People v. Clark

• Decision Date: 20 November 2014
• Docket Number: No. 1–12–3494.,1–12–3494.
• Citation: 22 N.E.3d 378
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Fred CLARK, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

22 N.E.3d 378

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Fred CLARK, Defendant–Appellant.

No. 1–12–3494.

Appellate Court of Illinois, First District, Fourth Division.

Nov. 20, 2014.

Rehearing Denied Dec. 26, 2014.

Michael J. Pelletier, Alan D. Goldberg, and Gilbert C. Lenz, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Mary P. Needham, and Mari R. Hatzenbuehler, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice EPSTEIN delivered the judgment of the court, with opinion.

¶ 1 The State charged defendant Fred Clark with aggravated vehicular hijacking while armed with a firearm (720 ILCS 5/18–4(a)(4) (West 2010)) and armed robbery while armed with a firearm (720 ILCS 5/18–2(a)(2) (West 2010)).¹ After a bench trial, the trial court found defendant guilty of the uncharged offenses of aggravated vehicular hijacking with a dangerous weapon other than a firearm (720 ILCS 5/18–4(a)(3) (West 2010)) and armed robbery with a dangerous weapon other than a firearm (720 ILCS 5/18–2(a) (1) (West 2010)), finding that those offenses were lesser-included offenses of the charged offenses. Defendant appeals, asserting: (1) that the offenses of which he was convicted were not lesser-included offenses of the charged offenses; (2) that his 17–year sentences for aggravated vehicular hijacking and armed robbery are excessive; and (3) that his mittimus should be corrected to reflect the offenses of which he was convicted.

¶ 2 We agree that, in this case, aggravated vehicular hijacking with a dangerous weapon other than a firearm and armed robbery with a dangerous weapon other than a firearm were not lesser-included offenses of aggravated vehicular hijacking with a firearm and armed robbery with a firearm because the charging instrument did not permit an inference that defendant used a weapon other than a firearm during the offense. We thus reduce defendant's convictions to vehicular hijacking and robbery and remand for resentencing. We do not reach defendant's remaining contentions of error.

¶ 3 I. BACKGROUND

¶ 4 Tyran Wise testified that, around 6:30 a.m. on May 15, 2011, he drove his red 2009 Dodge Charger down the alley behind his apartment building. A black car approached Wise's car in the opposite direction. The men in the other car waved Wise ahead. Wise parked his car in the garage behind his building.

¶ 5 Wise testified that, as he was shutting his garage door, a man he identified in court as defendant put a gun to his head and “said give that shit up.” A shorter man, who was not armed, entered the garage. The shorter man and defendant took $200 in cash and a cell phone from Wise's pockets. The shorter man entered Wise's car and drove away.

¶ 6 Wise testified that defendant made him move to the back of the garage, sit down, face the wall, and put his hands on his head. Defendant struck Wise in the head with the gun twice. Defendant then drove away in the black car that had approached Wise in the alley. After defendant had left, Wise called the police.

¶ 7 Chicago police officer Rangel testified that, around 11 p.m. on May 15, 2011, he observed a red Dodge Charger cut through a gas station. Rangel pulled the Charger over and three people fled from it, including defendant. Rangel chased defendant and radioed other officers. Rangel saw other officers arrest defendant shortly thereafter.

¶ 8 Officer Juan Aguirre, an evidence technician, processed the Charger just before midnight on May 15, 2011. Aguirre testified that he found a loaded 9–millimeter Ruger handgun on the floor of the backseat of the car.

¶ 9 Around 2:30 a.m. on May 16, 2011, Wise viewed a lineup at the police station. Detective Sharon Walker testified that both defendant and Kamari Belmont were in the lineup that Wise viewed. Wise identified defendant as the man who held a gun to his head. Wise did not identify Belmont.

¶ 10 Defendant testified that, between 9 p.m. and 9:30 p.m. on May 15, 2011, Belmont and Belmont's cousin Taylor picked him up in a red Dodge Charger. Belmont told defendant the car belonged to his aunt. Defendant testified that he did not see a gun in the car. Defendant said that he, Belmont, and Taylor planned to go out and celebrate defendant's birthday.

¶ 11 Defendant testified that he drove the Charger to a gas station near 55th Street and Wells Street. Defendant exited the car and saw someone in black with something in his hand. Defendant testified that he thought the person may have had a gun so he ran behind a nearby house. When defendant walked back to the front of the house, he saw the police, who arrested him.

¶ 12 Defendant testified that he had never seen Wise before trial. Defendant denied holding a gun to Wise's head or taking anything from Wise. Defendant acknowledged that he was on parole for a juvenile drug case at the time of trial.

¶ 13 The court found that Wise was credible and that defendant was not. The court credited Wise's identification of defendant as the man who robbed him in his garage. The court then stated:

“The weapon was used in this case in the manner of a bludgeon. He was pistol-whipped with it.

I find under all circumstances that it was used as a bludgeon and will be treated as such. So he is found guilty of aggravated vehicular hijacking and armed robbery without a firearm * * *.”

Neither the State nor defendant objected to the trial court's findings.

¶ 14 At the defendant's sentencing hearing, the court stated, “[I]n light of [defendant's] age, the fact the gun wasn't fired, other circumstances that I heard at the trial, [I] gave some deference and benefit of the doubt and justice as to the ultimate finding.” The trial court sentenced defendant to concurrent terms of 17 years' incarceration for aggravated vehicular hijacking and 17 years' incarceration for armed robbery. Defendant appeals.

¶ 15 II. ANALYSIS

¶ 16 Defendant asserts that the trial court violated his right to due process of law when it convicted him of aggravated vehicular hijacking with a dangerous weapon other than a firearm and armed robbery with a dangerous weapon other than a firearm because those offenses were not lesser-included offenses of the charged offenses of aggravated vehicular hijacking with a firearm and armed robbery with a firearm. Defendant thus urges this court to reduce his convictions to vehicular hijacking and robbery, which he acknowledges were lesser-included offenses of the charged offenses.

¶ 17 The State contends that the trial court actually convicted defendant of the charged offenses: aggravated vehicular hijacking with a firearm and armed robbery with a firearm. The State thus claims that defendant's sentences are void as they fall below the mandatory statutory minimum sentences for those offenses. The State asks this court to remand for the imposition of a sentence in accord with the higher sentencing range. We first turn to the question of which offenses the defendant was convicted of.

¶ 18 A. Defendant's Convictions

¶ 19 The State contends that the trial court convicted defendant of aggravated vehicular hijacking with a firearm and armed robbery with a firearm because it found that defendant used a gun to strike Wise in the head. The State claims that the offenses of aggravated vehicular hijacking with a firearm and armed robbery with a firearm do not require that the State prove that the firearm was actually fired. Defendant contends that, regardless of whether the trial court's judgment was erroneous, it acquitted defendant of aggravated vehicular hijacking with a firearm and armed robbery with a firearm. Defendant further asserts that this court may not enter convictions for offenses of which the defendant was acquitted. We agree with defendant.

¶ 20 The Illinois Constitution bars an appeal from a judgment of acquittal “regardless of whether the court's ruling [was] based upon a mistake of fact or mistake of law.” People v. Rey, 136 Ill.App.3d 645, 651, 91 Ill.Dec. 496, 483 N.E.2d 982 (1985) ; see Ill. Const. 1970, art. VI, § 6. Similarly, under the double jeopardy clauses of the United States and Illinois Constitutions, “an acquittal due to insufficient evidence precludes retrial, whether the court's evaluation of the evidence was correct or not, [citation], and regardless of whether the court's decision flowed from an incorrect antecedent ruling of law.” (Internal quotation marks omitted.) Evans v. Michigan, 568 U.S. ––––, ––––, 133 S.Ct. 1069, 1075–76, 185 L.Ed.2d 124 (2013) ; see U.S. Const., amend. V ; Ill. Const. 1970, art. I, § 10. A judgment constitutes an acquittal where it “actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” (Internal quotation marks omitted.) People v. Williams, 188 Ill.2d 293, 300, 242 Ill.Dec. 245, 721 N.E.2d 524 (1999).

¶ 21 In this case, the record supports defendant's contention that the trial court acquitted him of the charged offenses of aggravated vehicular hijacking with a firearm and armed robbery with a firearm. At the close of the trial, the trial court unequivocally stated that it “found [defendant] guilty of aggravated vehicular hijacking and armed robbery without a firearm.” (Emphasis added.) The court explained this finding on the basis that defendant had “used [the gun] as a bludgeon and [it should] be treated as such.” At the sentencing hearing, the trial court indicated that it had given defendant the “benefit of the doubt and justice as to the ultimate finding.” The trial court sentenced defendant to 17 years' incarceration for both offenses; sentences within the permissible ranges for aggravated vehicular hijacking and armed robbery with a dangerous weapon other than a firearm and below the permissible ranges for aggravated vehicular hijacking and armed robbery with a firearm. 720 ILCS 5/18–2(b), 5/18–4(b) (West 2010); 730 ILCS 5/5–4.5–25(a) (West 2010). Although the written order of defendant's...