Opinion
Nos. 1-07-2020
July 22, 2009.
Appeal from the Circuit Court of Cook County, Dennis J. Porter, Judge presiding.
Following a bench trial, defendant Joshua Perkins was convicted of unlawful use of a weapon by a felon and sentenced to six years in prison. On appeal, he contends he was not proven guilty beyond a reasonable doubt and was improperly sentenced as a Class X offender because the statutorily mandated sequence of prior convictions was not shown. He also challenges the fines and fees order and the omission of presentence custody credit against the fines imposed. We affirm defendant's conviction and sentence and modify the order imposing fines and fees. At trial, the parties stipulated that defendant had a prior felony conviction for possession of a controlled substance.
The State presented the testimony of police officers Lapitan and McCarthy. On November 12, 2006, at about 10:30 p.m., they were cruising in their marked police car in the area of 210 North Mayfield in Chicago when they observed defendant standing next to an automobile at that location and pointing a gun at the three men inside. Both officers exited their vehicle. Lapitan testified he heard one of the three men in the auto say, "I'm getting robbed, he's got a gun." Defendant dropped his gun and began to run. Lapitan recovered the gun from the street and tried unsuccessfully to apprehend a second individual who had been standing by the car.
McCarthy chased defendant to the elevated train tracks on Lake Street. McCarthy lost sight of defendant for one or two minutes but resumed the chase when he caught sight of defendant's multicolored striped shirt as defendant climbed over a fence. Officers from another squad car apprehended defendant, handcuffed him, and placed him in the back of their squad car. Lapitan arrived at the scene and recognized defendant as the person Lapitan had seen drop the handgun four or five minutes earlier. Lapitan opened the rear door of the squad car and read defendant hisMiranda rights. Lapitan testified that defendant stated, both at the scene and at the police station, that he was just robbing three "white hypes" from the suburbs and that the gun belonged to Little Trap, who lived at Mayfield and Maple. McCarthy testified defendant gave his inculpatory statement only one time. While processing defendant for arrest, Lapitan determined that defendant's address was 210 North Menard. The recovered gun was loaded and uncased.
The State rested, and defendant's motion for a directed finding was denied. Tiffany Davis testified for the defense that defendant had been her boyfriend for seven years and had been living with her at 1654 North Meade for six years. On the date and time in question, defendant and she drove to Mayfield near Lake Street. Davis noticed that a marked police car was following them as they turned onto Mayfield. Defendant, who was driving, pulled over on Mayfield and got out of the car to visit a friend at 132 North Mayfield. Defendant was about to enter his friend's home when police officers left their vehicle and approached. Defendant ran away toward a park and the police officers chased him. She did not see defendant with a gun that evening and did not see him stick anyone up.
The court found defendant guilty of unlawful use of a weapon by a felon. The court found the officers were not "out to get the defendant," and stated, "I believe the credibility lies with the police officers." At the sentencing hearing, the parties agreed that defendant had two prior felony convictions of Class 2 or a greater class that qualified defendant for sentencing as a Class X offender. The court sentenced defendant to the minimum Class X term of six years in prison.
On appeal, defendant first contends he was not proven guilty beyond a reasonable doubt because the testimony of the police officers was unreliable, unbelievable, and contradicted by a credible defense witness.
The standard to be applied in reviewing the sufficiency of the evidence is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Jordan, 218 Ill. 2d 255, 269 (2006). Under this standard, a reviewing court will not substitute its judgment for that of the trier of fact on issues of the weight of evidence or the credibility of witnesses. People v. Castillo, 372 Ill. App. 3d 11, 20 (2007). Where the identification of defendant constitutes the central question in a criminal prosecution, the testimony of even a single witness who had an ample opportunity to observe is sufficient to support a conviction. People v. Piatkowski, 225 Ill. 2d 551, 566 (2007).
Defendant argues that the officers' identifications were unreliable under the five factors for assessing identification testimony listed by the United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 411, 93 S. Ct. 375, 382, (1972). Our review of the record, however, leads us to conclude that the officers' identifications of defendant were reliable when assessed using these factors articulated in Neil: (1) the opportunity for the witness to view the perpetrator at the time of the incident; (2) the witness's degree of attention at the time of the offense; (3) the accuracy of the witness's prior description; (4) the level of certainty of the witness at the subsequent identification; and (5) the length of time between the crime and the identification.
Defendant argues that the first factor weighs particularly in his favor in that the officers were directly behind the gunman and had no opportunity to view his face. No testimony was elicited as to how far the police officers were from the gunman or from what angle they viewed him. Defendant's contention rests on his assumption that the police were directly behind the gunman and could see only the back of the gunman's head at all times, an assumption based on testimony that the vehicle was facing south, the gunman standing on the driver's side was facing west, and the officers were riding in a westerly direction when they came upon the scene. The evidence points to the contrary. The officers were able to see the three occupants of the car, and the statement of one of those men that they were being robbed indicates they could clearly see the police car. Therefore, defendant was not directly in a line between the auto he was facing and the police car. Moreover, Lapitan was asked on cross-examination, "Now the person that is standing at the car has his back to you; is that correct?" Lapitan responded, "No."
Defendant also claims Officer McCarthy's identification of defendant is doubtful because after he lost sight of the man he was chasing, he picked him up again after viewing his distinctive shirt. Defendant asserts that an identification based on generic clothing alone is unreliable. However, as a police officer, McCarthy was a trained observer. See People v. Harrell, 104 Ill. App. 3d 138, 146 (1982). McCarthy testified that defendant's striped shirt was the cause of his being able to recognize defendant again after losing sight of him briefly but never testified that his identification of defendant as the gunman he had seen minutes earlier was based only on defendant's shirt. Under the second Neil factor, the officers had a high degree of attention at the time they saw the apparent armed robbery. The third factor is inapplicable because there was no prior description, as defendant's arrest occurred within minutes of the officers' initial observation of the gunman throwing down the gun and fleeing. Under the fourth factor, both officers demonstrated a good level of certainty in their identification of defendant. Under the fifth factor, the lapse of time between the crime and the identification at the scene of arrest was only a few minutes. An identification witness's credibility and the weight accorded his testimony rests with the trier of fact. People v. Homes, 274 Ill. App. 3d 612, 621 (1995). We conclude defendant has failed to demonstrate the trial court's assessment of the officers' identification testimony as reliable was error.
Defendant also argues that the officers' testimony was incredible because they contradicted each other as to how many inculpatory statements defendant gave. Lapitan testified defendant made an incriminating statement both at the location of his arrest and at the police station. McCarthy initially testified that when Lapitan advised defendant of his rights at the scene of his arrest, defendant gave a statement at that point, but later in his testimony McCarthy stated defendant gave a statement only at the police station. It is not our function to resolve this or any conflict or inconsistency in the testimony where the circuit court was in a superior position to do so. Jordan, 218 Ill. 2d at 269. Further, both officers agreed that defendant: made an inculpatory statement.
Defendant also contends his conviction must be overturned because the testimony of the police officers was contradicted by the consistent and reasonable testimony of Tiffany Davis. Her version of events differed noticeably as to how the chase was initiated and where the chase began and ended. Lapitan testified that when defendant was being processed for his arrest, he gave his address as 210 North Mayfield, which is where the police officers saw defendant in possession of the handgun. Davis testified, however, that defendant lived with her at 1654 North Meade. Davis testified she and defendant went to the Mayfield location because defendant was going to visit a friend, but later in her testimony she said defendant went there to see his parents. There was no testimony indicating the police officers had any motive to misidentify defendant. On the other hand, the court could have rejected the testimony of Tiffany Davis because she had been defendant's partner for seven years.
This same argument concerning the relative credibility of defense and State witnesses was presented to the trial court, and it is not our prerogative to retry the case. Castillo, 372 Ill. App. 3d at 20. The resolution of inconsistencies and conflicts in the evidence, together with reasonable inferences to be drawn from the testimony, were the responsibility of the trial court. People v. Sutherland, 223 Ill. 2d 187, 242 (2006).
Examining the trial evidence in the light most favorable to the State, we conclude that a rational trier of fact could have found the evidence established defendant's identity as the perpetrator beyond a reasonable doubt. Accordingly, we affirm defendant's conviction for unlawful use of a weapon by a felon.
The second issue raised by defendant requires us to consider whether the imposition of first-offender probation under section 410 of the Controlled Substances Act ( 720 ILCS 570/410 (West 2000)) for a drug offense constitutes a "conviction" for the purpose of the Class X offender statute under section 5-5-3 (c) (8) of the Unified Code of Corrections (Code) ( 730 ILCS 5/5-5-3 (c) (8) (West 2006)) . Our analysis of this issue involves a question of statutory construction to which we apply the de novo standard of review. People ex rel. Madigan v. Kinzer, 232 Ill. 2d 179, 184 (2009). We find the drug offense which was the basis for the imposition in May 2001 of section 410 probation is a conviction under the facts of this case.
We will review this issue even though it was not properly-preserved for review because defendant challenges his sentence as void and a void sentence can be corrected at any time. People v. Arna, 168 Ill. 2d 107, 113 (1995). Furthermore, a sentencing error affects a defendant's substantial rights and can be reviewed for plain error. People v. Hicks, 181 Ill. 2d 541, 544-45 (1998) . Here, defendant claims that his sentence as a Class X offender is improper because the State failed to establish that he had the requisite two prior felony convictions.
The Class X offender statute provides that a defendant, who is over the age of 21 and commits a Class 1 or Class 2 felony, is subject to a Class X sentence if the defendant has already acquired two prior convictions of a Class 2 or greater class felony based on separate charges arising out of different series of acts. In addition, the first felony had to have been committed after February 1978, the second felony had to have been committed "after conviction on the first," and the third felony had to have been committed after conviction on the second. 730 ILCS 5/5-5-3(c)(8) (West 2006).
There is no dispute that defendant met the age requirement and his present offense of unlawful possession of a weapon by a felon is a Class 2 felony ( 720 ILCS 5/24-1.1(e) (West 2006)). Furthermore, the parties agree and the record supports that (1) the first prior felony involved controlled substances for which the court imposed first-offender section 410 probation in May 2001 (case No. 00 CR 24471); (2) the second prior offense at issue was an undisputed conviction of a Class 2 felony involving controlled substances in 2002 (case No. 02 CR 12323); and (3) on September 13, 2002, the court revoked defendant's section 410 probation on the first felony and sentenced defendant to boot camp for both the first and second felonies. 720 ILCS 570/410(a), (e) (West 2000). The record also reveals that a petition for violation of probation (VOP) on the first felony, the section 410 probation case, was allowed on September 18, 2001, and another petition for VOP was filed on May 17, 2002.
The dispute is whether the first felony for which the court imposed section 410 probation in 2001 constitutes a "conviction" for the purpose of determining the necessary sequential order of the two prior felony offenses to establish a defendant's status as a Class X offender. Defendant posits that the imposition of section 410 probation on the first offense did not constitute a "conviction" until that probation was revoked when the court sentenced defendant to boot camp at the same time it sentenced defendant to boot camp for the second offense in September 2002. Accordingly, defendant submits that his 2000 felony could not serve as the first felony conviction before the second felony conviction. Defendant's position does not withstand scrutiny.
The Code defines conviction as follows:
"`Conviction' means a judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an offense, rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury." (Emphasis added.) 730 ILCS 5/5-1-5) (West 2000).
The supreme court interpreted this identical wording in People v. Franklin, 135 Ill. 2d 78, 105-107 (1990) (which involved the predecessor to the current provision) as follows:
"A `judgment of conviction' and a `sentence' are separate and distinct, because, according to the principles of statutory construction, material to either side of the disjunctive `or' must be viewed separately. [Citation.] The term `sentence' means the `disposition imposed by the court on a convicted defendant.' (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 1005-1-19.) This definition requires that a person be convicted of an offense before he can be sentenced. It follows, therefore, that a `judgment of conviction' is the circuit court's entry of judgment on a verdict of guilty. [Citations.]" Franklin, 135 Ill. 2d 78 at 106.
Applying this reasoning to the first offender statute, we find that defendant was convicted on May 9, 2001, the date he pled guilty. Section 410(a) provides that a "court, without entering a judgment *** may sentence" a first offender "to probation." 720 ILCS 570/410(a) (West 2000). We construe the term "without entering a judgment" to mean without entering a final disposition. As Franklin dictates, probation could not be imposed without a conviction, i.e., a judgment of guilty. The statute itself states defendant was convicted when section 410 probation was imposed: "A disposition of probation is considered to be a conviction for the purposes of imposing the conditions of probation ***." 720 ILCS 570/410(g) (West 2000). Thus, a defendant receiving section 410 probation is convicted after a finding of guilty until such time as he completes probation satisfactorily and is discharged, and the proceedings are dismissed and the conviction is vacated.
Support for this interpretation is also found in section 410(b), which states that judgment is deferred "until the conclusion of the period or until the filing of a petition alleging violation of a term or condition of probation." (Emphasis added.) 720 ILCS 570/410(b) (West 2000). The fact that proceedings are deferred only until a VOP petition is filed, and not litigated, supports our conclusion that a conviction resulted in this case at the time of the guilty plea and not, as defendant asserts, at the time of final judgment in September 2002 when he was found guilty of violating his probation and sentenced to boot camp.
Additional support for our analysis is found in People v. Goetz, 27 Ill. App. 3d 680 (1975). Goetz had been placed on section 410 probation after pleading guilty to possession of a controlled substance, and he subsequently admitted to violating his probation. Goetz was sentenced to prison without credit for time served on probation and he appealed from the denial of credit. At issue was the Code provision governing resentencing after revocation of probation. Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005-6-4(h) (now codified at 730 ILCS 5/5-6-4(h) (West 2000)). On appeal, the State argued that provision did not apply to revocations under section 410 because there was no conviction prior to revocation of section 410 probation. This court held:
"We do not agree. The Code reference to conviction is not simply to the entry of a record judgment of conviction but is to a determination of guilt. Hence, [the Code] *** states that ` after a determination of guilt, a hearing shall be held to impose the sentence.' (Emphasis added.) It is clear that there must first be a determination of guilt either by a guilty plea or a finding of guilty of possession of a controlled substance under section 402(b) before the first offender provisions of section 410 become operable and before an offender may be placed on probation. Therefore, the Unified Code provisions in regard to resentencing after revocation of probation are clearly applicable to section 410 of the Controlled Substances Act." Goetz, 27 Ill. App. 3d at 682.
We conclude that when defendant pled guilty in May 2001, he sustained a conviction for purposes of the Class X offender provision.
Furthermore, federal decisions interpreting Illinois law have also considered section 410 probation to connote a "conviction." In United States v. Gomez, 24 F.3d 924 (7th Cir. 1994), one of the appellants, Vela, previously had received and successfully completed section 410 probation in Illinois. The federal court of appeals ruled that, even though Vela's Illinois conviction had been discharged, it was still a conviction for purposes of a federal repeat offender statute. The court also noted that even under Illinois law, until discharged Vela had "plainly been `convicted' as state law understands that term-for Illinois treated Vela's plea and sentence as a `conviction' during the duration of his probation." Gomez, 24 F.3d at 930.
In United States v. Lloyd, 184 F.3d 695 (7th Cir. 1999), the court of appeals held that the language of section 410 "reveals a strong indication that a defendant is effectively deemed convicted during the period of his probation, but may upon successful completion of probation (i.e. discharge and dismissal), have the conviction expunged."Lloyd, 184 F.3d at 697. The court also noted that, "[a]lthough Illinois courts have not addressed this question, their jurisprudence suggests that during the probation period, guilty pleas should be treated as convictions." Lloyd, 184 F.3d at 697. One case cited by Lloyd is McIntyre v. Harris, 304 Ill. App. 3d 304 (1999), in which this court repeatedly referred to plaintiff McIntyre's "conviction" as having been dismissed after he successfully completed section 410 probation. McIntyre, 304 Ill. App. 3d at 307, 309.
We conclude, for purposes of the Class X offender provision, that the second felony was committed after "conviction" on the first, where the second felony committed in 2002 came after defendant pled guilty on the first felony in May 2001.
A different conclusion is not warranted by the cases relied upon by defendant: People v. DuMontelle, 71 Ill. 2d 157 (1978), People v. DeSavieu, 120 Ill. App. 3d 420 (1983), and People v. Hughes, 274 Ill. App. 3d 107 (1995).
DuMontelle involved the first-offender probation section of the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 56½, par. 710), not the Controlled Substances Act, although the provisions are virtually identical. The supreme court held that section 5-5-3 did not apply to section 710 probation for the purpose of imposing fines and costs because probationary status under section 710 "does not amount to a conviction, and hence there is nothing upon which the payment of costs can be predicated." DuMontelle, 71 Ill. 2d at 165-66.
When defendant pled guilty in May 2001, DuMontelle was no longer good law, as the Cannabis Control Act, as well as the Controlled Substances Act, had been amended to authorize fines and costs as a condition of probation. 720 ILCS 550/10(d)(2) (West 2000); 720 ILCS 570/410(d)(2) (West 2000). By then, both statutes also authorized the court to require a probationer to "attend or reside in a facility established for the instruction or residence of defendants on probation." 720 ILCS 550/10(d)(5) (West 2000); 720 ILCS 570/410(d)(5) (West 2000). In People v. Lowey, 271 Ill. App. 3d 929, 933-34 (1995), this court held that section 10(d)(5) authorized the imposition of jail time as an incident of first-offender probation. The fact that the Controlled Substances Act contains the same provision, which has been held to authorize imposition of jail time among conditions of section 410 probation, bolsters our conclusion that a section 410 probationer has been "convicted" for purposes of the Class X statute under section 5-5-3(c)(8) of the Code.
In DeSavieu and Hughes, the issue was the use for impeachment purposes of a trial witness's section 410 probation. Those cases are factually distinguishable. In each case there was no evidence the witness's section 410 probation had been revoked and there existed the possibility each witness might successfully complete the probationary period and be discharged without a conviction. We do not deem these cases controlling here.
Third, defendant correctly contends, and the State agrees, that he was improperly charged with a $20 surcharge pursuant to section 10(c) (2) of the Violent Crime Victims Assistance Act ( 725 ILCS 240/10(c)(2) (West 2006)), which provides for imposition of the fine only when no other fine is imposed on the defendant. As other fines were imposed on defendant, we vacate the $20 fine in question.
Finally, defendant observes the mittimus does not reflect his presentence custody credit of $5 per day against the fees and fines imposed. When imposing sentence, the court ordered that defendant be credited with 241 days of presentence custody credit. We agree with defendant that he is entitled to a credit of $5 per day in presentence custody. 725 ILCS 5/110-14 (West 2006); People v. Paige, 378 Ill. App. 3d 95, 104 (2007).
Accordingly, we modify the order imposing fees by striking the $20 fee pursuant to the Violent Crime Victim Assistance Act and we direct the mittimus to reflect that defendant be given a $5-per-day credit up to the total amount of his remaining fines. We affirm the judgment in all other respects.
Affirmed as modified.
MURPHY, P.J., and COLEMAN, J., concur.