                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Williams, 2012 IL App (1st) 100126




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



District & No.              First District, Second Division
                            Docket No. 1-10-0126


Filed                       August 14, 2012


Held                        Defendant’s contention that his defense counsel was ineffective was
(Note: This syllabus        rejected, but the sentences imposed for his convictions for aggravated
constitutes no part of      vehicular hijacking and armed robbery were vacated and resentencing
the opinion of the court    was ordered due to the inclusion of the 15-year firearm sentencing
but has been prepared       enhancements that had been declared unconstitutional in Hauschild and
by the Reporter of          Andrews.
Decisions for the
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of Cook County, No. 07-CR-13744; the
Review                      Hon. Stanley Sacks, Judge, presiding.



Judgment                    Affirmed in part and vacated in part; cause remanded with directions.
Counsel on                  Michael J. Pelletier, Alan D. Goldberg, and Caroline E. Bourland, all of
Appeal                      State Appellate Defender’s Office, of Chicago, for appellant.

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Joan
                            F. Frazier, and Ramune Rita Kelecius, Assistant State’s Attorneys, of
                            counsel), for the People.


Panel                       JUSTICE CUNNINGHAM delivered the judgment of the court, with
                            opinion.
                            Presiding Justice Quinn and Justice Harris concurred in the judgment and
                            opinion.


                                               OPINION

¶1          Following a bench trial in the circuit court of Cook County, defendant Leonard Williams
        was convicted of armed robbery, aggravated vehicular hijacking and aggravated battery.
        Subsequently, he was sentenced to concurrent terms of 22 years of imprisonment for armed
        robbery and aggravated vehicular hijacking, and 5 years of imprisonment for aggravated
        battery. On direct appeal, the defendant argues that: (1) defense counsel provided ineffective
        assistance of counsel at every stage of the criminal proceedings; and (2) a new sentencing
        hearing is warranted where the 15-year sentencing enhancements imposed by the trial court
        were void or, in the alternative, the sentence imposed should be reduced. For the following
        reasons, we affirm the judgment of the circuit court of Cook County as to the defendant’s
        convictions for armed robbery, aggravated vehicular hijacking and aggravated battery.
        However, we vacate the sentences for armed robbery and aggravated vehicular hijacking and
        remand the cause for resentencing on those two convictions.

¶2                                        BACKGROUND
¶3          On June 10, 2007, Chicago police officers responded to a call to investigate a car
        stripping in progress at 5345 South Hoyne Avenue in Chicago, Illinois. As a result, the police
        arrested the defendant, along with codefendant Courtney Robinson (codefendant Robinson),
        near the crime scene. Thereafter, on July 5, 2007, the defendant was charged with armed
        robbery (count I), aggravated vehicular hijacking (count II), aggravated unlawful use of a
        weapon (counts III to VI), unlawful use of a weapon by a felon (counts VII and VIII),
        aggravated battery (counts IX to XII), and aggravated unlawful restraint (count XIII).
¶4          On February 11, 2009, attorney Howard Towles1 filed an appearance on behalf of the


                1
                Prior to this date, the defendant was represented by two other defense attorneys (Jerry and
        Sheila Kalish) who withdrew from the case on September 2, 2008. Thereafter, the defendant acted

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     defendant in this case and in another case against the defendant.2
¶5       On April 1, 2009, defense counsel filed a “motion to suppress identification and quash
     arrest,” which pertained to the facts of an unrelated case involving the defendant upon which
     the State had elected not to proceed. On May 19, 2009, defense counsel refiled a “motion to
     suppress identification and quash arrest” (motion to suppress), which pertained to the facts
     of the instant case. In the motion to suppress, defense counsel argued that at the time of the
     defendant’s arrest, the defendant was not engaged in any illegal conduct and that no arrest
     warrant existed to justify his arrest. The motion to suppress further stated that the police
     lineup, from which one of the victims identified the defendant as the perpetrator, was
     unreliable, and requested that the identification be suppressed and “any arrest, charge, or
     evidence obtained therefrom be [q]uashed.”
¶6       On August 3, 2009, at a hearing on the motion to suppress, the defendant presented the
     testimony of two witnesses–Officer Timothy Moran (Officer Moran) and Detective John
     Richter (Detective Richter). Officer Moran testified that on June 10, 2007, at 11:15 p.m., he
     and his partners were assigned to respond to an anonymous 911 call of a car stripping in
     progress at 5345 South Hoyne Avenue in Chicago, Illinois. Upon arrival at the location,
     Officer Moran observed, in the rear lot of an abandoned residence, a car elevated on four
     milk crates with its tires missing and its hood and trunk open. The police officers ran a check
     of the license plate of the vehicle and discovered that it was reported to have been taken in
     a vehicular hijacking earlier in the evening. Approximately one minute later, two black men,
     who were both empty-handed, walked from a nearby alleyway toward the vehicle. As the two
     men approached the vehicle, Officer Moran and his partners announced their presence, at
     which point the two men, one of whom was later identified as the defendant, fled back to the
     alleyway. The police officers then chased the suspects on foot. During the chase, Officer
     Moran observed the defendant reach into his waistband and toss “a shiny object” to the
     ground. Subsequently, Officer Moran apprehended the defendant and recovered a handgun,
     which was the “shiny object” tossed by the defendant during the chase. Although Officer
     Moran testified that no arrest warrant existed for the defendant, he had a “suspicion” that the
     defendant was armed. On cross-examination, Officer Moran testified that upon placing the
     defendant under arrest and mirandizing him, Officer Moran walked the defendant back to the
     site where the defendant had disposed of the shiny object which turned out to be a gun.
     Pursuant to a custodial search of the defendant’s person, Officer Moran found a remote
     starter and car keys to the hijacked vehicle. The police officers also found a wallet, driver’s
     license, and miscellaneous documents belonging to one of the carjacking victims, Tremon
     Moore (Tremon), next to the alleyway where the defendant’s handgun was recovered.
     According to Officer Moran, the defendant was wearing a white tee-shirt, blue jeans and hair
     braids at the time of his arrest.


     pro se before hiring defense attorney Howard Towles, whose representation is at issue in the case
     at bar. References to “defense counsel” in this court’s order pertain only to attorney Howard Towles.
             2
            The State elected not to proceed upon the second case against the defendant (case No. 07
     CR 15686) until after the resolution of the instant case at trial.

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¶7         Detective Richter testified that on June 11, 2007, after the defendant had been arrested
       by the police, he investigated the crime scene at 5345 South Hoyne Avenue in Chicago,
       where he saw a vehicle that fit the description of a vehicle taken in an earlier aggravated
       vehicular hijacking. Subsequently, Detective Richter conducted a police lineup at the police
       station. Detective Richter stated that prior to conducting the police lineup, he was not aware
       of what physical descriptions Tremon may have provided to other police officers regarding
       the hijackers. Detective Richter noted that both Tremon and his girlfriend, who was also a
       victim of the hijacking, viewed the police lineup separately. He testified that Tremon’s
       girlfriend was unable to identify either the defendant or codefendant Robinson in the police
       lineup. On cross-examination, Detective Richter testified that Tremon identified the car keys
       and wallet recovered from the crime scene as his property, identified the handgun as the one
       used against him in the vehicular hijacking, and identified the defendant in the police lineup
       as one of the offenders.
¶8         Following the parties’ arguments, the trial court denied the motion to suppress, finding
       that the police had a reasonable suspicion to stop the defendant after the foot chase and had
       probable cause to arrest him after recovering the handgun from the alleyway. The trial court
       further found that the police lineup was not suggestive and that it was “one of the best
       lineups” the court had ever seen. All six men in the lineup were close in age and five men,
       including the defendant, wore a white tee-shirt and blue jeans.
¶9         On November 6, 2009, a bench trial commenced. During opening statements, defense
       counsel stated that the case was one of identification and that the police had arrested the
       defendant because he fit “a general description which was listed on a flash message.”
       Defense counsel also noted that Tremon had known the defendant and the defendant’s family
       for many years and that Tremon recognized the defendant’s voice during the crime.
¶ 10       The State presented the testimony of Tremon, who testified that he was a 37-year-old
       postal worker and Dione Montgomery (Dione) was his girlfriend of nine years. On June 10,
       2007, at approximately 11 p.m., he and Dione were at 1300 West 64th Street near Ogden
       Park in Chicago. Dione was seated in the passenger seat of her car, which was parked
       directly behind Tremon’s car. Tremon was standing at the rear part of his vehicle when a man
       in a “dark hoody” approached him, drawing a silver revolver and demanding that Tremon
       empty his pockets. Tremon’s pockets contained his mobile telephone, keys, wallet, a pocket
       Bible and some cash. At that same moment, a second man, wearing a “white hoody” and red
       bandanna over the lower part of his face, approached Dione’s car. Although the second
       man’s face was partly covered by a bandanna, Tremon could still “pretty much” see his face
       and identified the defendant in court as the man with the white hoody. The man in the dark
       hoody then placed Tremon into the backseat of Tremon’s vehicle, while he sat in the front
       passenger seat. The defendant then entered the driver’s seat of Tremon’s vehicle and drove
       away. Shortly after the trio left the scene of the carjacking in Tremon’s vehicle, the car’s
       engine suddenly shut off due to its antitheft system. Tremon then explained to the two
       offenders that he needed to reset the alarm system, after which the man in the dark hoody,
       who was then sitting in the front passenger seat of the car, exited the vehicle and forced
       Tremon to change seats with him. As Tremon reentered the vehicle to sit in the front
       passenger seat, the man in the dark hoody struck him on the side of his head with the barrel

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       of a gun, causing a gash. Tremon then reached under the steering wheel of the car and reset
       the code for the alarm system, which then allowed the defendant to restart the car and
       continue driving. As they approached the intersection of 61st Street and Loomis Boulevard,
       the defendant pulled over to the side of the road and allowed Tremon to escape by climbing
       out of a side window of the car so as not to reactivate the antitheft alarm. The defendant and
       the man with the dark hoody drove away in Tremon’s car. Tremon then called the police.
       Later, he went to a hospital where he received three staples to close his head wound. On June
       11, 2007, at approximately 9 p.m., Tremon positively identified the defendant from a police
       lineup as one of the two offenders who had robbed him. Tremon testified that it was only
       when he viewed the police lineup that he first recognized the defendant, also known as
       “Little Earl,” as someone whom he had known from “a previous card game or something.”
       He did not recognize the defendant during the commission of the crime. At trial, Tremon
       positively identified his wallet, identification card and Bible from the photographs presented
       by the State of items recovered from the scene after apprehension of the offenders.
¶ 11        On cross-examination, Tremon testified that he did not remember when the card game
       in which he and the defendant participated had taken place, but that it was not within seven
       days of the crime. Tremon stated that his younger brother was also present at the card game,
       which was held at the home of the defendant’s aunt, “Kesha,” with whom Tremon had been
       acquainted since childhood. Tremon had socialized with Kesha over the years, which
       eventually brought him into contact with the defendant. However, Tremon denied that he
       also socialized with the defendant over the years. Defense counsel then asked whether there
       had been a dispute at the card game regarding “somebody being cheated out of money.” The
       trial court sustained the State’s objection to the question. Tremon acknowledged that he
       informed the police that one of the offenders said, “Oh Lord, we are going to have to kill
       him,” while Tremon and the two offenders were in Tremon’s vehicle. However, Tremon
       could not recall which offender made the statement. Tremon also could not recall whether
       he had been convicted of a felony in 2002.
¶ 12        On redirect examination, Tremon confirmed that while he was seated in the car during
       the crime, he was able to see the defendant’s face and a “little smirk” through the bandanna.
       On re-cross-examination, Tremon testified that although he could see the defendant’s face
       while he was seated in the car during the crime, Tremon did not realize at that point in time
       that this was someone he had seen on previous occasions.
¶ 13        Dione’s testimony was substantially the same as Tremon’s testimony regarding the events
       leading up to the crime and the initial encounter between Tremon and the man with the dark
       hoody. Dione testified that a man with a white hoody and red bandanna across his face,
       whom she identified in court as the defendant, approached Dione’s car and pointed a shiny
       silver gun at her head. The defendant then asked Dione whether she had a cellular telephone,
       picked up her car keys, looked at them and then dropped them. The two offenders then put
       Tremon into the backseat of Tremon’s car and the defendant entered the driver’s seat of
       Tremon’s car and drove away. Subsequently, Dione drove to a police station to report the
       crime, where she was also reunited with Tremon. She observed that Tremon was bleeding
       and that he later received medical treatment at a hospital. On June 11, 2007, at approximately
       9 p.m., Dione and Tremon viewed a police lineup separately. Dione testified that she had

                                                -5-
       positively identified the defendant from the police lineup as one of the offenders. At trial,
       Dione also identified a photograph of a gun as the one the defendant had pointed at her
       during the commission of the crime.
¶ 14        On cross-examination, Dione acknowledged that during the “minute or so” when the
       defendant was pointing a gun at her head, she focused some of her attention on the weapon.
       However, Dione testified that even though the defendant’s face was partially covered by a
       bandanna, she could see the top half of his face, including his eyes and eyebrows. Dione then
       stated that she could not recall whether she had positively identified the defendant at the
       police lineup as one of the offenders and acknowledged that the first time she identified the
       defendant as her assailant was during her direct testimony at trial. On redirect examination,
       Dione clarified that she was unable to make an identification in the police lineup in June
       2007.
¶ 15        Officer Moran’s trial testimony was substantially the same as his testimony at the pretrial
       suppression hearing. On cross-examination, he testified that as a result of police
       investigations, two tires from Tremon’s car were found in a van that was parked near the
       alleyway and in front of the site of the defendant’s arrest. However, he did not observe the
       defendant coming into contact with the van.
¶ 16        At the close of the State’s evidence, defense counsel made a motion for a finding of not
       guilty or judgment of acquittal. The trial court found the defendant not guilty of aggravated
       unlawful use of a weapon (counts III to VI) and not guilty of unlawful use of a weapon by
       a felon (counts VII and VIII), on the ground that the State had failed to submit any evidence
       of the defendant’s prior felony conviction for armed robbery, as charged in those counts.
       Further, the trial court also found the defendant not guilty of aggravated unlawful restraint
       (count XIII), because it was “part and parcel of the armed robbery.” The trial court then
       denied the defendant’s motion as to all other counts.
¶ 17        The defense presented the testimony of the defendant’s relatives, Lakesha Williams
       (Lakesha), Kameshia Haywood (Kameshia), Christopher Williams (Christopher) and Andre
       Williams (Andre), who testified that they knew Tremon and that there had been numerous
       social gatherings at Lakesha’s home where Tremon and the defendant were present. The
       social gatherings at Lakesha’s home usually involved playing card games. Kameshia and
       Christopher specifically testified that they had seen Tremon and the defendant at Lakesha’s
       house within seven days of the carjacking. However, on cross-examination, Christopher was
       unable to recall when the carjacking occurred. Andre testified that he saw both Tremon and
       the defendant present at a card game at Lakesha’s home within seven days of the carjacking
       on June 10, 2007.
¶ 18        Following closing arguments, the trial court struck all testimony regarding Tremon’s
       prior conviction, noting that the evidence had failed to establish such a conviction. The trial
       court then reviewed the evidence adduced at trial and ruled that the circumstantial evidence
       alone, without Tremon’s identification of the defendant as the perpetrator, was more than
       sufficient to prove the defendant’s guilt beyond a reasonable doubt for armed robbery (count
       I), aggravated vehicular hijacking (count II) and aggravated battery (count IX). The trial court
       noted that all other counts of aggravated battery merged into count IX.


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¶ 19       On December 9, 2009, the defendant filed a motion for a new trial. On December 23,
       2009, the trial court denied the motion for a new trial and subsequently sentenced the
       defendant to concurrent terms of 22 years of imprisonment for armed robbery and aggravated
       vehicular hijacking and 5 years of imprisonment for aggravated battery.
¶ 20       On December 30, 2009, the defendant filed a timely notice of appeal before this court.

¶ 21                                         ANALYSIS
¶ 22       We determine the following issues on appeal: (1) whether defense counsel’s
       representation during the criminal proceedings was ineffective; and (2) whether a new
       sentencing hearing is warranted or whether, in the alternative, the sentence imposed should
       be reduced.
¶ 23       We first determine whether defense counsel’s representation was ineffective during the
       criminal proceedings.
¶ 24       The defendant argues that defense counsel was ineffective during every stage of the
       criminal proceedings and enumerates multiple alleged infractions committed by defense
       counsel at the pretrial hearing, bench trial, and posttrial hearings which demonstrated
       counsel’s misunderstanding of criminal law or his unpreparedness to defend the defendant.
¶ 25       The State counters that the defendant was afforded effective assistance of counsel where
       defense counsel filed a motion to suppress; made an opening statement; cross-examined each
       of the State’s witnesses; presented four defense witnesses; made a closing argument; filed
       a posttrial motion for a new trial; and argued in mitigation at the sentencing hearing.
¶ 26       To prevail on a claim of ineffective assistance of counsel, the defendant: (1) must prove
       that the attorney’s performance fell below an objective standard of reasonableness so as to
       deprive the defendant of the right to counsel under the sixth amendment (performance
       prong); and (2) that this substandard performance resulted in prejudice (prejudice prong).
       Strickland v. Washington, 466 U.S. 668, 687-94 (1984). To establish the performance prong,
       the defendant must overcome a strong presumption that, under the circumstances, the
       challenged action or inaction was sound trial strategy. People v. Lopez, 371 Ill. App. 3d 920,
       929, 864 N.E.2d 726, 734-35 (2007). Because effective assistance of counsel refers to
       competent, not perfect, representation, “matters relating to trial strategy are generally
       immune from claims of ineffective assistance of counsel.” Id. at 929, 864 N.E.2d at 735.
       Further, in determining the adequacy of counsel’s representation, “a reviewing court will not
       consider isolated instances of misconduct, but rather the totality of the circumstances.” Id.
       To establish prejudice, the defendant must show that “there is a reasonable probability that,
       but for counsel’s unprofessional errors, the result of the proceeding would have been
       different.” (Internal quotation marks omitted.) People v. King, 316 Ill. App. 3d 901, 913, 738
       N.E.2d 556, 566 (2000). A reasonable probability is one that sufficiently undermines
       confidence in the outcome. Id. The defendant must satisfy both prongs to prevail on his claim
       of ineffective assistance of counsel. However, a reviewing court may analyze the facts of the
       case under either prong first, and, if it deems that the standard for that prong is not satisfied,
       it need not consider the other prong. People v. Irvine, 379 Ill. App. 3d 116, 129-30, 882
       N.E.2d 1124, 1136-37 (2008).

                                                  -7-
¶ 27        As a preliminary matter, we note that footnote 1 of the defendant’s brief contains
       statements regarding disciplinary actions taken against defense counsel by the Illinois
       Attorney Registration and Disciplinary Commission (ARDC), the documentation of which
       is attached to the appendix. We find the inclusion of this evidence in the appendix to be an
       improper supplementation of the record with information dehors the record. See People v.
       Green, 2011 IL App (2d) 091123, ¶ 29. Thus, we strike this information and disregard it as
       irrelevant to the resolution of the issues before us.
¶ 28        Turning to the merits of the first issue, we note that the parties dispute the standard by
       which this court should evaluate defense counsel’s performance in representing the
       defendant. While the State argues for the well-established Strickland standard, the defendant
       invites this court to deviate from the Strickland standard and to instead apply a standard
       pronounced in United States v. Cronic, 466 U.S. 648, 658-60 (1984), which eliminated the
       need for a specific showing of prejudice in circumstances where a presumption of prejudice
       can be made–such as when there is a complete denial of counsel or if counsel completely
       fails to subject the State’s case to meaningful adversarial testing. We decline the defendant’s
       invitation to apply the Cronic standard. Although defense counsel’s representation was not
       perfect, our review of the record did not reveal a deficiency in his representation that would
       justify a presumption of prejudice upon the defendant. Thus, we apply the Strickland
       standard in our resolution of this issue.
¶ 29        The defendant first argues that defense counsel provided ineffective assistance during
       pretrial proceedings. He contends that defense counsel demonstrated his “lack of
       comprehension of the most basic tenets of criminal procedure” because the April 1, 2009
       “motion to suppress identification and quash arrest” lacked legal merit. He argues that this
       incompetence was further exhibited at a status hearing on that day, when the trial court
       engaged in dialogue with defense counsel regarding the purpose of the motion and explained
       to defense counsel that there was “no such thing in a criminal case as a motion to quash
       arrest” but, rather, a motion to quash evidence stemming from an unlawful arrest.
¶ 30        We find that the defendant has failed to establish that he was prejudiced by defense
       counsel’s filing of the April 1, 2009 “motion to suppress identification and quash arrest.” The
       April 1, 2009 motion pertained only to facts of the unrelated case involving the defendant.
       The State elected not to proceed in that case (case No. 07 CR 15686). Although defense
       counsel filed this motion under the mistaken belief that case No. 07 CR 15686 was the
       elected case, once the mistake was discovered, defense counsel refiled a “motion to suppress
       identification and quash arrest” in the instant case on May 19, 2009. Because the erroneously
       filed April 1, 2009 motion had no bearing on the facts of this case, the defendant is unable
       to show that there was a reasonable probability that the outcome would have been different
       but for defense counsel’s error.
¶ 31        Likewise, the defendant makes several arguments relating to the alleged deficiencies in
       the motion to suppress in the instant case, as well as defense counsel’s performance at the
       August 3, 2009 hearing on the motion to suppress. The defendant claims that defense counsel
       was confused about the defense’s burden of proof, erroneously assumed that the abandoned
       gun could be suppressed, and elicited evidence that helped the State establish the defendant’s
       arrest as lawful. Assuming arguendo that defense counsel’s performance at the suppression

                                                -8-
       hearing was deficient, the defendant cannot show that he was prejudiced because there is no
       reasonable probability that the outcome of the trial would have been different had the motion
       to suppress been granted by the trial court. Even without evidence stemming from the
       defendant’s arrest, there was more than sufficient evidence at trial to convict the defendant.
       For example, the State presented evidence that the police responded to a call to investigate
       a car stripping in progress prior to the defendant’s arrest. Upon arriving at the location, the
       police discovered that the vehicle was reported to have been stolen earlier that evening
       during a carjacking. The defendant and codefendant Robinson approached the vehicle before
       they knew the police were present, fled upon seeing the police, and were required to stop
       when ordered to do so. Officer Moran observed the defendant discard a shiny object during
       the foot chase, which was later discovered to be a gun. The police also recovered personal
       items belonging to Tremon near where Officer Moran observed the defendant throw the gun.
       This body of circumstantial evidence was more than enough for a finding of guilty. Thus,
       even if defense counsel’s performance was not without flaws, the defendant failed to
       establish that he was prejudiced during pretrial proceedings.
¶ 32        Next, the defendant argues that defense counsel provided ineffective assistance of
       counsel at trial. He argues that defense counsel erroneously hinged his defense entirely upon
       the “nonsensical” theory that Tremon’s police lineup identification of the defendant was
       incredible and unreliable on the following bases: (1) Tremon, having socialized with the
       defendant on prior occasions, should have immediately recognized the defendant during the
       carjacking, rather than later at the police lineup; (2) Tremon identified the defendant in the
       police lineup simply because Tremon recognized him as someone he knew but not because
       the defendant had committed the crime; and (3) a previous card game dispute involving the
       defendant provided Tremon with a motive to falsely identify the defendant in the police
       lineup.
¶ 33        We find the defendant’s argument to be without merit. “Generally, counsel’s choice of
       an appropriate defense is a matter of trial strategy or tactics not reviewable under the
       Strickland test, unless the choice is based upon a misapprehension of the law.” People v.
       Garmon, 394 Ill. App. 3d 977, 987, 916 N.E.2d 1191, 1199 (2009). “Misapprehension of a
       defense theory may be shown where evidence is presented in such a manner that the jury is
       left with no choice but to convict defendant of the offenses charged [citation] ***.” Id., 916
       N.E.2d at 1200. Although the defendant now disagrees with defense counsel’s choice of a
       defense theory at trial, he does not maintain that the defense theory was based on a
       misapprehension of applicable law. While the defendant takes issue with the defense theory
       of unreliable identification, he does not suggest a better alternative. Similar to the
       defendant’s claim of pretrial incompetence by his counsel, it is useful to highlight the
       overwhelming evidence against the defendant in analyzing his argument. Among the more
       damaging evidence was the following: the automatic starter and keys to Tremon’s vehicle
       were found on the defendant’s person; the defendant was observed by a police officer to
       discard a gun during the police foot chase; and personal property belonging to Tremon was
       found alongside the gun discarded by the defendant. See generally People v. Hoskins, 101
       Ill. 2d 209, 219-20, 461 N.E.2d 941, 946 (1984). There is no reasonable probability that the
       outcome would have been different had defense counsel pursued a different defense theory.

                                                -9-
       Thus, the defendant’s argument fails.
¶ 34       Next, the defendant makes several arguments relating to defense counsel’s failed
       attempts to introduce certain evidence at trial. In support of his argument, the defendant
       highlights defense counsel’s unsuccessful attempts to show that an alleged dispute at a card
       game gave Tremon a reason to falsely accuse the defendant. The defendant further argues
       that defense counsel failed to undermine Tremon’s credibility when he neglected to present
       evidence to prove that Tremon had previously been convicted of a crime involving
       dishonesty. He also contends that eliciting evidence from defense witnesses that Tremon and
       the defendant previously attended the same social functions only served to bolster Tremon’s
       credibility and bolster his identification of the defendant as the perpetrator.
¶ 35       While the defendant’s argument has some validity regarding counsel’s trial tactics, it is
       insufficient to overcome the strength of the evidence presented by the State. As discussed,
       that evidence was more than sufficient to prove the defendant guilty beyond a reasonable
       doubt. In fact, the trial court, in making its ruling, specifically noted that circumstantial
       evidence alone, without Tremon’s identification of the defendant, was more than sufficient
       to convict the defendant. Thus, the defendant cannot show that he was prejudiced.
¶ 36       Nevertheless, the defendant argues that even if defense counsel’s trial strategy was
       reasonable, defense counsel “undermined this strategy within seconds” by asking Tremon
       on cross-examination whether he recalled informing the police that, during the carjacking,
       one of the offenders stated, “Oh Lord, we are going to have to kill him.” The defendant
       maintains that defense counsel, by engaging in this line of questioning, undermined the
       defense theory of unreliable identification by showing that Tremon had in fact recognized
       the defendant in the vehicle at the time of the carjacking. Our review of the record reveals
       that, in response to this line of questioning, Tremon indicated that he could not recall which
       offender made the quoted statement. The trial court noted in its ruling that a reasonable
       inference could be made from this statement, and from the defendant’s partial concealment
       of his face with a bandanna during the crime, that the defendant wanted to hide his identity
       from Tremon because he knew Tremon. However, as we have stated, other evidence of
       record–such as the defendant’s possession of Tremon’s automatic starter and car keys at the
       time of his arrest; the abandoned gun during the police foot chase; and the recovery of
       Tremon’s personal property from the same site where the defendant abandoned the gun–was
       more than sufficient to convict the defendant. Thus, the defendant has failed to show how
       he has been prejudiced.
¶ 37       Next, the defendant argues that defense counsel failed to subject the circumstantial
       evidence at trial to meaningful adversarial testing. Specifically, he asserts that defense
       counsel did not mount a defense against the circumstantial evidence, but instead continued
       to stress the theory that “the case was one of identification.” The defendant cites People v.
       Chandler, 129 Ill. 2d 233, 543 N.E.2d 1290 (1989), for support of this argument.
¶ 38       A review of the record shows that defense counsel challenged the circumstantial evidence
       at trial by cross-examining each of the State’s witnesses. We note that during cross-
       examination of Tremon, defense counsel elicited testimony that was not helpful to the State.
       For example, counsel showed that a photograph of the area where Tremon’s personal items


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       were recovered only depicted Tremon’s wallet, driver’s license and other items, but did not
       depict a gun nearby. On cross-examination of Officer Moran, defense counsel elicited
       testimony that Officer Moran did not see the defendant discard anything other than a shiny
       metal object during the police foot chase; that no single photograph showing both the gun
       and Tremon’s personal property existed; and that Officer Moran had no idea how Tremon’s
       wallet and driver’s license happened to be where they were found. Defense counsel also
       elicited testimony from Officer Moran that he did not know who owned the van in which
       tires from Tremon’s car were found. Further, Officer Moran testified in response to counsel’s
       questions that he never saw the defendant come into contact with the van at any time. In
       closing argument, defense counsel argued that the defendant’s possession of the keys to
       Tremon’s car showed at best an unlawful criminal trespass to property, but was insufficient
       to convict the defendant of the instant charges. Further, defense counsel argued that no
       fingerprints were found on the gun, and that there was nothing linking the defendant to the
       gun except a “cursory viewing of the weapon by witnesses who have already been shown [to
       be] less than credible.” We believe this shows that defense counsel subjected the
       circumstantial evidence to meaningful adversarial testing. Thus, the facts in this case are
       distinguishable from those in Chandler, 129 Ill. 2d at 246-47, 543 N.E.2d at 1295 (counsel
       provided ineffective assistance where he failed to develop a theory of innocence; failed to
       cross-examine several key witnesses at all; presented no witnesses on behalf of the defense;
       failed to call defendant to the stand despite promising the jury during opening statements that
       defendant would testify; and mistakenly believed that the jury, despite being instructed on
       both felony murder and accountability, could find defendant not guilty since defendant did
       not inflict the fatal wounds upon the victim). Therefore, the defendant has not established
       that defense counsel’s tactic in handling the circumstantial evidence fell below an objective
       standard of reasonableness so as to satisfy the performance prong under Strickland.
¶ 39        The defendant next argues that defense counsel’s performance was deficient at trial for
       failing to present an offer of proof, such as a certification from the Secretary of State,
       concerning the ownership of the van. He argues that if the van is shown to belong to
       someone other than the defendant, it could have increased the “range of possible hijackers”
       and weakened the assumption that the defendant was one of the offenders. Even assuming
       arguendo that defense counsel had presented evidence that the van did not belong to the
       defendant, such evidence would not have been exculpatory in light of the other strong
       evidence pointing to the defendant’s guilt. There are many plausible theories that would still
       support a finding of guilt, regardless of who owned the van. Thus, the defendant cannot
       establish a reasonable probability that the outcome of the case would have been different but
       for defense counsel’s failure to present proof of ownership of the van.
¶ 40        The defendant also argues that defense counsel provided ineffective assistance of counsel
       because he failed to notice a glaring omission in the State’s case–namely, that the State
       presented no evidence to prove that the defendant had a prior felony conviction, which was
       an essential element of several charges leveled against him. At the close of the State’s
       evidence, defense counsel made a motion for a finding of not guilty or judgment of acquittal,
       arguing that the defendant should be acquitted of all charges. There was no mention of the
       absence of evidence showing the defendant’s prior felony conviction. We agree that this was

                                                -11-
       error. However, we also note that this was a bench trial. The record shows that the trial court,
       sua sponte, acknowledged that the State had failed to submit any evidence of the defendant’s
       prior felony conviction for armed robbery. As a result, the trial court found the defendant not
       guilty of several of the offenses charged (counts III to VIII and XIII) which were premised
       upon his prior felony conviction of armed robbery. Thus, the defendant was not prejudiced
       by defense counsel’s error.
¶ 41        Next, the defendant maintains that defense counsel was ineffective during posttrial
       proceedings when he appeared in court for a hearing without the case file. On December 23,
       2009, defense counsel made arguments before the court in support of the defendant’s motion
       for a new trial, which the trial court denied and proceeded to the sentencing stage of the case.
       The trial court then asked defense counsel whether the presentence investigative report (PSI
       report) contained any inaccuracies, to which counsel replied, “Judge, I’m at a loss. I don’t
       have the file with me at this moment.” At that point, the trial court allowed defense counsel
       a short break to review a copy of the PSI report, after which defense counsel informed the
       trial court that he found no inaccuracies in the PSI report. Thereafter, defense counsel argued
       in mitigation on behalf of the defendant at the sentencing hearing.
¶ 42        While it was not good practice to appear in court without the case file, the defendant
       cannot show any negative impact or prejudice as a result. We find that the defendant has
       failed to satisfy both prongs of the Strickland test in arguing that defense counsel was
       ineffective for failing to bring his case file to the posttrial hearing. Thus, the defendant’s
       ineffective assistance claim on this basis must fail.
¶ 43        We also reject the defendant’s argument that he was prejudiced by the intervention of the
       trial court during the proceedings. A review of the record reveals that the incidents of which
       the defendant now complains were not prejudicial to the defendant so as to render defense
       counsel’s representation ineffective. Cf. People v. Baines, 399 Ill. App. 3d 881, 899, 927
       N.E.2d 158, 172-73 (2010) (defense counsel was ineffective for the primary reason that he
       impeached his own client, which harmed the defendant’s case, and for a secondary reason
       that the trial court frequently intervened at the jury trial to guide defense counsel through
       rudimentary trial procedures and to correct counsel’s mistakes). The record shows that the
       trial court in this case also intervened at various points sua sponte during the State’s
       presentation of its case-in-chief in order to clarify a witness’s testimony or to sustain a
       question posed to a witness. Accordingly, when the case is viewed in its entirety, we cannot
       say that defense counsel was cumulatively ineffective during the different stages of the
       defendant’s criminal proceedings.
¶ 44        We next determine whether a new sentencing hearing is warranted or, in the alternative,
       whether the sentence imposed should be reduced.
¶ 45        On December 23, 2009, the trial court sentenced the defendant to 22 years of
       imprisonment for his armed robbery conviction and 22 years of imprisonment for his
       aggravated vehicular hijacking conviction, to be served concurrently with a 5-year sentence
       for aggravated battery. In imposing the sentences for armed robbery and aggravated vehicular
       hijacking, the trial court included a 15-year firearm sentencing enhancement for each of those
       offenses under sections 18-2(a)(2), (b) and 18-4(a)(4), (b) of the Criminal Code of 1961 (the


                                                -12-
       Code) (720 ILCS 5/18-2, 18-4 (West 2000)).
¶ 46        In a supplemental brief before this court,3 the defendant argues that the 15-year firearm
       sentencing enhancements for armed robbery and aggravated vehicular hijacking were
       declared unconstitutional and void ab initio pursuant to People v. Hauschild, 226 Ill. 2d 63,
       871 N.E.2d 1 (2007), and People v. Andrews, 364 Ill. App. 3d 253, 845 N.E.2d 974 (2006),
       respectively. The defendant contends that because a subsequent 2007 legislative amendment
       to the armed violence statute did not “revive” the 15-year firearm sentencing enhancements
       for the armed robbery or aggravated vehicular hijacking statutes, this court should vacate the
       defendant’s sentences for armed robbery and aggravated vehicular hijacking and remand this
       cause for resentencing under the sentencing provisions which predated the invalid statutes.
¶ 47        The State counters that the Hauschild case was wrongly decided. In the alternative,
       however, the State asks this court to reject the defendant’s contention that the Illinois
       legislature’s 2007 amendment to the armed violence statute did not “revive” the 15-year
       firearm sentencing enhancements for armed robbery and aggravated vehicular hijacking.
       However, the State concedes that the cause should be remanded for resentencing under the
       provisions that predated the invalid statutes. The State’s concession is premised on its
       reasoning that the defendant committed the crimes after the Hauschild decision and before
       the legislature’s 2007 amendment.
¶ 48        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. Statutes are presumed to be
       constitutional. People v. Sharpe, 216 Ill. 2d 481, 487, 839 N.E.2d 492, 497 (2005). “To
       overcome this presumption, the party challenging the statute must clearly establish that it
       violates the constitution.” Id. Article I, section 11 of the Illinois Constitution provides that
       “[a]ll penalties shall be determined both according to the seriousness of the offense and with
       the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. A
       proportionate penalties challenge to a statute alleges that “the penalty in question was not
       determined according to the seriousness of the offense.” Sharpe, 216 Ill. 2d at 487, 839
       N.E.2d at 498. A defendant’s sentence violates the proportionate penalties clause of the
       Illinois Constitution when: (1) the penalty is “cruel, degrading, or so wholly disproportionate
       to the offense committed as to shock the moral sense of the community”; or (2) the penalty
       is harsher than the penalty for a different offense that contains identical elements. (Internal
       quotation marks omitted.) Id. at 487, 521, 839 N.E.2d at 498, 517.
¶ 49        In Hauschild, our supreme court held that the sentence 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 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.” Hauschild, 226 Ill. 2d at 87, 871 N.E.2d at 14. Although the offense


               3
                On March 1, 2012, this court granted the defendant’s motion to file a supplemental brief.
       Subsequently, the State also filed a supplemental response brief addressing the sentencing issue
       raised by the defendant’s supplemental brief. A supplemental reply brief was also filed by the
       defendant.

                                                 -13-
       of armed robbery while armed with a firearm was punishable by an enhanced sentence of 21
       to 45 years of imprisonment, armed violence predicated on robbery with a category I or
       category II weapon was punishable by a sentence of 15 to 30 years of imprisonment. Id. at
       86, 871 N.E.2d at 14.
¶ 50        Similarly, in Andrews, this court held that the penalty for aggravated vehicular hijacking
       while carrying a firearm, imposed under the same aggravated vehicular hijacking statute as
       in the instant case, was unconstitutionally disproportionate to the penalty for the offense of
       armed violence with a category I weapon predicated on vehicular hijacking. Andrews, 364
       Ill. App. 3d at 275, 845 N.E.2d at 993. While the penalty for aggravated vehicular hijacking
       while carrying a firearm had a sentencing range of 21 to 45 years of imprisonment, armed
       violence with a category I weapon predicated on the offense of vehicular hijacking, which
       contained identical elements as the offense of aggravated vehicular hijacking, was punishable
       by 15 to 30 years of imprisonment. Id. at 273-75, 871 N.E.2d at 992-93.
¶ 51        The State argues in this and in other cases before our supreme court that Hauschild was
       wrongly decided. However, in People v. Clemons, 2012 IL 107821, decided by our supreme
       court after the parties here had submitted their briefs before this court, our supreme court
       rejected this argument. The supreme court held that Hauschild remains good law and
       declined to abandon the identical elements test for proportionality review. Clemons, 2012 IL
       107821, ¶¶ 19, 26, 53. Thus, applying the holdings in Hauschild and Andrews to the instant
       case, we find that the 15-year sentencing enhancements for the defendant’s convictions for
       armed robbery and aggravated vehicular hijacking violated the proportionate penalties clause
       and are thus void.
¶ 52        In 2007, subsequent to the Hauschild and Andrews decisions, the Illinois legislature
       cured the proportionate penalties clause violations explained in those cases by excluding
       armed robbery and aggravated vehicular carjacking as predicate offenses to the armed
       violence statute. See Pub. Act 95-688, § 4 (eff. Oct. 23, 2007) (amending 720 ILCS 5/33A-2,
       33A-3). Thus, as of October 23, 2007, the effective date of Public Act 95-688, the
       constitutional infirmities for the armed robbery, aggravated vehicular hijacking, and armed
       violence statutes addressed by the Hauschild and Andrews courts were no longer present.
¶ 53        Nonetheless, the defendant maintains that because the legislature’s 2007 amendment,
       enacted subsequent to the Hauschild and Andrews decisions, did not “revive” the 15-year
       firearm sentencing enhancements for the armed robbery or aggravated vehicular hijacking
       statutes, this court should vacate the defendant’s sentences for armed robbery and aggravated
       vehicular hijacking and remand this cause for resentencing under the sentencing provisions
       which predated the invalid statutes.
¶ 54        The State concedes that the cause should be remanded for resentencing under the
       provisions that predated the invalid statutes, but for the reason that the defendant committed
       the crimes after the Hauschild decision and before the legislature’s 2007 amendment. We
       agree that the case should be remanded for resentencing.
¶ 55        We note that this court in People v. Brown, 2012 IL App (5th) 100452, rejected the exact
       argument proposed by the defendant here, specifically, that the legislature’s 2007 amendment
       did not “revive” the 15-year sentencing enhancements for the armed robbery or aggravated


                                                -14-
       vehicular hijacking statute. In Brown, the court expressly stated that the legislature had
       revived the 15-year firearm sentencing enhancements by enacting Public Act 95-688. Id.
       ¶ 17. Thus, the legislature’s 2007 amendment removed the constitutional violation of the
       proportionate penalties clause regarding armed robbery and aggravated vehicular hijacking.
¶ 56        However, notwithstanding the 2007 amendment’s revival of the 15-year firearm
       sentencing enhancements for the subject offenses, the defendant’s 22-year sentences for
       armed robbery and aggravated vehicular hijacking must be vacated and the cause remanded
       for resentencing. The defendant committed the crimes on June 10, 2007, after the Hauschild
       and Andrews decisions but before Public Act 95-688 became effective on October 23, 2007.
       Thus, it was error for the trial court to add the 15-year firearm sentencing enhancements to
       the defendant’s convictions for armed robbery and aggravated vehicular hijacking. Therefore,
       we vacate the defendant’s sentences for armed robbery and aggravated vehicular hijacking
       and remand the cause to the trial court for resentencing under the statutory provisions that
       existed immediately prior to the enactment of the invalid statutes. See Clemons, 2012 IL
       107821, ¶¶ 56, 60; Hauschild, 226 Ill. 2d at 88, 871 N.E.2d at 15 (when an amended statute
       has been found to violate the proportionate penalties clause, the proper remedy is to remand
       for resentencing in accordance with the statute as it existed prior to the amendment); People
       v. McBride, 2012 IL App (1st) 100375, ¶¶ 36-37 (preamended version of the aggravated
       vehicular hijacking statute was “automatically resuscitated” when the amended statute was
       invalidated by the reasoning in Andrews (citing People v. Washington, 2012 IL 107993)).
       Accordingly, on remand, the defendant would be subjected to a sentencing range of 6 to 30
       years for armed robbery (720 ILCS 5/18-2(b) (West 2000)) and 7 to 30 years for aggravated
       vehicular hijacking (720 ILCS 5/18-4(b) (West 2000)), which, as previously ordered by the
       trial court, will be served concurrently with the defendant’s 5-year sentence for aggravated
       battery. We do not vacate the 5-year sentence for aggravated battery.
¶ 57        In light of our holding, we need not address the defendant’s request for relief on the
       alternative ground that the 22-year concurrent sentences for his armed robbery and
       aggravated vehicular hijacking convictions should be reduced to 21-year sentences, where
       the trial court fashioned those sentences under the mistaken belief that 22 years of
       imprisonment was the minimum sentence. Likewise, we need not address the defendant’s
       argument that defense counsel was ineffective for failing to correct the trial court’s error
       during the sentencing hearing.
¶ 58        We affirm the defendant’s convictions; affirm the defendant’s five-year sentence for
       aggravated battery; vacate the defendant’s sentences for armed robbery and aggravated
       vehicular hijacking; and remand the cause to the trial court for resentencing on the
       defendant’s armed robbery and aggravated vehicular hijacking convictions consistent with
       this court’s opinion.

¶ 59      Affirmed in part and vacated in part; cause remanded with directions.




                                               -15-
