                                   2014 IL App (1st) 102939

                                                                            SECOND DIVISION
                                                                               February 4, 2014




No. 1-10-2939



THE PEOPLE OF THE STATE OF ILLINOIS,                        )       Appeal from the
                                                            )       Circuit Court of
                      Plaintiff-Appellee,                   )       Cook County
                                                            )
v.                                                          )       No. 08 CR 4591
                                                            )
ONAFFIA McFADDEN,                                           )       Honorable
                                                            )       Sharon Sullivan,
                      Defendant-Appellant.                  )       Judge Presiding.



       JUSTICE PIERCE delivered the judgment of the court, with opinion.
       Justices Neville and Mason concurred in the judgment and opinion.


                                            OPINION


¶1     Following a bench trial in the circuit court of Cook County, the trial judge found

defendant Onaffia McFadden guilty of three armed robberies while armed with a firearm (720

ILCS 5/18-2(a)(2) (West 2008)) and two counts of unlawful possession or use of a weapon

(UUW) by a felon (720 ILCS 5/24-1.1(a) (West 2008)). The trial judge sentenced defendant to

29 years in prison on each of the armed robbery convictions, including a 15-year enhancement

for carrying a firearm pursuant to section 18-2(b) of the Criminal Code of 1961 (Code) (720
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ILCS 5/18-2(b) (West 2008)). The trial judge also sentenced defendant to 10 years in prison on

each of the convictions for UUW by a felon. All of the sentences were ordered to be served

concurrently.

¶2     On appeal, defendant contends that: (1) the 15-year statutory enhancement of his armed

robbery sentences is unconstitutional; (2) his sentence is otherwise excessive; (3) one of his

convictions for UUW by a felon violates the one-act, one-crime rule; and (4) the mittimus must

be corrected to remove an erroneous conviction for aggravated unlawful use of a weapon

(AUUW). For the foregoing reasons, we affirm defendant's convictions and sentences for

armed robbery, vacate defendant's convictions for UUW by a felon, and correct the mittimus.

¶3                                     BACKGROUND

¶4     An explanation of the procedural posture of this case is important where the original

opinion in this case was filed more than a year ago. In People v. McFadden, 2012 IL App (1st)

102939, which we are withdrawing contemporaneous with the filing of this opinion, Justice

Steele authored an opinion vacating the 15-year enhanced portion of defendant's armed robbery

sentences, vacating one of his convictions for UUW by a felon, correcting the mittimus, and

remanding the case for resentencing. Justice Steele retired shortly after filing that opinion. The

State then filed a timely petition for rehearing on January 11, 2013. Defendant filed an answer

to the State's petition for rehearing on December 12, 2013, and the State filed a reply on

December 27, 2013. In separate orders filed contemporaneously, we deny the State's petition for

rehearing and withdraw the previous opinion filed in this case.

¶5     The record on appeal discloses the following facts. On March 5, 2008, defendant was

indicted in case number 08 CR 4591 for the armed robbery of Ronald Pitts and Jasmine



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Stephens, as well as for AUUW and UUW. Defendant was also charged in case number 08 CR

4592 for the armed robbery of Henry Muldrow, as well as AUUW and UUW. In case number 08

CR 3647, defendant was indicted for the armed robbery of Iris Talley, in addition to AUUW and

UUW.

¶6     Prior to trial, and over defense counsel's objection, the State successfully moved to join

the Muldrow and Talley cases, arguing that they involved "essentially one crime spree." The

State later moved for joinder of all three cases, again over the defense's objection, arguing that

they were part of the same comprehensive transaction. The trial court granted the motion, on the

grounds that the offenses were similar and occurred relatively close in time and location, the

same weapon was alleged to have been involved in all three cases, and the proceeds from the

crimes were allegedly found at the same time in a vehicle with defendant.

¶7     The case proceeded to a bench trial. Pitts testified that shortly after midnight on January

28, 2008, he and Stephens were standing at a bus stop at 7900 South Princeton Avenue when two

African-American males approached them. Pitts stated that one of the men, whom Pitts

identified in court as defendant, held a revolver to his neck and took his telephone, wallet, and

money. Pitts further testified that defendant also took Stephens's telephone. After defendant left,

Pitts flagged down a police car, and he and Stephens reported the offense to the police.

¶8     Moreover, Pitts testified that he was contacted by the police the next day and identified

defendant in a lineup, as well as his stolen telephone, wallet and money. At trial, Pitts identified

defendant in a photograph of the lineup. He also identified the gun used during the robbery in a

photograph shown as an exhibit at trial.

¶9     Stephens did not testify at trial.



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¶ 10   Muldrow testified that in the late evening of January 28, 2008, he was looking for his dog

in an alley near his home at 6840 South Wabash Avenue when two African-American males

approached him. Muldrow stated that one of the men, whom he later identified as Defendant,

had his hand in his right pocket. Muldrow further testified that defendant pulled a gun out of that

pocket and put the barrel to Muldrow's chest. According to Muldrow, defendant asked for

money and Muldrow responded that he did not think he had any. Muldrow stated that defendant

searched him and, upon finding $4 or $5 dollars, said "I could have shot you for that." In

addition to the money found on Muldrow, defendant also took Muldrow's telephone. After the

men left, Muldrow went inside and telephoned the police.

¶ 11   Approximately 15 minutes later, the police telephoned Muldrow and brought him to the

police station, where he identified defendant in a lineup. Muldrow also identified the telephone

and currency taken from him.

¶ 12   Chicago police officer Anthony Bruno testified that shortly after midnight on January 29,

2008, he and his partner were in an unmarked police car near 6800 South Wabash Avenue when

they were flagged down by Talley. Officer Bruno's partner, Andrew Janik, testified that Talley

said that he was robbed. After speaking to Talley, the officers curbed a beige Chevy Cobalt near

319 East Marquette Road. The police commanded the driver and passenger to show their hands.

Officer Bruno testified that the driver, Herman Climons, showed his hands, while the passenger,

defendant, leaned forward and made movements toward the glove box. Officer Bruno further

testified that he saw the glove box open, revealing a revolver inside. Officer Bruno handcuffed

defendant, while his partner removed Climons from the automobile.




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¶ 13   Moreover, Officer Bruno testified that police brought Talley to the scene, whereupon

Talley identified Defendant, but not Climons. Officer Bruno found several telephones, a wallet,

a videogame and cash in Defendant's pockets. Officer Bruno also retrieved the revolver from the

glove box, discovering it was loaded with six live rounds. Talley did not testify at trial.

¶ 14   Chicago police detective Henry Barsch testified that Muldrow and Pitts identified

defendant in lineups (Muldrow failed to identify Climons). Detective Barsch also testified that

he and Detective Matthew Weber spoke to defendant, who indicated that he wanted to speak to

an assistant State's Attorney. In stipulated testimony from Detective Weber, he stated that the

police asked defendant whether he wanted to give a written statement.

¶ 15   Assistant State's Attorney (ASA) Maureen Renno testified that, in the presence of the

detectives, defendant gave a written statement inculpating himself in the armed robbery of Pitts

and Stephens.

¶ 16   The parties stipulated that defendant had a prior AUUW conviction.

¶ 17   Following the close of the State's case, the trial judge granted the defense motion for a

directed verdict in the Talley case. Following the close of evidence, the State referred to

defendant's "crime spree" and urged the trial judge to find defendant guilty of the "gun charges in

this case" in closing argument.

¶ 18   The trial judge, after reviewing the evidence, found defendant guilty of the armed

robberies of Pitts, Stephens and Muldrow. In the Pitts and Stephens case, the trial judge found

defendant guilty of one count of UUW by a felon. In the Muldrow case, the trial judge found

defendant guilty of one count of UUW by a felon.




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¶ 19   Defendant filed a motion for new trial, which the trial court denied on August 20, 2010,

before proceeding to a sentencing hearing. After hearing evidence in aggravation and mitigation,

the trial judge sentenced defendant to 29 years in prison on each of the three armed robbery

convictions, including a 15-year statutory enhancement for carrying a firearm pursuant to section

18-2(b) of the Code (720 ILCS 5/18-2(b) (West 2008)). The trial judge also sentenced defendant

to 10 years in prison on both of the convictions for UUW by a felon. The trial judge ordered the

sentences to run concurrently.

¶ 20   On September 3, 2010, defendant filed a motion to reconsider his sentence. The trial

judge denied the motion on the same day. On September 17, 2010, Defendant filed a timely

notice of appeal.

¶ 21                                      DISCUSSION

¶ 22                          I. The One-Act, One-Crime Rule

¶ 23   As a threshold matter, we consider defendant's argument that his two convictions for

UUW by felon must be vacated under the one-act, one-crime rule set forth in People v. King, 66

Ill. 2d 551, 566 (1977). Defendant concedes that he forfeited review of the issue by failing to

object at trial and failing to include the issue in a posttrial motion. People v. Enoch, 122 Ill. 2d

176, 187 (1988). However, he requests that we review the matter for plain error. The plain-error

rule is a limited exception to the forfeiture rule and may be invoked only if the evidence is

closely balanced or if the alleged error is so fundamental that it may have deprived the defendant

of a fair trial or sentencing hearing. People v. Herrett, 137 Ill. 2d 195, 209-10 (1990).

"[F]orfeited one-act, one-crime arguments are properly reviewed under the second prong of the




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plain-error rule because they implicate the integrity of the judicial process." People v. Nunez,

236 Ill. 2d 488, 493 (2010) (citing People v. Artis, 232 Ill. 2d 156, 167-68 (2009)).

¶ 24   The one-act, one-crime doctrine 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). Thus, the first step is

to determine whether the defendant's conduct consisted of a single physical act or separate acts.

People v. Harvey, 211 Ill. 2d 368, 389 (2004). "Multiple convictions are improper if they are

based on precisely the same physical act." People v. Rodriguez, 169 Ill. 2d 183, 186 (1996). Our

supreme court has defined an "act" as " 'any overt or outward manifestation which will support a

different offense.' " Rodriguez, 169 Ill. 2d at 188 (quoting King, 66 Ill. 2d at 566). We consider

this issue de novo. People v. Peacock, 359 Ill. App. 3d 326, 331 (2005).

¶ 25   Both defendant and the State rely on People v. Crespo, 203 Ill. 2d 335, 345 (2001). In

Crespo, the defendant was convicted of the first degree murder of one victim and one count each

of armed violence and aggravated battery in the stabbing of a second victim. Id. at 337. On

appeal to our supreme court, the defendant argued that his conviction for aggravated battery

should be vacated because it stemmed from the same physical act as the armed violence charge.

Id. Although the defendant had stabbed the second victim three times, and each stabbing was a

separate and distinct act, the State did not charge defendant for the three separate stabbings in the

indictment. Id. at 340-42. Instead, the different counts in the indictment charged the defendant

under different theories of criminal culpability for the same course of conduct, namely, the three

stabbings. Id. at 342. Moreover, the State's theory at trial, as shown by its argument to the jury,

showed that the State intended to portray the defendant's conduct as a single attack. Id. at 343-



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44. The Crespo court emphasized that the State could have charged the crime as multiple acts,

and could have argued the case to the jury that way, but chose not to do so; the court would not

allow the State to change its theory of the case on appeal. Id. at 344. Accordingly, our supreme

court held that where a defendant commits multiple criminal acts, but the indictment only

charges the defendant for a single course of conduct, the trial court cannot then convict the

defendant for separate criminal acts. This is true even if multiple theories of culpability are

presented. Id. at 345.

¶ 26   Here, defendant argues that the State treated the events at issue as one "crime spree" and

as parts of the same comprehensive transaction. The State acknowledges that the cases against

defendant were consolidated on the grounds that the offenses were similar and occurred

relatively close in time and location, the same weapon was alleged to have been involved in all

three cases, and the proceeds from the crimes were allegedly found at the same time in a vehicle

with defendant. Nevertheless, the State notes that the UUW by a felon charges were brought

against defendant in separate indictments and the robberies and were addressed and argued as

distinct events at trial. The State also notes that, "[i]n deciding whether defendant's conduct in a

particular instance constituted separate acts or merely formed distinct parts of a single physical

act, reviewing courts have considered the identity of the victim and location, the similarity of the

acts and lack of a substantial time interval or intervening act between them, and prosecutorial

intent as reflected in the wording of the charging instrument." People v. Cobern, 236 Ill. App.

3d 300, 303 (1992) (citing People v. Baity, 125 Ill. App. 3d 50, 52-53 (1984)).

¶ 27   Defendant was twice convicted of violating section 24-1.1(a) of the Code (720 ILCS

5/24-1.1(a) (West 2008)), which makes it "unlawful for a person to knowingly possess on or



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about his person *** any firearm *** if the person has been convicted of a felony under the laws

of this State or any other jurisdiction." Although this section of the Code is titled "Unlawful Use

or Possession of Weapons by Felons or Persons in the Custody of the Department of Corrections

Facilities," the title does not supersede the express language of the statute. See Alvarez v.

Pappas, 229 Ill. 2d 217, 230-31 (2008). The unambiguous language of section 24-1.1(a) of the

Code plainly makes possession, not use, of a firearm the actus reus of the offense. Significantly,

the possession criminalized is not tied to the use of the weapon in the commission of any offense.

¶ 28   Possessory offenses have always posed special problems in determining violations of the

one-act, one-crime rule. People v. McCarter, 339 Ill. App. 3d 876, 881 (2003). The rule of

lenity provides that ambiguities in criminal statutes should be resolved in a defendant's favor, but

not "stretched so far as to defeat the legislature's intent." People v. Fields, 383 Ill. App. 3d 920,

922 (2008). In construing a statute, we presume that the legislature did not intend absurd,

inconvenient, or unjust results. People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 280 (2003).

¶ 29   In this case, unlike the easily separable acts at issue in Crespo, allowing seemingly

continuous possession as the basis of more than one conviction theoretically would permit a

potentially infinite number of convictions, as the defendant possessed the firearm from hour to

hour, minute to minute, nanosecond to nanosecond. We presume the legislature did not intend

that result. While the evidence here shows discrete armed robberies, there is no evidence that

defendant's act of possession of the firearm was anything other than singular and continuous

throughout the time at issue. Thus, we conclude that defendant's convictions for UUW by a

felon are based on the same physical act. Accordingly, one of defendant's convictions for UUW

by a felon must be vacated.



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¶ 30      In addition, the State concedes that the mittimus in case number 08 CR 4592 erroneously

reflects that defendant was convicted of AUUW, rather than UUW by a felon. Therefore, we not

only vacate defendant's conviction for UUW by a felon in case number 08 CR 4592, but we also

correct the mittimus in that case to remove the erroneous conviction for AUUW pursuant to

Illinois Supreme Court Rule 615. See, e.g., People v. Hill, 408 Ill. App. 3d 23, 31 (2011).

¶ 31       II. The Sentence Enhancement for Armed Robbery While Carrying a Firearm

¶ 32      In his opening brief, defendant argued that the 15-year statutory enhancement of his

armed robbery sentences under section 18-2(b) (720 ILCS 5/18-2(b) (West 2008)) was

unconstitutional. Defendant acknowledged that he did not raise the issue in the trial court but

argued that a constitutional challenge to a statute may be raised at any time and is subject to de

novo review. People v. Robinson, 2011 IL App (1st) 100078, ¶ 12. A statute bears a strong

presumption that it is constitutional; defendant bears the burden of overcoming that presumption

and clearly showing that the statute is unconstitutional. People v. Sharpe, 216 Ill. 2d 481, 487

(2005).

¶ 33      As defendant correctly noted, the 15-year firearm sentencing enhancement for armed

robbery was declared unconstitutional in People v. Hauschild, 226 Ill. 2d 63, 87 (2007) (a 15-

year sentence enhancement for armed robbery while armed with a firearm, imposed under the

same armed robbery statute as in the instant case, violated the proportionate-penalties clause of

the Illinois Constitution (Ill. Const. 1970, art. I, § 11), because the penalty for that offense was

"more severe than the penalty for the identical offense of armed violence predicated on robbery

with a category I or category II weapon."). The State countered that the legislature subsequently

passed a statutory amendment (Pub. Act 95-688, § 4 (eff. Oct. 23, 2007)), reviving the



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sentencing enhancement. The parties recognized a split in the districts as to whether the

sentencing enhancement had been revived (First and Fifth Districts ruled that Public Act 95-688

revived the 15-year enhancement in the armed robbery statute in People v. Malone, 2012 IL App

(1st) 110517, ¶ 90, People v. Brown, 2012 IL App (5th) 100452, ¶¶ 15-16, and People v.

Williams, 2012 IL App (1st) 100126, ¶ 55 (dicta), and the Third and Fourth Districts held that

the statutory amendment did not revive the sentencing enhancement, which was found to be

unconstitutional and void ab initio under Hauschild in People v. Blair, 2012 IL App (3d)

100743-U, ¶ 5, appeal allowed, No. 114122 (Ill. May 30, 2012) and People v. Gillespie, 2012 IL

App (4th) 110151, ¶ 54).

¶ 34   Following this court's determination in this case that the 15-year sentencing enhancement

was not revived by Public Act 95-688, and therefore remained unconstitutional pursuant to

Hauschild, the State filed a petition for rehearing. While the petition for rehearing was pending,

our supreme court resolved the issue of whether Public Act 95-688 revived the 15-year

sentencing enhancement in People v. Blair, 2013 IL 114122, ¶¶ 27-38. The Blair court held that

because the proportionate penalties problem was eliminated by the enactment of Public Act 95-

688, the offense of armed robbery while armed with a firearm was revived and therefore the use

of the statutory enhanced sentencing range for that offense was not unconstitutional. In

accordance with Blair, we hold that Public Act 95-688 effectively revived section 18-4(a)(4) of

the Code and therefore the 15-year sentence enhancement imposed in this case is constitutional.

Id. ¶¶ 27-38; 720 ILCS 5/18-4(a)(4) (West 2008).

¶ 35                                  III. UUW by a Felon




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¶ 36   For the first time in a supplemental brief filed subsequent to the State's petition for

rehearing, defendant argues that under People v. Aguilar, 2013 IL 112116, this court must vacate

his remaining conviction for UUW by a felon because the underlying predicate felony of AUUW

(case No. 02 CR 30903) under section 5/24-1.6(a)(1)(a)(3)(A) is void and unconstitutional.

Defendant's argument amounts to a challenge to the sufficiency of the evidence supporting his

UUW by a felon conviction.

¶ 37   Both counts under which defendant was convicted for UUW by a felon charged that

defendant knowingly possessed a firearm after having previously been convicted of the Class 4

form of AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A)(d)(West 2002)) in case number 02 CR

30903. As previously stated, at trial, the parties stipulated to defendant's prior AUUW

conviction. While we previously vacated one of his convictions for UUW by a felon under the

one-act, one-crime rule, defendant remains convicted of one count of UUW by a felon.

¶ 38   In Aguilar, 2013 IL 112116 ¶ 22, our supreme court found the Class 4 version of the

AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A)(d) (West 2008)) to be unconstitutional in

violation of the second amendment right to bear arms. When a statue is declared

unconstitutional, it is void ab initio, or as though the law had never been passed. See People v.

Tellez-Valencia, 188 Ill. 2d 523, 526 (1999). Defendant maintains that because his prior

conviction for AUUW under case No. 02 CR 30903 is void under Aguilar, the State could not

rely on this now-void conviction to serve as a predicate offense for UUW by a felon. Therefore,

it failed to prove an essential element of the offense. In support of his argument, defendant has

cited the recent case of People v. Dunmore, 2013 IL App (1st) 121170.




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¶ 39   In Dunmore, the defendant pled guilty and was convicted of one count of AUUW and

was sentenced to 18 months' probation. After a subsequent finding that the defendant violated

the terms of his probation, the probation was revoked and the defendant was sentenced to two

years' imprisonment. The defendant appealed the revocation of probation and while his appeal

was pending, the Illinois Supreme Court decided Aguilar, 2013 IL 112116. Dunmore, 2013 IL

App (1st) 121170, ¶ 1. The defendant maintained that based on Aguilar, his conviction and

subsequent probation revocation should be vacated. The State agreed, but requested that the case

be remanded so that it could reinstate the charges that had been nol-prossed as part of the

defendant's guilty plea. The defendant then asked this court to leave the void conviction for

AUUW and sentence of probation in place, and limit our consideration solely to the subsequent

revocation of probation. Dunmore, 2013 IL App (1st) 121170, ¶ 7.

¶ 40   In accordance with Aguilar, the Dunmore court vacated the defendant's conviction for

AUUW because it was void, noting that it had a duty to vacate the void conviction and not just

the subsequent revocation of probation. Id. ¶ 9. The court also declined the State's request to

remand the cause to the trial court subsequent to vacating the AUUW to allow the State to

reinstate nol-prossed charges. The court noted that it would not render an advisory opinion on

whether any reinstated charges would pass constitutional muster. Dunmore, 2013 IL App (1st)

121170, ¶ 12.

¶ 41   Although the procedural posture of Dunmore differs from this case, we nevertheless find

Dunmore to be instructive. Unlike the defendant's AUUW conviction in Dunmore, defendant's

conviction for AUUW in No. 02 CR 30903 is not at issue here, nor do we make any findings as

to whether Aguilar would be applicable to that conviction on a collateral attack. However,



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because defendant's case is pending on direct appeal in this court, similar to the court in

Dunmore we cannot ignore Aguilar's effects on his conviction for UUW by a felon. Dunmore,

2013 IL App (1st) 121170 ¶ 10; see also People v. Gersch, 135 Ill. 2d 384, 397 (1990) (judicial

decisions that declare a statute unconstitutional apply to cases pending on direct review).

¶ 42   The specific offense of UUW by a felon with which defendant was charged in this case,

makes it "unlawful for a person to knowingly possess on or about his person *** any firearm ***

if the person has been convicted of a felony under the laws of this State or any other

jurisdiction." (720 ILCS 5/24-1.1(a) (West 2008)). Count VI of the indictment alleged that

defendant committed the offense of UUW by a felon when defendant knowingly possessed a

firearm after having previously been convicted of AUUW (720 ILCS 5/24-1.6(a)(1) (West

2002)) in case number 02 CR 30903, the same Class 4 form of AUUW that defendant Aguilar

was convicted of and which our supreme court found to be facially unconstitutional. Aguilar,

2013 IL 112116, ¶ 22. The parties stipulated to this prior conviction during trial. Although the

record shows that defendant has a felony conviction for a drug offense in case 04 CR 2816001,

in which he pled guilty and received six years' imprisonment, no other felony convictions other

than the 2002 AUUW were offered to establish the "has been convicted of a felony" element of

the offense of UUW by a felon either in the indictment or at trial. Illinois law has long held that,

in prosecutions for the offense of UUW by felon, the prior felony conviction is an element of the

offense which must be proven beyond a reasonable doubt by the State in its case in chief. See

People v. Walker, 211 Ill. 2d 317 (2004) (recognizing that the prior felony conviction is an

element of the offense of our UUW by felon statute and adopting the reasoning of Old Chief v.

United States, 519 U.S. 172 (1997)).



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¶ 43   Similar to Dunmore, we cannot allow defendant's Class 4 AUUW conviction, which we

now know is based on a statute that was found to be unconstitutional and void ab initio in

Aguilar, to stand as a predicate offense for defendant's UUW by a felon conviction. The State

alleged and was required to prove the predicate felony Class 4 AUUW beyond a reasonable

doubt as an element of the offense of UUW by a felon. Because this issue was raised while

defendant's appeal was pending, we are bound to apply Aguilar and vacate defendant's remaining

UUW by a felon conviction because the State did not prove an essential element of the offense

where it alleged in the charging instrument and proved at trial a predicate offense that has been

declared unconstitutional and void ab initio. A void conviction for the Class 4 form of AUUW

found to be unconstitutional in Aguilar, cannot now, nor can it ever, serve as a predicate offense

for any charge.

¶ 44   We want to make it clear that we are not vacating defendant’s AUUW conviction in No.

02 CR 30903 pursuant to Aguilar. We decline to address whether formal proceedings for

collateral relief may be available to defendant to vacate his conviction in that case. We also

decline to issue an advisory opinion as to Aguilar’s retroactivity to cases on collateral review and

as to whether the State could reinstate the charges it had dismissed in No. 02 CR 30903 in the

event defendant is successful in vacating that conviction. See Dunmore, 2013 IL App (1st)

121170, ¶ 12.

¶ 45                                   IV. Excessive Sentence

¶ 46   Defendant next argues that his two concurrent 29-year sentences for armed robbery,

which include the 15-sentence enhancement, are excessive. In addition, in his supplemental brief

filed following the State's petition for rehearing, defendant argues that this court should take into



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consideration that without his prior AUUW conviction, which is now void under Aguilar, he

only has one prior felony conviction in his background.

¶ 47   A trial court has broad discretionary powers in choosing the appropriate sentence a

defendant should receive. People v. Jones, 168 Ill. 2d 367, 373 (1995). A reasoned judgment

regarding the proper sentence to be imposed must be based upon the particular circumstances of

each individual case and depends upon many factors, including the defendant's credibility,

demeanor, general moral character, mentality, social environment, habits and age. People v.

Perruquet, 68 Ill. 2d 149, 154 (1977). "In determining an appropriate sentence, the defendant's

history, character, rehabilitative potential, the seriousness of the offense, the need to protect

society and the need for deterrence and punishment must be equally weighed." People v. Jones,

295 Ill. App. 3d 444, 455 (1998). There is a strong presumption that the trial court based its

sentencing determination on proper legal reasoning, and the court is presumed to have

considered any evidence in mitigation that is before it. People v. Partin, 156 Ill. App. 3d 365,

373 (1987). The imposition of a sentence is a matter within the trial court's discretion, and a

reviewing court has the power to disturb the sentence only if the trial court abused its discretion.

Jones, 168 Ill. 2d at 373-74.

¶ 48   We find no abuse of discretion in this case where the trial court sentenced defendant to

concurrent terms of 29 years' imprisonment for armed robbery. At sentencing, the court heard in

aggravation that defendant terrorized his victims. Defendant was an enforcer for the

Conservative Vice Lords gang and was responsible for securing gang territory. Defendant's

criminal history included a juvenile disposition for aggravated battery. Defendant had also been

convicted of aggravated battery, battery, resisting arrest, aggravated assault, criminal trespass to



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a vehicle, assault, driving under the influence and delivery of a controlled substance within 1000

feet of a school/park. In mitigation, the court was informed of defendant's troubled childhood

and his struggles with alcohol and drug additions. Defendant was abused by his father and

grandfather. He was hospitalized as a child due to emotional and behavioral issues. Defendant

received a GED and at one time was enrolled in a culinary management program. In imposing

sentence, the court indicated that it had considered the evidence that was presented at trial, the

pre-sentence investigation report, defendant's background and history, the evidence offered in

aggravation and mitigation (see 730 ILCS 5/5-5-3.1, 3.2 (West 2008)), the arguments, the

sentencing alternatives suggested by the parties, and the statements of defendant and his mother.

The court also noted that defendant apologized and took responsibility for his actions.

¶ 49   The supreme court has clearly stated that a factor inherent in an offense should not also

be used as an aggravating factor at sentencing. People v. Conover, 84 Ill. 2d 400, 404 (1981).

Therefore, contrary to defendant's argument, the trial court could not have considered his 2002

conviction for AUUW as a factor in aggravation, where it was used to establish an element of the

offense of UUW by a felon.

¶ 50   A proper penalty must be based upon the particular circumstances of each case, including

the nature and extent of each element of the offense committed by the defendant. People v.

Saldivar, 113 Ill. 2d 256, 268-69 (1986). Notwithstanding that we vacated defendant's two

UUW by a felon convictions, the nature and circumstances giving rise to defendant's prosecution

and armed robbery with a gun convictions we find that, based on the record, the trial court

clearly considered all of the necessary factors in crafting a sentence specific to the offense of

armed robbery.



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       "When a defendant receives multiple convictions, a new sentencing hearing is not

       warranted when a conviction is vacated where there is nothing in the record to indicate

       that the vacated conviction had any effect on the other sentences. *** A reviewing court

       cannot conclude, solely from a trial court's imposition of separate sentences for multiple

       convictions, that the sentence imposed for one offense has been influenced by the

       conviction or sentence for another offense." People v. Shelton, 252 Ill. App. 3d 193, 209

       (1993) (citing People v. Payne, 98 Ill. 2d 45, 55 (1983)).

¶ 51   Furthermore, armed robbery is a Class X offense punishable by not less than 6 years and

not more than 30 years' imprisonment. 730 ILCS 5/5-8-1 (West 2008). The court imposed a 14-

year sentence on all the armed robbery counts, to which the 15-year enhancement was added,

because the court found that defendant used a firearm during the commission of the offenses. 720

ILCS 5/18-2(b) (West 2008). A sentence which falls within the statutory range is presumptively

proper and does not constitute an abuse of discretion unless it is manifestly disproportionate to

the nature of the offense. Hauschild, 226 Ill. 2d at 90. The sentences in this case are not

manifestly disproportionate to the nature of the offenses and are presumed proper as they fall

within the statutory range. Consequently we cannot say the trial court abused its discretion in

imposing the 29-year sentences.

¶ 52                                     CONCLUSION

¶ 53   For the foregoing reasons, we affirm defendant's convictions and sentences for armed

robbery, vacate both convictions for UUW by a felon, and correct the mittimus to remove the

erroneous conviction for AUUW.

¶ 54   Affirmed in part and vacated in part; mittimus corrected.



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