People v. Brown, 188 N.E.3d 339

Police responded to shots-fired call; Brown was seated in a car, pulled out by officers, and a handgun was recovered from his pants; PCP packets were found in the car.
Brown was indicted on 21 counts; the State tried two counts: armed habitual criminal and possession of a controlled substance; the State introduced a stipulation of two qualifying priors (not including a 1996 weapons conviction).
Jury selection proceeded in small panels; after each panel the court held off-the-record sidebars where counsel exercised peremptory and cause challenges; Brown was not present for those off-the-record conferences.
After selection the court placed some juror strikes on the record but did not mention at least one prospective juror (Dennis Eakright) who was dismissed during the off-the-record sidebars.
The jury convicted Brown of being an armed habitual criminal and acquitted him of drug possession; Brown moved for a new trial and reconsideration of sentence, was sentenced to 10 years, and appealed.
Brown also challenged his 1996 conviction for unlawful possession of a weapon (720 ILCS 5/24-1(a)(4) (West 1994)) as void ab initio because that statutory subsection was later held unconstitutional.

Issue	People’s Argument	Brown’s Argument	Held
Whether Brown was denied his right to be present during juror challenges and whether counsel was ineffective for not objecting	Selection was a critical stage but Brown was present for voir dire; absence from off-the-record sidebars did not prejudice him	Absence from the sidebar where juror strikes were made denied his right to be present at a critical stage; counsel was ineffective for failing to object	No prejudicial error shown; ineffective assistance claim fails for lack of prejudice; conviction affirmed
Whether Brown’s 1996 weapon conviction should be vacated as void ab initio because the statute was unconstitutional	Challenge must be raised on direct appeal or by an appropriate collateral petition	Conviction is void because subsection 24-1(a)(4) was held unconstitutional in Moore and thus must be vacated	1996 conviction vacated as void; such challenges may be raised in any court with jurisdiction per In re N.G.

People v. Bean, 137 Ill. 2d 65 (Illinois Supreme Court) (defendant’s presence protects right to an impartial jury; presence is a means, not an end)
Strickland v. Washington, 466 U.S. 668 (U.S. Supreme Court) (two-prong ineffective-assistance standard)
Moore v. Madigan, 702 F.3d 933 (7th Cir.) (invalidated 720 ILCS 5/24-1(a)(4) as unconstitutional)
In re N.G., 2018 IL 121939 (Illinois Supreme Court) (a conviction under a facially invalid statute is void and may be challenged in any court with jurisdiction)
People v. Dunmore, 2013 IL App (1st) 121170 (Illinois Appellate Court) (conviction under a facially unconstitutional statute is void)