People v. Billups, 2016 IL App (1st) 134006 (May). Episode 188 (Duration 4:52)
Trial counsel was ineffective for trial court’s consideration of two convictions later ruled unconstitutional.
A friend of the podcast, George F. Taseff, routinely files these sample motions in state court to vacate invalidated gun convictions.
At sentencing counsel did not object when the court considered two convictions later ruled unconstitutional.
Defendant was convicted of delivering a gram of heroin to an undercover officer. He was sentenced to 6 years.
The Prior Gun Convictions
Among the convictions in his record were included 3 gun convictions: a January 1995 conviction for misdemeanor possession of a firearm, a second for felony possession of a firearm in September 1995, and a third for unlawful possession of a firearm by a felon in 1998.
Defense counsel did not object to the presentence investigation report or ask for any amendment to the listed prior offenses.
There is no argument that People v. Aguilar, 2013 IL 112116 invalidated these gun convictions.
The reviewing court may decide whether the trial court erred in relying on the AUUW conviction in aggravation, even if it may not vacate that conviction itself.
Counsel’s performance fell below an objective standard of reasonableness. The reviewing found that it was reasonably probable that the court would have imposed a lesser sentence if defense counsel had alerted the court to the unconstitutionality of the statutes.
Remanded for resentencing.