People v. Brooks , 2012 IL App (4th) 100929 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Brooks, 2012 IL App (4th) 100929
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption NICHOLAS CARLOS BROOKS, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-10-0929
Filed March 7, 2012
Rehearing denied March 21, 2012
Held Defendant’s conviction for violating an order of protection and his five-
(Note: This syllabus year extended-term sentence were upheld over his contentions that the
constitutes no part of extended-term sentence was not proper where he was not convicted of a
the opinion of the court felony and that he was not proved guilty of “violation of an order of
but has been prepared protection–subsequent offense felony” beyond a reasonable doubt, since
by the Reporter of the evidence was sufficient to establish beyond a reasonable doubt that
Decisions for the defendant violated an order of protection, the basis for the enhancement
convenience of the of the offense to a felony was disclosed in the indictment, defendant’s
reader.)
prior conviction for unlawful restraint was introduced to the trial court
outside the jury’s presence, and section 111-3(c) of the Code of Criminal
Procedure specifically prohibits the introduction of proof of a prior
conviction to the jury and provides that such a prior conviction is not an
element of the crime charged.
Decision Under Appeal from the Circuit Court of McLean County, No. 09-CF-617; the
Review Hon. Robert L. Freitag, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Karen Munoz, and Gary R. Peterson, all of State
Appeal Appellate Defender’s Office, of Springfield, for appellant.
William A. Yoder, State’s Attorney, of Bloomington (Patrick Delfino,
Robert J. Biderman, and Aimee Sipes Johnson, all of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE POPE delivered the judgment of the court, with opinion.
Presiding Justice Turner and Justice Steigmann concurred in the
judgment and opinion.
OPINION
¶1 In May 2010, a jury convicted defendant, Nicholas Carlos Brooks, of violating an order
of protection (720 ILCS 5/12-30(a)(1) (West 2008)). In August 2010, the trial court
sentenced defendant to a five-year extended-term sentence. Defendant appeals, arguing (1)
the court improperly sentenced him to an extended-term sentence where he was not
convicted of a felony, and (2) the State failed to prove him guilty of violating an order of
protection beyond a reasonable doubt. We affirm.
¶2 I. BACKGROUND
¶3 In August 2009, the State charged defendant by indictment with “violation of order of
protection–subsequent offense felony” (720 ILCS 5/12-30(a)(1) (West 2008)). The
indictment alleged defendant intentionally violated an order of protection after being served
with notice of its contents. Due to defendant’s conviction for unlawful restraint in McLean
County case No. 04-CF-485, the charge in the present case was a Class 4 felony. See 720
ILCS 5/12-30(d) (West 2008)). Defendant pleaded not guilty and requested a jury trial.
Evidence introduced during defendant’s trial showed the following.
¶4 McLean County deputy sheriff Chad Witkowski testified he spoke with Vanessa
Middlebrooks in July 2009 regarding her contact with defendant. Witkowski knew
Middlebrooks had an active order of protection against defendant. The order of protection
required defendant to remain at least 500 feet away from Middlebrooks’s residence and her
children. Defendant was served with the order of protection on June 1, 2009, and it expired
on May 21, 2011. Witkowski testified Middlebrooks told him defendant came to her
residence on July 12, 2009, while the order of protection was in effect. Witkowski further
testified Middlebrooks moved to dismiss the order of protection in September 2009. The
State then offered the order of protection and Middlebrooks’s petition to dismiss the order
of protection into evidence as People’s exhibit Nos. 2 and 3, respectively. Defense counsel
did not cross-examine Witkowski.
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¶5 Middlebrooks testified defendant was the father of her two children. In May 2009,
Middlebrooks obtained an order of protection against defendant, which was valid until May
2011. In July 2009, Middlebrooks spoke with police and told them defendant had recently
come to her residence to see their children. Though she could not remember if defendant
actually came inside the house, Middlebrooks stated she and defendant spoke to each other.
Middlebrooks further stated she filed a petition to dismiss the order of protection against
defendant in September 2009, and the motion was granted later in the month.
¶6 On cross-examination, Middlebrooks testified she did not mind defendant coming to her
residence and visiting their children. Middlebrooks testified she did not contact the police
regarding defendant’s alleged violation of the order of protection; rather, the police contacted
her and asked her if she had had any recent contact with defendant. In September 2009,
Middlebrooks voluntarily petitioned to dismiss the order of protection.
¶7 Outside the presence of the jury, the trial court took judicial notice of defendant’s
conviction for unlawful restraint in case No. 04-CF-485 without objection. Both parties then
rested.
¶8 The jury found defendant guilty of violating an order of protection. In June 2010,
defendant filed a motion for a new trial. In August 2010, the trial court denied defendant’s
motion for a new trial and sentenced him to a five-year extended-term sentence. Defendant’s
presentence investigation report showed he had multiple felony convictions in the past 10
years. In September 2010, defendant filed a pro se motion for reduction of his sentence.
Defendant’s appointed counsel subsequently filed an amended motion for reduction of
defendant’s sentence, arguing the sentence was excessive and the court failed to consider
relevant mitigating factors. In October 2010, the court denied defendant’s motion to
reconsider his sentence.
¶9 This appeal followed.
¶ 10 II. ANALYSIS
¶ 11 On appeal, defendant argues (1) his extended-term sentence must be vacated because his
conviction for violating an order of protection did not constitute a felony, and (2) the State
failed to prove him guilty of “violation of an order of protection-subsequent offense felony”
because it failed to introduce evidence to prove his crime was a felony.
¶ 12 A. Defendant’s Extended-Term Sentence
¶ 13 Defendant argues his conviction for violating an order of protection did not constitute a
felony conviction for extended-term sentencing purposes pursuant to section 5-5-3.2(b)(1)
of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-5-3.2(b)(1) (West 2008)).
We disagree.
¶ 14 Though defendant failed to raise this issue before the trial court, the improper imposition
of an extended-term sentence results in a void sentence, which can be attacked any time and
is reviewed de novo. See People v. Thompson, 209 Ill. 2d 19, 22-25, 805 N.E.2d 1200, 1202-
03 (2004).
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¶ 15 A person commits the offense of violating an order of protection when he or she commits
an act prohibited by a court-imposed order of protection after receiving notice of the contents
of the order. See 720 ILCS 5/12-30(a)(1) (West 2008). Violating an order of protection is a
Class 4 felony if the defendant has a prior conviction for unlawful restraint. See 720 ILCS
5/12-30(d) (West 2008). Under section 111-3(c) of the Code of Criminal Procedure of 1963
(Criminal Procedure Code) (725 ILCS 5/111-3(c) (West 2008)), the State is required to
inform the defendant in the charging instrument of its intent to seek an enhanced sentence
based on a prior conviction. “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 ***.” 725 ILCS 5/111-3(c) (West
2008). Under section 5-5-3.2(b)(1) of the Unified Code (730 ILCS 5/5-5-3.2(b)(1) (West
2008)), a defendant convicted of a felony is subject to an extended-term sentence if they have
been convicted in Illinois of “any felony” of the same or greater class in the past 10 years.
¶ 16 In addressing the issue of whether an enhanced misdemeanor constitutes a “felony” under
section 5-5-3.2(b)(1) of the Unified Code, our supreme court has stated: “The plain language
of the extended-term sentencing provision explicitly states that it applies to ‘any felony.’ The
statutory provision makes no exception for misdemeanors *** that have been enhanced to
a felony in accordance with the legislature’s direction.” People v. Hicks, 164 Ill. 2d 218, 223,
647 N.E.2d 257, 260 (1995). The court in Hicks, 164 Ill. 2d at 223, 647 N.E.2d at 260, went
on to state “the words ‘any felony’ are broad in scope and apply to the defendant’s enhanced
felony conviction *** in the present cause.” See also People v. Granados, 172 Ill. 2d 358,
364-65, 666 N.E.2d 1191, 1193-94 (1996) (Enhanced misdemeanors are subject to extended-
term sentencing under unambiguous statutory language.).
¶ 17 Under Hicks and Granados, defendant’s enhanced misdemeanor conviction is sufficient
to allow for an extended-term sentence. Defendant contends neither Hicks nor Granados is
controlling here; we disagree. We conclude defendant was convicted of a felony offense as
required in section 5-5-3.2(b)(1) of the Unified Code and properly received an extended-term
sentence.
¶ 18 Here, defendant’s conviction for violating an order of protection constituted a Class 4
felony based on his prior unlawful-restraint conviction. The State properly charged defendant
and disclosed the basis for the enhancement in the indictment. Further, the unlawful-restraint
conviction was properly introduced to the trial court outside the jury’s presence.
¶ 19 Defendant relies on our supreme court’s decision in People v. Palmer, 104 Ill. 2d 340,
472 N.E.2d 795 (1984), as support for his argument his conviction for unlawful restraint was
an element of the offense and had to be presented to the jury. We do not agree with
defendant’s reliance on Palmer because Palmer was decided before the legislature enacted
section 111-3(c) of the Criminal Procedure Code. Pursuant to paragraph (c) of section 111-3
of the Criminal Procedure Code, defendant’s prior conviction for unlawful restraint was not
an element of the offense.
¶ 20 In Palmer, the State charged defendant with unlawful use of weapons (UUW) and alleged
he had committed that offense within five years of his release from the penitentiary for the
felony offense of murder. Ill. Rev. Stat. 1981, ch. 38, ¶ 24-1(a)(10), (b). However, the court
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barred the State from introducing evidence of the defendant’s prior conviction at trial on the
ground such evidence would prejudice the defendant. Palmer, 104 Ill. 2d at 342, 472 N.E.2d
at 796. Ultimately, the matter reached the supreme court, which concluded for the State to
secure a felony conviction for UUW, it needed to prove the defendant’s prior conviction.
Otherwise, the offense remained a misdemeanor. Palmer, 104 Ill. 2d at 343-44, 472 N.E.2d
at 797.
¶ 21 However, subsequent to Palmer and similar decisions, the legislature enacted Public Act
86-964 (Pub. Act 86-964, § 1 (eff. July 1, 1990) (1989 Ill. Laws 6509, 6510)) adding
paragraph (c) to section 111-3 of the Criminal Procedure Code. That section provides, to
obtain an enhanced sentence based upon a prior conviction, the charging instrument must
inform the defendant of the prior conviction and its intent to seek an enhanced sentence
based upon that conviction. As stated earlier, it contains an important proviso rendering the
decision in Palmer no longer applicable here: “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.” 725 ILCS 5/111-
3(c) (West 2008).
¶ 22 The supreme court in People v. Lucas, 231 Ill. 2d 169, 897 N.E.2d 778 (2008), stated:
“Section 111-3(c) applies where the State seeks an enhanced sentence due to a prior
conviction. ‘Enhanced sentence’ means a sentence that is increased by a prior conviction
from one classification of offense to another higher classification of offense. 725 ILCS
5/111-3(c) (West 2004). Section 111-3(c) prohibits the use at trial of the fact of the prior
conviction or the State’s intent to seek an enhanced sentence. They are not elements of
the offense and may not be disclosed to the jury. The existence of the prior conviction
is used after a defendant’s conviction to increase the classification of the crime at
sentencing.” Lucas, 231 Ill. 2d at 181, 897 N.E.2d at 785.
¶ 23 As for defendant’s argument the supreme court’s ruling in Lucas, 231 Ill. 2d at 183, 897
N.E.2d at 786, established “that a misdemeanor offense which is enhanced to a felony for
sentencing purposes is not itself a felony conviction,” we find defendant’s interpretation of
Lucas is erroneous. The due-process violation in Lucas, 231 Ill. 2d at 181-82, 897 N.E.2d
at 785-86, stemmed from the conflict which exists between the armed-violence statute and
section 111-3(c) of the Criminal Procedure Code. In Lucas, 231 Ill. 2d at 183, 897 N.E.2d
at 786, the court found the State could not use an enhanced misdemeanor as the predicate
felony offense for an armed-violence charge without introducing evidence of the prior
conviction which served to enhance the original misdemeanor charge to a felony. In other
words, the State had to prove in Lucas that defendant had committed a felony and, while
committing the felony, he was armed with a dangerous weapon. The State only proved
defendant committed a misdemeanor offense, and thus the armed violence conviction had
to be vacated.
¶ 24 B. Sufficiency of the State’s Evidence
¶ 25 Defendant next argues the State failed to convict him of “violation of an order of
protection–subsequent offense felony” because the crime, as charged, required the State to
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prove this was a subsequent-offense felony to the jury as an element of the crime.
¶ 26 A defendant violates an order of protection when he or she commits an act prohibited by
an order of protection and he or she had notice of the order. 720 ILCS 5/12-30(a)(1) (West
2008). A conviction for violating an order of protection is a Class 4 felony if the defendant
has previously been convicted of, inter alia, unlawful restraint. 720 ILCS 5/12-30(d) (West
2008). Section 111-3(c) of the Criminal Procedure Code (725 ILCS 5/111-3(c) (West 2008))
specifically prohibits the State from introducing proof of a prior conviction to the jury and
states the fact of such a prior conviction is not an element of the crime charged. We conclude
the State was not required to prove the fact of defendant’s prior conviction for unlawful
restraint to the jury.
¶ 27 III. CONCLUSION
¶ 28 For the foregoing reasons, we affirm the trial court’s judgment. As part of our judgment,
we award the State its $50 statutory assessment against defendant as costs of this appeal.
¶ 29 Affirmed.
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