People v. Brown

• Decision Date: 17 May 2017
• Docket Number: No. 1-15-0146,1-15-0146
• Citation: 2017 IL App (1st) 150146,80 N.E.3d 608
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dewayne BROWN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 150146

80 N.E.3d 608

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Dewayne BROWN, Defendant-Appellant.

No. 1-15-0146

Appellate Court of Illinois, First District, THIRD DIVISION.

May 17, 2017

Michael J. Pelletier, Patricia Mysza, and Jean Park, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Jon Walters, and David J. Welch, Assistant State's Attorneys, of counsel), for the People.

OPINION

JUSTICE PUCINSKI delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant Dewayne Brown was convicted of the offense of armed habitual criminal. He was sentenced to 8 years' imprisonment and was assessed various fines, fees, and costs. Defendant appeals his conviction, arguing that (1) he was not proved guilty of the offense of armed habitual criminal beyond a reasonable doubt; (2) the armed habitual criminal statute ( 720 ILCS 5/24-1.7 (West 2012) ) is facially unconstitutional because it has the potential to criminalize wholly innocent conduct; and (3) the fines, fees, and costs order must be corrected to apply his presentence incarceration credit toward several fines. For the reasons set forth herein, we affirm defendant's conviction. We do, however, correct the fines, fees, and costs order.

¶ 2 BACKGROUND

¶ 3 At trial, Officer Brian Rovano testified that on September 25, 2013, at approximately 11:22 p.m., he and his partner, Officer Michael Shrake, were on routine patrol near the area of 49th Street and Ashland when they heard a car alarm sound. The officers discovered the vehicle that was the source of the alarm parked in a nearby parking lot. Upon arriving at the lot, Officer Rovano noticed a couple sitting in a maroon Ford Taurus that was also parked in the same lot. A "very strong smell of cannabis" was emanating from the vehicle. Upon seeing the officers enter the parking lot, defendant exited the front passenger seat of the Taurus and stood by the vehicle. Officer Rovano testified that he exited his own vehicle and began to approach defendant. As he walked closer to the Ford Taurus, Rovano observed the female driver "smoking what appeared to be a cigar filled with cannabis," which she subsequently put down into the car's ashtray. He also noticed a bottle of "Remy liquor" in the middle console of the vehicle. The odor of cannabis was stronger, the closer that he got to the vehicle.

¶ 4 Officer Rovano testified that, for his own safety, he detained and handcuffed defendant. His partner then approached the driver's side of the vehicle and asked the female driver to exit the vehicle. She complied. When asked for her ID, the driver, Brittany Fain, responded that her identification was in the car. In response to her statement, Officer Rovano first retrieved the cannabis and the bottle of Remy from the vehicle and then began searching for Fain's ID card. As he did so, he noticed her purse on the floor on the front passenger side of the vehicle. The purse was open, and the handle of a handgun was "sticking out" in "plain view." Officer Rovano testified that he recovered the weapon, which turned out to be a Highpoint "black 45-caliber semiautomatic handgun." The gun was loaded and "contained one round in the chamber and seven in the magazine." After Officer Rovano removed the weapon from the vehicle, defendant immediately "stated that the weapon was his" and explained that he had put the handgun into Fain's purse. At that point, defendant and Fain were both placed under arrest and transported to the local police station. On the way to the station, defendant stated that he wanted to apologize to Fain for placing his gun in her purse.

¶ 5 Defendant was advised of his Miranda rights after he was processed at the station. He ultimately elected to waive his rights and speak to the officers. Defendant then stated that he "bought the gun two days ago" for $150 from a Hispanic male whose street name was Julio. Defendant made the purchase "from a place around 49th and Laflin or Ashland." He explained that he wanted the weapon "for protection." Defendant identified the weapon as a "Highpoint" and called it a "bull* * * * a* * gun" because those types of guns "usually jam." Defendant informed the officers that he hoped "the charges wouldn't be approved" because "if gets charged again * * * he is done."

¶ 6 On cross-examination, Officer Rovano testified that Fain was the owner of the Ford Taurus in which the cannabis, liquor, and handgun were recovered.

¶ 7 Chicago Police Officer Shrake confirmed that he and his partner encountered defendant at approximately 11:20 p.m. on September 25, 2013, in a parking lot located at 4847 South Ashland Avenue. He further confirmed that a handgun was recovered from the vehicle in which defendant had been seated and that defendant claimed ownership of the gun and apologized to Fain for placing his weapon in her purse. Once defendant was advised of his Miranda rights, he provided details about the manner in which he had purchased the weapon. Defendant also expressed his concern about his criminal history and being charged as an armed habitual criminal.

¶ 8 Thereafter, the State proceeded by way of stipulation. The parties stipulated that on the date of the incident, defendant was "not in possession of a valid FOID [Firearm Owners Identification] card as would have been issued by the Illinois State Police." The State also entered into evidence certified copies of defendant's prior convictions, including a 1998 conviction for attempted armed robbery, a 2006 robbery conviction, and a 2012 possession of a controlled substance conviction.

¶ 9 After the State rested its case-in-chief, defendant elected not to testify, and the defense rested without presenting any evidence. After hearing closing arguments from the parties, the circuit court concluded that the State had sustained its burden of proving defendant guilty of the offense of armed habitual criminal beyond a reasonable doubt.

¶ 10 The cause subsequently proceeded to a sentencing hearing. After hearing arguments advanced in aggravation and mitigation, the circuit court sentenced defendant to 8 years' imprisonment. The circuit court also assessed a number of fines, fees, and costs, totaling $394. The court's order also credited defendant with 195 days of presentence custody, which entitled him to a total of $975 in presentence incarceration credit. This appeal followed.

¶ 11 ANALYSIS

¶ 12 Sufficiency of the Evidence

¶ 13 Defendant first challenges the sufficiency of the evidence. Specifically, he argues that the State failed to prove beyond a reasonable doubt that his prior conviction for attempted armed robbery was a forcible felony sufficient to satisfy the elements of the offense of armed habitual criminal. He submits that attempted armed robbery is not inherently a forcible felony and that the State failed to present any specific details pertaining to his attempted armed robbery conviction to establish that the offense "involved any kind of use or threat of physical force or violence," such that it could be categorized as a forcible felony. Given the lack of evidence that he committed two predicate forcible felony offenses, defendant argues that State did not sustain its burden of proving him guilty of the offense of armed habitual criminal beyond a reasonable doubt.

¶ 14 The State responds that "every attempt[ed] armed robbery inherently includes the possibility of the threat of physical force or violence sufficient to qualify as a forcible felony." Therefore, the State asserts that the circuit court properly found that the State met its burden of establishing the elements of the offense of armed habitual criminal beyond a reasonable doubt.

¶ 15 Section 24-1.7 of the Illinois Criminal Code of 2012 (Criminal Code or Code) sets forth the offense of armed habitual criminal and provides, in pertinent part, as follows:

"(a) A person commits the offense of being an armed habitual criminal if he or she receives, sells, possesses, or transfers any firearm after having been convicted a total of 2 or more times of any combination of the following offenses:

(1) A forcible felony as defined in Section 2-8 of this Code[.]" 720 ILCS 5/24-1.7(a)(1) (West 2012).

¶ 16 "The armed habitual criminal statute adopts the definition of forcible felony from section 2-8 of the Criminal Code * * *." People v. Thomas , 407 Ill.App.3d 136, 139, 347 Ill.Dec. 889, 943 N.E.2d 179 (2011). That provision provides:

" ‘Forcible felony’ means treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual ." (Emphasis added.) 720 ILCS 5/2-8 (West 2012).

¶ 17 To sustain a conviction for the offense of armed habitual criminal, the State must prove the defendant's prior convictions as well as his present conduct beyond a reasonable doubt. People v. Adams , 404 Ill.App.3d 405, 412, 343 Ill.Dec. 685, 935 N.E.2d 693 (2010). Here, defendant was charged with the offense of armed habitual criminal on the basis that he "knowingly or intentionally possessed a firearm * * * after having been convicted of robbery under case number 05CR1458001 and attempt armed robbery under case number 98CR1180301." Defendant does not dispute that his conviction for robbery is a forcible felony that qualified as a predicate offense for purposes of the armed habitual criminal statute. Instead, the basis for his challenge to the sufficiency of the evidence pertains to his prior conviction for attempted armed robbery. Specifically, he argues that that the offense of attempted armed robbery is not an inherently...