People v. Holley

2019 IL App (1st) 161326

129 N.E.3d 683

432 Ill.Dec. 465

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Alvis HOLLEY, Defendant-Appellant.

No. 1-16-1326

Appellate Court of Illinois, First District.

May 13, 2019

James E. Chadd, Patricia Mysza, and Tomas G. Gonzalez, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, Christine Cook, and Breanna R.J. Smith, Assistant State’s Attorneys, of counsel), for the People.

PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion.

¶ 1 A jury convicted defendant Alvis Holley of the attempted murders of two police officers, and the circuit court sentenced him to two consecutive 50-year terms of imprisonment. On appeal, Mr. Holley argues that his 100-year term of incarceration was improper because (1) the 25-year sentence enhancement for personal discharge of a firearm that he received on each count cannot apply to the already-enhanced charge of the attempted murder of a peace officer and (2) the circuit court's imposition of consecutive sentences was predicated on an unsupported finding of "severe bodily injury." For the following reasons, we vacate the 25-year enhancements for personally discharging a firearm on each of the sentences imposed and affirm the remainder of Mr. Holley's conviction and sentences.

¶ 2 I. BACKGROUND

¶ 3 Mr. Holley was charged by indictment on December 1, 2011, with, among other counts, the attempted murders of on-duty Chicago police officers Ruben Delvalle and Jeffrey Friedlieb. These charges stemmed from a shooting that took place on the night of July 18, 2011, in an alley behind the 4100 block of West Wilcox Street in Chicago. Before trial, the State filed a motion to seek an enhanced sentence, arguing that the attempted murders of the two officers occurred when Mr. Holley personally discharged a firearm that proximately caused great bodily harm or permanent disfigurement to both officers. A jury found Mr. Holley guilty of attempting to murder both officers, and the circuit court sentenced him to two consecutive terms of 50 years imprisonment: a 25-year term for each attempted murder plus an additional 25-year enhancement on each count for discharging a firearm and causing great bodily harm to both officers. 720 ILCS 5/8-4(c)(1)(A), (D) (West 2010). Mr. Holley does not challenge his guilty verdict, and we review the testimony at trial only as it relates to the sentencing issues he raises on appeal.

¶ 4 The trial took place in September 2015. Officers Delvalle and Friedlieb testified that they were in plain clothes, patrolling the city's west side together in an unmarked police vehicle at around 10:45 p.m. on July 18, 2011. Officer Delvalle was driving with Officer Friedlieb in the passenger seat when they noticed a possible hand-to-hand narcotics transaction between two people in an alley. After turning around and pulling into the alley, only one individual was present, a man the officers later identified in court as Mr. Holley.

¶ 5 Officer Friedlieb asked Mr. Holley a series of questions from the passenger window of the police car. When Mr. Holley did not answer, Officer Friedlieb exited the vehicle, announced his office, and ordered Mr. Holley to put his hands on the hood of the car. Mr. Holley did not comply, and Officer Friedlieb then grabbed Mr. Holley's hands and the back of his shirt to force him to put his hands on the hood. A struggle ensued in which the two men moved down the alley, grappling for control. Officer Delvalle exited the vehicle and ran to assist his partner.

¶ 6 Pulling his right arm free from Officer Friedlieb's grasp, Mr. Holley reached for his waistband, pulled out a black revolver, and fired three shots at Officer Delvalle from about 10 feet away. One shot grazed Officer Delvalle's head and another struck his arm. Officer Delvalle testified that he fell to the ground in front of the car, near the passenger side.

¶ 7 Officer Friedlieb was behind Mr. Holley and holding Mr. Holley's other arm when the shots were fired. Officer Friedlieb reached for his service weapon but, before he could draw it, Mr. Holley turned and aimed his gun at the officer. Officer Friedlieb turned his head away, and Mr. Holley fired one shot into the back of the officer's head behind his left ear. Officer Friedlieb testified that he dropped to one knee and drew his service weapon as Mr. Holley began running westbound down the alley, toward Karlov Avenue. Officer Friedlieb fired one shot at him, striking him in the arm. The officers pursued Mr. Holley to the end of the alley, where he turned right and ran north on Karlov Avenue, out of the officers' view. Officer Delvalle then radioed for assistance and provided a general description of Mr. Holley.

¶ 8 A marked police vehicle arrived shortly thereafter and transported both officers to Stroger Hospital for treatment. Officer Delvalle testified that he received pain medication, was treated for both the graze wound to his head and the wound to his arm, and was released within hours. He also testified that the bullet remains in his arm because it is near an artery and could pose a bleeding danger if physicians attempted to remove it. As a result of the shooting, he gets "tingling in [his] arm, sharp pain sometimes," and has bad nightmares.

¶ 9 Officer Friedlieb testified that at the hospital, he received pain medication and a series of tests. As a result of the shooting, he is on permanent disability from the police force, has "constant headaches, nightmares, [and] PTSD from it," along with "partial hearing [loss] in [his] left ear" and trouble balancing that has caused him to fall a few times.

¶ 10 Mr. Holley was first implicated in the shooting two weeks after it happened, when detectives received a tip from a jailhouse informant. Multiple witnesses testified that they saw Mr. Holley running down Wilcox Street on the night of the shooting with a gun in his hand. After initially denying any part in the shooting, Mr. Holley gave a statement to an assistant State's Attorney in which he admitted to shooting the two men. In both that statement and in his testimony at trial, Mr. Holley said that he did not know that the two men were police officers and that they did not identify themselves as such before one of them grabbed his arm. He thought they were trying to rob him, and he shot at them in an effort to defend himself. He explained that he carried a gun because he had been robbed on multiple occasions before the night of the shooting.

¶ 11 The jury rejected Mr. Holley's self-defense claim and found him guilty of two counts of the attempted murder of a peace officer. The jury also found that he "personally discharged a firearm that proximately caused great bodily harm" to Officers Delvalle and Friedlieb.

¶ 12 Mr. Holley's sentencing hearing took place on April 11, 2016. At the outset, the circuit court addressed the State's earlier motion for an enhanced penalty, ruling that the 25-year enhancement for personally discharging a firearm proximately causing great bodily harm (id. § 8-4(c)(1)(D) ) was applicable to attempted murder of a peace officer (id. § 8-4(c)(1)(A) ). It determined that "the enhancement is appropriate [and] lawful." The court then found that "in this particular case there is severe bodily injury such that consecutive sentencing is required under the law." After considering factors in aggravation and mitigation, the court referenced the officers' injuries, in that "I have a person who is a law enforcement officer who is no longer able to do the job that he loved and another who suffered serious injury. Both of them suffered serious physical injuries as a result of the shooting."

¶ 13 The circuit court sentenced Mr. Holley to two 25-year terms, with a 25-year firearm enhancement added to each term, for a total of 50 years on each sentence. He also made a finding that consecutive sentences were required. This brought Mr. Holley's sentence to a total of 100 years of incarceration. This appeal followed.

¶ 14 Mr. Holley supplemented the record on appeal with his motion to reconsider sentence, dated April 19, 2016. In it, he argued, in part, that his "consecutive sentences imposed by the Court for the Class X offenses are improper" and the circuit court "erred by applying the additional sentencing enhancement for personal discharge of a firearm causing great bodily harm because [the statute] for the offense of attempted murder of a Peace Officer contains an existing * * * enhancement."

¶ 15 II. JURISDICTION

¶ 16 Mr. Holley was sentenced on April 11, 2016, and he filed his notice of appeal on April 20, 2016. We have jurisdiction pursuant to article VI, section 6, of the Illinois Constitution ( Ill. Const. 1970, art. VI, § 6 ) and Illinois Supreme Court Rules 603 and 606 (eff. Feb. 6, 2013), governing appeals from final judgments of conviction in criminal cases.

¶ 17 III. ANALYSIS

¶ 18 A. Sentencing Enhancements

¶ 19 Mr. Holley's first claim on appeal is that the 25-year sentencing enhancements for his having caused great bodily harm were improperly applied to the two counts of attempted murder because the sentencing range mandated in section 8-4(c)(1)(A) of the Criminal Code of 1961 (Criminal Code) already represents an enhanced sentence of 20 to 80 years ( 720 ILCS 5/8-4(c)(1)(A) (West 2010)) and the statute contemplates that only one enhancement will apply.

¶ 20 As a preliminary matter, the State incorrectly claims that Mr. Holley forfeited this issue by failing to file a motion to reconsider his sentence. Both a contemporaneous objection and a written posttrial motion are generally required to preserve an issue for appellate review. People v. Lewis , 234 Ill. 2d 32, 40, 332 Ill.Dec. 334, 912 N.E.2d 1220 (2009). Before trial, the State filed a motion for the court to sentence Mr. Holly by applying both subsections 8-4(c)(1)(A) and 8-4(c)(1)(D) of the Criminal Code ( 720 ILCS 5/8-4(c)(1)(A), (D) (West ...