People v. Phagan

• Citation: 2019 IL App (1st) 153031,130 N.E.3d 396,432 Ill.Dec. 854
• Decision Date: 30 April 2019
• Docket Number: No. 1-15-3031,1-15-3031
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terrell PHAGAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 153031
130 N.E.3d 396
432 Ill.Dec. 854

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Terrell PHAGAN, Defendant-Appellant.

No. 1-15-3031

Appellate Court of Illinois, First District, Second Division.

Opinion filed April 30, 2019
Modified on denial of rehearing July 16, 2019

James E. Chadd, Patricia Mysza, and Stephen L. Gentry, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, Joseph Alexander, and Nina Kelly, Assistant State’s Attorneys, of counsel), for the People.

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

432 Ill.Dec. 859

¶ 1 Shortly after Terrell Phagan had stolen a green van at gunpoint, he tried to elude Chicago and Illinois State Police officers during an 11-mile chase through the streets of Chicago. During the officers' pursuit, Phagan shot at them several times. Eventually, officers arrested Phagan after pinning the van between one of their cars and a pole.

¶ 2 The State brought two cases against Phagan. In No. 11 CR 17961, the State charged Phagan with offenses related to the car chase and his use of a gun against the officers. In No. 11 CR 17962, the State charged Phagan with offenses relating to his theft of the van and his use of a gun. The trial court joined the cases for a jury trial.

¶ 3 In case number 17961, the jury found Phagan guilty of two counts of aggravated discharge of a firearm and two counts of attempted murder of a peace officer. The trial court merged the aggravated discharge counts into the attempted murder counts and sentenced Phagan to two concurrent terms of 50 years. That sentence consisted of a 30-year base sentence for the attempted murder of a peace officer coupled with a 20-year firearm add-on. See 720 ILCS 5/8-4(c)(1)(A), (C) (West 2014).

¶ 4 In case number 17962, the jury found Phagan guilty of armed robbery, aggravated vehicular hijacking, and aggravated possession of a stolen motor vehicle. The trial court imposed concurrent 21-year sentences for each of the three offenses.

¶ 5 The trial court then ordered the concurrent 50-year sentences from one case and concurrent 21-year sentences from the other to run consecutively, bringing Phagan's sentence to a total of 71 years.

¶ 6 Phagan's brief contains no argument that the State failed to prove him guilty beyond a reasonable doubt, and at oral argument his counsel confirmed that he is not challenging the sufficiency of the evidence against him. But he raises four arguments about the fairness of the trial proceedings and sentencing: (i) the State made a series of improper arguments in closing statements and rebuttal that deprived him of a fair trial; (ii) the 20-year firearm enhancement does not apply to attempted murder of a peace officer; (iii) the trial court erred by imposing discretionary consecutive sentences; and (iv) Phagan's 71-year sentence is excessive.

¶ 7 We find no error in the conduct of closing arguments or in the imposing of

432 Ill.Dec. 860

130 N.E.3d 402

consecutive sentences. We do, however, find error in applying both the 20-year firearm enhancement and the enhanced sentencing range for attempted murder of a peace officer and vacate the 20-year firearm enhancement. We do not fault the trial judge, who followed published decisions from this district in arriving at her decision. But on de novo review of the statutory text, we disagree with the decisions of our court for reasons we explain. We vacate the 20-year firearm enhancement but otherwise affirm Phagan's conviction and sentence.

¶ 8 Background

¶ 9 At about 2 a.m. on October 10, 2011, Anthony Wilson was at his aunt's house waiting for his child's mother to arrive. He was in the driver's seat of a green 1999 Chevrolet Savannah van, talking through the window with a friend. A gray Chevrolet Malibu drove up on the driver's side and "asked did [they] have any loud," a term used for marijuana. Wilson told the passenger of the Malibu that he had no marijuana, and the Malibu drove away, turning left onto South Normal Avenue.

¶ 10 Wilson's friend left to go across the street to his house, and the gray Malibu returned. The same man who had asked about the marijuana got out, walked up to Wilson's window and pointed "like a silver .38 or .357" revolver at him. While Wilson was still seated in the van, the man took about $100 and Wilson's debit card. Wilson identified Phagan in court as that man.

¶ 11 Phagan then told Wilson to get out, which he did. The driver of the Malibu started looking through the van. Phagan told Wilson to open up the back, revealing six speaker boxes that "covered up the back, back door." After seeing the speakers, Phagan told Wilson to "go on down the street," and Wilson ran four or five houses down as he "hollered [his] cousin's name" so that someone would come outside. As he ran he heard a gunshot, saw a flash from a gun in Phagan's direction, and heard "a ding" of metal hit the gate of a fence nearby.

¶ 12 Wilson saw Phagan and the driver get back in the Malibu, so he started to run back to his van. But the Malibu made a U-turn toward the van, and Wilson ran to his friend's house, where he hid behind some bushes. Wilson watched Phagan get out of the Malibu and into his van, driving up Normal and turning onto 100th Street. Wilson called the police.

¶ 13 Chicago Police officers Sean Carroll and Michael Pantano, on patrol nearby in an unmarked car, received a call for a "robbery in progress that was reading like a carjacking." On their way to the call, they saw the van and Malibu described by the dispatcher. The officers followed both onto the entrance ramp of Interstate 57 located at 99th Street and Halsted Street. The van and Malibu took the split toward Interstate 94 heading to Indiana; they were traveling next to each other going 15 to 20 miles per hour below the speed limit. Eventually, the officers activated their emergency lights, and both the van and the Malibu pulled over.

¶ 14 Officer Carroll got out of the car, and as soon as he set foot on the pavement, both the van and the Malibu drove away. The Malibu continued on I-94, and the van took the feeder ramp off I-94 onto Stony Island Avenue. The officers stayed with the van. At the intersection of Stony Island and 95th Street the van attempted a U-turn. As the van turned, Carroll could see the driver and identified him in court as Phagan. The van then headed back toward I-94, and Carroll saw "an object which appeared to be a gun come out of the driver's side window of the van pointing directly back at [their] patrol vehicle." Carroll heard "two loud pop sounds, which [he] associated with—as being shots fired."

432 Ill.Dec. 861

130 N.E.3d 403

Concrete shot up into the air, which Carroll believed was a result of a bullet impacting the street.

¶ 15 Carroll and Pantano followed the van back onto I-94 toward downtown. At about 87th Street, Carroll saw the back driver's side window of the van shatter "with the sound of a loud pop." He was able to see the driver's right hand "come back up towards the front of the [van] holding what appeared to be the gun." The officers continued following the van as it exited I-94 at 71st Street. Other responding officers joined Carroll and Pantano. Carroll and Pantano maintained their position as the lead pursuit car, zig-zagging through the streets of Chicago heading in a generally northeast direction. Carroll and Pantano eventually lost sight of the van near the intersection of Pershing Road (39th Street) and Vincennes Avenue. Neither Carroll nor Pantano fired their weapons.

¶ 16 Sergeant James Walsh, who had arrived at Pershing and Vincennes, watched the chase unfold and saw "the individual in the van stick his arm out" holding what appeared to be a weapon. Walsh fired twice at the driver, who was the only person he could see in the van, causing the van to move around him to head east on Pershing.

¶ 17 Chicago police officers Steve Jarosz and Ryan Harty also monitored the progress of the chase on the radio; they relocated to 38th Place and Vincennes and saw police cars following a green van. Eventually, at about 38th Place and Langley Avenue, Jarosz and Harty took over as lead car. At the time they were able to see that someone was in the driver's seat, but not the individual's face.

¶ 18 While Jarosz and Harty were still on Langley, "[a]t that point, it was one shot, and that shot, just by [Jarsoz's] experience, and the echo came right at [them], at [their] car, above [their] car. [Jarosz] didn't know where the shot went, but that's what happened, and the car continued * * * southbound on Langley." Jarosz could tell that the shot came from directly in front of them and could not see any cars other than the van. Jarosz heard shots from other directions. The van turned east onto Pershing, and Jarosz and Harty pulled back from their pursuit. Neither officer fired.

¶ 19 Officer Jaysen Orkowski had been parked directly across a small grassy area from where Jarosz and Harty joined the chase. He saw the van turn south onto Langley from 38th Place, and his partner "floored...