                             2016 IL App (2d) 130997
                                  No. 2-13-0997
                           Opinion filed February 8, 2016
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Winnebago County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 11-CF-3438
                                       )
VERNON L. SMITH,                       ) Honorable
                                       ) John R. Truitt,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       PRESIDING JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
       Justices Jorgensen and Birkett concurred in the judgment and opinion.

                                           OPINION

¶1     After a jury trial, defendant, Vernon L. Smith, was convicted of armed robbery with a

firearm (720 ILCS 5/18-2(a)(2) (West 2010)) and was sentenced to a 20-year prison term (730

ILCS 5/5-4.5-25(a) (West 2010)) and a mandatory add-on of 15 years (720 ILCS 5/18-2(b)

(West 2010)), for a total of 35 years. On appeal, his initial brief argued that he is entitled to a

new sentencing hearing because the trial court improperly considered in aggravation a prior

conviction of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(3)(A) (West

2002)). This conviction, from 2003 in Winnebago County, was a Class 2 felony, owing to

defendant’s prior felony convictions (see 720 ILCS 5/24-1.6(d) (West 2002)). Defendant’s

initial brief contended that the AUUW conviction is void because it was based on the AUUW
2016 IL App (2d) 130997


statute that was held facially unconstitutional in People v. Aguilar, 2013 IL 112116. Defendant

also had a recent conviction of unlawful use of a weapon by a felon in Cook County.

¶2     The State responded that Aguilar invalidated the statute only insofar as it created the

Class 4 offense of AUUW, which is committed by a defendant who lacks a prior felony

conviction (or other aggravating factor). See 720 ILCS 5/24-1.6(d) (West 2012). The State also

contended that any error was harmless.

¶3     After the parties filed their initial briefs, we ordered supplemental briefing on the issue of

whether we have the authority to decide whether defendant’s AUUW conviction is void. Our

order cited People v. Ware, 2014 IL App (1st) 120485. The parties submitted briefs accordingly.

¶4     Defendant also filed a second supplemental brief, contending that the trial court had erred

in considering in aggravation his Cook County conviction, which had been reversed outright on

appeal owing to a fourth-amendment violation. The State filed a response brief. We now decide

both of defendant’s claims of error. We hold that the trial court committed reversible error in

considering both convictions at issue. We thus remand the cause for resentencing.

¶5     We start with the proceedings in this case. The trial evidence showed that, on December

7, 2011, defendant approached the victim, pointed a gun at him, and told him to hand over his

money. The victim complied, and defendant ran away. The jury found him guilty. The pretrial

service report (PSR), which served as a presentencing investigation report, revealed the

following pertinent facts. Defendant had no juvenile record. His felony convictions were as

follows. In 1998, he was convicted of residential burglary and was sentenced to six years in

prison. In 2000, he was convicted of residential burglary and received four years in prison. In

2003, he was convicted of AUUW as a Class 2 felony and was sentenced to four years in prison.

As pertinent here, the AUUW statute read:



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              “(a) A person commits the offense of aggravated unlawful use of a weapon when

       he or she knowingly:

                      (1) Carries on or about his or her person or in any vehicle or concealed 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, stun gun or taser or other firearm; or

                      (2) Carries or possesses on or about his or her person, upon any public

              street, alley, or other public lands within the corporate limits of a city, village or

              incorporated town, except when an invitee thereon or therein, for the purpose of

              the display of such weapon or the lawful commerce in weapons, or except when

              on his or her own land or in his or her own abode or fixed place of business, any

              pistol, revolver, stun gun or taser 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; ***

                                              ***

              (d) Sentence. Aggravated unlawful use of a weapon is a Class 4 felony; a second

       or subsequent offense is a Class 2 felony. Aggravated unlawful use of a weapon by a

       person who has been previously convicted of a felony in this State or another jurisdiction

       is a Class 2 felony.” 720 ILCS 5/24-1.6 (West 2002).

¶6     Defendant also had a 2013 felony conviction, in Cook County, of unlawful use of a

weapon by a felon; he had been out on bond in that case when he committed the offense here.

¶7     At the sentencing hearing, the parties presented no new evidence. In argument, the State

requested that the court impose a sentence in the high end of the Class X range (6 to 30 years)



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(730 ILCS 5/5-4.5-25(a) (West 2010)). The State emphasized the seriousness of the offense and

defendant’s long criminal history, stating that the present offense was his “third conviction

involving a firearm.” Defendant also had several misdemeanors. Further, the State argued that a

substantial sentence was needed to deter defendant and others from committing similar crimes.

¶8     Defendant requested the minimum sentence, which by law would run consecutively to his

sentence in the Cook County case. He had four children and had been working toward a GED.

¶9     The trial judge stated as follows. The only mitigating factor was the hardship that

defendant’s absence might cause his children. His criminal history was “certainly a factor in

aggravation.” He had committed two residential burglaries before turning 20. Although the

misdemeanors were of little weight, “[p]robably more significantly back in ’03 when he was 23

years of age is his first weapons offense, [AUUW], for which the defendant in ’03 was sentenced

to four years in [prison]. That is felony No. 3.” There was also the recent Cook County

conviction of unlawful use of a weapon by a felon. Thus, the present conviction was defendant’s

“fifth felony conviction and third felony conviction involving the use of a weapon and *** he

was out on bond on the Cook County case when this offense was committed.” The judge

continued:

              “The bottom line is this:      His prior record and the nature of these felony

       convictions is significant, and it warrants a sentence far in excess of the mandatory

       minimum. I think I already commented this is mandatory DOC, but his prior record

       alone coupled with the facts of this case certainly require a sentence far in excess of the

       minimum.”




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¶ 10   Defendant was sentenced to 35 years’ imprisonment, representing a discretionary term of

20 years and the mandatory add-on of 15 years, to run consecutively to the sentence in the Cook

County case. The trial court denied his motion to reconsider his sentence. He timely appealed.

¶ 11   On appeal, defendant contends first that the cause must be remanded for resentencing

because the trial court improperly relied on his AUUW conviction. Defendant asserts that the

conviction is void ab initio because it was based on the AUUW statute, which Aguilar held void

for violating the second amendment (U.S. Const., amend. II).         Defendant observes that a

sentencing court may not consider, as a factor in aggravation, a prior conviction that was based

on a statute later declared unconstitutional. See People v. Alejos, 97 Ill. 2d 502, 511 (1983). He

notes that the Aguilar court limited its holding to Class 4 AUUW, i.e., the prohibition of certain

weapons-related conduct by a person who has no prior felony convictions or other factors that

would make the offense a Class 2 felony under the AUUW statute. However, he contends, the

AUUW statute does not set out two separate offenses but describes only a single offense

(AUUW) with varying penalties.

¶ 12   The State responds that we need not reach the constitutional issue, because defendant

would have received the same sentence had the AUUW conviction not been considered. The

State also argues that the AUUW statute embodies two separate offenses, Class 4 AUUW and

Class 2 AUUW, and that Aguilar did not invalidate Class 2 AUUW.

¶ 13   After the parties submitted their initial briefs, we ordered supplemental briefing on the

issue of whether this court has the authority to decide whether defendant’s conviction of AUUW

is void. Our order was based on People v. Ware, 2014 IL App (1st) 120485. There, the

defendant was convicted of six counts of armed robbery with a firearm and sentenced to

concurrent 50-year prison terms.      Among the aggravating factors at sentencing were the



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defendant’s two convictions years earlier of Class 2 AUUW. Id. ¶¶ 9, 34. On appeal, the

defendant argued in part that a remand for resentencing was necessary so that the trial court

could decide whether, under the intervening opinion in Aguilar, those two convictions were void,

making them improper aggravating factors. Id. ¶¶ 1, 33. The appellate court agreed with the

State that the validity of the convictions under Aguilar was not properly before it on the appeal

from a wholly separate proceeding. Id. ¶ 33.

¶ 14   The court noted that the defendant’s notice of appeal, which limited the court’s

jurisdiction, referred only to defendant’s convictions of armed robbery and not to his convictions

of AUUW. Id. ¶ 34. The court continued:

       “Furthermore, the fact that Aguilar found the Class 4 form of AUUW void does not give

       us jurisdiction over defendant’s prior convictions. Compare People v. Dunmore, 2013 IL

       App (1st) 121170 (where court found it had authority to vacate AAUW [sic] conviction

       based on Aguilar on appeal from a revocation of the sentence of probation imposed on

       that AAUW [sic] conviction but did not have jurisdiction to consider State’s request to

       remand the matter so it could reinstate nol-prossed charges). First, the ‘appellate court is

       not vested with authority to consider the merits of a case merely because the dispute

       involves an order or judgment that is, or is alleged to be, void.’ People v. Flowers, 208

       Ill. 2d 291, 308 (2003). Therefore, if defendant wishes to challenge his prior convictions

       [of] AUUW, he must file appropriate pleadings.” Id.

The court also stated that, in any event, any error was harmless, as the trial court had placed little

emphasis on the AUUW convictions. Id. ¶ 36.

¶ 15   The State, of course, argues that Ware bars us from considering defendant’s argument on

appeal. Defendant responds, however, with a clarification of what he is arguing: he “is not



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2016 IL App (2d) 130997


asking this Court to vacate his 2003 AUUW conviction; he is asking this Court to review

whether that conviction could be used in aggravation during the sentencing hearing in this case,

the appeal from which is properly before this Court.” Defendant relies on People v. Fischer, 100

Ill. App. 3d 195 (1981). There, the defendant was convicted of voluntary manslaughter. He had

a prior conviction of possession of marijuana, based on a statute that had since been declared

unconstitutional. Despite this infirmity, the trial court considered the conviction in aggravation.

Id. at 199-200. The appellate court reversed the defendant’s sentence and remanded. Id. at 200.

The court did not address whether it had the authority to void the possession conviction, and it

did not purport to do so. Instead, it explained only that the trial court had abused its discretion in

considering a conviction that was based on a statute that was later held unconstitutional. Id.

¶ 16    We accept defendant’s distinction. Although we have jurisdiction of the judgment in this

case, it is questionable whether we could actually vacate defendant’s AUUW conviction, which

of course was entered in a different case. However, as defendant has now made clear, he is not

asking us to do so; rather, he is asking us simply to hold that his AUUW conviction should not

have been given any effect in this case. We agree that, per Fischer, 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.

¶ 17    Defendant claims that his sentence was tainted by the judge’s consideration of the

AUUW conviction. His argument is premised on his assertion that, despite Aguilar’s qualified

holding, Class 2 AUUW is void ab initio. Defendant reasons that there is only one offense of

AUUW and that the “Class 2” and “Class 4” forms merely represent different sentencing

schemes based on factors that are not elements of AUUW.




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¶ 18   The State initially contends that we need not reach the constitutional issue, because the

conviction of AUUW did not influence defendant’s sentence. The State asserts that the judge

focused on defendant’s entire criminal history, noting its increasing seriousness over time and

that defendant was out on bond in the Cook County case when he committed the present offense.

Defendant responds that the judge concentrated on defendant’s three convictions that involved

the possession or use of weapons. After putting aside the misdemeanor offenses, the judge

noted, “[p]robably more significantly back in ’03 when he was 23 years of age is his first

weapons offense, [AUUW], for which the defendant in ’03 was sentenced to four years in

[prison]. That is felony No. 3.” He then noted, “[Defendant’s] prior record and the nature of

these felony convictions [were] significant” and warranted a lengthy sentence. From these

remarks, we cannot say that the weight that the judge placed on defendant’s AUUW conviction

was so insignificant that it did not affect the sentence. See People v. Heider, 231 Ill. 2d 1, 21

(2008). The AUUW conviction plainly meant a great deal to the judge’s consideration. Having

only two felony weapons convictions to consider, instead of three, might well have lessened the

sentence. Therefore, we must reject the State’s argument that any error was harmless.

¶ 19   We turn to the merits of defendant’s contention that his AUUW conviction was an

improper sentencing factor. This requires us to decide whether his conviction of the Class 2

form of AUUW is constitutionally invalid. 1 In light of the supreme court’s recent decision in

       1
           As noted, defendant describes his conviction as “void.” Strictly speaking, a judgment is

“void” only if the court that entered it lacked jurisdiction (People v. Castleberry, 2015 IL

116916, ¶ 13), and it is questionable whether the unconstitutionality of a statute divests a trial

court of jurisdiction to enter a conviction (People v. McGuire, 2015 IL App (2d) 131266, ¶ 13).

We need not decide the issue, however. Substantively, defendant’s claim is that, because the



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People v. Burns, 2015 IL 117387, we must agree with defendant that the entire statute is

unconstitutional and that there is no distinction between Class 2 AUUW and Class 4 AUUW.

Therefore, defendant’s AUUW conviction is invalid and may not be considered in sentencing.

¶ 20   In Aguilar, as pertinent here, the supreme court phrased the issue as “whether the Class 4

form of [the AUUW statute]” violated the second amendment. Aguilar, 2013 IL 112116, ¶ 1.

The defendant claimed that the Class 4 form of the statute (and another statute not at issue here)

were facially invalid, meaning that they could not be constitutionally enforced against anyone.

Id. ¶ 12. To begin its analysis, the court observed that, in District of Columbia v. Heller, 554

U.S. 570, 635 (2008), the Supreme Court had struck down a local law flatly banning the

possession of handguns in the home. Aguilar, 2013 IL 112116, ¶ 16. Later, in McDonald v. City

of Chicago, 561 U.S. 742, 760 (2010), the Court held that the fourteenth amendment (U.S.

Const., amend. XIV) makes the second amendment operable against state legislation, and it

invalidated a Chicago ordinance as violating the right to keep and bear arms for self-defense.

Aguilar, 2013 IL 112116, ¶ 17.

¶ 21   The supreme court next turned to Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012),

which held that the Class 4 form of AUUW created, in effect, “ ‘a flat ban on carrying ready-to-

use guns outside the home’ ” and, as such, violated the second amendment as construed by

Heller and McDonald. Aguilar, 2013 IL 112116, ¶ 19 (quoting Moore, 702 F.3d at 940). The




AUUW statute is unconstitutional even as it pertains to the Class 2 form of the offense, the trial

court here should not have considered his conviction in aggravation. If the statute indeed is

unconstitutional in that sense, then his argument is correct, regardless of whether his conviction

is “void.” See Alejos, 97 Ill. 2d at 511.



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reason was that the second amendment protects the right to bear arms for self-defense outside, as

well as inside, the home. Id.; see Moore, 702 F.3d at 940, 942.

¶ 22   Aguilar recognized that the right to keep and bear arms is not absolute; it is subject to

“meaningful regulation.” Aguilar, 2013 IL 112116, ¶ 21. However, the Class 4 form of AUUW

was not a “reasonable regulation” but a “comprehensive ban.” Id. It “categorically prohibit[ed]

the possession and use of an operable firearm for self-defense outside the home.” Id. Thus, on

its face, the Class 4 form of the AUUW statute violated the second amendment. Id. ¶ 22. The

court specifically limited its holding to the Class 4 form and made “no finding, express or

implied,” about the constitutionality of any other portion of the AUUW statute. Id. ¶ 22 n.3.

¶ 23   After Aguilar, the appellate court issued conflicting rulings on whether only the Class 4

form of AUUW violates the second amendment. In People v. Burns, 2013 IL App (1st) 120929,

rev’d, 2015 IL 117387, the court affirmed the defendant’s conviction of Class 2 AUUW. The

court recognized the difficulties of carving a separate offense of Class 2 AUUW out of the

AUUW statute, as the Class 2 factors were contained in subsection (d). Yet the court noted that

Aguilar repeatedly distinguished between the two types of AUUW, implying that only the Class

4 form was unconstitutional. Id. ¶ 24. The court then reasoned that, as there is no constitutional

bar to prohibiting felons from possessing firearms, the Class 2 form of AUUW was

constitutional. Id. ¶¶ 25-30.

¶ 24   People v. Gayfield, 2014 IL App (4th) 120216-B, reached the opposite conclusion and

vacated the defendant’s conviction of Class 2 AUUW. The court based its holding on the

proposition that subsection (d) of the statute is a “sentencing provision.” Id. ¶ 23. Indeed, the

court noted, in People v. Zimmerman, 239 Ill. 2d 491, 500-01 (2010), the supreme court had held

that subsection (d) is a sentencing provision and thus does not create any new elements of a



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substantive offense.    Gayfield, 2013 IL App (4th) 120126-B, ¶¶ 23-24.           Thus, Gayfield

explained, the Zimmerman court had held that subsection (a) of the statute contains all of the

elements of AUUW whereas subsection (d) contains the sentences and sentence-enhancement

factors. Id. ¶ 24. Because the defendant had been charged with this offense—the one defined by

subsection (a)—he was, in actuality, convicted of the same offense as was the defendant in

Aguilar. He had merely received a harsher penalty. Id. ¶ 30.

¶ 25   On further appeal in Burns, the supreme court agreed with the reasoning of Gayfield and

Zimmerman. The court stated, “[W]e now acknowledge that our reference in Aguilar to a ‘Class

4 form’ of the offense was inappropriate. No such offense exists. There is no ‘Class 4 form’ or

‘Class 2 form’ of aggravated unlawful use of a weapon.” Burns, 2015 IL 117387, ¶ 22. Thus,

“section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute is facially unconstitutional.” Id. ¶ 25.

¶ 26   Based on Burns, we hold that, because defendant’s AUUW conviction was based on an

unconstitutional statute, the trial court erred in relying on it in sentencing him. Further, as we

have explained, the error was not harmless.

¶ 27   We turn to the issue raised in defendant’s second supplemental brief: whether

resentencing is required also because, as the State concedes, the appellate court reversed his

conviction in the Cook County case. For the same reasons outlined above, we agree with

defendant that resentencing is required on this ground also.

¶ 28   The State notes that, even though at resentencing it may not introduce either of

defendant’s defunct convictions as evidence in aggravation, the court in resentencing defendant

may, in its discretion, consider defendant’s prior conduct that did not result in a conviction (or

that even resulted in an acquittal). People v. Jackson, 149 Ill. 2d 540, 549 (1992). Any such




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conduct must be proved by sworn testimony presented in open court by a witness who can be

cross-examined. See People v. La Pointe, 88 Ill. 2d 482, 498-99 (1981).

¶ 29   For the foregoing reasons, we affirm defendant’s present conviction of armed robbery but

vacate his sentence and remand the cause for resentencing consistent with this opinion.

¶ 30   Affirmed in part and vacated in part; cause remanded.




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