## Illinois Official Reports

Appellate Court

People v. Wilbourn , 2014 IL App (1st) 111497

Appellate Court Caption THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appe llee, v. VALENTINO WILBOURN, Defendant-Appellant.

District & No. First District, Third Division

Docket No. 1-11-1497

Filed April 30, 2014

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. ) Although defendant waived his challenge to his sent ence for unlawful use of a weapon by a felon by failing to file a mot ion to reconsider, his claim that the sentence was improper was considered on the ground that sentencing issues are matters affecting defend ant’s substantial rights and are excepted from the waiver doctrine, b ut defendant’s challenge was rejected, since he was appropriately sentenced for a Class 2 felony pursuant to the decisions in Powell and Easley without any improper double enhancement based on his prior conviction for aggravated battery resulting in great bodily harm; furthermore, the prior aggravated battery conviction was an element of the weapons offense and the charging instrument did not have to inform defendant that a sentence enhancement was sought based on the prior conviction.

Decision Under

Review Appeal from the Circuit Court of Cook County, No. 1 0-CR-10373; the Hon. Jorge Luis Alonso, Judge, presiding.

Judgment Affirmed.- 2 -

Counsel on
Appeal Michael J. Pelletier, Alan D. Goldberg, and Philip D. Payne, all of State Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Ala n J. Spellberg, John E. Nowak, and Jon Walters, Assistant State’s A ttorneys, of counsel), for the People.

Panel JUSTICE NEVILLE delivered the judgment of the court , with opinion. Presiding Justice Hyman and Justice Pucinski concur red in the judgment and opinion.

OPINION

¶ 1 Following a bench trial, the trial court found the defendant, Valentino Wilbourn, guilty of

unlawful use of a weapon by a felon and possession of marijuana with intent to distribute. On appeal, Wilbourn seeks to challenge only the senten ce on the weapons charge. Wilbourn argues that the charging instrument did not adequat ely notify him of the State’s intention to seek an enhanced sentence, and the court impermissi bly used his prior conviction first as an element of the offense and second as grounds for en hancing his sentence. We find that our supreme court’s decision in People v. Easley , 2014 IL 115581, resolves both issues adversely to Wilbourn’s arguments. Therefore, we affirm the t rial court’s judgment.

¶ 2 BACKGROUND
¶ 3 On April 30, 2010, Sergeant Martin Murphy and othe r police officers executed a search

warrant on an apartment located on the south side o f Chicago. When the officers entered the apartment, they saw a woman sitting at a kitchen ta ble, a man just leaving the apartment, and Wilbourn coming out of a bathroom. The officers fou nd 45 bags of marijuana on the kitchen table and a loaded gun hidden in the cushions of th e sofa. After an officer reminded Wilbourn of his constitutional rights, Wilbourn told the off icers that the gun and all of the marijuana belonged to him. The officers arrested Wilbourn.
¶ 4 Prosecutors charged Wilbourn with possession of mo re than 30 grams of marijuana with

intent to distribute. See 720 ILCS 550/5(d) (West 2 010). Because Wilbourn had a prior conviction from 2002 for aggravated battery resulti ng in great bodily harm, prosecutors also charged Wilbourn with unlawful use of a weapon by a felon. See 720 ILCS 5/24-1.1(a) (West 2010).
¶ 5 The trial court, after a bench trial, found Wilbou rn guilty on those charges. The court

denied Wilbourn’s motion for a new trial and senten ced him to concurrent terms of five years in prison on each charge. At the sentencing hearing , the court admonished Wilbourn that if he- 3 -

wanted to challenge the sentence, he needed to file a motion to reconsider the sentence within 30 days of sentencing, and that if he failed to fil e such a motion, he would lose the right to challenge the sentence on appeal. See Ill. S. Ct. R . 605 (eff. Oct. 1, 2001).
¶ 6 Wilbourn filed no motion to reconsider the sentenc e. He filed a timely notice of appeal.

¶ 7 ANALYSIS
¶ 8 Waiver
¶ 9 In this appeal, Wilbourn seeks to challenge only t he propriety of the sentence. The State

contends that Wilbourn waived this issue by failing to file a motion to reconsider the sentence. See 730 ILCS 5/5-4.5-50(d) (West 2010); People v. Reed , 177 Ill. 2d 389, 393 (1997). However, this court has held that “[s]entencing iss ues are regarded as matters affecting a defendant’s substantial rights and are thus excepte d from the doctrine of waiver.” People v.

Baaree , 315 Ill. App. 3d 1049, 1050 (2000); see also People v. Owens , 377 Ill. App. 3d 302, 304 (2007); People v. Carmichael , 343 Ill. App. 3d 855, 859 (2003); People v. Brials , 315 Ill. App. 3d 162, 170 (2000). We will review the sentenc ing issues on their merits.

¶ 10 Double Enhancement
¶ 11 Wilbourn argues that the trial court used the 2002 aggravated battery conviction to doubly

enhance his sentence. First, the court used the 200 2 conviction as an element of the Class 3 offense of unlawful use of a weapon by a felon. Sec ond, the court used the same prior conviction for a forcible felony to enhance the off ense to a Class 2 felony. Section 24-1.1 of the Criminal Code of 1961 establishes that if a person guilty of a forcible felony knowingly possesses a prohibited weapon, that person has comm itted a Class 2 felony of unlawful use of a weapon by a felon. 720 ILCS 5/24-1.1(a), (e) (West 2010). Section 2-8 of the Criminal Code lists aggravated battery resulting in great bodily harm as a forcible felony. 720 ILCS 5/2-8 (West 2010).
¶ 12 Wilbourn acknowledges that the appellate court in People v. Powell , 2012 IL App (1st)

102363, decided the same issue. The court there hel d that section 24-1.1 creates a Class 3 felony of unlawful use of a weapon by a person who committed a prior nonforcible felony, and a Class 2 felony of unlawful use of a weapon by a p erson who committed a prior forcible felony. Powell , 2012 IL App (1st) 102363, ¶ 12. The Powell court found that the trial court had not enhanced the penalty on Powell at all by imposi ng a sentence appropriate for a Class 2 felony, because Powell had a prior conviction for a forcible felony when he possessed a weapon. Wilbourn argues that we should not follow Powell because the Powell

court
misconstrued the statute.
¶ 13 During the pendency of this appeal, our supreme co urt resolved the issue, as it approved the

reasoning of Powell

. Easley , 2014 IL 115581, ¶¶ 29-30. Following Powell and Easley , we find that the trial court here imposed a sentence approp riate for the Class 2 felony of unlawful use of a weapon by a felon who committed a prior forcib le felony. The trial court did not doubly

enhance Wilbourn’s sentence.

¶ 14 Charging Instrument
¶ 15 Next, Wilbourn argues that the trial court should not have sentenced him as a Class 2 felon,

because the charging instrument did not specificall y notify him that the State sought to- 4 -

enhance the level of the charged weapons offense to a Class 2 felony based on the prior conviction. See 725 ILCS 5/111-3 (West 2010).
¶ 16 The Easley court rejected an indistinguishable argument. The Easley court held that “the

notice provision applies only when the prior convic tion that would enhance the sentence is not already an element of the offense.” Easley , 2014 IL 115581, ¶ 19. Because the prior convictio n for aggravated battery resulting in great bodily ha rm is an element of the offense of unlawful use of a weapon by a felon, “notice under section 1 11-3(c) [of the Code of Criminal Procedure of 1963 (725 ILCS 5/111-3(c) (West 2008))] is not n ecessary.” Easley , 2014 IL 115581, ¶ 19.
¶ 17 Following Easley , we hold that the charging instrument permitted th e court to sentence

Wilbourn for the Class 2 felony of unlawful use of a weapon by a felon.

¶ 18 CONCLUSION
¶ 19 The Easley and Powell courts held that section 24-1.1 creates two separa te levels of the offense of unlawful use of a weapon by a felon, and the possession of a weapon by a person who committed a prior forcible felony constitutes a Class 2 felony. Under Easley and Powell

, the trial court properly sentenced Wilbourn for the Class 2 felony of unlawful use of a weapon by a felon. The prosecutor’s failure to specify, in the charging instrument, that he sought a conviction for a Class 2 felony did not violate sec tion 111-3 of the Code of Criminal Procedure. Accordingly, we affirm the sentence the trial court imposed on the weapons charge.

¶ 20 Affirmed.