FIFTH DIVISION Order filed: June 19, 2020

No. 1-17-0738

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 11 CR 7010 ) DEVIN SEATS, ) Honorable ) James B. Linn, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

PRESIDING JUSTICE HOFFMAN delivered the judgment of the court. Justices Rochford and Delort concurred in the judgment.

ORDER

¶1 Held: The trial court’s first-stage summary dismissal of the defendant’s pro se postconviction petition is affirmed. We vacate the defendant’s conviction for armed habitual criminal where it was predicated on a void conviction.

¶2 The defendant, Devin Seats, appeals from the first-stage summary dismissal of his pro se

postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS 122-1 et seq.

(West 2010)). On appeal, the defendant contends that the trial court erred in dismissing his

petition because his claim had an arguable basis in law and fact. Specifically, the defendant

maintains that during his sentencing hearing, the trial court considered two aggravated unlawful 1-17-0738

use of a weapon convictions that were void ab initio, and, therefore, he is entitled to a new

sentencing hearing. For the reasons that follow, we affirm.

¶3 The defendant was charged by indictment with multiple counts of attempted first degree

murder, one count of aggravated battery with a firearm, one count of armed habitual criminal,

multiple counts of aggravated discharge of a firearm, two counts of unlawful use or possession of

a weapon by a felon, and multiple counts of aggravated battery. These charges arose from an

event that occurred on April 11, 2011, in which the victim, Christopher Easter, was shot in the

face by the defendant while inside a Cricket Wireless store on 51st Street and Cottage Grove in

Chicago, Illinois. The defendant waived his right to a jury trial and the matter proceeded to a

bench trial.

¶4 A full recitation of the facts can be found in this court’s order on the defendant’s direct

appeal. People v. Seats,

. However, for the resolution of this appeal,

we will present only the facts that are necessary.

¶5 At the conclusion of the defendant’s bench trial, the trial court found him guilty of

aggravated battery with a firearm, armed habitual criminal, and aggravated discharge of a

firearm.

¶6 During the sentencing hearing, the State argued in aggravation that the defendant is a

gang member, has a history of gang activity, committed a serious offense, is a danger to society,

and has a criminal background reflected in the pre-sentence investigation report (PSI), which

includes multiple prior felony convictions. These convictions include: a 2005 conviction for

aggravated unlawful use of a weapon (AUUW)); two 2007 convictions for AUUW (both of

which were subsequently vacated by the trial court on November 1, 2019, pursuant to People v.

Aguilar,

); a 2005 conviction for manufacture/delivery of heroin; a 2005

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conviction for possession of a controlled substance; and a 2009 conviction for felony escape.

¶7 In announcing its sentencing decision, the trial court reasoned, in relevant part: “[The

defendant]’s got a considerable criminal background. He’s been through the system before.

Fortunately[,] [the victim] was not hurt worse than he was although he was hospitalized for quite

some time. He did receive serious injuries. He was shot in the face.” The court also noted that the

conviction for aggravated battery with a firearm requires that 85% of the sentence be served. The

defendant was sentenced to 20 years’ imprisonment for the aggravated battery with a firearm

conviction, 12 years for the armed habitual criminal conviction, and 10 years for the aggravated

discharge of a firearm conviction—the sentences to run concurrently. After sentencing, the trial

court denied the defendant’s motion to reconsider the sentence.

¶8 On direct appeal, the defendant maintained that his trial attorney was ineffective. We

rejected the defendant’s claims of error and affirmed his convictions. Seats,

.

¶9 On December 22, 2016, the defendant filed a pro se postconviction petition, in which he

maintained that during his sentencing hearing the trial court improperly considered a prior

AUUW conviction that was void ab initio under Aguilar,

, and he is, therefore,

entitled to a new sentencing hearing.

¶ 10 The trial court summarily dismissed the defendant’s postconviction petition as “patently

without merit.” This appeal followed.

¶ 11 On appeal, the defendant argues that his petition raised an arguable claim of a

constitutional violation. Specifically, he maintains that this court should reverse the summary

dismissal of his petition and remand for a new sentencing hearing because the trial court

considered two AUUW convictions that were void ab initio and have since been vacated by the

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trial court. He also argues, for the first time on appeal, that this court should reverse his armed

habitual criminal conviction because it was predicated on a void AUUW conviction. The State

concedes that the defendant’s two 2007 AUUW convictions are void, but argues that the trial

court did not place “any undue reliance” on them in sentencing. The State also concedes that the

defendant’s conviction and sentence for armed habitual criminal should be vacated.

¶ 12 Pursuant to the Act, a postconviction proceeding that does not involve the death penalty

has three distinct stages. 725 ILCS 5/122-1 et seq. (West 2010); People v. English,

. In the first stage, the defendant files a petition and the trial court determines

whether it is frivolous or patently without merit. People v. Gaultney,

(1996).

In order to survive dismissal at this stage, a petition must present only the “gist” of a

constitutional claim.

(citing People v. Porter,

(1988)). The term “gist”

describes what the petitioner must allege at the first stage; it is not the legal standard used by the

court to evaluate the petition. People v. Hodges,

(2009). The legal standard is

whether the petition is frivolous or patently without merit, meaning it has no arguable basis in

law or fact.

. “A petition which lacks an arguable basis either in law or in fact is one

which is based on an indisputably meritless legal theory or a fanciful factual allegation.”

We

review the summary dismissal of a postconviction petition de novo.

.

¶ 13 The question raised on appeal from a dismissal of a postconviction petition is whether the

allegations in the petition, liberally construed and taken as true, are sufficient to invoke relief

under the Act. People v. Jones,

(2004) (citing People v. Coleman,

(1998)). Generally, a claim not raised in a postconviction petition cannot be argued for

the first time on appeal. Jones,

. While our supreme court may relax the

forfeiture rule by invoking its supervisory power, this court “is not free, *** to excuse, in the

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context of postconviction proceedings, an appellate waiver caused by the failure of a defendant

to include issues in his or her postconviction petition.”

. However, a challenge to a

judgment based on a facially unconstitutional statute that is void ab initio is exempt from

forfeiture. People v. Thompson,

.

¶ 14 At the outset, we note that the defendant’s argument that his armed habitual criminal

conviction should be vacated was raised for the first time on appeal. However, because it is a

challenge based on a facially unconstitutional statute that is void ab initio, it is exempt from

forfeiture. Thompson,

. We find that the defendant’s void AUUW

conviction may not serve as a predicate felony conviction for armed habitual criminal. See In re

N.G.,

(holding that void convictions “can give rise to no criminal status nor

create any legal impediment, for the state had no authority, and the courts never acquired

jurisdiction, to impose punishment under such laws to begin with”). We, therefore, vacate the

defendant’s conviction for armed habitual criminal.

¶ 15 We next address the defendant’s argument that this court should reverse the trial court’s

summary dismissal of his postconviction petition and remand the cause for a new sentencing

hearing because the trial court improperly relied on two void AUUW convictions in sentencing.

¶ 16 We afford great deference to the trial court’s judgment on matters of sentencing (People

v. Alexander,

(2010)), but a matter may be remanded for resentencing

where a trial court relies upon improper sentencing factors. People v. Abdelhadi,

, ¶ 18. However, not every sentencing error mandates a new sentencing hearing and

we will affirm the trial court’s sentence if the record reflects that the weight placed on the

improperly considered aggravating factor was so insignificant that it did not result in a greater

sentence. People v. Bourke,

(1983). Where, despite the sentencing error, a

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defendant “would have received the same sentence,” remandment is not required. People v.

Chromik,

(2011). We may determine whether the trial court

improperly considered a conviction based on an unconstitutional statute, even if we may not

vacate that conviction itself. People v. Billups,

.

¶ 17 With respect to the defendant’s contention that the trial court erred in considering his

prior convictions for AUUW during sentencing, we conclude that any consideration of the

convictions by the trial court did not result in a greater sentence. The defendant’s two 2007

AUUW convictions were only two of his six prior convictions highlighted by the State and

enumerated in the PSI. Moreover, in announcing its sentence, the trial court never specifically

mentioned either of the defendant’s previous convictions for AUUW. While the trial court made

a passing reference to the defendant’s “considerable criminal background,” which included four

other convictions aside from the two void AUUW convictions, the factors expressly discussed

and emphasized by the trial court during sentencing were the amount of evidence against the

defendant and the serious nature of his crime—shooting the victim in the face. The seriousness

of the crime was the most important sentencing factor, which alone could support a maximum

sentence regardless of other factors. See Jones,

.

¶ 18 In determining whether reversible error occurred at sentencing, a reviewing court should

consider the record as a whole. People v. Miller,

. Based on our

review of the entire sentencing proceedings, we conclude that any weight afforded the

defendant’s previous convictions for AUUW was so insignificant that it did not lead to a greater

sentence. Bourke,

. Because we find that the weight afforded the previous

convictions, if any, was insignificant, we find that the defendant’s pleading did not and could not

state an arguable claim of a constitutional violation.

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¶ 19 Accordingly, we affirm the trial court’s first-stage summary dismissal of the defendant’s

pro se postconviction petition.

¶ 20 Affirmed in part and vacated in part.

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