FIFTH DIVISION August 8, 2014

No. 1-13-0907

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 09 CR 16109 ) CHRISTOPHER WOODEN, ) Honorable ) Mary Colleen Roberts, Defendant-Appellant. ) Judge Presiding.

JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Palmer and Taylor concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, defendant Christopher Wooden was convicted of unlawful

possession of a weapon by a felon and sentenced to six years in prison. On appeal, defendant

contends that: (1) he was improperly convicted of unlawful possession of a weapon by a felon as

a Class 2 felony offense instead of a Class 3 offense because the State did not give him notice

that it would seek to enhance defendant's sentence based on a prior felony conviction; and (2) he

was subject to an improper double enhancement because the same prior felony conviction was

used as both an element of the offense of unlawful use or possession of a weapon by a felon and

to enhance the class of his offense.. We affirm.

¶2 Defendant was charged by information with two counts of unlawful use or possession of

a weapon by a felon and six counts of aggravated unlawful use of a weapon. The State

proceeded to trial based on count I, unlawful use or possession of a weapon (UUW) by a felon

pursuant to section 24-1.1(a) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/24-

1.1(a) (West 2010)). The information charged that defendant committed UUW by a felon "in

that he, knowingly possessed on or about his person any firearm, to wit: a handgun, after having No. 1-13-0907

been previously convicted of the felony offense of vehicular hijacking, under case number 09 CR

11681-01." An information indictment return sheet, file stamped October 6, 2011, listed the

count I UUW by a felon charge as a Class 2 felony.

¶3 Just before the bench trial began in September 2012, the judge informed defendant:

"Sir, I have in my hand a copy of the charge which the

State seeks to proceed on, and that is on or about September 19th,

2011, in Cook County, it's alleged that you, Christopher Wooden,

committed the offense of unlawful use or possession of a weapon

by a felon in that you knowingly possessed on or about your

person any firearm, to wit a handgun, after having been previously

convicted of vehicular hijacking under Case No. 09 CR 11681-01."

¶4 At trial, Officer Chris Savickas testified that at approximately 12:40 a.m. on September

19, 2011, he responded to a call of a person trespassing in a vehicle and proceeded to 5522 South

LaSalle Street with his partner. Upon arriving, Savickas saw that two other officers were already

"at the van" and one was pulling defendant out of the van. After defendant was placed under

arrest for trespassing in the vehicle, Savickas performed a custodial search of defendant, during

which a .22-caliber handgun fell out of defendant's left pant leg. The weapon was uncased and

loaded. Savickas also recovered a bag containing 39 bullets, a plastic baggie, a mask, and a pair

of gloves during the search. Savickas testified that he held onto the recovered items until he

brought them to the police station, where they were inventoried. At the station, Savickas also

learned that defendant had been previously convicted of the felony offense of vehicular hijacking

under case No. 09 CR 11681.

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¶5 The State then introduced a certified copy of defendant's prior conviction for the offense

of vehicular hijacking in case no. 09 CR 11681.

¶6 Defendant testified on his own behalf that at approximately 12:40 a.m. on September 19,

2011, he was on 59th and LaSalle Streets walking toward the "L" terminal. While he was

walking through an alley, multiple police vehicles "swarmed" him and then the officers who

exited their vehicles "hassled" defendant. Defendant was not in a van at the time and was not in

the possession of gloves, a mask, a gun, or any bullets. The officers then threw defendant on a

car and searched him. The officers told defendant that they retrieved a gun, but they did not say

from where. A gun did not fall out of defendant's pants and he never saw a gun. Defendant was

then taken to the police station.

¶7 The circuit court found defendant guilty of UUW by a felon. The court explained that it

found the officer's testimony credible and defendant's testimony not credible.

¶8 At the sentencing hearing, the State asked for an extended term on the Class 2 felony

based on defendant's background. The State noted that defendant had been on parole from a

conviction for vehicular hijacking in case No. 09 CR 11681, for which he had been sentenced to

four years in prison. The circuit court told defendant that he was extendable, but the court was

not going to extend the sentence. The court sentenced defendant to six years in prison.

¶9 On appeal, defendant first contends that he was improperly sentenced under the Class 2

form of the UUW by a felon offense, because the State failed to give him notice in the charging

instrument that it would enhance his sentenced based on his prior felony conviction, as required

by section 111-3(c) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-3(c)

(West 2010)). Defendant argues that, as a result, his cause must be remanded for resentencing.

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¶ 10 Defendant concedes that he did not properly preserve this issue for review. See People v.

Hillier,

(2010) (to preserve a claim of sentencing error, a defendant must

both contemporaneously object and file a written postsentencing motion raising the issue).

Defendant asks that we review the issue as plain error. The plain error doctrine is a limited and

narrow exception to the general forfeiture rule.

. To obtain relief under the doctrine, a

defendant must first show that a clear and obvious error occurred and then, in the sentencing

context, either that: (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.

Under both

prongs, the defendant has the burden of persuasion and, if he fails to meet this burden, his

procedural default will be honored.

Here, defendant only argues plain error under the second

prong. However, we will first consider whether any error occurred, because "without error, there

can be no plain error." People v. Smith,

(2007).

¶ 11 The question of whether the State was required to provide notice to defendant that he was

being charged with the Class 2 UUW by a felon offense is a question of statutory interpretation,

which we review de novo. People v. Easley,

. The primary goal of

statutory interpretation is to ascertain and give effect to the intent of the legislature. Id. ¶ 16. In

construing a statute, we first look to the language of the statute itself because the language is the

most reliable indication of the legislature's intent, given its plain and ordinary meaning. Id.

¶ 12 Section 111-3(c) of the Code requires:

"When the State seeks an enhanced sentence because of a prior

conviction, the charge shall also state the intention to seek an

enhanced sentence and shall state such prior conviction so as to

give notice to the defendant. However, the fact of such prior

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conviction and the State's intention to seek an enhanced sentence

are not elements of the offense and may not be disclosed to the

jury during such trial unless otherwise permitted by issues properly

raised during trial. For the purposes of this Section, 'enhanced

sentence' means a sentence which is increased by a prior

conviction from one classification of offense to another higher

level classification of offense ***." 725 ILCS 5/111-3(c) (West

2010).

¶ 13 In order to sustain a conviction for UUW by a felon, the State must prove that the

defendant knowingly possessed a firearm and that the defendant had previously been convicted

of a felony. 720 ILCS 5/24-1.1(a) (West 2010). Section 24-1.1(e) of the same statute further

provides:

"Violation of this Section by a person not confined in a penal

institution shall be a Class 3 felony for which the person *** shall

be sentenced to no less than 2 years and no more than 10 years

***. Violation of this section by a person not confined in a penal

institution who has been convicted of a forcible felony *** is a

Class 2 felony for which the person shall be sentenced to not less

than 3 years and not more than 14 years." 720 ILCS 5/24-1.1(e)

(West 2010).

¶ 14 Recently, our supreme court considered the issue of whether section 111-3(c) requires the

State to notify a defendant that it intends to seek a Class 2 sentence under section 24-1.1(e) of the

Criminal Code, in Easley,

. There, the defendant was convicted of UUW by a

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felon pursuant to section 24-1.1(e) based on his possession of a handgun and his previous

conviction for UUW by a felon. Easley,

. The court sentenced defendant

under the Class 2 version of the UUW by a felon offense to nine years in prison. Id. ¶¶ 10-11.

Before the appellate court, defendant argued that he was improperly sentenced as a Class 2

offender because the State failed to notify him that it intended to charge him with an " 'enhanced'

Class 2 offense." Id. ¶ 11. The appellate court agreed, concluding that the defendant's Class 2

sentence violated section 111-3(c); the court then vacated the defendant's sentence, and

remanded with instructions to impose a Class 3 sentence on the defendant. Id.

¶ 15 On appeal, our supreme court first observed that section 111-3(c) was enacted to " 'ensure

that a defendant receive notice, before trial, of the offense with which he is charged.' (Emphasis

in original.)" Id. ¶ 18 (quoting People v. Jameson,

(1994)). The supreme

court then held:

"In construing the language of section 111-3(c), it is clear

that the notice provision applies only when the prior conviction

that would enhance the sentence is not already an element of the

offense. The language of section 111-3(c) states that 'the fact of

such prior conviction and the State's intention to seek an enhanced

sentence are not elements of the offense and may not be disclosed

to the jury during trial unless otherwise permitted by issues

properly raised during such trial.' (Emphasis added.) [Citation.]

This language necessarily implies that section 111-3(c) applies

only when the prior conviction is not an element of the offense."

Easley,

.

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¶ 16 Applying its reasoning to the facts of the case before it, the court noted that section 24-

1.1(e) specifically provides that a second or subsequent violation of the section "shall be a Class

2 felony for which the person shall be sentenced to a term of imprisonment of not less than 3

years and not more than 14 years." 720 ILCS 5/24-1.1(e) (West 2010). The court continued:

"The indictment in this case alleged that defendant was

guilty of unlawful use of a weapon by a felon in that he was

previously convicted of unlawful use of a weapon by a felon. The

section 111-3(c) notice provision clearly does not apply in this case

because the State did not seek to enhance defendant's sentence

with his prior conviction. Rather, as alleged in the indictment,

defendant's Class 2 sentence was the only statutorily allowed

sentence under section 24-1.1(e) ***. Defendant could not have

been given a Class 3 sentence under the applicable sentencing

statute." Easley,

.

¶ 17 Defendant claims that Easley is not applicable in the present case because more than one

class of felony was possible for his offense because "vehicular hijacking is not per se a forcible

felony." In support, defendant notes that vehicular hijacking is not one of the specifically

enumerated offenses in the forcible felony statute and argues that it does not fall under the

residual clause definition of forcible felony. See 720 ILCS 5/2-8 (West 2010) (defining "forcible

felony"); 720 ILCS 5/18-3 (West 2010). Defendant also argues that vehicular hijacking is not a

per se forcible felony because the residual definition of a forcible felony requires the "use or

threat of physical force or violence" (emphases added) (720 ILCS 5/2-8 (West 2010)), while the

force element of vehicular hijacking "merely" requires the "use of force" or threat of the

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"imminent use of force" (720 ILCS 5/18-3(a) (West 2010)). In support, defendant cites only to a

United States Supreme Court case, Johnson v. United States,

(2010), in which the

Supreme Court defined the term "physical force" for the purposes of the federal Armed Career

Criminal Act (see

(e)(2)(B)(i) (2006)). Johnson,

. However,

Johnson is inapposite to the case before us because the Supreme Court's interpretation of a

federal statute does not bind Illinois courts in interpreting a similar state statute. People v.

Gutman,

.

¶ 18 In response to defendant's arguments, the State contends that vehicular hijacking falls

squarely within the definition of "forcible felony" so that defendant could only be sentenced to

the Class 2 version of the UUW by a felon offense, and Easley therefore applies. Neither party

has cited, nor has our research disclosed, a case that has decided the specific question of whether

vehicular hijacking is a forcible felony. We resolve it in the affirmative.

¶ 19 A defendant commits vehicular hijacking when he "knowingly takes a motor vehicle

from the person or the immediate presence of another by the use of force or by threatening the

imminent use of force." 720 ILCS 5/18-3 (West 2010). According to section 2-8 of the Criminal

Code, a forcible felony includes several specifically enumerated offenses and "any other felony

which involves the use or threat of physical force or violence against any individual." 720 ILCS

5/2-8 (West 2010). In People v. Thomas,

(2011), this court recognized that

a forcible felony "involves the threat of physical force or violence if the felon 'contemplated that

violence might be necessary' to carry out the crime. (Emphasis omitted.)" Thomas,

(quoting People v. Belk,

(2003)).

¶ 20 Taking into account the definition of vehicular hijacking, we conclude that the act of

taking a motor vehicle from a person by the use of force or by threatening the imminent use of

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force necessarily involves at least the contemplation that violence might be necessary to carry

out the crime. Moreover, defendant has not suggested, nor can we conceive of, a situation in

which a defendant could commit vehicular hijacking without using or threatening the use of

physical force or violence. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008) (the argument section

of appellant's brief "shall contain the contentions of the appellant and the reasons therefor, with

citation of the authorities *** relied on). We also note that, of the many specifically enumerated

felonies in the forcible felony statute, the following include force, or the threat of force or the

imminent force as elements of the crime: robbery (720 ILCS 5/18-1(a) (West 2010)),

kidnapping (720 ILCS 5/10-1(a)(2) (West 2010)), aggravated kidnapping (720 ILCS 5/10-2(a)

(West 2010)), criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 2010)), and aggravated

criminal sexual assault (720 ILCS 5/12-14(a) (West 2010)). This further supports our finding

that vehicular hijacking falls under the residual clause of the forcible felony statute.

Accordingly, we hold that the offense of vehicular hijacking falls within the definition of forcible

felony.

¶ 21 A recent decision from this court, People v. Polk,

, further

supports our decision. There, the defendant was convicted of UUW by a felon, in part based on

his prior felony conviction for conspiracy to commit murder, and sentenced under the Class 2

version of the offense to 4½ years in prison. Polk,

, ¶¶ 9-11. On

appeal, the defendant contended that the State was required to give him notice that it was

charging him with a Class 2 felony and that his sentence should be reduced to the penalty

imposed on a Class 3 offense. Id. ¶ 13. The original opinion, filed prior to the supreme court's

decision in Easley, held that for the offense of UUW by a felon, "the prior conviction is not an

enhancement; it is an element of the offense. Therefore, it defines the offense and establishes its

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class." Id. ¶ 25. The court noted that the charging instrument listed the prior conviction as

conspiracy to commit murder, and that the information indictment return sheet listed the UUW

by a felon charge as a Class 2 offense. Id. ¶ 28. In addition, the court stated that conspiracy to

commit murder qualified as a forcible felony, and that, accordingly, "the charge of UUW by a

felon could only be a Class 2 felony." Id. ¶ 28.

¶ 22 In a petition for rehearing, the defendant argued that his prior conviction of conspiracy to

commit murder did not constitute a forcible felony. Id. ¶ 42. On June 27, 2014, after Easley was

decided, the court filed a supplemental opinion upon denial of rehearing in which, after noting

that the issue had been waived or forfeited for multiple reasons, it considered whether the

conspiracy to commit murder is a forcible felony. Id. ¶¶ 42, 52. Relying in part on Thomas, the

Polk court explained:

"[In Thomas,] we held that every attempted murder constituted a

forcible felony for purposes of the armed habitual criminal statute,

which also utilizes the definition of forcible felony from section

2-8 ***. [Citation.] The Thomas court also concluded that the

definition of forcible felony in section 2-8 'does not require the

actual infliction of physical injury; instead, the statute requires

only the "use or threat of physical force or violence." ' [Citation.]

This court recognized that our supreme court 'has explained that a

felony involves the threat of physical force or violence if the felon

"contemplated that violence might be necessary" to carry out the

crime.' [Citation.]" Polk,

, ¶ 53.

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¶ 23 Ultimately, the Polk court concluded that conspiracy to commit murder was a forcible

felony because it "necessarily contemplates that violence would be necessary to enable the

conspirators to carry out their common purpose, i.e., murder." Id. ¶ 54. Because we have

similarly concluded that vehicular hijacking involves at least the contemplation that violence

might be necessary to take the motor vehicle from another person by force or threat of force, we

find that vehicular hijacking is a forcible felony.

¶ 24 Moreover, notice pursuant section 111-3(c) is not required for the UUW by a felony

offense based on an unenumerated forcible felony. See 720 ILCS 5/2-8 (West 2010). We are

persuaded by this court's reasoning in Polk:

"We reject any argument that Easley does not apply to the

case at bar because this case involved an unenumerated felony

under section 2-8 ***. [Citation.] We find no support in Easley

for the contention that unenumerated felonies are to be considered

any differently than enumerated felonies for purposes of UUW by

a felon [citation] and section 111-3(c) [citation]. Such an

argument ignores the core holding of Easley that section 111-3(c)

does not apply when the underlying felony is an element of the

offense. Since the prior felony is an element of the offense of

Class 2 UUW by a felon, section 111-3(c) does not apply,

regardless of whether the prior felony was enumerated or

unenumerated under section 2-8." Id. ¶ 56.

¶ 25 Applying this reasoning to the present case, we conclude that defendants' prior felony

offense of vehicular hijacking was an element of the Class 2 version of the UUW by a felon

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offense of which defendant was convicted, and therefore the State was not required to give

defendant notice that he was being charged with the Class 2 version of UUW by a felon,

pursuant to section 111-3(c). Easley,

. Because the State was not

required to give defendant notice under section 111-3(c), no error was committed. Accordingly,

there was no plain error and this issue has been forfeited. Smith,

.

¶ 26 Defendant next contends that he was subject to an improper double enhancement because

the same prior felony conviction was used as both an element of the offense of UUW by a felon

and to enhance the class of his offense.

¶ 27 Defendant again concedes that he did not properly preserve this issue for review (see

Hillier,

) but asks that we review the issue under the plain error doctrine. As

mentioned above, the plain error doctrine is a limited and narrow exception to the general

forfeiture rule.

. To obtain relief under the doctrine, a defendant must first show that a

clear and obvious error occurred.

Under both prongs, the defendant has the burden of

persuasion and, if he fails to meet this burden, his procedural default will be honored.

We

will first consider whether any error occurred, because "without error, there can be no plain

error." Smith,

.

¶ 28 Our supreme court also considered this issue in Easley. Easley,

.

Similar to defendant's argument here, the defendant in Easley argued that he was subject to an

improper double enhancement because the same prior felony conviction was used both as an

element of the offense and to enhance the class of offense and impose a harsher sentence.

The supreme court disagreed, explaining:

"[D]efendant's argument erroneously assumes that he was charged

and convicted of a Class 3 offense and sentenced as a Class 2

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offender. Because we have found that defendant was charged,

convicted, and sentenced as a Class 2 offender, defendant's double

enhancement claim necessarily fails. The prior conviction *** was

used only once, as an element of the offense, and not also to

enhance the offense." Id. ¶ 28.

¶ 29 Here, we similarly concluded that that defendant was charged, convicted, and sentenced

as a Class 2 offender, and accordingly, his double enhancement claim fails. Accordingly,

¶ 30 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 31 Affirmed.

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