2016 IL App (1st) 134006
Ill. App. Ct.2016Background
- Defendant Jermaine Billups was convicted at a bench trial of two counts of delivering more than one gram of heroin based on undercover buys in September 2009 and was sentenced to two concurrent 6-year terms.
- The presentence report listed multiple prior convictions, including three firearm-related convictions (two from 1995 and one from 1998) and several drug and misdemeanor convictions.
- Two 1995 firearm convictions were for violations of statutes later held unconstitutional; the 1998 felony-gun conviction may have been predicated on a 1995 conviction.
- Defense counsel did not object to the presentence report or to the use of the firearm convictions in aggravation at sentencing.
- Billups challenged on appeal only the sentencing use of the unconstitutional firearm convictions, arguing ineffective assistance of counsel for failing to object; he did not seek vacatur of the prior convictions.
- The appellate court affirmed the convictions, found counsel ineffective at sentencing for failing to object to consideration of two unconstitutional prior convictions, vacated the sentence, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Billups) | Held |
|---|---|---|---|
| Whether appellate court has jurisdiction to review reliance on prior unconstitutional convictions at sentencing | Court should not vacate prior convictions; jurisdiction limited (cites Ware) | Appellate court may review whether trial court improperly considered unconstitutional priors in aggravation | Court has jurisdiction to consider whether sentencing improperly relied on unconstitutional priors (can review aggravation use even if cannot vacate priors) |
| Whether counsel provided ineffective assistance by failing to object to use of unconstitutional 1995 gun convictions at sentencing | No plain-error asserted; argues no prejudice | Counsel’s failure was objectively unreasonable given Aguilar; there is reasonable probability of lesser sentence if objection made | Counsel’s performance was objectively unreasonable and prejudiced Billups — ineffective assistance at sentencing |
| Whether the error caused prejudice justifying resentencing (i.e., reasonable probability of a lesser sentence) | Sentence within statutory range; judge referenced "gun crimes" but overall discretion not abused | Judge relied on older convictions including gun crimes; had alternative lesser dispositions available | Prejudice shown: reasonable probability court would have imposed lesser sentence if unconstitutional priors not considered; remand for resentencing |
| Whether appellate court should reduce sentence under Supreme Court Rule 615(b)(4) without remand | Court could reduce only where trial court abused discretion | Requests direct reduction because most of sentence served | Court declines to reduce; no abuse of discretion shown; remand for resentencing per Perruquet |
Key Cases Cited
- People v. Aguilar, 2013 IL 112116 (Illinois Supreme Court) (held challenged firearms statute unconstitutional)
- Moore v. Madigan, 702 F.3d 933 (7th Cir.) (addressed constitutionality of firearms restrictions)
- People v. Steidl, 177 Ill.2d 239 (Illinois Supreme Court) (prejudice standard for sentencing error: reasonable probability of lesser outcome)
- People v. Perruquet, 68 Ill.2d 149 (Illinois Supreme Court) (standards for appellate reduction of sentence vs. remand)
- United States v. Otero, 502 F.3d 331 (3d Cir.) (ineffective assistance analysis; failure to object cannot be strategic when law is settled)
- People v. Siedlinski, 279 Ill. App. 3d 1003 (Ill. App.) (counsel’s failure to take a simple, established step can constitute ineffective assistance)