People v. Mimes

Illinois Official Reports

Appellate Court

People v. Mimes, 2014 IL App (1st) 082747-B

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

District & No. First District, Sixth Division
Docket No. 1-08-2747

Filed June 20, 2014

Held On appeal from defendant’s convictions for attempted first degree
(Note: This syllabus murder, aggravated battery with a firearm and aggravated unlawful
constitutes no part of the use of a weapon, the appellate court held that the trial court did not act
opinion of the court but as a prosecutor when it sua sponte considered evidence that defendant
has been prepared by the robbed the victim and hit him with a firearm prior to the instant
Reporter of Decisions offenses, since the evidence of the earlier crimes was considered for
for the convenience of the proper purpose of identification, the State was not required to give
the reader.) defendant written notice that it would seek an enhanced sentence
based on defendant’s discharge of a firearm that caused great bodily
harm to the victim, the 45-year sentence for attempted first degree
murder was not excessive, the convictions and sentences for
aggravated battery with a firearm and one count of aggravated
unlawful use of a weapon were vacated pursuant to the one-act,
one-crime rule, defendant’s conviction for aggravated unlawful use of
a weapon was reversed pursuant to Aguilar, and the court system fee
was upheld, but various other challenged fees were vacated and fines
were offset by credit for defendant’s presentence incarceration.

Decision Under Appeal from the Circuit Court of Cook County, No. 05-CR-28199; the
Review Hon. Kenneth J. Wadas, Judge, presiding.

Judgment Affirmed in part, reversed in part and vacated in part.
 Counsel on Michael J. Pelletier, Alan D. Goldberg, Aliza R. Kaliski, and Todd T.
Appeal McHenry, all of State Appellate Defender’s Office, of Chicago, for
appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Miles J. Keleher, Robin Murphy, and Michelle Katz, Assistant State’s
Attorneys, of counsel), for the People.

Panel JUSTICE LAMPKIN delivered the judgment of the court, with
opinion.
Presiding Justice Rochford and Justice Hall concurred in the judgment
and opinion.

OPINION

¶1 Following a bench trial, defendant Martell Mimes was convicted of attempted first degree
murder, aggravated battery with a firearm, and two counts of aggravated unlawful use of a
weapon (AUUW). He was sentenced to concurrent terms of 45 years in prison for attempted
murder, 10 years for aggravated battery with a firearm, and 3 years for AUUW.
¶2 On appeal, he contends: (1) the trial judge improperly assumed the role of prosecutor; (2)
the trial court improperly increased defendant’s sentence for attempted murder where the
State did not charge the sentence enhancing facts in the indictment; (3) defendant’s sentence
for attempted murder was excessive; (4) his convictions for aggravated battery with a firearm
and two counts of AUUW violated the one-act, one-crime rule; (5) his convictions under the
AUUW statute should be vacated because the criminalization of carrying a firearm on one’s
person in public violates the constitutional guarantees of the right to bear arms; and (6) the
trial court erroneously imposed various fines, fees and costs against him. After this court
filed its opinion in this case (People v. Mimes, 2011 IL App (1st) 082747), the Illinois
Supreme Court issued a supervisory order instructing us to vacate our judgment and
reconsider our prior decision in light of People v. Aguilar, 2013 IL 112116. People v. Mimes,
No. 112728 (Jan. 29, 2014) (supervisory order).
¶3 For the reasons that follow, we hold that (1) the trial judge did not improperly assume the
role of prosecutor by considering other-crimes evidence against defendant for the limited
purpose of identification; (2) defendant received sufficient notice prior to trial of alleged
facts that increased the penalty range of his attempted murder conviction where he was not
prejudiced in the preparation of his defense; (3) the trial court’s 45-year sentence for
attempted first degree murder was not an abuse of discretion; (4) defendant’s convictions for
attempted first degree murder and one count of AUUW did not violate the one-act, one-crime
rule, but this rule was violated by his convictions for aggravated battery with a firearm and a
second count of AUUW; (5) defendant’s conviction for carrying an uncased, loaded and
accessible firearm on a public city street is reversed because the relevant provisions of
Illinois’s AUUW statute violated the constitutional protection of the right to bear arms; and

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 (6) the trial court properly assessed defendant with the $50 court system fee, but the other
challenged fees or fines are vacated or offset by his time spent in custody.

¶4 I. BACKGROUND
¶5 Defendant was arrested and charged with the November 8, 2005 attempted first degree
murder and aggravated battery with a firearm of the 17-year-old victim, Lenard Richardson.
Defendant was also charged with eight counts of AUUW based on allegations that he was
carrying an uncased, loaded and accessible firearm in public and did not have a firearm
owner’s identification (FOID) card, was under 21 years of age, and was involved in street
gang activity.
¶6 At the bench trial in August 2008, the testimony of Richardson and his older brother,
Leonard Cole, established that Richardson was selling heroin in a Chicago public housing
building on the evening in question when he was robbed by defendant and three other
offenders. Defendant brandished a silver pistol, took Richardson’s bundle of narcotics and
about $200, and hit Richardson in his jaw with the pistol. Richardson then telephoned Cole,
who drove to the scene with another friend. When Cole arrived at the scene, he told
Richardson to wait in the car and he (Cole) would “handle it.” Cole and his friend walked
across the street to a second public housing building and spoke with Lavane Tanksley. After
a minute, Richardson lost sight of Cole, got out of the car, and went inside the second
building.
¶7 Richardson went upstairs, looked out a window and saw Cole talking to Tanksley.
Richardson then went downstairs to the lobby. As he was by the door and about to exit the
building, he saw defendant, who was outside and about three feet away. Defendant walked
toward Richardson and was carrying a silver pistol. Defendant started shooting as he walked
up the steps to enter the building, and continued shooting as he walked into the lobby, passed
Richardson and ran up a staircase. When Richardson heard the initial gunshots, he dropped to
the ground and heard more gunshots fired. Only Richardson and defendant were in the lobby.
Richardson did not have a gun. Richardson sustained two gunshot wounds fired into his back.
Cole also heard the gunshots, dropped to the ground and then saw that someone was lying
inside the lobby with his feet sticking out the door. Cole went into the lobby and saw that the
victim was Richardson. No one else was in the lobby. Cole remained with Richardson until
the police arrived.
¶8 Richardson was taken to the hospital and briefly interviewed by the police. Although
Richardson initially denied selling drugs at the scene, he subsequently told the police about
the events leading up to the shooting, gave a description of the shooter, and said he thought
the shooter used a gun that belonged to Tanksley. The police spoke with Tanksley and
obtained defendant’s name. One day after the shooting, Richardson identified defendant as
the shooter from a photo array. As a result of the shooting, Richardson suffered a spinal cord
injury and was paralyzed from the waist down. Thereafter, he was confined to a wheelchair
and had to wear a colostomy bag and diaper. Furthermore, both his legs were subsequently
amputated.
¶9 The State’s evidence established that police recovered at the scene three shell casings and
a full cartridge outside the building on the steps leading up to the lobby door. Inside the
lobby, the police recovered five more shell casings and several pieces of metal from
expended bullets. All eight shell casings were fired from the same gun.

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¶ 10 Later, defendant was arrested and advised of his Miranda rights. According to the
testimony of Chicago police detective Chris Matias, defendant initially told the police that he
was inside his sister’s apartment the entire day when the offense occurred. Later, however,
defendant told the police that he used Tanksley’s gun to shoot Richardson because he thought
Richardson was reaching for a handgun. After the shooting, defendant ran upstairs to his
sister’s apartment. Furthermore, defendant told the police that he never saw a gun in
Richardson’s hands. Defendant did not testify at the bench trial.
¶ 11 After closing arguments, the trial judge stated that he considered the other-crimes
evidence, i.e., the testimony that defendant robbed Richardson at gunpoint and struck him
with the gun, only for the purpose of identification. The trial court concluded that any
prejudicial effect was outweighed by the probative value of that evidence, which was
relevant to show Richardson’s prior opportunity to observe defendant and then identify him
later as the shooter. The trial court stated that Richardson was a credible witness and the
physical evidence corroborated his version of the events. The trial court also stated that
Detective Matias’s testimony concerning defendant’s inculpatory admissions to the shooting
was credible.
¶ 12 The trial court found defendant guilty of attempted first degree murder, aggravated
battery with a firearm, and two counts of AUUW. Specifically, defendant’s AUUW
convictions were based on findings that he (1) knowingly carried on his person an uncased,
loaded and accessible firearm while not on his own land or in his own abode or fixed place of
business (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2004)), and (2) possessed an uncased,
loaded and accessible firearm upon public land (720 ILCS 5/24-1.6(a)(2), (a)(3)(A) (West
2004)). The trial court found defendant not guilty on six other counts of AUUW because the
State failed to prove he was involved in gang-related activity, did not have a FOID card or
was under 21 years of age.
¶ 13 At the sentencing hearing, the parties stipulated that two Chicago police officers would
testify that they arrested defendant in September 2005 in the hallway of a building where he
did not live for being in possession of 23 small clear plastic bags containing crack cocaine.
Moreover, the State presented Richardson’s victim impact statement and informed the court
that defendant was out on bond for the 2005 possession of a controlled substance case when
he shot and severely injured Richardson. Furthermore, defendant had a prior juvenile
adjudication of guilt for burglary but no prior adult convictions.
¶ 14 For the offense of attempted first degree murder, the trial court imposed a 20-year
sentence plus the minimum mandatory addition of 25 years for a cumulative 45-year
sentence based on the finding that defendant was the shooter in the case and caused great
bodily harm to the victim. Defendant also received concurrent sentences of 10 years for
aggravated battery with a firearm, and 3 years each for two counts of AUUW. The trial court
also assessed $840 for various costs, fees and fines. Defendant timely appealed.

¶ 15 II. ANALYSIS
¶ 16 On appeal, defendant contends: (1) the trial court improperly assumed the role of
prosecutor when it sua sponte considered other-crimes evidence; (2) the trial court
improperly added 25 years to his 20-year attempted murder sentence where the State did not
charge the sentence enhancing facts in the indictment; (3) defendant’s 45-year sentence for
attempted murder was excessive; (4) pursuant to the one-act, one-crime rule, his convictions

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 for aggravated battery with a firearm and two counts of AUUW should be vacated because
they were based on the same physical act as his attempted murder conviction; (5) his
convictions under the AUUW statute should be vacated because the criminalization of openly
carrying a firearm on one’s person in public violates the constitutional guarantees of the right
to bear arms; and (6) the trial court erroneously imposed various fines, fees and costs against
him.

¶ 17 A. Appearance of Partiality
¶ 18 Defendant argues the trial court erred when, after closing argument, it stated, sua sponte,
that certain testimony, i.e., that defendant robbed Richardson at gunpoint and hit him in the
jaw with the gun, was relevant only to show Richardson’s ability to identify defendant as the
offender who shot him later the same day. The trial court also stated that the probative value
of this other-crimes evidence outweighed any prejudicial effect. Defendant acknowledges
that all the testimony concerning the armed robbery was admitted during the bench trial
without any objection from defendant. Nevertheless, defendant contends that the trial court’s
statements established that it impermissibly acted as a prosecutor because the State never
raised the issue of the admissibility of the other-crimes evidence. We find that defendant’s
argument lacks merit.
¶ 19 A trial judge abuses his discretion when he abandons his judicial role and adopts the role
of prosecutor. People v. Hicks, 183 Ill. App. 3d 636, 646 (1989). However, where justice is
liable to fail because a certain fact has not been developed or a certain line of inquiry has not
been pursued, a judge has a duty to interpose and avoid the miscarriage of justice either by
suggestions to counsel or an examination conducted by the judge himself. People v.
Franceschini, 20 Ill. 2d 126, 132 (1960).
¶ 20 Here, the trial judge did not improperly act as a prosecutor when he merely clarified,
prior to announcing his findings, that he had considered the properly admitted testimony
about the robbery, which constituted other-crimes evidence, only for the relevant purpose of
identification. Specifically, defendant’s prior bad act afforded Richardson the opportunity to
observe defendant and the gun up close and thereby assisted Richardson in identifying
defendant as the offender who shot him later that day.
¶ 21 This situation is dissimilar to that in Village of Kildeer v. Munyer, 384 Ill. App. 3d 251
(2008), relied upon by defendant, where defendant Munyer was charged with reckless
driving in three separate cases. Although the three cases involved different witnesses from
three separate incidents that occurred on different dates, the trial court heard the three cases
together. Id. at 252. In the first and second cases, the witnesses testified that the defendant
drove his vehicle toward the witnesses’ vehicles and then swerved into the witnesses’ path,
causing the witnesses to leave the road to avoid being hit. Id. at 252-53. In the third case, the
defendant drove toward two stopped cars, causing the occupants to think the defendant would
strike them before he pulled his vehicle away at the last minute. Id. at 253. After the
prosecution had rested, the trial court granted the defendant a directed finding in the first and
second cases based on the failure of the complaints to give sufficient factual descriptions of
the alleged acts. Id. Then, the trial court improperly acted as a prosecutor when it sua sponte
took the affirmative step of admitting the testimony from the two dismissed reckless driving
cases as other-crimes evidence in the remaining reckless driving case in order to establish
proof of the defendant’s willful or wanton mental state. Id. at 253, 257.

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¶ 22 In this case, the trial judge did not prompt the State to present the other-crimes evidence,
and the State did not reopen its case to present additional evidence. Instead, the judge merely
commented on the relevant basis for the previously admitted other-crimes evidence.
Furthermore, the defense never argued that the testimony concerning the robbery constituted
inadmissible other-crimes evidence. Defendant cannot credibly complain on appeal that he
was prejudiced by the admission of that evidence where the defense referred to that
testimony extensively during the cross-examinations of Richardson and Cole in order to
discredit them as drug peddlers. Defendant fails to establish any appearance of partiality or
abuse of discretion by the trial judge here.

¶ 23 B. Mandatory Addition to Defendant’s Attempted Murder Sentence
¶ 24 Defendant contends that the addition of 25 years to his 20-year sentence for attempted
first degree murder is void because the State violated section 111-3(c-5) of the Code of
Criminal Procedure of 1963 (Code) (725 ILCS 5/111-3(c-5) (West 2004)). According to
defendant, section 111-3(c-5) required the State to give him written notice prior to trial that it
would seek an enhanced sentence based on the facts that he personally discharged a firearm
which caused great bodily harm to Richardson. Defendant acknowledges that he failed to
raise this issue both prior to sentencing and in his motion to reconsider the sentence. He
argues, however, that a void order may be challenged at any time and a “sentence which does
not conform to a statutory requirement is void.” People v. Arna, 168 Ill. 2d 107, 113 (1995).
¶ 25 Alternatively, defendant seeks review of this issue under the plain error rule, arguing that
the imposition of an unauthorized sentence affected substantial rights where the State’s
alleged indictment error prevented him from exercising his right to request a bifurcated
proceeding. Specifically, defendant contends that if he had known the State would seek an
enhanced sentence based on his use of a firearm and causing the victim great bodily harm,
then defendant could have requested a bifurcated proceeding where a jury would decide his
guilt but a judge would decide whether the enhancing factor existed. Furthermore, defendant
could then have chosen to testify either at the guilt phase of the trial only, or the enhancing
factor phase only, or neither or both. See Ill. S. Ct. R. 451(g) (eff. July 1, 2006) (when the
State seeks an enhanced sentence, trial courts have discretion under section 111-3(c-5) in
deciding whether to conduct unitary or bifurcated trials on the issue of guilt and on the issue
of whether a sentencing enhancement factor exists).
¶ 26 Because this issue involves a question of law, our review is de novo. People v. Rowell,
229 Ill. 2d 82, 92 (2008). A defendant has a fundamental right to be informed of the nature
and cause of criminal accusations made against him. Id. at 92-93. The legislature enacted
section 111-3(c-5) of the Code in response to the Supreme Court’s decision in Apprendi v.
New Jersey, 530 U.S. 466 (2000), which held that whenever a fact other than a prior
conviction is considered to enhance a penalty beyond the statutory maximum, that fact must
be found to exist beyond a reasonable doubt by the trier of fact. People v. Crutchfield, 353 Ill.
App. 3d 1014, 1023 (2004).
¶ 27 Section 111-3(c-5) provides:
“Notwithstanding any other provision of law, *** if an alleged fact (other than the
fact of a prior conviction) is not an element of an offense but is sought to be used to
increase the range of penalties for the offense beyond the statutory maximum that
could otherwise be imposed for the offense, the alleged fact must be included in the

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 charging instrument or otherwise provided to the defendant through a written
notification before trial, submitted to a trier of fact as an aggravating factor, and
proved beyond a reasonable doubt. Failure to prove the fact beyond a reasonable
doubt is not a bar to a conviction for commission of the offense, but is a bar to
increasing, based on that fact, the range of penalties for the offense beyond the
statutory maximum that could otherwise be imposed for that offense.” 725 ILCS
5/111-3(c-5) (West 2004).
Defendant’s challenge on appeal is limited to the issue of notice; he does not assert that the
alleged facts that he fired the gun that caused Richardson great bodily harm were neither
submitted to the fact finder nor proven beyond a reasonable doubt.
¶ 28 Attempted first degree murder is a Class X felony (720 ILCS 5/8-4(c)(1) (West 2004))
and is usually subject to a sentencing range of 6 to 30 years’ imprisonment (720 ILCS
5/8-4(c)(2) (West 2004); 730 ILCS 5/5-8-1(a)(3) (West 2004)). However, if the offense
involved certain factors, a mandatory number of years must be added to the term of
imprisonment imposed by the court. For example, if the defendant personally discharged a
firearm, then 20 years must be added to the term of imprisonment imposed by the court. 720
ILCS 5/8-4(c)(1)(C) (West 2004). If the defendant personally discharged a firearm that
proximately caused, inter alia, great bodily harm to another person, then 25 years or up to a
term of natural life must be added to the term of imprisonment imposed by the court. 720
ILCS 5/8-4(c)(1)(D) (West 2004).
¶ 29 Although the term great bodily harm is not susceptible of a precise legal definition, it
requires an injury of a greater and more serious character than an ordinary battery. People v.
Figures, 216 Ill. App. 3d 398, 401 (1991). Bodily harm as it relates to ordinary battery
requires “some sort of physical pain or damage to the body, like lacerations, bruises or
abrasions, whether temporary or permanent.” People v. Mays, 91 Ill. 2d 251, 256 (1982).
Great bodily harm is not dependent upon hospitalization of the victim, nor the permanency of
his disability or disfigurement but, rather, centers upon the injuries the victim did, in fact,
receive. Figures, 216 Ill. App. 3d at 401.
¶ 30 Here, the indictment alleged that defendant
“committed the offense of attempt first degree murder in that he, without lawful
justification, with intent to kill, did any act, to wit: shot Lenard Richardson about the
body with a firearm, which constituted a substantial step towards the commission of
the offense of first degree murder, in violation of Chapter 720, Act 5, Section 8-4(a)
(720-5\9-1(a)(1)), of the Illinois Compiled Statutes.”
¶ 31 We find that the plain language of the indictment clearly set forth the alleged fact that
defendant personally discharged the firearm. In addition, the indictment cited both the
attempt and first degree murder statutes. Consequently, defendant could look to subsection
(c)(1)(C) of the cited attempt statute to know that he was subject to a mandatory 20-year
addition to his sentence based upon a finding that he personally discharged the gun.
¶ 32 We agree with defendant, however, that the indictment failed to include the alleged fact
that defendant’s shooting proximately caused Richardson great bodily harm. Although the
indictment sufficiently alleged that defendant wounded Richardson, a gunshot wound does
not necessarily satisfy the great bodily harm requirement. See People v. Ruiz, 312 Ill. App. 3d
49, 62-63 (2000) (gunshot wound to the police officer’s knee was not a severe bodily injury
where the wound was barely visible on the day of the incident and the officer did not

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 immediately seek medical treatment); People v. Durham, 303 Ill. App. 3d 763, 770 (1999)
(battery victim’s gunshot injury, which required no medical attention and was described as a
mark, small nick or a cut, was not a severe bodily injury for sentencing purposes).
¶ 33 The timing of a challenge to the sufficiency of an indictment is significant because it
determines which standard must be applied in reviewing the sufficiency of the indictment on
appeal. People v. Davis, 217 Ill. 2d 472, 478 (2005); People v. Cuadrado, 214 Ill. 2d 79,
86-87 (2005). An indictment challenged before trial must strictly comply with the pleading
requirements of section 111-3. People v. Nash, 173 Ill. 2d 423, 429 (1996). In contrast, when
an indictment is attacked for the first time posttrial, a defendant must show that he was
prejudiced in the preparation of his defense. Davis, 217 Ill. 2d at 479. “[W]hen the
sufficiency of an indictment *** is attacked for the first time on appeal, the indictment is
sufficient if it apprised the accused of the precise offense charged with sufficient specificity
to prepare his defense and to allow him to plead a resulting conviction as a bar to future
prosecutions arising from the same conduct.” Rowell, 229 Ill. 2d at 93. Because defendant
challenged the indictment for the first time on appeal, the State’s failure to strictly comply
with section 111-3(c-5) is not dispositive. Instead, the dispositive issue is whether defendant
was prejudiced in the preparation of his defense.
¶ 34 To show prejudice, defendant argues that he might have requested a bifurcated hearing
under Supreme Court Rule 451(g) if he had received written notice prior to trial that the State
intended to show he caused great bodily harm to the victim. Even assuming, arguendo, that
the trial court would have granted a request for a bifurcated proceeding under the
circumstances present here, the record refutes defendant’s claim that he was prejudiced in the
preparation of his defense. Specifically, the record establishes that defendant was apprised of
the serious nature of Richardson’s injuries long before defendant submitted his August 18,
2008 written waiver of his right to a jury trial. The November 19, 2005 arrest report stated
that defendant was “identified as the individual who shot and seriously wounded victim
(Richardson, Lenard) with a handgun.” Furthermore, at defendant’s March 9, 2006 bond
hearing, the State asked the court to maintain the “no bond hold” where defendant was out on
bond for a case involving drug possession and then “commits this crime, where he ends up
shooting the victim in the back on this attempt murder case.”
¶ 35 In addition, at the September 19, 2006 hearing on defendant’s motion to reduce bail, the
State, in the presence of defendant, informed the court of his criminal history and said that
the
“facts of this case are such that he was identified as having shot at the victim on
November 8, 2005 at approximately 7:00 o’clock in the evening in the Ickes Homes
at 2400 South State Street. The victim was shot twice in the back, shot at more than
half a dozen times. The victim was left paralyzed.”
Defense counsel responded, in part, that “in regards to the facts of the case it does appear that
the victim, although a set of tragic circumstances have resulted in him being paralyzed in
regards to the matter.”
¶ 36 The record establishes that defendant cannot credibly argue that he was not informed
prior to trial of the facts concerning the great bodily harm Richardson sustained as a result of
the shooting. At the very least, defendant knew that Richardson was paralyzed as a result of
the two gunshots defendant fired into Richardson’s back. Moreover, the indictment apprised
defendant of the offense charged–attempted first degree murder–and cited both the attempt

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 and first degree murder statutes. Consequently, defendant was able to look to subsection
(c)(1)(D) of the cited attempt statute to find the missing sentence enhancing factor. Cf.
Rowell, 229 Ill. 2d at 95-96 (where the State aggregated the defendant’s small retail thefts but
failed to allege the necessary element of a single intent or design, and the charging
instrument cited the retail theft statute but did not reference the statute concerning the joinder
of offenses, then the defendant suffered prejudice because he could not look to the cited
statute to find the missing element). Specifically, subsection (c)(1)(D) informed defendant
that he could receive an enhanced sentence of 25 years or up to natural life for personally
discharging the firearm that caused Richardson great bodily harm.
¶ 37 We find that defendant cannot establish that the omission of the words “proximately
caused great bodily harm” in the indictment prejudiced his preparation of his defense.
Accordingly, his enhanced sentence is not subject to reversal or reduction because the
indictment in this case apprised him of the proper elements of the offense with sufficient
specificity to allow him to prepare his defense. Consequently, defendant’s sentence is not
void where he received sufficient pretrial notice of the attempted murder offense charged and
his sentence conformed to the statutory requirement of 111-3(c-5) because the State proved
beyond a reasonable doubt that defendant fired the gun that caused Richardson great bodily
harm.
¶ 38 Finally, the plain language of section 111-3(c-5) refutes defendant’s claim that he was
entitled to specific, written, pretrial notice that the State would seek an enhanced sentence.
Section 111-3(c-5) clearly states that the defendant is entitled to written pretrial notice of the
alleged fact that would be used to increase his sentence. There is no requirement that the
defendant must also be given written pretrial notice about the potential increased sentence he
could receive.

¶ 39 C. Sentence and Abuse of Discretion
¶ 40 Defendant complains that his 45-year sentence for attempted murder is excessive.
Specifically, he argues that the trial court failed to properly account for his rehabilitative
potential where he was 19 years old at the time of the offense in 2005, had little criminal
history, maintained employment until 2004 when his employer became ill, had a supportive
family and hoped to continue his education.
¶ 41 The trial court has broad discretionary powers in choosing the appropriate sentence.
People v. Jones, 168 Ill. 2d 367, 373 (1995). A judgment as to the proper sentence must be
based on the circumstances of each case and depends on many factors, including the
seriousness of the offense; the need to protect the public and provide for deterrence and
retribution; and the defendant’s demeanor, general moral character, mental capacity, age,
background, prior criminal history, rehabilitative potential and future dangerousness. People
v. Stacey, 193 Ill. 2d 203, 209 (2000); People v. Thompson, 222 Ill. 2d 1, 35 (2006); People v.
Hunzicker, 308 Ill. App. 3d 961, 966 (1999). A reviewing court gives great deference to a
trial court’s sentencing decision and cannot substitute its judgment for that of the trial court
simply because it would have weighed the factors differently. People v. Alexander, 239 Ill.
2d 205, 212-13 (2010) (reversing the appellate court to reinstate the trial court’s 24-year
sentence for the 15-year-old defendant convicted of firing a gun at a fellow student in a
crowded hallway while school was in session without injuring anyone).

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¶ 42 Here, defendant received a 45-year sentence, which was based upon 20 years for
attempted first degree murder (720 ILCS 5/8-4(c)(1) (West 2004); 730 ILCS 5/5-8-1(a)(3)
(West 2004) (this Class X felony is subject to 6 to 30 years in prison)), plus the minimum
mandatory consecutive addition of 25 years where he personally discharged a firearm that
proximately caused great bodily harm to another person (720 ILCS 5/8-4(c)(1)(D) (West
2004)). His 45-year sentence is well within the statutory range of 31 to 55 years and up to
natural life.
¶ 43 In addition, the trial court properly considered significant aggravating factors. Defendant
approached the 17-year-old, unarmed victim and began firing multiple gunshots from a
distance of only two or three feet away. Moreover, the victim’s injuries were permanent and
devastating. In addition, defendant, who was only 19 years old at the time of this offense,
was out on bond for a charge of possession of a controlled substance (see People v. Williams,
262 Ill. App. 3d 734, 746 (1994)), and already had a juvenile adjudication of guilt for a
burglary offense. Furthermore, defendant presents no evidence to indicate that the trial court
failed to consider any mitigation factors, like defendant’s age, family support or rehabilitative
potential. See People v. Morgan, 306 Ill. App. 3d 616, 633 (1999); People v. Garcia, 296 Ill.
App. 3d 769, 781 (1998). Consequently, defendant has failed to establish that the trial court
abused its discretion in sentencing defendant to 45 years’ imprisonment for his attempted
first degree murder offense.

¶ 44 D. One-Act, One-Crime Rule
¶ 45 The one-act, one-crime rule 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). The term “act” is
defined as “any overt or outward manifestation which will support a different offense.”
People v. King, 66 Ill. 2d 551, 566 (1977). If the court determines that the defendant
committed multiple acts, it must then determine whether any of the offenses are
lesser-included offenses. People v. Rodriguez, 169 Ill. 2d 183, 186 (1996). If so, multiple
convictions are improper; if not, multiple convictions may be entered. Id. We review de novo
defendant’s claim that his convictions violated the one-act, one-crime rule. People v. Dryden,
363 Ill. App. 3d 447, 453 (2006).
¶ 46 Defendant asserts, the State concedes, and we agree that defendant’s conviction for
aggravated battery with a firearm violates the one-act, one-crime rule because it was
predicated on the same act as his attempted murder conviction. Because the two relevant
counts of the indictment charged defendant with the same physical act, i.e., shooting the
victim with a firearm, the lesser felony, aggravated battery with a firearm, must be vacated.
See People v. Aquino, 239 Ill. App. 3d 12, 19 (1992) (vacating the defendant’s conviction for
aggravated battery with a firearm where the defendant was also charged and convicted of
attempted first degree murder based on the same physical act of shooting his wife).
Therefore, we vacate his conviction for aggravated battery with a firearm and the
corresponding 10-year concurrent sentence.
¶ 47 Further, defendant asserts, the State concedes, and we agree that defendant’s two
convictions for AUUW stem from the same physical act of carrying an uncased, loaded and
accessible firearm in public and, thus, violate the one-act, one-crime rule. People v.

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 Quinones, 362 Ill. App. 3d 385, 396-97 (2005). Therefore, we vacate one of his AUUW
convictions and the corresponding three-year concurrent sentence.
¶ 48 Defendant also claims that his remaining AUUW conviction violates the one-act,
one-crime rule. We do not address this claim because our resolution of the constitutionality
of his AUUW conviction disposes of this claim.

¶ 49 E. Constitutionality of AUUW Statute
¶ 50 Defendant argues that his AUUW conviction should be reversed because the relevant
provisions of the AUUW statute criminalize the open carrying of a loaded firearm on one’s
person on a public street and, thus, violate both state and federal constitutional guarantees of
the right to bear arms. Section 24-1.6 of the AUUW statute provides in pertinent part:
“(a) A person commits the offense of [AUUW] when he or she knowingly:
(1) Carries on or about his or her person *** except when on his or her land or
in his or her abode or fixed place of business any pistol, revolver *** or other
firearm; or
(2) Carries or possesses on or about his or her person, upon any *** public
lands within the corporate limits of a city, village or incorporated town, *** except
when on his or her own land or in his or her own abode or fixed place of business,
any pistol, revolver *** or other firearm; and
(3) One of the following factors is present:
(A) the firearm possessed was uncased, loaded and immediately accessible
at the time of the offense[.]
***
(d) Sentence. Aggravated unlawful use of a weapon is a Class 4 felony; a second
or subsequent offense is a Class 2 felony. Aggravated unlawful use of a weapon by a
person who has been previously convicted of a felony in this State or another
jurisdiction is a Class 2 felony.” 720 ILCS 5/24-1.6(a)(1), (a)(2), (a)(3)(A), (d) (West
2004).
¶ 51 The Aguilar court held that the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d)
violated the second amendment right to keep and bear arms and, therefore, the court reversed
the defendant’s conviction for AUUW under that section. Aguilar, 2013 IL 112116, ¶ 22.
¶ 52 In this case, the record on appeal establishes defendant was convicted of the Class 4 form
of section 24-1.6(a)(1), (a)(3)(A), (d) of the AUUW statute. Accordingly, in light of our
supreme court’s decision in Aguilar, the conviction in this case must be reversed. Aguilar,
2013 IL 112116, ¶ 22.

¶ 53 F. Fines, Fees and Costs
¶ 54 Finally, defendant challenges the trial court’s imposition of various fines, fees and costs.
The State concedes and we agree that the following fees or fines should be vacated as a
matter of law: a $25 court supervision fee (625 ILCS 5/16-104c (West 2006)); a $5 drug
court fee (55 ILCS 5/5-1101(f) (West 2006)); a $30 Children’s Advocacy Center fine (55
ILCS 5/5-1101(f-5) (West 2008)); and a $100 trauma fund fine (730 ILCS 5/5-9-1.10 (West
2004)). Accordingly, we vacate these charges, which total $160.

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¶ 55 In addition, defendant asserts, the State concedes, and we agree that defendant is entitled
to receive credit for time served in presentence custody to satisfy his $10 mental health court
fine and $5 youth diversion/peer court fine. Because defendant accrued at least 1,040 days of
credit for time he spent in presentence custody (725 ILCS 5/110-14(a) (West 2004)), he is
entitled to at least $5,200 credit against any creditable fines. The $10 mental health court and
$5 youth diversion/peer court fines are the only creditable fines in this case. See People v.
Jones, 223 Ill. 2d 569, 582 (2006) (fines are part of the punishment for a conviction, whereas
fees are intended to reimburse the State for a cost incurred in the defendant’s prosecution).
Consequently, we offset defendant’s $10 mental health court and $5 youth diversion/peer
court fines with his days of accrued presentence credit.
¶ 56 We do not agree, however, with defendant’s claim that the trial court erroneously
imposed the $50 court system fee. This fee was properly assessed against defendant because
he was found guilty of felony offenses. 55 ILCS 5/5-1101(c) (West 2004). The trial court’s
order, however, erroneously states that this fee was imposed under section 5-1101(b) of the
Counties Code (55 ILCS 5/5-1101(b) (West 2008)), which is not applicable here.
Consequently, we correct that portion of the trial court’s order to reflect the imposition of the
fee under section 5-1101(c) of the Counties Code.

¶ 57 III. CONCLUSION
¶ 58 Accordingly, we affirm defendant’s attempted first degree murder conviction and the
sentence imposed on that conviction. We vacate, however, his convictions and sentences for
the aggravated battery with a firearm offense and one of his convictions and sentence for the
AUUW offense. We reverse his second conviction and sentence for AUUW. We also affirm
the imposition of the $50 court system fee, vacate the imposition of the other challenged fees
totaling $160, and offset the fines totaling $15 with accrued presentence credit.

¶ 59 Affirmed in part, reversed in part and vacated in part.

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