## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . V elez , 2012 IL App (1st) 110801

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appellant, v. RAYMOND VE L EZ , Def endant- Appellee

.

District & N o. First District, F irst Division
Docke t No. 1-11-0801

Rule 23 Order

filed
Rule 23 Order withdrawn Opinion filed November 13, 2012

Dec ember

17, 2012
Dec ember

21, 2012

Held (Note : Thi s s

yl lab us

c o nst it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt e r of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Where the trial court found probable cause for char g es of arme d robber y and ag g ravated vehicular hijacking following a preliminary hear ing, and then the State filed a multicount inform at i o n char g ing defe ndant with being an arme d habitual criminal and unlawful use of a wea pon by a felon, the dismiss al of those two counts on the g round that the State failed
to prese nt evidenc e t o s upport those counts was reve rsed, since the dismiss ed counts arose fr o m the same conduct as the ag g ravated vehicular hijacking and arme d robber y counts for whic h probable cause

was found at the preliminary hear ing, they wer e not “complete ly unrelated” or “funda

mentally differ ent” from those counts, and the State
met the require ments of section 111-2(f ) of t h e Code of Criminal Procedur e.

Dec ision Under Review Appea l from the Circuit Cour t o f Cook County
, No. 10-CR-10660; the Hon. Thomas M. Davy , J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, Peter Fische r, and Whit ney Bond, Assistant State’s Attorney s, of counsel), for the People.

Abi shi C. Cunningham, J r., Public Def ender
, of Chicag o (Sophia Atcher son, Assistant Publ ic Def ender , of counse l), for a

ppellee.

Panel J USTI CE CUNNI NGHAM delivere d the judgme nt of the court, with opinion. Presiding J ustice Hoffma

n and J ustice Delort concur red in the judgme nt 1 and opinion.

OP INION

¶ 1 This appea l arises from a J anuar y 21, 2011 order enter ed by the circ u i t co u rt o f C o ok County which gra

nted defendant-a

ppellee, Ray

mond Velez’s mot io n to dismiss one count of being an arme d habitual criminal (720 I L CS 5/24-1.7(a) (West 2010)), and two counts of unlawful use of a wea

pon by a felon (7 2 0 I L CS 5/24-1.1(a) (West 2010)). On appea l, the State argues that the trial court err ed in dismiss ing th e counts for being an arme d habitual criminal and unlawful use of a wea pon by a felon. For the following rea sons, we reve rse the ruling of the circ uit court of C o o k C o u n t y and rema nd the matter for further proce eding s consistent with this opi nion.

¶ 2 BA CKGROUND ¶ 3 On May 26, 2010, Velez was arr ested and char g ed with arme d robber y (720 I L CS 5/18- 2(a) (West 2010)), possession of canna bis (720 I L CS 550/4(b) (West 2010)), and vehicular hijacking (720 I L CS 5/18-4(a) (West 2010)). On J une 4, 2010, a preliminary hear ing was held in the circ uit court of Cook County

. Richard J ohnson, J r., testified that during the morning of May 26, 2010, he exit ed his vehicle and was walking toward h i s h o u se when Velez held a gun to his head. Wit h the g un to Johnson’s he ad, Velez asked J ohnson for his

car key s, wallet and cell phone. After J ohnson g ave Velez the items, Velez ran to J ohnson’s

car , g ot in the car , and drove awa y

. J ohnson did not know Velez prior to that date and did not g ive Velez permission to take his wallet, key s, or car

. On cross-e x amination, J ohnson denied that he ever boug ht drug s from Velez, that Velez was a g uest in his home for dinner, or that he saw Velez t wo t imes during the week t hat J ohns o n ’s ca r wa s missing. The court found

J ust ic e K ar nezis par ti ci pat ed in the ori ginal Rule 23 ord er fi le d Novem ber 13, 2012
, pri or 1
to the exp ir at ion of

hi s a ssi gnm ent to th e I ll ino is Appe ll at e Cou rt

.

-2-that probable cause exis ted for a g g ravated vehicula r hijackingand ar

med robbe ry

. ¶ 4 On J une 17, 2010, the State f il e d a multicount information char g ing Velez with numerous counts, including being an arme d habitual criminal (count I V), unlawful use of a wea pon by

a felon (count V), and unlawful use or possession of a weap o n b y a felon (count VI ). On November 8, 2010, Velez filed a motion to dismiss counts I V, V, and VI
, contending that the State failed to prese nt any evidenc e of a felony conviction at the preliminary hear ing for the offe nses of be ing a

n arme d habitual criminal and unlawful use of a wea pon by a fe lon. On Dec ember 10, 2010, the State filed a response to Velez’s motion. The State argued that under section 111-2 of the Code of Criminal Procedur e of 1963 (Code) (725 I L CS 5/111-2 (West 2010)), it is not require d to prese nt evid en ce at the preliminary hear ing of eac h essential el em en t of ever

y offe nse that is char g ed, as long as the offe nses arise from t h e s am e transac tion or conduct. On J anuar y 21, 2011, the trial court dismiss ed counts I V, V, and VI
, finding “[t] here is no evidenc e that was p re s en t ed at the preliminary hear ing that would support the fac t that the defe ndant was convicted of one, two, three or any felonies. *** I have consistently ruled wher e only one felony is prese nted that the State cannot then char g e

a s econd and I will consistently rule to follow that consistency in my ruling here. ” On Fe bruar y 18, 2011, the State filed a motion for rec onsideration of the cour t ’s ruling on Velez’s motion to dism iss. On March 4, 2011, the trial court de nied the State’s motion for

rec onsideration. On Ma

rch 21, 2011, the State filed a notice of appe al.

¶ 5 ANALYSI S ¶ 6 On M ar ch 4
, 2 0 11, the trial court denied the State’s motion for rec onsideration. On M ar ch 21, 2011, the State filed a timely notice of appea l. There fore
, this court has jurisdiction to consider the State’s arg uments on appea l pursuant to I llinois Supreme Court Rule 603 (ef

f. Oc t. 1, 2010) and I llinois Supreme Court Rule 606 (e ff. Ma r. 20, 2009). ¶ 7 On appea l, the State contends that the trial co u rt er ro n eo u s l y dismiss ed the ar med habitual criminal char g e and unlawful use of a wea pon by a felon char g es ag ainst Velez. The State argues that the trial court contra dicted the plain lang uag e of section 111-2 of the Code when it ruled that the State was require d to submit proof of Velez’s prior felony convictions
at t h e p reliminary hear ing in order to meet the elements of the char g es by information. I n respons e, Velez cites People v. Thomas
, 407 I ll. App. 3d 136, 142, 943 N.E.2d 179, 184 (2011), and People v. Jack son , 269 I ll. App. 3d 851, 855, 646 N.E.2d 1299, 1303 (1995), to argue that proof of a defe ndant’s prior felony conviction is a require d element of the char g es of being an arme d habitual criminal and unlawful use of a wea pon by a felon. The State does
not dispute this. Howeve r, the parties disag ree on how two case s, People v. Redmond
, 67 I ll. 2d 242, 367 N.E.2d 703 (1977), and People v. Kosyla
, 129 I ll. App. 3d 685, 472 N.E.2d 1207 (1984), interpre t section 111-2 of the Code, and whether “eve ry el em ent” of eac h offe nse char g ed must be established by the evidenc e at the pr eliminary hear ing. ¶ 8 This appea l prese nts an issue of statutory construction, which is a question of law and is revie wed de novo

. People v. Donoho
, 20 4 I l l

. 2d 159, 172, 788 N.E.2d 707 (2003). The
p ri m ary rule of statutory construction is to asce rtain and g ive eff ect to the intent o f t h e leg i s l at ure by interpre ting the statute acc ording to the plain and ordinary meaning of the

-3-statute’s lang uag e. Id. at 171-72, 788 N.E.2d at 715. Section 111-2 of the Code provides in

pertinent pa

rt: “(a ) All prosec utions of f

e lonie s shall be by information or by indictment. No prosec ution
may be pursued by information unless a preliminary hear ing has been held or waived in

acc ordanc e with Section 109-3 an d at that hear ing probable cause to believe the defe ndant committed an offe nse was found, and the provisions of Section 109-3.1 of this Code have been c omplied with.
* * * (f) Where the prosec ution of a felony is by information or complaint afte r preliminary hear ing, or afte r a waiver of preliminary hear ing in acc ordanc e with para g raph (a) of this Section, such prosecution may be for all offenses, arising from the same transaction or conduct of a defendant eve n though the complaint or complaints filed at the preliminary h ea ring charged only one or some of the offenses arising from that trans a ct i o n o r conduct .” (Empha sis added.) 725 I L CS 5/ 111-2 (West 2010). ¶ 9 The leading case on this issue is Redmond
, in which t h e d ef en d an t wa s char g ed with
ag g ravated battery

. Redmond
, 67 I ll. 2d at 243, 367 N.E.2d at 704. The complaining witness testified that when he attempted to purcha se drug s from the defe ndant, the defe ndant pulled

a g un from his pocket. Id. at 244, 367 N.E.2d at 704. When the complaining witness rea ched
to g rasp the defe ndant’s arm, the g un went off and a bullet struck him in the leg

. Id. After a preliminary hear ing, the trial court enter ed a finding of probable cause for ag g ravated battery

. Id. The State subsequently filed an information char g ing three counts of ag g ravated battery and adding a char g e for attempted murder. Id. The defe ndant moved to dismiss the attempted murder char g e on the g round that a preliminary hear ing had not been held on that char g e. Id. The trial c ourt g rante d the motion. Id. at 245, 367 N.E.2d at 704. ¶ 10 T h e re v iewing court reve rsed, holding that an information setting forth offe ns es n o t char g ed at the preliminary hear ing but arising from the same transac tion as that involved at t h e p reliminary hear ing does not violate due proce ss. Id. at 248, 367 N.E.2d at 70 6

. I n Redmond
, the court conclude d that the State’s char g ing the defe ndant with attempted murder

was authorized under section 111-2. Id. at 249, 267 N.E.2d at 706-07. Fur ther, as the court explained i n People v. Robinson
, 104 I ll. App. 3d 544, 432 N.E.2d 1195 (1982), “[a]n

acc used would be entitled to a second prelim i n ar y hear ing only if the new char g e was ‘complete ly

unrelated’ a

nd ‘fundamentally

differ ent’ fr om the offe nses orig inally char g ed. [C ititation.] ” Robinson
, 104 I ll. App. 3d at 550, 432 N.E.2d at 1199-1200 (following Redmond and finding that the char g e of arme d robber y was related to the murder char g e set forth in the pre liminary

complaint). ¶ 11 Her e, t h e d ismiss ed counts arose from the same conduct as the ag g ravated vehicula r hijacking and arme d robber y counts of the preliminary hear ing. The compl aining witness, Richar d J o h nson, J r., testified during the preliminary hear ing that Velez held a g un to his head and asked fo r J ohnson’s car key s, wallet, and cell phone, and then drove awa y in J ohnson’s car

. The char g es for being an arme d hab i t u al cr i minal and unlawful use of a

wea pon by a felon are not “complete ly unrelated” or “funda mentally differ ent” from arme d robber y and ag g ravated vehicular hijack i n g fo r which probable cause was found. See id.

-4-These addit i o n al char g es clea rly arose from Velez’s conduct on the date in question. The
weap o ns char g es at issue here arose out of the same fac ts as the char g es considere d at the preliminary hear ing beca

use the evidenc e prese nted at the preliminary hear ing showed that Velez held a gun to J ohnson’s hea d and dema nded Johnson’s property

. ¶ 12 Velez cites People v. Kosyla
, 129 I ll. App. 3d 685, 472 N.E.2d 1207 (1984), to suppor t his argument that the prope r re adingof the statute r equire s the State to prese nt evidence at the preliminary hear ing of eve ry eleme nt of the offe nses char g ed. Velez ar g ues that Kosyla found that a rea sonable construction of t h e l an gu age “all offe nses ‘ar ising from the same transac tion or conduct of a defe ndant’ ” m ea n s t h at any offe nses shown “ by the evide nce presented

” at the preliminary hear ing may be prosec uted even though such offe nses wer e not initially char g ed at the time of the preliminary hear ing. (Emphasis added.) See Kosyla
, 129 I ll. App. 3d at 696, 472 N.E.2d at 1214. We do not a g ree with V elez’s interpre tation of the Kosyla court’s meaning o f “b y the evidenc e.” Our rea ding of “by the evidenc e” does not require a stricter interpre tation of Redmond
, and does not amount to a require ment that the State prese nt at the preliminary hear ing proof of ever y element of ever

y offe nse char g ed. For instance, there was no evidenc e prese nted in Redmond that the defe ndant intended to commit murder, y et the State was n ever theless permitted to char g e the defe ndant with attempted murder. See Redmond
, 67 I ll. 2d at 243-44, 367 N.E.2d at 704. There fore
, we hold that the State prese nted sufficie nt evidenc e to meet the require ments of section 111-2(f ) of the Code, and the trial court err ed in dis m issing the counts of being an arme d habitual criminal, unlawful use of a wea

pon by a felon, and unlawful use or possession of a wea pon by a felon. ¶ 13 For the fore g oing rea sons, the judgme nt of the circ uit court of Cook County is rever sed and the c ause is re manded f or fur ther proc eeding s consistent with this opi nion.

¶ 14 Reverse d and re manded.

-5-