Opinion
No. 1-12-1793
01-27-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CIPRIANO RIVERA, Defendant-Appellant.
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 the
Circuit Court of
Cook County.
No. 11 CR 4200
The Honorable
Nicholas R. Ford,
Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices Hoffman and Cunningham concurred in the judgment.
ORDER
¶ 1 Held: Defendant's two convictions for unlawful use of a weapon by a felon, one for possessing the firearm and on for possessing the ammunition inside that firearm, are affirmed as the amended statute allows for multiple convictions. ¶ 2 Following a bench trial, defendant Cipriano Rivera was convicted of one count of unlawful use of a weapon (UUW) by a felon for possession of a firearm and one count of UUW by a felon for possession of firearm ammunition. He was sentenced to concurrent prison terms of three years for each conviction. On appeal, defendant contends that one of his convictions should be vacated under the one-act, one-crime rule because the ammunition was loaded inside the gun he was convicted of possessing, and the legislature did not intend to permit multiple convictions based on the possession of a single, loaded firearm. We affirm. ¶ 3 Defendant was tried on charges of UUW by a felon for possession of a firearm (Count 3), and UUW by a felon for possession of the ammunition loaded inside that firearm (Count 4). Because defendant does not contest the sufficiency of the evidence to sustain his convictions, a detailed discussion of the facts is unnecessary. The evidence established that on March 3, 2011, police stopped the vehicle defendant was driving near 462 North Ashland Avenue in Chicago and found a gun loaded with seven live rounds in the center console of the car. The State submitted a certified copy of defendant's prior felony conviction for aggravated UUW, as well as a certified document from the Illinois State Police showing that defendant did not possess a valid firearm owner's identification card on the date of the offense. ¶ 4 On appeal, defendant contends that one of his convictions for UUW by a felon should be vacated where the legislature did not intend to permit multiple convictions based on the possession of a single, loaded firearm. He acknowledges that the legislature amended the UUW by a felon statute in 2005, but argues that the amendment indicates that two convictions are proper if a defendant separately possesses a firearm and firearm ammunition. Defendant further asserts that the amendment does not explicitly authorize a second conviction based solely on the fact that the firearm found in his possession was loaded with ammunition. He thus suggests, based on the rule of lenity, that the statute must be construed in his favor because it is ambiguous "as to the allowable unit of prosecution in cases where a defendant is found in possession of a single, loaded firearm." Defendant acknowledges that his argument was previously rejected by this court in People v. Anthony, 2011 IL App (1st) 091528-B, but claims that decision was incorrect and should not be followed. ¶ 5 The State argues that the plain and unambiguous language of the statute authorizes separate convictions for the simultaneous possession of both a firearm and the ammunition inside the firearm. The State also urges this court to follow its decision in Anthony. ¶ 6 Defendant acknowledges in his reply brief that his failure to raise this issue before the trial court has resulted in its forfeiture on appeal. See People v. Enoch, 122 Ill. 2d 176, 186 (1998) (stating requirements to preserve issue for appellate review). However, because an alleged violation of the one-act, one-crime principle has the potential for a surplus conviction and sentence, it affects a defendant's fundamental rights, and therefore, we will review his claim under the second prong of the plain error doctrine. People v. Harvey, 211 Ill. 2d 368, 389 (2004). Whether a conviction should be vacated under the one-act, one-crime principle is a question of law which we review de novo. People v. Peacock, 359 Ill. App. 3d 326, 331 (2005). ¶ 6 Multiple convictions based on precisely the same physical act are improper. People v. Miller, 238 Ill. 2d 161, 165 (2010); People v. King, 66 Ill. 2d 551, 566 (1977). Our supreme court has consistently defined an "act" as "any overt or outward manifestation which will support a direct offense." People v. Rodriguez, 169 Ill. 2d 183, 188 (1996); King, 66 Ill. 2d at 566. To sustain multiple convictions, the charging instrument must indicate that the State intended to treat defendant's conduct as separate, multiple acts. People v. Crespo, 203 Ill. 2d 335, 345 (2001). Defendant can be convicted of two separate offenses where a common act is part of both crimes. Rodriguez, 169 Ill. 2d at 188. Multiple convictions with concurrent sentences are permitted where the defendant has committed multiple acts, "despite the interrelationship of those acts." King, 66 Ill. 2d at 566. ¶ 7 The interpretation of a statute is a question of law which we review de novo. People v. Carter, 213 Ill. 2d 295, 301 (2004). When interpreting a statute, a court must ascertain and give effect to the intent of the legislature. Carter, 213 Ill. 2d at 301. The language of the statute is the most reliable indicator of the legislature's intent. Carter, 213 Ill. 2d at 301. Where the language of the statute is plain and unambiguous, it must be read without limitation, exception, or other condition. Carter, 213 Ill. 2d at 301. ¶ 8 The statute for the offense of UUW by a felon states that it is unlawful for any person who has been convicted of a felony to knowingly possess "any firearm or any firearm ammunition." 720 ILCS 5/24-1.1(a) (West 2010). In 2004, our supreme court interpreted this statute and found, as written at that time, the statute allowed only one conviction for the simultaneous possession of multiple firearms and ammunition. Carter, 213 Ill. 2d at 306. The court found that the word "any" rendered the statute ambiguous as to the "allowable unit of prosecution." Carter, 213 Ill. 2d at 302. Consequently, the court found that it was required to construe the statute in favor of the defendant, and therefore, multiple convictions were not allowed. Carter, 213 Ill. 2d at 302. At the end of its decision, the court stated that it agreed with the State's assertion that a felon who possesses a loaded gun may be more dangerous than a felon who possesses an unloaded gun. Carter, 213 Ill. 2d at 306. The court explained, however, that "it is for the legislature to 'defin[e] what it desires to make the [allowable] unit of prosecution.'" (Internal quotation marks omitted.) Carter, 213 Ill. 2d at 306, quoting People v. Manning, 71 Ill. 2d 132, 137 (1978), quoting Bell v. United States, 349 U.S. 81, 83 (1955). ¶ 9 In 2005, our legislature amended the statute in response to the decision in Carter (Anthony, 2011 IL App (1st) 091528-B, ¶ 17), by adding a sentence to the end of the subsection that addresses sentencing. The statute now additionally states "The possession of each firearm or firearm ammunition in violation of this Section constitutes a single and separate violation." 720 ILCS 5/24-1.1(e) (West 2010). In Anthony, this court found that the plain and unambiguous language of this statute allows for multiple convictions where the defendant is in simultaneous possession of a firearm and firearm ammunition. Anthony, 2011 IL App (1st) 091528-B, ¶ 9. We agree with this interpretation and decline to depart from our prior decision. ¶ 10 Furthermore, we find no merit in defendant's argument that the statute must be construed in his favor because it does not explicitly authorize a second conviction for the ammunition when the firearm is loaded. This court rejected defendant's argument in Anthony, and we continue to do so here. The clear and unambiguous language of the statute contains no exception for circumstances where the ammunition is loaded inside the firearm. Anthony, 2011 IL App (1st) 091528-B, ¶ 16. As in Anthony, we refuse to create such an exception here. ¶ 11 In addition, we reject defendant's argument that the amendment allows for multiple convictions only where the ammunition is separate from the firearm. That interpretation would allow only one conviction for a felon who possesses a loaded firearm, but allow two convictions, thus a greater punishment, for a felon who possesses an unloaded gun and ammunition that has not been inserted into the gun. Anthony, 2011 IL App (1st) 091528-B, ¶ 16. Such a conclusion would create an absurd result, and this court is prohibited from interpreting a statute in a way that would produce an absurd result. Anthony, 2011 IL App (1st) 091528-B, ¶ 16. ¶12 Finally, defendant claims that the legislative history indicates that the amendment to the statute was not intended to allow multiple convictions for a person who possesses a loaded gun. We decline to resort to an analysis of the legislative history of the amendment. We have found that the language of the statute is plain and unambiguous, and therefore, we must apply the statute as written without resorting to additional aids of statutory construction. Anthony, 2011 IL App (1st) 091528-B, ¶ 18, citing People v. Collins, 214 Ill. 2d 206, 214 (2005). ¶13 Accordingly, we conclude that defendant's two convictions for UUW by a felon, one for possessing the firearm and one for possessing the ammunition inside that firearm, are proper. ¶ 14 For the foregoing reasons, we affirm the judgment of the circuit court.
Affirmed.