                                   Illinois Official Reports

                                          Appellate Court



                             People v. McFadden, 2014 IL App (1st) 102939



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




District & No.                First District, Second Division
                              Docket No. 1-10-2939



Opinion filed                 November 30, 2012
Rehearing denied              January 30, 2014
Modified upon                 February 4, 2014
denial of rehearing

Held                          The 15-year statutory enhancement of defendant’s armed robbery
(Note: This syllabus          sentences was vacated as unconstitutional under Hauschild and the
constitutes no part of the    enhancement was not revived by Public Act 95-688, one conviction
opinion of the court but      for unlawful use of a weapon by a felon was vacated pursuant to the
has been prepared by the      one-act, one-crime, rule and the cause was remanded for resentencing
Reporter of Decisions         as though the enhancement never existed.
for the convenience of
the reader.)




Decision Under                Appeal from the Circuit Court of Cook County, Nos. 08-CR-4951,
Review                        08-CR-4952; the Hon. Sharon Sullivan, Judge, presiding.




Judgment                      Affirmed in part and vacated in part; mittimus corrected.
     Counsel on               Michael J. Pelletier, Alan D. Goldberg, and Pamela Rubeo, all of State
     Appeal                   Appellate Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              Carol L. Gaines, Annette Collins, and Kathryn A. Schierl, Assistant
                              State’s Attorneys, of counsel), for the People.




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




                                               OPINION

¶1         Following a bench trial in the circuit court of Cook County, the trial judge found defendant
       Onaffia McFadden guilty of three armed robberies while armed with a firearm (720 ILCS
       5/18-2(a)(2) (West 2008)) and two counts of unlawful possession or use of a weapon (UUW)
       by a felon (720 ILCS 5/24-1.1(a) (West 2008)). The trial judge sentenced defendant to 29 years
       in prison on each of the armed robbery convictions, including a 15-year enhancement for
       carrying a firearm pursuant to section 18-2(b) of the Criminal Code of 1961 (Code) (720 ILCS
       5/18-2(b) (West 2008)). The trial judge also sentenced defendant to 10 years in prison on each
       of the convictions for UUW by a felon. All of the sentences were ordered to be served
       concurrently.
¶2         On appeal, defendant contends that: (1) the 15-year statutory enhancement of his armed
       robbery sentences is unconstitutional; (2) his sentence is otherwise excessive; (3) one of his
       convictions for UUW by a felon violates the one-act, one-crime rule; and (4) the mittimus must
       be corrected to remove an erroneous conviction for aggravated unlawful use of a weapon
       (AUUW). For the foregoing reasons, we affirm defendant’s convictions and sentences for
       armed robbery, vacate defendant’s convictions for UUW by a felon, and correct the mittimus.

¶3                                          BACKGROUND
¶4         An explanation of the procedural posture of this case is important where the original
       opinion in this case was filed more than a year ago. In People v. McFadden, 2012 IL App (1st)
       102939, which we are withdrawing contemporaneous with the filing of this opinion, Justice
       Steele authored an opinion vacating the 15-year enhanced portion of defendant’s armed
       robbery sentences, vacating one of his convictions for UUW by a felon, correcting the
       mittimus, and remanding the case for resentencing. Justice Steele retired shortly after filing
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       that opinion. The State then filed a timely petition for rehearing on January 11, 2013.
       Defendant filed an answer to the State’s petition for rehearing on December 12, 2013, and the
       State filed a reply on December 27, 2013. In separate orders filed contemporaneously, we deny
       the State’s petition for rehearing and withdraw the previous opinion filed in this case.
¶5          The record on appeal discloses the following facts. On March 5, 2008, defendant was
       indicted in case number 08 CR 4591 for the armed robbery of Ronald Pitts and Jasmine
       Stephens, as well as for AUUW and UUW. Defendant was also charged in case number 08 CR
       4592 for the armed robbery of Henry Muldrow, as well as AUUW and UUW. In case number
       08 CR 3647, defendant was indicted for the armed robbery of Iris Talley, in addition to AUUW
       and UUW.
¶6          Prior to trial, and over defense counsel’s objection, the State successfully moved to join the
       Muldrow and Talley cases, arguing that they involved “essentially one crime spree.” The State
       later moved for joinder of all three cases, again over the defense’s objection, arguing that they
       were part of the same comprehensive transaction. The trial court granted the motion, on the
       grounds that the offenses were similar and occurred relatively close in time and location, the
       same weapon was alleged to have been involved in all three cases, and the proceeds from the
       crimes were allegedly found at the same time in a vehicle with defendant.
¶7          The case proceeded to a bench trial. Pitts testified that shortly after midnight on January 28,
       2008, he and Stephens were standing at a bus stop at 7900 South Princeton Avenue when two
       African-American males approached them. Pitts stated that one of the men, whom Pitts
       identified in court as defendant, held a revolver to his neck and took his telephone, wallet, and
       money. Pitts further testified that defendant also took Stephens’s telephone. After defendant
       left, Pitts flagged down a police car, and he and Stephens reported the offense to the police.
¶8          Moreover, Pitts testified that he was contacted by the police the next day and identified
       defendant in a lineup, as well as his stolen telephone, wallet and money. At trial, Pitts
       identified defendant in a photograph of the lineup. He also identified the gun used during the
       robbery in a photograph shown as an exhibit at trial.
¶9          Stephens did not testify at trial.
¶ 10        Muldrow testified that in the late evening of January 28, 2008, he was looking for his dog
       in an alley near his home at 6840 South Wabash Avenue when two African-American males
       approached him. Muldrow stated that one of the men, whom he later identified as Defendant,
       had his hand in his right pocket. Muldrow further testified that defendant pulled a gun out of
       that pocket and put the barrel to Muldrow’s chest. According to Muldrow, defendant asked for
       money and Muldrow responded that he did not think he had any. Muldrow stated that
       defendant searched him and, upon finding $4 or $5 dollars, said “I could have shot you for
       that.” In addition to the money found on Muldrow, defendant also took Muldrow’s telephone.
       After the men left, Muldrow went inside and telephoned the police.
¶ 11        Approximately 15 minutes later, the police telephoned Muldrow and brought him to the
       police station, where he identified defendant in a lineup. Muldrow also identified the telephone
       and currency taken from him.


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¶ 12        Chicago police officer Anthony Bruno testified that shortly after midnight on January 29,
       2008, he and his partner were in an unmarked police car near 6800 South Wabash Avenue
       when they were flagged down by Talley. Officer Bruno’s partner, Andrew Janik, testified that
       Talley said that he was robbed. After speaking to Talley, the officers curbed a beige Chevy
       Cobalt near 319 East Marquette Road. The police commanded the driver and passenger to
       show their hands. Officer Bruno testified that the driver, Herman Climons, showed his hands,
       while the passenger, defendant, leaned forward and made movements toward the glove box.
       Officer Bruno further testified that he saw the glove box open, revealing a revolver inside.
       Officer Bruno handcuffed defendant, while his partner removed Climons from the automobile.
¶ 13        Moreover, Officer Bruno testified that police brought Talley to the scene, whereupon
       Talley identified Defendant, but not Climons. Officer Bruno found several telephones, a
       wallet, a videogame and cash in Defendant’s pockets. Officer Bruno also retrieved the revolver
       from the glove box, discovering it was loaded with six live rounds. Talley did not testify at
       trial.
¶ 14        Chicago police detective Henry Barsch testified that Muldrow and Pitts identified
       defendant in lineups (Muldrow failed to identify Climons). Detective Barsch also testified that
       he and Detective Matthew Weber spoke to defendant, who indicated that he wanted to speak to
       an assistant State’s Attorney. In stipulated testimony from Detective Weber, he stated that the
       police asked defendant whether he wanted to give a written statement.
¶ 15        Assistant State’s Attorney (ASA) Maureen Renno testified that, in the presence of the
       detectives, defendant gave a written statement inculpating himself in the armed robbery of
       Pitts and Stephens.
¶ 16        The parties stipulated that defendant had a prior AUUW conviction.
¶ 17        Following the close of the State’s case, the trial judge granted the defense motion for a
       directed verdict in the Talley case. Following the close of evidence, the State referred to
       defendant’s “crime spree” and urged the trial judge to find defendant guilty of the “gun charges
       in this case” in closing argument.
¶ 18        The trial judge, after reviewing the evidence, found defendant guilty of the armed robberies
       of Pitts, Stephens and Muldrow. In the Pitts and Stephens case, the trial judge found defendant
       guilty of one count of UUW by a felon. In the Muldrow case, the trial judge found defendant
       guilty of one count of UUW by a felon.
¶ 19        Defendant filed a motion for new trial, which the trial court denied on August 20, 2010,
       before proceeding to a sentencing hearing. After hearing evidence in aggravation and
       mitigation, the trial judge sentenced defendant to 29 years in prison on each of the three armed
       robbery convictions, including a 15-year statutory enhancement for carrying a firearm
       pursuant to section 18-2(b) of the Code (720 ILCS 5/18-2(b) (West 2008)). The trial judge also
       sentenced defendant to 10 years in prison on both of the convictions for UUW by a felon. The
       trial judge ordered the sentences to run concurrently.
¶ 20        On September 3, 2010, defendant filed a motion to reconsider his sentence. The trial judge
       denied the motion on the same day. On September 17, 2010, Defendant filed a timely notice of


                                                   -4-
       appeal.

¶ 21                                            DISCUSSION
¶ 22                                   I. The One-Act, One-Crime Rule
¶ 23       As a threshold matter, we consider defendant’s argument that his two convictions for
       UUW by a felon must be vacated under the one-act, one-crime rule set forth in People v. King,
       66 Ill. 2d 551, 566 (1977). Defendant concedes that he forfeited review of the issue by failing
       to object at trial and failing to include the issue in a posttrial motion. People v. Enoch, 122 Ill.
       2d 176, 187 (1988). However, he requests that we review the matter for plain error. The
       plain-error rule is a limited exception to the forfeiture rule and may be invoked only if the
       evidence is closely balanced or if the alleged error is so fundamental that it may have deprived
       the defendant of a fair trial or sentencing hearing. People v. Herrett, 137 Ill. 2d 195, 209-10
       (1990). “[F]orfeited one-act, one-crime arguments are properly reviewed under the second
       prong of the plain-error rule because they implicate the integrity of the judicial process.”
       People v. Nunez, 236 Ill. 2d 488, 493 (2010) (citing People v. Artis, 232 Ill. 2d 156, 167-68
       (2009)).
¶ 24       The one-act, one-crime doctrine prohibits multiple convictions when: (1) the convictions
       are carved from precisely the same physical act; or (2) one of the offenses is a lesser-included
       offense of the other. People v. Lindsey, 324 Ill. App. 3d 193, 200 (2001). Thus, the first step is
       to determine whether the defendant’s conduct consisted of a single physical act or separate
       acts. People v. Harvey, 211 Ill. 2d 368, 389 (2004). “Multiple convictions are improper if they
       are based on precisely the same physical act.” People v. Rodriguez, 169 Ill. 2d 183, 186 (1996).
       Our supreme court has defined an “act” as “ ‘any overt or outward manifestation which will
       support a different offense.’ ” Rodriguez, 169 Ill. 2d at 188 (quoting King, 66 Ill. 2d at 566).
       We consider this issue de novo. People v. Peacock, 359 Ill. App. 3d 326, 331 (2005).
¶ 25       Both defendant and the State rely on People v. Crespo, 203 Ill. 2d 335, 345 (2001). In
       Crespo, the defendant was convicted of the first degree murder of one victim and one count
       each of armed violence and aggravated battery in the stabbing of a second victim. Id. at 337.
       On appeal to our supreme court, the defendant argued that his conviction for aggravated
       battery should be vacated because it stemmed from the same physical act as the armed violence
       charge. Id. Although the defendant had stabbed the second victim three times, and each
       stabbing was a separate and distinct act, the State did not charge defendant for the three
       separate stabbings in the indictment. Id. at 340-42. Instead, the different counts in the
       indictment charged the defendant under different theories of criminal culpability for the same
       course of conduct, namely, the three stabbings. Id. at 342. Moreover, the State’s theory at trial,
       as shown by its argument to the jury, showed that the State intended to portray the defendant’s
       conduct as a single attack. Id. at 343-44. The Crespo court emphasized that the State could
       have charged the crime as multiple acts, and could have argued the case to the jury that way,
       but chose not to do so; the court would not allow the State to change its theory of the case on
       appeal. Id. at 344. Accordingly, our supreme court held that where a defendant commits
       multiple criminal acts, but the indictment only charges the defendant for a single course of

                                                    -5-
       conduct, the trial court cannot then convict the defendant for separate criminal acts. This is true
       even if multiple theories of culpability are presented. Id. at 345.
¶ 26       Here, defendant argues that the State treated the events at issue as one “crime spree” and as
       parts of the same comprehensive transaction. The State acknowledges that the cases against
       defendant were consolidated on the grounds that the offenses were similar and occurred
       relatively close in time and location, the same weapon was alleged to have been involved in all
       three cases, and the proceeds from the crimes were allegedly found at the same time in a
       vehicle with defendant. Nevertheless, the State notes that the UUW by a felon charges were
       brought against defendant in separate indictments and the robberies were addressed and argued
       as distinct events at trial. The State also notes that, “[i]n deciding whether defendant’s conduct
       in a particular instance constituted separate acts or merely formed distinct parts of a single
       physical act, reviewing courts have considered the identity of the victim and location, the
       similarity of the acts and lack of a substantial time interval or intervening act between them,
       and prosecutorial intent as reflected in the wording of the charging instrument.” People v.
       Cobern, 236 Ill. App. 3d 300, 303 (1992) (citing People v. Baity, 125 Ill. App. 3d 50, 52-53
       (1984)).
¶ 27       Defendant was twice convicted of violating section 24-1.1(a) of the Code (720 ILCS
       5/24-1.1(a) (West 2008)), which makes it “unlawful for a person to knowingly possess on or
       about his person *** any firearm *** if the person has been convicted of a felony under the
       laws of this State or any other jurisdiction.” Although this section of the Code is titled
       “Unlawful Use or Possession of Weapons by Felons or Persons in the Custody of the
       Department of Corrections Facilities,” the title does not supersede the express language of the
       statute. See Alvarez v. Pappas, 229 Ill. 2d 217, 230-31 (2008). The unambiguous language of
       section 24-1.1(a) of the Code plainly makes possession, not use, of a firearm the actus reus of
       the offense. Significantly, the possession criminalized is not tied to the use of the weapon in the
       commission of any offense.
¶ 28       Possessory offenses have always posed special problems in determining violations of the
       one-act, one-crime rule. People v. McCarter, 339 Ill. App. 3d 876, 881 (2003). The rule of
       lenity provides that ambiguities in criminal statutes should be resolved in a defendant’s favor,
       but not “stretched so far as to defeat the legislature’s intent.” People v. Fields, 383 Ill. App. 3d
       920, 922 (2008). In construing a statute, we presume that the legislature did not intend absurd,
       inconvenient, or unjust results. People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 280 (2003).
¶ 29       In this case, unlike the easily separable acts at issue in Crespo, allowing seemingly
       continuous possession as the basis of more than one conviction theoretically would permit a
       potentially infinite number of convictions, as the defendant possessed the firearm from hour to
       hour, minute to minute, nanosecond to nanosecond. We presume the legislature did not intend
       that result. While the evidence here shows discrete armed robberies, there is no evidence that
       defendant’s act of possession of the firearm was anything other than singular and continuous
       throughout the time at issue. Thus, we conclude that defendant’s convictions for UUW by a
       felon are based on the same physical act. Accordingly, one of defendant’s convictions for
       UUW by a felon must be vacated.

                                                    -6-
¶ 30       In addition, the State concedes that the mittimus in case number 08 CR 4592 erroneously
       reflects that defendant was convicted of AUUW, rather than UUW by a felon. Therefore, we
       not only vacate defendant’s conviction for UUW by a felon in case number 08 CR 4592, but
       we also correct the mittimus in that case to remove the erroneous conviction for AUUW
       pursuant to Illinois Supreme Court Rule 615. See, e.g., People v. Hill, 408 Ill. App. 3d 23, 31
       (2011).

¶ 31                            II. The Sentence Enhancement for Armed
                                    Robbery While Carrying a Firearm
¶ 32       In his opening brief, defendant argued that the 15-year statutory enhancement of his armed
       robbery sentences under section 18-2(b) (720 ILCS 5/18-2(b) (West 2008)) was
       unconstitutional. Defendant acknowledged that he did not raise the issue in the trial court but
       argued that a constitutional challenge to a statute may be raised at any time and is subject to de
       novo review. People v. Robinson, 2011 IL App (1st) 100078, ¶ 12. A statute bears a strong
       presumption that it is constitutional; defendant bears the burden of overcoming that
       presumption and clearly showing that the statute is unconstitutional. People v. Sharpe, 216 Ill.
       2d 481, 487 (2005).
¶ 33       As defendant correctly noted, the 15-year firearm sentencing enhancement for armed
       robbery was declared unconstitutional in People v. Hauschild, 226 Ill. 2d 63, 87 (2007) (a
       15-year sentence enhancement for armed robbery while armed with a firearm, imposed under
       the same armed robbery statute as in the instant case, violated the proportionate-penalties
       clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11), because the penalty for that
       offense was “more severe than the penalty for the identical offense of armed violence
       predicated on robbery with a category I or category II weapon”). The State countered that the
       legislature subsequently passed a statutory amendment (Pub. Act 95-688, § 4 (eff. Oct. 23,
       2007)), reviving the sentencing enhancement. The parties recognized a split in the districts as
       to whether the sentencing enhancement had been revived (First and Fifth Districts ruled that
       Public Act 95-688 revived the 15-year enhancement in the armed robbery statute in People v.
       Malone, 2012 IL App (1st) 110517, ¶ 90, People v. Brown, 2012 IL App (5th) 100452,
       ¶¶ 15-16, and People v. Williams, 2012 IL App (1st) 100126, ¶ 55 (dicta), and the Third and
       Fourth Districts held that the statutory amendment did not revive the sentencing enhancement,
       which was found to be unconstitutional and void ab initio under Hauschild in People v. Blair,
       2012 IL App (3d) 100743-U, ¶ 5, appeal allowed, No. 114122 (Ill. May 30, 2012), and People
       v. Gillespie, 2012 IL App (4th) 110151, ¶ 54).
¶ 34       Following this court’s determination in this case that the 15-year sentencing enhancement
       was not revived by Public Act 95-688, and therefore remained unconstitutional pursuant to
       Hauschild, the State filed a petition for rehearing. While the petition for rehearing was
       pending, our supreme court resolved the issue of whether Public Act 95-688 revived the
       15-year sentencing enhancement in People v. Blair, 2013 IL 114122, ¶¶ 27-38. The Blair court
       held that because the proportionate penalties problem was eliminated by the enactment of
       Public Act 95-688, the offense of armed robbery while armed with a firearm was revived and
       therefore the use of the statutory enhanced sentencing range for that offense was not
                                                    -7-
       unconstitutional. In accordance with Blair, we hold that Public Act 95-688 effectively revived
       section 18-4(a)(4) of the Code and therefore the 15-year sentence enhancement imposed in this
       case is constitutional. Id. ¶¶ 27-38; 720 ILCS 5/18-4(a)(4) (West 2008).

¶ 35                                         III. UUW by a Felon
¶ 36       For the first time in a supplemental brief filed subsequent to the State’s petition for
       rehearing, defendant argues that under People v. Aguilar, 2013 IL 112116, this court must
       vacate his remaining conviction for UUW by a felon because the underlying predicate felony
       of AUUW (case No. 02 CR 30903) under section 24-1.6(a)(1) and (a)(3)(A) is void and
       unconstitutional. Defendant’s argument amounts to a challenge to the sufficiency of the
       evidence supporting his UUW by a felon conviction.
¶ 37       Both counts under which defendant was convicted for UUW by a felon charged that
       defendant knowingly possessed a firearm after having previously been convicted of the Class 4
       form of AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2002)) in case number 02 CR
       30903. As previously stated, at trial, the parties stipulated to defendant’s prior AUUW
       conviction. While we previously vacated one of his convictions for UUW by a felon under the
       one-act, one-crime rule, defendant remains convicted of one count of UUW by a felon.
¶ 38       In Aguilar, 2013 IL 112116, ¶ 22, our supreme court found the Class 4 version of the
       AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)) to be unconstitutional in
       violation of the second amendment right to bear arms. When a statute is declared
       unconstitutional, it is void ab initio, or as though the law had never been passed. See People v.
       Tellez-Valencia, 188 Ill. 2d 523, 526 (1999). Defendant maintains that because his prior
       conviction for AUUW under case No. 02 CR 30903 is void under Aguilar, the State could not
       rely on this now-void conviction to serve as a predicate offense for UUW by a felon.
       Therefore, it failed to prove an essential element of the offense. In support of his argument,
       defendant has cited the recent case of People v. Dunmore, 2013 IL App (1st) 121170.
¶ 39       In Dunmore, the defendant pled guilty and was convicted of one count of AUUW and was
       sentenced to 18 months’ probation. After a subsequent finding that the defendant violated the
       terms of his probation, the probation was revoked and the defendant was sentenced to two
       years’ imprisonment. The defendant appealed the revocation of probation and while his appeal
       was pending, the Illinois Supreme Court decided Aguilar, 2013 IL 112116. Dunmore, 2013 IL
       App (1st) 121170, ¶ 1. The defendant maintained that based on Aguilar, his conviction and
       subsequent probation revocation should be vacated. The State agreed, but requested that the
       case be remanded so that it could reinstate the charges that had been nol-prossed as part of the
       defendant’s guilty plea. The defendant then asked this court to leave the void conviction for
       AUUW and sentence of probation in place, and limit our consideration solely to the subsequent
       revocation of probation. Dunmore, 2013 IL App (1st) 121170, ¶ 7.
¶ 40       In accordance with Aguilar, the Dunmore court vacated the defendant’s conviction for
       AUUW because it was void, noting that it had a duty to vacate the void conviction and not just
       the subsequent revocation of probation. Id. ¶ 9. The court also declined the State’s request to
       remand the cause to the trial court subsequent to vacating the AUUW to allow the State to
       reinstate nol-prossed charges. The court noted that it would not render an advisory opinion on
                                                       -8-
       whether any reinstated charges would pass constitutional muster. Dunmore, 2013 IL App (1st)
       121170, ¶ 12.
¶ 41       Although the procedural posture of Dunmore differs from this case, we nevertheless find
       Dunmore to be instructive. Unlike the defendant’s AUUW conviction in Dunmore,
       defendant’s conviction for AUUW in No. 02 CR 30903 is not at issue here, nor do we make
       any findings as to whether Aguilar would be applicable to that conviction on a collateral attack.
       However, because defendant’s case is pending on direct appeal in this court, similar to the
       court in Dunmore we cannot ignore Aguilar’s effects on his conviction for UUW by a felon.
       Dunmore, 2013 IL App (1st) 121170, ¶ 10; see also People v. Gersch, 135 Ill. 2d 384, 397
       (1990) (judicial decisions that declare a statute unconstitutional apply to cases pending on
       direct review).
¶ 42       The specific offense of UUW by a felon with which defendant was charged in this case,
       makes it “unlawful for a person to knowingly possess on or about his person *** any firearm
       *** if the person has been convicted of a felony under the laws of this State or any other
       jurisdiction” (720 ILCS 5/24-1.1(a) (West 2008)). Count VI of the indictment alleged that
       defendant committed the offense of UUW by a felon when defendant knowingly possessed a
       firearm after having previously been convicted of AUUW (720 ILCS 5/24-1.6(a)(1) (West
       2002)) in case number 02 CR 30903, the same Class 4 form of AUUW that defendant Aguilar
       was convicted of and which our supreme court found to be facially unconstitutional. Aguilar,
       2013 IL 112116, ¶ 22. The parties stipulated to this prior conviction during trial. Although the
       record shows that defendant has a felony conviction for a drug offense in case No. 04 CR
       2816001, in which he pled guilty and received six years’ imprisonment, no other felony
       convictions other than the 2002 AUUW were offered to establish the “has been convicted of a
       felony” element of the offense of UUW by a felon either in the indictment or at trial. Illinois
       law has long held that, in prosecutions for the offense of UUW by a felon, the prior felony
       conviction is an element of the offense which must be proven beyond a reasonable doubt by the
       State in its case in chief. See People v. Walker, 211 Ill. 2d 317 (2004) (recognizing that the
       prior felony conviction is an element of the offense of our UUW by felon statute and adopting
       the reasoning of Old Chief v. United States, 519 U.S. 172 (1997)).
¶ 43       Similar to Dunmore, we cannot allow defendant’s Class 4 AUUW conviction, which we
       now know is based on a statute that was found to be unconstitutional and void ab initio in
       Aguilar, to stand as a predicate offense for defendant’s UUW by a felon conviction. The State
       alleged and was required to prove the predicate felony Class 4 AUUW beyond a reasonable
       doubt as an element of the offense of UUW by a felon. Because this issue was raised while
       defendant’s appeal was pending, we are bound to apply Aguilar and vacate defendant’s
       remaining UUW by a felon conviction because the State did not prove an essential element of
       the offense where it alleged in the charging instrument and proved at trial a predicate offense
       that has been declared unconstitutional and void ab initio. A void conviction for the Class 4
       form of AUUW found to be unconstitutional in Aguilar cannot now, nor can it ever, serve as a
       predicate offense for any charge.
¶ 44       We want to make it clear that we are not vacating defendant’s AUUW conviction in No. 02
       CR 30903 pursuant to Aguilar. We decline to address whether formal proceedings for
                                                   -9-
       collateral relief may be available to defendant to vacate his conviction in that case. We also
       decline to issue an advisory opinion as to Aguilar’s retroactivity to cases on collateral review
       and as to whether the State could reinstate the charges it had dismissed in No. 02 CR 30903 in
       the event defendant is successful in vacating that conviction. See Dunmore, 2013 IL App (1st)
       121170, ¶ 12.

¶ 45                                       IV. Excessive Sentence
¶ 46       Defendant next argues that his 2 concurrent 29-year sentences for armed robbery, which
       include the 15-sentence enhancement, are excessive. In addition, in his supplemental brief
       filed following the State’s petition for rehearing, defendant argues that this court should take
       into consideration that without his prior AUUW conviction, which is now void under Aguilar,
       he only has one prior felony conviction in his background.
¶ 47       A trial court has broad discretionary powers in choosing the appropriate sentence a
       defendant should receive. People v. Jones, 168 Ill. 2d 367, 373 (1995). A reasoned judgment
       regarding the proper sentence to be imposed must be based upon the particular circumstances
       of each individual case and depends upon many factors, including the defendant’s credibility,
       demeanor, general moral character, mentality, social environment, habits and age. People v.
       Perruquet, 68 Ill. 2d 149, 154 (1977). “In determining an appropriate sentence, the defendant’s
       history, character, rehabilitative potential, the seriousness of the offense, the need to protect
       society and the need for deterrence and punishment must be equally weighed.” People v.
       Jones, 295 Ill. App. 3d 444, 455 (1998). There is a strong presumption that the trial court based
       its sentencing determination on proper legal reasoning, and the court is presumed to have
       considered any evidence in mitigation that is before it. People v. Partin, 156 Ill. App. 3d 365,
       373 (1987). The imposition of a sentence is a matter within the trial court’s discretion, and a
       reviewing court has the power to disturb the sentence only if the trial court abused its
       discretion. Jones, 168 Ill. 2d at 373-74.
¶ 48       We find no abuse of discretion in this case where the trial court sentenced defendant to
       concurrent terms of 29 years’ imprisonment for armed robbery. At sentencing, the court heard
       in aggravation that defendant terrorized his victims. Defendant was an enforcer for the
       Conservative Vice Lords gang and was responsible for securing gang territory. Defendant’s
       criminal history included a juvenile disposition for aggravated battery. Defendant had also
       been convicted of aggravated battery, battery, resisting arrest, aggravated assault, criminal
       trespass to a vehicle, assault, driving under the influence and delivery of a controlled substance
       within 1,000 feet of a school/park. In mitigation, the court was informed of defendant’s
       troubled childhood and his struggles with alcohol and drug additions. Defendant was abused
       by his father and grandfather. He was hospitalized as a child due to emotional and behavioral
       issues. Defendant received a GED and at one time was enrolled in a culinary management
       program. In imposing sentence, the court indicated that it had considered the evidence that was
       presented at trial, the presentence investigation report, defendant’s background and history, the
       evidence offered in aggravation and mitigation (see 730 ILCS 5/5-5-3.1, 5-5-3.2 (West 2008)),
       the arguments, the sentencing alternatives suggested by the parties, and the statements of

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       defendant and his mother. The court also noted that defendant apologized and took
       responsibility for his actions.
¶ 49        The supreme court has clearly stated that a factor inherent in an offense should not also be
       used as an aggravating factor at sentencing. People v. Conover, 84 Ill. 2d 400, 404 (1981).
       Therefore, contrary to defendant’s argument, the trial court could not have considered his 2002
       conviction for AUUW as a factor in aggravation, where it was used to establish an element of
       the offense of UUW by a felon.
¶ 50        A proper penalty must be based upon the particular circumstances of each case, including
       the nature and extent of each element of the offense committed by the defendant. People v.
       Saldivar, 113 Ill. 2d 256, 268-69 (1986). Notwithstanding that we vacated defendant’s two
       UUW by a felon convictions, the nature and circumstances giving rise to defendant’s
       prosecution and armed robbery with a gun convictions we find that, based on the record, the
       trial court clearly considered all of the necessary factors in crafting a sentence specific to the
       offense of armed robbery.
               “When a defendant receives multiple convictions, a new sentencing hearing is not
               warranted when a conviction is vacated where there is nothing in the record to indicate
               that the vacated conviction had any effect on the other sentences. *** A reviewing
               court cannot conclude, solely from a trial court’s imposition of separate sentences for
               multiple convictions, that the sentence imposed for one offense has been influenced by
               the conviction or sentence for another offense.” People v. Shelton, 252 Ill. App. 3d 193,
               209 (1993) (citing People v. Payne, 98 Ill. 2d 45, 55 (1983)).
¶ 51        Furthermore, armed robbery is a Class X offense punishable by not less than 6 years and
       not more than 30 years’ imprisonment. 730 ILCS 5/5-8-1 (West 2008). The court imposed a
       14-year sentence on all the armed robbery counts, to which the 15-year enhancement was
       added, because the court found that defendant used a firearm during the commission of the
       offenses. 720 ILCS 5/18-2(b) (West 2008). A sentence which falls within the statutory range is
       presumptively proper and does not constitute an abuse of discretion unless it is manifestly
       disproportionate to the nature of the offense. Hauschild, 226 Ill. 2d at 90. The sentences in this
       case are not manifestly disproportionate to the nature of the offenses and are presumed proper
       as they fall within the statutory range. Consequently we cannot say the trial court abused its
       discretion in imposing the 29-year sentences.

¶ 52                                        CONCLUSION
¶ 53       For the foregoing reasons, we affirm defendant’s convictions and sentences for armed
       robbery, vacate both convictions for UUW by a felon, and correct the mittimus to remove the
       erroneous conviction for AUUW.

¶ 54      Affirmed in part and vacated in part; mittimus corrected.




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