The State concedes that criminal trespass to a vehicle is a lesser included offense of possession of a stolen motor vehicle. ( People v. Owens (1990), 205 Ill. App.3d 43, 46, 563 N.E.2d 75, 77.) Therefore, defendant's conviction for criminal trespass to a vehicle is vacated.

Here, the key difference between the felony offense and the misdemeanor offense is that the felony offense requires the State to prove that the defendant possessed the vehicle knowing it had been stolen. See People v. Owens, 563 N.E.2d 75, 77 (Ill.App.Ct. 1990), abrogated on other grounds by People v. Thomas, 664 N.E.2d 76 (Ill. 1996). Thus, Officer Defendants may reasonably have believed that the ASA declined to approve the felony charge because the evidence failed to demonstrate that Stanley knew the vehicle had been stolen.

The judicial exercise of this discretion, in fashioning an appropriate sentence within the framework provided by the legislature, is not properly understood as an "enhancement." In reversing defendant's sentence, the appellate court relied on People v. Owens, 205 Ill. App.3d 43 (1990), and People v. Ward, 243 Ill. App.3d 850 (1993). We believe that the reasoning in Owens and Ward is flawed, due apparently to a misreading of this court's decision in People v. Hobbs, 86 Ill.2d 242 (1981).

Here, the parties agree that criminal trespass to vehicle is a lesser-included offense of possession of a stolen motor vehicle. See People v. Owens, 205 Ill. App. 3d 43, 45 (1990), rev'd on other grounds by People v. Thomas, 171 Ill.2d 207 (1996).¶ 69 Construction of a statute is a question of law that we review de novo.

See People v. Deleon, 227 Ill. 2d 322, 326 n.1 (2008) (noting that courts "may take judicial notice of the distances between two locations"). ¶ 50 We find defendant's reliance on People v. Owens, 205 Ill. App. 3d 43, 46 (1990), overruled on other grounds People v. Thomas, 171 Ill. 2d 207, 225 (1996), to be misplaced. In that case, the reviewing court held that the defendant's convictions for criminal trespass and possession of a stolen motor vehicle violated the one-act, one-crime rule.

The difference between unlawful possession of a stolen motor vehicle, a Class 2 felony, and criminal trespass to a vehicle, a Class A misdemeanor, is that the former offense additionally requires that the defendant possess the vehicle knowing it has been stolen. See People v. Cook, 279 Ill. App. 3d 718, 722 (1995), citing People v. Owens, 205 Ill. App. 3d 43, 45 (1990). However, the trial court is not required to elevate every theory of innocence to reasonable doubt.

As to the first of these, we affirm the constitutionality of section 9-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 9-2 (now 720 ILCS 5/9-2 (West 1992))) for the simple reason that every district and division of this court has so held; but, we reverse defendant's sentence of 15 years' imprisonment because the circuit court used his previous convictions twice to enhance his sentence: (1) when it used them as the predicates upon which it elevated him to Class X status for punishment purposes; and (2) when it relied on his recidivism to increase the term of his imprisonment, thus violating the rule announced in People v. Owens (1990), 205 Ill. App.3d 43, 563 N.E.2d 75, and People v. Ward (1993), 243 Ill. App.3d 850, 611 N.E.2d 590. Moreover, since these were the only factors in aggravation which the court cited, it cannot be said that defendant would have received the same term even without the court's error.

We disagree. Although there is authority that a sentencing court may not consider in aggravation the same prior convictions that enhance a defendant's offense ( People v. Owens (1990), 205 Ill. App.3d 43, 563 N.E.2d 75), that did not occur here. The mere fact that defendant's sentence was enhanced to a Class X status because of recidivism does not automatically entitle him to a near-minimum sentence. ( People v. Harvey (1987), 162 Ill. App.3d 468, 475, 515 N.E.2d 337, appeal denied (1988), 118 Ill.2d 547, 520 N.E.2d 389 (noting that the court could impose a more severe sentence on a defendant who had four prior convictions than on a defendant who had only two).)

A sentencing court cannot use a prior conviction to enhance the seriousness of an offense and then use the same conviction as an aggravating factor. ( People v. Owens (1990), 205 Ill. App.3d 43, 563 N.E.2d 75.) However, where it can be determined from the record that the weight placed on an improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, remandment is not required.

Finally, defendant maintains the court used his prior felony convictions twice, thereby doubly enhancing his sentence, initially to a Class X felony and then to a term of imprisonment beyond the minimum Class X sentence. In People v. Owens (1990), 205 Ill. App.3d 43, 45, 563 N.E.2d 75, 77, the appellate court concluded that the circuit court erred in using that defendant's two prior felony convictions to elevate his offense to a Class X felony, in addition to using those same convictions as aggravating factors in sentencing him to a sentence beyond the minimum Class X sentence. Here, assuming defendant was sentenced under the Class X provision, we deem Owens distinguishable because, in Owens, that defendant's prior convictions were the only aggravating factors present.