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Kane County Nuggets

May 19, 2015

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Did the judge have the right to impose a 15 year gun add-on? Appellate court says “no” but lets it slide.


See People v. Walker, 2015 IL App (1st) 130500 (05/11/2015).


This case begins with the question of whether or not the trial judge had the right to impose a 15 year gun add-on?


What Happened?


This was an example of what can go wrong when you try to take a brick of heroin from a supplier.


Defendant and his friend had “a sting set up”, also called a “rip”, to take a drug supplier’s stash. A shoot out occurs and the supplier ends up dead.


Defendant was quickly arrested running away from the scene. The murder weapon was recovered outside the house where the shooting took place. Defendant’s prints were on the gun and he had gunpowder residue on him.


Defendant was convicted of felony murder predicated on the robbery. He was sentenced to 27 years plus 15 years for committing the offense while armed with a firearm, for a total of 42 years.


At sentencing the prosecutor was asking for a 20 year gun add-on. However, Defendant objected and noted that the issue of whether defendant fired a gun or even possessed a gun during the robbery was never put before the jury. The judge went witht the 15 year term saying the court was statutorily required to do so.


What is the 15 Year Gun Add-On?


Let’s first quickly review what exactly is the 15 year gun-on.


In Illinois, the legislators created what is commonly referred to as a “15-20-25 to Life” sentencing scheme. It applies in situations where a firearm is involved.


This gun add-on is a term of extra years that is added-on to whatever sentence is imposed by the judge. This extra sentence does not apply to every crime listed in the code but only applies to several delineated charges.


These charges include:



Generally, the length of time that is added depends on how you used the firearm during the crime for which you were convicted. These additional terms are summarized best like this, yet an extra....


  • 15 years - for possessing a firearm

  • 20 years - for firing the firearm

  • 25 years to life - for causing great bodily harm


The Murder 15 Year Gun Add-On


This Defendant was charged with murder. The gun add-on applicable in his case is listed in the Illinois Code of Corrections under section 5-8-1(a)(1)(d)(i). That section says that when it comes to murder:


[quote box] if the person committed the offense while armed with a firearm, 15 years shall be added to the term of imprisonment imposed by the court” 730 ILCS 5/5-8-1(a)(1)(d)(i).


More to the Story


...but, of course, there is more to the story...


Statutes don’t exist in their own little universe. The written laws have to be considered and balanced against other laws and court decisions.


Oh, let's say, for example, something line the notice requirement.


The Notice Requirement


You see, there is another section of the criminal law out there. This one is written in the Illinois Code of Criminal Procedure section 111-3(c-5). That section says that:


[quote box] "[I]f an alleged fact (other than the fact of a prior conviction) is not an element of an offense but is sought to be used to increase the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for the offense, the alleged fact must be included in the charging instrument or otherwise provided to the defendant through a written notification before trial, submitted to a trier of fact as an aggravating factor, and proved beyond a reasonable doubt." 725 ILCS 5/111-3(c-5)

This sections imposes affirmative constraints on the State before a court can actually some sentencing extensions.


Here, the law is saying that before the judge could impose the 15 years certain things had to happen.


Section 111-3(c-5) required that:


  • Any Additional Sentences

  • That Are Not Elements of the Crime

  • State Must Notify Defendant in Writing

  • Submit The Fact to the Jury

  • Proved Beyond a Reasonable Doubt


In this case, none of this happened.


The State gave Defendant no notice of their intent to seek a gun-add on, did not submit the fact that Defendant possessed a gun to the jury, nor was that fact proven beyond a reasonable doubt.




The appellate court, indeed found that the trial judge committed error in imposing the 15 year gun add-on.


However, the court said that reversal was not mandated because this error was harmless. Citing People v. Thurow, 203 Ill.2d 352, 369 (2003)


Say what?


This can’t be what “harmless error” means? Can it?


Indeed, the Illinois Supreme Court has found that “errors involving jury instructions that omit an element of the offense may be subject to harmless-error review.” Thurow, 203 Ill.2d at 362; citing Neder v. United States, 527 U.S. 1, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (1999) and Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).


The failure to instruct the jury on an element is harmless when the evidence in support of the omitted element was uncontested and overwhelming. Thurow, 203 Ill. 2d at 369.


It Comes Down to the Trial Judge


In this case, the decision of what to do with the trial error comes down to the trial judge.


It is not an easy question we have here.


Should we want judges that are going to follow the rules and enforce the rules we know them? Or do we want a trial judge who is going to break the rules knowing darn well that harmless error will save her at the appellate level?


It is not an easy question.


This judge knew there was a constitutional error. The 15 year was a compromise. Could have gone with the 20 year add-on and the appellate court probably would have let that slide as well.


When harmless error is at play, it usually means the facts are overwhelming against the Defendant. And a trial judge may recognize an error yet, feel a strong pull towards “doing the right thing.”