People v. Alexander, 2019 IL App (3d) 170168

Background

Defendant Aloysius Alexander was charged with two counts of first-degree murder, aggravated battery with a firearm, and unlawful use of a weapon by a felon (UUWF); the UUWF count relied on a 2009 aggravated unlawful use of a weapon (AUUW) conviction as the predicate felony.
Evidence: a nighttime confrontation at an apartment complex resulted in multiple gunshots; victims and witnesses identified defendant (nickname “June”) as the shooter; surveillance showed a man entering/exiting the building; police found documents bearing defendant’s name and address in Apt. 307, a black hooded sweatshirt, ammunition matching the recovered .38 revolver, and the revolver nearby; ballistics linked spent projectiles to the recovered gun.
Defendant was tried by the bench, convicted on all counts, and sentenced to 56 years (murder) plus concurrent terms for the other counts; the State urged the court to consider defendant’s AUUW conviction in sentencing.
Defendant filed pro se and counsel motions raising ineffective-assistance claims (failure to file motions in limine, to move to suppress post-Miranda booking statements, and issues about substitution of judge). The trial court conducted a preliminary Krankel inquiry and denied appointment of new counsel, concluding the claims lacked merit or were trial strategy.
On appeal the Third District held the 2009 AUUW conviction was void ab initio under Illinois precedent recognizing that the AUUW subsection is facially unconstitutional; the court vacated the AUUW conviction, reversed the UUWF conviction (which depended on it), affirmed the other convictions, and remanded for resentencing because the record did not show how the void conviction influenced sentencing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a prior AUUW conviction (based on the now-invalid statutory subsection) can serve as a predicate felony for UUWF	The State contended precedent (McFadden/Lewis) permits use of an extant, undisturbed felony conviction as the predicate where it remained on the record at the time of the subsequent offense	Alexander argued the AUUW conviction is void ab initio under Aguilar/Burns and N.G. and therefore cannot be used for any purpose, including as a UUWF predicate	Court held the AUUW conviction was void ab initio under In re N.G.; vacated the AUUW conviction, reversed the UUWF conviction, and remanded for resentencing on remaining counts
Whether the trial court erred by not appointing counsel for a full Krankel hearing on pro se ineffective-assistance claims	State urged the court properly conducted a preliminary inquiry and found the claims meritless or strategic	Alexander argued counsel neglected the case by failing to file suppression motions, motions in limine, and to pursue substitution of judge	Court held the preliminary Krankel inquiry was adequate and its determination that claims did not show possible neglect was not manifestly erroneous; no appointment of new counsel required

Key Cases Cited

In re N.G., 2018 IL 121939 (facially unconstitutional AUUW convictions are void ab initio and cannot be used for any purpose)
People v. McFadden, 2016 IL 117424 (held that an extant undisturbed prior conviction could serve as a predicate under certain records-based facts)
People v. Aguilar, 2013 IL 112116 (invalidated an AUUW provision as unconstitutional)
People v. Burns, 2015 IL 117387 (followed Aguilar reasoning about AUUW)
Lewis v. United States, 445 U.S. 55 (1979) (a prior felony conviction imposes a firearm disability until vacated or affirmative relief is granted)
Montgomery v. Louisiana, 577 U.S. 190 (2016) (convictions based on facially unconstitutional statutes are void and must be given retroactive effect)
People v. Cavette, 2018 IL App (4th) 150910 (applying N.G. to refuse use of unconstitutional AUUW as predicate for enhanced offense)
People v. Bourke, 96 Ill. 2d 327 (where it is unclear whether an improper factor affected sentencing, remand for resentencing is required)