                                                    THIRD DIVISION
                                                 February 20. 2008




No. 1-06-2954



THE PEOPLE OF THE STATE OF ILLINOIS,     )     Appeal from the
                                         )     Circuit Court of
           Plaintiff-Appellee,           )     Cook County.
                                         )
                v.                       )
                                         )
DWAYNE CHANEY                            )     Honorable
                                         )     John A. Wasilewski,
           Defendant-Appellant.          )     Judge Presiding.


     PRESIDING JUSTICE QUINN delivered the opinion of the court:

     Defendant Dwayne Chaney was charged in a six-count

indictment with two counts of unlawful possession of a weapon by

a felon (720 ILCS 5/24-1.1 (West 2004)) and four counts of

aggravated unlawful use of a weapon (720 ILCS 5/24-1.6 (West

2004)).   Due to his prior criminal history, the charges against

him constituted Class 2 felonies.   Following a bench trial,

defendant was convicted on two counts of unlawful use of a weapon

by a felon and two counts of aggravated unlawful use of a weapon,

which were merged with the first two counts.   At sentencing, the

court noted defendant's prior criminal history, and thereafter

sentenced him as a Class X offender to two concurrent terms of
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seven years' imprisonment.    On appeal, defendant contends that he

was subjected to improper double enhancement of his sentences

where the same prior conviction was used to first elevate the

seriousness of the charged offenses and later used to increase

the classification of his sentence.    We agree.   We vacate the

sentencing order and remand this case for resentencing.



                              BACKGROUND

     The evidence adduced at trial shows that about 3 p.m. on

June 30, 2005, off-duty police officer Millaun Brown was in his

home at 7221 South Hermitage Avenue in Chicago when he heard 12

to 15 gunshots.   Officer Brown then went outside and saw five or

six black males dressed in white T-shirts and jeans running

northbound on Hermitage toward him.    Officer Brown did not

recognize the men, but he testified that they were shouting his

name and carrying guns in their hands.

     As the men ran past, Officer Brown pulled out his gun and

displayed his police badge.    He then looked southbound and saw

defendant running toward him with a gun in his hand.     Officer

Brown ordered defendant to stop and drop his gun.     In response,

defendant stopped in front of the house next to Officer Brown's

home.   Although defendant testified at trial that he did not have

a gun, Officer Brown testified that he recovered defendant's gun


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after defendant tossed it to the side.

     As defendant lay on the ground, Officer Brown yelled for his

neighbors to call 9-1-1.   Thereafter, Officers Aceves and Leonard

arrived and placed defendant in custody.    Officer Brown handed

defendant's .45-caliber handgun to Officer Aceves.    The gun had a

bullet jammed in its chamber, which indicated that it misfired,

and a clip with three unfired rounds.    Officer Aceves later

inventoried the gun and ammunition.   Defendant admitted to

Officer Aceves that he did not have a firearms owner's

identification card.

     Subsequently, defendant was indicted on six counts.    Counts

I and II resulted from defendant's unlawful possession of a

weapon by a felon, which stemmed from his possession of a handgun

(720 ILCS 5/24-1.1 (West 2004)) and ammunition (720 ILCS 5/24-1.1

(West 2004)), respectively.   Counts III through VI pertained to

aggravated unlawful use of a weapon (720 ILCS 5/24-1.6 (West

2004)).

     During a pretrial conference on defendant's bond, the

assistant State's Attorney (ASA) argued that defendant was

subject to mandatory Class X felony sentencing if convicted based

on two prior Class 2 felony convictions from 2000 and 2001 for

violations of the Illinois Controlled Substances Act (720 ILCS

570/100 et seq. (West 2004)).


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     At trial, the State introduced a certified copy of

conviction, which showed that defendant had been previously

convicted of delivery of an controlled substance on February 26,

2001.   The conviction also constituted a violation of his

probation from a March 2000 conviction for possession of a

controlled substance.     The ASA further commented, "For the

limited purpose of satisfying the element of the charge."

Defendant stipulated to the conviction, and it was admitted into

evidence.    The record is devoid of that document.

     Following the parties' closing arguments, the trial court

found defendant guilty on counts I and II, unlawful use of a

weapon by a felon, and counts III and V, aggravated unlawful use

of a weapon, which merged with the first two counts.       The trial

court identified counts I and II as Class 2 felonies.

     At sentencing, defendant presented mitigating evidence such

as his recent employment as a construction worker.      Subsequently,

the court delivered defendant's sentence as follows:

            "All right.   Well, number one as far as the

            prior convictions, the law requires me to

            sentence you as a Class X offender.   This is

            your third Class 2 or greater conviction and

            the law -- the Legislature has decided that

            any person in that circumstance is to be


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            sentenced as a Class X offender.   I am

            required to do that.   Now, I have entered

            judgment on the finding of guilty.    I entered

            it actually -- I merged a lot of the counts

            into Count 1 which is the UUW by a felon and

            Count 2 which is also UUW by a felon for

            bullets.   One is the gun and one is the

            bullets because the gun doesn't have to be

            loaded in an unlawful use of a weapon by a

            felon charge.

                 I have considered the facts of this

            case, those matters in aggravation and

            mitigation; both the statutory factors in

            aggravation and mitigation as pointed out to

            me by the parties.   I also considered the

            arguments and the statements made by the

            parties and based on everything involved,

            it's the sentence order of this Court that

            you serve a period of seven years in the

            Illinois Department of Corrections.    These

            sentences are to run concurrent to each

            other; at the same time."

The court then awarded defendant 43 days' credit for pretrial


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incarceration.

     Thereafter, defendant filed a motion to reconsider and for a

new trial, which the circuit court denied.   Defendant did not

file a motion to challenge his sentence.   That said, defendant

now appeals his sentence.



                             ANALYSIS

     The sole issue before this court is whether the circuit

court erroneously subjected defendant to double enhancement by

using his previous Class 2 felony convictions to elevate the

seriousness of the charged offenses in the case at bar, unlawful

use of a weapon by a felon, to Class 2 felonies and then used the

same prior convictions to sentence defendant as a Class X felon.

Although the imposition of a sentence is a matter within the

trial court's discretion (People v. Jones, 168 Ill. 2d 367, 373

(1995)), this issue involves a question of law, and thus, we

review defendant's sentence de novo.

     We first note that defendant neither objected to his

sentence at sentencing nor filed a posttrial motion to reconsider

his sentence.    Rather, he waited until appeal to raise this issue

for the first time.   As such, the State argues that defendant

waived this issue.    People v. Reed, 177 Ill. 2d 389, 391 (1997).

Defendant responds that the sentence was void and thus is


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reviewable at anytime.    In the alternative, defendant invokes the

plain error doctrine pursuant to Supreme Court Rule 615(a)(134

Ill. 2d R. 615(a)) and contends that his counsel provided

ineffective assistance by not objecting to the sentence.

     Although defendant failed to properly preserve this issue

for appeal, our supreme court has recognized that a sentence, or

a portion thereof, that is not authorized by statute is void.

People v. Thompson, 209 Ill. 2d 19, 23 (2004).       In Thompson, our

supreme court noted that the defendant was convicted of two

offenses of differing classes.      The court then held:

            "Pursuant to section 5-8-2(a) of the Code,

            the circuit court could impose an extended-

            term sentence only on the greater offense,

            i.e., aggravated battery.     Accordingly, the

            extended-term sentence imposed on the order

            of the protection conviction was unauthorized

            by statute and void."     Thompson, 209 Ill. 2d

            at 24.

The court further stated:

                 "We have very recently reiterated that

            a sentence which does not conform to a

            statutory requirement is void.     People v.

            Pinkonsly, 207 Ill. 2d 555, 569 (2003),


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            quoting People v. Arna, 168 Ill. 2d 107, 113

            (1995).   As the circuit court here lacked the

            statutory authority to impose an extended-

            term sentence on the conviction for violation

            of an order of protection, the extended-term

            sentence is void.

                  We now turn to the question of whether

            the defendant may challenge the void order in

            this appeal.   It is a well-settled principle

            of law that a void order may be attacked at

            any time or in any court, either directly or

            collaterally."   Thompson, 209 Ill. 2d at 24-

            25.

     In the case at bar, even though defendant's sentence fell

within the statutory parameters of 3 to 14 years, his sentence as

a Class X felon does not conform to the statute and thus is void.

As such, we review this issue pursuant to Supreme Court Rule

615(a) (134 Ill. 2d R. 615(a)).

     Section 5-5-3(c)(8) of the Unified Code of Corrections

(Code) states:

                  "When a defendant, over the age of 21

            years, is convicted of a Class 1 or Class 2

            felony, after having twice been convicted in


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            any state or federal court of an offense that

            contains the same elements as an offense now

            classified in Illinois as a Class 2 or

            greater Class felony and such charges are

            separately brought and tried and arise out of

            different series of acts, such defendant

            shall be sentenced as a Class X offender."

            730 ILCS 5/5-5-3(c)(8) (West 2004).

     Our supreme court has stated that double enhancement occurs

in one of two situations: (1) where the same factor constitutes

an element of the offense and serves as a basis for imposing a

harsher sentence than otherwise would have been imposed; or (2)

where the same factor is used twice to elevate the seriousness of

the offense itself.    People v. Phelps, 211 Ill. 2d 1, 12-13

(2004).   That said, a double enhancement is not erroneous where

the legislature clearly expresses an intent to allow double

enhancement.    Phelps, 211 Ill. 2d at 15.

     The parties agree that defendant had two prior convictions

for violations of section 401(d) of the Illinois Controlled

Substances Act (Act) (720 ILCS 570/401(d) (West 2004)).     That

section provides in pertinent part:

                 "Any person who violates this Section

            with regard to any other amount of a


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            controlled or counterfeit substance

            classified in Schedules I or II, or an analog

            thereof, which is (i) a narcotic drug *** is

            guilty of a Class 2 felony."   720 ILCS

            570/401(d) (West 2004).

     In the case at bar, defendant was convicted of unlawful use

of a weapon by a felon pursuant to section 24-1.1(a) of the

Criminal Code of 1961 (720 ILCS 5/24-1.1(a) (West 2004)).

Section 5-24-1.1(e) provides in pertinent part:

                 "Sentence.   Violation of this Section by

            a person not confined in a penal institution

            shall be a Class 3 felony for which the

            person, if sentenced to a term of

            imprisonment, shall be sentenced to no less

            than 2 years and no more than 10 years.

            Violation of this Section by a person not

            confined in a penal institution who has been

            convicted of a forcible felony, a felony

            violation of Article 24 of this Code or of

            the Firearm Owners Identification Card Act,

            stalking or aggravated stalking, or a Class 2

            or greater felony under the Illinois

            Controlled Substances Act or the Cannabis


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            Control Act is a Class 2 felony for which the

            person, if sentenced to a term of

            imprisonment, shall be sentenced to not less

            than 3 years and not more than 14 years."

            720 ILCS 5/24-1.1(e) (West 2004).

Although unlawful use of a weapon would normally constitute a

Class 3 felony (720 ILCS 5/24-1.1(e) (West 2004)), defendant's

prior convictions for Class 2 felonies under the Act (720 ILCS

570/100 et seq. (West 2004)) resulted in the offenses in the case

at bar constituting Class 2 felonies (720 ILCS 5/24-1.1(e) (West

2004)).   Accordingly, defendant has been convicted of a Class 2

felony on three separate occasions.

     Based on defendant's present conviction constituting a Class

2 felony conviction, the State argues that section 5-5-3(c)(8) of

the Code mandated the trial court to sentence defendant as a

Class X felon.    Defendant counters that the same prior offenses

cannot be used to first increase the classification of his

present offense and then increase the classification of his

sentence.    In his appellate brief, defendant asserts that since

his possession of a weapon would have constituted aggravated

unlawful use of a weapon, a Class 4 felony pursuant to section

24-1.6(a) of the Criminal Code (720 ILCS 5/24-1.6(a) (West

2004)), absent his prior convictions, his indictment for unlawful


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use of a weapon by a felon constituted an enhancement.

     An argument nearly identical to defendant's contention was

rejected by our supreme court in People v. Gonzalez, 151 Ill. 2d

79 (1992), where the court affirmed a defendant's extended-term

sentence imposed pursuant to section 5-5-3.2(b)(1) of the Code on

the defendant's conviction for unlawful use of a weapon by a

felon.   The court explained in pertinent part:

                 "[S]ections 24-1 and 24-1.1 create

            separate, independent offenses.   In enacting

            section 24-1.1, the legislature determined it

            should be criminal for a felon to possess any

            firearm, in any situation.   In enacting

            section 24-1, the legislature decided that it

            should be a crime for persons other than

            those exempted by section 24-2 to possess

            certain weapons, in certain, defined manners.

            Accordingly, under this scheme, it is always

            a felony offense for a felon to possess a

            firearm even though a nonfelon who possesses

            the same firearm in the same manner may be

            guilty of only a misdemeanor or of no crime

            at all, depending on the facts.

                 We therefore conclude that section 24-


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            1.1 is not merely an 'upgraded' version of

            the offense created by section 24-1; rather,

            it is a separate, distinct offense.       The fact

            that the offender must be a convicted felon

            is merely an element of the crime, it is not

            an 'enhancement' provision.       Defendant's

            contention that his crime was a felony solely

            because it was 'upgraded' or 'enhanced' is

            therefore incorrect.

                 Accordingly, we reject defendant's

            argument that section 5-5-3.2(b)(1)

            [permitting extended-term sentenced] cannot

            be applied to a conviction for unlawful use

            of a weapon by a felon.       We hold that section

            5-5-3.2(b)(1) applies to convictions obtained

            under section 24-1.1 in the same manner as it

            applies to all other felonies." (Emphasis in

            original.)   Gonzalez, 151 Ill. 2d at 87-88.

     In addition to Gonzalez, the State relies upon the holding

in People v. Thomas, 171 Ill. 2d 207 (1996).         There the supreme

court reversed the appellate court's holding that the use of the

defendant's prior two felony convictions to classify him as a

Class X felon pursuant to section 5-5-3(c)(8) and also


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considering the same convictions as an aggravating factor in

sentencing the defendant beyond the six-year minimum term

constituted double enhancement.     Therein the court stated:

                 "Contrary to the appellate court's

            finding, the instant case does not involve a

            double enhancement.   Section 5-5-3(c)(8) does

            not elevate the class of a crime, but merely

            sets forth criteria under which a defendant

            shall be sentenced according to the

            guidelines for a Class X felon.    See People

            v. Jameson, 162 Ill. 2d 282, 290 (1994)

            (under section 5-5-3(c)(8), a defendant's

            sentence is increased because of prior felony

            convictions, but the classification of

            offense with which the defendant is charged

            and convicted remains the same).   Under this

            statute, the legislature manifested its

            intent to subject certain defendants

            convicted of Class 1 and Class 2 felonies to

            an enhanced sentencing range of from 6 to 30

            years.   Therefore, defendant's offense was

            not enhanced from a Class 1 to a Class X

            felony; he was simply subject to a single


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            punishment enhancement to the Class X range."

            (Emphasis in original and omitted.)     Thomas,

            171 Ill. 2d at 224.

     The defendant in Thomas had been convicted of second degree

murder, a Class 1 felony.      Like defendant at bar, he had been

previously convicted of two separate Class 2 felonies.        However,

the defendant's second degree murder conviction constituted a

Class 1 felony with no consideration of the defendant's prior

Class 2 convictions.      In the instant case, defendant's conviction

for unlawful use of a weapon by a felon constituted a Class 2

felony only because of his prior Class 2 felony convictions under

the Act.    720 ILCS 5/24-1.1(e) (West 2004).

     In a motion to cite additional authority, the defendant asks

us to consider the recent decision in People v. Owens, 377 Ill.

App. 3d 302 (2007).      There, the first division of the First

District considered whether a defendant who had been convicted of

aggravated unlawful use of a weapon (720 ILCs 5/24-1.6 (West

2004)) was required to be sentenced as a Class X offender where

he, similar to defendant at bar, had been previously sentenced

for two prior Class 2 convictions.       Section 24-1.6(d) of the

Criminal Code (720 ILCS 5/24-1.6(d) (West 2004)) provides:

            "Sentence.    Aggravated unlawful use of a

            weapon by a person who has been previously


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            convicted of a felony in this State or

            another jurisdiction is a Class 2 felony for

            which the person shall be sentenced to a term

            of imprisonment of not less than 3 years and

            not more than 7 years."

       The Owens court discussed our supreme court's holding in

People v. Hobbs, 86 Ill. 2d 242 (1981), which held a trial

court's use of a prior felony conviction to first increase the

defendant's current conviction from a misdemeanor to a Class 4

felony and then use the same prior conviction to impose an

extended-term sentence under section 5-5-3.2(b) of the Code

constituted improper double enhancement.     The court then set

forth the same argument that the State proffers in the case at

bar.    The court framed the State's argument as follows:

                 "Although the State concedes the trial

            court engaged in double enhancement in this

            case, it contends double enhancement is

            proper when determining eligibility for Class

            X sentencing because it is specifically

            authorized by the legislature in section 5-5-

            3(c)(8).   Given the mandatory nature of Class

            X sentencing, the State contends there is

            sufficiently clear legislative intent to


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            permit double enhancement in this type of

            case."   Owens, 377 Ill. App. 3d at 304-05.

     The first division noted that the State relied on Thomas,

171 Ill. 2d at 207, which "upheld Hobbs but limited its

application to 'situations where the same prior conviction is

used both to enhance the class of an offense and to enhance the

punishment for that offense.'       Thomas, 171 Ill. 2d at 226."

Owens, 377 Ill. App. 3d at 305. The first division concluded:

                 "[W]e find nothing in the statutory

            language of section 5-5-3(c)(8) *** expressly

            indicates [that] the legislature intended

            double enhancement to be permissible in Class

            X sentencing.

                 Here, the record reflects defendant had

            only two prior Class 2 or higher felony

            convictions-convictions for delivery of a

            controlled substance and for possession of a

            controlled substance.    Similar to Hobbs, the

            use of the same felony to enhance both the

            class of the aggravated UUW offense and the

            punishment for that offense amounted to an

            impermissible double enhancement."     Owens,

            377 Ill. App. 3d at 305.


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     We agree with the reasoning in Owens.     We further note that

in Gonzalez, the court held that a trial court's authority to

sentence a defendant to an extended term pursuant to section 5-5-

3.2(b)(1) is

            "limited, of course, by the general

            prohibition against using the same factor

            both as an element of the offense and as an

            aggravating factor at sentencing. [Citation.]

            Thus, section 5-5-3.2(b)(1) could not be

            permissibly applied where the same prior

            felony conviction is used both to establish

            the offense and to impose the extended term.

            However, as discussed, that did not occur

            here."   (Emphasis in original.) Gonzalez, 151

            Ill. 2d at 88.

The defendant in Gonzalez had multiple prior felony convictions,

only one of which was used to establish the offense.

     Here, as in Owens, the defendant only had two prior Class 2

convictions.    Consequently, at least one of these prior felony

convictions was used both to establish the offense as a Class 2

felony and then also used to impose Class X sentencing.      This

constitutes an impermissible double enhancement pursuant to

Gonzales, Hobbs, and Owens.


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                            CONCLUSION

     Accordingly, we vacate the trial court's sentencing order

and remand this case for a new sentencing hearing, where the

court is to sentence defendant to a term of imprisonment of not

less then 3 years and not more than 14 years pursuant to section

24-1.1(e) of the Criminal Code (720 ILCS 5/24-1.1(e) (West

2004)).   In addition, pursuant to People v. Tolliver, 363 Ill.

App. 3d 94 (2006), the trial court should merge counts I and II.

Finally, we deny defendant's request to set a bond.

     Sentence vacated and remanded with instructions.

     THEIS and CUNNINGHAM, JJ., concur.




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