People v. Anthony

• Decision Date: 07 November 2011
• Docket Number: No. 1–09–1528.,1–09–1528.
• Citation: 960 N.E.2d 1124,356 Ill.Dec. 1
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Martinell ANTHONY, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

356 Ill.Dec. 1
960 N.E.2d 1124

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Martinell ANTHONY, Defendant–Appellant.

No. 1–09–1528.

Appellate Court of Illinois, First District, Fifth Division.

Nov. 7, 2011.

[960 N.E.2d 1125]

Anita Alvarez, Cook County State's Attorney (Alan J. Spellberg, Annette Collins, Mary P. Needham, Assistant State's Attorneys, of counsel), for Plaintiff–Appellee.

Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender of Cook County (Patrick F. Cassidy, Assistant Appellate Defender), for Defendant–Appellant.

OPINION Justice McBRIDE delivered the judgment of the court, with opinion.

[356 Ill.Dec. 2] ¶ 1 Following a bench trial, defendant, Martinell Anthony, was convicted of two counts of unlawful possession of a weapon by a felon and sentenced to concurrent terms of six years' imprisonment. On appeal, defendant contends that one of his convictions must be vacated because it was unauthorized by statute. Defendant also disputes various fines and fees imposed against him. We issued our original decision on March 31, 2011. The Illinois Supreme Court subsequently directed us to vacate that decision ( People v. Anthony, 352 Ill.Dec. 249, 953 N.E.2d 930 (2011)(supervisory order)) and to reconsider in light of People v. Marshall, 242 Ill.2d 285, 351 Ill.Dec. 172, 950 N.E.2d 668 (2011), which we now do.

¶ 2 Defendant was arrested and charged by information with, among other things, two counts of unlawful possession of a weapon by a felon ([356 Ill.Dec. 3]

[960 N.E.2d 1126]

720 ILCS 5/24–1.1 (West 2008)) and aggravated unlawful use of a weapon (720 ILCS 5/24–1.6(a)(1)(3)(A) (West 2008)). The two counts of unlawful possession of a weapon by a felon were based upon possession of a handgun and possession of the firearm ammunition inside that handgun. Specifically, the first count alleged that defendant “knowingly possessed on or about his person * * * a handgun, after having been previously convicted of the felony offense of burglary.” The second count alleged that defendant “ knowingly possessed on or about his person any firearm ammunition, after having been previously convicted of the felony offense of burglary.” The charge of aggravated unlawful use of a weapon alleged that defendant “knowingly carried in any vehicle * * * a handgun, * * * and the firearm possessed was uncased, loaded and immediately accessible at the time of the offense, and [defendant] has been previously convicted of * * * burglary.” The following evidence was presented at defendant's trial.

¶ 3 On September 11, 2008, at approximately 8 p.m., Chicago police officer Christopher Ware was in the parking lot of the 63rd Street Beach in Chicago, IL. The parking lot was lit by moonlight and artificial lighting in the lot. Officer Ware saw a woman sitting in the passenger seat of a vehicle and a man, whom he identified as defendant, standing near the vehicle holding a semi-automatic handgun. Defendant put the gun in his pocket and entered the driver's seat of the vehicle. Officer Ware approached and told defendant to exit the vehicle. He asked defendant what he had been holding in his hand, and defendant replied that it was a cell phone. Officer Ware conducted a protective pat-down of defendant but did not discover a weapon. Defendant said the cell-phone he had been holding was inside the vehicle and gave the officer permission to search the vehicle. Upon a search of that vehicle, the officer found a loaded semiautomatic handgun under a jacket behind the front passenger seat that he believed was the same gun that he had seen defendant holding. A further search of the vehicle revealed a backpack under the rear seat that contained two handgun magazines and approximately 96 rounds of ammunition.

¶ 4 Defendant called his brother-in-law, Derrick Harris, as a witness. Harris owned the vehicle in which the weapons were found and he explained that, on the night of the incident, he and defendant had gone to the beach with two women. Harris was approximately 35 feet away from defendant when the police arrived and he did not see defendant with the weapon that the police recovered on the night of the incident. Harris testified that he was a Navy officer and that he was the owner of the .45-caliber semiautomatic handgun and the ammunition that the police found in his vehicle.

¶ 5 Following closing arguments, the trial court found defendant guilty of two counts of unlawful possession of a weapon by a felon based upon possession of the firearm and possession of the ammunition inside that firearm.¹ The court also found defendant guilty of one count of aggravated unlawful possession of a weapon, but merged that conviction into the first count of unlawful possession of a weapon by a felon. The court clarified that “the ammunition found inside the backpack at the rear of the vehicle “isn't a consideration by this court as far as these charges are concerned.” The court sentenced defendant[356 Ill.Dec. 4]

[960 N.E.2d 1127]

to concurrent terms of six years' imprisonment. This appeal followed.

¶ 6 Initially, a question was raised whether aggravated unlawful use of a weapon was a greater offense than unlawful use of a weapon by a felon. Although each offense is a Class 2 felony, the sentencing provision for unlawful use of a weapon by a felon provides for a sentence of 3 to 14 years' imprisonment (see 720 ILCS 5/24–1.1(e) (West 2008), whereas the sentencing provision for aggravated unlawful use of a weapon provides for a sentence of 3 to 7 years' imprisonment (see 720 ILCS 5/24–1.6(d)(3) (West 2008)). But cf. People v. Johnson, 237 Ill.2d 81, 340 Ill.Dec. 168, 927 N.E.2d 1179 (2010)). The parties and this court now agree that unlawful use of a weapon by a felon is the greater offense in this case.

¶ 7 Defendant first contends that one of his convictions for unlawful possession of a weapon should be vacated because the legislature did not intend to permit multiple convictions based upon the possession of a single, loaded firearm. Defendant did not preserve this issue in the trial court and asks that we review it for plain error. The plain error doctrine allows a reviewing court to address defects affecting substantial rights (1) if the evidence is closely balanced or (2) if fundamental fairness so requires rather than finding the claims waived. People v. Carter, 213 Ill.2d 295, 299, 290 Ill.Dec. 182, 821 N.E.2d 233 (2004). Defendant does not claim that the evidence in this case was closely balanced but, rather, he points out that our supreme court has held that “the potential for a surplus conviction and sentence affects the integrity of the judicial process, thus satisfying the second prong of the plain error rule.” People v. Harvey, 211 Ill.2d 368, 389, 286 Ill.Dec. 124, 813 N.E.2d 181 (2004); see also Carter, 213 Ill.2d at 299, 290 Ill.Dec. 182, 821 N.E.2d 233 (considering the question of whether multiple convictions could be entered for unlawful possession of weapons by a felon based on simultaneous possession of two guns and ammunition for those guns under the second prong of the plain error doctrine). However, “[t]he first step of plain-error review is to determine whether any error occurred.” People v. Lewis, 234 Ill.2d 32, 43, 332 Ill.Dec. 334, 912 N.E.2d 1220 (2009). Accordingly, we first consider whether defendant's multiple convictions constituted error.

¶ 8 The question of whether the unlawful possession of a weapon by a felon statute permits separate offenses to be charged for simultaneous possession of a handgun and the firearm ammunition inside of that handgun is an issue of first impression.² The interpretation of a statute is a question of law that is reviewed de novo. Carter, 213 Ill.2d at 301, 290 Ill.Dec. 182, 821 N.E.2d 233. Our primary objective when construing a statute is to ascertain and give effect to the intent of the legislature. Carter, 213 Ill.2d at 301, 290 Ill.Dec. 182, 821 N.E.2d 233. We begin by examining the language of the statute, which is “the surest and most reliable indicator of legislative intent.” People v. Pullen, 192 Ill.2d 36, 42, 248 Ill.Dec. 237, 733 N.E.2d 1235 (2000). Where the language of the statute is clear and unambiguous, it must be read and given effect without exception, limitation, or other condition. Carter, 213 Ill.2d at 301, 290 Ill.Dec. 182, 821 N.E.2d 233.

¶ 9 In this case, the plain and unambiguous language of the statute allows for multiple[356 Ill.Dec. 5]

[960 N.E.2d 1128]

convictions based upon simultaneous possession of a firearm and firearm ammunition. Section 24–1.1 makes it unlawful for a person who has been convicted of a felony to possess “any firearm or any firearm ammunition.” 720 ILCS 5/24–1.1(a) (West 2008). More importantly, the statute provides that “[t]he possession of each firearm or firearm ammunition in violation of this Section constitutes a single and separate violation.” 720 ILCS 5/24–1.1(e) (West 2008). It is undisputed that in the present case, defendant was found to be in possession of both a firearm and firearm ammunition. Therefore, we conclude that the plain language of the statute permits defendant's multiple convictions for unlawful possession of a weapon by a felon.

¶ 10 Defendant nevertheless relies upon our supreme court's decision in Carter to assert that the statute is ambiguous and that it therefore must be construed to prohibit his conviction for unlawful possession of a weapon based upon the ammunition inside the firearm.

¶ 11 In Carter, the defendant was found in possession of two loaded semiautomatic weapons, a .22–caliber handgun and a .25–caliber handgun, and an ammunition clip containing .22–caliber bullets. The defendant was charged with and convicted of, among other things, four counts of unlawful possession of weapons by a felon. Those four counts were based upon the defendant's possession of a .22–caliber handgun, a .25–caliber handgun, and ammunition for the .22–caliber handgun. Carter, 213 Ill.2d at...