                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                             People v. Mimes, 2011 IL App (1st) 082747




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      MARTELL MIMES, Defendant-Appellant.



District & No.               First District, First Division
                             Docket No. 1–08–2747


Filed                        June 20, 2011


Held                         On appeal from defendant’s convictions for various offenses arising
(Note: This syllabus         from an incident that started with the robbery of a drug dealer by
constitutes no part of the   defendant and three others, the appellate court held that the trial judge
opinion of the court but     did not improperly assume the prosecutor’s role by considering other-
has been prepared by the     crimes evidence for the purpose of identification, that defendant had
Reporter of Decisions for    proper notice of the facts that increased the penalty range of his
the convenience of the       attempted murder conviction, that the 45-year sentence imposed for that
reader.)                     offense was not an abuse of discretion, that his convictions for
                             attempted murder and one count of aggravated unlawful use of a
                             weapon did not violate the one-act, one-crime rule, but that his
                             convictions for aggravated battery with a firearm and a second count of
                             aggravated unlawful use of a weapon did violate the rule, that the right
                             to bear arms was not violated by the provisions of the aggravated
                             unlawful use of a weapon statute prohibiting a person from carrying an
                             uncased, loaded and accessible handgun on a public city street, and that
                             the $50 court system fee was properly imposed, but that certain other
                             fees or fines were vacated or offset by defendant’s presentence
                             incarceration.
Decision Under              Appeal from the Circuit Court of Cook County, No. 05–CR–28199; the
Review                      Hon. Kenneth J. Wadas, Judge, presiding.



Judgment                    Affirmed in part and vacated in part.


Counsel on                  Michael J. Pelletier, Alan D. Goldberg, Aliza R. Kaliski, and Todd T.
Appeal                      McHenry, all of State Appellate Defender’s Office, of Chicago, for
                            appellant.

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                            Michelle Katz, Miles J. Keleher, and Robin Murphy, Assistant State’s
                            Attorneys, of counsel), for the People.


Panel                       JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
                            Presiding Justice Hall and Justice Rochford concurred in the judgment
                            and opinion.



                                              OPINION

¶1           Following a bench trial, defendant Martell Mimes was convicted of attempted first degree
        murder, aggravated battery with a firearm, and two counts of aggravated unlawful use of a
        weapon (AUUW). He was sentenced to concurrent terms of 45 years in prison for attempted
        murder, 10 years for aggravated battery with a firearm, and 3 years for AUUW.
¶2           On appeal, he contends: (1) the trial judge improperly assumed the role of prosecutor; (2)
        the trial court improperly increased defendant’s sentence for attempted murder where the
        State did not charge the sentence enhancing facts in the indictment; (3) defendant’s sentence
        for attempted murder was excessive; (4) his convictions for aggravated battery with a firearm
        and two counts of AUUW violated the one-act, one-crime rule; (5) his convictions under the
        AUUW statute should be vacated because the criminalization of carrying a firearm on one’s
        person in public violates the constitutional guarantees of the right to bear arms; and (6) the
        trial court erroneously imposed various fines, fees and costs against him.
¶3           For the reasons that follow, we hold that (1) the trial judge did not improperly assume the
        role of prosecutor by considering other-crimes evidence against defendant for the limited
        purpose of identification; (2) defendant received sufficient notice prior to trial of alleged
        facts that increased the penalty range of his attempted murder conviction where he was not
        prejudiced in the preparation of his defense; (3) the trial court’s 45-year sentence for

                                                  -2-
     attempted first degree murder was not an abuse of discretion; (4) defendant’s convictions for
     attempted first degree murder and one count of AUUW did not violate the one-act, one-crime
     rule, but this rule was violated by his convictions for aggravated battery with a firearm and
     a second count of AUUW; (5) defendant’s conviction for carrying an uncased, loaded and
     accessible handgun on a public city street is affirmed because the relevant provisions of
     Illinois’s AUUW statute did not violate the constitutional protection of the right to bear arms;
     and (6) the trial court properly assessed defendant with the $50 court system fee, but the
     other challenged fees or fines are vacated or offset by his time spent in custody.

¶4                                     I. BACKGROUND
¶5       Defendant was arrested and charged with the November 8, 2005 attempted first degree
     murder and aggravated battery with a firearm of the 17-year-old victim, Lenard Richardson.
     Defendant was also charged with eight counts of AUUW based on allegations that he was
     carrying an uncased, loaded and accessible firearm in public and did not have a Firearm
     Owner’s Identification (FOID) card, was under 21 years of age, and was involved in street
     gang activity.
¶6       At the bench trial in August 2008, the testimony of Richardson and his older brother,
     Leonard Cole, established that Richardson was selling heroin in a Chicago public housing
     building on the evening in question when he was robbed by defendant and three other
     offenders. Defendant brandished a silver pistol, took Richardson’s bundle of narcotics and
     about $200, and hit Richardson in his jaw with the pistol. Richardson then telephoned Cole,
     who drove to the scene with another friend. When Cole arrived at the scene, he told
     Richardson to wait in the car and he (Cole) would “handle it.” Cole and his friend walked
     across the street to a second public housing building and spoke with Lavane Tanksley. After
     a minute, Richardson lost sight of Cole, got out of the car, and went inside the second
     building.
¶7       Richardson went upstairs, looked out a window and saw Cole talking to Tanksley.
     Richardson then went downstairs to the lobby. As he was by the door and about to exit the
     building, he saw defendant, who was outside and about three feet away. Defendant walked
     toward Richardson and was carrying a silver pistol. Defendant started shooting as he walked
     up the steps to enter the building, and continued shooting as he walked into the lobby, passed
     Richardson and ran up a staircase. When Richardson heard the initial gunshots, he dropped
     to the ground and heard more gunshots fired. Only Richardson and defendant were in the
     lobby. Richardson did not have a gun. Richardson sustained two gunshot wounds fired into
     his back. Cole also heard the gunshots, dropped to the ground and then saw that someone
     was lying inside the lobby with his feet sticking out the door. Cole went into the lobby and
     saw that the victim was Richardson. No one else was in the lobby. Cole remained with
     Richardson until the police arrived.
¶8       Richardson was taken to the hospital and briefly interviewed by the police. Although
     Richardson initially denied selling drugs at the scene, he subsequently told the police about
     the events leading up to the shooting, gave a description of the shooter, and said he thought
     the shooter used a gun that belonged to Tanksley. The police spoke with Tanksley and


                                               -3-
       obtained defendant’s name. One day after the shooting, Richardson identified defendant as
       the shooter from a photo array. As a result of the shooting, Richardson suffered a spinal cord
       injury and was paralyzed from the waist down. Thereafter, he was confined to a wheelchair
       and had to wear a colostomy bag and diaper. Furthermore, both his legs were subsequently
       amputated.
¶9         The State’s evidence established that police recovered at the scene three shell casings and
       a full cartridge outside the building on the steps leading up to the lobby door. Inside the
       lobby, the police recovered five more shell casings and several pieces of metal from
       expended bullets. All eight shell casings were fired from the same gun.
¶ 10       Later, defendant was arrested and advised of his Miranda rights. According to the
       testimony of Chicago police detective Chris Matias, defendant initially told the police that
       he was inside his sister’s apartment the entire day when the offense occurred. Later, however,
       defendant told the police that he used Tanksley’s gun to shoot Richardson because he thought
       Richardson was reaching for a handgun. After the shooting, defendant ran upstairs to his
       sister’s apartment. Furthermore, defendant told the police that he never saw a gun in
       Richardson’s hands. Defendant did not testify at the bench trial.
¶ 11       After closing arguments, the trial judge stated that he considered the other-crimes
       evidence, i.e., the testimony that defendant robbed Richardson at gunpoint and struck him
       with the gun, only for the purpose of identification. The trial court concluded that any
       prejudicial effect was outweighed by the probative value of that evidence, which was
       relevant to show Richardson’s prior opportunity to observe defendant and then identify him
       later as the shooter. The trial court stated that Richardson was a credible witness and the
       physical evidence corroborated his version of the events. The trial court also stated that
       Detective Matias’s testimony concerning defendant’s inculpatory admissions to the shooting
       was credible.
¶ 12       The trial court found defendant guilty of attempted first degree murder, aggravated
       battery with a firearm, and two counts of AUUW. Specifically, defendant’s AUUW
       convictions were based on findings that he (1) knowingly carried on his person an uncased,
       loaded and accessible firearm while not on his own land or in his own abode or fixed place
       of business (720 ILCS 5/24–1.6(a)(1), (a)(3)(A) (West 2004)), and (2) possessed an uncased,
       loaded and accessible firearm upon public land (720 ILCS 5/24–1.6(a)(2), (a)(3)(A) (West
       2004)). The trial court found defendant not guilty on six other counts of AUUW because the
       State failed to prove he was involved in gang-related activity, did not have a FOID card or
       was under 21 years of age.
¶ 13       At the sentencing hearing, the parties stipulated that two Chicago police officers would
       testify that they arrested defendant in September 2005 in the hallway of a building where he
       did not live for being in possession of 23 small clear plastic bags containing crack cocaine.
       Moreover, the State presented Richardson’s victim impact statement and informed the court
       that defendant was out on bond for the 2005 possession of a controlled substance case when
       he shot and severely injured Richardson. Furthermore, defendant had a prior juvenile
       adjudication of guilt for burglary but no prior adult convictions.
¶ 14       For the offense of attempted first degree murder, the trial court imposed a 20-year


                                                -4-
       sentence plus the minimum mandatory addition of 25 years for a cumulative 45-year sentence
       based on the finding that defendant was the shooter in the case and caused great bodily harm
       to the victim. Defendant also received concurrent sentences of 10 years for aggravated
       battery with a firearm, and three years each for two counts of AUUW. The trial court also
       assessed $840 for various costs, fees and fines. Defendant timely appealed.

¶ 15                                      II. ANALYSIS
¶ 16       On appeal, defendant contends: (1) the trial court improperly assumed the role of
       prosecutor when it sua sponte considered other-crimes evidence; (2) the trial court
       improperly added 25 years to his 20-year attempted murder sentence where the State did not
       charge the sentence enhancing facts in the indictment; (3) defendant’s 45-year sentence for
       attempted murder was excessive; (4) pursuant to the one-act, one-crime rule, his convictions
       for aggravated battery with a firearm and two counts of AUUW should be vacated because
       they were based on the same physical act as his attempted murder conviction; (5) his
       convictions under the AUUW statute should be vacated because the criminalization of
       openly carrying a firearm on one’s person in public violates the constitutional guarantees of
       the right to bear arms; and (6) the trial court erroneously imposed various fines, fees and
       costs against him.

¶ 17                                  A. Appearance of Partiality
¶ 18       Defendant argues the trial court erred when, after closing argument, it stated, sua sponte,
       that certain testimony, i.e., that defendant robbed Richardson at gunpoint and hit him in the
       jaw with the gun, was relevant only to show Richardson’s ability to identify defendant as the
       offender who shot him later the same day. The trial court also stated that the probative value
       of this other-crimes evidence outweighed any prejudicial effect. Defendant acknowledges
       that all the testimony concerning the armed robbery was admitted during the bench trial
       without any objection from defendant. Nevertheless, defendant contends that the trial court’s
       statements established that it impermissibly acted as a prosecutor because the State never
       raised the issue of the admissibility of the other-crimes evidence. We find that defendant’s
       argument lacks merit.
¶ 19       A trial judge abuses his discretion when he abandons his judicial role and adopts the role
       of prosecutor. People v. Hicks, 183 Ill. App. 3d 636, 646 (1989). However, where justice is
       liable to fail because a certain fact has not been developed or a certain line of inquiry has not
       been pursued, a judge has a duty to interpose and avoid the miscarriage of justice either by
       suggestions to counsel or an examination conducted by the judge himself. People v.
       Franceschini, 20 Ill. 2d 126, 132 (1960).
¶ 20       Here, the trial judge did not improperly act as a prosecutor when he merely clarified,
       prior to announcing his findings, that he had considered the properly admitted testimony
       about the robbery, which constituted other-crimes evidence, only for the relevant purpose of
       identification. Specifically, defendant’s prior bad act afforded Richardson the opportunity
       to observe defendant and the gun up close and thereby assisted Richardson in identifying
       defendant as the offender who shot him later that day.

                                                 -5-
¶ 21       This situation is dissimilar to that in Village of Kildeer v. Munyer, 384 Ill. App. 3d 251
       (2008), relied upon by defendant, where defendant Munyer was charged with reckless driving
       in three separate cases. Although the three cases involved different witnesses from three
       separate incidents that occurred on different dates, the trial court heard the three cases
       together. Id. at 252. In the first and second cases, the witnesses testified that the defendant
       drove his vehicle toward the witnesses’ vehicles and then swerved into the witnesses’ path,
       causing the witnesses to leave the road to avoid being hit. Id. at 252-53. In the third case, the
       defendant drove toward two stopped cars, causing the occupants to think the defendant
       would strike them before he pulled his vehicle away at the last minute. Id. at 253. After the
       prosecution had rested, the trial court granted the defendant a directed finding in the first and
       second cases based on the failure of the complaints to give sufficient factual descriptions of
       the alleged acts. Id. at 253. Then, the trial court improperly acted as a prosecutor when it sua
       sponte took the affirmative step of admitting the testimony from the two dismissed reckless
       driving cases as other-crimes evidence in the remaining reckless driving case in order to
       establish proof of the defendant’s willful or wanton mental state. Id. at 253, 257.
¶ 22       In this case, the trial judge did not prompt the State to present the other-crimes evidence,
       and the State did not reopen its case to present additional evidence. Instead, the judge merely
       commented on the relevant basis for the previously admitted other-crimes evidence.
       Furthermore, the defense never argued that the testimony concerning the robbery constituted
       inadmissible other-crimes evidence. Defendant cannot credibly complain on appeal that he
       was prejudiced by the admission of that evidence where the defense referred to that
       testimony extensively during the cross-examinations of Richardson and Cole in order to
       discredit them as drug peddlers. Defendant fails to establish any appearance of partiality or
       abuse of discretion by the trial judge here.

¶ 23           B. Mandatory Addition to Defendant’s Attempted Murder Sentence
¶ 24        Defendant contends that the addition of 25 years to his 20-year sentence for attempted
       first degree murder is void because the State violated section 111–3(c–5) of the Code of
       Criminal Procedure of 1963 (Code) (725 ILCS 5/111–3(c–5) (West 2004)). According to
       defendant, section 111–3(c–5) required the State to give him written notice prior to trial that
       it would seek an enhanced sentence based on the facts that he personally discharged a firearm
       which caused great bodily harm to Richardson. Defendant acknowledges that he failed to
       raise this issue both prior to sentencing and in his motion to reconsider the sentence. He
       argues, however, that a void order may be challenged at any time and a “sentence which does
       not conform to a statutory requirement is void.” People v. Arna, 168 Ill. 2d 107, 113 (1995).
¶ 25        Alternatively, defendant seeks review of this issue under the plain error rule, arguing that
       the imposition of an unauthorized sentence affected substantial rights where the State’s
       alleged indictment error prevented him from exercising his right to request a bifurcated
       proceeding. Specifically, defendant contends that if he had known the State would seek an
       enhanced sentence based on his use of a firearm and causing the victim great bodily harm,
       then defendant could have requested a bifurcated proceeding where a jury would decide his
       guilt but a judge would decide whether the enhancing factor existed. Furthermore, defendant


                                                 -6-
       could then have chosen to testify either at the guilt phase of the trial only, or the enhancing
       factor phase only, or neither or both. See Ill. S. Ct. R. 451(g) (eff. July 1, 2006) (when the
       State seeks an enhanced sentence, trial courts have discretion under section 111–3(c–5) in
       deciding whether to conduct unitary or bifurcated trials on the issue of guilt and on the issue
       of whether a sentencing enhancement factor exists).
¶ 26        Because this issue involves a question of law, our review is de novo. People v. Rowell,
       229 Ill. 2d 82, 92 (2008). A defendant has a fundamental right to be informed of the nature
       and cause of criminal accusations made against him. Id. at 92-93. The legislature enacted
       section 111–3(c–5) of the Code in response to the Supreme Court’s decision in Apprendi v.
       New Jersey, 530 U.S. 466 (2000), which held that whenever a fact other than a prior
       conviction is considered to enhance a penalty beyond the statutory maximum, that fact must
       be found to exist beyond a reasonable doubt by the trier of fact. People v. Crutchfield, 353
       Ill. App. 3d 1014, 1023 (2004).
¶ 27        Section 111–3(c–5) provides:
                “Notwithstanding any other provision of law, *** if 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. Failure to prove the fact beyond a reasonable
                doubt is not a bar to a conviction for commission of the offense, but is a bar to
                increasing, based on that fact, the range of penalties for the offense beyond the
                statutory maximum that could otherwise be imposed for that offense.” 725 ILCS
                5/111–3(c–5) (West 2004).
       Defendant’s challenge on appeal is limited to the issue of notice; he does not assert that the
       alleged facts that he fired the gun that caused Richardson great bodily harm were neither
       submitted to the fact finder nor proven beyond a reasonable doubt.
¶ 28        Attempted first degree murder is a Class X felony (720 ILCS 5/8–4(c)(1) (West 2004))
       and is usually subject to a sentencing range of 6 to 30 years’ imprisonment (720 ILCS
       5/8–4(c)(2) (West 2004); 730 ILCS 5/5–8–1(a)(3) (West 2004)). However, if the offense
       involved certain factors, a mandatory number of years must be added to the term of
       imprisonment imposed by the court. For example, if the defendant personally discharged a
       firearm, then 20 years must be added to the term of imprisonment imposed by the court. 720
       ILCS 5/8–4(c)(1)(C) (West 2004). If the defendant personally discharged a firearm that
       proximately caused, inter alia, great bodily harm to another person, then 25 years or up to
       a term of natural life must be added to the term of imprisonment imposed by the court. 720
       ILCS 5/8–4(c)(1)(D) (West 2004).
¶ 29        Although the term great bodily harm is not susceptible of a precise legal definition, it
       requires an injury of a greater and more serious character than an ordinary battery. People
       v. Figures, 216 Ill. App. 3d 398, 401 (1991). Bodily harm as it relates to ordinary battery
       requires “some sort of physical pain or damage to the body, like lacerations, bruises or


                                                 -7-
       abrasions, whether temporary or permanent.” People v. Mays, 91 Ill. 2d 251, 256 (1982).
       Great bodily harm is not dependent upon hospitalization of the victim, nor the permanency
       of his disability or disfigurement, but, rather, centers upon the injuries the victim did, in fact,
       receive. Figures, 216 Ill. App. 3d at 401.
¶ 30       Here, the indictment alleged that defendant
               “committed the offense of attempt first degree murder in that he, without lawful
               justification, with intent to kill, did any act, to wit: shot Lenard Richardson about the
               body with a firearm, which constituted a substantial step towards the commission of
               the offense of first degree murder, in violation of Chapter 720, Act 5, Section 8–4(a)
               (720–5(9–1(a)(1)), of the Illinois Compiled Statutes.”
¶ 31       We find that the plain language of the indictment clearly set forth the alleged fact that
       defendant personally discharged the firearm. In addition, the indictment cited both the
       attempt and first degree murder statutes. Consequently, defendant could look to subsection
       (c)(1)(C) of the cited attempt statute to know that he was subject to a mandatory 20-year
       addition to his sentence based upon a finding that he personally discharged the gun.
¶ 32       We agree with defendant, however, that the indictment failed to include the alleged fact
       that defendant’s shooting proximately caused Richardson great bodily harm. Although the
       indictment sufficiently alleged that defendant wounded Richardson, a gunshot wound does
       not necessarily satisfy the great bodily harm requirement. See People v. Ruiz, 312 Ill. App.
       3d 49, 62-63 (2000) (gunshot wound to the police officer’s knee was not a severe bodily
       injury where the wound was barely visible on the day of the incident and the officer did not
       immediately seek medical treatment); People v. Durham, 303 Ill. App. 3d 763, 770 (1999)
       (battery victim’s gunshot injury, which required no medical attention and was described as
       a mark, small nick or a cut, was not a severe bodily injury for sentencing purposes).
¶ 33       The timing of a challenge to the sufficiency of an indictment is significant because it
       determines which standard must be applied in reviewing the sufficiency of the indictment on
       appeal. People v. Davis, 217 Ill. 2d 472, 478 (2005); People v. Cuadrado, 214 Ill. 2d 79, 86-
       87 (2005). An indictment challenged before trial must strictly comply with the pleading
       requirements of section 111–3. People v. Nash, 173 Ill. 2d 423, 429 (1996). In contrast, when
       an indictment is attacked for the first time posttrial, a defendant must show that he was
       prejudiced in the preparation of his defense. Davis, 217 Ill. 2d at 479. “[W]hen the
       sufficiency of an indictment *** is attacked for the first time on appeal, the indictment ***
       is sufficient if it apprised the accused of the precise offense charged with sufficient
       specificity to prepare his defense and to allow him to plead a resulting conviction as a bar to
       future prosecutions arising from the same conduct.” Rowell, 229 Ill. 2d at 93. Because
       defendant challenged the indictment for the first time on appeal, the State’s failure to strictly
       comply with section 111–3(c–5) is not dispositive. Instead, the dispositive issue is whether
       defendant was prejudiced in the preparation of his defense.
¶ 34       To show prejudice, defendant argues that he might have requested a bifurcated hearing
       under Supreme Court Rule 451(g) if he had received written notice prior to trial that the State
       intended to show he caused great bodily harm to the victim. Even assuming, arguendo, that
       the trial court would have granted a request for a bifurcated proceeding under the


                                                  -8-
       circumstances present here, the record refutes defendant’s claim that he was prejudiced in
       the preparation of his defense. Specifically, the record establishes that defendant was
       apprised of the serious nature of Richardson’s injuries long before defendant submitted his
       August 18, 2008 written waiver of his right to a jury trial. The November 19, 2005 arrest
       report stated that defendant was “identified as the individual who shot and seriously wounded
       victim (Richardson, Lenard) with a handgun.” Furthermore, at defendant’s March 9, 2006
       bond hearing, the State asked the court to maintain the “no bond hold” where defendant was
       out on bond for a case involving drug possession and then “commits this crime, where he
       ends up shooting the victim in the back on this attempt murder case.”
¶ 35       In addition, at the September 19, 2006 hearing on defendant’s motion to reduce bail, the
       State, in the presence of defendant, informed the court of his criminal history and said that
       the
                “facts of this case are such that he was identified as having shot at the victim on
                November 8, 2005 at approximately 7:00 o’clock in the evening in the Ickes Homes
                at 2400 South State Street. The victim was shot twice in the back, shot at more than
                half a dozen times. The victim was left paralyzed.”
       Defense counsel responded, in part, that “in regards to the facts of the case it does appear that
       the victim, although a set of tragic circumstances have resulted in him being paralyzed in
       regards to the matter.”
¶ 36       The record establishes that defendant cannot credibly argue that he was not informed
       prior to trial of the facts concerning the great bodily harm Richardson sustained as a result
       of the shooting. At the very least, defendant knew that Richardson was paralyzed as a result
       of the two gunshots defendant fired into Richardson’s back. Moreover, the indictment
       apprised defendant of the offense charged–attempted first degree murder–and cited both the
       attempt and first degree murder statutes. Consequently, defendant was able to look to
       subsection (c)(1)(D) of the cited attempt statute to find the missing sentence enhancing
       factor. Cf. Rowell, 229 Ill. 2d at 95-96 (where the State aggregated the defendant’s small
       retail thefts but failed to allege the necessary element of a single intent or design, and the
       charging instrument cited the retail theft statute but did not reference the statute concerning
       the joinder of offenses, then the defendant suffered prejudice because he could not look to
       the cited statute to find the missing element). Specifically, subsection (c)(1)(D) informed
       defendant that he could receive an enhanced sentence of 25 years or up to natural life for
       personally discharging the firearm that caused Richardson great bodily harm.
¶ 37       We find that defendant cannot establish that the omission of the words “proximately
       caused great bodily harm” in the indictment prejudiced his preparation of his defense.
       Accordingly, his enhanced sentence is not subject to reversal or reduction because the
       indictment in this case apprised him of the proper elements of the offense with sufficient
       specificity to allow him to prepare his defense. Consequently, defendant’s sentence is not
       void where he received sufficient pretrial notice of the attempted murder offense charged and
       his sentence conformed to the statutory requirement of 111–3(c–5) because the State proved
       beyond a reasonable doubt that defendant fired the gun that caused Richardson great bodily
       harm.


                                                 -9-
¶ 38       Finally, the plain language of section 111–3(c–5) refutes defendant’s claim that he was
       entitled to specific, written, pretrial notice that the State would seek an enhanced sentence.
       Section 111–3(c–5) clearly states that the defendant is entitled to written pretrial notice of
       the alleged fact that would be used to increase his sentence. There is no requirement that the
       defendant must also be given written pretrial notice about the potential increased sentence
       he could receive.

¶ 39                              C. Sentence and Abuse of Discretion
¶ 40        Defendant complains that his 45-year sentence for attempted murder is excessive.
       Specifically, he argues that the trial court failed to properly account for his rehabilitative
       potential where he was 19 years old at the time of the offense in 2005, had little criminal
       history, maintained employment until 2004 when his employer became ill, had a supportive
       family and hoped to continue his education.
¶ 41        The trial court has broad discretionary powers in choosing the appropriate sentence.
       People v. Jones, 168 Ill. 2d 367, 373 (1995). A judgment as to the proper sentence must be
       based on the circumstances of each case and depends on many factors, including the
       seriousness of the offense; the need to protect the public and provide for deterrence and
       retribution; and the defendant’s demeanor, general moral character, mental capacity, age,
       background, prior criminal history, rehabilitative potential and future dangerousness. People
       v. Stacey, 193 Ill. 2d 203, 209 (2000); People v. Thompson, 222 Ill. 2d 1, 35 (2006); People
       v. Hunzicker, 308 Ill. App. 3d 961, 966 (1999). A reviewing court gives great deference to
       a trial court’s sentencing decision and cannot substitute its judgment for that of the trial court
       simply because it would have weighed the factors differently. People v. Alexander, 239 Ill.
       2d 205, 212-13 (2010) (reversing the appellate court to reinstate the trial court’s 24-year
       sentence for the 15-year-old defendant convicted of firing a gun at a fellow student in a
       crowded hallway while school was in session without injuring anyone).
¶ 42        Here, defendant received a 45-year sentence, which was based upon 20 years for
       attempted first degree murder (720 ILCS 5/8–4(c)(1) (West 2004); 730 ILCS 5/5–8–1(a)(3)
       (West 2004) (this Class X felony is subject to 6 to 30 years in prison)), plus the minimum
       mandatory consecutive addition of 25 years where he personally discharged a firearm that
       proximately caused great bodily harm to another person (720 ILCS 5/8–4(c)(1)(D) (West
       2004)). His 45-year sentence is well within the statutory range of 31 to 55 years and up to
       natural life.
¶ 43        In addition, the trial court properly considered significant aggravating factors. Defendant
       approached the 17-year-old, unarmed victim and began firing multiple gunshots from a
       distance of only two or three feet away. Moreover, the victim’s injuries were permanent and
       devastating. In addition, defendant, who was only 19 years old at the time of this offense,
       was out on bond for a charge of possession of a controlled substance (see People v. Williams,
       262 Ill. App. 3d 734, 746 (1994)), and already had a juvenile adjudication of guilt for a
       burglary offense. Furthermore, defendant presents no evidence to indicate that the trial court
       failed to consider any mitigation factors, like defendant’s age, family support or rehabilitative
       potential. See People v. Morgan, 306 Ill. App. 3d 616, 633 (1999); People v. Garcia, 296 Ill.


                                                 -10-
       App. 3d 769, 781 (1998). Consequently, defendant has failed to establish that the trial court
       abused its discretion in sentencing defendant to 45 years’ imprisonment for his attempted
       first degree murder offense.

¶ 44                               D. One-Act, One-Crime Rule
¶ 45       The one-act, one-crime rule prohibits multiple convictions when (1) the convictions are
       carved from precisely the same physical act, or (2) one of the offenses is a lesser-included
       offense of the other. People v. Lindsey, 324 Ill. App. 3d 193, 200 (2001). The term “act” is
       defined as “any overt or outward manifestation which will support a different offense.”
       People v. King, 66 Ill. 2d 551, 566 (1977). If the court determines that the defendant
       committed multiple acts, it must then determine whether any of the offenses are lesser-
       included offenses. People v. Rodriguez, 169 Ill. 2d 183, 186 (1996). If so, multiple
       convictions are improper; if not, multiple convictions may be entered. Id. We review de novo
       defendant’s claim that his convictions violated the one-act, one-crime rule. People v. Dryden,
       363 Ill. App. 3d 447, 453 (2006).
¶ 46       Defendant asserts, the State concedes, and we agree that defendant’s conviction for
       aggravated battery with a firearm violates the one-act, one-crime rule because it was
       predicated on the same act as his attempted murder conviction. Because the two relevant
       counts of the indictment charged defendant with the same physical act, i.e., shooting the
       victim with a firearm, the lesser felony, aggravated battery with a firearm, must be vacated.
       See People v. Aquino, 239 Ill. App. 3d 12, 19 (1992) (vacating the defendant’s conviction
       for aggravated battery with a firearm where the defendant was also charged and convicted
       of attempted first degree murder based on the same physical act of shooting his wife).
       Therefore, we vacate his conviction for aggravated battery with a firearm and the
       corresponding 10-year concurrent sentence.
¶ 47       Further, defendant asserts, the State concedes, and we agree that defendant’s two
       convictions for AUUW stem from the same physical act of carrying an uncased, loaded and
       accessible firearm in public and, thus, violate the one-act, one-crime rule. People v.
       Quinones, 362 Ill. App. 3d 385, 396-97 (2005). Therefore, we vacate one of his AUUW
       convictions and the corresponding three-year concurrent sentence.
¶ 48       We do not agree, however, with defendant’s claim that his one remaining AUUW
       conviction also violates the one-act, one crime rule. According to defendant, his remaining
       AUUW conviction stemmed from precisely the same physical act required for his attempted
       murder conviction, i.e., possession of a loaded firearm. Defendant acknowledges that he
       failed to raise this issue below and therefore failed to preserve it for review. Defendant,
       however, contends that this improper conviction affects substantial rights and asks this court
       for relief under the plain-error analysis.
¶ 49       We find, however, that no error occurred. Defendant’s convictions for attempted murder
       and AUUW were not carved from precisely the same physical act. Although possession of
       the loaded gun was a common factor for both the attempted murder and AUUW charges,
       defendant’s criminal conduct did not consist of a single act. In committing the offense of
       AUUW, defendant carried an uncased, loaded and accessible firearm on a public city street.

                                               -11-
       In committing the offense of attempted murder, defendant engaged in the separate and
       additional act of shooting Richardson about his body with the gun. The AUUW and
       attempted murder charges each were based on separate and additional acts not shared by the
       other charge.
¶ 50       Furthermore, AUUW was not a lesser-included offense of the charged attempted murder
       offense. In order to determine whether a matter involves a lesser-included offense, Illinois
       courts examine the charging instrument to see whether the description of the greater offense
       contains a broad foundation or main outline of the lesser offense. People v. Kolton, 219 Ill.
       2d 353, 360-61 (2006). This decision involves a case-by-case determination using the factual
       description of the charged offense in the indictment. Id. at 367. “A lesser offense will be
       ‘included’ in the charged offense if the factual description of the charged offense describes,
       in a broad way, the conduct necessary for the commission of the lesser offense and any
       elements not explicitly set forth in the indictment can reasonably be inferred.” Id.
¶ 51       We first review the statutory definition of AUUW and determine whether the facts
       alleged in count I of the indictment (charging attempted first degree murder) contain a broad
       foundation or main outline of the offense of AUUW. Section 24–1.6 of the Criminal Code
       of 1961 (Criminal Code), which defines the offense of AUUW, provides, in pertinent part,
       as follows:
                   “(a) A person commits the offense of [AUUW] when he or she knowingly:
                       (1) Carries on or about his or her person *** except when on his or her land
                   or in his or her abode or fixed place of business any pistol, revolver *** or other
                   firearm; or
                       (2) Carries or possesses on or about his or her person, upon any *** public
                   lands within the corporate limits of a city, village or incorporated town, ***
                   except when on his or her own land or in his or her own abode or fixed place of
                   business, any pistol, revolver *** or other firearm; and
                       (3) One of the following factors is present:
                           (A) the firearm possessed was uncased, loaded and immediately
                       accessible at the time of the offense ***.” 720 ILCS 5/24–1.6(a)(1), (a)(2),
                       (a)(3)(A) (West 2004).
¶ 52       Count I of the indictment alleged that defendant committed the offense of attempted first
       degree murder in that he
               “without lawful justification, with intent to kill, did any act, to wit: shot Lenard
               Richardson about the body with a firearm, which constituted a substantial step
               towards the commission of the offense of first degree murder.”
¶ 53       We find that count I does not set forth a broad definition or main outline of AUUW. In
       particular, count I does not allege that defendant carried the firearm either when he was not
       on his land or in his abode or fixed place of business, or when he was on a public city street.
       The indictment here clearly referred to different conduct for each offense. We conclude,
       therefore, that AUUW is not a lesser-included offense of defendant’s attempted murder
       conviction.


                                                -12-
¶ 54      Accordingly, we vacate defendant’s aggravated battery with a firearm conviction and one
       conviction for AUUW. We affirm his remaining AUUW conviction.

¶ 55                            E. Constitutionality of AUUW Statute
¶ 56        Defendant argues that his AUUW conviction should be vacated because the relevant
       provisions of the AUUW statute criminalize the open carrying of a loaded firearm on one’s
       person on a public street and, thus, violate both state and federal constitutional guarantees
       of the right to bear arms. Whether a statute is constitutional is a question of law to be
       reviewed de novo. People v. Morgan, 203 Ill. 2d 470, 486 (2003). For the reasons that
       follow, we hold that the provisions of the AUUW statute at issue here do not violate the
       constitutional protections of the right to bear arms.
¶ 57        As discussed above, defendant is subject to only one AUUW conviction pursuant to the
       one-act, one-crime rule. Because defendant’s constitutional challenge to the AUUW statute
       is not impacted by which offense is vacated, we will address his constitutional challenge
       based on his conviction that he knowingly carried or possessed on or about his person a
       firearm upon public land, to wit: South State Street, within the corporate limits of a city, to
       wit: the City of Chicago, at a time when he was not on his own land or in his own abode or
       fixed place of business and when he was not an invitee thereon for the purpose of the display
       of such weapon or the lawful commerce in weapons, and the firearm was uncased, loaded
       and immediately accessible at the time of the offense, in violation of sections 24–1.6(a)(2)
       and (a)(3)(A) of the Criminal Code (720 ILCS 5/24–1.6(a)(2), (a)(3)(A) (West 2004)).
¶ 58        The second amendment provides that a “well regulated Militia, being necessary to the
       security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
       U.S. Const., amend. II. The Illinois Constitution provides that “[s]ubject only to the police
       power, the right of the individual citizen to keep and bear arms shall not be infringed.” Ill.
       Const. 1970, art I, § 22.
¶ 59        In District of Columbia v. Heller, 554 U.S. 570, 628-29 (2008), a majority of the
       Supreme Court held that a Washington, D.C., ordinance violated the second amendment
       because the ordinance totally banned handgun possession in the home and required that any
       lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering
       it inoperable. The Court found that the original understanding of the second amendment was
       grounded in the belief that the right to bear arms ensured that a militia could easily be formed
       if needed and provided protection from tyranny. Id. at 599-601. The right was also popularly
       understood as an individual right to self-defense, particularly for the defense of one’s hearth
       and home, that was unconnected to militia service. Id. at 586. The Court stated that the
       second amendment “elevates above all other interests the right of law-abiding, responsible
       citizens to use arms in defense of hearth and home” (Id. at 635), and “handguns are the most
       popular weapon chosen by Americans for self-defense in the home” (Id. at 629).
¶ 60        Although the second amendment guaranteed the preexisting “individual right to possess
       and carry weapons in case of confrontation,” the second amendment, like the first
       amendment’s right of free speech, was not unlimited. Id. at 592, 595. The Court did “not read
       the Second Amendment to protect the right of citizens to carry arms for any sort of

                                                 -13-
       confrontation.” (Emphasis in original.) Id. at 595.
¶ 61       In reaching its conclusion, the Court did not determine the specific level of scrutiny
       appropriate to the issue under review. Instead, the Court noted that “the inherent right of self-
       defense has been central to the Second Amendment right,” and rejected the application of a
       rational basis review to conduct within the scope of the second amendment’s protection. Id.
       at 628-29 n.27. The Court also rejected a judge-empowering, freestanding, interest-balancing
       inquiry for evaluating second amendment restrictions and, in particular, for the core
       protection of an enumerated constitutional right. Id. at 634-35. The Court concluded that a
       total ban on the possession of operable handguns in the home, “where the need for defense
       of self, family, and property is most acute,” made it “impossible for citizens to use them for
       the core lawful purpose of self-defense.” Id. at 628-30. Such a ban could not withstand any
       level of heightened scrutiny and, thus, was unconstitutional. Id. at 628-29 n.27.
¶ 62       The Court recognized that the right to keep and bear arms is not “a right to keep and carry
       any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 626.
       Moreover, the Court warned that its opinion should not be construed as casting doubt on
       longstanding and presumptively lawful regulatory measures, like prohibitions on the
       possession of firearms by felons and the mentally ill, or laws forbidding the carrying of
       firearms in sensitive places like schools and government buildings, or laws imposing
       conditions and qualifications on the commercial sale of arms. Id. at 626-27 n.26. In addition,
       the second amendment does not protect the carrying of dangerous or unusual weapons not
       typically possessed by law-abiding citizens for lawful purposes. Id. at 624-27. Beyond this,
       the Court did not analyze the scope of the second amendment’s protection. Id. at 626.
¶ 63       Later, in McDonald v. City of Chicago, 561 U.S. __, __, 130 S. Ct. 3020, 3036 (2010),1
       the Court addressed whether the second amendment right to keep and bear arms was
       fundamental to our scheme of ordered liberty, i.e., deeply rooted in our nation’s history and
       tradition, and, thus, incorporated in the concept of due process. A plurality of the Court
       concluded that the right to keep and bear arms was considered fundamental where individual
       self-defense is a basic right, the central component of the second amendment right, and
       deeply rooted in our nation’s history and tradition. Id., 561 U.S. at __, 130 S. Ct. at 3036-42.
       The Court stated that concerns about public safety or federalism did not warrant any
       departure from established incorporation methodology. Id., 561 U.S. at __, 130 S. Ct. at
       3045-46. “[I]f a Bill of Rights guarantee is fundamental from an American perspective, then
       *** that guarantee is fully binding on the States and thus limits (but by no means eliminates)
       their ability to devise solutions to social problems that suit local needs and values.”
       (Emphasis in original.) Id., 561 U.S. at __, 130 S. Ct. at 3046.



               1
                 The McDonald petitioners filed suit against two Illinois municipalities, seeking a
       declaration that ordinances which effectively banned handgun possession by almost all private
       citizens residing in the municipalities violated the second and fourteenth amendments. Id., 561 U.S.
       at __, 130 S. Ct. at 3026-27. The district court rejected the petitioners’ argument that the ordinances
       were unconstitutional, and the circuit court affirmed. Id., 561 U.S. at __, 130 S. Ct. at 3027. The
       Supreme Court reversed the judgment and remanded the case. Id., 561 U.S. at __, 130 S. Ct. at 3050.

                                                   -14-
¶ 64       The Court noted that the incorporation of the individual guarantees of the Bill of Rights
       under the fourteenth amendment did not mean that a “watered-down, subjective version” of
       those guarantees applied to the states. Id., 561 U.S. at __, 130 S. Ct. at 3035. Rather,
       incorporated Bill of Rights guarantees are “enforced against the States under the Fourteenth
       Amendment according to the same standards that protect those personal rights against federal
       encroachment.” (Internal quotation marks omitted.) Id., 561 U.S. at __, 130 S. Ct. at 3035;
       see also, Id., 561 U.S. at __ n.5, 130 S. Ct. at 3054 n.5 (Scalia, J., concurring) (“[T]he demise
       of watered-down incorporation [citation] means that we no longer subdivide Bill of Rights
       guarantees into their theoretical components, only some of which apply to the States. The
       First Amendment freedom of speech is incorporated–not the freedom to speak on Fridays,
       or to speak about philosophy.”). The Court reiterated Heller’s holding “that the Second
       Amendment protects the right to possess a handgun in the home for the purpose of self-
       defense,” and then held that “the Due Process Clause of the Fourteenth Amendment
       incorporates the Second Amendment right recognized in Heller.” Id., 561 U.S. at __, 130 S.
       Ct. at 3050.
¶ 65       Defendant argues his AUUW conviction violates the second amendment of the United
       States Constitution and article I, section 22, of the Illinois Constitution because the relevant
       provisions of the AUUW statute impermissibly burden the fundamental right to keep or bear
       arms for self-defense. The State responds that Heller has no bearing on the challenged
       provisions of the AUUW statute at issue here because Heller addressed the limited issue of
       the constitutionality of a regulation that prohibited the possession of a loaded and operable
       firearm in one’s home. According to the State, the reach of Heller’s holding does not extend
       to the statutory provisions at issue here, which prohibited carrying an uncased, loaded and
       accessible firearm in public on the street.
¶ 66       This court has used a two-part approach to second amendment claims. Wilson v. Cook
       County, 407 Ill. App. 3d 759, 768 (2011), pet. for leave to appeal allowed, No. 112026 (Ill.
       May 25, 2011) (discussing several federal court cases that used a similar approach for second
       amendment claims). First, the court considers whether the challenged law imposes a burden
       on conduct falling within the scope of the second amendment’s guarantee. Id. at 766. This
       historical inquiry seeks to determine whether the conduct at issue was understood to be
       within the scope of the right to bear arms when the second amendment was ratified. Heller,
       554 U.S. at 634-35 (“Constitutional rights are enshrined with the scope they were understood
       to have when the people adopted them ***.”). If the challenged law does not burden
       protected conduct, then the law is valid, provided that it satisfies the due process mandate
       of rationality in lawmaking. Wilson, 407 Ill. App. 3d at 766; Heller, 554 U.S. at 629 n.27.
       However, if the challenged law burdens conduct that was within the scope of the right, then
       the court applies an appropriate form of heightened means-end scrutiny. Wilson, 407 Ill. App.
       3d at 766. Because a rational basis review cannot be applied to conduct falling within the
       scope of the second amendment’s protection, the government bears the burden of justifying
       the constitutional validity of the law. Id. at 766-67.
¶ 67       First, we find that defendant has met his initial burden to show that the challenged
       provisions of the AUUW statute burden conduct falling within the scope of the second
       amendment’s protection. See Morgan, 203 Ill. 2d at 486 (all statutes carry a strong

                                                 -15-
       presumption of constitutionality, so the party challenging the statute bears the burden of
       establishing its constitutional infirmities). The “inherent right of self-defense has been central
       to the Second Amendment right.” Heller, 554 U.S. at 628. Although “the need for defense
       of self, family, and property is most acute” in the home (id.), we believe logic dictates that
       an individual’s need for self-defense does not disappear outside the home.
¶ 68        Certain conduct falls outside the scope of the second amendment’s protection of the right
       to bear arms. For example, the carrying of dangerous or unusual firearms that are not
       typically possessed by law-abiding citizens for lawful purposes is categorically unprotected
       by the second amendment. Id. at 624-27; Wilson, 407 Ill. App. 3d at 774. The conduct at
       issue here, however, is not beyond the scope of the second amendment’s protection.
       Specifically, the challenged provisions of the AUUW statute, which prohibit the carrying of
       an uncased, loaded and accessible firearm in the public street even by a law-abiding citizen
       for the lawful purpose of self-defense, imposes a burden on the inherent right to self-defense.
       Consequently, the challenged provisions of the AUUW statute implicate conduct that, while
       not at the core of the right to bear arms like the defense of hearth and home, falls within the
       scope of the right as it was understood at the time the second amendment was ratified. See
       Heller, 554 U.S. at 592-95 (general discussion of the historical background of the second
       amendment guarantee of the individual right to possess and carry weapons in case of
       confrontation).
¶ 69        Because the challenged AUUW provisions burden conduct within the scope of the
       second amendment guarantee, we evaluate the prohibition under the appropriate standard of
       constitutional scrutiny. The State argues that rational review is appropriate because the
       statute does not infringe upon a fundamental right. For support, the State cites Kalodimos v.
       Village of Morton Grove, 103 Ill. 2d 483, 509, 511 (1984), where the Illinois Supreme Court
       applied a rational basis review and held that the right to possess a firearm was not a
       fundamental right and an ordinance banning possession of operable handguns did not violate
       the Illinois Constitution but, rather, was a permissible exercise of police power. We note,
       however, that the analysis and holding in Kalodimos have been impliedly overruled by Heller
       and McDonald. The law now establishes that the second amendment guarantee of the
       individual right to bear arms is a fundamental right incorporated to the states and is not
       subject to rational basis review.
¶ 70        Defendant argues that strict scrutiny should govern because a fundamental right is at
       issue. To satisfy strict scrutiny, the means employed by the legislature must be necessary to
       a compelling state interest, and the statute must be narrowly tailored, using the least
       restrictive means available to attain its purposes. United States v. Playboy Entertainment
       Group, Inc., 529 U.S. 803, 813 (2000).
¶ 71        We find that second amendment challenges, like first amendment challenges, can trigger
       more than one particular standard of scrutiny. The first amendment right to free speech is an
       enumerated fundamental right, yet it is subject to several standards of scrutiny depending on
       the type of speech and level of prohibition at issue. See United States v. Marzzarella, 614
       F.3d 85, 96-98 (3d Cir. 2010) (discussing the application of intermediate scrutiny to content-
       neutral time, place and manner restrictions, or to regulations on nonmisleading commercial
       speech). Perhaps strict scrutiny may have applied to the severe prohibition on the particular

                                                 -16-
       fundamental right at issue in Heller. Heller involved a total ban on having an operable
       handgun in one’s home for the lawful purpose of self-defense, conduct that is at the core of
       the second amendment right. At issue here, however, are place and manner limits on carrying
       handguns outside of one’s home and on public land, conduct that is not at the core of the
       second amendment right. As the Heller Court acknowledged, “the right secured by the
       Second Amendment is not unlimited” and “was not a right to keep and carry any weapon
       whatsoever in any manner whatsoever and for whatever purpose.” Heller, 554 U.S. at 626.
¶ 72       Shortly after the Heller decision, this court used a rational-basis level of scrutiny to
       review constitutional challenges to the AUUW statute and found the statute constitutional.
       See People v. Williams, 405 Ill. App. 3d 958 (2010) (defendant’s AUUW conviction based
       on carrying a loaded handgun on a public street was constitutional under rational basis
       scrutiny). More recently, however, this court has discussed with approval the use of
       heightened scrutiny for reviewing second amendment challenges to statutory prohibitions on
       the right to bear arms. See Wilson, 407 Ill. App. 3d at 766-68; People v. Aguilar, 408 Ill.
       App. 3d 136, 145-46 (2011), pet. for leave to appeal allowed, No. 112116 (Ill. May 25,
       2011). Consistent with Wilson and Aguilar, we find that heightened scrutiny must be applied
       to the review of prohibitions on conduct falling with the scope of the right to bear arms. We
       also find that the appropriate level of heightened scrutiny will depend upon the type of
       protected conduct that is burdened and the severity of the restriction that is challenged. See
       Marzzarella, 614 F.3d at 98-101 (a statute forbidding possession of firearms with obliterated
       serial numbers did not severely limit the right to possess firearms, survived intermediate
       scrutiny and would pass muster even under strict scrutiny).
¶ 73       In Aguilar, this court adopted intermediate scrutiny as the appropriate standard to review
       the defendant’s second amendment challenge to his AUUW conviction, which was based on
       his carrying a loaded firearm at a time when he was not in his own home or place of business.
       Aguilar, 408 Ill. App. 3d at 145-46. A majority of the court concluded that the statute’s
       purpose–to allow the State to seek a harsher penalty for violators because of the inherent
       dangers to police officers and the general public–was substantially related to that important
       governmental objective and the fit between the statute and that objective was reasonable. Id.
       at 146.
¶ 74       The intermediate scrutiny inquiry asks whether the challenged law served a significant,
       substantial or important governmental interest, and, if so, whether the fit between the
       challenged law and the asserted objective was reasonable, not perfect. Wilson, 407 Ill. App.
       3d at 767. A reasonable fit “represents not necessarily the single best disposition but one
       whose scope is ‘in proportion to the interest served.’ ” Board of Trustees of the State
       University of New York v. Fox, 492 U.S. 469, 480 (1989) (quoting In re R.M.J., 455 U.S.
       191, 203 (1982)). Similar to Aguilar, the conduct at issue here–carrying an uncased, loaded
       and immediately accessible handgun on a public street–is not the type of core conduct like
       self-defense of hearth and home that is central to the second amendment guarantee. See
       Heller, 554 U.S. at 595 (the second amendment does not “protect the right of citizens to carry
       arms for any sort of confrontation” (emphasis in original)). We find that intermediate
       scrutiny is the appropriate level of scrutiny to apply to the second amendment challenge at
       issue here.

                                               -17-
¶ 75       First, we consider whether the statutory provisions against carrying uncased, loaded and
       accessible firearms in public on the street serve a significant, substantial or important
       government interest. In People v. Marin, 342 Ill. App. 3d 716, 723-24 (2003), this court
       looked at the history and language of the AUUW statute and determined that its overall
       purpose is to protect the public and police enforcement officers from the inherent dangers
       and threats to safety posed by any person carrying in public a loaded and immediately
       accessible firearm on his person or in his vehicle. Comments made during the legislative
       debate indicated that the AUUW statute addressed the broad issue of public concern
       regarding whether any people, not just street gang members, should have a gun easily
       accessible when they were stopped by police officers. Id. at 723. To accomplish the goals of
       safety and good order of society, the legislature regulated the possession and use of firearms
       not only by certain dangerous types of people, but also “by prohibiting the accessibility to
       loaded weapons in public places by society at large.” Id.
¶ 76       The Marin court noted that the statute intended to “prevent situations where no criminal
       intent existed, but criminal conduct resulted despite the lack of intent, e.g., accidents with
       loaded guns on public streets or the escalation of minor public altercations into gun battles
       or *** the danger of a police officer stopping a car with a loaded weapon on the passenger
       seat.” Id. at 727. The court noted that even innocent motivations could be transformed “into
       culpable conduct because of the accessibility of weapons as an outlet for subsequently
       kindled aggression.” Id. Consequently, even the innocent “activity of possessing or
       transporting an accessible and loaded weapon is itself dangerous and undesirable, regardless
       of the intent of the bearer since it may lead to the endangerment of public safety.” Id.
       Promoting and ensuring the safety of both the general public and police officers by limiting
       the accessibility of loaded firearms in public places and on public streets constitutes a
       substantial or important interest. See Aguilar, 408 Ill. App. 3d at 146; see also People v.
       Ross, 407 Ill. App. 3d 931, 942 (2011) (the government has an inherent and lawful power of
       restraint upon private rights as necessary and appropriate to promote society’s health,
       comfort, safety and welfare even though the prohibitions invade an individual’s right of
       liberty).
¶ 77       Next, we consider the fit between the challenged AUUW provision and its substantial
       and important goals. Defendant complains that the AUUW statute makes it impossible for
       law-abiding citizens to carry operable and loaded firearms in public for the lawful purpose
       of self-defense should a confrontation with another person arise. However, the carrying of
       uncased, loaded and accessible firearms in public on the street, even if for the purpose of
       self-defense, poses unusual and grave dangers to the public, particularly innocent bystanders
       who may be severely or fatally injured by stray bullets. Courts frequently hear cases
       involving claims of self-defense where unintended victims were shot, injured or killed. See,
       e.g., People v. Figueroa, 381 Ill. App. 3d 828 (2008) (the defendant asserted he acted in self-
       defense when he fired a gun at rival street gang members during a car chase, but the
       unintended victim, a 12-year-old boy playing baseball with his younger brother, was shot in
       the chest by a stray bullet and killed). Furthermore, devastating consequences have resulted
       when the bearer of a firearm shot a perceived offender or threat in public but was mistaken
       about the need for self-defense. See, e.g., Daniels v. Police Board, 338 Ill. App. 3d 851

                                                -18-
       (2003) (following a car chase, an unarmed passenger, who ignored police officers’
       instructions to show her hands and exit the car, was shot and killed by a police officer who
       saw a silver object and mistakenly thought the passenger was reaching for a gun). Even here,
       defendant alleged that he fired his gun at Richardson because defendant mistakenly thought
       Richardson was reaching for a gun.
¶ 78        Defendant argues that the challenged prohibition is not limited to individuals carrying
       a firearm in a sensitive place, like a school or government building. According to defendant,
       the Heller Court could not have intended that “sensitive places” meant everywhere except
       one’s own home, land and fixed place of business. Defendant’s argument, however, is not
       persuasive. The prohibition at issue here does not criminalize the carrying of firearms
       everywhere outside the individual’s home, land or fixed place of business. Rather, the
       prohibition impacts the individual right to self-defense based upon factors concerning both
       where the firearm is carried and the manner in which it is carried. Specifically, if an
       individual is not on his land or in his home or place of business, then the gun cannot be
       carried uncased, loaded and in an accessible manner.
¶ 79        Contrary to defendant’s assertion that the AUUW imposes a “blanket prohibition” on
       carrying firearms outside the home, the statute is limited to preventing the carrying of loaded,
       uncased and accessible firearms in public on the street. Certainly, the prohibited place at
       issue here, i.e., in public on the street, is broad. Nevertheless, the prohibition is justified by
       the potential deadly consequences to innocent members of the general public when someone
       carrying a loaded and accessible gun is either mistaken about his need for self-defense or just
       a poor shot.
¶ 80        Defendant also argues that the challenged provisions of the AUUW statute are not
       necessary to protect the public because other provisions of the Criminal Code are more than
       adequate to satisfy the State’s interest in deterring the use of firearms in violent crimes.
       Defendant cites, for example, the State’s ability to prohibit possession of firearms by felons,
       the mentally ill, most minors, those possessing illegal drugs, those not complying with
       reasonable registration requirements, and those engaged in street-gang activity. We do not
       agree. As discussed above, the purpose of the AUUW statute is to advance public and police
       officer safety by eliminating the inherent threats posed by loaded and accessible firearms in
       public on the street. Certainly, the statutory prohibitions that defendant cites with approval
       are necessary components of the overall scheme to achieve the statute’s goal of safety.
       Nevertheless, if the challenged provisions at issue here were stricken from the statute, that
       omission would defeat the statute’s purpose of protecting the general public and police
       officers from the dangers of firearms in public places. Absent the challenged provisions, the
       statute would fail to prevent situations where criminal conduct was not intended but resulted
       nevertheless. See Marin, 342 Ill. App. 3d at 727.
¶ 81        We are not persuaded by defendant’s implication that allowing an individual to carry a
       loaded and immediately accessible firearm in public for the lawful purpose of self-defense
       is not very different from that same individual’s fundamental right to have a loaded and
       accessible handgun at home for the lawful purpose of self-defense. In his home, an individual
       generally may be better able to accurately assess a threat to his safety due to his familiarity
       with his surroundings and knowledge of his household’s occupants. In public, however, there

                                                 -19-
       is no comparable familiarity or knowledge, and, thus, an increased danger that an individual
       carrying a loaded firearm will jump to inaccurate conclusions about the need to use a firearm
       for self-defense. The extensive training law enforcement officers undergo concerning the use
       of firearms attests to the degree of difficulty and level of skill necessary to competently
       assess potential threats in public situations and moderate the use of force.
¶ 82       Consequently, we find that the fit between the challenged provisions of the AUUW
       statute and the statute’s substantial and important goal is absolutely reasonable although
       arguably somewhat imperfect. Accordingly, defendant’s AUUW conviction must stand
       because the challenged statutory provisions do not violate either the second amendment or
       the Illinois Constitution. Illinois is not bound to interpret the Illinois Constitution provisions
       in lockstep with the Supreme Court’s interpretation of the federal constitution. People v.
       Mitchell, 165 Ill. 2d 211, 217 (1995). However, while states are free to provide more
       protection than the U.S. Constitution requires, states may not provide less. Simmons v. South
       Carolina, 512 U.S. 154, 174 (1994) (Souter, J., concurring, joined by Stevens, J.); California
       v. Ramos, 463 U.S. 992, 1014 (1983). Defendant cites no authority to persuade us that the
       protection of his right to bear arms under the Illinois Constitution is greater than that afforded
       under the second amendment.

¶ 83                                   F. Fines, Fees and Costs
¶ 84       Finally, defendant challenges the trial court’s imposition of various fines, fees and costs.
       The State concedes and we agree that the following fees or fines should be vacated as a
       matter of law: a $25 court supervision fee (625 ILCS 5/16–104c (West 2006)); a $5 drug
       court fee (55 ILCS 5/5–1101(f) (West 2006)); a $30 Children’s Advocacy Center fine (55
       ILCS 5/5–1101(f–5) (West 2008)); and a $100 trauma fund fine (730 ILCS 5/5–9–1.10 (West
       2004)). Accordingly, we vacate these charges, which total $160.
¶ 85       In addition, defendant asserts, the State concedes, and we agree that defendant is entitled
       to receive credit for time served in presentence custody to satisfy his $10 mental health court
       fine and $5 youth diversion/peer court fine. Because defendant accrued at least 1,040 days
       of credit for time he spent in presentence custody (725 ILCS 5/110–14(a) (West 2004)), he
       is entitled to at least $5,200 credit against any creditable fines. The $10 mental health court
       and $5 youth diversion/peer court fines are the only creditable fines in this case. See People
       v. Jones, 223 Ill. 2d 569, 582, 699 (2006) (fines are part of the punishment for a conviction,
       whereas fees are intended to reimburse the State for a cost incurred in the defendant’s
       prosecution). Consequently, we offset defendant’s $10 mental health court and $5 youth
       diversion/peer court fines with his days of accrued presentence credit.
¶ 86       We do not agree, however, with defendant’s claim that the trial court erroneously
       imposed the $50 court system fee. This fee was properly assessed against defendant because
       he was found guilty of felony offenses. 55 ILCS 5/5–1101(c) (West 2004). The trial court’s
       order, however, erroneously states that this fee was imposed under section 5–1101(b) of the
       Counties Code (55 ILCS 5/5–1101(b) (West 2008)), which is not applicable here.
       Consequently, we correct that portion of the trial court’s order to reflect the imposition of the
       fee under section 5–1101(c) of the Counties Code.


                                                 -20-
¶ 87                                   III. CONCLUSION
¶ 88       Accordingly, we affirm defendant’s attempted first degree murder conviction, one of his
       two AUUW convictions, and the sentences imposed on those convictions. We vacate,
       however, his convictions and sentences for the aggravated battery with a firearm offense and
       the second AUUW offense. We also affirm the imposition of the $50 court system fee, vacate
       the imposition of the other challenged fees totaling $160, and offset the fines totaling $15
       with accrued presentence credit.
¶ 89       Affirmed in part and vacated in part.




                                              -21-
