No. 1-11-1497 Opinion filed April 30, 2014 THIRD DIVISION

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IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 10 CR 10373 ) VALENTINO WILBOURN, ) ) The Honorable Defendant-Appellant. ) Jorge Luis Alonso, ) Judge presiding.

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JUSTICE NEVILLE delivered the judgment of the court, with opinion. Presiding Justice Hyman and Justice Pucinski concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, the trial court found the defendant, Valentino Wilbourn,

guilty of unlawful use of a weapon by a felon and possession of marijuana with intent to

distribute. On appeal, Wilbourn seeks to challenge only the sentence on the weapons charge.

Wilbourn argues that charging instrument did not adequately notify him of the State's No. 1-11-1497

intention to seek an enhanced sentence, and the court impermissibly used his prior conviction

first as an element of the offense and second as grounds for enhancing his sentence. We find

that our supreme court's decision in People v. Easley,

, resolves both issues

adversely to Wilbourn's arguments. Therefore, we affirm the trial court's judgment.

¶2 BACKGROUND

¶3 On April 30, 2010, Sergeant Martin Murphy and other police officers executed a search

warrant on an apartment located on the south side of Chicago. When the officers entered the

apartment, they saw a woman sitting at a kitchen table, a man just leaving the apartment, and

Wilbourn coming out of a bathroom. The officers found 45 bags of marijuana on the kitchen

table and a loaded gun hidden in the cushions of the sofa. After an officer reminded

Wilbourn of his constitutional rights, Wilbourn told the officers that the gun and all of the

marijuana belonged to him. The officers arrested Wilbourn.

¶4 Prosecutors charged Wilbourn with possession of more than 30 grams of marijuana with

intent to distribute. See 720 ILCS 550/5(d) (West 2010). Because Wilbourn had a prior

conviction from 2002 for aggravated battery resulting in great bodily harm, prosecutors also

charged Wilbourn with unlawful use of a weapon by a felon. See 720 ILCS 5/24-1.1(a)

(West 2010).

¶5 The trial court, after a bench trial, found Wilbourn guilty on those charges. The court

denied Wilbourn's motion for a new trial and sentenced him to concurrent terms of five years

in prison on each charge. At the sentencing hearing, the court admonished Wilbourn that if

he wanted to challenge the sentence, he needed to file a motion to reconsider the sentence

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within 30 days of sentencing, and that if he failed to file such a motion, he would lose the

right to challenge the sentence on appeal. See Ill. S. Ct. R. 605 (eff. Oct. 1, 2001).

¶6 Wilbourn filed no motion to reconsider the sentence. He filed a timely notice of appeal.

¶7 ANALYSIS

¶8 Waiver

¶9 In this appeal, Wilbourn seeks to challenge only the propriety of the sentence. The State

contends that Wilbourn waived this issue by failing to file a motion to reconsider the

sentence. See 730 ILCS 5/5-4.5-50(d) (West 2010); People v. Reed,

(1997). However, this court has held that "[s]entencing issues are regarded as matters

affecting a defendant's substantial rights and are thus excepted from the doctrine of waiver."

People v. Baaree,

(2000); see also People v. Owens,

(2007); People v. Carmichael,

(2003); People v.

Brials,

(2000). We will review the sentencing issues on their

merits.

¶ 10 Double Enhancement

¶ 11 Wilbourn argues that the trial court used the 2002 aggravated battery conviction to

doubly enhance his sentence. First, the court used the 2002 conviction as an element of the

Class 3 offense of unlawful use of a weapon by a felon. Second, the court used the same

prior conviction for a forcible felony to enhance the offense to a Class 2 felony. Section 24-

1.1 of the Criminal Code of 1961 establishes that if a person guilty of a forcible felony

knowingly possesses a prohibited weapon, that person has committed a Class 2 felony of

unlawful use of a weapon by a felon. 720 ILCS 5/24-1.1(a), (e) (West 2010). Section 2-8 of

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the Criminal Code lists aggravated battery resulting in great bodily harm as a forcible felony.

720 ILCS 5/2-8 (West 2010).

¶ 12 Wilbourn acknowledges that the appellate court in People v. Powell,

, decided the same issue. The court there held that section 24-1.1 creates a Class 3

felony of unlawful use of a weapon by a person who committed a prior non-forcible felony,

and a Class 2 felony of unlawful use of a weapon by a person who committed a prior forcible

felony. Powell,

. The Powell court found that the trial court

had not enhanced the penalty on Powell at all by imposing a sentence appropriate for a Class

2 felony, because Powell had a prior conviction for a forcible felony when he possessed a

weapon. Wilbourn argues that we should not follow Powell because the Powell court

misconstrued the statute.

¶ 13 During the pendency of this appeal, our supreme court resolved the issue, as it approved

the reasoning of Powell. Easley,

. Following Powell and Easley,

we find that the trial court here imposed a sentence appropriate for the Class 2 felony of

unlawful use of a weapon by a felon who committed a prior forcible felony. The trial court

did not doubly enhance Wilbourn's sentence.

¶ 14 Charging Instrument

¶ 15 Next, Wilbourn argues that the trial court should not have sentenced him as a Class 2

felon, because the charging instrument did not specifically notify him that the State sought to

enhance the level of the charged weapons offense to a Class 2 felony based on the prior

conviction. See 725 ILCS 5/111-3 (West 2010).

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¶ 16 The Easley court rejected an indistinguishable argument. The Easley court held that "the

notice provision applies only when the prior conviction that would enhance the sentence is

not already an element of the offense." Easley,

, ¶ 19. Because the prior

conviction for aggravated battery resulting in great bodily harm is an element of the offense

of unlawful use of a weapon by a felon, "notice under section 111-3(c) [of the Code of

Criminal Procedure (725 ILCS 5/111-3(c) (West 2008))] is not necessary." Easley,

.

¶ 17 Following Easley, we hold that the charging instrument permitted the court to sentence

Wilbourn for the Class 2 felony of unlawful use of a weapon by a felon.

¶ 18 CONCLUSION

¶ 19 The Easley and Powell courts held that section 24-1.1 creates two separate levels of the

offense of unlawful use of a weapon by a felon, and the possession of a weapon by a person

who committed a prior forcible felony constitutes a Class 2 felony. Under Easley and

Powell, the trial court properly sentenced Wilbourn for the Class 2 felony of unlawful use of

a weapon by a felon. The prosecutor's failure to specify, in the charging instrument, that it

sought a conviction for a Class 2 felony did not violate section 111-3 of the Code of Criminal

Procedure. Accordingly, we affirm the sentence the trial court imposed on the weapons

charge.

¶ 20 Affirmed.

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