Opinion
No. 1-11-2936
12-18-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRENCE DENNIS, 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 803
Honorable
James M. Obbish,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Hyman and Justice Mason concurred in the judgment.
ORDER
¶ 1 Held: The trial court's denial of defendant's motion to quash arrest and suppress evidence was proper under the fourth amendment; the trial court did not apply an improper double enhancement to find defendant eligible for a Class X sentence; the trial court properly ordered three years of mandatory supervised release. ¶ 2 Following a stipulated bench trial, defendant was convicted of violating section 6 of the Sex Offender Registration Act (Act) (730 ILCS 150/6 (West 2010)). He received, because of his background, a Class X sentence of six years in prison under section 5-4.5-95(b) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-4.5-95(b) (West 2010)). The court also imposed a three-year mandatory supervised release (MSR) term. On appeal, defendant asserts that the trial court: (1) erred in denying his motion to quash arrest and suppress evidence when the arresting officer's actions amounted to an unlawful seizure; (2) applied an improper double enhancement to find him eligible for a Class X sentence; and (3) improperly ordered a three-year MSR term, which must be reduced to a two-year term. We affirm. ¶ 3 Defendant was charged by indictment with violating the Act "in that he, having been previously convicted of an aggravated criminal sexual abuse under case number 02CR-21636, changed his address and knowingly failed to report *** within 3 days of such change of address." The State also sought to sentence defendant as a Class 2 offender because he was previously convicted of a violation of the Act under case number 07CR-16558. ¶ 4 At the hearing on defendant's motion to quash arrest and suppress evidence, the parties stipulated that if called, Detective Patricia Dwyer would testify that in early November 2010 she received a report from Officer Craig Williams that he conducted a routine sex offender registration check at 712 North Latrobe and discovered that the building was vacant. After checking her records, Dwyer discovered that defendant had registered at the Latrobe address on June 15, 2010. She learned that defendant had failed to register a new address within 90 days subsequent to that or within 3 days of changing his address as required under the Act. Dwyer personally went to 712 North Latrobe and discovered it was a vacant building. She then issued an investigative alert for defendant. ¶ 5 Defendant testified that in the afternoon of December 14, 2010, he was walking north on North Cambridge Avenue in Chicago around 2 p.m. Police officers drove up and turned into a driveway, cutting off defendant's path. Defendant maintained that he had not done anything illegal. The officers got out of the car and announced their office. The officers asked defendant if he was trespassing, and then asked for his name. Defendant told the officers his name, and the officers "ran it" in their computer. The officers told defendant that he was wanted for failing to register as a sex offender and arrested him. ¶ 6 Officer Bryan Towey testified that he and his partner, Officer Galiardo, were conducting a drug investigation in the vicinity of 900 North Cambridge Avenue, near the Cabrini Green Public Housing Complex around 12:15 p.m. He and his partner observed several people on the block, and defendant was standing about 10 to 15 feet away from them. Towey approached defendant, and he began to walk away. The officers called defendant over, and conducted a "field interview." Towey asked defendant his name and if he lived in the complex. Defendant gave the officers his name and address. The officers conducted a L.E.A.D.S check on him, and learned that defendant had an open investigative alert for failure to register as a sex offender. ¶ 7 At the conclusion of the hearing, defendant argued that he was not doing anything illegal, and the officers had no probable cause to detain him and because defendant's statement was a product of his illegal seizure, the evidence should be suppressed. The State argued against the motion, stating that defendant was not in custody when he gave the officers his name and address. The court denied the motion, finding Officer Towey's testimony to be credible and an accurate statement of the facts of the case. It reasoned that asking defendant for his name and address did not amount to custody, and the officers had probable cause to arrest defendant once the name check was completed. Thus, defendant's fourth amendment rights were not violated. ¶ 8 The court then admonished defendant regarding the rights he was waiving by agreeing to a stipulated bench trial. The parties stipulated that defendant was originally required to register annually as a sex offender because he was convicted of aggravated criminal sexual abuse on March 24, 2003, in case number 02CR-21636. Because defendant received a failure to register conviction on May 1, 2008, in case number 07CR-16558, he was subsequently required to register every 90 days as opposed to every year. The court warned defendant that he would be sentenced within the Class X range due to his Class 2 narcotics conviction in 1998 and the 2003 Class 2 aggravated criminal sexual abuse conviction which originally required him to register annually as a sex offender. ¶ 9 It was stipulated that Detective Dwyer would testify that she interviewed defendant on December 14, 2010, around 3:45 a.m. at the 18th district. Defendant told her he moved to 1430 North Mayfield, and that he tried to register. He also stated that he was in compliance with the Act. Dwyer contacted the Chicago Police Criminal Registration Unit and learned that on August 23, 2010, defendant went to the registration desk attempting to register the address of 1430 North Mayfield in Chicago, and was told that the address was within 500 feet of a prohibited zone, and that he could not register the address. Defendant admitted to receiving notice that the address could not be registered. He also admitted to receiving a copy of a map of the area, which he signed. The State presented defendant's Illinois Sex Offender Registration Act registration form dated June 15, 2010, and the signed map presented to defendant on August 23, 2010. ¶ 10 The parties also stipulated that Craig Williams would testify that on October 28, 2010, he went to 712 North Latrobe Avenue in Chicago and discovered it was a vacant building. ¶ 11 The trial court found defendant guilty of violating the Sex Offender Registration Act and sentenced him to six years in prison. ¶ 12 The first issue on appeal is whether Officer Towey violated defendant's fourth amendment right against unlawful seizure when he approached defendant and asked him his name, and if this information should be suppressed. ¶ 13 We review a trial court's ruling on a motion to suppress evidence pursuant to a two-part test. People v. Colyar, 2013 IL 111835, ¶24. First, the reviewing court affords "great deference to the trial court's factual findings, and will reverse those findings only if they are against the manifest weight of the evidence." Id. We review de novo the ultimate question of whether the arrest should be quashed and the evidence suppressed. Id. ¶ 14 Both the fourth amendment to the United States Constitution (U.S. Const., amend. IV) and article I, section 6, of the Illinois Constitution (Ill. Const. 1970, art. I, § 6) protect individuals from unreasonable searches and seizures. People v. Garcia, 2012 IL App (1st) 102940, ¶4. For purposes of the fourth amendment, an individual is "seized" when an officer " 'by means of physical force or show of authority, has in some way restrained the liberty of a citizen.' " People v. Luedemann, 222 Ill. 2d 530, 550 (2006) quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88(1968). In this context, a seizure occurs only when a reasonable person would not feel free to leave. Id. at 550. The analysis requires an objective assessment of the police conduct and does not depend upon the subjective perception of the defendant. Id. at 551. ¶ 15 In Luedemann, our supreme court described three levels of police-citizen encounters. In doing so, it explained that not every encounter between the police and a citizen results in a seizure. Id. at 544. Thus, the courts have divided police-citizen encounters into three tiers: (1) arrests, which must be supported by probable cause; (2) brief investigative detentions (Terry stops), which must be supported by a reasonable, articulable suspicion of criminal activity; and (3) encounters that involve no coercion or detention and thus do not implicate the fourth amendment (consensual encounters). Id. As to a consensual encounter, the law is clear that a police officer does not violate the fourth amendment by merely approaching a person in a public place and asking him questions if he is willing to listen. Id. at 549. The police have the right to approach citizens and ask potentially incriminating questions. Id. ¶ 16 In this case, the trial court did not err when it denied defendant's motion to quash arrest and suppress evidence. Defendant testified that the police officers cut off his progress by blocking a driveway and the sidewalk with their squad car. The police officers, on the other hand, testified that they merely asked defendant to answer some questions and he agreed to do so. The trial court accepted the State's version of events and we find that this was not against the manifest weight of the evidence. ¶ 17 Under the State's version of events this was a consensual encounter—the police merely approached defendant and asked him his name and address; therefore, defendant's fourth amendment rights were not infringed. Thus, the trial court properly denied defendant motion to quash arrest and suppress evidence as Officer's Towey's action never amounted to a "seizure" within the meaning of the fourth amendment. ¶ 18 The second issue on appeal is whether defendant's prior conviction for criminal sexual abuse was improperly used both as an element of the offense and as a basis for imposing a mandatory Class X sentence, resulting in an improper double enhancement. ¶ 19 Section 5-8-1(c) of the Unified Code (730 ILCS 5/5-8-1(c) (West 2006)) requires a defendant seeking to challenge his sentence or any aspect of his sentencing hearing to file a written motion within 30 days of the imposition of sentence. In People v. Reed, 177 Ill. 2d 389, 394 (1997), our supreme court interpreted the plain language of that statute as a clear indication that a post-sentencing motion was the functional equivalent of a posttrial motion for purposes of preserving issues for appeal. It is now well settled that, to preserve a claim of sentencing error for appellate review, both a contemporaneous objection and a written postsentencing motion raising the issue are required. People v. Hillier, 237 Ill. 2d 539, 544 (2010). Here, our review of the sentencing hearing shows that defendant did not object to the court's consideration of the sentencing factors at the sentencing hearing, nor did he file a written motion to reconsider the sentence imposed. Thus, we agree with the State that defendant forfeited his right to challenge his sentence as an improper double enhancement when he failed to file a posttrial motion to reconsider. ¶ 20 Defendant cites People v. Chaney, 379 Ill. App. 3d 524, 528(2008), and argues against the forfeiture asserting that the sentence is void as an impermissible double enhancement and the voidness issue may be raised at any time, an issue which the court should review de novo. We reject this argument. ¶ 21 An improper double enhancement takes place when either a single factor is used both as an element of an offense and as a basis for imposing a harsher sentence than might otherwise have been imposed, or the same factor is used twice to elevate the severity of the offense itself. People v. Guevara, 216 Ill. 2d 533, 545 (2005). Here, defendant contends that he was subject to the second kind of improper double enhancement. That is, because his conviction for criminal sexual abuse triggered his registration requirement, the conviction became an element of the offense in the instant case. The conviction was then used a second time during sentencing to find defendant eligible for a Class X sentence. We disagree. ¶ 22 Defendant was not subject to an improper double enhancement that renders his sentence void. Defendant was charged with violating section 6 of the Act in that having previously been convicted of aggravated criminal sexual abuse in case number 02CR-21636, he changed his residence and failed to report that change of address. 730 ILCS 150/6 (West 2010). The Act also states that: "[a]ny person who is convicted for a violation of this Act for a second or subsequent time is guilty of a Class 2 felony." 730 ILCS 150/10 (West 2010). Here, defendant was eligible to be sentenced as a Class 2 offender because he was previously convicted of a failure to register violation in May 2008 in case number 07CR-16558, making this his second violation of the Act. Additionally, he was eligible for Class X sentencing pursuant to section 5-4.5-95(b) of the Unified Code which provides that "when a defendant is convicted of a Class 2 felony, after having twice been convicted of *** [a] Class 2 or greater felony, the defendant shall be sentenced as a Class X offender." 730 ILCS 5/5-4.5-95(b) (West 2010). ¶ 23 Although defendant contends that his criminal sexual abuse conviction was an element of the instant offense, we find otherwise. Defendant was convicted of a Class 2 felony based on his prior conviction for violating the Act. Accordingly, it was the act of failing to register for a second time that prompted the Class 2 felony conviction, not the original criminal sexual abuse conviction. The trial court only relied on the criminal sexual abuse conviction as one of the prior Class 2 convictions required to find defendant eligible for the mandatory Class X sentencing. Although defendant's prior conviction coincidentally happened to be a Class 2 felony, it was just one of many acts that could trigger the registration requirement (See 730 ILCS 150/2 (West 2010)). Thus, we find that defendant's prior conviction was not an element of the current offense and there was no improper double enhancement. ¶ 24 Finally, defendant contends that his three-year mandatory supervised release (MSR) must be reduced to a two-year term because he was convicted of a Class 2 felony, but sentenced as a Class X offender. ¶ 25 The MSR statute provides that the "mandatory supervised release term shall be written as part of the sentencing order," with the MSR term for a Class X felony being three years and two years for a Class 2 felony. 730 ILCS 5/5-8-1(d)(1),(2) (West 2010). Defendant argues that because he was convicted of a Class 2 felony, he should receive two years. However, his prior convictions made him eligible to be sentenced as a Class X felon, and thus subject to the three-year MSR. Furthermore, this court has repeatedly held that a defendant sentenced as a mandatory Class X offender receives the Class X MSR term of three years. See People v. Wade, 2013 IL App (1st) 112547, ¶¶ 36-38 (recognizing that defendants subject to Class X sentences are subject to the Class X three-year MSR term); People v. Brisco, 2012 IL App (1st) 101612, ¶¶ 59-62; People v. Lampley, 2011 IL App (1st) 090661-B, ¶¶ 47-49; People v. Allen, 409 Ill. App. 3d 1058, 1078 (2011); People v. Rutledge, 409 Ill. App. 3d 22, 26 (2011); People v. McKinney, 399 Ill. App. 3d 77, 81-83 (2010); People v. Holman, 402 Ill. App. 3d 645, 652-53 (2010); People v. Lee, 397 Ill. App. 3d 1067, 1072-73 (2010); People v. Watkins, 387 Ill. App. 3d 764, 766-67 (2009); and People v. Anderson, 272 Ill. App. 3d 537, 541-42 (2009). We will not depart from these well-reasoned decisions. Therefore, we hold that the court properly imposed a three-year MSR term. ¶ 26 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County. ¶ 27 Affirmed.