Nos. 1-13-4006 & 1-13-4007 (Cons.) May 24, 2016

SECOND DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) Of Cook County. Plaintiff-Appellee, ) ) No. 10 CR 6426 v. ) 10 CR 6427 ) JERMAINE BILLUPS, ) The Honorable ) Neera Lall Walsh, Defendant-Appellant. ) Judge Presiding.

JUSTICE NEVILLE delivered the judgment of the court, with opinion. Presiding Justice Pierce and Justice Hyman concurred in the judgment and opinion.

OPINION

¶1 The trial court, in a bench trial, found Jermaine Billups guilty of delivering more than one

gram of heroin, and sentenced him to six years in prison. Billups contends on appeal that his

attorney provided ineffective assistance of counsel by failing to object to the court's

consideration in sentencing of two prior convictions for violations of statutes later held

unconstitutional. We agree that counsel's performance fell below an objective standard of

reasonableness and that Billups showed a reasonable probability that the court would have Nos. 1-13-4006 & 1-13-4007 (Cons.)

imposed a lesser sentence if his counsel had not erred. Accordingly, we vacate the sentence

and remand for resentencing.

¶2 BACKGROUND

¶3 Police arrested Billups outside his home on March 18, 2010. A grand jury indicted

Billups on charges that he delivered more than one gram of heroin to an undercover officer

on September 2, 2009, and that he delivered more than one gram of heroin to the same

officer again on September 10, 2009. The circuit court consolidated the charges for trial.

¶4 At the bench trial, Officer Orlando Rodriguez of the Chicago police department testified

that on September 2, 2009, he called a specified phone number and arranged to purchase

heroin. He saw Billups drive up to the arranged meeting place in a black Mercedes. Billups

gave Rodriguez 12 tinfoil packets in exchange for $100. Rodriguez called the same number

on September 10, 2009, and again arranged a meeting. Billups arrived at the arranged

meeting place in a maroon Buick, and again gave Rodriguez 12 tinfoil packets in exchange

for $100.

¶5 Rodriguez inventoried the tinfoil packets. The parties stipulated that chemists would

testify that the substance in the inventoried packets tested positive for heroin and each set of

12 packets held more than one gram of heroin.

¶6 Rojai Person, a defense witness, testified that he stood outside Billups's home on March

18, 2010, waiting for Billups, when police drove up. The officers searched Person and asked

to see his identification card. An officer apologized for the intrusion. When Billups came

out of his home, the officers searched and arrested Billups. Person added that he looks

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nothing like Billups. However, Person admitted that in 2010 Billups usually drove a black

Mercedes. Other evidence showed that Billups also had access to a maroon Buick.

¶7 The trial judge found Rodriguez credible, including his identification of Billups in court

as the person who sold him heroin. The court found Billups guilty on two charges of the

Class 1 felony of delivering heroin. The court denied Billups's motion for a new trial.

¶8 The presentence investigation report indicated that a court had found Billups guilty on 2

counts of possession of a controlled substance in 1995, both Class 4 felonies, for which the

court imposed concurrent terms of one year in prison. Billups had a conviction for

misdemeanor aggravated assault, also from 1995, for which he served a year of probation. In

2009, Billups had another Class 4 felony conviction for drug possession, for which he served

a sentence of 24 months probation. Two minor misdemeanors appeared on the list of prior

crimes, one for public drunkenness in 2008, and another for driving on a suspended license in

2002. Billups admits that the trial court properly consider the foregoing convictions in

aggravation when it sentenced him on November 15, 2013. This appeal concerns only the

other convictions listed in the presentence investigation report: a January 1995 conviction for

misdemeanor possession of a firearm, a second for felony possession of a firearm in

September 1995, and a third for unlawful possession of a firearm by a felon in 1998. The

State presented no evidence as to whether the prior charge for felony possession of a firearm

from 1995 counted as the predicate felony for the charge of unlawful use of a firearm by a

felon.

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¶9 Defense counsel did not object to the presentence investigation report or ask for any

amendment to the listed prior offenses. The trial judge recognized that she could sentence

Billups to a period of probation or 4 to 15 years in prison. See 730 ILCS 5/5-5-3(b)(1), 5-8-

1(a)(4) (West 2008). The judge said, "It has been a long time since you have been in the

penitentiary, but you have been in the penitentiary for narcotics cases and gun cases." The

court sentenced Billups to two concurrent terms of six years in prison on November 15,

2013. Billups's attorney immediately presented a motion for reconsideration of the sentence,

arguing that the sentence "is excessive and inappropriate in light of the remoteness of his last

incarceration and ample mitigation presented." The trial court denied the motion for

reconsideration. Billups now appeals.

¶ 10 ANALYSIS

¶ 11 In this appeal, Billups challenges only the use of the gun convictions in aggravation at

sentencing. Both of the convictions for gun possession from 1995 resulted from violations of

unconstitutional statutes. See People v. Aguilar,

; see also Moore

v. Madigan,

(7th Cir. 2012). Billups does not contest the constitutionality of

the statute at issue in the 1998 felony gun conviction, but he notes that the court would have

convicted him improperly if it predicated the conviction for unlawful use of a weapon by a

felon on the unconstitutional 1995 felony conviction for firearm possession.

¶ 12 The State contends that we lack jurisdiction to consider Billups's argument. In People v.

Ware,

, a defendant convicted for armed robbery argued that the

trial court had improperly relied on unconstitutional prior convictions for firearm possession

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when it sentenced him for the armed robbery. The Ware court held that it did not have

jurisdiction to vacate the prior convictions for firearm possession. Ware,

. But here, as in People v. Smith,

, the defendant does

not ask the court to vacate the prior convictions for firearm possession. Instead, Billups asks

this court to hold that the trial court improperly considered in aggravation Billups's

convictions for violating unconstitutional statutes. As the Smith court held, "we may decide

whether the trial court erred in relying on the AUUW conviction in aggravation, even if we

may not vacate that conviction itself." Smith,

.

¶ 13 Billups acknowledges that his attorney failed to object in the trial court to the

consideration of the unconstitutional convictions. He asks us to review the issue as plain

error or as a matter of ineffective assistance of counsel.

¶ 14 For a claim of ineffective assistance of counsel, a defendant must show that his counsel's

performance fell below an objective standard of reasonableness and that "but for counsel's

incompetence, the defendant stood a reasonable chance of achieving a better result." People

v. Burnett,

(2008). The defendant must overcome the presumption

that counsel's acts might have resulted from a sound defensive strategy. People v. Evans,

(1999).

¶ 15 Two of Billups's three firearms convictions resulted from violations of unconstitutional

statutes. Our supreme court's crucial decision concerning the constitutionality of firearms

statutes predated the sentencing hearing in this case. See Aguilar,

.

Competent counsel should have known that the Aguilar court held a firearms statute

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unconstitutional on grounds that would apply to both of Billups's convictions from 1995. See

People v. Siedlinski,

(1996)(the court held that the failure of

defendant's trial counsel to request the $5 per day credit constituted ineffective assistance of

counsel). The failure to object to the use of the two convictions in aggravation cannot have

served any strategic purpose. See United States v. Otero,

(3d Cir. 2007).

Accordingly, we find that Billups has sufficiently shown that his counsel's performance fell

below an objective standard of reasonableness.

¶ 16 The State argues that Billups suffered no prejudice from the error. The trial judge

referred to Billups's "gun crimes" as a reason for the sentence imposed. To establish

prejudice, Billups needs to show only a "reasonable probability" that the trial judge would

have imposed a lesser sentence if his counsel had not erred. People v. Steidl,

(1997). The trial judge knew she could sentence Billups to probation, or a term of only

four years in prison. The judge acknowledged that Billups had little criminal history in the

15 years preceding the conviction here. In the 15 years prior to this conviction, Billups had

one Class 4 felony conviction for possession of a controlled substance, and two very minor

misdemeanor convictions. The judge relied more heavily on the older convictions: two Class

4 felonies for drug possession, one for misdemeanor aggravated assault, and the three gun

charges. We find a reasonable probability that the court would have imposed a lesser

sentence if defense counsel had alerted the court to the unconstitutionality of the statutes

Billups violated for two of the three gun convictions.

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¶ 17 Billups has already served almost all of his sentence. He asks this court to impose a

lesser sentence without remanding to the trial court. He argues that Illinois Supreme Court

Rule 615(b)(4) authorizes this court to impose a reduced sentence. See Ill. S. Ct. R.

615(b)(4).

¶ 18 Our supreme court has restricted our exercise of the authority to reduce sentences to cases

in which the trial court abused its sentencing discretion. People v. Perruquet,

(1977). In light of the information presented to the court, including the list of prior

convictions presented without objection, we cannot say that the trial court abused its

discretion when it sentenced Billups to concurrent terms of six years in prison. Therefore,

we will not impose a reduced sentence on Billups. We remand to the trial court for

resentencing. See Perruquet,

.

¶ 19 CONCLUSION

¶ 20 We have jurisdiction to consider Billups's argument that at sentencing the trial court

should not have considered Billups's two prior convictions for violations of unconstitutional

statutes. Billups's trial counsel provided objectively unreasonable assistance when he failed

to point out to the court that it should not consider the two gun convictions in aggravation.

We also find a reasonable probability that the court would have imposed a lesser sentence if

counsel had not erred. Trial counsel provided ineffective assistance during sentencing when

he failed to object to the court's consideration of two prior convictions for violations of

statutes later held unconstitutional. Accordingly, we affirm the convictions, vacate the

sentences and remand to the trial court for sentencing.

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¶ 21 Affirmed in part, vacated in part and remanded.

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