2022 IL App (2d) 200219-U No. 2-20-0219 Order filed June 27, 2022 NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l).

______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS
SECOND DISTRICT

______________________________________________________________________________ T HE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff

- Appellee, ) ) v. ) No. 12- CF -2466 ) THOMAS HOLLOWAY , ) Honorable ) Liam C. Brennan , Defendant -Appellant. ) Judge, Presiding.

______________________________________________________________________________ JUSTICE SCHOSTOK delivered the judgment of the court. Justice s McLaren and Birkett concurred in the judgment. ORDER ¶ 1 Held : The trial court erred in summarily dismissing defendant’s postconviction petition where it was arguable that (1) defense counsel unreasonably failed to inform the trial court at sentencing that defendant’s prior conviction of aggravated unlawful use of a weapon was void, and (2) the error prejudiced defendant in that the court placed weight on the void conviction as an aggravating factor in sentencing defendant. ¶ 2 Defendant, Thomas Holloway , appeals from the first

- stage dismissal of his amended petition under the Post

- Conviction Hearing Act (Act) (725 ILCS 5/122 -1 et seq . (2018))

. He argues that his amended petition stated the gist of a claim . Specifically, his defense counsel was ineffective for failing to object to the trial court’s use of a void 2003 conviction o f aggravated2022 IL App (2d) 200219-U

- 2 - unlawful use of a weapon (AUUW) (720 ILCS 5/24 -1.6 (West 2002 )) as aggravating evidence at defendant’s sentencing hearing. The State argues that (1) defendant forfeited the contention by failing to raise it on direct appeal or in postconviction proceedings below , and (2) alternatively, defendant cannot show that the court gave any weight to the 2003 AUUW conviction and thus prejudiced defendant

. Under our authority as recognized in In re N.G. , 2018 IL 121939, ¶ 32, we obtained the relevant trial court records and ascertained that defendant was convicted of AUUW under section 24

- 1.6(a)(1), (a)(3)(A) of the Criminal Code of 1961 (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2002 ))

. Our supreme court declared this section facially unconstitutional

— and void ab initio

— in People v. Aguilar , 2013 IL 112116, ¶ 22, and People v. Burns , 2015 IL 117387 , ¶ 32. Thus, defendant’s 2003 AUUW conviction is void. B ecause a voidness challenge may be brought at any time ( N.G. , 2018 IL 121939, ¶¶ 43, 57), defendant’s challenge is not subject to forfeiture

. Arguably, there is a reasonabl e probab ility that the court gave some weight to defendant’s void 2003 AUUW conviction when it imposed sentence

. Therefore , we hold that defendant ’s petition stated the gist of a constitutional claim, and we reverse the petition’s dismissal and remand the cause for proceedings under the second stage of the Act. ¶ 3 I. BACKGROUND ¶ 4 O ur supreme court decided Aguilar in late 2013. Aguilar held that the Class 4 form of AUUW as described in s ection 24

- 1.6(a)(1), (a)(3)(A), (d) of the Code (720 ILCS 5/24 -1.6(a)(1), (a)(3)(A), (d) (West 2008)) violates the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitutio n (U.S. Const., amend. II). Aguilar , 2013 IL 112116, ¶ 22. Under subsection (d) of section 24-1.6 , the Class 4 form was the “basic” form of the offense
in subsection (a)(1), (a)(3)(A ) , and the felony class increased based on the presence of additional fa ctors

. See 720 ILCS 5/24

- 1.6(a)(1), (a)(3)(A), (d) (West 2008). Aguilar expressly limited its2022 IL App (2d) 200219-U

- 3 - holding to the Class 4 form of AUUW

. Aguilar , 2013 IL 112116, ¶¶ 20- 22. In December 2015, the Burns court realized that Aguilar “improperly placed limiting language on [its] holding.”
Burns , 2015 IL 117387, ¶ 25. Burns clarified that “section 24

- 1.6(a)(1), (a)(3)(A) of the statute is facially unconstitutional, without limitation ,” thus making section 24

- 1.6(a)(1), (a)(3)(A)

unco nstitutional for all forms of the offense

. Burns , 2015 IL 117387, ¶ 25

. ¶ 5 On May 13, 2014, a grand jury indicted defendant on a single count of unlawful delivery of a controlled substance (1 gram or more but less than 15 grams of a substance containing heroin) ,

a Class 1 felony (720 ILCS 570/401(c)(l) (West 2012)). The delivery allegedly took place on October 11, 2012. ¶ 6 At defendant’s arraignment, the trial court advised him that he was subject to Class X sentencing based on his criminal histo ry. ¶ 7 Defendant executed a jury waiver but did not appear for his bench trial. He was tried and found guilty in absentia . Defendant’s presentencing investigation report (PSI) showed multiple juvenile adjudications for unlawful possession of a controlled substance. As an adult, he had the following felony record ( listed by date of conviction , felony class, and original sentence): (1) a narcotics offense (2002, Class 1, probation), (2) AU UW (2003, Class 4, four y ears’ imprisonment ) in Cook County case No. 02-CR-3079701 , (3) aggravated discharge of a firearm (2005, Class 2 , 15 years’ imprisonment), and (4) unlawful possession of a controlled substance (2014, Class 4 , three years’ imprisonment). ¶ 8 The court sentenced d efendant in absent ia on March 11, 2016

— about three months after the supreme court de cided Burns . Neither party suggested any corrections to the PSI. The court again noted that, although defendant’s current offense was a Class 1 felony, his prior history of at least two Class 2 or greater felonies subjected him to mandatory Class X sentencing under section2022 IL App (2d) 200219-U

- 4 - 5-4.5- 95(b) of the Unified Code of Corrections (Code) (730 ILCS 5/5-4.5- 95(b) (West 2012)). Emphasizing defendant’s criminal record, the court sentenced him to 20 years’ imprisonment :

“ [H is ] criminal history is extremely problematic ***. As an adult he has essentially been in the system either incarcerated on probation, taking or dealing drugs or doing other very serious things his entire adult li f e. We s tart with the possession in 2001

. 1
A nd then in 2002 while he’s on probation , he commits [AUUW] , 2 gets sentenced to four years in the Illinois Department of Correc tions [( DOC ) ], i s paroled in August of [2003].
A nd while he’s on parole he’s convicted of aggravated discharge of a firearm , which is attached , obviously , to attempt first

- degree murder , but that was nolle pros ’d [ sic ], and [he was] sentenced to 15 years in the [DOC ] , and it looks like it was an 85 percent
sentence. ***
*** [A]nd while he’s on mandatory supervised release he not only commits a delivery in Cook County, and he’s arrested for that in November of 2012 , 3 he also commits the delivery for which he’s been convicted of in this case and he has

— scared or not —and he ’s certainly entitled to plead not guilty

. and he’s certainly entitled to a trial , and there’s no imposition of [a] trial tax , obviously , h owever, not appearing in c ourt suggests to the

1 The PSI shows a conviction date of January 2002 for the narcotics offense.
2 The PSI shows a conviction date of January 2003 for AUUW.
3 The PSI shows a conviction date of April 2014 for unlawful possession /delivery of a controlled substance.2022 IL App (2d) 200219-U

- 5 - Court that , as does his history , that he’s not somebody that’s likely to be rehabilitated at this point. So considering the factors in aggravation and mitigation, statutory and nonstatutory, and the arguments of counsel, I do believe a 20

- year sentence in the [DOC] is appropriate , and that will be the sentence the Court imposes. ” ¶ 9 Defendant did not file a motion to reconsider his sentence. Instead, h e filed a motion for leave to file a late notice of appeal, which we granted. He raised three issues, none of which related to the use of his 2003 A UUW conviction at his sentencing hearing. We affirmed. People v. Holloway , 2018 IL App (2d) 160337

- U. ¶ 10 On July 1, 2019, defendant filed a petition for relief under the Act

. None of the claims in the original petition are relevant to this appeal. ¶ 11 On August 1, 2019, before any decision on the original petition, defendant amended the petition with an additional claim. He contended that the trial court used his 2003 AUUW conviction to “enhance” his sentence and that th is was improper because the “A.U.U.W. statute was deemed unconstitutional” in Burns . He concluded: “If the trial c ourt consider [ed] the unconstitutional A.U.U.W. statute that was used to enhance this petitioner[’s] sentence. This petitioner was prejudiced by the number of years he was given and a new sentencing hearing should take place. My 20 year sentencing is pre dicated on an unconstitutional prior conviction, hence, deeming my sentence VOID .” (Emphasis in original.) ¶ 12 On October 29, 2019, t he trial court dismissed the amended petition as frivolous and patently without merit. It ruled that

— the 2003 AU UW conviction aside

— defendant still had at2022 IL App (2d) 200219-U

- 6 - least two Class 2 or greater felony convictions and so was subject to Class X sentencing under section 5 -4.5- 95(b) of the Code : “[ D efendant] claims the trial court erroneously sentenced him as a Class X felon based

u pon an improper enhancement: to wit, that this Court considered a Class 2 [A UUW ] that was a voidable pursuant to [ Burns ], as the basis for enhancing his offense from a Class 1 to a Class X felony. A review of Defendant’s criminal history as set forth in t he [PSI] , however, demonstrates that even if this court were to completely disregard defendant’s [2003 AUUW conviction], defendant would otherwise be subject to Class X Sentencing pursuant to 730 ILCS 5/5 -4.5- 95(b) due to prior convictions for a Class 1 Na rcotics Offense out of Cook County in 2002 ***, a Class 1 Attempt Armed Robbery out of Cook County in 2005 4 ***, and a Class 2 Delivery of a Controlled Substance out of Cook County in
2012 5 ***. Moreover, even if Defendant is correct that his [ AUUW ] con viction might properly be vacated pursuant to [ Burns ], until said conviction is vacated by an appropriate court with reviewing authority, it may properly serve as the basis for an enhancement pursuant to 730 ILCS 5/5 -4.5- 95. Cf. , People v. McFadden 2016 IL 117424 & [ sic ] People
v. McGee 2017 IL App (1st) 140013

- B.” ¶ 13 Defendant moved for reconsideration. He claimed that defense counsel was

4 Evidently, the court was referring to the 2005 conviction of aggravated discharge of a firearm.

5 The PSI shows a conviction date of 201 4 for unlawful possession/delivery of a controlled substance.2022 IL App (2d) 200219-U

- 7 - “ineffective when he allowed [defendant] to be senten[ced] under Class X Sentencing. When in fact [he] w as not eligible for Class X Sentencing pursuant to [ Burns ] making [defendant’s 2003 AUUW conviction] voidable.” Regarding the trial court’s finding that defendant would have been subject to Class X sentencing regardless of the 2003 AUUW conviction , defenda nt noted that (1) the 2001 case giving rise to the 2002 narcotics conviction was dismissed and (2) the 2014 conviction of unlawful possession of a controlled substance was a Class 4 felony, not a Class 2 felony as the court stated

. He attached
DOC records to support his claim

. ¶ 14 On February 28, 2020, t he trial court denied the motion. The court did not agree that defendant’s 2001 case (leading to his 2002 narcotics conviction) was dismissed. However, the court did agree that defendant’s 2014 conviction of unlawful possession of a controlled substance

w as a Class 4 felony

. Nonetheless, t he court found that defendant remained subject to Class X sentencing under section 5 -4.5- 95(b) of the Code due to his 2002 Class 1 narcotics conviction and his 2005 Class 1 conviction of aggravated discharge of a weapon. ¶ 15 D efendant filed a notice of appeal on March 16, 2020, and an amended notic e of appeal on June 1, 2020. ¶ 16 II. ANALYSIS ¶ 17 On appeal, defendant argues that he stated the gist of a constitutional claim that defense counsel was ineffective for failing to object at sentencing to the use of his void 2003 AUUW conviction as aggravating evidence. ¶ 18 Defendant anticipates two forfeiture arguments. First, he contends that he could not have raised his ineffectiveness argument on direct appeal, as the record at that time did not show the statutory subsection under which he was convicted of AUUW. He relies on cases holding that a2022 IL App (2d) 200219-U

- 8 - PSI that does not show the subsection under which a defendant was convicted of AUUW is insufficient to show that the c onviction is void. See People v. Sherm an , 2020 IL App (1st) 172162, ¶¶ 18, 55. “Conversely,” he claims, his

“ pro se [amended] petition clarified that the [AUUW] conviction was based on the subsection that was found unconstitutional in Burns, ” that is, section 24

- 1.6(a)(1), (a)(3)(A) of the Co de . He asks us to apply the maxim that “[a]llegations in a first

- stage petition must be accepted as true unless positively rebutted by the record.” ¶ 19 Second, defendant anticipates a forfeiture argument that his claim on appeal is not the same as the claim h e brought in his amended petition. He asserts that, “[w]hile not entirely clear, [ the] assertions [in the amended petition] at least suggest that [he] was claiming that counsel was ineffective for not objecting to the introduction of the prior AUUW conviction as aggravating evidence at the sentencing hearing.” Alternatively, he argues that, even if we read his amended petition to refer only to his eligibility for mandatory Class X sentencing, his claim on appeal is not forfeited , because “it bears some re lationship to the assertions in the pro se petition.” ¶ 20 On the merits of his argument , defendant contends that defense counsel’s failure to inform the trial court at sentencing that the AUUW conviction was void prejudiced him because the court focused on his criminal record in impos ing a sentence 14 years above the Class X minimum sentence of six years. See 730 ILCS 5/5 -4.5- 25(a) (West 2012) ( the sentencing range for a Class X felony is 6 to 30 years’ imprisonment). He notes that the court specifically mentioned the 2003 AUUW conviction in reviewing what the court saw as defendant’s “extremely problematic” criminal history. He recognizes that he had three other felony convictions . Still, he asserts that th e 2002 narcotics conviction and the 2005 aggravated discharge conviction “ were already taken2022 IL App (2d) 200219-U

- 9 - into account” as the bases for Class X sentencing

. 6 Defendant suggests that, given the severity of his s entence , arguably there is a reasonable probability that the court considered both of his two other felony convictions

— the 2003 AUUW conviction and the 2014 Class 4 unlawful possession conviction—i n determining his sentence. ¶ 21 The State responds that defendant’s ineffectiveness argument is forfeited because (1) it was “a matter of record and could have been raised in a direct appeal,” and (2) he did not include the argument in his amended petition but raised the issue only in his motion to reconsider the petition’s dismissal . On the merits of defendant’s argument, the State disputes defendant’s assertion of prejudice, arguing that the 2003 AUUW conviction did not result in a long er sentence. The State

6 Defendant might be suggesting that to use the same conviction s for both elevation to Class X sentencing and as aggravating factor s in fashioning a Class X sentence would be a n impermissible “ double enhancement .” I f that is defendant’s insinuation, he is mistaken

. Once a sentencing court determines that a defendant’s criminal history mandates Class X sentencing, the court may consider in aggravation the same offenses that supported mandat ory enhanced sentencing. B y “ ‘[r]econsider[ing]’ ” those prior convictions “as part of [the] defendant’s entire criminal history,” the sentencing court is “performing its constitutionally mandated duty to assess [the] defendant’s rehabilitative potential in order to fashion an app ropriate sentence.” People v. Thomas , 171 Ill. 2d 207, 229 (1996). “This exercise of judicial discretion [is] entirely proper and does not constitute an enhancement.” Thomas , 171 Ill. 2d at 229. Thus, “a sentencing court’s use of prior convictions to i mpose a Class X sentence *** does not preclude the court from considering those same prior convictions as an aggravating factor.” Thomas , 171 Ill. 2d at 229 (citing 730 ILCS 5/5 -5- 3(c)(8) (West 1992) (now codified at 730 ILCS 5/5 -4.5-95(b)).2022 IL App (2d) 200219-U

- 10 - points to the trial court’s remark that, “even if [the] court were to completely disregard defendant’s [AUUW] histo ry, defendant would otherwise be subject to Class X Sentencing pursuant to 730 ILCS 5/5 -4.5- 95(b) due to prior convictions.” ¶ 22 The Act provides a three

- stage process for the adjudication of a postconviction petition. People v. Buffer , 2019 IL 122327, ¶ 45. At the first stage, the trial court determines whether the petition is “frivolous or is patently without merit.” 725 ILCS 5/122

- 2.1(a)(2) (West 2018). Because most petitions at the first stage are drafted pro se by defendants with little legal knowledge or training, the threshold for survival is low. People v. Hodges , 234 Ill. 2d 1, 9 (2009). “ [A] pro se petition seeking postconviction relief under the Act for a denial of constitutional rights may be summarily dismissed as frivolous or patently without merit only if the petition has no arguable basis either in law or in fact. ” Hodges , 234 Ill. 2d at 11-12. ¶ 23 The familiar two -pronged Strickland test generally governs a constitutional ineffective

assistance claim. Strickland v. Washington , 466 U.S. 668, 687 (1984). “Under Strickland , a defendant must establish that his counsel’s performance fell below an ob jective standard of reasonableness and that he was prejudiced by counsel’s deficient performance.” People v. Brown , 2017 IL 121681, ¶ 25. Counsel’s performance is measured by “an objective standard of competence under prevailing professional norms.” Peo ple v. Evans , 186 Ill. 2d 83, 93 (1999). “The court must *** determine whether, in light of all the circumstances, [counsel’s] identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant2022 IL App (2d) 200219-U

- 11 - decisions in the exercise of reasonable professional judgment.” Strickland , 466 U.S. at 690. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland , 466 U.S. at 691. Defendant can show that he was prejudiced by counsel’s failure to prevent the court from improperly considering a conviction if he can establish a reasonable probability that the court would have imposed a lesser sentence had counsel alerted the court to the void conviction. People v. Billups , 2016 IL App (1st) 134006, ¶ 16. ¶ 24 “At the first stage of postconviction proceedings under the Act, a petition alleging ineffective assistance may not be summarily dismissed if (i) it is arguable that counsel’s performance fell below an objective standard of reasonableness and (ii) it is arguable that the defendant was prejudiced.” Hodges , 234 Ill. 2d at 17. “This ‘arguable’ Strickland test demonstrates that first

- stage postconviction petitions alleging ineffective assistance of counsel are judged by a lower pleading standard than are such petitions at the second stage of the proceeding.” People v. Tate , 2012 IL 112214, ¶ 20. We review de novo the summary dismissal of a postconviction petition. People v. Hatter , 2021 IL 125981, ¶ 24. ¶ 25 Defendant contends that, “[w]hile not entirely clear, [ the] assertions [in the amended petition] at least suggest that [he] was claiming that counsel was ineffective for not objecting to the introduction of the prior AUUW conviction as aggravating evidence at the sentencing hearing.” He also argues that he adequately alleged that he was convicted of AUUW under the subsectio n held void in Aguilar and Burns

. ¶ 26 Under N.G. , a court cannot impose collateral consequences for a void conviction. N.G. , 2018 IL 121939, ¶¶ 30-42 . Moreover, a defendant may challenge a void AUUW conviction in any2022 IL App (2d) 200219-U

- 12 - court that otherwise has jurisdiction, including in a collateral proceeding

. N.G. , 2018 IL 121939, ¶ 56 . An appellate court may sua sponte take notice of trial court records to ascertai n whether a conviction is void. N.G. , 2018 IL 121939, ¶ 32. ¶ 27 Under N.G. , defendant could raise a voidness challenge at any time. Therefore, we reject the State’s argument that defendant forfeited his ineffectiveness claim. Also, under our au th ority as af firmed in N.G. , w e have taken notice of the trial court record in Cook County case No. 02-
CR

- 3079701 and determined that defendant’s conviction was under section 24

- 1.6(a)(1), (a)(3)(A) of the Code and thus is void . Indeed, we learn ed that, on March 25, 2021, the Cook County circuit

court vacated defendant’s AUUW conviction in case No. 02- CR -3079701 and later granted defendant a certificate of innocence pursuant to section 2

- 702 of the Code of Civil Procedure (735 ILCS 5/2

- 702 (West 2020)). No appeal from that proceeding is pending. To obtain a certificate of innocence, a defendant must prove, among other things, that he or she “ is innocent of the offenses charged in the indictment or information or his or her acts or omissions charged in the indictment or information did not constitute a felony or misdemeanor against the State .” 735 ILCS 5/2-702(g)(3) (West 2020)

. ¶ 28 Although defendant’s 2003 AUUW conviction has been vacated, there remains his claim that defense counsel unreasonably allowed de fe ndant to suffer collateral consequences from that void conviction

. See N.G. , 2018 IL 121939, ¶ 33 ( vacating finding of depravity based on void conviction). ¶ 29 We agree with defendant that defense counsel arguably was unreasonable in fail ing to determine that defendant’s 2003 AUUW conviction was void and advise the trial court of that fact at sentencing

. As d efendant’s criminal record was certain to be a core issue at his sentencing , counsel should have been alert to the details of defendant’s record. Further, our supreme court2022 IL App (2d) 200219-U

- 13 - had decided Burns three months before defendant’s sentencing, so counsel should have been aware that an AUUW conviction might be void

. Thus, c ounsel had every reason to determine if defendant’s AUUW convicti on was valid and no reason not to. ¶ 30 Further, defendant arguably was prejudiced by the trial court’s consideration of the 2003 AUUW conviction. Although the State contends that the court did not place “ significant weight ” on the AUUW conviction in fashionin g the sentence , the record suggests otherwise. “[A ] sentence based on improper factors may be affirmed where the reviewing court can determine from the record that the weight placed on such an improperly considered aggravating factor was so insignificant it resulted in no increase in the defendant ’ s sentence.” People v. Whitney , 297 Ill. App. 3d 965, 971 (1998)

. W here the trial court takes specific note of a conviction, we cannot presume that the court gave no weight to the conviction. Whi tney , 297 Ill. App. 3d at 971. ¶ 31 Here, w hen the trial court imposed sentence, it noted defendant’s “extremely problematic” criminal history and specifically mention ed his 2003 AUUW conviction. N onetheless, the State argues that, “[i]n dismissing the claim that the AUUW [conviction] should not have been considered in sentencing, the judge specifically said that he would sentence Defendant to the same sentence even if [the judge] did not consider the AUUW conviction.” ¶ 32 We disagree. The trial court said that defendant would have been eligible for Class X sentencing regardless of the AUUW conviction

. First, i n dismissing the amended petition, the court stated: “A review of Defendant’s criminal history *** demonstrates that even if this court were to completely disregard defendant’s [AUUW] history, defendant would otherwise be subject to Class X Sentencing pursuant to 730 ILCS 5/5 -4.5- 95(b) due to prior convictio ns2022 IL App (2d) 200219-U

- 14 - for a Class 1 Narcotics Offense ***, a Class 1 Attempt Armed Robbery 7 ***, and a Class 2 Delivery of a Controlled Substance ***.” (Emphasis added.) Later, in denying defendant’s motion to reconsider, the court stated: “Defendant remains subject to Class X Sentencing pursuant to 730 ILCS 5/5 -4.5- 95(b) due to prior convictions for a Class 1 Narcotics Offense *** and a Class 1 Aggravated Discharge of a Weapon ***.” (Emphasis added.)
T he court never (1) denied that it used the AUUW conviction as an aggravating factor in fashioning defendant’s sentence within the Class X sentencing range or (2) clarified that it would have imposed the same sentence regardless of the AUUW conviction. We conclude that there is arguably a reasonable probability that the co urt would not have imposed a sentence 14 years higher than the Class X minimum absent the AUUW conviction. See 730 ILCS 5/5 -4.5- 25(a) (West 2012) (the minimum Class X sentence is six years’ imprisonment). ¶ 33 III. CONCLUSION ¶ 34 For the reasons stated, we revers e the summary dismissal of defendant’s petition under the
Act and remand the cause to the circuit court of Du Page County for proceedings under the second stage of the Act ¶ 35 Reversed and remanded

.

7 Evidently, the trial court was referring to the 2005 conviction of aggravated discharge of a firearm.