ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.

RAYMOND VELEZ, Defendant-Appellee.

 District & No. First District, First Division

Docket No. 1-11-0801

Rule 23 Order filed

Rule 23 Order

withdrawn

Opinion filed

November 13, 2012

December 17, 2012

December 21, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Where the trial court found probable cause for charges of armed robbery

and aggravated vehicular hijacking following a preliminary hearing, and

then the State filed a multicount information charging defendant with

being an armed habitual criminal and unlawful use of a weapon by a

felon, the dismissal of those two counts on the ground that the State failed

to present evidence to support those counts was reversed, since the

dismissed counts arose from the same conduct as the aggravated

vehicular hijacking and armed robbery counts for which probable cause

was found at the preliminary hearing, they were not “completely

unrelated” or “fundamentally different” from those counts, and the State

met the requirements of section 111-2(f) of the Code of Criminal

Procedure.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 10-CR-10660; the

Hon. Thomas M. Davy, Judge, presiding.

Judgment Reversed and remanded.
Counsel on

Appeal

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Peter

Fischer, and Whitney Bond, Assistant State’s Attorneys, of counsel), for

the People.

Abishi C. Cunningham, Jr., Public Defender, of Chicago (Sophia

Atcherson, Assistant Public Defender, of counsel), for appellee.

Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with

opinion.

Presiding Justice Hoffman and Justice Delort concurred in the judgment 1

and opinion.

OPINION

¶ 1 This appeal arises from a January 21, 2011 order entered by the circuit court of Cook

County which granted defendant-appellee, Raymond Velez’s motion to dismiss one count

of being an armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2010)), and two counts of

unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2010)). On appeal, the

State argues that the trial court erred in dismissing the counts for being an armed habitual

criminal and unlawful use of a weapon by a felon. For the following reasons, we reverse the

ruling of the circuit court of Cook County and remand the matter for further proceedings

consistent with this opinion.

¶ 2 BACKGROUND

¶ 3 On May 26, 2010, Velez was arrested and charged with armed robbery (720 ILCS 5/18-

2(a) (West 2010)), possession of cannabis (720 ILCS 550/4(b) (West 2010)), and vehicular

hijacking (720 ILCS 5/18-4(a) (West 2010)). On June 4, 2010, a preliminary hearing was

held in the circuit court of Cook County. Richard Johnson, Jr., testified that during the

morning of May 26, 2010, he exited his vehicle and was walking toward his house when

Velez held a gun to his head. With the gun to Johnson’s head, Velez asked Johnson for his

car keys, wallet and cell phone. After Johnson gave Velez the items, Velez ran to Johnson’s

car, got in the car, and drove away. Johnson did not know Velez prior to that date and did not

give Velez permission to take his wallet, keys, or car. On cross-examination, Johnson denied

that he ever bought drugs from Velez, that Velez was a guest in his home for dinner, or that

he saw Velez two times during the week that Johnson’s car was missing. The court found

Justice Karnezis participated in the original Rule 23 order filed November 13, 2012, prior 1

to the expiration of his assignment to the Illinois Appellate Court.

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that probable cause existed for aggravated vehicular hijacking and armed robbery.

¶ 4 On June 17, 2010, the State filed amulticount information charging Velez with numerous

counts, including being an armed habitual criminal (count IV), unlawful use of a weapon by

a felon (count V), and unlawful use or possession of a weapon by a felon (count VI). On

November 8, 2010, Velez filed a motion to dismiss counts IV, V, and VI, contending that the

State failed to present any evidence of a felony conviction at the preliminary hearing for the

offenses of being an armed habitual criminal and unlawful use of a weapon by a felon. On

December 10, 2010, the State filed a response to Velez’s motion. The State argued that under

section 111-2 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-2 (West

2010)), it is not required to present evidence at the preliminary hearing of each essential

element of every offense that is charged, as long as the offenses arise from the same

transaction or conduct. On January 21, 2011, the trial court dismissed counts IV, V, and VI,

finding “[t]here is no evidence that was presented at the preliminary hearing that would

support the fact that the defendant was convicted of one, two, three or any felonies. *** I

have consistently ruled where only one felony is presented that the State cannot then charge

a second and I will consistently rule to follow that consistency in my ruling here.” On

February 18, 2011, the State filed a motion for reconsideration of the court’s ruling on

Velez’s motion to dismiss. On March 4, 2011, the trial court denied the State’s motion for

reconsideration. On March 21, 2011, the State filed a notice of appeal.

¶ 5 ANALYSIS

¶ 6 On March 4, 2011, the trial court denied the State’s motion for reconsideration. On

March 21, 2011, the State filed a timely notice of appeal. Therefore, this court has

jurisdiction to consider the State’s arguments on appeal pursuant to Illinois Supreme Court

Rule 603 (eff. Oct. 1, 2010) and Illinois Supreme Court Rule 606 (eff. Mar. 20, 2009).

¶ 7 On appeal, the State contends that the trial court erroneously dismissed the armed

habitual criminal charge and unlawful use of a weapon by a felon charges against Velez. The

State argues that the trial court contradicted the plain language of section 111-2 of the Code

when it ruled that the State was required to submit proof of Velez’s prior felony convictions

at the preliminary hearing in order to meet the elements of the charges by information. In

response, Velez cites People v. Thomas, 407 Ill. App. 3d 136, 142, 943 N.E.2d 179, 184

(2011), and People v. Jackson, 269 Ill. App. 3d 851, 855, 646 N.E.2d 1299, 1303 (1995), to

argue that proof of a defendant’s prior felony conviction is a required element of the charges

of being an armed habitual criminal and unlawful use of a weapon by a felon. The State does

not dispute this. However, the parties disagree on how two cases, People v. Redmond, 67 Ill.

2d 242, 367 N.E.2d 703 (1977), and People v. Kosyla, 129 Ill. App. 3d 685, 472 N.E.2d 1207

(1984), interpret section 111-2 of the Code, and whether “every element” of each offense

charged must be established by the evidence at the preliminary hearing.

¶ 8 This appeal presents an issue of statutory construction, which is a question of law and is

reviewed de novo. People v. Donoho, 204 Ill. 2d 159, 172, 788 N.E.2d 707 (2003). The

primary rule of statutory construction is to ascertain and give effect to the intent of the

legislature by interpreting the statute according to the plain and ordinary meaning of the

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

pertinent part:

“(a) All prosecutions offelonies shall be byinformation or byindictment. No prosecution

may be pursued by information unless a preliminary hearing has been held or waived in

accordance with Section 109-3 and at that hearing probable cause to believe the

defendant committed an offense was found, and the provisions of Section 109-3.1 of this

Code have been complied with.

* * *

(f)Where the prosecution of a felony is byinformation or complaint after preliminary

hearing, or after a waiver of preliminary hearing in accordance with paragraph (a) of this

Section, such prosecution may be for all offenses, arising from the same transaction or

conduct of a defendant even though the complaint or complaints filed at the preliminary

hearing charged only one or some of the offenses arising from that transaction or

conduct.” (Emphasis added.) 725 ILCS 5/111-2 (West 2010).

¶ 9 The leading case on this issue is Redmond, in which the defendant was charged with

aggravated battery. Redmond, 67 Ill. 2d at 243, 367 N.E.2d at 704. The complaining witness

testified that when he attempted to purchase drugs from the defendant, the defendant pulled

a gun from his pocket. Id. at 244, 367 N.E.2d at 704. When the complaining witness reached

to grasp the defendant’s arm, the gun went off and a bullet struck him in the leg. Id. After a

preliminaryhearing, the trial court entered a finding of probable cause for aggravated battery.

Id. The State subsequently filed an information charging three counts of aggravated battery

and adding a charge for attempted murder. Id. The defendant moved to dismissthe attempted

murder charge on the ground that a preliminary hearing had not been held on that charge. Id.

The trial court granted the motion. Id. at 245, 367 N.E.2d at 704.

¶ 10 The reviewing court reversed, holding that an information setting forth offenses not

charged at the preliminary hearing but arising from the same transaction as that involved at

the preliminary hearing does not violate due process. Id. at 248, 367 N.E.2d at 706. In

Redmond, the court concluded that the State’s charging the defendant with attempted murder

was authorized under section 111-2. Id. at 249, 267 N.E.2d at 706-07. Further, as the court

explained in People v. Robinson, 104 Ill. App. 3d 544, 432 N.E.2d 1195 (1982), “[a]n

accused would be entitled to a second preliminary hearing only if the new charge was

‘completely unrelated’ and ‘fundamentally different’ from the offenses originally charged.

[Cititation.]” Robinson, 104 Ill. App. 3d at 550, 432 N.E.2d at 1199-1200 (following

Redmond and finding that the charge of armed robbery was related to the murder charge set

forth in the preliminary complaint).

¶ 11 Here, the dismissed counts arose from the same conduct as the aggravated vehicular

hijacking and armed robbery counts of the preliminary hearing. The complaining witness,

Richard Johnson, Jr., testified during the preliminary hearing that Velez held a gun to his

head and asked for Johnson’s car keys, wallet, and cell phone, and then drove away in

Johnson’s car. The charges for being an armed habitual criminal and unlawful use of a

weapon by a felon are not “completely unrelated” or “fundamentally different” from armed

robbery and aggravated vehicular hijacking for which probable cause was found. See id.

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These additional charges clearly arose from Velez’s conduct on the date in question. The

weapons charges at issue here arose out of the same facts as the charges considered at the

preliminary hearing because the evidence presented at the preliminary hearing showed that

Velez held a gun to Johnson’s head and demanded Johnson’s property.

¶ 12 Velez cites People v. Kosyla, 129 Ill. App. 3d 685, 472 N.E.2d 1207 (1984), to support

his argument that the proper reading of the statute requires the State to present evidence at

the preliminary hearing of every element of the offenses charged. Velez argues that Kosyla

found that a reasonable construction of the language “all offenses ‘arising from the same

transaction or conduct of a defendant’ ” means that any offenses shown “by the evidence

presented” at the preliminaryhearing may be prosecuted even though such offenses were not

initially charged at the time of the preliminary hearing. (Emphasis added.) See Kosyla, 129

Ill. App. 3d at 696, 472 N.E.2d at 1214. We do not agree with Velez’s interpretation of the

Kosyla court’s meaning of “by the evidence.” Our reading of “by the evidence” does not

require a stricter interpretation of Redmond, and does not amount to a requirement that the

State present at the preliminary hearing proof of every element of every offense charged. For

instance, there was no evidence presented in Redmond that the defendant intended to commit

murder, yet the State was nevertheless permitted to charge the defendant with attempted

murder. See Redmond, 67 Ill. 2d at 243-44, 367 N.E.2d at 704. Therefore, we hold that the

State presented sufficient evidence to meet the requirements of section 111-2(f) of the Code,

and the trial court erred in dismissing the counts of being an armed habitual criminal,

unlawful use of a weapon by a felon, and unlawful use or possession of a weapon by a felon.

¶ 13 For the foregoing reasons, the judgment of the circuit court of Cook County is reversed

and the cause is remanded for further proceedings consistent with this opinion.

¶ 14 Reversed and remanded.

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