                                     2016 IL 118845



                                        IN THE
                               SUPREME COURT
                                           OF
                         THE STATE OF ILLINOIS



                                   (Docket No. 118845)

               THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
                           FRED CLARK, Appellee.


                              Opinion filed March 24, 2016.



        JUSTICE KARMEIER delivered the judgment of the court, with opinion.

        Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke, and
     Theis concurred in the judgment and opinion.



                                        OPINION

¶1       The defendant, Fred Clark, was charged with multiple offenses, including
     aggravated vehicular hijacking while armed with a firearm (720 ILCS 5/18-4(a)(4)
     (West 2010)) and armed robbery while armed with a firearm (720 ILCS
     5/18-2(a)(2) (West 2010)). Following a bench trial, the circuit court of Cook
     County acknowledged that defendant committed the charged offenses while armed
     with a gun; however, the court determined that the gun “was used as a bludgeon and
     will be treated as such.” Commensurate with the court’s apparent belief that the
     manner of the firearm’s use was relevant to the charged offenses, the court
     pronounced oral findings that defendant was “guilty of aggravated vehicular
     hijacking and armed robbery without a firearm” (emphasis added), uncharged
     offenses identified in different subsections of the pertinent statutes. See 720 ILCS
     5/18-4(a)(3) (West 2010) (aggravated vehicular hijacking, while armed with a
     dangerous weapon “other than” a firearm); 720 ILCS 5/18-2(a)(1) (West 2010)
     (armed robbery, while armed with a dangerous weapon “other than” a firearm). On
     appeal, the appellate court concluded those uncharged offenses were not
     lesser-included offenses of the charged firearm offenses, and thus those convictions
     were improper. The court found the issue forfeited, but held it cognizable as
     second-prong plain error. Pursuant to those findings, the appellate court reduced
     the convictions to vehicular hijacking and robbery, respectively, and remanded for
     resentencing on those convictions. 2014 IL App (1st) 123494. We allowed the
     State’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. July 1, 2013)), and now
     affirm the judgment of the appellate court.



¶2                                    BACKGROUND

¶3       Defendant was initially charged by indictment in the circuit court of Cook
     County with aggravated vehicular hijacking while armed with a firearm (720 ILCS
     5/18-4(a)(4) (West 2010)), armed robbery while armed with a firearm (720 ILCS
     5/18-2(a)(2) (West 2010)), two counts of burglary (entry of a building and entry of
     a motor vehicle with the intent to commit a theft) (720 ILCS 5/19-1(a) (West
     2010)), aggravated battery (720 ILCS 5/12-4(b)(1) (West 2010)), aggravated
     unlawful restraint (720 ILCS 5/10-3.1 (West 2010)), and six counts of aggravated
     unlawful use of a weapon (all counts specifying a firearm) (720 ILCS
     5/24-1.6(a)(1)(3)(A), (a)(1)(3)(C), (a)(1)(3)(I) (West 2010)). As relevant to an
     argument posited by the State, and discussed hereafter, we note that the aggravated
     battery charge stated in pertinent part that defendant caused bodily harm to Tyronn
     Wise “while using a dangerous weapon other than by the discharge of a firearm, to
     wit: struck Tyronn Wise about the body with a firearm.” (Emphasis added.) The
     aggravated unlawful restraint charge similarly stated that defendant committed the
     offense “while using a deadly weapon, to wit: a firearm.” (Emphasis added.)

¶4      Prior to defendant’s jury waiver and ensuing bench trial, the trial court
     admonished defendant that he was charged with aggravated vehicular hijacking
     while armed with a firearm, and armed robbery while armed with a firearm; Class
     X felonies, with potential sentences upon conviction of 21 to 45 years’
     imprisonment. The trial court did not reference any other charges or penalties.

                                             -2-
¶5       At defendant’s bench trial, Tyronn Wise testified that on May 15, 2011, around
     6:30 a.m., he was accosted by defendant and another man while he was parking his
     vehicle, a Dodge Charger, in his garage. He stated that defendant put a gun to his
     temple and ordered him to “give that shit up.” The other individual was not armed.
     The offenders took a cell phone and cash from Wise’s person. The other man then
     went through Wise’s vehicle while defendant continued holding Wise at gunpoint.
     While the other man rifled through Wise’s vehicle, defendant ordered Wise to the
     back of the garage and ordered him to kneel, “execution style,” facing the wall,
     with his hands behind his head. Wise testified that defendant continued to hold the
     gun: “upside my head,” “in the back of my head.” Eventually, the other man drove
     off in Wise’s vehicle. Before defendant departed in a separate vehicle, he told Wise
     he should kill him, and he then struck Wise twice in the head with the gun. Wise
     later identified defendant in a lineup and in open court. He also identified People’s
     exhibit No. 6 as a photograph of the firearm defendant held “upside my head.” He
     affirmed that gun was “at his person” during the entire 15-minute encounter.

¶6       Officer Rangel 1 of the Chicago police department testified he and his partner
     were on patrol on May 15, 2011, around 11 p.m., when they stopped a vehicle for a
     traffic violation. The occupants immediately fled on foot. Rangel pursued one
     person, who was ultimately apprehended. Rangel identified that individual as the
     defendant. A handgun was recovered from the vehicle. Rangel identified People’s
     exhibit Nos. 3 and 4 as photographs depicting the Dodge Charger he stopped on
     May 15, 2011.

¶7      Officer Juan Aguirre, an evidence technician, testified that he recovered a gun
     from behind the front seat of the Dodge Charger. The gun, pictured in, among other
     exhibits, People’s exhibit No. 6, was a loaded 9-millimeter Ruger handgun.

¶8      After Aguirre’s testimony, the State rested. The defendant’s motion for directed
     verdict was denied.

¶9       The defense first called Detective Sharon Walker. Walker testified that
     defendant and Kamari Belmont were arrested in connection with this case. Both
     appeared in a lineup on May 16, 2011. Wise viewed that lineup and identified
     defendant as the man who held a gun to his head. Wise did not identify Belmont.



        1
         The record does not disclose the officer’s first name.
                                                   -3-
¶ 10       Defendant then testified in his own behalf. Defendant stated that, on May 15,
       2011, Belmont and Belmont’s cousin picked him up in a red Dodge Charger, which
       Belmont said belonged to his aunt. Defendant said he did not see a gun in the car.
       Defendant stated that he eventually drove, as Belmont’s cousin appeared to be
       intoxicated.

¶ 11       According to defendant, he drove to a gas station near 55th Street and Wells
       Street. He exited the car and saw someone in black with something in his hand.
       Defendant stated he thought that person might have had a gun, so he ran behind a
       nearby house. Defendant said, when he walked back to the front of the house, he
       encountered the police, who arrested him.

¶ 12       Defendant testified he had never seen Wise before trial. He denied holding a
       gun to Wise’s head or taking anything from him. Defendant acknowledged that he
       was, at the time of trial, in custody for a juvenile parole violation. He was on parole
       for a controlled substance offense.

¶ 13       In argument before the court, the issues addressed by both sides were whether
       defendant was proven to be the individual who held “the gun” to Wise’s head and
       whether “the gun” subsequently found in the Dodge Charger when defendant was
       arrested was adequately tied to defendant. Wise’s testimony that defendant held a
       gun to his head and thereafter pistol-whipped him stood uncontradicted. Defense
       counsel never argued that the weapon employed was anything other than a firearm.
       He asked that the trial court find defendant not guilty of all charges.

¶ 14       The trial court found that Wise was credible, and defendant was not. The court
       recounted Wise’s testimony, that defendant was “the person that robbed him as he
       was trying to pull into his garage. He came into his garage with another person, put
       a gun to his head, ordered him to do various things, smacked him with a pistol that
       was in his hand, then fled. *** Later the same day Mr. Clark was seen driving the
       victim’s car, and a gun was recovered in the car.”

¶ 15      The court concluded:

              “I do believe he was properly identified as the person involved in this case.
          The weapon was used in this case in the manner of a bludgeon. He was
          pistol-whipped with it.

              I find under all circumstances that it was used as a bludgeon and will be
          treated as such. So he is found guilty of aggravated vehicular hijacking and
                                             -4-
          armed robbery without a firearm, also the other charges, the burglary charges as
          well.”

¶ 16      Neither the State, nor defense counsel, objected to the court’s findings when
       announced, and defendant’s motion for a new trial subsequently raised only
       generic, boilerplate contentions that were insufficient to bring the error
       subsequently claimed on appeal to the attention of the circuit court.

¶ 17       At the hearing on defendant’s motion and sentencing, the court stated that it had
       found defendant “guilty of armed robbery on [sic] a firearm, and aggravated
       vehicular hijacking, and burglary.” Defense counsel chose to stand on his posttrial
       motion, which was “respectfully denied.” In the course of defense counsel’s
       sentencing argument, counsel took issue with the court’s finding that defendant had
       “pistol-whipped” the victim. In response, the court recharacterized: “Smacked him
       in the head with a gun.”

¶ 18       In announcing defendant’s sentences, the court first noted that defendant had
       been in trouble “a number of times,” had had multiple “encounters with the police,”
       and “was on parole at the time of this offense.” The court then shed some light on
       the thought process that led to its finding on these uncharged offenses, which
       carried a lower penalty range than those with which defendant was charged:

              “This offense did involve some amount of premeditation, and it was violent,
          and an actual gun was recovered later. I[,] already in light of his age, the fact the
          gun wasn’t fired, other circumstances that I heard at the trial, gave some
          deference and benefit of the doubt and justice as to the ultimate finding.”

       It appears the presentence report thereafter prompted the judge to rethink the
       “benefit” and “justice” conferred upon defendant. The court continued:

              “That being said, now that I see the Pre-sentence Investigation, I hear more
          about it, I agree this is a serious matter. He’s got a violent side to him,
          particularly again the fact he’s on parole at the time of this offense is disturbing.

              As to the offenses of armed robbery and aggravated vehicular hijacking, it’s
          17 years in the penitentiary; as to the burglary, 7 years in the penitentiary. All
          sentences will run concurrently.”

       The court’s written order of commitment and sentence recites those sentences, but
       reflects convictions for the firearm offenses as charged.
                                                -5-
¶ 19        On appeal, the appellate court first considered whether the trial court had
       acquitted defendant of the charged offenses of aggravated vehicular hijacking with
       a firearm and armed robbery with a firearm. In the course of addressing that issue,
       the court examined state and federal authority. The appellate court cited People v.
       Rey, 136 Ill. App. 3d 645 (1985) for the proposition that the Illinois Constitution
       bars an appeal from a judgment of acquittal “ ‘regardless of whether the court’s
       ruling [was] based upon a mistake of fact or mistake of law.’ ” 2014 IL App (1st)
       123494, ¶ 20 (quoting Rey, 136 Ill. App. 3d at 651). Quoting this court, the
       appellate court noted that a judgment constitutes an acquittal where it “ ‘actually
       represents a resolution, correct or not, of some or all of the factual elements of the
       offense charged.’ ” Id. (quoting People v. Williams, 188 Ill. 2d 293, 300 (1999)).
       The appellate court also cited the United States Supreme Court’s decision in Evans
       v. Michigan, 568 U.S. ___, ___, 133 S. Ct. 1069, 1075-76 (2013), wherein the
       Supreme Court stated, “ ‘an acquittal due to insufficient evidence precludes retrial,
       whether the court’s evaluation of the evidence was correct or not, [citation], and
       regardless of whether the court’s decision flowed from an incorrect antecedent
       ruling of law.’ ” 2014 IL App (1st) 123494, ¶ 20 (quoting Evans, 568 U.S. at ___,
       133 S. Ct. at 1075-76).

¶ 20       In this case, the appellate court concluded that the trial court’s guilty findings
       on the uncharged offenses of aggravated vehicular hijacking and armed robbery
       without a firearm constituted acquittals of the charged firearm offenses. Id. ¶ 21.
       The court acknowledged a conflict between the trial court’s oral
       pronouncement—finding defendant guilty of aggravated vehicular hijacking and
       armed robbery without a firearm—and the court’s written order of commitment and
       sentence, which reflected convictions for aggravated vehicular hijacking with a
       firearm and armed robbery with a firearm. The court observed that the 17-year
       sentences imposed by the trial court were consistent with the court’s oral
       pronouncement. Quoting People v. Roberson, 401 Ill. App. 3d 758, 774 (2010), the
       court held that when the oral pronouncement of the court and the written
       pronouncement conflict, the oral pronouncement controls. 2014 IL App (1st)
       123494, ¶ 21. In this respect, the appellate court concluded:

          “As the trial court’s oral pronouncements reflect a resolution of the factual
          elements of aggravated vehicular hijacking with a firearm and armed robbery
          with a firearm in defendant’s favor, as well as an express rationale for it, it is
          clear that the trial court acquitted defendant of those offenses. We may not

                                               -6-
          review the trial court’s judgment of acquittal, even if the judgment resulted
          from a mistake of fact or law.” Id.

¶ 21       The appellate court then turned to the question of whether the offenses of
       aggravated vehicular hijacking with a dangerous weapon other than a firearm and
       armed robbery with a dangerous weapon other than a firearm were lesser-included
       offenses of the charged firearm offenses. Applying the charging instrument
       approach, the appellate court determined they were not.

¶ 22       En route to that conclusion, the court first, pursuant to our direction in People v.
       Kolton, 219 Ill. 2d 353, 361 (2006), considered whether the description of the
       charged offenses in the charging instrument—here the charged firearm offenses—
       contained the broad foundation or main outline of the uncharged offenses. 2014 IL
       App (1st) 123494, ¶¶ 25-26. In the course of that inquiry, the court noted that the
       aggravated vehicular hijacking statute and the armed robbery statute provide for
       differing charging variants that entail differing penalties upon conviction. In each,
       there is a subsection specifying commission of the offense while “armed with a
       dangerous weapon other than a firearm” (720 ILCS 5/18-2(a)(1), 18-4(a)(3) (West
       2010)), and another referencing commission of the offense while “armed with a
       firearm” (720 ILCS 5/18-2(a)(2), 18-4(a)(4) (West 2010)). 2014 IL App (1st)
       123494, ¶ 27. Although all variants of the offenses are classified as Class X
       felonies, the legislature has determined that an additional 15 years shall be added to
       the term of imprisonment when the offense is committed while “armed with a
       firearm.” 720 ILCS 5/18-2(b), 18-4(b) (West 2010). The appellate court observed
       that the charges here consistently alleged that defendant committed the offenses
       while “armed with a firearm.” “The State did not charge defendant with aggravated
       vehicular hijacking or armed robbery with a dangerous weapon other than a firearm
       pursuant to section 18-2(a)(1) or 18-4(a)(3).” 2014 IL App (1st) 123494, ¶ 28.

¶ 23       The court considered whether an allegation that defendant was armed with a
       dangerous weapon other than a firearm could be inferred from charges that
       defendant was armed with a firearm. Id. ¶ 29. Consistent with decisions in People
       v. Barnett, 2011 IL App (3d) 090721, and People v. McBride, 2012 IL App (1st)
       100375, the appellate court determined it could not. The plain language of the
       statutory provisions in question rendered them “ ‘mutually exclusive of each
       other.’ ” 2014 IL App (1st) 123494, ¶ 30 (quoting Barnett, 2011 IL App (3d)
       090721, ¶ 38). In other words, a weapon cannot at once be a “firearm” and
       something “other than a firearm.” The appellate court found this court’s decision in
                                                -7-
       People v. Washington, 2012 IL 107993, inapposite, as it involved an earlier version
       of the armed robbery statute, which did not distinguish between firearms and
       dangerous weapons other than firearms; it simply required the State to prove that
       the defendant was armed with “a dangerous weapon.” 2014 IL App (1st) 123494,
       ¶ 33.

¶ 24       Having concluded that aggravated vehicular hijacking with a dangerous
       weapon other than a firearm and armed robbery with a dangerous weapon other
       than a firearm were not lesser-included offenses of aggravated vehicular hijacking
       with a firearm and armed robbery with a firearm (id. ¶ 32), and that the trial court
       therefore erred in convicting defendant of those uncharged offenses (id. ¶ 34), the
       appellate court went on to consider whether that error constituted second-prong
       plain error, i.e., “ ‘a clear or obvious error *** so serious that it affected the fairness
       of the defendant’s trial and challenged the integrity of the judicial process,
       regardless of the closeness of the evidence.’ ” (Internal quotation marks omitted.)
       Id. ¶ 36 (quoting People v. Thompson, 238 Ill. 2d 598, 613 (2010)).

¶ 25       The appellate court rejected the State’s contention that this court has limited
       second-prong plain error to six categories of error synonymous with structural
       errors identified by the United States Supreme Court, noting that although our
       decisions in People v. Glasper, 234 Ill. 2d 173 (2009), and Thompson equated
       second-prong plain error to structural error, we did not restrict plain error to the six
       types of plain error recognized by the United States Supreme Court. 2014 IL App
       (1st) 123494, ¶ 40. The appellate court observed that this court has in fact applied
       second-prong plain error in other contexts, holding, in In re Samantha V., 234 Ill.
       2d 359, 378-79 (2009), that the failure to apply the one-act, one-crime rule
       constituted second-prong plain error, and in People v. Walker, 232 Ill. 2d 113, 131
       (2009), that the failure to exercise discretion in denying a request for a continuance
       constituted second-prong plain error, given the egregious facts of that case. 2014 IL
       App (1st) 123494, ¶ 40.

¶ 26       The appellate court held that second-prong plain error applies to these facts,
       essentially marrying the principle that convicting a defendant of an uncharged
       offense that is not a lesser-included offense of a charged offense violates a
       defendant’s “ ‘fundamental due process right to notice of the charges brought
       against him’ ” (id. ¶ 41 (quoting Kolton, 219 Ill. 2d at 359-60)) with the appellate
       court’s understanding of our holding in Samantha V.: “[P]ermitting unauthorized
       convictions to stand challenges the integrity of the judicial process.” Id. ¶ 42. In so
                                                  -8-
       holding, the appellate court acknowledged the State’s argument that it is
       “ ‘disingenuous’ ” for defendant to assert that his convictions erode the integrity of
       the judicial process because the trial court, despite finding that defendant was
       armed with a firearm, “ ‘went out of its way *** to conclude that it would “treat”
       the firearm as a bludgeon’ ” in an “ ‘attempt to shield defendant from the
       mandatory additional fifteen-term [sic] of imprisonment.’ ” Id. (quoting the State’s
       argument). 2 The appellate court “recognize[d] that the trial court intended to afford
       defendant ‘some deference and benefit of the doubt and justice’ by acquitting him
       of the charged offenses,” but the appellate court nonetheless determined that the
       convictions for the uncharged offenses violated defendant’s fundamental right to
       due process and were remediable via plain error. Id. (quoting the trial court). The
       appellate court concluded that the offenses of vehicular hijacking (720 ILCS 5/18-3
       (West 2010)) and robbery (720 ILCS 5/18-1(a) (West 2010)) would be
       lesser-included offenses of the charged offenses, and the evidence at trial supported
       convictions for those lesser offenses; therefore, the appellate court exercised its
       authority under Illinois Supreme Court Rule 615(b)(3) to reduce the degree of
       defendant’s conviction to those lesser, uncharged, offenses. 2014 IL App (1st)
       123494, ¶ 43 (quoting People v. Kennebrew, 2013 IL 113998, ¶ 25, and citing Ill.
       S. Ct. R. 615(b)(3)). The court vacated the convictions for aggravated vehicular
       hijacking with a dangerous weapon other than a firearm and armed robbery with a
       dangerous weapon other than a firearm, and remanded for resentencing on
       vehicular hijacking and armed robbery convictions. Id. ¶ 45.

¶ 27       In a footnote, the appellate court agreed with the Barnett court’s observation
       that the State could have avoided this result had it separately charged defendant
       with aggravated vehicular hijacking pursuant to section 18-4(a)(3) and armed
       robbery pursuant to section 18-2(a)(1)—alleging that he committed the offenses
       with a dangerous weapon other than a firearm. Id. ¶ 42 n.2. The clear suggestion is
       that the State should have charged defendant with an offense for which it had no
       proof—there was no evidence that defendant used something other than a
       firearm—in order to provide the trial court in this case the option of finding
       defendant guilty of a charged offense he did not in fact commit, but one that carries
       a lesser penalty.


           2
             We note that the same judge, in People v. Funches, 2015 IL App (1st) 131591-U, where
       defendant was charged with armed robbery while armed with a firearm along with other firearm
       offenses, found that defendant guilty of armed robbery with a dangerous weapon other than a
       firearm, yet also found him guilty of offenses requiring the possession of a firearm.
                                                  -9-
¶ 28                                       ANALYSIS

¶ 29       Before this court, the State argues that: (1) “the appellate court misapplied the
       charging instrument approach when it held that aggravated vehicular hijacking
       (with a dangerous weapon other than a firearm) and armed robbery (with a
       dangerous weapon other than a firearm) cannot be lesser-included offenses of
       aggravated vehicular hijacking (with a firearm) and armed robbery (with a
       firearm)”; and (2) “the appellate court erred in holding that any error by the trial
       court in finding defendant guilty of the lesser offenses constituted second-prong
       plain error under Supreme Court Rule 615(a).” The defendant addresses those
       contentions and argues, alternatively, that even if the circuit court’s error does not
       constitute second-prong plain error, relief is required because trial counsel was
       ineffective for failing to object to the entry of two improper convictions. We begin
       with the first issue.

¶ 30       A defendant in a criminal prosecution has a fundamental due process right to
       notice of the charges against him; thus, a defendant may not be convicted of an
       offense he has not been charged with committing. Kennebrew, 2013 IL 113998,
       ¶ 27; Kolton, 219 Ill. 2d at 359. However, a defendant may be convicted of an
       uncharged offense if it is a lesser-included offense of a crime expressly charged in
       the charging instrument, and the evidence adduced at trial rationally supports a
       conviction on the lesser-included offense and an acquittal on the greater offense.
       Kennebrew, 2013 IL 113998, ¶ 27; Kolton, 219 Ill. 2d at 360; People v. Baldwin,
       199 Ill. 2d 1, 6 (2002); People v. Novak, 163 Ill. 2d 93, 105, 108 (1994).

¶ 31        We apply the “charging instrument approach” when determining whether an
       uncharged offense is a lesser-included offense of a charged offense. Kennebrew,
       2013 IL 113998, ¶ 32; Kolton, 219 Ill. 2d at 362-63. Under the charging instrument
       approach, the lesser offense need not be a necessary part of the greater offense, but
       the facts alleged in the charging instrument must contain a broad foundation or
       main outline of the lesser offense. Kennebrew, 2013 IL 113998, ¶ 30; Kolton, 219
       Ill. 2d at 361; Novak, 163 Ill. 2d at 107. The charging instrument need not explicitly
       state all of the elements of the lesser offense as long as any missing elements can be
       reasonably inferred from the allegations included. Kennebrew, 2013 IL 113998,
       ¶ 30; People v. Miller, 238 Ill. 2d 161, 166-67 (2010). Under the charging
       instrument approach, whether a particular offense is “lesser included” is a decision

                                               - 10 -
       which must be made on a “case-by-case basis” using the factual description of the
       charged offense in the indictment. Kolton, 219 Ill. 2d at 367.

¶ 32       Thus, we first consider whether armed robbery charged via the provisions of
       section 18-2(a)(1) of the Criminal Code of 1961 is a lesser-included offense of
       armed robbery charged pursuant to section 18-2(a)(2), and whether aggravated
       vehicular hijacking charged pursuant to the provisions of section 18-4(a)(3) is a
       lesser-included offense of aggravated vehicular hijacking charged under section
       18-4(a)(4). Whether an offense is a lesser-included offense of a charged offense is
       an issue of law that we review de novo. Kennebrew, 2013 IL 113998, ¶ 18; Kolton,
       219 Ill. 2d at 361. Following is an overview of the statutory schemes in question.

¶ 33       Section 18-2(a) of the Code (720 ILCS 5/18-2(a) (West 2010)) provides in
       pertinent part:

                “(a) A person commits armed robbery when he or she violates Section 18-1;
          and

                   (1) he or she carries on or about his or her person or is otherwise armed
                with a dangerous weapon other than a firearm; or

                   (2) he or she carries on or about his or her person or is otherwise armed
                with a firearm; or

                    (3) he or she, during the commission of the offense, personally
                discharges a firearm; or

                    (4) he or she, during the commission of the offense, personally
                discharges a firearm that proximately causes great bodily harm, permanent
                disability, permanent disfigurement, or death to another person.”

       Pursuant to subsection (b) of the statute, a violation of any of the foregoing
       provisions would be a Class X felony, with violations of subsections (a)(2) through
       (a)(4) carrying sentencing add-ons of 15, 20, and 25 years to life, respectively. 720
       ILCS 5/18-2(b) (West 2010).

¶ 34       Section 18-4(a) of the Code (720 ILCS 5/18-4(a) (West 2010)) provides in
       pertinent part:

              “(a) A person commits aggravated vehicular hijacking when he or she
          violates Section 18-3; and
                                         - 11 -
                  (1) the person from whose immediate presence the motor vehicle is
              taken is a physically handicapped person or a person 60 years of age or
              over; or

                  (2) a person under 16 years of age is a passenger in the motor vehicle at
              the time of the offense; or

                 (3) he or she carries on or about his or her person, or is otherwise armed
              with a dangerous weapon, other than a firearm; or

                 (4) he or she carries on or about his or her person or is otherwise armed
              with a firearm; or

                  (5) he or she, during the commission of the offense, personally
              discharges a firearm; or

                  (6) he or she, during the commission of the offense, personally
              discharges a firearm that proximately causes great bodily harm, permanent
              disability, permanent disfigurement, or death to another person.”

       Violations of this statute are classified as Class X felonies, with a violation of
       subsection (a)(3) requiring at least a seven-year sentence, and violations of (a)(4) to
       (a)(6) sentencing add-ons of 15, 20, and 25 years to life, respectively. 720 ILCS
       5/18-4(b) (West 2010).

¶ 35      The legislature has defined an “included offense” to mean “an offense which”

              “(a) Is established by proof of the same or less than all of the facts or a less
          culpable mental state (or both), than that which is required to establish the
          commission of the offense charged, or

              (b) Consists of an attempt to commit the offense charged or an offense
          included therein.” 720 ILCS 5/2-9 (West 2010).

¶ 36       We note that while some of the offenses identified in sections 18-2(a) and
       18-4(a) appear to inclusively build upon others, not all exhibit that relationship.
       Certainly, subsections (a)(3) and (a)(4) of section 18-2 have that relationship to
       subsection (a)(2) of that section, as is the case as well with subsections (a)(5) and
       (a)(6) of section 18-4 with subsection (a)(4) of that section. In each instance, the
       base offense requires commission of the crime while “armed with a firearm.” 720
       ILCS 5/18-2(a)(2), 18-4(a)(4) (West 2010). Subsequent subsections build upon that
                                                - 12 -
       lesser, base offense by adding, first, the element that the perpetrator “personally
       discharges a firearm” (720 ILCS 5/18-2(a)(3), 18-4(a)(5) (West 2010)), and then
       another element, that the discharge of the firearm “proximately causes great bodily
       harm, permanent disability, permanent disfigurement, or death to another person”
       (720 ILCS 5/18-2(a)(4), 18-4(a)(6) (West 2010)).

¶ 37       However, other offenses identified in the two statutory schemes have no
       apparent relationship to offenses committed with a firearm. For example, the fact,
       or allegation, that “the person from whose immediate presence [a] motor vehicle is
       taken is a physically handicapped person or a person 60 years of age or over” (720
       ILCS 5/18-4(a)(1) (West 2010)) bears no necessary relationship to the fact that a
       firearm was used in the commission of the offense (see 720 ILCS 5/18-4(a)(4)
       (West 2010)), nor does one allegation apprise the accused, explicitly or
       inferentially, that he will be facing charges involving the other. The same can be
       said with respect to the charge that a vehicular hijacking was committed when “a
       person under 16 years of age [was] a passenger in the motor vehicle at the time of
       the offense.” 720 ILCS 5/18-4(a)(2) (West 2010).

¶ 38       More to the point for present purposes, we would have to stretch plain meaning
       and common understanding beyond a semblance of reason to conclude that a
       charge that a defendant committed an offense while “armed with a firearm” puts
       that defendant on notice, explicitly or inferentially, that he may be prosecuted for,
       and convicted of, an uncharged offense committed “with a dangerous weapon,
       other than a firearm.” (Emphasis added.) Compare 720 ILCS 5/18-2(a)(2),
       18-4(a)(4) (West 2010), with 720 ILCS 5/18-2(a)(1), 18-4(a)(3) (West 2010). In
       this case, unlike the other subsections discussed, the language of sections
       18-2(a)(1) and 18-4(a)(3) explicitly excludes the use of a firearm. We agree with the
       appellate panel below, and those in Barnett and McBride: the plain language of
       these statutes indicates that violations are “ ‘mutually exclusive of each other.’ ”
       2014 IL App (1st) 123494, ¶¶ 30-32 (quoting Barnett, 2011 IL App (3d) 090721,
       ¶ 38); McBride, 2012 IL App (1st) 100375, ¶ 24. The charging instrument in this
       case, describing, without exception, the possession of a firearm during the
       commission of the offenses, cannot be construed so “broadly” as to include the
       possession of a weapon that is something “other than a firearm.” We conclude that
       the offenses of aggravated vehicular hijacking and armed robbery without a firearm
       are not, given the circumstances of this case, lesser-included offenses of aggravated
       vehicular hijacking and armed robbery with a firearm. Therefore, the trial court
       erred in convicting defendant of the former.
                                               - 13 -
¶ 39        We note in passing, even if we had found otherwise with respect to
       lesser-included status, it would still have been error to convict the defendant of
       offenses set forth in sections 18-2(a)(1) and 18-4(a)(3). In order to convict a
       defendant of an uncharged offense, the evidence adduced at trial must rationally
       support a conviction on the lesser-included offense and an acquittal on the greater
       offense. Kennebrew, 2013 IL 113998, ¶ 27; Kolton, 219 Ill. 2d at 360; Baldwin, 199
       Ill. 2d at 6; Novak, 163 Ill. 2d at 105, 108. Neither is the case here—which brings us
       to the matter of acquittal.

¶ 40        The evidence overwhelmingly supported convictions on the charged firearm
       offenses. Initially, the court denied defendant’s motion for directed verdict at the
       conclusion of the State’s case, thus indicating that the State’s evidence was
       sufficient to support convictions for those offenses. See People v. Hendricks, 137
       Ill. 2d 31, 63 (1990) (standard is whether a reasonable mind could fairly conclude
       the guilt of the accused beyond a reasonable doubt, considering the evidence most
       strongly in the State’s favor). At the conclusion of all the evidence, the State’s
       evidence that a firearm was used in the commission of the offenses stood
       uncontroverted. Defendant simply denied ever seeing the victim before the trial,
       and he proffered an explanation for his presence in the victim’s vehicle, in which
       the gun was found. The trial court resolved any question of credibility in favor of
       the State and against the defendant. The trial judge in his own remarks repeatedly
       referred to the presence of “a gun” and “pistolwhipping.” Whether the trial court’s
       finding of guilt on the uncharged offenses—implicitly acquitting defendant, sub
       silentio, of the charged offenses requiring possession of a firearm—was arrived at
       under the misapprehension that the manner of the gun’s use mattered, or the judge
       was simply giving the defendant a break notwithstanding the evidence—as the
       appellate court seemed on the verge of suggesting (2014 IL App (1st) 123494,
       ¶ 42)—the result is the same. We have reviewed the authorities cited by the
       appellate court (see id. ¶ 20) and agree that the trial court’s judgment, whether
       premised upon a mistake of law, a mistake of fact, or outright beneficence, amounts
       to an unassailable acquittal of the charged firearm offenses. The State has now
       abandoned any argument otherwise.

¶ 41       Although defendant argues that trial counsel was ineffective for failing to
       challenge the guilty findings that were entered by the trial court, we need not
       further consider whether counsel’s representation was deficient or whether
       defendant was prejudiced thereby, because, ultimately, we conclude that the trial
       court’s error is cognizable and remediable as plain error.
                                              - 14 -
¶ 42       Illinois Supreme Court Rule 615(a) provides as follows:

               “(a) Insubstantial and Substantial Errors on Appeal. Any error, defect,
           irregularity, or variance which does not affect substantial rights shall be
           disregarded. Plain errors or defects affecting substantial rights may be noticed
           although they were not brought to the attention of the trial court.” (Emphasis
           added.) Ill. S. Ct. R. 615(a).

       The plain error doctrine is applicable when: “ ‘(1) a clear or obvious error occurred
       and the evidence is so closely balanced that the error alone threatened to tip the
       scales of justice against the defendant, regardless of the seriousness of the error, or
       (2) a clear or obvious error occurred and that error is so serious that it affected the
       fairness of the defendant’s trial and challenged the integrity of the judicial process,
       regardless of the closeness of the evidence.’ ” Thompson, 238 Ill. 2d at 613
       (quoting People v. Piatkowski, 225 Ill. 2d 551, 565 (2007)). As the language of the
       rule indicates, remedial application of the plain error doctrine is discretionary.
       People v. Walker, 109 Ill. 2d 484, 497 (1985); People v. Holman, 103 Ill. 2d 133,
       176-77 (1984). Second-prong plain error is at issue here.

¶ 43       As we have observed, the plain language of sections 18-2(a)(1) and 18-4(a)(3)
       of the Code explicitly excludes the possession or use of a firearm. Thus, violations
       of sections 18-2(a)(2) and 18-4(a)(4)—offenses committed with firearms—and
       sections 18-2(a)(1) and 18-4(a)(3)—offenses committed with weapons other than
       firearms—are mutually exclusive of each other. That would seem self-evident from
       the language employed in the statutory scheme, as amended. 3 So, there is, in our
       view, clear error.

¶ 44       The next question is whether that error is so serious that it affected the fairness
       of the defendant’s trial and challenged the integrity of the judicial process. Here, we
       find ourselves in peculiar territory. Looking at it one way, defendant got more than
       he deserved: the evidence overwhelmingly indicated he was armed with a firearm
       when he committed the offenses; both the charged offenses, and the uncharged
       offenses for which the trial court entered guilty findings, were Class X felonies in
           3
             As we noted in People v. Washington, 2012 IL 107993, ¶ 6, Public Act 91-404, effective
       January 1, 2000, altered the prior statutory scheme by creating distinct offenses based on whether
       the offenses were committed with a dangerous weapon “other than a firearm” or committed “with a
       firearm.” For offenses committed with a “firearm,” sentencing enhancements were created,
       commonly referred to as the 15-20-25-to-life sentencing provisions, which the court was required to
       impose based on whether a firearm was in the offender’s possession, discharged, or used to cause
       bodily harm.
                                                     - 15 -
       any event; and the only difference was defendant was subjected to a lower range of
       penalties because of the trial court’s actions. 4 In that sense, defendant benefitted
       from the error. However, defendant was not charged with armed robbery and
       aggravated vehicular hijacking with a dangerous weapon other than a firearm, and
       the evidence did not support findings of guilt on those offenses. To allow those
       convictions and sentences to stand would seem to suggest that we condone a kind
       of mix-and-match, ad hoc justice, where the specific convictions of record do not
       matter. In that respect, in considering whether the discretionary exercise of
       remedial plain error is appropriate in this case, we have to account for and preserve
       “the integrity of the judicial process.”

¶ 45        We, like the appellate court, “recognize that the trial court intended to afford
       defendant ‘some deference and benefit of the doubt and justice’ by acquitting him
       of the charged offenses” (2014 IL App (1st) 123494, ¶ 42 (quoting the trial court));
       however, the result of the trial court’s action is that defendant stands convicted of
       offenses he was not charged with and he did not commit. There is no question that
       he committed armed robbery and vehicular hijacking, but he did not possess “a
       dangerous weapon other than a firearm” when he committed those offenses. In
       applying second-prong plain error here, the appellate court, respectively, cited and
       tacitly referenced our decision in Samantha V. for two propositions: (1) this court
       has held that second-prong plain error applies to errors other than the six types of
       structural error that have been recognized by the United States Supreme Court (id.
       ¶ 40) and (2) we have recognized that permitting unauthorized convictions to stand
       challenges the integrity of the judicial process (id. ¶ 42). The decision in
       Samantha V., of course, did not announce any new rule of law. As this court noted
       therein, it was already “well established that a one-act, one-crime violation affects
       the integrity of the judicial process, thus satisfying the second prong of the
       plain-error test.” Samantha V., 234 Ill. 2d at 378-79 (citing People v. Harvey, 211
       Ill. 2d 368, 389 (2004), and People v. Artis, 232 Ill. 2d 156, 167-68 (2009)).

           4
             The rationale for the trial court’s findings on the uncharged offenses appears to be unrelated to
       the pertinent statutory criteria. We recognize that mistakes of law are inevitable. Beyond that, we
       would note that the General Assembly is free to enact any legislation that the constitution does not
       expressly prohibit. Maddux v. Blagojevich, 233 Ill. 2d 508, 522 (2009). This court has upheld the
       constitutionality of firearm enhancements enacted by the legislature. See People v. Sharpe, 216 Ill.
       2d 481 (2005). “The question as to whether or not a better law might have been enacted is for the
       legislature and not for the courts, and criticisms against the wisdom, policy or practicability of a law
       are subjects for legislative consideration and not for the courts.” (Internal quotation marks omitted.)
       People v. Howard, 228 Ill. 2d 428, 438 (2008).

                                                       - 16 -
¶ 46       As the appellate court observed in this case, although our decisions in Glasper
       and Thompson equated second-prong plain error with structural error, we did not
       restrict plain error to the six types of structural error that have been recognized by
       the Supreme Court. 2014 IL App (1st) 123494, ¶ 40. We certainly did not overrule
       Samantha V., Artis, and Harvey. The concern that drove those decisions was
       articulated in Artis, where no sentence was even imposed on the improper
       conviction:

          “ ‘[T]he effects of the improper conviction are not confined to this trial and
          sentence. Defendant may be subject to future prejudice as a result of the
          improper conviction[ ]. In the unfortunate event of a future encounter with the
          criminal justice system, the improper conviction could likely affect decisions
          with respect to the setting of bond and sentencing, as well as parole
          opportunities. This is so regardless of whether an improper sentence has also
          been imposed.’ ” Artis, 232 Ill. 2d at 166-67 (quoting People v. Davis, 156 Ill.
          2d 149, 160 (1993)).

¶ 47       Here, though defendant has been acquitted of the charged firearm offenses,
       which the evidence indicates he committed, he stands convicted of and sentenced
       for uncharged offenses he did not commit. The quandary we face is whether we
       should penalize him for the acquittal by allowing the improper convictions and
       sentences to stand, or rectify the improper convictions and sentences via remedial
       application of plain error. We agree with the appellate court—the latter. Two
       principles underpin that determination, both of which appear to have figured into
       the appellate court’s decision as well: (1) convicting a defendant of an uncharged
       offense that is not a lesser-included offense of a charged offense violates a
       defendant’s “ ‘fundamental due process right to notice of the charges brought
       against him’ ” (2014 IL App (1st) 123494, ¶ 41 (quoting Kolton, 219 Ill. 2d at
       359-60)) and (2) an unauthorized conviction challenges the integrity of the judicial
       process, and should not stand (id. ¶ 42). A defendant should have fair notice of the
       charges he will be called upon to defend, and any conviction ultimately entered
       should be based upon the evidence, not judicial fiat.

¶ 48        As we observed in Kennebrew, it is within a court of review’s authority to
       utilize Rule 615(b)(3) to reduce the degree of a defendant’s conviction, even when
       a lesser offense is not charged, so long as the offense is a lesser-included offense of
       the crime expressly charged. Kennebrew, 2013 IL 113998, ¶¶ 25, 47; Ill. S. Ct. R.
       615(b)(3). The elements of the lesser offenses of vehicular hijacking and robbery
                                               - 17 -
       are set forth in the greater offenses charged in counts I and II of the indictment, and
       the evidence at trial supported convictions for those offenses. See 720 ILCS 5/18-3,
       18-1(a) (West 2010). Therefore, under the circumstances, the appellate court
       properly reduced the degree of defendant’s convictions to vehicular hijacking and
       robbery and remanded for resentencing.

¶ 49      For the foregoing reasons, we affirm the judgment of the appellate court.



¶ 50      Affirmed.




                                               - 18 -
