People v. Velez , 2012 IL App (1st) 110801 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Velez, 2012 IL App (1st) 110801Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption RAYMOND VELEZ, Defendant-Appellee.
District & No. First District, First Division
Docket No. 1-11-0801
Rule 23 Order filed November 13, 2012
Rule 23 Order
withdrawn December 17, 2012
Opinion filed December 21, 2012
Held Where the trial court found probable cause for charges of armed robbery
(Note: This syllabus and aggravated vehicular hijacking following a preliminary hearing, and
constitutes no part of then the State filed a multicount information charging defendant with
the opinion of the court being an armed habitual criminal and unlawful use of a weapon by a
but has been prepared felon, the dismissal of those two counts on the ground that the State failed
by the Reporter of to present evidence to support those counts was reversed, since the
Decisions for the dismissed counts arose from the same conduct as the aggravated
convenience of the vehicular hijacking and armed robbery counts for which probable cause
reader.)
was found at the preliminary hearing, they were not “completely
unrelated” or “fundamentally different” from those counts, and the State
met the requirements of section 111-2(f) of the Code of Criminal
Procedure.
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CR-10660; the
Review Hon. Thomas M. Davy, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Peter
Appeal Fischer, and Whitney Bond, Assistant State’s Attorneys, of counsel), for
the People.
Abishi C. Cunningham, Jr., Public Defender, of Chicago (Sophia
Atcherson, Assistant Public Defender, of counsel), for appellee.
Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
Presiding Justice Hoffman and Justice Delort1 concurred in the judgment
and opinion.
OPINION
¶1 This appeal arises from a January 21, 2011 order entered by the circuit court of Cook
County which granted defendant-appellee, Raymond Velez’s motion to dismiss one count
of being an armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2010)), and two counts of
unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2010)). On appeal, the
State argues that the trial court erred in dismissing the counts for being an armed habitual
criminal and unlawful use of a weapon by a felon. For the following reasons, we reverse the
ruling of the circuit court of Cook County and remand the matter for further proceedings
consistent with this opinion.
¶2 BACKGROUND
¶3 On May 26, 2010, Velez was arrested and charged with armed robbery (720 ILCS 5/18-
2(a) (West 2010)), possession of cannabis (720 ILCS 550/4(b) (West 2010)), and vehicular
hijacking (720 ILCS 5/18-4(a) (West 2010)). On June 4, 2010, a preliminary hearing was
held in the circuit court of Cook County. Richard Johnson, Jr., testified that during the
morning of May 26, 2010, he exited his vehicle and was walking toward his house when
Velez held a gun to his head. With the gun to Johnson’s head, Velez asked Johnson for his
car keys, wallet and cell phone. After Johnson gave Velez the items, Velez ran to Johnson’s
car, got in the car, and drove away. Johnson did not know Velez prior to that date and did not
give Velez permission to take his wallet, keys, or car. On cross-examination, Johnson denied
that he ever bought drugs from Velez, that Velez was a guest in his home for dinner, or that
he saw Velez two times during the week that Johnson’s car was missing. The court found
1
Justice Karnezis participated in the original Rule 23 order filed November 13, 2012, prior
to the expiration of his assignment to the Illinois Appellate Court.
-2-
that probable cause existed for aggravated vehicular hijacking and armed robbery.
¶4 On June 17, 2010, the State filed a multicount information charging Velez with numerous
counts, including being an armed habitual criminal (count IV), unlawful use of a weapon by
a felon (count V), and unlawful use or possession of a weapon by a felon (count VI). On
November 8, 2010, Velez filed a motion to dismiss counts IV, V, and VI, contending that the
State failed to present any evidence of a felony conviction at the preliminary hearing for the
offenses of being an armed habitual criminal and unlawful use of a weapon by a felon. On
December 10, 2010, the State filed a response to Velez’s motion. The State argued that under
section 111-2 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-2 (West
2010)), it is not required to present evidence at the preliminary hearing of each essential
element of every offense that is charged, as long as the offenses arise from the same
transaction or conduct. On January 21, 2011, the trial court dismissed counts IV, V, and VI,
finding “[t]here is no evidence that was presented at the preliminary hearing that would
support the fact that the defendant was convicted of one, two, three or any felonies. *** I
have consistently ruled where only one felony is presented that the State cannot then charge
a second and I will consistently rule to follow that consistency in my ruling here.” On
February 18, 2011, the State filed a motion for reconsideration of the court’s ruling on
Velez’s motion to dismiss. On March 4, 2011, the trial court denied the State’s motion for
reconsideration. On March 21, 2011, the State filed a notice of appeal.
¶5 ANALYSIS
¶6 On March 4, 2011, the trial court denied the State’s motion for reconsideration. On
March 21, 2011, the State filed a timely notice of appeal. Therefore, this court has
jurisdiction to consider the State’s arguments on appeal pursuant to Illinois Supreme Court
Rule 603 (eff. Oct. 1, 2010) and Illinois Supreme Court Rule 606 (eff. Mar. 20, 2009).
¶7 On appeal, the State contends that the trial court erroneously dismissed the armed
habitual criminal charge and unlawful use of a weapon by a felon charges against Velez. The
State argues that the trial court contradicted the plain language of section 111-2 of the Code
when it ruled that the State was required to submit proof of Velez’s prior felony convictions
at the preliminary hearing in order to meet the elements of the charges by information. In
response, Velez cites People v. Thomas, 407 Ill. App. 3d 136, 142, 943 N.E.2d 179, 184
(2011), and People v. Jackson, 269 Ill. App. 3d 851, 855, 646 N.E.2d 1299, 1303 (1995), to
argue that proof of a defendant’s prior felony conviction is a required element of the charges
of being an armed habitual criminal and unlawful use of a weapon by a felon. The State does
not dispute this. However, the parties disagree on how two cases, People v. Redmond, 67 Ill.
2d 242, 367 N.E.2d 703 (1977), and People v. Kosyla, 129 Ill. App. 3d 685, 472 N.E.2d 1207(1984), interpret section 111-2 of the Code, and whether “every element” of each offense
charged must be established by the evidence at the preliminary hearing.
¶8 This appeal presents an issue of statutory construction, which is a question of law and is
reviewed de novo. People v. Donoho, 204 Ill. 2d 159, 172, 788 N.E.2d 707 (2003). The
primary rule of statutory construction is to ascertain and give effect to the intent of the
legislature by interpreting the statute according to the plain and ordinary meaning of the
-3-
statute’s language. Id. at 171-72, 788 N.E.2d at 715. Section 111-2 of the Code provides in
pertinent part:
“(a) All prosecutions of felonies shall be by information or by indictment. No prosecution
may be pursued by information unless a preliminary hearing has been held or waived in
accordance with Section 109-3 and at that hearing probable cause to believe the
defendant committed an offense was found, and the provisions of Section 109-3.1 of this
Code have been complied with.
***
(f) Where the prosecution of a felony is by information or complaint after preliminary
hearing, or after a waiver of preliminary hearing in accordance with paragraph (a) of this
Section, such prosecution may be for all offenses, arising from the same transaction or
conduct of a defendant even though the complaint or complaints filed at the preliminary
hearing charged only one or some of the offenses arising from that transaction or
conduct.” (Emphasis added.) 725 ILCS 5/111-2 (West 2010).
¶9 The leading case on this issue is Redmond, in which the defendant was charged with
aggravated battery. Redmond, 67 Ill. 2d at 243, 367 N.E.2d at 704. The complaining witness
testified that when he attempted to purchase drugs from the defendant, the defendant pulled
a gun from his pocket. Id. at 244, 367 N.E.2d at 704. When the complaining witness reached
to grasp the defendant’s arm, the gun went off and a bullet struck him in the leg. Id. After a
preliminary hearing, the trial court entered a finding of probable cause for aggravated battery.
Id. The State subsequently filed an information charging three counts of aggravated battery
and adding a charge for attempted murder. Id. The defendant moved to dismiss the attempted
murder charge on the ground that a preliminary hearing had not been held on that charge. Id.The trial court granted the motion. Id. at 245, 367 N.E.2d at 704.
¶ 10 The reviewing court reversed, holding that an information setting forth offenses not
charged at the preliminary hearing but arising from the same transaction as that involved at
the preliminary hearing does not violate due process. Id. at 248, 367 N.E.2d at 706. In
Redmond, the court concluded that the State’s charging the defendant with attempted murder
was authorized under section 111-2. Id. at 249, 267 N.E.2d at 706-07. Further, as the court
explained in People v. Robinson, 104 Ill. App. 3d 544, 432 N.E.2d 1195 (1982), “[a]n
accused would be entitled to a second preliminary hearing only if the new charge was
‘completely unrelated’ and ‘fundamentally different’ from the offenses originally charged.
[Cititation.]” Robinson, 104 Ill. App. 3d at 550, 432 N.E.2d at 1199-1200 (following
Redmond and finding that the charge of armed robbery was related to the murder charge set
forth in the preliminary complaint).
¶ 11 Here, the dismissed counts arose from the same conduct as the aggravated vehicular
hijacking and armed robbery counts of the preliminary hearing. The complaining witness,
Richard Johnson, Jr., testified during the preliminary hearing that Velez held a gun to his
head and asked for Johnson’s car keys, wallet, and cell phone, and then drove away in
Johnson’s car. The charges for being an armed habitual criminal and unlawful use of a
weapon by a felon are not “completely unrelated” or “fundamentally different” from armed
robbery and aggravated vehicular hijacking for which probable cause was found. See id.
-4-
These additional charges clearly arose from Velez’s conduct on the date in question. The
weapons charges at issue here arose out of the same facts as the charges considered at the
preliminary hearing because the evidence presented at the preliminary hearing showed that
Velez held a gun to Johnson’s head and demanded Johnson’s property.
¶ 12 Velez cites People v. Kosyla, 129 Ill. App. 3d 685, 472 N.E.2d 1207 (1984), to support
his argument that the proper reading of the statute requires the State to present evidence at
the preliminary hearing of every element of the offenses charged. Velez argues that Kosyla
found that a reasonable construction of the language “all offenses ‘arising from the same
transaction or conduct of a defendant’ ” means that any offenses shown “by the evidence
presented” at the preliminary hearing may be prosecuted even though such offenses were not
initially charged at the time of the preliminary hearing. (Emphasis added.) See Kosyla, 129
Ill. App. 3d at 696, 472 N.E.2d at 1214. We do not agree with Velez’s interpretation of the
Kosyla court’s meaning of “by the evidence.” Our reading of “by the evidence” does not
require a stricter interpretation of Redmond, and does not amount to a requirement that the
State present at the preliminary hearing proof of every element of every offense charged. For
instance, there was no evidence presented in Redmond that the defendant intended to commit
murder, yet the State was nevertheless permitted to charge the defendant with attempted
murder. See Redmond, 67 Ill. 2d at 243-44, 367 N.E.2d at 704. Therefore, we hold that the
State presented sufficient evidence to meet the requirements of section 111-2(f) of the Code,
and the trial court erred in dismissing the counts of being an armed habitual criminal,
unlawful use of a weapon by a felon, and unlawful use or possession of a weapon by a felon.
¶ 13 For the foregoing reasons, the judgment of the circuit court of Cook County is reversed
and the cause is remanded for further proceedings consistent with this opinion.
¶ 14 Reversed and remanded.
-5-