People v. McFadden

Full title: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ONAFFIA…

Court: Appellate Court of Illinois THIRD DIVISION

Date published: Nov 30, 2012

2012 Ill. App. 102939 (Ill. App. Ct. 2012)

Opinion

No. 1-10-2939

11-30-2012

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ONAFFIA McFADDEN, Defendant-Appellant.

STEELE

APPEAL FROM THE

CIRCUIT COURT OF

COOK COUNTY

No. 08 CR 4951

No. 08 CR 4952

HONORABLE

SHARON SULLIVAN,

JUDGE PRESIDING.

JUSTICE STEELE delivered the judgment of the court, with opinion.

Presiding Justice Salone concurred in the judgment and opinion.

Justice Sterba dissented in part, with opinion.

OPINION

¶ 1 Following a bench trial in the circuit court of Cook County, the trial judge found defendant Onaffia McFadden guilty of three armed robberies while armed with a firearm (720 ILCS 5/18-2(a)(2) (West 2008)) and two counts of unlawful possession or use of a weapon (UUW) by a felon (720 ILCS 5/24-1.1(a) (West 2008)). The trial judge sentenced McFadden to 29 years in prison on each of the armed robbery convictions, including a 15-year enhancement for carrying a firearm pursuant to section 18-2(b) of the Criminal Code of 1961 (Code) (720 ILCS 5/18-2(b) (West 2008)). The trial judge also sentenced McFadden to 10 years in prison on each of the convictions for UUW by a felon. All of the sentences were ordered to be served concurrently. ¶ 2 On appeal, McFadden contends that: (1) the 15-year statutory enhancement of his armed robbery sentences is unconstitutional; (2) his sentence is otherwise excessive; (3) one of his convictions for UUW by a felon violates the "one-act, one-crime" rule; and (4) the mittimus must be corrected to remove an erroneous conviction for aggravated unlawful use of a weapon (AUUW). For the following reasons, we agree with McFadden's first, third and fourth claims, vacate the armed robbery sentences, vacate one of his convictions for UUW by a felon, correct the mittimus, and remand the case for resentencing.

¶ 3 BACKGROUND

¶ 4 The record on appeal discloses the following facts. On March 5, 2008, McFadden was indicted in case number 08 CR 4591 for the armed robbery of Ronald Pitts and Jasmine Stephens, as well as for AUUW and UUW. McFadden was also charged in case number 08 CR 4592 for the armed robbery of Henry Muldrow, as well as AUUW and UUW. In case number 08 CR 3647, McFadden was indicted for the armed robbery of Iris Talley, in addition to AUUW and UUW. ¶ 5 Prior to trial, and over defense counsel's objection, the State successfully moved to join the Muldrow and Talley cases, arguing that they involved "essentially one crime spree." The State later moved for joinder of all three cases, again over the defense's objection, arguing that they were part of the same comprehensive transaction. The trial court granted the motion, on the grounds that the offenses were similar and occurred relatively close in time and location, the same weapon was alleged to have been involved in all three cases, and the proceeds from the crimes were allegedly found at the same time in a vehicle with McFadden. ¶ 6 The case proceeded to a bench trial. Pitts testified that shortly after midnight on January 28, 2008, he and Stephens were standing at a bus stop at 7900 South Princeton Avenue when two African-American males approached them. Pitts stated that one of the men, whom Pitts identified in court as McFadden, held a revolver to his neck and took his telephone, wallet, and money. Pitts further testified that McFadden also took Stephens's telephone. After McFadden left, Pitts flagged down a police car, and he and Stephens reported the offense to the police. ¶ 7 Moreover, Pitts testified that he was contacted by the police the next day and identified McFadden in a lineup, as well as his stolen telephone, wallet and money. At trial, Pitts identified McFadden in a photograph of the lineup. He also identified the gun used during the robbery in a photograph shown as an exhibit at trial. ¶ 8 Stephens did not testify at trial. ¶ 9 Muldrow testified that in the late evening of January 28, 2008, he was looking for his dog in an alley near his home at 6840 South Wabash Avenue when two African-American males approached him. Muldrow stated that one of the men, whom he later identified as McFadden, had his hand in his right pocket. Muldrow further testified that McFadden pulled a gun out of that pocket and put the barrel to Muldrow's chest. According to Muldrow, McFadden asked for money and Muldrow responded that he did not think he had any. Muldrow stated that McFadden searched him and, upon finding four or five dollars, said "I could have shot you for that." In addition to the money found on Muldrow, McFadden also took Muldrow's telephone. After the men left, Muldrow went inside and telephoned the police. ¶ 10 Approximately 15 minutes later, the police telephoned Muldrow and brought him to the police station, where he identified McFadden in a lineup. Muldrow also identified the telephone and currency taken from him. ¶ 11 Chicago police officer Anthony Bruno testified that shortly after midnight on January 29, 2008, he and his partner were in an unmarked police car near 6800 South Wabash Avenue when they were flagged down by Talley. Officer Bruno's partner, Andrew Janik, testified that Talley said that he was robbed. After speaking to Talley, the officers curbed a beige Chevy Cobalt near 319 East Marquette Road. The police commanded the driver and passenger to show their hands. Officer Bruno testified that the driver, Herman Climons, showed his hands, while the passenger, McFadden, leaned forward and made movements toward the glove box. Officer Bruno further testified that he saw the glove box open, revealing a revolver inside. Officer Bruno handcuffed McFadden, while his partner removed Climons from the automobile. ¶ 12 Moreover, Officer Bruno testified that police brought Talley to the scene, whereupon Talley identified McFadden, but not Climons. Officer Bruno found several telephones, a wallet, a videogame and cash in McFadden's pockets. Officer Bruno also retrieved the revolver from the glove box, discovering it was loaded with six live rounds. Talley did not testify at trial. ¶ 13 Chicago police detective Henry Barsch testified that Muldrow and Pitts identified McFadden in lineups (Muldrow failed to identify Climons). Detective Barsch also testified that he and Detective Matthew Weber spoke to McFadden, who indicated that he wanted to speak to an assistant State's Attorney. In stipulated testimony from Detective Weber, he stated that the police asked McFadden whether he wanted to give a written statement. ¶ 14 Assistant State's Attorney (ASA) Maureen Renno testified that, in the presence of the detectives, McFadden gave a written statement inculpating himself in the armed robbery of Pitts and Stephens. ¶ 15 The parties stipulated that McFadden had a prior AUUW conviction. ¶ 16 Following the close of the State's case, the trial judge granted the defense motion for a directed verdict in the Talley case. Following the close of evidence, the State referred to McFadden's "crime spree" and urged the trial judge to find McFadden guilty of the "gun charges in this case" in closing argument. ¶ 17 The trial judge, after reviewing the evidence, found McFadden guilty of the armed robberies of Pitts, Stephens and Muldrow. In the Pitts and Stephens case, the trial judge found McFadden guilty of one count of UUW by a felon. In the Muldrow case, the trial judge found McFadden guilty of one count of UUW by a felon. ¶ 18 McFadden filed a motion for new trial, which the trial court denied on August 20, 2010, before proceeding to a sentencing hearing. After hearing evidence in aggravation and mitigation, the trial judge sentenced McFadden to 29 years in prison on each of the three armed robbery convictions, including a 15-year statutory enhancement for carrying a firearm pursuant to section 18-2(b) of the Code (720 ILCS 5/18-2(b) (West 2008)). The trial judge also sentenced McFadden to 10 years in prison on both of the convictions for UUW by a felon. The trial judge ordered the sentences to run concurrently. ¶ 19 On September 3, 2010, McFadden filed a motion to reconsider his sentence. The trial judge denied the motion on the same day. On September 17, 2010, McFadden filed a timely notice of appeal.

¶ 20 DISCUSSION

¶ 21 On appeal, McFadden contends that: (1) the 15-year statutory enhancement of his armed robbery sentences is unconstitutional; (2) his sentence is otherwise excessive; (3) one of his convictions for UUW by a felon violates the "one-act, one-crime" rule; and (4) the mittimus must be corrected to remove an erroneous conviction for AUUW. We address McFadden's arguments in turn. ¶ 22 I. The Sentence Enhancement for Armed Robbery While Carrying a Firearm ¶ 23 First, McFadden argues that the 15-year statutory enhancement of his armed robbery sentences under section 18-2(b) is unconstitutional. McFadden acknowledges that he did not raise the issue in the trial court. However, a constitutional challenge to a statute may be raised at any time and is subject to de novo review. People v. Robinson, 2011 IL App (1st) 100078, ¶ 12. A statute bears a strong presumption that it is constitutional; McFadden bears the burden of overcoming that presumption and clearly showing that the statute is unconstitutional. People v. Sharpe, 216 Ill. 2d 481, 487 (2005). ¶ 24 However, as McFadden correctly notes, the 15-year firearm sentencing enhancement for armed robbery was declared unconstitutional in People v. Hauschild, 226 Ill. 2d 63 (2007). In Hauschild, our supreme court held that the sentence for armed robbery while armed with a firearm, imposed under the same armed robbery statute as in the instant case, violated the proportionate-penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11), because the penalty for that offense was "more severe than the penalty for the identical offense of armed violence predicated on robbery with a category I or category II weapon." Hauschild, 226 Ill. 2d at 87. ¶ 25 The State counters that the legislature subsequently passed a statutory amendment (Pub. Act 95-688, § 4 (eff. Oct. 23, 2007)), reviving the sentencing enhancement. Although Hauschild was expressly reaffirmed by our supreme court in People v. Clemons, 2012 IL 107821, ¶ 62, that decision did not address the effect, if any, enacting Public Act 95-688 may have on the armed robbery statute. See Clemons, 2012 IL 107821, ¶¶ 51-52. This court has split over the issue of whether the sentencing enhancement has been revived. The First and Fifth Districts have ruled that Public Act 95-688 revived the 15-year enhancement in the armed robbery statute. People v. Malone, 2012 IL App (1st) 110517, ¶ 90; People v. Brown, 2012 IL App (5th) 100452, ¶¶ 15-16; see also People v. Williams, 2012 IL App (1st) 100126, ¶ 55 (dicta). On the other hand, the Third and Fourth Districts have held that the statutory amendment did not revive the sentencing enhancement, which remains unconstitutional and void ab initio under Hauschild. People v. Blair, 2012 IL App (3d) 100743-U, ¶ 5, appeal allowed, No. 114122 (May 30, 2012); People v. Gillespie, 2012 IL App (4th) 110151, ¶ 54. The Blair and Gillespie decisions rely on two earlier supreme court cases, People v. Wagner, 89 Ill. 2d 308 (1982), and People v. Manuel, 94 Ill. 2d 242 (1983), in reaching their conclusion. ¶ 26 The resolution of McFadden's proportionate-penalties argument requires us to consider not only the supreme court decision in Hauschild, but also the case law and related legislation preceding and following that decision. Our review of that case law and legislation leads us to conclude that the question of whether a statute has been revived by the legislature may be determined by examining the statutory scheme relevant to a particular defendant, keeping in mind the basic rule that statutes declared unconstitutional are void ab initio and thus are treated as though they did not exist. See, e.g., Harshman v. DePhillips, 218 Ill. 2d 482, 489 n.1 (2006). Accordingly, we will survey the case law and related legislation and then explain why our survey leads us to conclude that the 15-year firearm sentencing enhancement for armed robbery remains unconstitutional and was not revived by Public Act 95-688.

¶ 27 A. Statutory Revival in Controlled Substances Cases

¶ 28 An early example of the State arguing for statutory revival appears in cases involving the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat.1977, ch. 56 1/2, ¶¶ 1401,1404). In these cases, the Illinois Supreme Court rejected applying a theory of statutory revival. The question of why the supreme court declined to apply the theory is one point of disagreement among the districts and divisions of this court in deciding the current status of the 15-year firearm sentencing enhancement for armed robbery.

¶ 29 1. Wagner

¶ 30 In Wagner, 89 Ill. 2d at 310, the defendant was convicted of delivering a substance represented to be heroin (but which was not heroin) in violation of section 404 of the Act (Ill. Rev. Stat.1977, ch. 56 1/2, ¶ 1404). The supreme court reversed the conviction, finding section 404 of the Act punished the delivery of a noncontrolled substance represented to be a controlled substance as a Class 3 felony, but section 401 of the Act (Ill. Rev. Stat.1977, ch. 56 1/2, ¶ 1401) punished the delivery of an actual controlled substance less severely, as a Class 4 felony, a lesser penalty. Wagner, 89 Ill. 2d at 310. Concluding that section 404 of the Act was "not reasonably designed to remedy the evil which the legislature determined to be a greater threat to the public," the supreme court ruled that section 404 of the Act violated the due process clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 2). Wagner, 89 Ill. 2d at 313. ¶ 31 The Wagner court noted that in Public Act 81-583 (eff. Sept. 14, 1979), the legislature had amended sections 401(e) and (f) of the Act so as to make the delivery of a controlled substance a Class 3 felony, like the delivery of a noncontrolled substance. However, this amendment was inapplicable to the defendant and did not save his conviction because the amendments went into effect after his violation of section 404 of the Act. See Wagner, 89 Ill. 2d at 310.

¶ 32 2. Manuel

¶ 33 In Manuel, the defendants were charged with violating section 404 of the Act (Ill. Rev. Stat.1979, ch. 56 1/2, ¶ 1404), for delivering a noncontrolled substance represented to be a controlled substance. Manuel, 94 Ill. 2d at 243. Following Wagner, the trial court dismissed the charges. Manuel, 94 Ill. 2d at 243. On appeal to the supreme court, the State argued that Wagner was inapplicable because the defendants violated section 404 of the Act after the effective date of Public Act 81-583, which, according to the State, "change[d] the statutory scheme so as to remedy the unconstitutional classification addressed in Wagner." Id. at 244. The State asserted that "Wagner [did] not preclude a prosecution under section 404 'as amended' because that decision [was] applicable only to the statutory scheme in effect at the time of that defendant's offense." Id. ¶ 34 According to the Manuel court, the flaw in the State's argument was that Public Act 81-583 never amended section 404 of the Act, under which the defendants were charged; rather, it amended only sections 401 and 402 of the Act, the sections criminalizing the delivery of a controlled substance. Id. The supreme court explained:

"While we agree that the fortuitous effect of the amendment was to change the statutory scheme so as to remedy the unconstitutional classification addressed in Wagner, we cannot agree that the amendment to sections 401 and 402 can operate to, in essence, revive a different statute which this court subsequently holds unconstitutional.
When a statute is held unconstitutional in its entirety, it is void ab initio [citations], and it is clear that defendants here cannot be prosecuted under an unconstitutional act [citation]. Had the legislature amended section 404, as it now has (Pub. Act 82-968, eff. Sept. 7, 1982), we would then have been in a position to examine anew its validity within what would then be a new statutory scheme. At the time of these offenses, however, section 404 had not been amended, and we therefore hold that Wagner precludes these prosecutions." Id. at 244-45.

¶ 35 B. Statutory Revival in Armed Robbery and Armed Violence Cases ¶ 36 Wagner and Manuel addressed disproportionate penalties imposed by related statutes in the context of the due process clause of the Illinois Constitution. Subsequently, similar claims were brought against the sentencing for certain forms of armed robbery and armed violence under the proportionate-penalties clause of the Illinois Constitution. In People v. Lewis, 175 Ill. 2d 412 (1996), the Illinois Supreme Court would first rule that the sentencing for armed violence predicated on robbery committed with a handgun carried a disproportionate penalty. Id. at 418. The legislature then amended the armed robbery and armed violence statutes in an apparent attempt to resolve the constitutional issue. Pub. Act 91-404, § 5 (eff. Jan. 1, 2000). This court, as in the current case sub judice, reached different conclusions regarding the constitutionality of the sentencing scheme. In Hauschild, the Illinois Supreme Court resolved this split, ruling that the new legislation, which included the 15-year firearm sentencing enhancement for armed robbery, revived the armed violence statute. Hauschild, 226 Ill. 2d at 84. The Hauschild court then determined that, under the amended statutory scheme, the 15-year firearm sentencing enhancement for armed robbery carried a disproportionate penalty. Id. at 86-87.

¶ 37 1. Lewis

¶ 38 In Lewis, the defendant was charged with armed robbery while armed with a dangerous weapon, a handgun, a Class X offense, which was then punishable by an unextended-term sentence ranging from 6 to 30 years in prison. Lewis, 175 Ill. 2d at 418. The defendant also was charged with armed violence predicated on robbery committed with a category I weapon, a handgun. Id. at 414. This form of armed violence was a Class X offense punishable by an unextended-term sentence ranging from 15 to 30 years in prison. Id. at 418. ¶ 39 The Lewis court ruled that these two offenses were "substantively identical," yet "illogically, are punished with disparate penalties" in that armed violence predicated on robbery with a category I weapon carried a greater minimum prison term than armed robbery while armed with a handgun. Id. The Lewis court concluded that "the penalty for armed violence predicated on robbery committed with a category I weapon violates the proportionate penalties clause." Id. Thus, the State's Attorney "had no authority to charge that offense." Id. at 423. Accordingly, the Lewis court affirmed the dismissal of the armed violence count. Id. at 423-24.

¶ 40 2. Public Act 91-404

¶ 41 After Lewis, the legislature enacted Public Act 91-404, the stated purpose of which was "to deter the use of firearms in the commission of a felony offense." Pub. Act 91-404, § 5 (eff. Jan. 1, 2000) (codified at 720 ILCS 5/33A-1(b)(1) (West 2000)). To accomplish this purpose, the legislature increased the penalties for certain felonies, including armed robbery, when the defendant possessed or used a firearm during the commission of the offense. See 720 ILCS 5/18-2(b) (West 2000). Specifically, the legislature provided that a person who commits armed robbery while armed with a firearm shall have 15 years added to the term of imprisonment; a person who commits armed robbery while personally discharging a firearm during the commission of the offense shall have 20 years added to the term of imprisonment; and a person who commits armed robbery while personally discharging a firearm during the commission of the offense that proximately causes great bodily harm, permanent disability, permanent disfigurement, or death to another person shall have 25 years or up to a term of natural life added to the term of imprisonment. See 720 ILCS 5/18-2(b) (West 2000). These additional penalties are commonly known as the "15/20/25-to-life" sentencing provisions. Hauschild, 226 Ill. 2d at 72. ¶ 42 Additionally, Public Act 91-404 also amended the armed violence statute, which previously provided that, "[a] person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law." 720 ILCS 5/33A-2 (West 1998). Public Act 91-404 created subsections (a), (b), and (c) of the armed violence statute. Subsection (a) provided that a person commits armed violence when, while armed with a dangerous weapon, he commits certain felonies. See 720 ILCS 5/33A-2(a) (West 2000). Subsection (b) provided that a person commits armed violence when he personally discharges a firearm that is a category I or category II weapon while committing certain felonies. See 720 ILCS 5/33A-2(b) (West 2000). Subsection (c) provided that "[a] person commits armed violence when he personally discharges a firearm that is a Category I or Category II weapon that proximately causes great bodily harm, permanent disability, or permanent disfigurement or death to another person" while committing certain felonies. See 720 ILCS 5/33A-2(c) (West 2000).

¶ 43 3. Hauschild and Harvey

¶ 44 The effect of Public Act 91-404 can be seen in the conflicting decisions this court issued after its enactment. For example, in People v. Hauschild, 364 Ill. App. 3d 202 (2006), rev'd 226 Ill. 2d 63 (2007), the defendant claimed that the penalty for a violation of subsection (a)(2) of the armed robbery statute (720 ILCS 5/18-2(a)(2) (West 2000)) was disproportionate to the penalty for armed violence predicated on robbery with a category I or II weapon (720 ILCS 5/33A-1(c), 33A-2(a) (West 2000)). Hauschild, 364 Ill. App. 3d at 213-14. The appellate court found that because the Lewis court determined that the penalty for armed violence predicated on robbery was unconstitutionally disproportionate to the penalty for armed robbery, the offense of armed violence predicated on robbery ceased to exist after Lewis; thus, the offense could not be used as a basis to conduct a proportionate-penalties analysis. Consequently, the court rejected the defendant's argument. Id. at 216-17. ¶ 45 Conversely, in People v. Harvey, 366 Ill. App. 3d 119 (2006), the defendant was convicted of the offense of armed robbery/discharging a firearm and causing great bodily harm (720 ILCS 5/18-2(a)(4) (West 2000)) and sentenced to 40 years' imprisonment. Harvey, 366 Ill. App. 3d at 121-22. On appeal, the defendant argued that, under the identical-elements test recently prescribed by People v. Sharpe, 216 Ill. 2d 481, 519 (2005), his 40-year sentence violated the proportionate-penalties clause because the sentence of 31 years' to life imprisonment one could receive for armed robbery/discharging a firearm and causing great bodily harm (720 ILCS 5/18-2(b) (West 2000); 730 ILCS 5/5-8-1(a)(3) (West 2000)) was significantly greater than the 25 to 40 years' imprisonment one could receive for the equivalent offense of armed violence predicated on robbery with a category I weapon (720 ILCS 5/33A-2(c), 18-1(a), 33A-3(b-10) (West 2000)). Harvey, 366 Ill. App. 3d at 122-23. ¶ 46 The State argued, much as it did in Hauschild, that the offenses at issue could not be compared because Lewis had eliminated the offense of armed violence predicated on robbery by holding that the penalty for that offense violated the proportionate-penalties clause. Id. at 123. The Harvey court disagreed with State's argument, noting that the supreme court decided Lewis before the enactment of Public Act 91-404. Id. at 123 n. 2. The legislation amended both the armed robbery statute and the armed violence statute, creating the offense of armed violence predicated on robbery. Id. at 125-26. Consequently, the Harvey court ruled that: "Public Act 91- 404 revived the offense of armed violence predicated on robbery when it amended the sentence for armed robbery/discharging a firearm and causing great bodily harm, making it greater than the punishment for armed violence with a category I or category II weapon predicated on robbery." Id. at 127. Armed robbery/discharging a firearm and causing great bodily harm was now a Class X felony with an enhancement of 25 years' to life imprisonment (720 ILCS 5/18-2(a)(4), (b) (West 2000); 730 ILCS 5/5-8-1(a)(3) (West 2000)), whereas armed violence predicated on robbery with a category I or category II weapon was a Class X felony punishable by 25 to 40 years' imprisonment (720 ILCS 5/33A-2(c), 33A-3(b-10) (West 2000)). Harvey, 366 Ill. App. 3d at 127. Because Public Act 91-404 had amended the statutory penalties for both offenses in this manner, "the holding in Lewis [could] no longer be used as a basis to preclude comparison of armed robbery/discharging a firearm and causing great bodily harm to armed violence with a category I or category II weapon for purposes of proportionality review." Id. Thus, the offense of armed violence with a category I or category II weapon existed for purposes of proportionality review. Harvey, 366 Ill. App. 3d at 127. ¶ 47 In the alternative, the State argued that even if the offense of armed violence with a category I or category II weapon existed, the two offenses at issue failed the identical-elements test, because Public Act 91-404 also amended the armed violence statute so as to exclude armed robbery as a predicate offense for armed violence (see 720 ILCS 5/33A-2(c) (West 2000)). Harvey, 366 Ill. App. 3d at 127-28. Nonetheless, the Harvey court noted that the armed violence statute still permitted robbery to serve as a predicate offense. Id. at 128. Thus, the offense of armed robbery/ discharging a firearm and causing great bodily harm (720 ILCS 5/18-2(a)(4) (West 2000)) and armed violence predicated on robbery with a category I or category II weapon (720 ILCS 5/33A-2(c), 33A-3(b-10) (West 2000)) had identical elements, even after Public Act 91-404 was enacted. Harvey, 366 Ill. App. 3d at 128. ¶ 48 While the two offenses had identical elements, one offense carried a greater penalty. The mandatory enhancement of 25 years increased the penalty for armed robbery/ discharging a firearm and causing great bodily harm to 31 years' to life imprisonment (720 ILCS 5/18-2(a)(4), (b) (West 2000)), which exceeded the penalty of 25 to 40 years' imprisonment for armed violence predicated on robbery with a category I or category II weapon (720 ILCS 5/33A-3(b-10) (West 2000)). Harvey, 366 Ill. App. 3d at 130. Therefore, the Harvey court held that the 25-year enhancement for armed robbery/discharging a firearm and causing great bodily harm violated the proportionate-penalties clause. Id.

¶ 49 4. The Illinois Supreme Court Decision in Hauschild

¶ 50 The Illinois Supreme Court granted the petition for leave to appeal in Hauschild and reversed the decision of this court, based on the same reasoning this court employed in Harvey. The Illinois Supreme Court held that the legislature's enactment of Public Act 91-404 subsequent to Lewis had " 'revived' the offense of armed violence predicated on robbery when it amended the sentence for certain armed robberies to add the 15/20/25-to-life provisions, creating more severe penalties for those offenses than for armed violence predicated on robbery." Hauschild, 226 Ill. 2d at 84 (citing with approval Harvey, 366 Ill. App. 3d at 127). The supreme court held that "because the penalty for armed robbery while armed with a firearm [citation] is now greater than the penalty for armed violence predicated on robbery with a category I or category II weapon [citation], the holding in Lewis cannot be used as a basis to preclude comparison of the 'revived' armed violence offense to armed robbery while armed with a firearm for purposes of proportionality review." Id. at 84-85 (citing with approval Harvey, 366 Ill. App. 3d at 127). ¶ 51 The supreme court proceeded to compare the two offenses, "as they exist today, to determine whether these two offenses have identical elements but disparate sentences." Id. at 85. The court found they had identical elements. Id. at 86. The court compared the penalties for the two offenses and noted that armed robbery while armed with a firearm was a Class X felony carrying a 6- to 30-year term of imprisonment, "with a mandatory 'add-on penalty' of 15 years, making the possible sentence for armed robbery while armed with a firearm 21 to 45 years (720 ILCS 5/18-2(a)(2), (b) (West 2000))." Id. In contrast, armed violence predicated on robbery with a category I or category II weapon was "a Class X felony punishable by a sentence ranging from 15 to 30 years (720 ILCS 5/33A-3(a) (West 2000))." Id. Our supreme court concluded that the "defendant's sentence for armed robbery while armed with a firearm [citation] violates the proportionate penalties clause because the penalty for that offense is more severe than the penalty for the identical offense of armed violence predicated on robbery with a category I or category II weapon." Id. at 86-87. ¶ 52 As this court would later characterize the legislative response to Lewis, as analyzed in Hauschild:

"In a word, Public Act 91-404 substituted one proportionate-penalties problem for another. Before the enactment of Public Act 91-404, the penalty for armed violence predicated on robbery with a category I weapon [citation] violated the
proportionate-penalties clause because the penalty for that offense was more severe than the penalty for the identical offense of armed robbery while armed with a firearm [citation]. [Citation.] Instead of eliminating the disparity, Public Act 91-404 switched it around. After the enactment of Public Act 91-404, armed robbery while armed with a firearm [citation] now carried a steeper penalty than armed violence predicated on robbery with a category I or category II weapon [citation], thereby violating the proportionate-penalties clause again. [Citation.]" Gillespie, 2012 IL App (4th) 110151, ¶ 45 (citing Hauschild, 226 Ill. 2d at 86-87).

¶ 53 C. Legislation and Case Law After Hauschild

¶ 54 After our supreme court's decision in Hauschild, as after the decision in Lewis, the legislature acted in an attempt to correct the constitutional problem arising from the interaction of the sentencing schemes for particular forms of armed robbery and armed violence. However, the legislature amended the armed violence statute, but not the armed robbery statute. This court has since split over the question of whether this attempt was effective to revive the 15-year firearm sentencing enhancement for armed robbery struck down in Hauschild.

¶ 55 1. Public Act 95-688

¶ 56 Subsequent to Hauschild, the legislature enacted Public Act 95-688 (Pub. Act 95-688, § 4 (eff. Oct. 23, 2007)), which eliminated the offense of armed violence predicated on robbery with a category I or category II weapon. As amended by Public Act 95-688, section 33A-2(a) of the Code (720 ILCS 5/33A-2(a) (West 2008)) provides:

"A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law, except first degree murder, attempted first degree murder, intentional homicide of an unborn child, second degree murder, involuntary manslaughter, reckless homicide, predatory criminal sexual assault of a child, aggravated battery of a child, home invasion, or any offense that makes the possession or use of a dangerous weapon either an element of the base offense, an aggravated or enhanced version of the offense, or a mandatory sentencing factor that increases the sentencing range." (Emphasis added.) 720 ILCS 5/33A-2(a) (West 2008).

¶ 57 2. Brown

¶ 58 In Brown, the defendant was convicted of armed robbery with a firearm and sentenced to 22 years' imprisonment, including the 15-year sentence enhancement pursuant to section 18-2(b) of the Code. Brown, 2012 IL App (5th) 100452, ¶ 1. On appeal, defendant argued that the 15-year sentence enhancement was invalid under Hauschild. Id. ¶¶ 6, 8. ¶ 59 The Fifth District disagreed, ruling that Public Act 95-688, amending the armed-violence statute, made it "impossible to generate an armed-violence conviction predicated on robbery[,] even though the amendment did not alter the 15-year sentence enhancement for armed robbery committed with a firearm." Brown, 2012 IL App (5th) 100452, ¶ 12. The Brown court noted that Public Act 95-688 was enacted for the express purpose of " 'avoid[ing] any further disproportionate penalty challenges to the statute that might arise.' " Brown, 2012 IL App (5th) 100452, ¶ 13 (quoting 95th Ill. Gen. Assem., Senate Proceedings, July 26, 2007, at 8-9 (statements of Senator Cullerton)). As amended by Public Act 95-688, section 33A-2(a) of the Code (720 ILCS 5/33A-2(a) (West 2008)) excludes as a predicate offense for armed violence " 'any offense that makes the possession or use of a dangerous weapon either an element of the base offense, an aggravated or enhanced version of the offense, or a mandatory sentencing factor that increases the sentencing range.' " (Emphasis in original.) Brown, 2012 IL App (5th) 100452, ¶ 9 (quoting 720 ILCS 5/33A-2(a) (West 2008)). Thus, Public Act 95-688 eliminated the offense of armed violence predicated on robbery, as "the possession or use of a dangerous weapon" is an element of the offense of armed robbery (720 ILCS 5/18-2(a) (West 2008)). Hence, armed robbery and armed violence no longer could have identical elements for purposes of the proportionate-penalties clause. Brown, 2012 IL App (5th) 100452, ¶ 16. ¶ 60 Nevertheless, the defendant in Brown argued that despite the amendment of the armed-violence statute by Public Act 95-688. The Hauschild court held that the 15-year enhancement in a different statute, the armed robbery statute (720 ILCS 5/18-2(b) (West 2008)), under which he was sentenced, violated the proportionate-penalties clause. The defendant asserted that the 15-year enhancement was therefore void ab initio. Brown, 2012 IL App (5th) 100452, ¶ 10. The Brown court rejected the defendant's argument, ruling that Public Act 95-688 "revived" the 15-year enhancement in the armed robbery statute, much as the armed violence statute was deemed revived in Hauschild. Brown, 2012 IL App (5th) 100452, ¶¶ 15-16. Thus, the Fifth District concluded that "the trial court correctly applied the sentence enhancement against the defendant at sentencing." Brown, 2012 IL App (5th) 100452, ¶ 17.

¶ 61 3. Williams

¶ 62 In Williams, the First District, Second Division, cited Brown with approval. Williams, 2012 IL App (1st) 100126, ¶ 55. However, the Williams court ruled that, "notwithstanding the 2007 amendment's revival of the 15-year firearm sentencing enhancements for the subject offenses," the defendant's sentence for armed robbery must be vacated and the cause remanded for resentencing, because the crimes at issue were committed after Hauschild was decided and prior to the enactment of Public Act 95-688. Williams, 2012 IL App (1st) 100126, ¶ 56. The discussion of Brown in Williams does not appear to have been briefed or argued by the parties, and was unnecessary to the disposition of the case. Accordingly, the discussion should be considered obiter dicta. People v. Williams, 204 Ill. 2d 191, 206 (2003).

¶ 63 4. Gillespie

¶ 64 In Gillespie, the Fourth District disagreed with Brown that Public Act 95-688 resolved the proportionate-penalties issue. Gillespie, 2012 IL App (4th) 110151, ¶ 54. The Fourth District reasoned that Public Act 95-688 was not truly comparable to Public Act 91-404, because Public Act 91-404 amended both the armed robbery statute and the armed violence statute. Yet, Public Act 95-688 amended the armed violence statute while leaving the armed robbery statute unchanged. Gillespie, 2012 IL App (4th) 110151, ¶ 52. Accordingly, the Fourth District ruled that the 15-year enhancement was not revived, based on our supreme court's decision in Manuel. Gillespie, 2012 IL App (4th) 110151, ¶ 52. The Fourth District concluded that the 15-year enhancement in section 18-2(b) of the Code, added by Public Act 91-404, was not part of the "statutory scheme," but remained void ab initio, as though it never existed. Gillespie, 2012 IL App (4th) 110151, ¶¶ 52-53. Accordingly, the sentences in Gillespie were vacated and the case was remanded for resentencing. Gillespie, 2012 IL App (4th) 110151, ¶ 56.

¶ 65 5. Malone

¶ 66 Most recently, the First Division of the First District declined to follow Gillespie, concluding that the Fourth District's reliance on Manuel in support of its holding was misplaced. Malone, 2012 IL App (1st) 110517, ¶ 88. Specifically, the Malone court noted that in Manuel, the supreme court stated that it "cannot agree that the amendment to sections 401 and 402 can operate to, in essence, revive a different statute [section 404] which this court subsequently holds unconstitutional." (Emphasis in original.) Id. (quoting Manuel, 94 Ill. 2d at 244). "In other words, the legislature could not have intended to revive section 404 when it amended sections 401 and 402, as section 404 had not yet been declared unconstitutional at the time the amendment was enacted." Malone, 2012 IL App (1st) 110517, ¶ 88. Thus, the Malone court agreed with Brown, concluding that, just as the enactment of Public Act 91-404 in response to Lewis had revived the offense of armed violence predicated on robbery, so had the enactment of Public Act 95-688, in response to Hauschild, revived the 15-year sentencing enhancement for armed robbery with a firearm. Malone, 2012 IL App (1st) 110517, ¶ 90. Accordingly, the Malone court ruled that the trial court did not err in applying the 15-year sentencing enhancement to the defendant. Id.

¶ 67 D. The "Revival" of Statutes

¶ 68 We now consider whether Public Act 95-688 "revived" the 15-year sentencing enhancement for armed robbery with a firearm with this case law and legislation in mind. We agree with the Gillespie decision because the case law shows that the notion of statutory revival appearing in Manuel, Harvey, and Hauschild does not abrogate the long-standing rule that unconstitutional statutes are to be considered void ab initio. The Malone court's disagreement with the Gillespie court is based on two major points. Ultimately, we find neither point persuasive. ¶ 69 First, Malone concludes that the amendments at issue in Manuel are distinguishable from the amendment under consideration here because sections 401 and 402 of the Act were amended before section 404 of the Act was struck down as unconstitutional in Wagner. Malone, 2012 IL App (1st) 110517, ¶ 89. However, even if section 404 of the Act was declared unconstitutional "subsequently" (Manuel, 94 Ill. 2d at 244), the chronology may not carry the legal significance the Malone decision imputes to it. After all, in the next paragraph of Manuel, our supreme court stated:

"When a statute is held unconstitutional in its entirety, it is void ab initio [citations], and it is clear that defendants here cannot be prosecuted under an unconstitutional act [citation]. Had the legislature amended section 404, as it now has (Pub. Act 82-968, eff. Sept. 7, 1982), we would then have been in a position to examine anew its validity within what would then be a new statutory scheme. At the time of these offenses, however, section 404 had not been amended, and we therefore hold that Wagner precludes these prosecutions." (Emphasis added.) Manuel, 94 Ill. 2d at 244-45.

Thus, it appears that the Manuel court was not averse to considering the changes in the statutory scheme created by the amendment of sections 401 and 402 of the Act. However, the supreme court could not consider the amendments in Wagner because they were not in effect at the time of the offenses in that case. See Wagner, 89 Ill. 2d at 310. The supreme court could not consider the effect of amendments in Manuel, because section 404 of the Act did not exist after Wagner. Manuel, 94 Ill. 2d at 244-45. ¶ 70 Second, even assuming arguendo that the timing of the statutory amendments rendered Manuel distinguishable, we would still require authority for the proposition that a statute held unconstitutional (and thus, void ab initio) may be revived by amending a different statute. Malone and Brown conclude that Hauschild is such an authority. Malone, 2012 IL App (1st) 110517, ¶ 90; Brown, 2012 IL App (5th) 100452, ¶¶ 15-16. However, we conclude that the Malone and Brown courts misread Hauschild. ¶ 71 The relevant text in Hauschild states:

"Contrary to the appellate court's conclusion, we hold that the comparison of armed robbery while armed with a firearm and armed violence predicated on robbery is permissible. While Lewis, 175 Ill. 2d at 423, found the sentencing scheme for armed violence predicated on armed robbery to be unconstitutional as penalizing the same conduct more severely than did the armed robbery statute, and therefore unavailable to prosecutors, that prohibition was eradicated by the legislature's enactment of Public Act 91-404. In other words, Public Act 91-404 'revived' the offense of armed violence predicated on robbery when it amended the sentence for certain armed robberies to add the 15/20/25-to-life provisions, creating more severe penalties for those offenses than for armed violence predicated on robbery. See Harvey, 366 Ill. App. 3d at 127. Therefore,
we agree with the appellate court in Harvey that, because the penalty for armed robbery while armed with a firearm (720 ILCS 5/18-2(a)(2), (b) (West 2000)) is now greater than the penalty for armed violence predicated on robbery with a category I or category II weapon (720 ILCS 5/33A-2(a), 33A-3(a) (West 2000)), the holding in Lewis cannot be used as a basis to preclude comparison of the 'revived' armed violence offense to armed robbery while armed with a firearm for purposes of proportionality review. See Harvey, 366 Ill. App. 3d at 127." Hauschild, 226 Ill. 2d at 84-85.

Malone and Brown focus on the sentence mentioning "revival," but neither notes that Hauschild adopts the reasoning of this court in Harvey. See Malone, 2012 IL App (1st) 110517, ¶ 90; Brown, 2012 IL App (5th) 100452, ¶ 15. Indeed, neither Malone nor Brown cites Harvey, although Gillespie discusses the case at length. Gillespie, 2012 IL App (4th) 110151, ¶¶ 34-41. ¶ 72 In Harvey, this court clearly stated that it was distinguishing Lewis, the appellate decision in Hauschild, and People v. Cummings, 351 Ill. App. 3d 343 (2004), because those decisions were based on prior versions of both the armed robbery and armed violence statutes. Harvey, 366 Ill. App. 3d at 125. The Harvey court then detailed the changes made to both the armed robbery and armed violence statutes. Harvey, 366 Ill. App. 3d at 125-27. After making the statements later quoted nearly verbatim by our supreme court in Hauschild, the Harvey court reiterated that the prior decisions of this court in Hauschild and Cummings employed faulty reasoning because both decisions "failed to consider the substantial changes to both the armed robbery and armed violence statutes as a result of the enactment of Public Act 91-404." (Emphasis added.) Harvey, 366 Ill. App. 3d at 127. ¶ 73 Indeed, both Hauschild and Harvey perform a proportionate-penalties clause analysis using the armed robbery and armed violence statues as amended by Public Act 91-404. See Hauschild, 226 Ill. 2d at 84-85; Harvey, 366 Ill. App. 3d at 127. Hauschild expressly states that "we must now compare section 18-2(a)(2) of the armed robbery statute with section 33A-2(a) of the armed violence statute, as they exist today, to determine whether these two offenses have identical elements but disparate sentences." (Emphasis added.) Hauschild, 226 Ill. 2d at 85. Hauschild does not hold that the amendment of the armed robbery statute suffices, by itself, to revive the armed violence statute because Public Act 91-404 undeniably amended both statutes and Hauschild undeniably analyzed the amended statutory scheme. See id. ¶ 74 We further note that Brown appears to suggest there is merit to the argument that the supreme court in Hauschild did not rule that the 15-year sentence enhancement for armed robbery was void ab initio. See Brown, 2012 IL App (5th) 100452, ¶ 15. However, when addressing the proper sentencing on remand, the Hauschild court cited cases, including People v. Gersch, 135 Ill. 2d 384, 390 (1990), for the proposition that the appropriate remedy is to remand for resentencing in accordance with the statute as it existed prior to the amendment. Hauschild, 226 Ill. 2d at 88-89. The Gersch holding is based on the principle that unconstitutional legislation is void ab initio; indeed, Gersch relies in part on Manuel. Gersch, 135 Ill. 2d at 390. ¶ 75 In short, we conclude that Hauschild does not abrogate the rule that unconstitutional legislation is void ab initio;rather, Hauschild applies that rule. Hauschild, 226 Ill. 2d at 88-89. In this case, unlike Public Act 91-404, Public Act 95-688 amended the armed violence statute while leaving the armed robbery statute unchanged; thus, the 15-year enhancement is not revived, but remains void ab initio, as though it never existed. Gillespie, 2012 IL App (4th) 110151, ¶ 53. Public Act 95-688, however intended, does not change the legal effect of the decision in Hauschild. Accordingly, McFadden's sentences for armed robbery are vacated and the case is remanded for resentencing.

¶ 76 II. Excessive Sentence

¶ 77 McFadden next argues that his 29-year sentences for armed robbery are excessive. Given our conclusion regarding the 15-year enhancement and that McFadden was convicted of more than one offense, Hauschild dictates that on remand, the trial court should reevaluate the length of McFadden's sentence for each offense, while considering the sentence in its totality under the statute as it existed before the amendment. See Hauschild, 226 Ill. 2d at 89. The procedure dictated by Hauschild thus moots our further consideration of McFadden's sentence in this appeal.

¶ 78 III. The "One-Act, One-Crime" Rule

¶ 79 Further, McFadden argues that his two convictions for UUW by felon must be vacated under the "one-act, one-crime" rule set forth in People v. King, 66 Ill. 2d 551, 566 (1977). McFadden concedes that he forfeited review of the issue by failing to object at trial and failing to include the issue in a posttrial motion. People v. Enoch, 122 Ill. 2d 176, 187 (1988). However, he requests that we review the matter for plain error. The plain-error rule is a limited exception to the forfeiture rule and may be invoked only if the evidence is closely balanced or if the alleged error is so fundamental that it may have deprived the defendant of a fair trial or sentencing hearing. People v. Herrett, 137 Ill. 2d 195, 209-10 (1990). "[F]orfeited one-act, one-crime arguments are properly reviewed under the second prong of the plain-error rule because they implicate the integrity of the judicial process." People v. Nunez, 236 Ill. 2d 488, 493 (2010) (citing People v. Artis, 232 Ill. 2d 156, 167-68 (2009)). ¶ 80 The one-act, one-crime doctrine 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). Thus, the first step is to determine whether the defendant's conduct consisted of a single physical act or separate acts. People v. Harvey, 211 Ill. 2d 368, 389 (2004). "Multiple convictions are improper if they are based on precisely the same physical act." People v. Rodriguez, 169 Ill. 2d 183, 186 (1996). Our supreme court has defined an "act" as " 'any overt or outward manifestation which will support a different offense.' " Rodriguez, 169 Ill. 2d at 188 (quoting King, 66 Ill. 2d at 566). We consider this issue de novo. People v. Peacock, 359 Ill. App. 3d 326, 331 (2005). ¶ 81 Both McFadden and the State rely on People v. Crespo, 203 Ill. 2d 335, 345 (2001). In Crespo, the defendant was convicted of the first degree murder of one victim and one count each of armed violence and aggravated battery in the stabbing of a second victim. Id. at 337. On appeal to the supreme court, the defendant argued that his conviction for aggravated battery should be vacated because it stemmed from the same physical act as the armed violence charge. Id. Although the defendant had stabbed the second victim three times, and each stabbing was a separate and distinct act, the State did not charge defendant for the three separate stabbings in the indictment. Id. at 340-42. Instead, the different counts in the indictment charged the defendant under different theories of criminal culpability for the same course of conduct, namely, the three stabbings. Id. at 342. Moreover, the State's theory at trial, as shown by its argument to the jury, showed that the State intended to portray the defendant's conduct as a single attack. Id. at 343-44. The Crespo court emphasized that the State could have charged the crime as multiple acts, and could have argued the case to the jury that way, but chose not to do so; the court would not allow the State to change its theory of the case on appeal. Id. at 344. Accordingly, our supreme court held that where a defendant commits multiple criminal acts, but the indictment only charges the defendant for a single course of conduct, the trial court cannot then convict the defendant for separate criminal acts. This is true even if multiple theories of culpability are presented. Id. at 345. ¶ 82 Here, McFadden argues that the State treated the events at issue as one "crime spree" and as parts of the same comprehensive transaction. The State acknowledges that the cases against McFadden were consolidated on the grounds that the offenses were similar and occurred relatively close in time and location, the same weapon was alleged to have been involved in all three cases, and the proceeds from the crimes were allegedly found at the same time in a vehicle with McFadden. Nevertheless, the State notes that the UUW by a felon charges were brought against McFadden in separate indictments and the robberies and were addressed and argued as distinct events at trial. The State also notes that, "[i]n deciding whether defendant's conduct in a particular instance constituted separate acts or merely formed distinct parts of a single physical act, reviewing courts have considered the identity of the victim and location, the similarity of the acts and lack of a substantial time interval or intervening act between them, and prosecutorial intent as reflected in the wording of the charging instrument." People v. Cobern, 236 Ill. App. 3d 300, 303 (1992) (citing People v. Baity, 125 Ill. App. 3d 50, 52-53 (1984)). ¶ 83 McFadden was twice convicted of violating section 24-1.1(a) of the Code (720 ILCS 5/24-1.1(a) (West 2008)), which makes it "unlawful for a person to knowingly possess on or about his person *** any firearm *** if the person has been convicted of a felony under the laws of this State or any other jurisdiction." Although this section of the Code is titled "Unlawful Use or Possession of Weapons by Felons or Persons in the Custody of the Department of Corrections Facilities," the title does not supercede the express language of the statute. See Alvarez v. Pappas, 229 Ill. 2d 217, 230-31 (2008). The unambiguous language of section 24-1.1(a) of the Code plainly makes possession, not use, of a firearm the actus reus of the offense. Significantly, the possession criminalized is not tied to the use of the weapon in the commission of any offense. ¶ 84 Possession offenses have always posed special problems in determining violations of the one-act, one-crime rule. People v. McCarter, 339 Ill. App. 3d 876, 881 (2003). The rule of lenity provides that ambiguities in criminal statutes should be resolved in a defendant's favor, but not "stretched so far as to defeat the legislature's intent." People v. Fields, 383 Ill. App. 3d 920, 922 (2008). In construing a statute, we presume that the legislature did not intend absurd, inconvenient, or unjust results. People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 280 (2003). ¶ 85 In this case, unlike the easily separable acts at issue in Crespo, allowing seemingly continuous possession as the basis of more than one conviction theoretically would permit a potentially infinite number of convictions, as the defendant possessed the firearm from hour to hour, minute to minute, nanosecond to nanosecond. We presume the legislature did not intend that result. While the evidence here shows discrete armed robberies, there is no evidence that McFadden's act of possession of the firearm was anything other than singular and continuous throughout the time at issue. Thus, we conclude that McFadden's convictions for UUW by a felon are based on the same physical act. Accordingly, one of McFadden's convictions for UUW by a felon must be vacated. ¶ 86 Finally, the State concedes that the mittimus in case number 08 CR 4592 erroneously reflects that McFadden was convicted of AUUW, rather than UUW by a felon. Therefore, we not only vacate McFadden's conviction for UUW by a felon in case number 08 CR 4592, but we also correct the mittimus in that case to remove the erroneous conviction for AUUW pursuant to Illinois Supreme Court Rule 615. See, e.g., People v. Hill, 408 Ill. App. 3d 23, 31 (2011).

¶ 87 CONCLUSION

¶ 88 In short, we conclude that the 15-year statutory enhancement of McFadden's sentence under section 18-2(b) of the Code is unconstitutional and remains void ab initio under Hauschild. Accordingly, we vacate McFadden's sentences for armed robbery and remand the case to the circuit court for resentencing as though the statutory enhancement never existed. We also conclude that McFadden's conviction for UUW by a felon pursuant to section 24-1.1(a) of the Code in case number 08 CR 4592 is vacated under the one-act, one crime rule. Lastly, we correct the mittimus in case number 08 CR 4592 to remove McFadden's erroneous conviction for AUUW. ¶ 89 Vacated in part and remanded with directions; mittimus corrected. ¶ 90 JUSTICE STERBA, dissenting in part and concurring in part. ¶ 91 I cannot join in today's decision because I do not agree with the majority that the 15-year firearm sentencing enhancement is unconstitutional or that defendant's two convictions for UUW by a felon violate the one-act, one-crime rule. Accordingly, I would reach the issue of whether defendant's sentence was excessive and affirm defendant's convictions. I concur in part because I agree with the majority that the mittimus should be corrected to remove defendant's erroneous conviction for AUUW. ¶ 92 Turning first to the 15-year sentencing enhancement, I am persuaded by the reasoning of the First and Fifth Districts in holding that the statutory enhancement is no longer unconstitutional because it was revived by Public Act 95-688. Malone, 2012 IL App (1st) 110517; Brown, 2012 IL App (5th) 100452. I find Malone especially compelling. There, the court distinguished Manuel, which the Third and Fourth Districts relied on heavily in holding that the 15-year enhancement remains unconstitutional. Malone, 2012 IL App (1st) 110517, ¶ 88; see Gillespie, 2012 IL App (4th) 110151, ¶ 52, Blair, 2012 IL App (3d) 100743-U, ¶¶ 6-7, 12. Specifically, the Malone court pointed out that the reason the supreme court in Manuel held that amendments to sections 401 and 402 of the Illinois Controlled Substances Act could not "revive" the unconstitutional section 404 was because those amendments were enacted several years before the court declared section 404 unconstitutional. Malone, 2012 IL App (1st) 110517 at ¶ 88 (citing Manuel, 94 Ill. 2d at 244). ¶ 93 Contrary to the majority, I believe this chronology is legally significant. In Manuel, the supreme court was confronted with a situation factually inapposite to the one with which we are faced today, in that the amendments purporting to revive section 404 were enacted before section 404 was held unconstitutional. Manuel, 94 Ill. 2d at 244. Here, in contrast, the legislative history of the amendment to the armed violence statute reveals that it was specifically intended to cure the constitutional deficiencies of the armed robbery statute. See Brown, 2012 IL App (5th) 100452, ¶ 13 (quoting Senator Cullerton's statements that the amendment to the armed violence statute " 'avoid[s] any further disproportionate penalty challenges to the statute that may arise' " (quoting 95th Ill. Gen. Assem., Senate Proceedings, July 27, 2007, at 8-9 (statements of Senator Cullerton)); see also Malone, 2012 IL App (1st) 110517, ¶ 77. In light of these differences between Manuel and the case sub judice, I disagree with the majority that the holding in Manuel operates as a general bar to statutory revival. ¶ 94 I also disagree with the majority's reading of Hauschild. The supreme court in Hauschild stated that "Public Act 91-404 'revived' the offense of armed violence predicated on robbery when it amended the sentence for certain armed robberies to add the 15/20/25-to-life provisions, creating more severe penalties for those offenses than for armed violence predicated on robbery." Hauschild, 226 Ill. 2d at 84. (Emphasis added.) For this proposition, the court cited Harvey, which addressed the changes to the statutory scheme wrought by Public Act 91-404. Harvey, 366 Ill. App. 3d at 125-27. In doing so, the Harvey court noted that Public Act 91-404 amended both the armed violence and the armed robbery statutes. Id. at 127. Because Public Act 95-688 amended only the armed violence statute, the majority distinguishes Harvey, and by extension, Hauschild. ¶ 95 However, the supreme court in Hauschild made clear that it was Public Act 91-404's amendment to the armed robbery statute that revived certain armed violence offenses. Hauschild, 226 Ill. 2d at 84. In other words, the court did not rely on the Act's amendment of both statutes in concluding that armed violence predicated on robbery had been revived. As such, I agree with the Malone court that Hauschild provides authority for holding that an amendment to one section of a statute may operate to revive a separate section previously held unconstitutional. See Malone, 2012 IL App (1st) 110517, ¶ 90. Applying this principle to the instant case, I would find the 15-year sentencing enhancement constitutional and reach the issue of whether defendant's sentence was excessive. ¶ 96 Next, I disagree with the majority's holding that defendant's two convictions for UUW by a felon violate the one-act, one-crime rule. The majority is concerned that a contrary holding would allow a defendant to be convicted of an "infinite number" of possession offenses, as the State could theoretically bring a charge for every second or nanosecond a defendant possessed a firearm. Supra ¶ 85. My concern is that the majority's position, taken to its logical extreme, would prohibit multiple convictions for possession that occurred over the span of several days or even weeks. For example, suppose an individual illegally possesses a handgun in Chicago on December 1, but is not apprehended until December 7, when he possesses the same handgun in Springfield. The majority's holding would allow only one conviction for possession so long as there was no evidence the possession was "anything other than singular and continuous" during those seven days. In my view, such a result would be as much out of harmony with reason as that posited by the majority today. ¶ 97 I find it useful to undertake the analysis referenced in People v. Sienkiewicz, 208 Ill. 2d 1, 7 (2003), in order to avoid either scenario. In Sienkiewicz, our supreme court stated that considerations of lapse of time, identity of the victim and the location, and prosecutorial intent often aid a King analysis. Sienkiewicz, 208 Ill. 2d at 7. Here, the time that elapsed between the two offenses of possession - 23 hours - as well as the different locations at which defendant possessed the weapon, and the fact that the victims were different, supports a conclusion that two separate acts occurred. Moreover, while the charging instruments for both UUW offenses are identical, I do not find this dispositive in light of the fact that the evidence at trial revealed that defendant possessed the gun on two separate occasions to commit robberies of two different sets of victims at two different locations. Indeed, the State initially brought the UUW charges against defendant under different indictment numbers, providing further evidence of its intent to prove two different acts of possession. For these reasons, I do not believe the one-act, one-crime rule is implicated in this case, and I would affirm both UUW convictions. ¶ 98 I therefore respectfully dissent in part and concur in part.