People v. Gresham

Decision Date03 March 1982
Docket NumberNo. 17204,17204
Citation59 Ill.Dec. 868,104 Ill.App.3d 81,432 N.E.2d 654
Parties, 59 Ill.Dec. 868, 37 A.L.R.4th 1159 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dallas J. GRESHAM, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Daniel D. Yuhas, Deputy State Appellate Defender, Janet Sinder, Asst. State Appellate Defender, Springfield, for defendant-appellant.

Ronald C. Dozier, State's Atty., Bloomington, Robert J. Biderman, Deputy Director, State's Attorneys Appellate Service Commission, James K. Horstman, Staff Atty., Springfield, for plaintiff-appellee.

MILLS, Justice:

We deal here with bootstrapping offenses into more serious convictions and the double enhancement of sentence.

The result is a mixed bag.

We affirm in part, reverse in part and remand.

Gresham was convicted by a jury of armed violence, aggravated battery, and two counts of unlawful use of weapons. He received concurrent sentences of 18 years' imprisonment for armed violence and 8 years on one of the unlawful use of weapons counts.

On appeal, defendant argues: (1) that the crime of armed violence may not be predicated upon the felony offense of aggravated battery with the use of a deadly weapon; (2) that the trial court erred in not severing that count of the indictment charging him with unlawful use of weapons within five years of his release from the penitentiary, following his conviction of a felony, from the trial on the other counts; and (3) that the court erred in imposing an extended term sentence under section 5-5-3.2(b) of the Unified Code of Corrections (Ill.Rev.Stat.1979, ch. 38, par. 1005-5-3.2(b)). For reasons hereinafter set forth, we vacate defendant's conviction and sentence on the offense of armed violence, remand for sentencing on the conviction of aggravated battery, vacate the extended term sentence on the conviction for unlawful use of weapons by a felon, and remand for resentencing on counts IV and V.

The facts of the instant case are not in dispute. On the evening of December 2, 1980, defendant, Fred Hildebrandt, Bob Nicholas, and Glen Colaw had arranged to play basketball at a local church in Bloomington, Illinois. After stopping at defendant's grandmother's house, where he resided, to pick up a basketball, the four proceeded to the school. Before they arrived, Colaw noticed a Bloomington police officer approaching and pointed this out to defendant, who at the time was in violation of his parole on a prior robbery conviction and had in his possession a sawed-off shotgun. Seeing the police officer, defendant ran from the group back to his grandmother's house. Later in the evening defendant received a call from Nicholas asking him to meet Nicholas and Hildebrandt at the Central Catholic School on the corner of Chestnut and Roosevelt Streets. Defendant returned to the area where the rendezvous was to occur but none of the persons were present. After waiting approximately 30 minutes, defendant decided to return home.

During this time, Hildebrandt and Nichols returned to defendant's grandmother's house to find that defendant was also not there and had left to meet them at the school. Hildebrandt and Nichols then proceeded to walk back to the Central Catholic School. Defendant testified that while he was walking toward his grandmother's house, he saw two unidentified men approaching. Defendant stated that one of the men said, "You have come to the wrong place at the wrong time," and the other began moving toward him. He testified that he thought the men were going to attack him and so, in self-defense, fired the sawed-off shotgun. Defendant stated that he did not recognize the men due to the darkness and the manner in which they were dressed, and felt his actions were justified under the circumstances. After the shooting, defendant learned that the person he had shot was Mr. Hildebrandt, the person he had arranged to meet. Defendant then ran back to his grandmother's house. Hildebrandt summoned a local resident to call an ambulance and was then taken to the hospital. Defendant was subsequently arrested at his grandmother's, and the sawed-off shotgun was located there.

I.

Defendant's first contention on appeal is that it was improper for a conviction and sentence to be entered on the crime of armed violence when the predicate felony offense is aggravated battery with a dangerous weapon. In support of this contention he relies solely upon the recent decision of People v. Haron (1981), 85 Ill.2d 261, 52 Ill.Dec. 625, 422 N.E.2d 627. The State, however, asserts the defendant has waived this issue since he did not raise it below and, secondly, that defendant's conviction for armed violence was not based upon the offense of aggravated battery with the use of a deadly weapon but was instead predicated upon the offense of an aggravated battery occurring at a public place.

In Haron, defendant was charged with one count of armed violence, one count of unlawful use of weapons, and two counts of aggravated battery. The statute proscribing armed violence provides:

"Armed violence-Elements of the offense. A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law." (Ill.Rev.Stat.1979, ch. 38, par. 33A-2.)

The armed violence charge in Haron was predicated upon the felony offense of aggravated battery with the use of a deadly weapon. On appeal from the ruling of the circuit court finding section 33A-2 unconstitutional, the Supreme Court of Illinois affirmed the order dismissing the indictment against Haron for armed violence but refused to hold the statute unconstitutional. The court analyzed similar statutory provisions from a number of jurisdictions and concluded that the armed violence statute should not be construed to allow prosecution for armed violence when the predicate felony offense is based on section 12-4(b)(1) of the Criminal Code (Ill.Rev.Stat.1979, ch. 38, par. 12-4(b)(1)), which has already been enhanced from a misdemeanor to a felony by the presence of a deadly weapon. The Haron court stated:

"Our review of the language of the statute and the authorities leads us to conclude that the General Assembly did not intend that the presence of a weapon serve to enhance an offense from misdemeanor to felony and also to serve as the basis for a charge of armed violence. In our opinion the requirement of section 33A-2 that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a felony without enhancement by the presence of a weapon." (85 Ill.2d 261, 278, 52 Ill.Dec. 625, 631, 422 N.E.2d 627, 634.)

In the present case, defendant was convicted on count I which charged that defendant " * * * on or about the second day of December, 1980, at or about 900 N. Roosevelt, Bloomington in the County of McLean and State of Illinois, committed the offense of Armed Violence in that he knowingly while armed with a dangerous weapon, committed an aggravated battery upon Fred Hildebrandt, by shooting him with a shotgun * * *." Thus, defendant's conviction would clearly fall within the construction of the statute given it by Haron and entitles the defendant to a vacation of the conviction and sentence entered on the armed violence count.

The State, however, seeks to avoid the rule of the Haron case by asserting the defendant has waived the issue by failing to raise it in his post-trial motion and further by arguing that defendant was not charged with deadly weapon aggravated battery (Ill.Rev.Stat.1979, ch. 38, par. 12-4(b)(1)) as a predicate felony offense but was instead charged with public place aggravated battery (Ill.Rev.Stat.1979, ch. 38, par. 12-4(b)(8)) which does not present the double enhancement problems prohibited by Haron.

But we reject the argument that defendant's failure to allege that the indictment did not state an offense in his posttrial motion is a waiver of the issue. An indictment which does not charge an offense is subject to dismissal at any time and is not waived by failure to object at trial. (People v. Billingsley (1966), 67 Ill.App.2d 292, 213 N.E.2d 765; People v. Spain (1974), 24 Ill.App.3d 377, 321 N.E.2d 520; Ill.Rev.Stat.1979, ch. 38, par. 114-1(b).) In Billingsley, defendant was charged with the offense of deceptive practices (Ill.Rev.Stat.1963, ch. 38, par. 17-1(d)) and challenged on appeal, but not at trial, the sufficiency of the complaint to charge the offense, since an essential element of the offense, intent to defraud, was not included in the complaint. The court held that defendant had not waived the issue and reversed his conviction. There the court stated:

"The failure to charge an offense and the obvious harm to the defendant resulting therefrom, is the kind of defect involved in due process of law and it cannot be waived. Such defect may be attacked at any time, and may be attacked for the first time in this court. (Citation.)" (67 Ill.App.2d 292, 300, 213 N.E.2d 765, 770.)

We thus conclude that the failure of the indictment to state an offense may be attacked in this court and is not waived by the defendant's failure to raise this issue in his post-trial motion.

The State also argues that Haron does not apply since defendant was not charged with deadly weapon aggravated battery as a predicate felony offense but instead was charged with public place aggravated battery under section 12-4(b) (8) of the Criminal Code (Ill.Rev.Stat.1979, ch. 38, par. 12-4(b)(8)). This contention is based upon the fact that the indictment alleged that the crime occurred at 900 North Roosevelt in Bloomington which the evidence at trial showed was a public place or way. This contention is also without merit. The indictment specified that defendant was charged with aggravated battery under section 12-4(b)(1), the jury instructions were based upon deadly weapon aggravated battery and the prosecution advanced this theory of aggravated battery...

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