the jury it's not a it's not  any any fact essential to a defendant sentence must be proven to a jury but there is an exception made for prior convictions because of the due process protections that exist when in the course of the prior conviction is this that is not directly a sentencing issue as results in the sentencing change if it's really not a sentencing issue it changes the greater the crime it is yes china changes the grade of a crime that can't happen until the judge is called upon to make to make the finding of whether or not the prior prior crime will be considered in this case or whatever i don't believe that's correct john or because the charging in sherman is required to indicate the states inten the charge of consideration we're left with this strange situation here it's no nobody's fault you have to argue the case of this but we're left with a strange situation here where a key to raising this crime from a class a misdemeanor ultimately to a class x felony with thirty years is whether or not the defendant committed the earlier crime that correct because in essence the prior the prior conviction is in essence a sentencing enhanced and yes it is necessary to the definition of d w i are as a felony and state's the crime that the se had charged the defendant with would then become not satisfactory because you wor is defined as a felony only where there is a prior conviction and the initial suspension but the the question here are the two questions here as as the defendant has separated them out of one whether d w i larken satisfied the so called predicate offense element of armed violence into whether the elements of the crime were proven beyond a reasonable doubt to the jury the playing it on in the us language of the on violence statute states  that you're guilty of on violence if while armed you commit any crime defined as a felony under illinois law and then it proceeds to exclude ten felonies explicitly armed robbery home invasion several others and those that it doesn't exclude are unambiguous lee included and there are several several points to be made here about that interpretation one is which the case is that the fed in cites and says stand for the proposition that any felony really means something like any felony that furthers the purpose of the statute we're discussing the statute before the legislature took the time to problems and i actually think that strengthens the state's argument that the legislature intended intended any felony to mean any felony other than those that create these specific problems the statute now for example excludes crimes such as the one inherent that become a felony only by virtue of the defendant having been armed at the time they have address the specific problem that the legislature could easily have excluded all felonies that are misdemeanors enhanced for various factors including prior convictions and they did not  to the fact that the specific circumstances of of the felony inherent that it became a felony only because the defendant was armed not being present in this case i think the fact that the legislature has since excluded certain fel explicitly showing things this is the state's argument that the clause any crime defined as a felony under illinois law means precisely that any felony i also will point out  are also not a political here they go with crimes that this court determined were under terrible and as defending himself acknowledges driving while one's licenses revoked is not an undeterred ball offense  which actually brings me to another point i want to clarify defendants conduct for which he was convicted and sentence was not driving while carrying a knife he was committing a crime defined as a felony while armed with a dangerous weapon  which is i think important to keep in mind especially as considering defendants proportion penalties cause an abuse of discretion arguments that he makes in his briefs but did once i'm not aware of cases in which the specific other kinds of crimes that would be similar to this situation i think the situation is   was properly applied in the sense that it's not an element of a crime and that that evidence can't be given to the jury and yet it's so a felony is a class four felony provided that the state present that evidence to the judge at sentencing i was talking with reference  well as opposed to any felony where the crime was a felony or defined as a felony only by virtue of defendant having a prior conviction would follow the same the same procedures i'm not aware of any off the top of my head your hon i also would contend that allowing these kinds of felonies to serve as a predicate offense from violence does in fact further legislative intent and deterring criminals from bringing together uniquely dangerous combinations of criminal activity and dangerous weapons is furthered by allowing the w r to serve as a predicate felony and i think the instant case actually is an example of that defendant fled the scene of his felony with an officer in pursuit and entered a private residence actions that were all necessitated by having him having committed a felony and these actions created a much higher degree of risk for the officer and members of the unity mrs you then for example did not want defendant hiding in her house if she had tried if the officer at apprehended the defendant mrs uganda tried to keep him from entering her house they would have been at far greater risk because the defendant was armed with what the legislature the term is a dangerous weapon at the  time very quickly is far as the proportion penalties challenge goes the rounds that are raised that remains from sharda is that the statute is so legislature to determine a sentence with a minimum of fifteen years imprisonment was appropriate when the underlying or the predicate offense would ordinarily have resulted in a penalty of probation and only one to three years in the defendant's case in that situation the court determined the party that was reasonable i think for the same reason by focusing on the inherent danger that the legislature identified in committing a felony while armed the court cannot find that its shocks the conscience of the community to and still such heavy penalties in this case nor did the sentencing court abuse its discretion in this case it considered evidence in mitigation from the defendant from his pastor from a prior employer and friend and balance that against the defendant's extensive criminal history this was his seventh felony he was actually on and s are for a prior conviction at the time that he committed this crime as well as a history of substance abuse driving while drunk driving off licenses revoked and committing felonies while armed sentencing the defendant to thirty years imprisonment which was well within the statutory range he faced a minimum of ten years in a maximum of sixty years was not an abuse of discretion because the playing on ambiguous language of the on violence statute states that any felony may serve as a predicate offense from violence where any specific felonies are suited all the rest clearly are not the people proved beyond a reasonable doubt each of the elements of a crime defined as a felony dwi are as well as that defend it was on with a dangerous weapon in the trial court sentenced to defendant who sentence well within the statutory range because a defendant's criminal history was more than the minimum allowed but as mentioned far less than the maximum time he faced the legislature is reasonably determined that this kind of significant sentence is necessary to deter criminals from engaging in the inherently dangerous and potentially deadly conduct of committing felonies while armed with dangerous weapons the court has no further questions for these reasons as well as those state fence that he was convicted of was a leave entering the country illegally after being deported that was proven that was an offense to the question while he was does he which sentencing range does he get as a result of the state gone in the sensing hearing in that case and not prove the prior conviction he would been sentenced for the in the lower range for the same offense in this case the difference is that is an element of the offense without which there is no offense at all and and that and that makes this case still doesn't never has under this court's this course holdings and it still doesn't today and i think this talks about the convergence of three different statutes i think that that helps illustrate why this really is this wasn't intended by the legislature this is three disparate statutes have completely different purposes coming together to create this situation you have you have the armed violence fight you saying any felony and then you have the you factors to be prove that sentencing all three of the statue you put all they gather it's it's clear what was what the legislator intended here and it's and it's not this case and it's certainly not the this comparison analysis which really isn't relevant here and also the body was obsession controlled substance case russian controlled substance is a felony one convicted by anybody this conduct is the conduct is a felony no matter what your background the  possession of a controlled substance can be found to be to further the purpose of the armed violence to actually because people who possess narcotics created dangerous situation where being which could be exacerbated by their being armed driving driving is driving whether you're legal where you