## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S
Appellate Court

People v . Nowells , 2013 IL App (1st) 113209

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Ap p el lee, v. CURTI S NOWEL L S, Defe ndant-Appe llant.

District & N o. First District, F ourth Division
Docke t No. 1-11-3209

Rule 23 Order

filed
Rule 23 Order
withdrawn Opinion filed September 26, 2013

November

4, 2013
November

7, 2013

Held ( Note : Thi s s

y ll abus

con st it ut e s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Re

p o rt er 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

. ) The Class 2 sentenc e of 54 mo n t h s i n prison imposed on defe ndant followi n g h i s co nviction for unlawful use of a wea pon by a felon was upheld over defe ndant’s contention that the State failed to g ive him

proper notice of the potential sentenc e, since defe ndant failed to prese rve the issue for revie w and the plain err or doctrine did not apply wher e the Class 2 sentenc e was the only possible sentenc e classifica tion defe ndant could have rec eived a fter be ing char g ed with unlawful use of a wea pon by a fe lon premised on his prior Class 2 fe lony drugconviction.

Dec ision Under
Review Appea l from the Circuit Court of Cook County

, No. 11-CR-8 4 7 1 ; t he
Hon. J ames B . L inn, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg

, and Adri en n e N. River, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney

, of Chicag o (Alan J

. Spellberg and
J ohn E. Nowak, Assistant State’s Attorney s, of counsel), for the People.

Panel J USTI CE FI TZ GERAL D SMI TH delivere d th e j u d g ment of the court, with opinion. Presiding J ustice Howse and J ustice L avin concur red in the judgme nt and opinion.

OP INION

¶ 1 F ollowing a bench trial, defe ndant Curtis Nowells was convicted of unlawfu l u s e o f a

wea pon by a felon (UUW by a fe l o n ). T h e trial court sentenc ed defe ndant to a Class 2

sentenc e of 54 m o n t h s i n prison. Def endant appea ls, contending that he was improperly

sentenc ed to a Class 2 sentenc e wher e the State alleg edly failed to g ive him proper notice of his potential sentenc e. Def endant asks that we vacate his sentenc e and rema nd this cause for

a new sentenc ing he aring . For

the following rea sons, we af firm.

¶ 2 I . BA CKGROUND ¶ 3 De fenda

nt was char g ed with two counts of UUW b y a fe l o n an d fo u r co u n t s o f

ag g rava ted unlawful use of a wea pon. Count I for UUW by a felon char g ed a Class 3 offe nse in that defe ndant “knowing ly possessed on or about his person any firea rm, afte r having been previously convicted of the felony offe nse of delivery of a controlled substance, under case number 02CR-15772. ” C o u n t I I was identical except that it alleg ed he possessed firea rm ammunition. ¶ 4 Prior to trial, defe ndant filed a motion to quash his arr est and suppress evidenc e, which the trial court de nied. This motion is not at issue in the case at bar . At trial, the parties and the court ag ree d to incorpora te the testimony from the hear ing on the m o t i on to quash the

arr est and suppress evidenc e as evide nce at the bench trial. Both the hear ing on the motion to suppress and the tr ial occur red on Septe mber 13, 2011. ¶ 5 The State prese nted evidenc e that, on May 15, 2011, Chicag o police office r Veg a and two other police office rs rec eived a radio call about an alleg ed ag g rava ted assau l t involving a black Chevrolet I mpala vehicle with fema le occupa nts and three black m al e o ccupa nts. Offic er Veg a and her partne rs arr ived at 5410 South Pra i ri e an d s aw defe ndant, the only

occupa nt of the vehicle, sitti ng in the passeng er seat of a black Chevrolet I mpala. As office rs approa ched the car they observ ed t h e b u t t en d of a handg un sticking out of a bag on the

-2-backse at.

¶ 6 The office rs detained d ef en dant and rec overe d the wea pon, a semiautomatic handg un. Offic er Veg a testified that the g un was loaded with 10 bullets in the mag azine and 1 bullet in the g un’s chambe r. Offic er Veg a testified that defe ndant was advised of his Miranda rig hts and was then transp o rt ed t o the police station. Offic er Veg a testified that, at the police station, defe ndant told her he had g otten the g un from his g irlfriend, who had g otten it from her br other. ¶ 7 At the cl o s e o f the S tate’s evidence

, the S tate offere d into evidenc e a cer tified copy

of defe ndant’s conviction in case No. 02 CR 15772, showing that defe ndant was convicted on Apr i l 2 1

, 2 003, of the Class 2 felony offe nse of possession of a controlled substance with intent to deliver less than one g ram in violation of section 401(d) of the I llinois Controlled S u b s t a nces Act (720 I L CS 570/401(d) (West 2002)). I n so doing, the assistant State’ s Attorney ref err ed to the convic tion by stating: “[ASS I STANT STATE’S ATTOR N E Y ] Q : I have no further live testimony

. I would like

to offe r into evidenc e Peo p l e’ s E x hibit 1, which is a cer tified copy of conviction for d ef en d an t Curtis Nowells for case number 02 CR 15772 showing the defe ndant wa s convicted on April 21st of 2003 for the offe nse of possession of a controlled substance with intent to deliver less than 1 g ram, Class 2 fe lony .” ¶ 8 J alisa Gra

ham, defe ndant’s g irlfriend, testified on defe ndant’s behalf th a t s h e a n d a friend

wer e with defe ndant on May 15, 2011. She and her friend wer e upstairs in a near by building and defe ndant was downstairs in the vehicle when the police arr ived. She watche d as police pulled defe ndant from the c ar in whic h he was sitti ng . She testified that she saw the police

rec over a g un from a ba g in the car

. ¶ 9 Def

endant testified on his own behalf

. Def endant denied having had a g un in the car and said he kne w nothing a

bout the gun found in the ca r. He denied ha ving told the police that he had a g un. He explained that the Chevrolet I mpala belong ed to his g irlfriend and he was just waiting in the car for her to run inside to u s e t h e washroom when the police came knocking on the ca

r window a

nd arr ested him. ¶ 10 The court

found def

endant g uilty

of UUW by

a fe lon. I n so doing, it spec ifically found Offic er V eg a’s testimony more c redible tha

n that of def

endant, noting : “THE COURT: The Court hear d the evidenc e at this trial

. I h e ard some testimony betwee n Offic er Veg a and the defe ndant. I find in this case Offic er Veg a’s testimony to be far more cre dible and compelling than that of defe ndant. She took notice of the car the defe ndant happene d to be in beca use of the repor

t of some kind of ag g rava ted assault that had taken place

, chec king that out. Saw a g un in the car

. Asked Mr. Nowells to g et out. Turned out he was not the person wanted for that ag g rava ted assault. But that

corr oborate s exactly the statement made to her, that he g ot the g un from somebody else,

*** and there was [a] male involved in that transac tion of transfe rring the g un back and forth. I do find he had the g un in the car , had possession of it, wasn’t try ing to g et rid of it. Finding of

g uilty .” ¶ 11 Def

endant appea

red in court for sentenc ing ap p ro x i m at el y o n e m onth later. At the

sentenc ing hear ing, the trial court first noted that the prese ntencing investiga tion repor t had

-3-been distributed. Def endant’ s a tt o r n e y w a iv e d th e th

r e e

- d a y r e v i ew period and confirme d that defe ndant had no corr ections to submit reg arding the prese ntencing investiga tion repor t. I n ag g rava tion, the State informed the c ourt that defe ndant had four prior felony convictions, stating: “[ASS I STANT STATE’S ATTORNEY]: Your Honor, the defe ndant has four prior felony convictions. One of those being under 02 CR 15772, which is a PCS with I

, which

was a Class 1 offense , which make s him non-probationable on this offe nse.” ¶ 12 I n mitigation, defe ndant’s attorne y ar gu ed t h at d ef en d a nt was a “fa

mily man” with multipl e children, and asked for the “minimum” sentenc e. Def endant, in allocution, arg ued that he took ca

re of his children and a sked for leniency

. ¶ 13 The trial c ourt sentenc ed def endant to 54 months’ incar cer ation, stating:

“THE COURT: Your hist ory involves small drug case s, had weapons, and been in and out of the s y s t em repe atedly as a juvenile and as an adult, in and out of the depar tment of corr ections as a juvenile and as an adult, running around with a g un. You know better . The sente nce w ill be 54 months i n the penitentiar y .” ¶ 14 The mitti mus, included in the rec ord on appea l, lists this curr ent conviction as a Class 2 felony conviction. ¶ 15 Def

endant a ppeals his sentenc e.

¶ 16 I I . ANAL YSI S ¶ 17 On appea l, defe ndant contends that the t rial court err ed in sentenc ing him as a C l as s 2 felon for unlawful use of a wea pon by a felon wher e the State had char g ed him with the Class 3 offe nse of unlawful use of a wea pon by a fe lon and did not give defe ndant proper notice that it was char g ing him with an enhanc ed Class 2 offe nse. Specifica l l y , defe ndant arg ues that the State should ha

ve provided him notice pursua nt to section 111-3(c ) of the Code of Criminal Procedur e of 1963 (725 I L CS 5/111-3(c) (West 2010)) that it was, in fac t, char g ing him with a Class 2 felony

. 1 We disag ree

. ¶ 18 As an initial matter, defe ndant has failed to pres er v e t h i s i s s u e fo r revie w. People v. Enoch

, 122 I ll. 2d 176, 186-87 (1988) (I n order to prese rve an issue for appea l, a party must first make an objection t o the allege d err or at trial, and then raise it in a posttrial motion.);

see also People v. Allen

, 222 I ll. 2d 340, 352 (2006) (noting that “eve n constitutional err ors

can be forf

eited”)

. Where a defe ndant challeng es his sentenc e as void, howeve r, as defe ndant does here

, we will revie w the sentenc ing issue even though it was not proper ly prese rved for revie w beca

use a void sentenc e can be corr ecte d at any time. People v. Arna

, 168 I ll. 2d 107, 113 (1995). A sentenc ing issue is f orfe ited unless the defe ndant both obje cts to the err or at the sente n ci ng hear ing and raises the objection in a postsentencing motion. People v. Freem an , 404 I ll. App. 3d 978, 994 (2010) (citing People v. Hillier

, 237 I ll. 2d 539, 544 (2010))

. Neve rtheless, forf eited claims rela ted to sentenc ing issues may be revie wed f o r p la in

1 Def end ant ’s cha ll enge on app eal is li m it ed to not ic e; he doe s not cha ll enge the suf fi ci enc y of the evide nce bef

ore th e c our t.

-4-err or. Hillier

, 237 I ll. 2d at 545. The plain err or doctrine allows “a revie wing co u rt to

consider unprese rved err or when (1) a clea r or obvious err or occur

red and the evidenc e is so closely balanc ed that the err or alone threa tened t o t i p the scale s of justice ag ainst the defe ndant, reg ardle ss of the seriousness of the err or, or (2) a clea r or obvious err or occur

red and that err or is so serious that it aff ecte d the fairne ss of the defe ndant’s trial and challeng ed the integ rity of t he judi cial process, reg ardle ss of the closene ss of the evide nce.” People v

. Sargent

, 239 I ll. 2d 166, 189 (2010); see also People v. Piatkowski

, 225 I ll. 2 d 551, 565 (2007) (citing People v. Herron

, 215 I ll. 2d 167, 186-87 (2005)) ; see also I ll. S. Ct. R. 615(a) (“A ny err or, defe ct, irreg ularity

, or varia nce which does not aff

ect substantial rig hts shall be disreg arde d. Plain err ors or defe cts aff ecting substantial rig hts may be noticed althoug h they

wer e not broug ht to the attention of the trial court.” ). “I n the sentenc ing context, a defe ndant

must then show either that (1) the evidenc e at the sentenc ing hear ing was closely balanc ed,

or (2) the err or was so eg reg ious as to deny the defe ndant a fair sentenc ing hear ing.” Hillier

, 237 I ll. 2d at 545. ¶ 19 Her e, defe ndant contends that plain err or is established under the second prong , that is, defe ndant’s substantial rig hts wer e aff ecte d such that he was denied a fair hear ing. This court has stated:

“We ag ree that wher e plain err or is applicable

, for example, wher e c o n s ec u t i ve or extended sentenc es are imposed without leg al justif i cation, a revie wing court should addre ss the merits of a defe ndant ’s s en t encing contention, waiver considerations notwithstanding.

We should be caut i o u s , howeve r, about ignor ing the waiver rule only beca use ‘substantial’ or ‘funda

mental’ rig hts are implica te d

. Su c h r ig h ts are alway s invoked when defe ndants seek to addre ss und sentenc ing issues. *** We stress that the pre s en ce o f plain err or must be linked to the conc ept of substantial rig hts.” People v. Ree d

, 282 I ll. App. 3d 278, 281 (1996).
Under either prong o f t h e plain err or doctrine, the burden of persua sion rema ins on the defe ndant. People v. Bowman

, 2012 I L App (1st) 102010, ¶¶ 29-30 (citing People v. Lewis

, 234 I l l

. 2d 32, 43 (2009))

. Ba sed on the circ umstances prese nted in the instant cause , defe ndant ca

nnot meet his burden he re. ¶ 20 Her e, we elec t to consider this alleg ed err or pursuant to the plain err or doctrine. “The first step of plain-er

ror revie w is to deter

mine whether any err or occur red.” Lewis

, 234 I ll. 2d at 43; see also People v. W

ilson

, 404 I ll. App. 3d 244, 247 (2010) (“The re can be no plain err or i f t h er e was no err or at all ***.”). This require s “a substantive look” at the issue ra i s ed

. People v. Johnson

, 208 I ll. 2d 53, 64 (2003). We will there fore first revie w defe ndant’s claim to determine if the re w as any err or bef ore c onsidering it under plain er ror. ¶ 21 I t is the purview of the leg islature to de termine what is c onsidered criminal conduct, to assig n penalties for that conduct, and to enac t statutory provisions which enhanc e a criminal offe nse or enhanc e the applicable rang e of punishment for an offe nse. People v. Thomas

, 171
I ll. 2d 207, 223 ( 1 9 9 6 )

. Although the trial court has discretion to impose a sentenc e, we revie w this issue de novo beca use it involves a question of l aw. People v. Chaney

, 379 I ll. App. 3d 524, 527 (200 8 ); s ee a lso People v. Harris

, 203 I ll. 2d 111, 116 (2003) (The

-5-construction of a statute is a question of law f or which r eview is de novo .). ¶ 22 To prove UUW by a felon, the State must prove that the defe ndant knowing ly possessed

a wea pon or ammunition and that the defe ndant had previously been convicted of a felony

. 720 I L CS 5/ 24-1.1(a ) (West 2010). Section 24.1-1.1( e) of the UUW by

a fe lon statute sets forth the possible cla ssifications and sente nces f or this offense : “(e ) Sentence

. Violation of this Section by a person not confine d in a penal instit ution shall be a Class 3 felony for which the person *** shall be sen t en ce d t o n o less than 2

y ear s and no more than 10 y ear s and any second or subsequent violation shall be a Class 2 felony for which the person shall be sentenced to a term of i mpriso n m e nt of not less than 3 y ear s and not more than 14 y ear s. Violation of this Sectio n b y a person not confine d in a penal instit ution who has been convicted of a forc ible felony

, a fe l o n y violation of Article 24 of this Code or of the Fire arm Owner s I dentifica tion Ca rd Ac t, stalking o r aggr av at e d stalking, or a Class 2 or greater felony under the Illinois Controll ed Substances Act

, the Cannabis Control Act, or the Methampheta mine Control and Communi t y P ro t ec t i o n Act is a Class 2 felony for which the person shall be

sentenc ed to not less than 3 y ear s and not more than 14 y ear s.” (Empha sis added.) 720
I L CS 5/ 24-1.1(e ) (West 2010).
“The plain lang uag e of section 24-1.1 reve als that the leg islatu re ’s i n t e nt was to keep dang erous wea

pons, including but not limit ed to fi re ar m s , o ut of the hands of convicted felons in any situation whe ther it be in the privac y of their own home or in a public place .” (Emphasis omitted.) People v . Kelly , 347 I ll. App. 3d 163, 167 (2004). ¶ 23 S ec t i o n 1 1 1

- 3(c) of t he C ode of Criminal Procedur e delineates what must be included in a cr iminal charg e: “F orm of cha

rg e. (a) A cha rg e shall be in wr iting and a lleg e the c ommissi on of an of fense by : (1) Stating the name of

the offe nse; (2) Citing the statutory

provision alleg ed to have been violate d; (3) Setting forth the na ture a nd elements of the offe nse cha rg ed; (4) Stating the date a

nd county of the off ense a s definitely

as ca n be done; a

nd (5) Stating the name of the acc used, if known, and if not kn o wn , desig nate the

acc used by a n y n am e o r d escr iption by which he can be i dentified with rea sonable

cer tainty .” 725 I L CS 5/ 111-3(a ) (West 2010). ¶ 24 Her e, the c harg ing instrument r ead, in pe rtinent part:

“The State’s Attorney of Cook County now appea rs befor e the Circuit Court of Cook County and in the name and by the authority of the People of the State of I llinois states that on or about May

15, 2011 at and within the County of Cook
Curtis Nowells
committed the offe nse of UNL AWFUL USE OR
POSS ESSI ON OF A WEAPON BY

A FE L ON

-6-in that HE, KNOWI N GLY P O SSES SED ON OR AB OUT HI S PERS ON ANY
FI REARM, AFT ER HAVI NG BEE N PREVI O U SL

Y CO N V I CTED OF THE FEL ONY OFF ENSE OF DEL I VERY OF A CONTROL L ED SUBSTA NC E

, UN DER CASE NUMB ER 02CR-15772, UNDER THE L AWS OF THE STATE OF I L L I NOI S,

I N VI OL ATI ON OF CHAPTER 720 ACT 5 SECTI ON 24-1. 1 (a ) OF THE I L L I NOI S COMPI L ED STATUTES 1992 AS AMENDED AND

contra ry to the Statute and ag ainst the peac e and dignity of the same People of the State of I llinois .”
This char g ing instrument complied with section 111-3 in that it included: the name o f t he offe nse (unlawf

ul use or p o s s es s i o n o f a wea pon by a felon); cited the statutory provision alleg ed to have been violated (“Chapte r 720 Act 5 Section 24-1.1(a ) of the I llinois Compil ed Statutes 1992 as amende d”); the nature and elements of the offe nse char g ed (“he

, knowing ly possessed on or about his person any firea rm, afte r having been previously convicted of the felony offe nse of delivery of a controlled substance under case number 02CR-15772”); and stated def endant’ s name a s that of the ac cused. See 725 I L CS 5/ 111-3(a ) (West 2010). ¶ 25 Def

endant, howeve r, contends that was not provided notice pursuant to section 111-3(c ) that he wa s being char g ed with a Class 2 off ense of UUW by a fe lon. ¶ 26 Section 111-3(c ) provides, in pe rtinent part:

“(c ) When the State seeks an enhanc ed sentenc e beca use of a prior conviction, the char g e shall also state the intention t o seek an enhanc ed sentenc e and shall state such prior conviction so as to g ive notice to the defe ndant. Howeve r, the fa ct o f s u ch prior conviction and the State’s intention to seek an enhanc ed sentenc e are not elements of the offe nse and may not be disclosed to the jury during trial unless otherwise permitted by issues pr o p er l y raised during such trial. For the purposes of this section, ‘enha nced

sente n c e’ means a sentenc e which is incre ased by a prior conviction from one classifica tion of offe nse to another highe r level classifica tion of offe nse set for

t h i n section 5-4.5-10 of the Unified Code of Correc tions (730 I L CS 5/5-4.5-10) ; it does not include an incre ase in the sentenc e applied within the same level of classifica tion of offe nse.” 725 I L CS 5/ 111-3(c ) (West 2010).
Def endan t ar gu e s that a close rea ding of this section shows that he should have been provided notice that his sentenc e would be enhanc ed t o a Class 2 sentenc e. Our supreme court has stated, “[t] he leg islature enac ted sec t i o n 1 1 1 -3(c ) to ensure that a defe ndant

rec eived notice, befor e trial, of the offense with which he is char g ed.” (Emphasis in orig inal.) People v. Jame

son , 162 I ll. 2d 282, 290 (1994). I n construing a statute, we look to the lang uag e of the statute itself, as the lang uag e ordinarily provide s t h e best evidenc e of the leg islature’s intent. Jame

son , 162 I ll. 2d at 290. I n looking at the lang uag e of this statute, it is clea r t o us that the s ection 111-3(c) notice provision with which defenda nt is conce rned only applies when the prior conviction that would en h an ce t h e s e ntence is not alre ady an element of the offe nse. Specifica lly

, the lang uag e of t h e s ection 111-3(c ) notice provision itself implies as much w h en it states “the fac t of such prior conviction and the State’s intention to seek an en h an ced sentenc e are not eleme nts of the offense and may not be disclosed to the jury during trial unless otherwise permitted by issues proper ly raised during

-7-such trial

. ” (E m p h asis added.) 725 I L CS 5/111-3(c) (West 2010). There fore

, notice is not

nece ssary when the prior conviction is a require d element of the offe nse, such that only one class of felony conviction is possible for that offe nse as alleg ed in the char g ing instrument. ¶ 27 Her e, the charg ing instrument alleg ed that defe ndant wa s gu i l t y o f UUW by a felon in

t h at h e, having previously been convicted of the felony offe nse of delivery of a contro l l e d substance, was found in possession of a g un. The char g ing instrument alleg ed that the prior fel o n y o f wh i ch defe ndant had been convicted was his prior conviction of delivery of a controlled substance. The section 111-3(c ) notice provision does not apply in the instant case beca use the State did not seek to enhanc e defe ndant’s sentenc e; as alleg ed in the indictment, defe ndant’s Class 2 sentenc e was the on l y s t at u t o r ily allowed sentenc e available in this situation. See 720 I L CS 5/24-1.1(e) (West 2010) (“V iolation of this section by a person not confine d in a penal instit ution who has been convicted of *** a Cla s s 2 o r g rea ter felony under t h e I l linois Controlled Substances Act *** is a Class 2 felony for which the person

s h al l b e s e ntence d to not less than 3 y ear s and not more than 14 y ear s.”); see also, e.g. , People v. Powell

, 2012 I L App (1st) 102363, ¶ 12 (finding

, in context of inquiry into whether trial court imposed an impermissible double enhanc ement in a UUW by a felon conviction, that “[t] he flaw in de fenda nt’s rea soning is that the sentenc ing court did not deter mine that defe ndant committed a Class 2 felony ; the Gene ral Ass em b l y m ade that deter mination in

ena ct ing section 24-1.1(e ). *** The trial court did not impermissibly enhanc e defe ndant’s penalty

, but simply imposed the specia l penalty rang e established by the le gi s l at u re f or defe ndant’s conduc t.”). ¶ 28 We rec og nize that the Second Division of this court has found on two occa sions that the State was require d to g ive notice pursuant to secti o n 111-3(c ) that it intended to char g e a defe ndant, who was char g ed with UUW by a felon, with a Class 2 rathe r t h an a Class 3 offe nse. People v. Easley

, 2012 I L App (1st) 110023, appeal allowed

, No. 115581 (I ll. Mar. 27, 2013); People v. W

halu m , 2 012 I L App (1st) 110959 (petition for leave to appea l pending ). We disag ree with those decisions to the extent they conflict with our de cision in the ca se at ba

r. ¶ 29 I n addition, we note here that, althoug h defe ndant admits that the State g ave him notice of the No. 0 2 C R 15772 offe nse, he asser ts that “the rec ord, including the prese ntence investiga tion repor

t, does not g ive information about the class of offe nse.” We disag ree with this assessment. To the contra ry , our revie w of the rec ord shows that the cer tified statement of conviction and dispositi on in the No. 02 CR 15772 case , which was enter ed into evidenc e at trial, clea

rly shows that defe ndant was convicted of violating section 401(d) of the I llinois Controlled Substances Ac t o n A pril 21, 2003, and sentenced to four y ear s’ i mprisonment. The prese ntence investiga tion repor t also included the Chicag o police depar tment’s criminal history repor

t, which ref

lects that defe ndant was convicted of a “Class 1” in “2002CR15772” fo r v i olating “720-570/401(D )” and was sentenc ed to four y ear s in prison. Contra ry t o defe ndant’s cla im, the rec ord did provide infor mation about the class of

the prior of

fense

. ¶ 30 We find no err or here

, wher e the rec ord establishes that a Class 2 sentenc e was the only possible sentenc e classifica tion defe ndant could have rec eived afte r hav i n g b ee n char g ed

w i t h t h e crime of UUW by a felon specific ally premised on his prior Class 2 felony drug conviction. As such, defendant is unable to establish plain err or, and defe ndant’s sentence

-8-is not void. See, e.g. , W ilson

, 404 I ll. App. 3d at 247 (“The re c an be no pla in error if there

was no e rror

at all ***.”)

.

¶ 31 I I I . CONCL USI ON ¶ 32 Fo r the afor ementioned rea sons, we aff irm the judgme nt of the circ uit c o u rt o f C o o k County

.

¶ 33 Affir

med.

-9-