dissenting:
The majority reverses defendant’s conviction and remands for a new trial on the ground that defendant’s prior adjudication of delinquency is merely a sentence-enhancing factor that need not and should not be determined by the jury beyond a reasonable doubt. Because I believe that defendant’s prior adjudication is a requisite factor for the satisfaction of the third element of the charge of aggravated unlawful use of a weapon (720 ILCS 5/24 — 1.6)(a)(l), (a)(3)(D) (West 2006)), I dissent from the majority opinion and disagree with the conclusion that this is simply a sentence-enhancing case.
Here, defendant was not charged with the Class A misdemeanor of “simple” unlawful use of a weapon (720 ILCS 5/24 — 1(a)(4) (West 2006)). Rather, he was charged with a completely different crime: the Class 4 felony of aggravated unlawful use of a weapon (720 ILCS 5/24 — 1.6(a)(1), (a)(3)(D) (West 2006)). The third element of the latter offense — that which transforms the crime from “simple” to “aggravated” — sets out nine factors, at least one of which must be proven beyond a reasonable doubt in order to properly convict the defendant of the more serious offense. See 720 ILCS 5/24 — 1.6(a)(3) (West 2006). Specifically, it states:
“(3) One of the following factors is present:
(A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense; or
(B) the firearm possessed was uncased, unloaded and the ammunition for the weapon was immediately accessible at the time of the offense; or
(C) the person possessing the firearm has not been issued a currently valid Firearm Owner’s Identification Card; or
(D) the person possessing the weapon was previously adjudicated a delinquent minor *** for an act that if committed by an adult would be a felony; or
(E) the person possessing the weapon was engaged in a misdemeanor violation of [two specified drug statutes]; or
(F) the person possessing the weapon is a member of a street gang or is engaged in street gang related activity ***; or
(G) the person possessing the weapon had a [sic] order of protection issued against him or her within the previous 2 years; or
(H) the person possessing the weapon was engaged in the commission or attempted commission of a misdemeanor involving the use or threat of violence against the person or property of another; or
(I) the person possessing the weapon was under 21 years of age and in possession of a handgun as defined in Section 24 — 3, unless the person under 21 is engaged in [certain prescribed] lawful activities.” 720 ILCS 5/24 — 1.6(a)(3) (West 2006).
Without proof of the third element, the State has not met its burden and the defendant must be acquitted of the crime as charged. While the majority apparently recognizes that each of the other eight factors contained in section 24 — 1.6(a)(3), if proven beyond a reasonable doubt, would satisfy the essential third element, it curiously singles out subsection (D) as the one factor that is merely sentence enhancing.
Certainly the legislature could have omitted subsection (D) from section 24 — 1.6(a)(3) and made the juvenile adjudication merely a sentence-enhancing factor to a simple unlawful use of weapons conviction pursuant to section 111 — 3(c) of the Code of Criminal Procedure (725 ILCS 5/111 — 3 (West 2006)) if it so intended. But it did not do so. Instead it elected to define a new crime and make the juvenile adjudication of delinquency an element of the offense, despite the existence of section 111 — 3(c).
The majority does not assert that the existence of section 111— 3(c) precludes the legislature from defining a crime of aggravated use of weapons as it has done. The plain language of section 111 — 3(c) limits its application to situations where the State seeks an “enhanced sentence” because of a prior conviction. (Emphasis added.) 725 ILCS 5/111 — 3(c) (West 2006). We do not have such a situation here. The State did not charge defendant with the Class A misdemeanor and seek to enhance the sentence to that of a Class 4 felony. Instead it sought conviction of a different crime — aggravated unlawful use of a weapon — which was itself a Class 4 felony. See 720 ILCS 5/24 — 1.6(d) (West 2006).
The procedural bar provided for in section 111 — 3(c) only applies in instances where the prior conviction is not an element of the charged offense. 725 ILCS 5/111 — 3(c) (West 2006). Subsections 24— 1.6(a)(1) through (a)(3) list all the elements the State needs to prove to the trier of fact, beyond a reasonable doubt, in order to convict an individual of the charge of aggravated unlawful use of a weapon. Proof of a previous adjudication of delinquency is one of the possible factors the State must prove beyond a reasonable doubt in order to satisfy subsection 24 — 1.6(a)(3). See 720 ILCS 5/24 — 1.6(a)(3) (West 2006). If the trier of fact finds that the State has proven all the required elements provided for in subsections 24 — 1.6(a)(1) through (a)(3), defendant is guilty of a Class 4 felony. See 720 ILCS 5/24 — 1.6(d) (West 2006). The individual is then sentenced to the appropriate class felony as provided under subsection 24 — 1.6(d). It is on this basis that I reject the majority’s conclusion that proof of a previous adjudication of delinquency is merely a sentence-enhancing factor.
For illustrative purposes, however, the majority’s reasoning would apply to the situation where the State was attempting to enhance defendant’s sentence from a Class 4 felony to a Class 2 felony on the basis that defendant was previously convicted of a felony in this state. See 720 ILCS 5/24 — 1.6(d) (West 2006). A previous conviction in Illinois is not an element the State needs to prove to the trier of fact, beyond a reasonable doubt, in order to convict an individual of aggravated unlawful use of a weapon. See 720 ILCS 5/24 — 1.6(d) (West 2006). Instead, the previous conviction merely increases an individual’s sentence for aggravated unlawful use of a weapon from one classification (Class 4 felony) to a higher level classification (Class 2 felony). See 720 ILCS 5/24 — 1.6(d) (West 2006). In such a case, section 111— 3(c) would prohibit the use at trial of the fact of the prior conviction. See 725 ILCS 5/111 — 3(c) (West 2006).
Since I would find that defendant’s prior adjudication was an element of the crime and not merely a sentence-enhancing provision, I would affirm the trial court’s decision to submit the information to the jury pursuant to the method set out in Old Chief v. United States, 519 U.S. 172, 136 L. Ed. 2d 574, 117 S. Ct. 644 (1997), and adopted by our supreme court in People v. Walker, 211 Ill. 2d 317, 812 N.E.2d 339 (2004).
For the foregoing reasons, I would affirm defendant’s conviction.