People v. Richards
| Docket Number | 1-19-2154 |
| Decision Date | 02 December 2021 |
| Citation | 2021 IL App (1st) 192154,203 N.E.3d 277,461 Ill.Dec. 123 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Deshawn RICHARDS, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James E. Chadd, Douglas R. Hoff, and Ian R. Jackson, of State Appellate Defender's Office, of Chicago, for appellant.
Kimberly M. Foxx, State's Attorney, of Chicago (John E. Nowak and Marci Jacobs, Assistant State's Attorneys, of counsel), for the People.
¶ 1 Deshawn Richards appeals the sentence imposed following his conviction for unlawful use of a weapon by a felon (UUWF). Richards argues the trial court applied an elevated sentencing range by erroneously finding that Richards's prior conviction for second degree murder was a "qualifying predicate offense" under a provision of the Safe Neighborhoods Reform Act (Pub. Act 100-3 (eff. Jan. 1, 2018)). We find that second degree murder is not a qualifying predicate offense under that provision and remand for resentencing.
¶ 3 In a bench trial, the State presented evidence that Richards possessed a Sig Sauer 9-millimeter handgun on September 5, 2018. Two Chicago police officers testified that they observed Richards "toss a firearm underneath a bush" while he was standing near the intersection of West 121st Street and La Salle Street in Chicago. Moments later, the officers detained Richards and recovered the firearm from beneath the bush. The State also introduced a certified copy of Richards's conviction for a 2011 second degree murder for which Richards pled guilty in 2014. Richards denied that he possessed a firearm at any time during the incident and claimed that the firearm the officers referred to in their testimony was not his and he had never seen it before. The trial court found Richards guilty of UUWF.
¶ 4 At sentencing, the court stated that Richards was subject to a prison term of 7 to 14 years based on statutory sentencing guidelines established in the Safe Neighborhoods Reform Act. Those guidelines elevated the sentence for persons convicted of possessing a firearm after being convicted of a "qualifying predicate offense."
See 730 ILCS 5/5-4.5-110 (West 2018). The State agreed that Richards was subject to the elevated sentencing guidelines and further argued that the court should impose a prison term above the minimum due to Richards's prior second degree murder conviction and two juvenile adjudications of delinquency involving violence.
¶ 5 Defense counsel did not object to the court's finding that Richards was subject to the elevated sentencing guidelines. Nor did counsel argue that the court should depart from those guidelines, which the statute permits if the court finds a downward departure is warranted and follows certain procedures. See id. § 5-4.5-110(c)(1), (d). Counsel, however, did offer arguments in mitigation, which included that Richards maintained employment and had completed drug treatment. Counsel urged the court to impose "the minimum."
¶ 6 The court noted that it found some things "redeemable" about Richards, but the court found his second degree murder conviction significant. Richards attempted to explain, "it was self-defense." The court stated, "the bottom line is you were found guilty of some kind of killing, *** which means you should not have a gun in your possession under any circumstances and that's why you fit into the category that was effective January of 2018." The court then sentenced Richards to eight years’ imprisonment.
¶ 7 After announcing the sentence, defense counsel requested leave to file a motion to reconsider the sentence. Along with the oral request, counsel submitted a written motion. The motion included the typed assertion "[t]he State failed to prove eligibility for enhanced penalty or extended term." However, handwritten marks appeared over those words and counsel asked that the sentence be stricken. Counsel did not offer further argument. The court denied the motion to reconsider the sentence. This appeal followed.
¶ 9 On appeal, Richards claims that the trial court erred in finding him subject to the elevated sentencing guidelines as second degree murder is not a qualifying predicate offense under the sentencing guidelines for individuals with prior felony convictions. Alternatively, Richards claims that his trial counsel was ineffective for failing to raise this argument before the trial court or, if subject to the guidelines, failing to argue for a downward departure. The State counters that Richards forfeited his challenge to the sentence by failing to raise the issue before the trial court, precluding our review. The State alternatively contends second degree murder is a qualifying predicate offense for the elevated sentencing guidelines and, therefore, Richards cannot show the requisite reasonable probability that he would have received a lower sentence to establish ineffective assistance.
¶ 10 Richards acknowledges that he did not raise whether his second degree murder conviction was a qualifying predicate offense before the trial court, but he requests we review the issue as plain error.
¶ 11 Generally, to preserve a sentencing issue for appeal, a defendant must raise the issue in the trial court, including through a written motion to reconsider the sentence. People v. Woods , 2018 IL App (1st) 153323, ¶ 24, 435 Ill.Dec. 748, 140 N.E.3d 798. But an unpreserved claim of sentencing error may be reviewed under plain error analysis. Id. ¶ 25. For this analysis, the defendant must first show that a clear or obvious error occurred. Id. Then, the defendant must show that either (1) the evidence at the sentencing hearing was closely balanced or (2) the error was so egregious as to deny the defendant a fair sentencing hearing. People v. Hillier , 237 Ill. 2d 539, 545, 342 Ill.Dec. 1, 931 N.E.2d 1184 (2010). For either proposition, the defendant bears the burden of persuasion. Id.
¶ 12 Here, we first consider whether an error occurred. Richards claims the court erred by finding that second degree murder constitutes a "qualifying predicate offense" for purposes of the elevated sentencing statute for individuals convicted of UUWF. Thus, we are called upon to interpret that statute (730 ILCS 5/5-4.5-110 (West 2018)).
¶ 13 The interpretation of a statute is a question of law, which we review de novo. People v. Manning , 2018 IL 122081, ¶ 16, 425 Ill.Dec. 490, 115 N.E.3d 45. When interpreting a statute, our primary objective is to discern and give effect to the legislature's intent. People v. Casler , 2020 IL 125117, ¶ 24, 450 Ill.Dec. 415, 181 N.E.3d 767. The language of the statute, given its plain and ordinary meaning, is the most reliable indication of legislative intent. Id. Statutes should be read as a whole, with words and phrases construed in light of other relevant provisions, not read in isolation. Id. Courts "may consider the reason for the law, the problems sought to be remedied, the purpose to be achieved, and the consequences of construing the statute one way or another." Id. Courts may also consider the circumstances that existed at the time the statute was enacted. People v. Johnson , 2017 IL 120310, ¶ 15, 413 Ill.Dec. 10, 77 N.E.3d 615.
¶ 14 The relevant provision of the sentencing guideline statute at issue states:
"When a person is convicted of unlawful use or possession of a weapon by a felon [UUWF], when the weapon is a firearm, and that person has been previously convicted of a qualifying predicate offense, the person shall be sentenced to a term of imprisonment within the sentencing range of not less than 7 years and not more than 14 years, unless the court finds that a departure from the sentencing guidelines *** is warranted ***." 730 ILCS 5/5-4.5-110(c)(1) (West 2018).1
Unless this provision applies, a conviction for UUWF is generally a Class 3 felony with a sentencing range of 2 to 10 years’ imprisonment. 720 ILCS 5/24-1.1(e) (West 2018). For a person who has been previously convicted of a forcible felony,2 like Richards, UUWF is a Class 2 felony with a penalty of 3 to 14 years in prison. Thus, the practical consequence for a person previously convicted of a qualifying predicate offense under this statute is a greater minimum prison term of seven years.
¶ 15 The statute defines "qualifying predicate offense" as any of the 26 offenses "under the Criminal Code of 2012" listed in the statute. See 730 ILCS 5/5-4.5-110(a)(A)-(Z) (West 2018). Second degree murder is not among the 26 listed offenses. Id. The State contends that the legislature intended second degree murder to be a qualifying predicate offense and indicated so by adding the words "or similar offense" following first degree murder, which does appear in the list. Id. § 5-4.5-110(a)(C) (). In other words, the State argues second degree murder is a similar offense to first degree murder and, therefore, second degree murder is a qualifying predicate offense under the statute.
¶ 16 Richards argues that the absence of second degree murder from the express list signifies that the legislature intended for second degree murder not to be a qualifying predicate offense. Alternatively, he contends that various canons of statutory interpretation previously applied by Illinois courts preclude us from reading second degree murder into the statute when the legislature failed to include second degree murder in the list of qualifying predicate offenses.
¶ 17 Second degree murder is a similar offense to first degree murder in several respects. Both involve a killing for which the defendant is responsible. The two offenses require proof of the same elements and mental state. People v. Staake , 2017 IL 121755, ¶ 40, 421 Ill.Dec. 936, 102 N.E.3d 217. Second degree murder is not a lesser included offense of first degree...
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