No. 1-22-0991

Filed April 25, 2024

Fourth Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 20 CR 9493 ) SHERMAN HAWKINS, ) Honorable ) James B. Linn Defendant-Appellant. ) Judge, presiding.

JUSTICE MARTIN delivered the judgment of the court. Justices Hoffman and Ocasio concurred in the judgment.

ORDER

¶1 Held: Defendant’s conviction for armed habitual criminal affirmed when he stipulated to the requisite predicate convictions.

¶2 Sherman Hawkins was charged by indictment with being an armed habitual criminal

(AHC), two counts of aggravated unlawful use of a weapon (AUUW), and one count of unlawful

use of a weapon by a felon (UUWF). Each count was premised on the allegation that Hawkins

possessed a firearm on August 29, 2020. The AHC count alleged that Hawkins had previously been

convicted of UUWF, committed in 2016, and a 2013 robbery. No. 1-22-0991

¶3 Hawkins filed a motion to dismiss the AHC count before trial. He contended that the 2013

robbery could not serve as one of the two requisite predicate convictions for AHC and therefore

the AHC count failed to state an offense. Hawkins relied on a 2014 amendment (Amendment) to

the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/1-1 et seq. (West 2020)), which

raised the juvenile court’s exclusive jurisdiction from minors under age 17 to those under age 18.

See Public Act 98-61, § 5 (eff. Jan. 1, 2014) (amending 705 ILCS 405/5-120). Hawkins was 17

years old at the time of the 2013 robbery. He reasoned that, as a result of the Amendment, the

robbery charge did not qualify as a predicate conviction because the same robbery charge for a

17-year-old in 2020 would have resulted in a juvenile adjudication of delinquency, rather than an

adult criminal conviction. To support his argument, Hawkins cited, inter alia, People v. Gray,

, where the court employed similar reasoning to conclude that a defendant’s

conviction for delivery of a controlled substance committed at age 17 in 2002 could not serve as a

predicate offense for an AHC offense committed in 2016.

¶4 Initially, the circuit court agreed and granted Hawkins’s motion to dismiss the AHC count.

On reconsideration, however, the court denied Hawkins’s motion, reasoning that the Amendment

did not apply retroactively to offenses committed before the Amendment’s effective date.

¶5 The case proceeded to a jury trial. Chicago Police Officer Sean Driscoll testified that he

was monitoring police observation device (POD) cameras in the 15th Police District in the early

morning hours of August 29, 2020. Around 1:40 a.m., Officer Driscoll noticed a group of 10 to 15

people gathered on the street on the 4900 block of West Hubbard Street. One individual—an

African American male wearing a baseball hat turned to the side, a white tank top, and black

jogging pants—caught Officer Driscoll’s attention. Officer Driscoll observed this individual walk

to a parked car and return toward the group. As he walked, the individual kept his right hand inside

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his waistband and appeared to be holding an object in that hand. Officer Driscoll suspected the

individual was concealing a handgun and relayed his observations to other officers.

¶6 Officer Jonathan Diaz testified that he received a description of the individual that Officer

Driscoll suspected of possessing a handgun and a report of the location where that individual was

observed. Along with other officers, Officer Diaz proceeded by car to the 4900 block of West

Hubbard Street and observed Hawkins, whom he identified in court, standing on the sidewalk.

Officer Diaz believed Hawkins matched the description provided by Officer Driscoll. Upon Officer

Diaz’s arrival, Hawkins began walking away. Within moments, Hawkins was apprehended by

Officer Tyler, who was wearing a body worn camera (BWC). Officer Diaz observed Hawkins

holding a firearm in his hand. As Officer Tyler approached him, Hawkins threw the handgun to the

ground, where Officer Diaz immediately retrieved it. Officer Diaz identified Hawkins and the

handgun in still photos and video from Officer Tyler’s BWC. He also identified the handgun in

court along with the extended magazine, which was in the handgun when it was recovered,

containing 10 bullets.

¶7 The parties stipulated to the handgun’s chain of custody and that it was an operable .45

caliber semi-automatic pistol. They also stipulated that Hawkins “had been previously convicted

of two qualifying felony offenses under the laws of Illinois.”

¶8 After the jury was excused, Hawkins’s attorney informed the court that the stipulation to

qualifying offenses was based on the court’s pretrial ruling denying the motion to dismiss the AHC

count. The court then remarked as follows:

“We had a lengthy pretrial motion and hearing. Defense [counsel] is absolutely objecting

to the admissibility of a conviction that Mr. Hawkins had when he was 17 years old. He

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was tried as an adult for that, albeit under the law as it is today, he would have gone to

Juvenile Court *** They objected to that.

But in light of the fact that we are on trial now and the Defense wanted to avail

itself of a remedy that is available in these situations to stipulate to the priors so the jury

doesn’t know exactly what the priors are, because that may be prejudicial *** That may

sound troubling to the jury *** They are still objecting.

The objection is timely made. Made. Preserved. Stipulation to the prior in no way

indicates that they are acknowledging the Court’s ruling. They are acknowledging the fact

that that conviction is out there, but they are not stipulating to its admissibility. They are

still arguing that it’s inadmissible.”

¶9 Hawkins elected not to testify and presented no evidence. Following closing arguments,

the jury returned guilty verdicts on all three counts. The court later sentenced him to a prison term

of nine years. Hawkins filed a timely notice of appeal.

¶ 10 On appeal, Hawkins argues that the State failed to prove he had two qualifying prior

convictions to sustain a conviction for AHC. He contends, as he did before the trial court, that his

conviction for a robbery committed at age 17 in 2013 did not qualify as a predicate offense due to

the subsequent Amendment. Hawkins does not challenge whether the State proved that he

possessed a firearm.

¶ 11 Under the Criminal Code of 2012 (Code):

“A person commits the offense of being an armed habitual criminal if he or she receives,

sells, possesses, or transfers any firearm after having been convicted a total of 2 or more

times of any combination of the following offenses:

(1) a forcible felony as defined in Section 2-8 of this Code;

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(2) unlawful use of a weapon by a felon ***; or

(3) any violation of the Illinois Controlled Substances Act or the Cannabis Control Act that

is punishable as a Class 3 felony or higher.” 720 ILCS 5/24-1.7(a) (West 2020).

Robbery is among the enumerated offenses defined as a forcible felony. 720 ILCS 5/2-8 (West

2020).

¶ 12 Hawkins relies primarily on the majority decision in People v. Dawson,

, which followed the prior appellate decision in Gray to conclude that a defendant’s AHC

conviction could not stand when the predicate offenses were robberies committed at age 17, before

the Amendment. Hawkins contends that his case presents an identical issue and should be resolved

likewise, reducing his conviction to the lesser included offense of UUWF and remanding for

resentencing. Id. ¶ 67.

¶ 13 However, Dawson does not control the outcome of this case. Our supreme court recently

reversed the appellate decision in Gray, albeit on different grounds, but the supreme court’s

decision nonetheless controls the outcome here. People v. Gray,

. The supreme

court affirmed Gray’s AHC conviction on the grounds that he stipulated that he had “ ‘two prior

qualifying felony convictions for the purposes of sustaining the charge of armed habitual

criminal.’ ” Id. ¶ 27. The court found the stipulation determinative of whether the State had proven

the requisite prior convictions to sustain an AHC conviction. Id. ¶ 26. The stipulation was

dispositive because “[a]fter stipulating to facts, a defendant is precluded from attacking or

otherwise contradicting those stipulated facts.” Id. (citing People v. Polk,

(1960)). In other words, a defendant cannot stipulate that they were previously convicted of a

predicate offense and later argue that the State failed to prove that predicate offense.

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¶ 14 Here, the State asserts that Hawkins’s stipulation has the same effect. We agree. The

supreme court’s decision in Gray requires that we find the State proved Hawkins guilty of AHC.

Hawkins objected to the admissibility of his 2013 robbery conviction, but the name of the offense

or any specific facts or circumstances about it were never admitted into evidence. Rather, only the

fact that Hawkins “had been previously convicted of two qualifying felony offenses under the laws

of Illinois” was admitted. Once that fact was stipulated, the names, nature, and other facts about

the convictions were no longer at issue. By so stipulating, the State satisfied its burden to prove

Hawkins had two predicate convictions for AHC. While the trial court noted Hawkins’s objection

and stated that he had preserved the issue, 1 Gray holds that the stipulation precludes any further

challenge to the fact stipulated.

¶ 15 Although the stipulation is dispositive here, we observe that the rule can be harsh. A

defendant situated as Hawkins faces a Sophie’s choice. 2 The defendant must either (1) stipulate to

qualifying convictions, preventing the jury from hearing evidence about prior crimes, but forfeit

his challenge or (2) maintain that his prior conviction did not qualify, preserving the issue, but

allowing the jury to hear evidence that, as the trial court noted, may be prejudicial. With that

predicament in mind, we explain that we would affirm Hawkins’s conviction even if he had not

stipulated to prior qualifying convictions.

¶ 16 Whether convictions for offenses committed by 17-year-old defendants prior to the

Amendment qualify as predicate convictions for AHC is not a settled issue in Illinois law. See

1 Hawkins preserved the issue regarding whether the trial court erred in denying his pretrial motion to dismiss the AHC count. The claim was included in his motion for new trial, but Hawkins does not raise it on appeal. 2 Sophie’s choice is defined as “an extremely difficult decision a person has to make. It describes a

situation where no outcome is preferable over the other. This can be either because both outcomes are equally desirable or both are equally undesirable.” Dictionary.com, https://www.dictionary.com/e/slang/sophies-choice/ (last visited April 22, 2024). -6 - No. 1-22-0991

People v. Irrelevant,

(finding such a conviction does qualify); People v.

Wallace,

(same); 3 Dawson,

(finding the

opposite). Resolution requires statutory interpretation.

¶ 17 When interpreting statutes, our primary objective is to ascertain and give effect to the

legislature’s intent. People v. Davidson,

. The best indicator of legislative

intent is the plain and ordinary meaning of the statutory language.

When a statute is clear and

unambiguous, we will apply it as written without resort to aids of statutory construction.

“We

will not depart from the plain statutory language by reading into it exceptions, limitations, or

conditions that conflict with the expressed intent of the legislature.” Gaffney v. Board of Trustees

of the Orland Fire Protection District,

. “No rule of construction authorizes

this court to declare that the legislature did not mean what the plain language of the statute imports,

nor may we rewrite a statute to add provisions or limitations the legislature did not include.” People

v. Smith,

, ¶ 28.

¶ 18 In relevant part, the AHC statute requires that the offense occur “after [the defendant]

having been convicted a total of 2 or more times of any” of the offenses enumerated in subdivisions

(a)(1) through (a)(3). 720 ILCS 5/24-1.7(a) (West 2020). “ ‘[H]aving been convicted’ is a perfect

passive participle construction and is used to emphasize that a first action (here, a conviction) has

been completed before the second action begins (being found an armed habitual criminal).”

Wallace,

. The plain, ordinary, and unambiguous meaning of

“having been convicted,” as used in the AHC statute, simply leads to an inquiry of whether the

defendant has at least two prior convictions for offenses included in the listed categories.

3 Wallace was decided after completion of briefing in this case. We granted the State’s motion to cite Wallace as well as Hawkins’s motion to cite People v. Collins,

, which followed Dawson. -7 - No. 1-22-0991

“Grammatically, it is the equivalent of saying, ‘if he/she was convicted.’ ” (Emphasis in original.)

Thus, if a defendant was convicted of a forcible felony, as Hawkins was, before committing the

act giving rise to the AHC charge, that conviction qualifies. The statute expresses no exception,

limitation, or condition such that some forcible felony convictions qualify as predicate offenses

and others do not.

¶ 19 Hawkins argues that the words “of this Code” following “a forcible felony as defined in

Section 2-8” in subdivision (a)(1) signify a present tense, referring to the time of the conduct

underlying the AHC charge. He further contends that “this Code” in 2020 would include the 2014

amendment to the Juvenile Court Act, which would give the Juvenile Court exclusive jurisdiction

over a 17-year-old charged with robbery. In other words, had Hawkins committed the robbery in

2020, he would have received a juvenile adjudication, not an adult criminal conviction.

¶ 20 We cannot adopt Hawkins’s reasoning. The Amendment expressly provided that “[t]he

changes made to this Section by [the 2014 amendment] apply to violations or attempted violations

committed on or after the effective date of this amendatory Act [(January 1, 2014)].” 705 ILCS

405/5-120 (West 2020). Since Hawkins committed robbery in 2013, the Amendment has no effect

on the legal proceedings that followed from it. The “Code” referred to in subsection (a)(1) of the

AHC statute is the Criminal Code of 2012. 720 ILCS 5/1-1 (West 2020). Robbery is a forcible

felony under that Code. 720 ILCS 5/2-8 (West 2020). Thus, the robbery Hawkins committed in

2013 remains an adult criminal conviction, not a juvenile adjudication. Hawkins attempts to avoid

this reality by having us consider a hypothetical and counterfactual robbery, as though it were

committed in 2020 instead of 2013. But Hawkins’s robbery conviction is not hypothetical. He

committed it in 2013, not 2020. And he was 24 in 2020, not a juvenile. Hawkins’s argument

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attempts to apply the Amendment retroactively in spite of the legislature’s clearly expressed intent

that the amendment applies only prospectively.

¶ 21 The present tense aspect of subsection (a)(1) is concerned only with whether the offense of

conviction remains defined as a forcible felony under the Criminal Code of 2012 as amended. To

exclude an otherwise qualifying prior conviction based on the defendant’s age at the time of

commission reads an exception, limitation, and condition into the AHC statute that the legislature

did not express in either the AHC statute or the Amendment. Thus, we agree that “all that matters

is that defendant had a conviction, and that conviction was for an offense described in subsection

(a)(1) at the time defendant committed the underlying conduct which resulted in the armed habitual

criminal charge.” Irrelevant,

, ¶ 36.

¶ 22 A comparison with the general recidivism statute is also instructive. For a defendant to be

found a habitual criminal or to be subject to enhanced class X sentencing based on prior

convictions, the legislature has expressly provided that “the first offense [must have been]

committed when the person was 21 years of age or older.” See 730 ILCS 5/5-4.5-95(a)(4)(E),

(b)(4) (West 2020). Thus, this language clearly distinguishes between convictions based on the

defendant’s age at the time of the offense’s commission. Those committed after the defendant

reached a certain age implicate the sentencing enhancements provided in the statute and

convictions committed before that age do not. Moreover, the statute demonstrates that the

legislature knows how to express whether the defendant’s age at the time of a prior conviction

affects the status of that conviction in future criminal proceedings. No similar language appears in

the AHC statute. When the legislature uses certain language in one place and not in another, we

presume the legislature intended different meanings and results. People v. Goossens,

; People v. Clark,

. Therefore, we conclude that the legislature

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did not intend to make the age at which a defendant committed an offense a qualifying factor for

predicate convictions under the AHC statute.

¶ 23 For these reasons, we find that Hawkins was properly convicted of AHC and affirm the

judgment of the circuit court.

¶ 24 Affirmed.

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