People v. Zimmerman ( 2010 )

Docket No. 109259.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
THOMAS L. ZIMMERMAN, Appellee.
Opinion filed November 18, 2010.
JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Garman,
Karmeier, and Theis concurred in the judgment and opinion.
OPINION
Defendant, Thomas L. Zimmerman, was convicted of two counts
of aggravated discharge of a firearm and one count of aggravated
unlawful use of a weapon. The information for aggravated unlawful
use of a weapon charged that defendant previously had been
adjudicated delinquent for an act that would have been a felony if
committed by an adult. See 720 ILCS 5/24–1.6(a)(3)(D) (West 2006).
At trial, over defense objection, the trial court informed the jury that
the parties had stipulated that defendant had been adjudicated
delinquent for an offense that would have been a felony if committed
by an adult.
On appeal, defendant contended that the jury should not have been
informed of the stipulation because the fact of his prior delinquency
adjudication was a sentence enhancement rather than an element of
the offense of aggravated unlawful use of a weapon. The appellate
court reversed and remanded for a new trial. 394 Ill. App. 3d 124. We
granted the State’s petition for leave to appeal (210 Ill. 2d R. 315(a)),
and now reverse the judgment of the appellate court.
BACKGROUND
The charges against defendant arose out of an incident on April
22, 2007, in which defendant shot a firearm in the direction of two
individuals. Defendant was charged by information with, and later
indicted for, two counts of aggravated discharge of a firearm (720
ILCS 5/24–1.2(a)(2) (West 2006)); two counts of reckless discharge
of a firearm (720 ILCS 5/24–1.5(a) (West 2006)), and one count of
aggravated unlawful use of a weapon, a Class 4 felony (720 ILCS
5/24–1.6(a)(2) (West 2006)). The information for count V
(aggravated unlawful use of a weapon) alleged that defendant:
“knowingly carried a firearm being a shotgun in a motor
vehicle at a time when he was not on his own land or in his
abode or fixed place of business and the defendant has been
previously adjudicated a delinquent under the Juvenile Court
Act for an act which if committed by an adult would be a
felony being unlawful possession of a stolen motor vehicle in
Peoria County Case 00 JD 423 in violation of 720 ILCS
5/24–1.6(a)(2).”1
1
The information cites subsection (a)(2) of the aggravated unlawful use
of a weapon statute, which refers to a person carrying a firearm on or about
his or her person on any public street or public lands, for the purpose of
display or lawful commerce, when one of the factors in subsection (a)(3) is
present. See 720 ILCS 5/24–1.6(a)(2) (West 2006). However, the
description of the charged offense indicates defendant was charged with a
violation of subsection (a)(1), for carrying a firearm in a motor vehicle when
one of the factors in subsection (a)(3) is present. See 720 ILCS
5/24–1.6(a)(1) (West 2006). This discrepancy does not affect our analysis
of the issue raised in this appeal. Nor does defendant argue that he was
prejudiced by the formal defect in the information. See People v. Ryan, 117
Ill. 2d 28, 37 (1987).
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At the close of the State’s case, the State moved, outside the
presence of the jury, to admit People’s Exhibit 5–a certified copy of
defendant’s prior delinquency adjudication for unlawful possession of
a stolen motor vehicle. The defense objected to the exhibit being
tendered to the jury. When the assistant State’s Attorney suggested
that the exhibit be read to the jury, defense counsel offered to stipulate
to the delinquency adjudication but objected to the jury being
informed of the stipulation. The trial court overruled the objection and
held that the jury would be informed of the prior delinquency
adjudication without identifying the name or nature of the prior
adjudication. The trial judge then admonished defendant that, by
stipulating to the adjudication, defendant acknowledged that the State
did not have to prove that fact beyond a reasonable doubt. Defendant
agreed to the stipulation. The court admitted People’s Exhibit 5 into
evidence.
When the jury returned, the trial judge told the jury:
“the State has offered and the Court has received State’s
Exhibit No. 5. This is a stipulation. A stipulation is an
agreement between the parties that a certain fact exists. In this
case the stipulation is that the defendant has been previously
adjudicated a delinquent under the Juvenile Court Act for an
act which if committed by an adult would be a felony. That
may be considered by you in connection with the Count 5 and
the charges with reference to Count 5 and only that limited
purpose under Count 5.”
The State submitted two modified pattern jury instructions, which
the trial court gave over defense objections. Instruction number 15
defined the offense of aggravated unlawful use of a weapon predicated
on a prior delinquency adjudication for an offense which, if committed
by an adult, would be a felony. Instruction number 16 listed the prior
delinquency adjudication as the last of three propositions which must
be proven beyond a reasonable doubt by the State in order to convict
the defendant of aggravated unlawful use of a weapon.
The jury found defendant guilty of two counts of aggravated
discharge of a firearm and one count of aggravated unlawful use of a
weapon. Defendant was found not guilty of two counts of reckless
discharge of a firearm. The trial court imposed a sentence of 180 days’
imprisonment in the county jail (with 180 days’ credit for time served)
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and four years’ probation on the aggravated discharge convictions.
The court did not impose a sentence on the aggravated unlawful use
of a weapon conviction.
Defendant filed a motion for a new trial contending that the court
erred by admitting evidence of his prior delinquency adjudication and
by giving jury instructions 15 and 16. The trial court denied the
motion.
The appellate court reversed defendant’s convictions and
remanded for a new trial without the evidence of the delinquency
adjudication being presented to the jury. 394 Ill. App. 3d 124. The
court held that defendant’s prior delinquency adjudication was a
sentence-enhancing factor used to enhance defendant’s sentence for
the same criminal conduct–carrying a firearm in a vehicle–from a Class
A misdemeanor to a Class 4 felony. 394 Ill. App. 3d at 128.
Therefore, the court held, the delinquency adjudication should not
have been presented to the jury but should have been introduced at the
sentencing hearing. The court relied on section 111–3(c) of the Code
of Criminal Procedure of 1963, which provides:
“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 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. 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 set forth in Section [5–4.5–10] of the ‘Unified Code
of Corrections’ ***; it does not include an increase in the
sentence applied within the same level of classification of
offense.” 725 ILCS 5/111–3(c) (West 2006).
The dissenting justice in the appellate court disagreed that
defendant’s prior delinquency adjudication was a sentence-enhancing
factor pursuant to section 111–3(c). 394 Ill. App. 3d at 131 (McDade,
J., dissenting). The dissenting justice would have found that
defendant’s prior delinquency adjudication was an element of the
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charge of aggravated unlawful use of a weapon rather than a factor
used to increase defendant’s sentence from a Class A misdemeanor to
a Class 4 felony. 394 Ill. App. 3d at 132 (McDade, J., dissenting).
ANALYSIS
The issue in this case is whether a defendant’s adjudication as a
delinquent minor for an act that if committed by an adult would be a
felony is an element of the offense of aggravated unlawful use of a
weapon, pursuant to section 24–1.6(3)(D) of the aggravated unlawful
use of a weapon statute (720 ILCS 5/24–1.6 (West 2006)) or whether
it is a sentencing enhancement. This issue presents a question of
statutory interpretation, an issue of law which is subject to de novo
review. County of Du Page v. Illinois Labor Relations Board, 231 Ill.
2d 593, 603 (2008).
Our primary objective in interpreting a statute is to ascertain and
give effect to the intent of the legislature. Solon v. Midwest Medical
Records Ass’n, 236 Ill. 2d 433, 440 (2010). The most reliable
indicator of the legislature’s intent is the language of the statute,
which is to be given its plain and ordinary meaning. Solon, 236 Ill. 2d
at 440. We construe the statute as a whole. In re E.B., 231 Ill. 2d 459,
466 (2008). Therefore, words and phrases should not be considered
in isolation but, rather, must be interpreted in light of other relevant
provisions in the statute. In re E.B., 231 Ill. 2d at 466. In addition to
the statutory language, the court may consider the purpose behind the
law and the evils sought to be remedied, as well as the consequences
that would result from construing the statute one way or another.
People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 280 (2003). Further,
in interpreting a statute, we presume that the legislature did not intend
absurdity, inconvenience, or injustice. Brucker v. Mercola, 227 Ill. 2d
502, 514 (2007).
Section 24–1.6 of the Criminal Code of 1961 codifies the offense
of aggravated unlawful use of a weapon. This section provides, in
part:
“(a) A person commits the offense of aggravated unlawful
use of a weapon when he or she knowingly:
(1) Carries on or about his or her person or in any
vehicle or concealed on or about his or her person except
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when on his or her land or in his or her abode, or fixed
place of business any pistol, revolver, stun gun or taser or
other firearm; or
(2) Carries or possesses on or about his or her person,
upon any public street, alley, or other public lands within
the corporate limits of a city, village or incorporated town,
except when an invitee thereon or therein, for the purpose
of the display of such weapon or the lawful commerce in
weapons, or except when on his or her own land or in his
or her own abode, or fixed place of business any pistol,
revolver, stun gun or taser or other firearm; and
(3) One of the following factors is present:
(A) the firearm possessed was uncased, loaded and
immediately accessible at the time of the offense; or
(B) the firearm possessed was uncased, unloaded
and the ammunition for the weapon was immediately
accessible at the time of the offense; or
(C) the person possessing the firearm has not been
issued a currently valid Firearm Owner’s Identification
Card; or
(D) the person possessing the weapon was
previously adjudicated a delinquent minor under the
Juvenile Court Act of 1987 for an act that if
committed by an adult would be a felony; or
(E) the person possessing the weapon was
engaged in a misdemeanor violation of the Cannabis
Control Act, in a misdemeanor violation of the Illinois
Controlled Substances Act, or in a misdemeanor
violation of the Methamphetamine Control and
Community Protection Act; or
(F) the person possessing the weapon is a member
of a street gang or is engaged in streetgang related
activity, as defined in Section 10 of the Illinois Street-
gang Terrorism Omnibus Prevention Act; or
(G) the person possessing the weapon had an
order of protection issued against him or her within
the previous 2 years; or
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(H) the person possessing the weapon was
engaged in the commission or attempted commission
of a misdemeanor involving the use or threat of
violence against the person or property of another; or
(I) the person possessing the weapon was under 21
years of age and in possession of a handgun as defined
in Section 24–3, unless the person under 21 is engaged
in lawful activities under the Wildlife Code ***.
***
(d) Sentence. Aggravated unlawful use of a weapon is a
Class 4 felony; a second or subsequent offense is 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 7
years. Aggravated unlawful use of a weapon by a person who
has been previously convicted of a felony in this State or
another jurisdiction is 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 7 years. Aggravated unlawful use
of a weapon while wearing or in possession of body armor
*** by a person who has not been issued a valid Firearm
Owner’s Identification Card *** is a Class X felony. The
possession of each firearm in violation of this Section
constitutes a single and separate violation.” (Emphasis added.)
720 ILCS 5/24–1.6 (West 2006).
Subsection (a) sets forth the elements of the offense of aggravated
unlawful use of a weapon. In order to convict a defendant, the State
must prove beyond a reasonable doubt the elements set forth in
subsection (a)(1) or (a)(2), in addition to one of the nine factors in
subsection (a)(3). 720 ILCS 5/24–1.6(a)(1) through (a)(3) (West
2006). Subsection (a)(3)(D) is listed as one of these nine factors. The
factors in subsection (a)(3) transform the crime from “simple”
unlawful use of a weapon to aggravated unlawful use of a weapon.
See 720 ILCS 5/24–1 (West 2006) (defining the offense of unlawful
use of weapons). Absent proof of one of the nine factors, the
defendant has not been proven guilty of the crime as charged. In a
separate subsection entitled “Sentence,” subsection (d) provides that
the offense is a Class 4 felony. It then lists several factors which
increase an individual’s sentence for aggravated unlawful use of a
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weapon from one classification to a higher level classification. See 720
ILCS 5/24–1.6(d) (West 2006).
After examining the statute as a whole, we find that the legislature
clearly intended subsection (a)(3)(D) to be an element of the offense
of aggravated unlawful use of a weapon rather than a factor used to
increase a defendant’s sentence. Proof of a prior adjudication of
delinquency is one of the possible factors the State must prove beyond
a reasonable doubt to satisfy the elements of the offense pursuant to
subsection 24–1.6(a)(3). See 720 ILCS 5/24–1.6(a)(3) (West 2006).
Moreover, it would be illogical for the General Assembly to include
a sentence-enhancing factor in a list with eight other factors which
constitute an element of the offense. See, e.g., People v. Vasquez, 368
Ill. App. 3d 241, 249 (2006) (“uncased, loaded, and immediately
accessible” aggravating factor (720 ILCS 5/24–1.6(a)(3)(A) (West
2006)) is an element of the offense of aggravated unlawful use of a
weapon).
We agree with the dissenting justice in the appellate court that the
State did not charge defendant with the Class A misdemeanor of
“simple” unlawful use of a weapon (720 ILCS 5/24–1 (West 2006))
and seek to enhance the sentence to that of a Class 4 felony. 394 Ill.
App. 3d at 131-32 (McDade, J., dissenting). Instead, defendant was
charged with an entirely different crime–aggravated unlawful use of
a weapon–which was itself a Class 4 felony. 720 ILCS 5/24–1.6(d)
(West 2006); 394 Ill. App. 3d at 132 (McDade, J., dissenting).
Accordingly, section 111–3(c) of the Code of Criminal Procedure is
inapplicable to the case at bar, where the State did not “seek[ ] an
enhanced sentence because of a prior conviction.” 725 ILCS
5/111–3(c) (West 2006). Had the legislature intended to make the
delinquency adjudication a sentencing enhancement for misdemeanor
unlawful use of a weapon, it likely would have placed it in the
sentencing subsection of the statute describing that offense. See 720
ILCS 5/24–1(b) (West 2006) (listing sentence-enhancing factors for
unlawful use of weapons).
Defendant relies on People v. Jameson, 162 Ill. 2d 282 (1994),
and People v. Lucas, 231 Ill. 2d 169, 181 (2008), to support his
interpretation of subsection (a)(3)(D) as a sentence-enhancing factor.
Neither case bolsters defendant’s position. In Jameson, 162 Ill. 2d
282, the issue was whether section 111–3(c) requires the State to
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notify a defendant that he is eligible to receive a mandatory Class X
sentence pursuant to section 5–5–3(c)(8) of the Unified Code of
Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005–5–3(c)(8)).
Jameson, 162 Ill. 2d at 288. We concluded that “[t]he legislature
enacted section 111–3(c) as a catch-all notice provision, thereby
requiring the State to notify a defendant in all cases where it intends
to charge the defendant with a higher classification of offense based
on the defendant’s prior convictions for that same offense.” (Emphasis
in original.) Jameson, 162 Ill. 2d at 290. Contrary to the assertion in
defendant’s brief, Jameson did not hold that section 111–3(c) applies
to “all cases where someone is charged with an upgraded or higher
classification of an offense as a result of a prior conviction.” Rather,
it clarified that under section 111–3(c), the State must give notice in
the charging instrument whenever a defendant will be charged with a
higher classification of offense because of prior convictions. Jameson,
162 Ill. 2d at 289. As we have stated, defendant was charged with
aggravated unlawful use of a weapon. His delinquency adjudication
was not used to upgrade his offense from a misdemeanor to a felony
but was an element of the offense which the State bore the burden of
proving at trial.
In Lucas, we held that the offense of “driving while license
revoked, subsequent offense,” may not serve as a predicate felony
under the armed violence statute. Lucas, 231 Ill. 2d at 178. See 720
ILCS 5/33A–2(a) (West 2004) (“[a] person commits armed violence
when, while armed with a dangerous weapon, he commits any felony
defined by Illinois Law”). The offense of driving while license revoked
is described in section 6–303(a) of the Illinois Vehicle Code and is
listed as a Class A misdemeanor. 625 ILCS 5/6–303(a) (West 2004).
In a separate subsection (d), the statute provides that a second
violation is a Class 4 felony. 625 ILCS 5/6–303(d) (West 2004).
However, pursuant to section 111–3(c), the enhancement of driving
while license revoked from a misdemeanor to a felony was intended
for sentencing purposes only. Therefore, the State could not prove the
predicate felony for armed violence at trial. Lucas, 231 Ill. 2d at 182.
Lucas differs from the present case because, there, the defendant
was charged with, and convicted of, misdemeanor driving while
license revoked. Lucas, 231 Ill. 2d at 180-82. Only after being
convicted of the misdemeanor offense was the prior conviction used
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to increase the classification to a felony at sentencing. Lucas, 231 Ill.
2d at 181. By contrast, in the instant case, defendant was charged with
a felony offense, and his prior delinquency adjudication was an
element of that offense.
Based on the plain language of section 24–1.6 of the Criminal
Code of 1961, we find that the legislature intended subsection
(a)(3)(D) to be an element of the offense of aggravated unlawful use
of a weapon and not a factor used to increase defendant’s sentence
from a misdemeanor to a felony.
CONCLUSION
For the foregoing reasons, we conclude that the trial court
properly admitted the stipulation of defendant’s prior adjudication as
a delinquent for an offense that would have been a felony if committed
by an adult. Accordingly, we reverse the judgment of the appellate
court and affirm defendant’s convictions.
Appellate court judgment reversed;
circuit court judgment affirmed.
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