                                      2016 IL App (1st) 134006
                                 Nos. 1-13-4006 & 1-13-4007 (Cons.)
                                            May 24, 2016

                                                                                SECOND DIVISION



                                                IN THE

                                APPELLATE COURT OF ILLINOIS

                                          FIRST DISTRICT


     THE PEOPLE OF THE STATE OF ILLINOIS, )                 Appeal from the Circuit Court
                                          )                 Of Cook County.
          Plaintiff-Appellee,             )
                                          )                 No. 10 CR 6426
          v.                              )                     10 CR 6427
                                          )
     JERMAINE BILLUPS,                    )                 The Honorable
                                          )                 Neera Lall Walsh,
          Defendant-Appellant.            )                 Judge Presiding.



                  JUSTICE NEVILLE delivered the judgment of the court, with opinion.
                  Presiding Justice Pierce and Justice Hyman concurred in the judgment and
       opinion.


                                            OPINION

¶1        The trial court, in a bench trial, found Jermaine Billups guilty of delivering more than one

       gram of heroin, and sentenced him to six years in prison. Billups contends on appeal that his

       attorney provided ineffective assistance of counsel by failing to object to the court's

       consideration in sentencing of two prior convictions for violations of statutes later held

       unconstitutional. We agree that counsel's performance fell below an objective standard of

       reasonableness and that Billups showed a reasonable probability that the court would have
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        imposed a lesser sentence if his counsel had not erred. Accordingly, we vacate the sentence

        and remand for resentencing.

¶2                                          BACKGROUND

¶3         Police arrested Billups outside his home on March 18, 2010. A grand jury indicted

        Billups on charges that he delivered more than one gram of heroin to an undercover officer

        on September 2, 2009, and that he delivered more than one gram of heroin to the same

        officer again on September 10, 2009. The circuit court consolidated the charges for trial.

¶4         At the bench trial, Officer Orlando Rodriguez of the Chicago police department testified

        that on September 2, 2009, he called a specified phone number and arranged to purchase

        heroin. He saw Billups drive up to the arranged meeting place in a black Mercedes. Billups

        gave Rodriguez 12 tinfoil packets in exchange for $100. Rodriguez called the same number

        on September 10, 2009, and again arranged a meeting. Billups arrived at the arranged

        meeting place in a maroon Buick, and again gave Rodriguez 12 tinfoil packets in exchange

        for $100.

¶5         Rodriguez inventoried the tinfoil packets. The parties stipulated that chemists would

        testify that the substance in the inventoried packets tested positive for heroin and each set of

        12 packets held more than one gram of heroin.

¶6         Rojai Person, a defense witness, testified that he stood outside Billups's home on March

        18, 2010, waiting for Billups, when police drove up. The officers searched Person and asked

        to see his identification card. An officer apologized for the intrusion. When Billups came

        out of his home, the officers searched and arrested Billups. Person added that he looks


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        nothing like Billups. However, Person admitted that in 2010 Billups usually drove a black

        Mercedes. Other evidence showed that Billups also had access to a maroon Buick.

¶7         The trial judge found Rodriguez credible, including his identification of Billups in court

        as the person who sold him heroin. The court found Billups guilty on two charges of the

        Class 1 felony of delivering heroin. The court denied Billups's motion for a new trial.

¶8         The presentence investigation report indicated that a court had found Billups guilty on 2

        counts of possession of a controlled substance in 1995, both Class 4 felonies, for which the

        court imposed concurrent terms of one year in prison.          Billups had a conviction for

        misdemeanor aggravated assault, also from 1995, for which he served a year of probation. In

        2009, Billups had another Class 4 felony conviction for drug possession, for which he served

        a sentence of 24 months probation. Two minor misdemeanors appeared on the list of prior

        crimes, one for public drunkenness in 2008, and another for driving on a suspended license in

        2002. Billups admits that the trial court properly consider the foregoing convictions in

        aggravation when it sentenced him on November 15, 2013. This appeal concerns only the

        other convictions listed in the presentence investigation report: a January 1995 conviction for

        misdemeanor possession of a firearm, a second for felony possession of a firearm in

        September 1995, and a third for unlawful possession of a firearm by a felon in 1998. The

        State presented no evidence as to whether the prior charge for felony possession of a firearm

        from 1995 counted as the predicate felony for the charge of unlawful use of a firearm by a

        felon.




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¶9           Defense counsel did not object to the presentence investigation report or ask for any

          amendment to the listed prior offenses. The trial judge recognized that she could sentence

          Billups to a period of probation or 4 to 15 years in prison. See 730 ILCS 5/5-5-3(b)(1), 5-8-

          1(a)(4) (West 2008). The judge said, "It has been a long time since you have been in the

          penitentiary, but you have been in the penitentiary for narcotics cases and gun cases." The

          court sentenced Billups to two concurrent terms of six years in prison on November 15,

          2013. Billups's attorney immediately presented a motion for reconsideration of the sentence,

          arguing that the sentence "is excessive and inappropriate in light of the remoteness of his last

          incarceration and ample mitigation presented."       The trial court denied the motion for

          reconsideration. Billups now appeals.

¶ 10                                            ANALYSIS

¶ 11         In this appeal, Billups challenges only the use of the gun convictions in aggravation at

          sentencing. Both of the convictions for gun possession from 1995 resulted from violations of

          unconstitutional statutes. See People v. Aguilar, 2013 IL 112116, ¶¶ 19-21; see also Moore

          v. Madigan, 702 F.3d 933 (7th Cir. 2012). Billups does not contest the constitutionality of

          the statute at issue in the 1998 felony gun conviction, but he notes that the court would have

          convicted him improperly if it predicated the conviction for unlawful use of a weapon by a

          felon on the unconstitutional 1995 felony conviction for firearm possession.

¶ 12         The State contends that we lack jurisdiction to consider Billups's argument. In People v.

          Ware, 2014 IL App (1st) 120485, a defendant convicted for armed robbery argued that the

          trial court had improperly relied on unconstitutional prior convictions for firearm possession


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          when it sentenced him for the armed robbery. The Ware court held that it did not have

          jurisdiction to vacate the prior convictions for firearm possession. Ware, 2014 IL App (1st)

          120485, ¶ 34. But here, as in People v. Smith, 2016 IL App (2d) 130997, the defendant does

          not ask the court to vacate the prior convictions for firearm possession. Instead, Billups asks

          this court to hold that the trial court improperly considered in aggravation Billups's

          convictions for violating unconstitutional statutes. As the Smith court held, "we may decide

          whether the trial court erred in relying on the AUUW conviction in aggravation, even if we

          may not vacate that conviction itself." Smith, 2016 IL App (2d) 130997, ¶ 16.

¶ 13         Billups acknowledges that his attorney failed to object in the trial court to the

          consideration of the unconstitutional convictions. He asks us to review the issue as plain

          error or as a matter of ineffective assistance of counsel.

¶ 14         For a claim of ineffective assistance of counsel, a defendant must show that his counsel's

          performance fell below an objective standard of reasonableness and that "but for counsel's

          incompetence, the defendant stood a reasonable chance of achieving a better result." People

          v. Burnett, 385 Ill. App. 3d 610, 614 (2008). The defendant must overcome the presumption

          that counsel's acts might have resulted from a sound defensive strategy. People v. Evans,

          186 Ill. 2d 83, 93 (1999).

¶ 15         Two of Billups's three firearms convictions resulted from violations of unconstitutional

          statutes. Our supreme court's crucial decision concerning the constitutionality of firearms

          statutes predated the sentencing hearing in this case. See Aguilar, 2013 IL 112116, ¶¶ 19-21.

          Competent counsel should have known that the Aguilar court held a firearms statute


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          unconstitutional on grounds that would apply to both of Billups's convictions from 1995. See

          People v. Siedlinski, 279 Ill. App. 3d 1003, 1005-06 (1996)(the court held that the failure of

          defendant's trial counsel to request the $5 per day credit constituted ineffective assistance of

          counsel). The failure to object to the use of the two convictions in aggravation cannot have

          served any strategic purpose. See United States v. Otero, 502 F.3d 331, 336 (3d Cir. 2007).

          Accordingly, we find that Billups has sufficiently shown that his counsel's performance fell

          below an objective standard of reasonableness.

¶ 16         The State argues that Billups suffered no prejudice from the error. The trial judge

          referred to Billups's "gun crimes" as a reason for the sentence imposed.          To establish

          prejudice, Billups needs to show only a "reasonable probability" that the trial judge would

          have imposed a lesser sentence if his counsel had not erred. People v. Steidl, 177 Ill. 2d 239,

          257 (1997). The trial judge knew she could sentence Billups to probation, or a term of only

          four years in prison. The judge acknowledged that Billups had little criminal history in the

          15 years preceding the conviction here. In the 15 years prior to this conviction, Billups had

          one Class 4 felony conviction for possession of a controlled substance, and two very minor

          misdemeanor convictions. The judge relied more heavily on the older convictions: two Class

          4 felonies for drug possession, one for misdemeanor aggravated assault, and the three gun

          charges. We find a reasonable probability that the court would have imposed a lesser

          sentence if defense counsel had alerted the court to the unconstitutionality of the statutes

          Billups violated for two of the three gun convictions.




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¶ 17         Billups has already served almost all of his sentence. He asks this court to impose a

          lesser sentence without remanding to the trial court. He argues that Illinois Supreme Court

          Rule 615(b)(4) authorizes this court to impose a reduced sentence.         See Ill. S. Ct. R.

          615(b)(4).

¶ 18         Our supreme court has restricted our exercise of the authority to reduce sentences to cases

          in which the trial court abused its sentencing discretion. People v. Perruquet, 68 Ill. 2d 149,

          154 (1977). In light of the information presented to the court, including the list of prior

          convictions presented without objection, we cannot say that the trial court abused its

          discretion when it sentenced Billups to concurrent terms of six years in prison. Therefore,

          we will not impose a reduced sentence on Billups.         We remand to the trial court for

          resentencing. See Perruquet, 68 Ill. 2d at 154.

¶ 19                                          CONCLUSION

¶ 20         We have jurisdiction to consider Billups's argument that at sentencing the trial court

          should not have considered Billups's two prior convictions for violations of unconstitutional

          statutes. Billups's trial counsel provided objectively unreasonable assistance when he failed

          to point out to the court that it should not consider the two gun convictions in aggravation.

          We also find a reasonable probability that the court would have imposed a lesser sentence if

          counsel had not erred. Trial counsel provided ineffective assistance during sentencing when

          he failed to object to the court's consideration of two prior convictions for violations of

          statutes later held unconstitutional.   Accordingly, we affirm the convictions, vacate the

          sentences and remand to the trial court for sentencing.


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¶ 21         Affirmed in part, vacated in part and remanded.




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