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                                Appellate Court                            Date: 2018.01.29
                                                                           15:34:27 -06'00'




                    People v. Smith, 2017 IL App (1st) 151643



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



District & No.     First District, First Division
                   Docket No. 1-15-1643



Filed              September 29, 2017
Rehearing denied   October 27, 2017



Decision Under     Appeal from the Circuit Court of Cook County, No. 13-CR-22324; the
Review             Hon. Erica L. Reddick, Judge, presiding.



Judgment           Affirmed in part and vacated in part; mittimus corrected.


Counsel on         Michael J. Pelletier, Patricia Mysza, and Darren E. Miller, of State
Appeal             Appellate Defender’s Office, of Chicago, for appellant.

                   Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                   John E. Nowak, and Margaret M. Smith, Assistant State’s Attorneys,
                   of counsel), for the People.



Panel              JUSTICE MIKVA delivered the judgment of the court, with opinion.
                   Justice Simon concurred in the judgment and opinion.
                   Justice Harris specially concurred, with opinion.
                                             OPINION

¶1       Following a bench trial, defendant Zachary Smith was convicted of being an armed
     habitual criminal (AHC) and for unlawful use of a weapon by a felon (UUWF). Mr. Smith
     was sentenced on the AHC charge to a prison term of six years, followed by three years of
     mandatory supervised release (MSR), and on the UUWF charge to a concurrent sentence of
     two years. On appeal, Mr. Smith argues that we must vacate his AHC conviction because one
     of the predicate convictions for that offense was for aggravated unlawful use of a weapon
     (AUUW), under a statutory provision later held by the Illinois Supreme Court to be facially
     unconstitutional. Mr. Smith alternatively asks us to correct his mittimus because—under the
     one-act, one-crime rule—he cannot be convicted of both AHC and UUWF based on the same
     act of possessing a firearm. For the reasons that follow, we affirm Mr. Smith’s AHC
     conviction and vacate his UUWF conviction.

¶2                                        BACKGROUND
¶3       Mr. Smith was charged in this case with one count of AHC—premised on his prior
     convictions for AUUW (case No. 09 CR 16524) and UUWF (case No. 07 CR 12576)—and
     three counts of UUWF. At his bench trial, the State introduced certified copies of both prior
     convictions. The State also presented the testimony of two Chicago police officers, who
     testified that on the evening of October 25, 2013, they entered an apartment to investigate a
     reported domestic battery and observed Mr. Smith with a gun in his hand. The officers
     arrested Mr. Smith and advised him of his Miranda rights. According to the officers, Mr.
     Smith explained to them that he was holding the gun because he thought the officers were
     members of his ex-girlfriend’s family coming to seek revenge against him for having
     battered her.
¶4       Two witnesses testified for the defense. Mr. Smith’s ex-girlfriend, Lakeisha Horton,
     testified that there was a party at her apartment on the afternoon of October 25, 2013.
     According to Ms. Horton, a fight broke out at the party, and she threatened to call the police.
     Those attending the party fled, leaving some of their possessions behind. When Mr. Smith
     later arrived to collect some clothing he had left at the apartment, he brought another woman
     with him, angering Ms. Horton and causing her to falsely report that he had battered her. Ms.
     Horton testified that there was a gun on the floor by the garbage can when officers arrived in
     response to her call, but it did not belong to Mr. Smith. Mr. Smith’s girlfriend, Laquita
     Handy, testified that she was the woman who accompanied Mr. Smith to Ms. Horton’s
     apartment to retrieve his clothing that day and, to her knowledge, he did not have a weapon
     with him at that time.
¶5       The trial court found the testimony of the officers to be more credible than that of the
     defense witnesses and found Mr. Smith guilty as charged. The court denied Mr. Smith’s
     post-trial motion and sentenced him to six years of imprisonment and three years of MSR on
     the AHC count, merged the remaining counts into a single count of UUWF, and sentenced
     him to a concurrent two-year sentence on that count. This appeal followed.




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¶6                                          JURISDICTION
¶7        The trial court sentenced Mr. Smith on May 7, 2015, and he filed his notice of appeal the
       same day. We therefore have jurisdiction pursuant to article VI, section 6, of the Illinois
       Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules 603 and 606,
       governing appeals from final judgments of conviction in criminal cases (Ill. S. Ct. Rs. 603,
       606 (eff. Feb. 6, 2013)).

¶8                                                ANALYSIS
¶9                                          A. Predicate Conviction
¶ 10       On appeal, Mr. Smith argues that his AHC conviction must be vacated because one of the
       two predicate convictions the State relied on to support that charge was pursuant to a
       statutory provision later held to be facially unconstitutional and thus void ab initio.
¶ 11       To support a conviction for AHC, the State must prove beyond a reasonable doubt that a
       defendant possessed a firearm after having been convicted two or more times of certain
       enumerated offenses, including AUUW and UUWF. 720 ILCS 5/24-1.7(a)(2) (West 2012).
       One of Mr. Smith’s two prior convictions was his 2009 conviction for AUUW, which he says
       was under the section of the Criminal Code of 1961 that prohibited the carrying of an
       “uncased, loaded, and immediately accessible” firearm outside the home. 720 ILCS
       5/24-1.6(a)(1), (a)(3)(A) (West 2008). In People v. Aguilar, 2013 IL 112116, ¶ 22—as
       clarified in People v. Burns, 2015 IL 117387, ¶¶ 22, 32—our supreme court struck down that
       portion of the AUUW statute as facially unconstitutional, concluding that it violated the right
       to keep and bear arms guaranteed by the second amendment to the United States
       Constitution.
¶ 12       Recently, in People v. McFadden, 2016 IL 117424, our supreme court considered the
       effect of its holding in Aguilar on a defendant’s subsequent conviction for UUWF, which
       required the State to prove that a defendant who “has been convicted of a felony” knowingly
       possessed a firearm (720 ILCS 5/24-1.1(a) (West 2008)). The defendant in that case claimed
       that his predicate felony conviction was under the portion of the AUUW statute held to be
       unconstitutional in Aguilar. McFadden, 2016 IL 117424, ¶ 16. The McFadden court began
       with the proposition that, “[w]hen a statute is held to be facially unconstitutional, the statute
       is said to be void ab initio, i.e., void from the beginning.” (Internal quotation marks omitted.)
       Id. ¶ 17. It noted that a defendant may not be prosecuted under a facially unconstitutional
       statute and, “as a remedy, must be allowed to apply the court’s declaration as a basis to
       vacate [the] judgment of conviction.” Id. ¶ 19. But the defendant in McFadden did not seek
       to vacate his prior AUUW conviction. Id. ¶ 21. He instead challenged his subsequent UUWF
       conviction, arguing that the State could not rely on his constitutionally invalid AUUW
       conviction as the predicate felony for the UUWF conviction. Id.
¶ 13       The McFadden court did not agree. Noting that its own precedent applying the void
       ab initio doctrine did not resolve the question, it looked to the United States Supreme Court’s
       decision in Lewis v. United States, 445 U.S. 55 (1980). McFadden, 2016 IL 117424, ¶ 22.
       There, the Court was asked to consider whether a prior felony conviction, which the
       defendant claimed was constitutionally infirm because he was unrepresented by counsel,
       could nevertheless be used by the government as the predicate felony for a charge that the
       defendant had violated the federal felon-in-possession-of-a-firearm statute. Lewis, 445 U.S.
       at 65. The McFadden court concluded that the plain language of the UUWF statute, like the

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       plain language of the statute at issue in Lewis, evidenced the legislature’s intent to subject a
       broad category of individuals to a prohibition on gun possession. McFadden, 2016 IL
       117424, ¶¶ 23, 28-29. In the McFadden court’s view, neither statute required the government
       to prove the predicate offense itself, but merely the defendant’s status as a convicted felon, a
       status that “ ‘[w]ould cease only when the conviction upon which the status depend[ed] ha[d]
       been vacated.’ ” Id. ¶ 29 (quoting Lewis, 445 U.S. at 61 n.5). Under McFadden, the burden is
       thus on a criminal defendant who has been convicted under a facially unconstitutional statute
       to clear his status as a felon through the judicial process to avoid future convictions
       predicated in part on that status. Id. ¶ 30.
¶ 14       Like the defendant in McFadden, Mr. Smith has not sought to vacate his prior AUUW
       conviction, but contends that it cannot properly serve as a predicate offense for a later
       conviction. Mr. Smith argues that we should not follow McFadden because it is inconsistent
       with the United States Supreme Court’s decisions in Montgomery v. Louisiana, 577 U.S. ___,
       136 S. Ct. 718 (2016), and Ex Parte Siebold, 100 U.S. 371 (1879). He also argues that the
       McFadden court’s reliance on Lewis is inapplicable here because the AHC statute requires
       the State to prove more than just a defendant’s status as a convicted felon. In response, the
       State insists that McFadden unequivocally dictates the result in this case.
¶ 15       For the reasons discussed below, we agree with the State—and with the other panels of
       this court that have considered this issue—that we are bound by precedent to affirm Mr.
       Smith’s AHC conviction. There is no doubt that the holding in this case and others like it
       extends the reach of McFadden and greatly increases the collateral consequences of a
       constitutionally invalid criminal conviction. We join the other members of this court who
       have recognized that this inequitable result calls out for a legislative remedy.
¶ 16       Whether a conviction may properly serve as a predicate offense is a question of law,
       which we review de novo. People v. O’Neal, 2016 IL App (1st) 132284, ¶ 29. The specific
       legal question presented here—whether the rule in McFadden that an invalid conviction can
       serve as a predicate offense for a subsequent conviction should be applied in cases where the
       subsequent conviction is for AHC, rather than UUWF—is one this court has already
       considered a number of times. We first held, in People v. Perkins, that the rule announced in
       McFadden indeed applies to convictions for AHC. People v. Perkins, 2016 IL App (1st)
       150889, ¶ 10. And in the year since Perkins was decided, this court has repeatedly reaffirmed
       that holding. See, e.g., People v. McGee, 2017 IL App (1st) 141013-B, ¶¶ 19-27; People v.
       Cowart, 2017 IL App (1st) 113085-B, ¶¶ 43-54; People v. Fields, 2017 IL App (1st)
       110311-B, ¶¶ 38-49; People v. Faulkner, 2017 IL App (1st) 132884-B, ¶¶ 15-33.
¶ 17       Mr. Smith attacks the holding in these cases on two fronts. First, he insists that the United
       States Supreme Court’s decisions in Montgomery and Siebold require us to disregard
       McFadden. In Montgomery, the Court held that the prohibition on mandatory life sentences
       without parole for juvenile offenders established in Miller v. Alabama, 567 U.S. 460, 465
       (2012), was a new substantive rule that should be given retroactive effect. Montgomery, 577
       U.S. at ___, 136 S. Ct. at 734. The Court reiterated a point it had made over 100 years ago in
       Siebold, “that when a State enforces a proscription or penalty barred by the Constitution, the
       resulting conviction or sentence is, by definition, unlawful.” Id. at ___, 136 S. Ct. at 729-30.
       See also Siebold, 100 U.S. at 376-77 (noting that a conviction under an unconstitutional law
       “is not merely erroneous, but is illegal and void, and cannot be a legal cause of
       imprisonment”).

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¶ 18       We do not agree that the holding in McFadden is precluded or limited by either
       Montgomery or Siebold. As we have noted before, our supreme court was well aware of those
       cases when it issued its opinion in McFadden. See McGee, 2017 IL App (1st) 141013-B, ¶ 25
       (noting that defense counsel in McFadden was granted leave to cite Montgomery—which in
       turn cites Siebold—as supplemental authority). In Montgomery, the United States Supreme
       Court merely reaffirmed that “states have no power to enforce a conviction or penalty barred
       by the Constitution.” People v. Smith, 2017 IL App (1st) 122370-B, ¶ 29 (citing Montgomery,
       577 U.S. at ___, 136 S. Ct. at 729-30). But the State here did not attempt to enforce Mr.
       Smith’s invalid AUUW conviction; rather, it presented evidence of the existence of the
       conviction to establish an element of another crime. We have relied on this distinction to
       reject substantially similar arguments in other cases. See, e.g., id.; Perkins, 2016 IL App (1st)
       150889, ¶ 9. Pursuant to McFadden, it is irrelevant that Mr. Smith might very well succeed if
       he availed himself of the judicial process to vacate his prior AUUW conviction. Mr. Smith
       failed to take such steps and the conviction thus remained on his record.
¶ 19       Presenting a more difficult question, Mr. Smith also contends that the AHC statute, which
       requires the State to prove the existence of two specific qualifying convictions, is
       qualitatively different from both the UUWF statute at issue in McFadden and the federal
       felon-in-possession statute in Lewis, which require only proof of a defendant’s status as a
       felon to make the act of possessing a firearm illegal. Mr. Smith contends that the AHC statute
       is more like the penalty-enhancing recidivist statute at issue in United States v. Bryant, 579
       U.S. ___, ___, 136 S. Ct. 1954, 1961 (2016). In that case, the Supreme Court held that prior
       convictions obtained in tribal court—where a defendant is not provided with counsel but
       where this is permissible under tribal law and thus constitutional—could still be used as
       predicate convictions for purposes of a state recidivist statute. Id. at ___, 136 S. Ct. at 1966.
       At the same time, however, the Court reaffirmed the broader rule, first stated in Burgett v.
       Texas, 389 U.S. 109 (1967), that it is impermissible for a conviction obtained in violation of
       the Constitution to be used in a subsequent proceeding “ ‘either to support guilt or enhance
       punishment for another offense.’ ” Bryant, 579 U.S. at ___, 136 S. Ct. at 1962 (quoting
       Burgett, 389 U.S. at 115); see also United States v. Tucker, 404 U.S. 443, 447-48 (1972)
       (remanding for resentencing where the trial court “gave specific consideration to the
       [defendant’s] previous convictions” during sentencing but where “two of those convictions
       were wholly unconstitutional”); Loper v. Beto, 405 U.S. 473, 483 (1972) (plurality opinion)
       (concluding that the Burgett rule against the use of uncounseled prior convictions to prove
       guilt was also intended to prohibit their use to impeach a defendant’s credibility as a
       witness).
¶ 20       The premise for both the Supreme Court’s decision in Lewis and our supreme court’s
       decision in McFadden was that the UUWF statute and the federal felon-in-possession statute
       were different from general recidivist statutes. McFadden, 2016 IL 117424, ¶¶ 23, 29. Both
       employed criminal penalties to enforce what was essentially a civil prohibition against gun
       possession on all individuals with felon status. Id. Both courts viewed this status-based
       disability as one that could “ ‘cease only when the conviction upon which that status
       depend[ed] ha[d] been vacated.’ ” Id. ¶ 29 (quoting Lewis, 445 U.S. at 61 n.5). Lewis made
       clear that using a constitutionally invalid prior conviction as the basis for imposing a civil
       firearms disability in this way was “not inconsistent with Burgett, Tucker, and Loper [and]



                                                   -5-
       *** d[id] not ‘support guilt or enhance punishment.’ ” Lewis, 445 U.S. at 67 (quoting
       Burgett, 389 U.S. at 115).
¶ 21       We agree with Mr. Smith that the AHC statute is quite different from the statutes in
       McFadden and Lewis. A defendant in an AHC case is already “disabled” from having a gun
       by virtue of a first felony. The second felony required by the statute does not result in the
       imposition of any new disability; it simply increases—significantly—the criminal sanction
       used to enforce the disability. Here, Mr. Smith, who was already disqualified from
       possessing a gun because of his first qualifying felony conviction, now faces a Class X
       sentence based solely on his prior AUUW conviction, which the State does not dispute is
       constitutionally invalid under Aguilar. Under these circumstances, it is difficult to conclude
       that the invalid conviction is relied on for anything other than to “enhance punishment,”
       something the Lewis Court made clear is still prohibited under Burgett. Id.
¶ 22       The problem with Mr. Smith’s reliance on Burgett and its progeny, however, is that the
       rule stated in those cases was limited some time ago by the Supreme Court, as it explained in
       Custis v. United States, 511 U.S. 485, 496 (1994). There, the Court ruled that, under the
       Armed Career Criminal Act of 1984 (18 U.S.C. § 924(e) (1990))—which requires enhanced
       sentences for those convicted of possessing firearms after having received three prior
       convictions for violent felonies or drug offenses—the government was entitled to rely on the
       defendant’s prior convictions without considering whether those convictions were
       constitutionally invalid because the defendant had received ineffective assistance of counsel
       or because his guilty plea had not been voluntary. Custis, 511 U.S. at 496-97. The Court
       refused to extend the right to mount a collateral attack on a prior conviction in later
       proceedings—the right contemplated in cases like Burgett and Bryant—beyond those cases
       where the defendant was denied the right to have appointed counsel, as established in Gideon
       v. Wainwright, 372 U.S. 335 (1963). Custis, 511 U.S. at 496-97. Where, as here, a prior
       conviction is challenged on any non-Wainright basis, the Burgett line of cases do not support
       the argument that it is unconstitutional to use the fact of the prior conviction to establish the
       elements of a subsequent crime.
¶ 23       Of course, just because something is constitutional does not mean that it is what our
       legislature intended. But on that score, we are bound by our supreme court’s construction of
       the relevant statutory language in McFadden. There, the court concluded from the
       legislature’s use of the past tense in the phrase “has been convicted” (720 ILCS 5/24-1.1(a)
       (West 2008)) that “[n]othing on the face of the [UUWF] statute suggests any intent to limit
       the language to only those persons whose prior felony convictions are not later subject to
       vacatur.” McFadden, 2016 IL 117424, ¶ 27. And as McFadden made clear, the maxim that a
       conviction is deemed valid until judicial process had declared it otherwise applies even to
       convictions under statutory provisions deemed void ab initio. Id. ¶ 31. As a matter of
       statutory interpretation, Mr. Smith provides us with no basis by which to distinguish the
       AHC statute, which also focuses on whether a defendant possessed a weapon “after having
       been convicted” of the predicate felonies (720 ILCS 5/24-1.7(a) (West 2008)), from the
       UUWF statute.
¶ 24       In sum, McFadden and Custis control the result in this case. Although Mr. Smith’s
       arguments raise important distinctions between the AHC statute at issue in this case and the
       UUWF statute at issue in McFadden, we are not at liberty to reach a different result in this
       case based on those distinctions. We are constrained on the one hand by the McFadden

                                                   -6-
       court’s interpretation of the legislative text and, on the other, by limits placed on the Burgett
       line of cases by the United States Supreme Court in Custis. See Blumenthal v. Brewer, 2016
       IL 118781, ¶ 28 (“Where the [s]upreme [c]ourt has declared the law on any point, it alone
       can overrule and modify its previous opinion, and the lower judicial tribunals are bound by
       such decision and it is the duty of such lower tribunals to follow such decision in similar
       cases.” (Internal quotation marks and emphasis omitted.)); People v. Battiste, 133 Ill. App. 2d
       62, 65 (1971) (noting that decisions of the United States Supreme Court likewise “have
       binding effect on all lower courts whether state or federal” (internal quotation marks
       omitted)). Under these authorities, it appears permissible to use a conviction held invalid
       under Aguilar as a predicate offense under the AHC statute.
¶ 25       As Mr. Smith acknowledges in his reply brief, his alternative request, that we hold this
       matter in abeyance pending the United States Supreme Court’s disposition of the petition for
       a writ of certiorari filed in McFadden, is now moot, as that petition was denied on June 26,
       2017. People v. McFadden, 2016 IL 117424, cert. denied, ___ U.S. ___, 137 S. Ct. 2291
       (2017).
¶ 26       Although we agree with our colleagues that evidence of a constitutionally invalid prior
       conviction to establish a predicate offense for a subsequent conviction is neither
       unconstitutional nor barred by the relevant statutory text, it now falls to the legislature to
       decide whether that is right. To be sure, the plight of an armed felon facing a lengthy
       sentence is likely to garner little sympathy. But the scenario presented by this case and others
       like it is troubling on a broader level. Conduct other than the possession of firearms was once
       criminalized and is now recognized as protected (see, e.g., Loving v. Virginia, 388 U.S. 1,
       7-12 (1967) (state laws criminalizing interracial marriage); Roe v. Wade, 410 U.S. 113, 164
       (1973) (criminal abortion statutes). Texas v. Johnson, 491 U.S. 397, 420 (1989) (state
       prohibitions on desecrating the American flag); Lawrence v. Texas, 539 U.S. 558, 577-79
       (2003) (state laws criminalizing same-sex sexual activity)). It strikes us as wholly
       uncontroversial that there must be a legislative safeguard to prevent the continued imposition
       of collateral consequences on individuals based on constitutionally invalid prior convictions.
¶ 27       The solution need not be an elaborate one. For example, the application notes to the
       federal sentencing guidelines, which assess “criminal history points” based on a defendant’s
       previous convictions, provide as follows:
                “Reversed, Vacated, or Invalidated Convictions.—Sentences resulting from
                convictions that (A) have been reversed or vacated because of errors of law or
                because of subsequently discovered evidence exonerating the defendant, or (B) have
                been ruled constitutionally invalid in a prior case are not to be counted.” (Emphasis
                added.). U.S. Sentencing Guidelines Manual § 4A1.2 cmt. n.6. (U.S. Sentencing
                Comm’n 2016).
       The Seventh Circuit has accordingly held that it is improper for a district court to assign
       points for a defendant’s prior conviction under the portion of the AUUW statute struck down
       in Aguilar. See, e.g., United States v. Jenkins, 772 F.3d 1092, 1098 (7th Cir. 2014).
¶ 28       As other members of this court have recognized, there is a significant injustice in placing
       the burden on a criminal defendant to clear his record of an unconstitutional conviction in
       order to avoid collateral consequences of that conviction. As the specially concurring justice
       in People v. Spivey stated:


                                                   -7-
               “We cannot realistically expect the public to read judicial pronouncements and seek
               their own justice without assistance, or depend on defense attorneys to hunt up their
               old clients who might be affected by Aguilar. And why should criminal
               defendants—often poor, struggling, jobless, dependent on public funding for their
               defenses, unsophisticated, and mostly black or brown—bear the burden to file the
               necessary paperwork for vacating their convictions, when those convictions were
               caused by a legislature passing an ultimately unconstitutional statute?” People v.
               Spivey, 2017 IL App (1st) 123563, ¶ 24 (Hyman, J., specially concurring).
¶ 29       These concerns are greatly amplified where, as here, we are compelled by the legal
       principles espoused in binding precedent to extend the collateral consequences of an
       unconstitutionally void statutory provision to situations involving truly life-altering
       consequences for criminal defendants. The maximum sentence for UUWF—10 years of
       imprisonment for a first offense and 14 years for a second—pales in comparison to both the
       30-year maximum sentence that a defendant faces on an AHC charge and the 60-year
       maximum sentence available on an extended-term sentence for that charge. Compare 720
       ILCS 5/24-1.1(e) (West 2012), with 720 ILCS 5/24-1.7(b) (West 2012), 730 ILCS
       5/5-4.5-25(a) (West 2012), and 730 ILCS 5/5-8-2(a) (West 2012).
¶ 30       Accordingly, we join those of our colleagues who have called for a legislative solution to
       this troubling situation. See People v. Somerville, 2017 IL App (1st) 132202-UB, ¶ 17 (“we
       incorporate the views expressed in both the majority opinion and special concurrence in
       [Spivey], regarding the need for a legislative solution to continuing effects of convictions
       under the statute found unconstitutional and void ab initio in Aguilar”); Spivey, 2017 IL App
       (1st) 123563, ¶ 15 (majority opinion) (“the author agrees with the special concurrence that
       the ripple effects of Aguilar and McFadden are best resolved by the legislature”); id. ¶ 25
       (Hyman, J., specially concurring) (“[t]he legislature should consider whether it is right that
       these old convictions, based on an unconstitutional statute, may be used to create ‘felon
       status’ in subsequent prosecutions”); McGee, 2017 IL App (1st) 141013-B, ¶ 33 (Hyman,
       P.J., specially concurring) (same).

¶ 31                                      B. One-Act, One Crime
¶ 32        Mr. Smith’s convictions for AHC and UUWF are both based on the same physical act:
       his unlawful possession of a single firearm on October 25, 2013. Mr. Smith contends, and the
       State agrees, that his conviction for UUWF must therefore be vacated in accordance with the
       one-act, one-crime rule. Pursuant to that rule, when a defendant is convicted of more than
       one offense for the same physical act, a “sentence should be imposed on the more serious
       offense and the less serious offense should be vacated.” People v. Artis, 232 Ill. 2d 156, 170
       (2009). “Pursuant to Supreme Court Rule 615(b), this court may correct the mittimus without
       remanding the case to the trial court.” People v. Pryor, 372 Ill. App. 3d 422, 438 (2007)
       (citing Ill. S. Ct. R. 615(b)). Accordingly, we vacate Mr. Smith’s conviction for UUWF and
       correct the mittimus to reflect a single conviction for AHC and a corresponding sentence of
       six years, plus three years of MSR. As there is nothing in the record indicating that the
       vacated convictions had any effect on the separate sentence Mr. Smith received for AHC, it
       is unnecessary for us to remand for resentencing. People v. Shelton, 252 Ill. App. 3d 193, 209
       (1993).


                                                  -8-
¶ 33                                       CONCLUSION
¶ 34      For the foregoing reasons, we affirm Mr. Smith’s AHC conviction and vacate his UUWF
       conviction.

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

¶ 36       JUSTICE HARRIS, specially concurring:
¶ 37       I concur with my authoring colleague in holding that McFadden and Custis control the
       result in this case and therefore affirm Mr. Smith’s AHC conviction and vacate his UUWF
       conviction. Additionally, I concur in urging a legislative solution to prevent the imposition of
       collateral consequences based on constitutionally invalid prior convictions.
¶ 38       However, I do not join in paragraphs 27 through 30 of the opinion, nor the statements,
       suggestions, or quote from the concurring opinion in People v. Spivey, 2017 IL App (1st)
       123563, contained therein. This discussion is dicta and not necessary for our determination
       here.




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