                                                                      Digitally signed by
                                                                      Reporter of Decisions
                       Illinois Official Reports                      Reason: I attest to the
                                                                      accuracy and
                                                                      integrity of this
                                                                      document
                              Appellate Court                         Date: 2017.06.13
                                                                      15:26:58 -05'00'




                  People v. Fields, 2017 IL App (1st) 110311-B



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



District & No.    First District, Second Division
                  Docket No. 1-11-0311



Filed             March 31, 2017



Decision Under    Appeal from the Circuit Court of Cook County, No. 10-CR-2886; the
Review            Hon. William Hooks, Judge, presiding.



Judgment          Affirmed.


Counsel on        Michael J. Pelletier and Shawn O’Toole, of State Appellate
Appeal            Defender’s Office, of Chicago, for appellant.

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



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

¶1       Following a jury trial in the circuit court of Cook County, defendant Anthony Fields was
     convicted of armed robbery (720 ILCS 5/18-2(a)(2) (West 2008)) and being an armed habitual
     criminal (AHC) (720 ILCS 5/24-1.7(a) (West 2008)). The trial court imposed a 21-year
     sentence for armed robbery, which included a 15-year enhancement for the use of a firearm
     and a concurrent 10-year sentence on the conviction of being an AHC. Defendant appealed,
     arguing (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt of
     either charge, (2) the 15-year enhancement of his sentence for armed robbery is
     unconstitutional, and (3) he received ineffective assistance of counsel. On February 11, 2014,
     we issued an opinion, modified upon denial of rehearing, affirming his armed robbery
     conviction but reversing the AHC conviction. People v. Fields, 2014 IL App (1st) 110311. In
     September 2016, our supreme court issued a supervisory order directing us to reconsider that
     judgment in light of its decision in People v. McFadden, 2016 IL 117424. We now affirm
     defendant’s conviction for AHC as well as armed robbery.

¶2                                          BACKGROUND
¶3       The record on appeal discloses the following facts. The State charged defendant with
     armed robbery and being an AHC. Prior to trial, defendant’s counsel filed a motion to suppress
     a show-up identification by the victim, Felicia Rowell. Following a hearing, the circuit court
     denied the motion to suppress.
¶4       Defendant’s counsel also filed a motion in limine to bar admission of his 2005 conviction
     for unlawful use of a weapon and his 2006 conviction for armed robbery as impeachment.
     Fields’s counsel argued that the similarity of the prior convictions to the armed robbery charge
     rendered the evidence unfairly prejudicial. The record shows that the trial judge granted this
     motion, stating that while Fields’s testimony could reopen the issue, the judge could not
     envision a fair trial if the prior convictions were ruled admissible. The trial judge also asked
     how Fields’s counsel intended to handle the AHC charge. Fields’s counsel responded that the
     defense would agree with the State to stipulate to the fact that Fields had two qualifying prior
     convictions, without specifying the exact nature of those convictions.
¶5       At trial, Rowell testified that on December 24, 2009, at approximately 10:15 a.m., she went
     to the Happy Food convenience store at the corner of 115th Street and Princeton Avenue in
     Chicago. Rowell carried $185 in cash to complete her Christmas shopping. Rowell stated that,
     once inside the store, she saw the cashier behind the counter, while Fields and another man
     stood next to an ice cream freezer. Rowell looked at Fields and the other man, and she was
     unsure whether they were in line to check out. They stepped aside, and Rowell got into the line
     to check out. Rowell further stated that, while in line, she looked at the cashier, while Fields
     and the other man stood one or two feet away from her, facing her.
¶6       Rowell purchased a pack of cigarettes, taking the $185 out of her pocket and returning the
     remainder to her top jacket pocket as she left the store. According to Rowell, as she turned
     north, she heard Fields say, “What up?” Looking at Fields over her right shoulder, Rowell
     heard Fields say, “Let me get that.” Rowell testified that she then saw Fields holding a black
     gun at his side, pointed at her. Rowell then looked back at Fields’s face. Rowell also testified
     that she removed her money from her jacket pocket with her right hand and Fields grabbed the
     money with his left hand.

                                                -2-
¶7         Rowell further testified that she continued to look at Fields in the face, but there was a
       moment of awkward silence. According to Rowell, she said, “Dude, it’s Christmas Eve. I’ve
       got kids.” Rowell stated that Fields responded, “Remember my face. This [is] your lucky day.
       Get in your car.” Moreover, Rowell stated that she did look at Fields’s face noting he was a
       dark-skinned male, with hair on his face, wearing a black skull cap, a black jacket with a red
       “H” on it, denim jeans, and a black hoodie. She described Fields as approximately 5 feet 7
       inches, but she said she just knew that he was taller than her own height, 5 feet 5 inches. She
       also described Fields as chubby, weighing between 180 and 200 pounds. She described the
       other man as light-skinned and slender, taller than Fields, and wearing a red jacket. Rowell
       entered her car from the passenger side and drove away. Rowell estimated the time from her
       entry to the store to this point was approximately five minutes.
¶8         Rowell arrived home approximately five minutes later. Rowell testified that she was
       hysterical. When Rowell walked through the door, her husband, children, and brother were
       there. According to Rowell, her brother was on the telephone with their mother. Rowell
       announced that she had been robbed, took the telephone from her brother, and told their mother
       she had been robbed. Rowell’s mother advised her to report the offense to the police. Rowell
       went to a police station on 103rd Street, where she was referred to the fifth district police
       station on 111th Street. Rowell provided a statement to police at the fifth district station.
¶9         Chicago police officer Edgar Neal testified that he worked at the front desk at the fifth
       district police station on December 24, 2009. After refreshing his recollection, Officer Neal
       stated that Rowell described Fields as a black male with a dark complexion and brown eyes,
       wearing a black skull cap and a black hoodie with a red “T” on it, 28 to 30 years old, 5 feet 6
       inches tall, and weighing 190 to 200 pounds. Officer Neal could not recall whether the flash
       message mentioned Fields having facial hair. Officer Neal sent out a flash message by radio
       about the crime, but the police did not locate anyone meeting the description on that day.
¶ 10       Rowell testified that on January 21, 2010, while driving her children to school, she saw
       Fields standing outside Happy Food, wearing the same clothing he wore during the robbery.
       Rowell realized the jacket bore a red “H,” rather than a “T.” She stared at Fields while at a stop
       sign; Fields did not recognize her. Rowell took her children to school, then drove to the fifth
       district police station and showed her original complaint to an officer on duty. The police did
       not locate Fields that day.
¶ 11       Further, Rowell testified that on January 22, 2010, she again saw Fields standing at the
       corner of 115th Street and Princeton Avenue. Fields again drove to the police station, where an
       officer said she would have to wait 30 to 60 minutes for an officer to escort her to search for
       Fields. Rowell said she refused, responding that Fields would be gone by then. Rowell saw
       Fields at the same location during her drive home. Upon arriving home, she telephoned the
       police. Rowell stated that she lived on the west side of the 115th block of Princeton Avenue
       and told the police dispatcher she could see Fields while she was speaking to the dispatcher.
       Rowell told the officer that she would meet the police at 115th Street and Harvard Avenue
       because she did not want them arriving at her house.
¶ 12       Chicago police officer Michael Kavanaugh testified that he and his partner responded to a
       dispatch call at approximately 2 p.m. on January 22, 2010, about a person wanted at 115th
       Street and South Princeton Avenue. The person described by police computer was a black
       male, 28 years old, approximately 5 feet 6 inches, dark complexion, hairy face, and wearing a
       black jacket with a red “H” on the front. When they arrived, there was no one in front of the

                                                   -3-
       Happy Food store, so the police entered the store. Officer Kavanaugh testified that a man
       matching the description, except for his height, was inside the store; he identified the man in
       court as Fields. The police detained Fields, handcuffed him, and brought him outside the store.
¶ 13       According to Officer Cavanaugh, he asked Officers Novy and Coutinho, who also
       responded to the police dispatch call, whether they could bring Rowell to 115th Street and
       Princeton Avenue. Officer Cavanaugh testified that Officers Novy and Coutinho returned
       approximately two minutes later. Officer Cavanaugh stated that he removed Fields from his
       police car as the other officers arrived. When the second police car came to a stop,
       approximately 10 feet away, Rowell looked out the side window and identified Fields. Officer
       Cavanaugh then arrested Fields and took him to the fifth district station.
¶ 14       The State read the jury a stipulation that Fields had “two qualifying felony convictions to
       be considered in connection with the AHC charge.” Those convictions were for armed robbery
       and aggravated unlawful use of a weapon (AUUW).
¶ 15       Christine Fields, defendant’s grandmother, testified that Fields lived with her and other
       family members at 12035 South Wentworth Avenue. Christine testified that she awakened at 6
       a.m. on December 24, 2009, to prepare a Christmas feast. According to Christine, Fields took
       some food from the kitchen at approximately 6:30 a.m. and returned for milk between 10:30 to
       11:00 a.m. Christine did not know whether Fields left the apartment at any other time that day.
¶ 16       Fields testified on his own behalf that he worked at Happy Food for five months before his
       arrest but he received his wages in cash and never filled out tax forms or deposited the wages
       into a bank account. Fields also testified that on the Christmas Eve in question, he spent the
       morning in his bedroom, except for a trip to the kitchen to get some pie. Fields stated he visited
       his nieces that afternoon and went to a mall with a friend that evening, returning home after 10
       p.m. Fields further testified that he bought the Harvard jacket he was wearing at the time of his
       arrest because he grew up near 116th Street and Harvard Avenue. Fields added that he knew
       several people owned this style of jacket for this reason.
¶ 17       Fields did not work on the date of his arrest. Fields stated he was detained in the rear
       driver’s side of a police car for 10 to 15 minutes. According to Fields, an officer opened the
       door and lifted Fields up. Fields stated his left foot was outside the car, while his right foot
       remained inside. Fields saw another police car in the middle of the block. Fields then saw an
       officer in the other car stick his thumb up, whereupon the police shoved Fields back into the car
       where he was held. Fields claimed that the police drove him to the police station without telling
       him why he was arrested.
¶ 18       Following closing arguments and jury instruction, the jury deliberated and found Fields
       guilty of armed robbery and being an AHC. On September 29, 2010, Fields filed a motion for a
       new trial, which the trial court denied on November 3, 2010. The trial court then proceeded to
       a sentencing hearing, imposing a 21-year sentence for armed robbery, which included a
       15-year enhancement for the use of a firearm. The trial court also imposed a concurrent,
       10-year sentence on the charge of being an AHC. The trial court entered the sentencing order
       on January 5, 2011. Fields filed his notice of appeal with this court the same day.
¶ 19       In People v. Fields, 2012 IL App (1st) 110311-U, filed December 28, 2012, Justice Steele
       authored an order vacating the 15-year enhanced portion of defendant’s armed robbery
       sentences and affirming on the remaining issues defendant raised. Justice Steele retired shortly
       after filing that decision. 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,

                                                   -4-
       and the State filed a reply on December 27, 2013. In separate orders filed contemporaneously,
       on February 11, 2014, we denied the State’s petition for rehearing, withdrew the previous order
       filed in this case, and filed a modified opinion on denial of rehearing. People v. Fields, 2014 IL
       App (1st) 110311. On September 28, 2016, our supreme court ordered us to reconsider our
       judgment in light of People v. McFadden, 2016 IL 117424. The parties were allowed to file
       supplemental briefs with respect to McFadden’s impact on this case. We now vacate our
       previous judgment and enter this opinion in its stead.

¶ 20                                           ANALYSIS
¶ 21       On appeal, Fields argued (1) the evidence was insufficient to prove him guilty beyond a
       reasonable doubt of either charge, (2) the 15-year enhancement of his sentence for armed
       robbery is unconstitutional, and (3) he received ineffective assistance of counsel. We address
       his last claim first.

¶ 22                                 I. Ineffective Assistance of Counsel
¶ 23        Fields argues he was denied effective assistance of counsel where his trial attorney failed to
       move for a severance of the charges against him. Generally, in order to show ineffective
       assistance of counsel, a defendant must establish (1) counsel’s representation fell below an
       objective standard of reasonableness and (2) counsel’s alleged deficient performance
       prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). We must show
       great deference to the attorney’s decisions as there is a strong presumption that an attorney has
       acted adequately. Id. at 689. A defendant must overcome the strong presumption the
       challenged action or inaction “might have been the product of sound trial strategy.” People v.
       Evans, 186 Ill. 2d 83, 93 (1999) (and cases cited therein). Every effort must “be made to
       eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
       challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
       Strickland, 466 U.S. at 689. To satisfy the prejudice prong of the Strickland test, a defendant
       must demonstrate a reasonable probability that the outcome of the trial would have been
       different or that the result of the proceeding was unreliable or fundamentally unfair. Id. at 687;
       People v. Evans, 209 Ill. 2d 194, 220 (2004). Such a reasonable probability “is a probability
       sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
¶ 24        Generally, a defense decision not to seek a severance, although it may prove unwise in
       hindsight, is regarded as a matter of trial strategy. People v. Poole, 2012 IL App (4th) 101017,
       ¶ 10. To overcome that general presumption, defendant relies heavily on People v. Edwards,
       63 Ill. 2d 134 (1976). In Edwards, the Illinois Supreme Court held that the trial court abused its
       discretion in refusing to grant the defendant’s motion to sever an unlawful use of weapons
       charge from an armed robbery charge. Id. at 140. Although the State generally has an interest
       in its pursuit of judicial economy in prosecuting all charges against one defendant in one trial,
       that interest was not so strong as to justify the denial of a severance in Edwards. Id. The
       Edwards court’s holding was based on the fact that the weapons count created a strong
       probability that the defendant would be prejudiced in his defense of the armed robbery count
       since the weapons count required the State to prove a previous burglary conviction. Id. Thus,
       the supreme court upheld this court’s reversal of the defendant’s armed robbery conviction. Id.
       Following Edwards, this court has also rejected the argument that this type of prejudice can be
       cured by limiting instructions. People v. Bracey, 52 Ill. App. 3d 266, 274 (1977).

                                                    -5-
¶ 25        However, Edwards does not involve a claim of ineffective assistance of counsel. On the
       specific issue here, the State maintains this case is controlled by People v. Gapski, 283 Ill. App.
       3d 937 (1996). In Gapski, the defendant was convicted of criminal sexual assault and unlawful
       possession of a weapon by a felon. Id. at 939. On appeal, Gapski claimed he received
       ineffective assistance of counsel in part because counsel failed to move to sever the charges,
       thereby allowing the jury considering the sexual assault count to hear that Gapski was
       convicted of burglary in 1977. Id. at 941.
¶ 26        The Gapski court ruled that trial counsel’s failure to seek a severance could be viewed as a
       matter of trial strategy. Id. at 942. This court reasoned that counsel no doubt anticipated that
       the defendant would testify at trial and that his credibility could be impeached with another
       prior felony conviction from Wisconsin pursuant to People v. Montgomery, 47 Ill. 2d 510,
       515-16 (1971). “Thus, regardless of whether the two counts were severed, the jury would be
       aware that the defendant had a prior felony.” Gapski, 283 Ill. App. 3d at 942. The Gapski court
       considered that counsel may have “felt that it made sense to try for an acquittal of both counts
       in one proceeding, thinking that the impact of the additional conviction would not be
       significant.” Id. at 943. Furthermore, the Gapski court noted that the jury for the sexual assault
       count would hear all the evidence regarding the related weapons charge, regardless of whether
       the counts were severed, because the evidence regarding the weapons charge was related to the
       sexual assault count as an admission against the defendant’s interest. Id.
¶ 27        The instant case is distinguishable from Gapski. Although the State asserts that the jury in a
       severed armed robbery case would have heard about the prior convictions as impeachment, the
       trial judge here had ruled in limine that Fields’s 2005 conviction for unlawful use of a weapon
       and his 2006 conviction for armed robbery would be barred as impeachment. Indeed, the trial
       judge stated on the then-existing record that he could not envision a fair trial if the prior
       convictions were ruled admissible. The fact that defense counsel moved to bar admission of the
       prior convictions demonstrates an awareness of the prejudice Fields would suffer from a jury
       hearing about them in the armed robbery case. Additionally, the fact that the trial judge granted
       the motion shows that the trial judge recognized the convictions were sufficiently prejudicial to
       deny Fields a fair trial. The case law suggests the motion to sever would have been granted if
       counsel had made one. Edwards, 63 Ill. 2d at 140. The jury heard a stipulation to the mere fact
       of the prior qualifying convictions, but this does not eliminate the unfair prejudice to Fields, as
       the prior convictions at issue had no factual relationship to the armed robbery charge and a bare
       announcement unavoidably invites jury speculation about the nature of the prior crime. See
       People v. Atkinson, 186 Ill. 2d 450, 459 (1999).
¶ 28        Nevertheless, the basic premise of Gapski and Poole is that, when deciding whether to seek
       a severance, defense counsel may choose to pursue an “all or nothing” trial strategy, in which
       the defendant is acquitted or convicted of all charges in a single proceeding. Illinois case law
       endorses the “all-or-nothing” strategy in other situations, such as where the defense decides to
       forgo the fact finder’s consideration of lesser included offenses. See, e.g., People v. Walton,
       378 Ill. App. 3d 580, 589 (2007) (and cases cited therein). The mere fact that an
       “all-or-nothing” strategy proved unsuccessful does not mean counsel performed unreasonably
       and rendered ineffective assistance. Id. Moreover, in this case, while an “all or nothing”
       strategy required exposing the jury hearing the armed robbery charge to prejudicial
       information it would not have heard if the cases had been severed, the stipulation to the mere
       fact of the conviction mitigated the prejudice to defendant when compared to the specific

                                                    -6-
       offenses heard by the jury in Edwards. See People v. Walker, 211 Ill. 2d 317, 338-39 (2004).
       Here, defense counsel may have believed that the odds of getting two acquittals were greater in
       one proceeding, rather than two proceedings. Accordingly, defendant has failed to overcome
       the strong presumption that defense counsel’s action or inaction “might have been the product
       of sound trial strategy.” Evans, 186 Ill. 2d at 93. Thus, we conclude that defendant did not
       receive ineffective assistance of counsel.

¶ 29                                    II. Sufficiency of the Evidence
¶ 30        Defendant claims the State failed to prove him guilty beyond a reasonable doubt of either
       charge. When the sufficiency of the evidence for a criminal conviction is in dispute, we must
       determine whether, after viewing the evidence in the light most favorable to the prosecution,
       any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.
       People v. Wheeler, 226 Ill. 2d 92, 114 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 319
       (1979)). It is not an appellate court’s function to retry the defendant. People v. Collins, 106 Ill.
       2d 237, 261 (1985). Determinations of the credibility of witnesses, the weight to be given to
       their testimony, and the reasonable inferences to be drawn from the evidence are the
       responsibility of the trier of fact. People v. Furby, 138 Ill. 2d 434, 455 (1990). For a reviewing
       court to set aside a criminal conviction due to insufficient evidence, the evidence submitted
       must be so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of the
       defendant’s guilt. People v. Rowell, 229 Ill. 2d 82, 98 (2008).
¶ 31        Fields maintains that the evidence was insufficient to convict him of armed robbery where
       the conviction was based on identification testimony of a sole eyewitness. In Illinois, unless
       vague or doubtful, eyewitness identification of an accused, even that of a single eyewitness,
       will sustain a conviction if the witness viewed the accused under circumstances permitting a
       positive identification. People v. Lewis, 165 Ill. 2d 305, 356 (1995) (citing People v. Slim, 127
       Ill. 2d 302, 307 (1989)). The assessment of identification testimony is now customarily
       conducted by application of the factors set forth in Neil v. Biggers, 409 U.S. 188, 199-200
       (1972), and adopted in Illinois. See Slim, 127 Ill. 2d at 307. These factors are:
                “(1) the opportunity the victim had to view the criminal at the time of the crime; (2) the
                witness’ degree of attention; (3) the accuracy of the witness’ prior description of the
                criminal; (4) the level of certainty demonstrated by the victim at the identification
                confrontation; and (5) the length of time between the crime and the identification
                confrontation.” Lewis, 165 Ill. 2d at 356 (citing Slim, 127 Ill. 2d at 307-08).
¶ 32        We note that defendant’s argument often refers to various studies on the reliability of
       eyewitness testimony, none of which appear to have been introduced at trial. On some of the
       Biggers factors, Fields also cites People v. Allen, 376 Ill. App. 3d 511, 524 (2007), which
       discussed proffered expert testimony, which is not at issue here.
¶ 33        In this case, viewing the evidence in the light most favorable to the State, the record shows
       that Rowell had the opportunity to observe Fields both before and during the robbery. The
       record also shows that Rowell paid attention to Fields’s face, particularly after Fields told her
       to do so. The record further shows that Rowell’s description of Fields was accurate, except for
       his height, which was accurate only relative to hers. This discrepancy is not fatal to the
       witness’s identification. See Slim, 127 Ill. 2d at 308-09. The record shows that Rowell was
       certain of her identification immediately prior to the arrest. Regarding the length of time
       between the crime and the identification confrontation, the record indicates that over four

                                                    -7-
       weeks elapsed. However, as the State notes, Illinois courts have upheld convictions involving
       much longer delays. See People v. Holmes, 141 Ill. 2d 204, 242 (1990) (and cases cited
       therein). Accordingly, the time difference does not invalidate the reliability of the
       identification.
¶ 34       Moreover, Fields also maintains the evidence was insufficient to convict him of either
       charge because the State failed to prove beyond a reasonable doubt that he was armed. The
       offenses of armed robbery and being an AHC both require proof that the defendant possessed a
       firearm. 720 ILCS 5/18-2(a)(2), 24-1.7(a) (West 2008).
¶ 35       Section 2-7.5 of the Criminal Code of 1961 states that “[e]xcept as otherwise provided in a
       specific [s]ection, ‘firearm’ has the meaning ascribed to it in [s]ection 1.1 of the Firearm
       Owners Identification Card Act.” 720 ILCS 5/2-7.5 (West 2008). Section 1.1 of the Firearm
       Owners Identification Card Act (FOID Act) provides:
                    “ ‘Firearm’ means any device, by whatever name known, which is designed to
                expel a projectile or projectiles by the action of an explosion, expansion of gas or
                escape of gas; excluding, however:
                        (1) any pneumatic gun, spring gun, paint ball gun or B-B gun which either
                    expels a single globular projectile not exceeding .18 inch in diameter and which has
                    a maximum muzzle velocity of less than 700 feet per second or breakable paint
                    balls containing washable marking colors;
                        (2) any device used exclusively for signalling or safety and required or
                    recommended by the United States Coast Guard or the Interstate Commerce
                    Commission;
                        (3) any device used exclusively for the firing of stud cartridges, explosive rivets
                    or similar industrial ammunition; and
                        (4) an antique firearm (other than a machine-gun) which, although designed as
                    a weapon, the Department of State Police finds by reason of the date of its
                    manufacture, value, design, and other characteristics is primarily a collector’s item
                    and is not likely to be used as a weapon.” 430 ILCS 65/1.1 (West 2008).
¶ 36       While this statutory definition excludes some specific types of firearms, the term “firearm”
       is defined broadly, including “any device, by whatever name known, which is designed to
       expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of
       gas.” Id.; see also People v. Toy, 407 Ill. App. 3d 272, 287 (2011). Thus, contrary to Fields’s
       assertion that the State must prove the gun is a firearm by direct or physical evidence,
       unequivocal testimony of a witness that the defendant held a gun is circumstantial evidence
       sufficient to establish that a defendant is armed during a robbery. People v. Lee, 376 Ill. App.
       3d 951, 955 (2007); People v. Thomas, 189 Ill. App. 3d 365, 371 (1989).
¶ 37       Fields argues this case is controlled by People v. Ross, 229 Ill. 2d 255 (2008). The Ross
       court held that the State had produced insufficient evidence of a “dangerous weapon” in an
       armed robbery case where the victim testified that the gun was small, portable, and concealable
       and a police officer testified that the gun was a .177-caliber pellet gun with a three-inch barrel.
       Id. at 276-77. However, the current version of the armed robbery statute deleted the
       requirement of proof of a “dangerous weapon” when the defendant is armed with a firearm.
       See 720 ILCS 5/18-2(a)(2) (West 2008); Toy, 407 Ill. App. 3d at 291. In this case, Rowell
       testified that Fields held a black gun at his side during the robbery. There is no evidence


                                                    -8-
       suggesting the gun falls within the statutory exception to the general, broad definition of a
       firearm in the FOID Act, nor is this a case where the State destroyed the gun, precluding the
       defendant from mounting a defense. See People v. Crowder, 323 Ill. App. 3d 710, 712-13
       (2001).
¶ 38       For the first time in his answer to the State’s petition for rehearing, defendant argued that
       his AHC conviction was void in light of People v. Aguilar, 2013 IL 112116. 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 statute 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).
¶ 39       Defendant maintained that because his prior conviction for the Class 4 form of AUUW
       under case No. 05 CR 17736 was void under Aguilar, the State could not rely on this now-void
       conviction as a predicate offense for AHC. Therefore, the State failed to prove an essential
       element of the offense of AHC.
¶ 40       A person commits the offense of AHC when “he or she receives, sells, possesses, or
       transfers any firearm after having been convicted” of two qualifying offenses. 720 ILCS
       5/24-1.7 (West 2008). Count I of the indictment alleged that defendant committed the offense
       of AHC when defendant knowingly possessed a firearm after having been convicted of armed
       robbery in case number 06 CR 14139 and AUUW in case number 05 CR 17736. The parties
       stipulated to these prior convictions during trial. The prior convictions were elements of the
       offense of AHC that the State was required to prove. 720 ILCS 5/24-1.7(a) (West 2008);
       People v. Davis, 405 Ill. App. 3d 585, 597 (2010).
¶ 41       Our supreme court decided People v. McFadden, 2016 IL 117424, on June 16, 2016, which
       involved a direct appeal from a UUWF conviction for possessing a firearm after having a prior
       conviction for AUUW. McFadden argued that his UUWF conviction should be vacated
       because it was predicated on his prior AUUW conviction, which was entered under the section
       of the statute that was held facially unconstitutional in Aguilar, and thus, the State failed to
       prove all of the elements of the offense. Id. ¶ 13.
¶ 42       Reversing this court’s decision in People v. McFadden, 2014 IL App (1st) 102939, which
       vacated defendant’s UUWF conviction on the basis that the predicate offense of AUUW was
       void ab initio, our supreme court held that defendant’s status as a felon was not affected by
       Aguilar. Our supreme court examined the language of the UUWF statute, which prohibits a
       person from knowingly possessing a firearm “ ‘if the person has been convicted of a felony
       under the laws of this State or any other jurisdiction.’ ” McFadden, 2016 IL 117424, ¶ 27
       (quoting 720 ILCS 5/24-1.1(a) (West 2008)). The court explained “the language of the statute
       [(UUWF)] requires the State to prove only ‘the defendant’s felon status’ ” and does not require
       that the State prove the predicate offense at trial. Id. (quoting People v. Walker, 211 Ill. 2d 317,
       337 (2004)); 720 ILCS 5/24-1.1(a) (West 2008). The court expressly found that “[n]othing on
       the face of the statute suggests any intent to limit the language to only those persons whose
       prior felony convictions are not later subject to vacatur” and further found that “the language of
       section 24-1.1(a) is ‘consistent with the common-sense notion that a disability based upon
       one’s status as a convicted felon should cease only when the conviction upon which that status
       depends has been vacated.’ ” Id. ¶¶ 27, 29 (quoting Lewis v. United States, 445 U.S. 55, 61 n.5
       (1980)). Furthermore, the McFadden court found that because the purpose of the UUWF

                                                    -9-
       statute is to protect the public from persons who are potentially dangerous and irresponsible, it
       is immaterial if the predicate conviction is subsequently found invalid for any reason. Id.
       Consequently, the court found that the UUWF statute is a “status offense” and that the
       legislature intended that a defendant must clear his felon status through the judicial process by
       having his prior felony conviction vacated or expunged prior to obtaining a firearm. Id.
       ¶¶ 29-30. The court explained:
                    “It is axiomatic that no judgment, including a judgment of conviction, is deemed
                vacated until a court with reviewing authority has so declared. As with any conviction,
                a conviction is treated as valid until the judicial process has declared otherwise by
                direct appeal or collateral attack. Although Aguilar may provide a basis for vacating
                defendant’s prior 2002 AUUW conviction, Aguilar did not automatically overturn that
                judgment of conviction. Thus, at the time defendant committed the UUW by a felon
                offense, defendant had a judgment of conviction that had not been vacated and that
                made it unlawful for him to possess firearms.” Id. ¶ 31.
¶ 43       The parties in this case filed supplemental briefs discussing McFadden’s impact on this
       case. Defendant now argues that McFadden is inapplicable to the AHC offense because
       McFadden limited its decision to the UUWF offense and, pursuant to Lewis, on which
       McFadden relied, we cannot apply McFadden to a recidivist offense such as AHC because an
       invalid prior conviction cannot be used to prove the felony element of a recidivist statute like
       AHC or to enhance punishment.
¶ 44       Since McFadden, this court decided People v. Perkins, 2016 IL App (1st) 150889, wherein
       we applied the McFadden analysis to an AHC conviction. Perkins was convicted as an AHC
       and filed a postconviction petition alleging the State failed to prove him guilty beyond a
       reasonable doubt because his AHC conviction was predicated on the AUUW statute found
       facially unconstitutional under Aguilar and therefore void ab initio. Perkins, 2016 IL App (1st)
       150889, ¶ 2. The State appealed from the trial court’s order granting postconviction relief.
       Perkins, 2016 IL App (1st) 150889, ¶ 3.
¶ 45       On appeal, the defendant argued that McFadden’s reasoning was limited to the offense of
       UUWF because “UUWF impose[d] a ‘status-based disability’ that precludes any convicted
       felon from possessing a firearm” whereas “the offense of [AHC] requires the State to prove
       that the defendant was convicted of specific enumerated offenses.” Id. ¶ 6. He further argued
       that UUWF imposed a “status-based disability” whereas the AHC conviction “imposes a
       conduct-based disability *** based on a defendant’s commission of specific acts” and
       therefore “because the conduct of which he was previously convicted—possession of a
       firearm—was constitutionally protected, it cannot serve as a predicate for his [AHC]
       conviction.” (Emphasis in original.) Id.
¶ 46       The Perkins court rejected defendant’s attempt to distinguish the UUWF offense from the
       AHC offense in this context as a “distinction without a difference.” Id. ¶ 7. We explained:
                “In order to sustain its burden to prove that defendant is an [AHC], the State need only
                prove the fact of the prior convictions of enumerated offenses [citations], just as the
                State need only prove the fact of a prior felony conviction to support a UUWF
                conviction. Nothing in the [AHC] statute requires a court to examine a defendant’s
                underlying conduct in commission of the enumerated offenses in order to find that the
                State has sustained its burden of proof. And because here, as in McFadden, Perkins’


                                                  - 10 -
               prior convictions had not been vacated prior to his [AHC] conviction, they could
               properly serve as predicates for that conviction.” Id.
¶ 47       We find that the reasoning employed in Perkins applies in the case at bar to defendant’s
       attempt to distinguish the AHC statute in this case from the UUWF statute in McFadden. As a
       result of defendant’s failure to vacate his prior AUUW conviction prior to the time he
       possessed a firearm in this case, the prior AUUW conviction could serve as the predicate
       offense for his AHC conviction. Id. ¶ 10. Accordingly, we reject defendant’s argument.
¶ 48       We note that defendant has cited Burgett v. Texas, 389 U.S. 109 (1967), United States v.
       Tucker, 404 U.S. 443 (1972), and United States v. Bryant, 579 U.S. ___, 136 S. Ct. 1954
       (2016), in support of the proposition that invalid convictions cannot be used in subsequent
       proceedings to prove the prior felony element of a recidivist statute or be relied upon to impose
       a longer sentence. Defendant’s reliance on these cases is misplaced.
¶ 49       Recidivist statutes like the ones in Bryant and Burgett, or the imposition of a harsher
       sentence as in Tucker, depend on the reliability of those prior convictions. See Lewis, 445 U.S.
       at 67 (“Use of an uncounseled felony conviction as the basis for imposing a civil firearms
       disability, enforceable by a criminal sanction, is not inconsistent with Burgett [or] Tucker
       ***.”). The Lewis court explained that “gun laws, however, focus not on reliability, but on the
       mere fact of conviction, or even indictment, in order to keep firearms away from potentially
       dangerous persons.” Id. McFadden acknowledged that Lewis dealt with a federal statute, but
       our supreme court found “no reason to treat the interpretation of section 24-1.1(a) [(UUWF)]
       differently than the Supreme Court’s interpretation of the similar federal statute in Lewis.”
       McFadden, 2016 IL 117424, ¶ 28. As the State was only required to prove the “status” of
       defendant’s prior convictions to establish AHC and not their reliability, we reject defendant’s
       argument.

¶ 50                                III. The Armed Robbery Sentence
¶ 51       In his opening brief, defendant argued that the 15-year statutory enhancement of his armed
       robbery sentences under section 18-2(b) was unconstitutional. 720 ILCS 5/18-2(b) (West
       2008). 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).
¶ 52       As defendant correctly noted, the 15-year firearm sentencing enhancement for armed
       robbery was declared unconstitutional in People v. Hauschild, 226 Ill. 2d 63, 86-87 (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 sentencing enhancement. The parties recognized a split in the districts as to
       whether the sentencing enhancement had been revived. The 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,

                                                  - 11 -
       ¶¶ 15-16, and People v. Williams, 2012 IL App (1st) 100126, ¶ 55 (dicta). 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).
¶ 53       While the State’s January 11, 2013, petition for rehearing directed at our original
       December 28, 2012, opinion 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 18-2(b) of the Code and, therefore, the 15-year sentence
       enhancement imposed in this case is constitutional. Id.; 720 ILCS 5/18-2(b) (West 2008).

¶ 54                                        CONCLUSION
¶ 55      We conclude that Fields did not receive ineffective assistance of counsel. We also
       conclude that the evidence against Fields was sufficient to convict him of armed robbery and
       AHC, and we affirm his conviction and sentence.

¶ 56      Affirmed.




                                                 - 12 -
