JUSTICE GORDON delivered the judgment of the court, with opinion.
Appeal from the Circuit Court of Cook County. No. 15 CR 5697 The Honorable Mary Margaret Brosnahan, Judge, presiding. JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice McBride and Justice Burke concurred in the judgment and opinion.
OPINION
¶ 1 After a jury trial, defendant Jasper Lawrence was convicted of unlawful possession of a weapon by a felon and sentenced to seven years with the Illinois Department of Corrections (IDOC). ¶ 2 On this appeal, defendant claims, first, that the trial court erred in denying his motion to suppress the gun seized from him because police officers arrested him without probable cause. Second, he claims that the trial court coerced a guilty verdict by telling the jurors to continue to deliberate after the jurors sent out a note indicating that they were deadlocked. Third, defendant asks this court to vacate his sentence and remand for resentencing because the trial court either relied on an incorrect sentencing range or impermissibly enhanced his sentence by using an element of the offense also as an aggravating factor. ¶ 3 For the following reasons, we do not find these claims persuasive and affirm his conviction and sentence.
¶ 4 BACKGROUND
¶ 5 Before trial, defendant moved to quash his arrest and suppress the gun seized from him, claiming that, while the traffic stop of the vehicle (in which he was a passenger) was a valid stop when the stop began, the stop exceeded its permissible scope and, thus, resulted in his illegal arrest. ¶ 6 At the subsequent suppression hearing held on August 31, 2015, police officer Gregory Klimaszewski testified that he and his partner, Officer Lawrence Willems, personally observed a vehicle commit a traffic violation. Specifically, at 11:30 p.m. on March 25, 2015, they observed a silver Buick that failed to stop at a red light before making a right turn. After Officer Willems activated the police vehicle's lights and siren, the driver of the Buick complied and pulled over. The vehicle held two occupants: (1) the driver and (2) defendant, who was in the front passenger seat. Officer Willhems approached the driver's side on foot, while Officer Klimaszewski approached the passenger side of the vehicle. The area was well lit with streetlights, Observing that the Buick's windows were rolled up, Officer Klimaszewski shined his flashlight into the vehicle and observed that defendant was "moving around" with a handgun sticking out of the front pocket of his hooded sweatshirt. Officer Klimaszewski testified that he was able to observe "[a]lmost the entire gun," including "the grip, the back handle" and "most of the [gun's] barrel." At the hearing, he learned that defendant (1) lacked a firearm owner's identification (FOID) card, (2) lacked a concealed carry permit, and (3) had a prior felony conviction. However, Officer Klimaszewski did not know these facts when he arrested defendant. ¶ 11 After listening again to argument on the suppression motion, the trial court denied the motion, finding that
"it would be unreasonable *** to require that before moving further, [the officers] needed to keep the [d]efendant on the scene until they looked into the fact that he didn't have a Concealed Carry or a FOID, based on the untruth told to the police, the lie that it was not, in fact, a lighter."
Thus, the trial court found that it was reasonable for the officers to "take [defendant] eight blocks away to do a further investigation." ¶ 12 Prior to the start of trial, the trial court informed defendant that he was charged with a Class 2 felony and that the sentencing range for that charge was three to seven years. The trial court further informed defendant that, the State "could ask, if [defendant was] convicted, for an extended term of 7 to 14 years, [and] fines up to $25,000." The trial court then asked defendant: "You understand that's a range that you'd be facing, that's 3 to 14 years if you're convicted? Yes." Although the record does not indicate defendant's response, the trial court immediately stated "[a]ll right," thereby indicating that defendant had indicated he understood. The court then confirmed that defense counsel had communicated the State's plea offer and that defendant chose to reject it. The trial court asked if that was correct, and defendant responded "[y]es, ma'am." The trial court then found "that the Defendant, Mr. Lawrence, understands the penalties that he faces."
¶ 21 After considering multiple factors in mitigation and aggravation, the trial court sentenced defendant to seven years with IDOC. Also on April 13, 2016, defendant filed a motion to reconsider his sentence claiming, among other things, that the trial court "improperly considered in aggravation matters that are implicit in the offense" and that the State failed to prove his "eligibility for enhanced penalty or extended term." The trial court denied the motion to reconsider, and defendant filed a timely notice of appeal, also on April 13, 2016. This timely appeal followed.
¶ 22 ANALYSIS
¶ 23 On this appeal, defendant claims (1) that the trial court erred in denying his motion to suppress the gun, (2) that the trial court coerced a guilty verdict by telling the jurors to continue to deliberate, and (3) that, in the alternative, his sentence must be vacated and his case remanded for resentencing because the trial court improperly used an element of the offense, namely, his prior felony conviction, as an aggravating factor. ¶ 24 For the following reasons, we do not find these claims persuasive and affirm his conviction and sentence.
¶ 25 I. Suppression Motion
¶ 26 First, defendant claims that police officers arrested him without probable cause, and thus, the trial court erred by failing to grant his motion to quash his arrest and suppress the gun seized from him.
¶ 27 A. Standard of Review
¶ 28 A trial court's ruling on a defendant's motion to suppress evidence and quash arrest usually involves questions of both fact and law. People v. Williams, 2016 IL App (1st) 132615, ¶ 32; People v. McCarty, 223 Ill. 2d 109 (2006). ¶ 29 A trial court's factual findings are given great deference and will not be disturbed on review unless they are against the manifest weight of the evidence. People v. Holmes; 2017 IL 120407, ¶ 9; Williams, 2016 IL App (1st) 132615, ¶ 32; People v. Close, 238 Ill. 2d 497, 504 (2010). At a hearing on a motion to suppress evidence and quash arrest, the trial court acts as the fact finder and, as such, is responsible for determining the credibility of the witnesses, drawing reasonable inferences from the testimony and other evidence, and weighing the evidence presented. Williams, 2016 IL App (1st) 132615, ¶ 32; Close, 238 Ill. 2d at 504. ¶ 30 However, the trial court's ultimate ruling on the motion is a question of law that we review de novo. Holmes, 2017 IL 120407, ¶ 9; Williams, 2016 IL App (1st) 132615, ¶ 32; Close, 238 Ill. 2d at 504. Thus, "[a] reviewing court *** [is] free to undertake its own assessment of the facts in relation to the issues and may draw its own conclusions." People v. Ciborowski, 2016 IL App (1st) 143352, ¶ 72; see also People v. Pitman, 211 Ill. 2d 502, 512 (2004).
¶ 31 B. Fourth Amendment
¶ 32 Both the Illinois Constitution and the fourth amendment of the United States Constitution protect citizens from unreasonable searches and seizures by police officers. Holmes, 2017 IL 120407, ¶ 25; U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. "[T]he 'essential purpose' of the fourth amendment is to impose a standard of reasonableness upon criminal behavior, could be patted down for weapons when officers developed a reasonable suspicion that he was armed."). It is hard to imagine a better reason for developing a suspicion that a passenger is armed than actually viewing the passenger with a gun. In re Tyreke H., 2017 IL App (1st) 170406, ¶ 80 (observing just "the outline of a weapon" in the defendant's pants pocket, by itself, was enough of a "specific and articulable fact" to justify "a reasonable suspicion" that defendant was armed). After an officer views a gun, it would be completely unreasonable to require the officer to stand by the vehicle without his hand on his own gun. Johnson, 555 U.S. at 331 (noting "the risk of a violent encounter in a traffic[ ]stop"); Michigan v. Long, 463 U.S. 1032, 1047 (1983) (traffic stops are "especially fraught with danger to police officers"); Mimms, 434 U.S. at 110 (noting "the inordinate risk confronting an officer as he approaches a person seated in an automobile"); Maryland v. Wilson, 519 U.S. 408, 413 (1997) (the stop of a vehicle with multiple occupants "increases the possible sources of harm to the officer"). ¶ 47 For all the foregoing reasons, we do not find persuasive defendant's arguments that the officers lacked probable cause or acted unreasonably, which is the touchstone of a fourth amendment analysis. E.g., Jones, 215 Ill. 2d at 268-69.
On appeal, defendant does not challenge the officer's right to shine the flashlight into the vehicle.
Although defendant raises this issue in his reply brief, forfeiture is a limitation on the parties not the court. People v. Perry, 2014 IL App (1st) 122584, ¶ 20 (although defendant did not raise a particular argument in his opening brief, this court addressed it, observing that forfeiture limits the parties' ability to raise an issue, but not the court's ability to address it).
¶ 48 II. Jury Deliberations
¶ 49 Second, defendant argues that the trial court coerced a guilty verdict when it instructed the jurors to keep deliberating, after they sent out a note with two questions. The first question stated that they were currently at "9 guilty[,] 3 not guilty. What next?" ¶ 50 The trial court discussed the note with the attorneys from both sides and then informed the attorneys that, with respect to this first question, it was going to answer, "Please Ill. App. 3d at 163. It was these additions that defense counsel objected to, both before the trial court and on appeal. It was these additions that caused this court to reverse on the ground that the trial court's response was coercive. However, since nothing like these additions was present in our case, Wilcox does not affect the outcome here. ¶ 64 For the foregoing reasons, we do not find persuasive defendant's claim that the trial court's response to the jury's note requires reversal.
¶ 65 III. Sentencing
¶ 66 Lastly, defendant claims that the trial court abused its discretion when it sentenced him to 7 years, which was at the lower end of the applicable 3 to 14 year sentencing range. On appeal, the parties agree that the appropriate sentencing range was 3 to 14 years and that defendant was sentenced within this range. Defendant was convicted of unlawful possession of a weapon by a felon (UPW), and the UPW statute specifically provides that a "second or subsequent violation" makes a defendant a Class 2 offender, thereby requiring a 3- to 14-year sentencing range. 720 ILCS 5/24-1.1(e) (West 2014). ¶ 67 On appeal, defendant claims that the trial court (1) improperly concluded that defendant was eligible for an extended term sentence, which would have required a minimum of 7 years and a maximum of 14 years, and (2) improperly considered defendant's prior felony conviction in aggravation, thereby resulting in an impermissible double enhancement. ¶ 68 For the following reasons, we do not find these claims persuasive. ¶ 72 At sentencing, the trial court stated that, in the case at bar, "the minimum is three, the maximum is 14." Explaining its choice within that range, the trial court stated:
"I feel that the defense's request for the minimum sentence is not warranted based upon the background that I had detailed and likewise I feel the State's request for something in the significant or maximum range of 14 would not be where I would be either. In my view, the appropriate sentence taking into account all of the factors in aggravation and mitigation is 7 years in the Illinois [D]epartment of [C]orrections."
Thus, the trial court was clear that its decision not to impose the three-year minimum was not the result of some blunder, but the product of a careful decision-making process. As a result, we do not find defendant's first argument persuasive. ¶ 73 Second, defendant claims that his sentence was the result of an impermissible double enhancement because, while fashioning an appropriate sentence within the applicable sentencing range, the trial court considered the same prior felony conviction that the State had used to establish an element of defendant's UPW offense. In
People v.
Saldivar, 113 Ill. 2d 256 (1986), the Illinois Supreme Court held that reconsideration of a factor inherent in the legislature's definition of the offense is impermissible. However, in
People v.
Thomas, 171 Ill. 2d 207 (1996), our supreme court further explained the holding in
Saldivar, stating:
"This court, in
Saldivar, made it clear that although sentencing courts cannot consider an element inherent in the offense as an aggravating factor, that rule would not be rigidly applied, 'thereby restricting the function of a sentencing judge by forcing him to ignore factors relevant to the imposition of sentence.' "
Thomas, 171 Ill. 2d at 226-27 (quoting
Saldivar, 113 Ill. 2d at 268).
A reasoned judgment as to the proper penalty must include consideration of many relevant factors, including the particular circumstances of the offense.
Thomas, 171 Ill. 2d at 227;
Saldivar, 113 Ill. 2d at 268. Thus, "
Saldivar allowed the sentencing court some discretion in 'reconsidering' as an aggravating factor *** that which, arguably, had already been considered by the legislature in establishing the applicable sentencing range for the offense."
Thomas, 171 Ill. 2d at 227. Based on
Saldivar, the
Thomas court found that, "while the
fact of a defendant's prior convictions determines his eligibility" for a particular sentence, "it is the
nature and circumstances of these prior convictions which, along with other factors in aggravation and mitigation, determine the exact length of that sentence." (Emphases in original.)
Thomas, 171 Ill. 2d at 227-28. ¶ 74 Similarly, in the case at bar, the trial court considered, one by one, all the statutory aggravating and mitigating factors, including defendant's prior criminal history. The trial court reviewed defendant's entire criminal history in detail from 2002 through 2015. While discussing this history and the factors in aggravation and mitigation, the trial court included the conviction that the State used to establish an element of the offense. After reviewing the trial court's statements at sentencing, we cannot find that the trial court ran afoul of the guidelines set forth by our supreme court in
Saldivar and
Thomas. Thus, we do not find defendant's double-enhancement argument persuasive.
Fourteen minus three is eleven. Half of eleven is five and a half. Five and a half, plus the three-year minimum, means that the exact midpoint of the sentencing range would have been a sentence of eight and a half years. Since defendant received seven years, his sentence was in the lower half of the sentencing range, or less than the midpoint. --------
¶ 75 CONCLUSION
¶ 76 On appeal, defendant claimed (1) that the trial court erred in denying his motion to suppress the gun, (2) that the trial court coerced a guilty verdict by telling the jurors to continue to deliberate, and (3) that, in the alternative, his sentence must be vacated and his 25 case remanded for resentencing because the trial court improperly used an element of the offense—namely, his prior felony conviction—as an aggravating factor. ¶ 77 For the foregoing reasons, we do not find defendant's claims persuasive and affirm his conviction and sentence. ¶ 78 Affirmed.