People v. Fulton
| Decision Date | 31 March 2016 |
| Docket Number | No. 1–14–1765.,1–14–1765. |
| Citation | 402 Ill.Dec. 626,52 N.E.3d 547 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Parnell FULTON, Defendant–Appellant. |
| Court | United States Appellate Court of Illinois |
Michael J. Pelletier, Alan D. Goldberg, Gilbert C. Lenz, State Appellate Defender's Office, Chicago, for appellant.
Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Jon Walters, Brian A. Levitsky, Assistant State's Attorneys, of counsel), for the People.
¶ 1 Defendant was convicted of being an armed habitual criminal, aggravated unlawful use of a weapon, and unlawful use of a weapon by a felon. On appeal, he contends that his armed habitual criminal conviction subjected him to an improper double enhancement, and that the armed habitual criminal statute violates substantive due process because it potentially criminalizes innocent conduct. We find that defendant was not subjected to improper double enhancement where his conviction for delivery of a controlled substance was only used once, as a predicate felony, to support his conviction as an armed habitual criminal. Furthermore, the armed habitual criminal statute is not unconstitutional where the statute is rationally related to the public interest it serves and defendant failed to demonstrate that the statute could not be constitutionally applied in any set of circumstances. For these reasons, we affirm the judgment of the circuit court.
¶ 3 Defendant, Parnell Fulton, was charged by information with being an armed habitual criminal (count I), four counts of aggravated unlawful useful of a weapon (counts II through V), and two counts of unlawful use of a weapon by a felon (counts VI and VII). Following a bench trial, the trial court found him guilty on all counts. Defendant was sentenced to a term of six years' imprisonment each for his armed habitual criminal conviction and his aggravated unlawful use of a weapon conviction, to run concurrently. The remaining counts were merged into the armed habitual criminal count.
¶ 4 The following evidence was adduced during defendant's trial in September of 2013. Officer Tyson Colvin testified that on July 14, 2011, he was with a group of 10 to 12 other officers when they received information that weapons “were being kept” in a green Cadillac “with an off color bumper,” which was parked near 4200 West Adams Street in Chicago, Illinois. At approximately 6:30 p.m., the officers proceeded to the area where Officer Colvin saw the Cadillac, although no one was in or around the vehicle at the time. He set up surveillance to watch the vehicle and, approximately 30 minutes later, saw defendant approach the vehicle, open the driver's side door, and “bend over into the vehicle.” Officer Colvin notified his fellow officers and two “enforcement cars” approached defendant, one from each direction on Adams Street. When defendant noticed the squad car approaching from the west, he left the vehicle and started walking east on Adams Street. Shortly after, defendant was detained by the officers in the car that approached from the west.
¶ 5 Officer Robert Blomquist testified that on July 14, 2011, he and his partner, Officer Gary McGovern, along with a larger team of officers, had received information that a green Cadillac “possibly had a weapon in it.” Officers Blomquist and McGovern were assigned to enforcement and were posted at Jackson Boulevard and Kildare Avenue. At approximately 7 p.m., they received information that a person had approached the driver's side of the green Cadillac, “opened the door, made some sort of the [sic ] movement that [Officer Colvin] was not sure about at that time, and that's when he called for enforcement to come in.” According to Officer Blomquist, he and his partner drove toward the green Cadillac's location and then drove east on Adams Street, toward the green Cadillac. Another enforcement vehicle approached the Cadillac from the other direction, and there was a third enforcement vehicle behind his squad car. As they approached, Officer Blomquist saw defendant crossing Adams Street, and said it “looked like he was coming from the green Cadillac.” He testified that he also observed “a brown handle [of] what looked to be like a butt of a .38 revolver” protruding from defendant's right pocket. When the officers were about 10 feet away from defendant, they ordered him to raise his hands, and Officer Blomquist recovered “a .38 caliber Smith & Wesson fully loaded revolver” from defendant's right front pocket. Defendant was arrested and, after receiving his Miranda rights, he made a statement, saying that “he had that gun for protection because his cousin was shot.”
¶ 6 The State then entered two certified convictions of defendant into evidence: (1) a 2007 conviction for unlawful use of a weapon by a felon in case number 07 CR 11926; and (2) a 2006 conviction for manufacture and delivery of a controlled substance in case number 06 CR 3407. Additionally, the State entered a FOID certification for defendant, which stated that “defendant did not have a currently valid FOID card issued to him on the date in question.” The parties also stipulated that the gun recovered from defendant was tested for fingerprints and the exam “resulted in a negative finding for the presence of any ridge impressions.”
¶ 9 Defendant first contends that he was subjected to an improper double enhancement because his 2006 conviction for delivery of a controlled substance was used twice to support the armed habitual criminal conviction: once as its own predicate felony and once as an element of the second predicate felony, a 2007 conviction for unlawful use of a weapon by a felon (UUWF). An impermissible double enhancement occurs when either: (1) a single factor is used as an element of an offense and as a “basis for imposing ‘a harsher sentence than might otherwise have been imposed’ ”; or (2) “when the same factor is used twice to elevate the severity of the offense itself.” People v. Phelps, 211 Ill.2d 1, 12–13, 284 Ill.Dec. 268, 809 N.E.2d 1214 (2004) (quoting People v. Gonzalez, 151 Ill.2d 79, 83–84, 175 Ill.Dec. 731, 600 N.E.2d 1189 (1992) ). Our supreme court has explained that “[t]he reasoning behind this prohibition is that it is assumed that the legislature, in determining the appropriate range of punishment for a criminal offense, necessarily took into account the factors inherent in the offense.” Gonzalez, 151 Ill.2d at 84, 175 Ill.Dec. 731, 600 N.E.2d 1189. Where our legislature “designates the sentences which may be imposed for each class of offenses,” it “necessarily considers the factors that make up each offense in that class.” Id. “Thus, to use one of those same factors that make up the offense as [a] basis for imposing a harsher penalty than might otherwise be imposed constitutes a double use of a single factor.” (Emphasis omitted.) Id. Whether a defendant has been subject to an improper double enhancement is a question of statutory construction, which we review de novo. Phelps, 211 Ill.2d at 12, 284 Ill.Dec. 268, 809 N.E.2d 1214.
¶ 10 The statutory provision at issue here, section 24–1.7 of the Criminal Code of 2012 (Code), provides in pertinent part:
¶ 11 This court recently considered the same question defendant presents in People v. Johnson, 2015 IL App (1st) 133663, 398 Ill.Dec. 457, 44 N.E.3d 486. In Johnson, the defendant was convicted as an armed habitual criminal based on his possession of a weapon after having been previously convicted of residential burglary, which qualifies as a forcible felony pursuant to section 2–8 of the Code (720 ILCS 5/2–8 (West 2012) ), and UUWF (720 ILCS 5/24–1.1 (West 2012) ). Johnson, 2015 IL App (1st) 133663, ¶ 16, 398 Ill.Dec. 457, 44 N.E.3d 486. He argued on appeal that he was subject to an improper double enhancement because his prior residential burglary conviction “was used to prove both predicate felonies of the armed habitual criminal offense—once by itself, and then again as an element of the second predicate felony of UUWF.” Id. ¶ 13. This court first noted that both of the predicate offenses relied on by the trial court were “clearly enumerated” by section 24–1.7 of the Code “as valid offenses upon which to base an armed habitual criminal conviction.” Id. ¶ 16. However, we further observed that the “fact that the residential burglary conviction was the felony upon which defendant's UUWF conviction was based does not negate the validity of the two offenses as the predicate offenses for defendant's armed habitual criminal conviction.” Id. Our rationale for this proposition was as follows:
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People v. Brown
...favor of a statute's validity and constitutionality. Patterson , 2014 IL 115102, ¶ 90, 388 Ill.Dec. 834, 25 N.E.3d 526 ; People v. Fulton , 2016 IL App (1st) 141765, ¶ 20, 402 Ill.Dec. 626, 52 N.E.3d 547. Courts have recognized that succeeding on a facial challenge, rather than on an "as ap......
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People v. West, 1–14–3632
...he mounts a facial challenge arguing that the statute violates due process because it is unenforceable against anyone. People v. Fulton , 2016 IL App (1st) 141765, ¶ 19, 402 Ill.Dec. 626, 52 N.E.3d 547. Consequently, because West claims that he was convicted under a facially unconstitutiona......
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