People v. Johnson

2020 IL App (1st) 171638

186 N.E.3d 980

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

v.Keith JOHNSON, Defendant-Appellant.

No. 1-17-1638

Appellate Court of Illinois, First District, FOURTH DIVISION.

Filed December 4, 2020

James E. Chadd, Patricia Mysza, and Ross K. Holberg, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Miles J. Keleher, Assistant State's Attorneys, of counsel, and Aggie Baumert, law school graduate), for the People.

JUSTICE HALL delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant Keith Johnson was convicted of robbery and unlawful restraint and was sentenced as a Class X offender to 18 years’ imprisonment in the Department of Corrections. On appeal, defendant contends that his 18-year Class X sentence must be reduced to a 14-year extended term sentence where one of the two predicate offenses that the trial court relied on to enhance his sentence was a charge that did not result in a conviction. Alternately, defendant contends that his trial counsel was ineffective for failing to object to the Class X sentence based on a nonexistent conviction. For the following reasons, we affirm defendant's conviction, vacate his sentence and remand for resentencing.

¶ 2 BACKGROUND

¶ 3 As this appeal only involves sentencing issues, we will only recite as much of the facts as are necessary to resolve the appeal.

¶ 4 Briefly stated, the evidence presented at trial established that on February 12, 2016, defendant robbed a Family Dollar store located at 2740 West Cermak Road in Chicago. Defendant was charged with armed robbery and aggravated unlawful restraint by indictment on March 24, 2016. Prior to trial, the State told the court that defendant's sentence was "extendable" based on his background. The trial court explained to defendant that he was being accused of armed robbery with a firearm and that if he was found guilty, it was a Class X felony with a firearm enhancement. The court further explained that the sentencing range would be 21 to 45 years' imprisonment. Defendant indicated that he understood and signed a jury waiver form.

¶ 5 At defendant's bench trial on May 10, 2017, the State presented the testimony of the Family Dollar store clerk who was robbed; testimony of an employee of a nearby store; testimony of Chicago police detectives; and the owner of the car that was used during the robbery. The testimony indicated that after the robbery, the offender fled the scene in a gray car, and the license plate number was provided to police. When the owner of the car was located, she indicated that she had loaned defendant her car that day. The State also presented a video tape from the store which showed the robbery taking place.

¶ 6 Defendant also testified at trial, stating that he was a convicted felon and on the day of the robbery, he was released on parole for aggravated vehicle hijacking. He further testified that he owned his own car, a 1998 white Chevy Monte Carlo that he bought to get to his job at the Chicago Brewing Company, which was registered to his name and address. He testified that he knew the owner of the gray car, but that they never loaned things to each other. Defendant also stated that he did not enter the Family Dollar store and complete a robbery.

¶ 7 In rebuttal, the State entered a certified copy of defendant's conviction under case number 06-CR-11717 into evidence. The State noted that defendant was convicted of three things: aggravated vehicular hijacking with a weapon, armed robbery with a firearm, and felony possession of a weapon with a prior, and that he was convicted on October 25, 2007.

¶ 8 At the close of evidence and argument by the parties, the trial court stated that there was no question that a robbery took place as it was evidenced on the videotape from the store. Additionally, the court found the store clerk's testimony very credible, noting that she had no motive to pick out anyone other than the robber, and the court found that defendant was the person who robbed the store. However, the trial court found that because the gun was not recovered, it was impossible to say if it was actually a real gun or an inoperable gun, and that it would give defendant the benefit of the doubt as to that portion of the trial. The trial court ultimately found defendant guilty of the lesser included offenses of robbery, a Class 2 offense, and unlawful restraint, a Class 4 offense, noting that the convictions would merge.

¶ 9 Following trial, defendant filed a motion for new trial, in which he contested the reliability of the identification by the store clerk. He also argued that the owner of the car was trying to protect her boyfriend, and that there were other people in the car who were not arrested. Defendant further asserted that this was a "one-finger ID," which was not enough to identify him as the person who committed the crime that day. The trial court denied defendant's motion and the matter proceeded to sentencing.

¶ 10 At the sentencing hearing, the State indicated that it had an addition to defendant's presentence investigation report (PSI), namely a 1999 federal conviction for conspiracy to commit bank robbery where defendant received 67 months imprisonment and five years' probation. The court inquired whether defendant was eligible for an extended term and the State responded that he was Class X by background. The State noted that defendant had convictions in 2007 for aggravated vehicular hijacking, armed robbery and unlawful use of a weapon (UUW) by a felon, for which he received a 17-year prison term, and he was on parole when he committed the current offense. The State additionally noted that defendant had a 1995 conviction for UUW, a Class 4 felony; a 1999 federal conviction for conspiracy to commit bank robbery, for which he was on probation when he committed the aggravated vehicular hijacking. Defendant also had a Class 4 possession of a controlled substance in 1995, and the State was allowed to correct the case number in the PSI.

¶ 11 In aggravation, the trial court allowed the State to present the facts for the 2007 convictions, in which it revealed that, while armed with a gun, defendant and two codefendants approached the victim and his brother, who were standing near the victim's car in Chicago. The victim and his brother were robbed of money before defendant and his codefendants fled in the victim's car. The following morning, defendant used the victim's car to report to his daily reporting for his federal probation. The police recovered the victim's car during defendant's federal probation reporting visit, as well as defendant's gun. Additionally, defendant's codefendants were still in the car, waiting for defendant to complete his probation visit, and they were all subsequently identified by the victim and his brother. After presenting this evidence, the State requested a substantial sentence for defendant, noting again that defendant was "X by background," and that he had a history of reoffending while he was on probation and parole.

¶ 12 In mitigation, defense counsel discussed defendant's relationship with his adult son and good ties with his family and the community. Defense counsel also noted that defendant was a "social [drug] user," did not have an alcohol problem or mental health issues, and that this was a situation of mistaken identity.

¶ 13 In allocution, defendant stated that he was initially charged with an armed robbery but was found guilty of a lesser charge, to which the court responded that based on his record, he still had to be sentenced as a Class X felon. The court explained that instead of a sentencing range of 3 to 7 years for robbery, he would be looking at 6 to 30 years. In response, defendant denied that he robbed the Family Dollar store or committed the vehicular hijacking. The court subsequently asked defendant "[w]hich other one didn't you do?" Defendant responded that he did not do the vehicular hijacking, but admitted that he was convicted by a jury.

¶ 14 The trial court merged the unlawful restraint count into the robbery count and defendant was sentenced to 18 years' imprisonment. Defendant's motion to reconsider sentence was denied and this timely appeal followed.

¶ 15 ANALYSIS

¶ 16 On appeal, defendant contends that his 18-year Class X sentence must be reduced to a 14-year extended term sentence because one of the two predicate offenses that the trial court relied on to enhance his sentence was a charge that did not result in a conviction. Specifically, defendant asserts that his PSI report, which the State relied on as proof of a Class 2 felony conviction in 1995, only indicated that he was charged with possession of controlled substance, given one year of probation, which was terminated satisfactorily. According to defendant, the PSI did not mention that he was not convicted. Defendant acknowledges that the history of the 1995 case is not in the record, but notes that this court may take judicial notice of circuit court docket lists, which was included as an appendix to his brief. He concedes that his background would make him eligible for extended term Class 2 sentencing, and requests that his sentence be reduced to 14 years. Alternately, defendant contends that his trial counsel was ineffective for failing to object to the Class X sentence based on a nonexistent conviction.

¶ 17 Defendant also acknowledges that this issue was not properly preserved for review ( People v. Enoch , 122 Ill. 2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988) ), but asserts that it can be reviewed under the second prong of plain error. The State disagrees that this issue is reviewable under plain error, contending that no error occurred.

¶ 18 Despite the State's argument to the contrary, we have consistently held that misapplication of an extended term sentence may be reviewed under the second prong of the plain...