People v. Kendall

2017 IL App (4th) 140790-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS W. KENDALL, Defendant-Appellant.

NO. 4-14-0790

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

March 24, 2017

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from Circuit Court of Macon County

No. 13CF71

Honorable Timothy J. Steadman, Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court.

Presiding Justice Turner and Justice Pope concurred in the judgment.

ORDER

¶ 1 Held: (1) The trial court did not consider defendant's possession of a weapon as an aggravating factor in sentencing defendant.

(2) Defendant's conviction and sentence for unlawful possession of cannabis with intent to deliver was vacated as a lesser-included offense of armed violence.

¶ 2 Following a July 2014 trial, a jury convicted defendant, Dennis W. Kendall, of armed violence, a Class X felony (720 ILCS 5/33A-2(c), 5/33A-3(b-10) (West 2012)); unlawful possession of a weapon by a felon, a Class 2 felony (720 ILCS 5/24-1.1(a), 5/24-1.1(e) (West 2012)); and unlawful possession of cannabis with intent to deliver, a Class 3 felony (720 ILCS 550/5(d) (West 2012)). Thereafter, the trial court sentenced him to 22 years' imprisonment for armed violence, to be served with concurrent prison sentences of 14 years for unlawful possession of a weapon by a felon and 4 years for unlawful possession of cannabis with intent to deliv- er. Defendant appeals, arguing (1) the trial court erred when it considered his possession of a firearm as an aggravating factor because firearm possession is an element of both armed violence and unlawful possession of a weapon by a felon; and (2) his conviction and sentence for unlawful possession of cannabis with intent to deliver should be vacated as a lesser-included offense of armed violence. We affirm in part and vacate in part.

¶ 3 I. BACKGROUND

¶ 4 On January 18, 2014, defendant was charged by information with (1) attempt (first degree murder) of a peace officer (720 ICLS 5/8-4(a), 5/8-4(c)(1)(A), 5/9-1(a)(1) (West 2012)) (count I); (2) armed violence (720 ILCS 5/33A-2, 5/33A-3(b-10) (West 2012)) (count II); (3) unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2012)) (count III); (4) reckless discharge of a firearm (720 ILCS 5/24-1.5(a) (West 2012)) (count IV); (5) unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(d) (West 2012)) (count V); and (6) criminal fortification of a residence or business (720 ILCS 5/19-5(a) (West 2012)) (count VI).

¶ 5 On July 14, 2014, the State dismissed counts IV and VI, and defendant's jury trial commenced on the remaining counts. The evidence showed that the Decatur police obtained a search warrant for defendant's home. On the morning of January 11, 2013, the police went to defendant's home to execute the warrant. When no one answered the door after officers knocked and announced their presence, the police struck the door with a steel ram. Defendant, who was inside the home watching a movie, testified he had not heard any knocks on the door over the loud volume of his television, but he did hear someone "trying to kick in" his door. According to defendant, he thought "somebody was trying to break in to try to kill [him]."

¶ 6 Defendant testified about an earlier incident in order to explain his response to the police at his front door on the morning of January 11, 2013. According to defendant, early one morning in December 2012, he was awakened to a "loud bang." When he investigated the source of the bang, he found three men had forced the front door of his house open. One of the men pointed a gun at defendant's face and told him to sit on the couch. The gunman kept the gun pointed at defendant while the other two men "ransack[ed] the house." The men then tied defendant to a computer chair with an electrical cord and told him "not to get up and not to call the police or they would kill [him]." After the men left, defendant was able to get free and call 9-1-1. Following this event, defendant stated he was "constantly in fear." He reinforced his front door, purchased a firearm that he carried on his person, and exhibited other "paranoid" behaviors. According to defendant's clinical psychologist, who testified at trial, defendant suffered from post-traumatic stress disorder and dysthymia.

¶ 7 Defendant testified that on the morning of January 11, 2013, upon hearing someone "trying to kick in" his door he "panicked," grabbed his gun, and fired a shot at the door to "scare off whoever was out there." Unbeknownst to defendant, the shot he fired struck a police officer. Defendant then called 9-1-1 to report someone was trying to break into his house. At that time, the operator informed defendant that it was the police at his door. Defendant disconnected the call, pried open his door "because the lock was all messed up," and surrendered. The police then searched defendant's home and confiscated a firearm and ammunition, 48.77 grams of cannabis, a digital scale, sandwich bags, a metal grinder, and pipes.

¶ 8 The jury found defendant guilty of armed violence, unlawful possession of a weapon by a felon, and unlawful possession of cannabis with intent to deliver, but not guilty ofattempt (first degree murder) of a peace officer. The jury also found the State failed to prove defendant discharged a firearm that proximately caused great bodily harm to another person.

¶ 9 At the September 4, 2014, sentencing hearing, the State sought prison sentences of 25 years for defendant's armed-violence conviction, a discretionary consecutive sentence of 10 years for unlawful possession of a weapon by a felon, and a concurrent sentence of 10 years for unlawful possession of cannabis with intent to deliver. Defendant sought the mandatory minimum prison sentence of 15 years.

¶ 10 In sentencing defendant, the trial court noted it considered the evidence in aggravation and mitigation, defendant's statement in allocution, the arguments and recommendations of counsel, and the statutory factors in mitigation and aggravation. In mitigation, the court noted claimant's gainful employment throughout his life and the support of his family. In aggravation, the court pointed to defendant's prior history of adjudications and convictions, including a juvenile adjudication for residential burglary, a 1998 felony-burglary conviction, a 2005 felony conviction for driving under the influence (DUI), and "[a] smattering of misdemeanor offenses." Although two of defendant's convictions were probationable, the court opined that due to defendant's prior criminal history, a sentence of probation on either of those counts "would deprecate the serious nature of the offense and be inconsistent with the ends of justice." The court also stated as follows:

"The other aggravating factor that the court believes exists here was touched upon by counsel for the State. It is illegal for a felon to possess a firearm under any circumstance. There's two ways of look at [this]. In this particular case, perhaps the firearm was obtained because of the prior traumatic incident.

That's probably true. But there may be a dual purpose here. I think the firearm was also obtained in order to protect the enterprise that the defendant was engaged in, which the jury found to be possessing cannabis with intent to deliver.

So, there's really two purposes to having a gun. The point is this, it is illegal for a felon to possess a gun under any circumstances. The point is well-taken not only was the gun possessed, it was discharged by a convicted felon.

This makes this very serious in the court's view. The court believes under this circumstance the sentence must reflect the fact that there is a deterrent component to all of this with regard to other felons who might be likewise inclined to possess weapons illegally, let alone discharge them."

Thereafter, the court sentenced defendant to 22 years' imprisonment for armed violence; a concurrent sentence of 14 years' imprisonment for unlawful possession of a weapon by a felon (the maximum sentence for the offense); and a concurrent sentence of 4 years' imprisonment for unlawful possession of cannabis with intent to deliver.

¶ 11 Defendant did not file a motion to reconsider the sentence.

¶ 12 This appeal followed.

¶ 13 II. ANALYSIS

¶ 14 On appeal, defendant argues (1) the trial court erred by considering his possession of a firearm as an aggravating factor when firearm possession is an element of armed violence and unlawful possession of a weapon by a felon; and (2) his conviction and sentence for unlawful possession of cannabis with intent to deliver should be vacated as a lesser-included offense of armed violence.

¶ 15 A. Possession of a Firearm as an Aggravating Factor

¶ 16 As noted, defendant first asserts the trial court erred by considering his possession of a firearm as an aggravating factor because firearm possession is an element of both armed violence and unlawful possession of a weapon by a felon. He acknowledges this issue has not been preserved for review because he did not file a motion to reconsider the sentence. See People v. Blair, 2015 IL App (4th) 130307, ¶ 38, 44 N.E.3d 1073 (the failure to raise a claim in a motion to reconsider the sentence results in its forfeiture). Nonetheless, defendant asserts we may review the issue for plain error.

¶ 17 "The plain-error doctrine permits a reviewing court to by-pass normal rules of forfeiture and consider '[p]lain errors or defects affecting substantial rights *** although they were not brought to the attention of the trial court.' " People v. Eppinger, 2013 IL 114121, ¶ 18, 984 N.E.2d 475 (quoting Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967)). "Plain-error review is appropriate under either of two circumstances: (1) when 'a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened...