Opinion
No. 1-13-1878
12-09-2016
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEENAN RAMSEY, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County No. 12 CR 10787 Honorable Nicholas Ford, Judge Presiding. JUSTICE ROCHFORD delivered the judgment of the court.
Presiding Justice Hoffman and Justice Hall concurred in the judgment.
ORDER
¶ 1 Held: We affirmed defendant's conviction of armed habitual criminal where his prior convictions for aggravated unlawful use of a weapon and unlawful use of a weapon by a felon properly served as the predicate offenses under People v. McFadden, 2016 IL 117424, and where the State's rebuttal closing argument did not deny him a fair trial. We affirmed defendant's 10-year sentence where the trial court did not consider any improper factors during sentencing, and where his sentence was not an abuse of discretion. ¶ 2 A jury convicted defendant, Keenan Ramsey, of being an armed habitual criminal (AHC) and the trial court sentenced him to 10 years' imprisonment. On defendant's appeal, we vacated his AHC conviction because one of its predicate offenses was for the Class 4 version of aggravated unlawful use of a weapon (AUUW) that was declared unconstitutional by our supreme court in People v. Aguilar, 2013 IL 112116. See People v. Ramsey, 2015 IL App (1st) 131878. On July 17, 2015, the State filed a petition for leave to appeal (PLA) in the supreme court (No. 119567). On September 28, 2016, our supreme court denied the PLA and, in a supervisory order, directed us to vacate our judgment in Ramsey, and to reconsider the merits of the appeal in light of People v. McFadden, 2016 IL 117424, to determine if a different result is warranted. For the reasons that follow, we affirm. ¶ 3 Defendant was charged with the offense of AHC for knowingly or intentionally possessing a firearm on May 30, 2012, after having previously been convicted of a Class 4 AUUW in case number 07 CR 733 and unlawful use of a weapon by a felon (UUWF) in case number 10 CR 17047. ¶ 4 Defendant filed a motion to dismiss the AHC charge on the basis that his predicate Class 4 AUUW conviction was unconstitutional under the reasoning of the Seventh Circuit Court of Appeals decision in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012). The trial court denied the defense motion. ¶ 5 At trial, Officer Goodwin testified that at about 11:20 p.m. on May 30, 2012, he and his partner, Officer Turner, were parked in their unmarked police vehicle outside a store at 15 West 107th Street. Officer Goodwin saw a grey vehicle with two persons inside traveling through the alley with the headlights off. Officer Goodwin, who was driving, pulled behind the vehicle and turned on his emergency lights. The vehicle turned westbound, and the officers followed. ¶ 6 The vehicle stopped and defendant jumped out with a silver gun in his hand. Defendant tossed the gun over a six-foot fence and fled down the alley as the vehicle "took off." The officers exited their police vehicle. Officer Turner pursued defendant on foot while Officer Goodwin recovered the gun that defendant had thrown over the fence. The gun was a .45-caliber handgun loaded with seven live rounds. Officer Goodwin put the gun inside his waistband, entered his police vehicle, and drove westbound in order to help Officer Turner in his pursuit of defendant. Officer Goodwin subsequently saw that Officer Turner had apprehended defendant around 10701 South Lafayette Avenue. ¶ 7 Defendant was transported to the police station, where Officer Goodwin advised him of his Miranda rights. Defendant agreed to talk. Officer Goodwin asked him why he was carrying a gun. Defendant replied that he carried the gun to protect himself. ¶ 8 Officer Turner testified consistently with Officer Goodwin regarding how they saw a grey vehicle driving down the alley with no headlights on, and that they followed the vehicle and saw defendant exit the passenger side with a gun in his hand, which he threw over a fence. Defendant then ran westbound through the alley to Lafayette Avenue, where he turned right and started running northbound down Lafayette Avenue. Officer Turner followed defendant on foot and yelled for him to stop and get on the ground. When defendant got to the end of the block, around 10701 South Lafayette Avenue, he complied with Officer Turner's command and dropped to the ground. ¶ 9 Defendant was transported to the police station and advised of his Miranda rights. Defendant stated he was carrying the gun because "there is a lot of shooting going on over there," and that he needed to protect himself. At the police station, Officer Turner placed into inventory the gun that Officer Goodwin had recovered. They did not send the weapon to be fingerprinted because they felt there was no need to do so since they had seen the gun in defendant's possession. The officers did not ask defendant to give a written statement. ¶ 10 Following Officer Turner's testimony, the parties stipulated that defendant had two prior convictions that qualified him for prosecution as an AHC. ¶ 11 For the defense, defendant's brother, Kyle Ramsey, testified that at about 11 p.m. on May 30, 2012, he was driving defendant to a girlfriend's house. The vehicle they were driving was a silver blue 2006 Chevy Impala; the headlights were on. They drove through an alley between Lafayette Avenue and State Street and turned down another alley. ¶ 12 Kyle noticed a police vehicle behind them. As he came out of the alley and turned onto Lafayette Avenue, the police activated the emergency lights. Kyle pulled over at 107th Street and Lafayette Avenue. The police officers came to the door of his vehicle, opened it, put him and defendant in handcuffs, and transported them to the back of the police vehicle. ¶ 13 While they were in the police vehicle, one of the officers went back towards the alley. The officer later returned from the alley, stated "we had a gun," and arrested defendant. They let Kyle go. ¶ 14 Kyle testified that neither he nor defendant had a gun in the vehicle. Kyle never saw defendant jump out of the vehicle and he never saw defendant throw a gun. ¶ 15 Renee Jefferson testified that at about 11 p.m., on May 30, 2012, she and her sister were walking to a store at 107th Street and Lafayette Avenue. She saw defendant and Kyle "[o]n the police car." She also saw a police officer "go towards the alley," after which the officers put defendant in the police vehicle and released Kyle. ¶ 16 Following closing arguments, the jury convicted defendant of AHC. ¶ 17 At the sentencing hearing, the State noted that defendant was a high school graduate making $1,200 per month who should know better than to engage in criminal conduct, but that he has now "been caught with a gun three times," making him an AHC. The State requested that the trial court sentence defendant to at least 15 years' imprisonment. ¶ 18 Defense counsel argued in mitigation that defendant comes from a loving family, he satisfactorily completed probation in the AUUW case and satisfactorily finished boot camp in the UUWF case, and that he had been respectful to the court and counsel. Defense counsel requested the minimum sentence of six years' imprisonment. ¶ 19 The trial court asked defendant if he wished to speak in allocution, and defendant declined. The trial court then stated:
"Well, [defendant] was convicted by a jury for the offense of armed habitual criminal. I have reviewed his presentence investigation, which indicates there are obviously two predicated offenses. He was convicted of both of them, but I noted that he described his upbringing as one in which he was in a good and stable household. I also indicate that he is a high school graduate. He has a limited employment history, which I will also take into account. No history of drug and alcohol abuse, no services in the military. He has fathered two children.¶ 20 After informing defendant of his right to appeal, the trial court further stated:
Quite frankly, I question how much financial support they have ever received from him in light of his employment history. ***
I'm going to consider all the evidence presented at trial, the factors in aggravation, in mitigation, natural impact of incarceration, the arguments that the attorneys made here today, his allocutions, which was short, and sentence him to a period of 10 years in the Illinois Department of Corrections. That will be followed by three years mandatory supervised release."
"There is one thing I wanted to indicate that I found aggravating within the PSI, and the court file also had an arrest report. The defendant acknowledged in the PSI that
he was a Gangster Disciple but that he was no longer in the gang. That's what he told them. At the time he was arrested during the arrest report he admitted that he was a Gangster Disciple. His gang membership and everything that I alluded to earlier is what resulted in the 10-year sentence."¶ 21 Defendant filed a motion to reconsider sentence, which the trial court denied. Defendant appealed and, as discussed, we vacated his conviction under Aguilar. See People v. Ramsey, 2015 IL App (1st) 131878. Pursuant to our supreme court's supervisory order, we have vacated our decision in Ramsey and proceed to address the merits of defendant's appeal in light of McFadden. ¶ 22 On appeal, defendant contends the State failed to prove him guilty of AHC beyond a reasonable doubt. When considering a challenge to a criminal conviction based on the sufficiency of the evidence, our inquiry is limited to whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Wright, 2015 IL App (1st) 123496, ¶ 73. ¶ 23 To sustain a conviction for AHC, the State was required to prove that defendant possessed a firearm after having been convicted of at least two qualifying predicate offenses. See 720 ILCS 5/24-1.7(a) (West 2010). In the present case, the two predicate offenses were UUWF in case number 10 CR 17047 and the Class 4 version of AUUW in case number 07 CR 733. ¶ 24 In Aguilar, our supreme court found the Class 4 version of the AUUW to be facially unconstitutional in violation of the second amendment right to bear arms. Aguilar, 2013 IL 112116, ¶ 1. When a statute is declared unconstitutional, it is void ab initio. Id. ¶ 12. ¶ 25 Defendant argues that the State cannot rely on his void Class 4 AUUW conviction as a predicate offense for AHC and, therefore, that the State failed to prove an essential element of AHC beyond a reasonable doubt. ¶ 26 McFadden is dispositive. In McFadden, the defendant was convicted of UUWF based on his possession of a firearm after having been convicted of AUUW. Id. ¶ 1. On appeal, the defendant argued that his UUWF conviction must be vacated because it was predicated on his prior AUUW conviction, which was entered under the section of the statute that was held facially unconstitutional in Aguilar and, thus, the State failed to prove all the elements of the UUWF offense. Id. ¶ 8. ¶ 27 Our supreme court examined the language of the UUWF statute, which prohibits a person's knowing possession of a firearm after having been convicted of a felony. Id. ¶ 27 (citing 720 ILCS 5/24-1.1(a) (West 2008)). The court explained that the UUWF statute only requires the State to prove the defendant's felon status, and does not require the State to prove the predicate offense at trial. Id. The court noted that the proscription under section 24-1.1(a) of the UUWF statute is expressed in the past tense, applying to any person who "has been convicted" of a felony (id. (citing 720 ILCS 5/24-1.1(a) (West 2008)), and that "[n]othing on the face of the statute suggests any intent to limit the language to only those persons whose prior felony convictions are not later subject to vacatur." Id. ¶ 28 The court further found that "the language of section 24-1.1(a) is 'consistent with the common-sense notion that a disability based upon one's status as a convicted felon should cease only when the conviction upon which that status depends has been vacated.' " Id. ¶ 29 (citing Lewis v. United States, 445 U.S. 55, 61 n. 5 (1980)). Additionally, the purpose of the UUWF statute is to "protect the public from persons who are potentially irresponsible and dangerous." Id. Thus, it is immaterial whether the predicate conviction ultimately turns out invalid. Id. The UUWF statute is not concerned with enforcing the predicate conviction, but rather is concerned with the role of that conviction as a disqualifying condition for the purpose of obtaining firearms. Id. Therefore, the court found that the UUWF statute is a "status offense," and that the legislature intended that the defendant clear his felon status through the judicial process by having his prior conviction vacated or expunged prior to obtaining firearms. Id. ¶ 29 The court further stated:
"It is axiomatic that no judgment, including a judgment of conviction, is deemed vacated until a court with reviewing authority has so declared. As with any conviction, a conviction is treated as valid until the judicial process has declared otherwise by direct appeal or collateral attack. Although Aguilar may provide a basis for vacating defendant's prior 2002 AUUW conviction, Aguilar did not automatically overturn that judgment of conviction. Thus, at the time defendant committed the [UUWF] offense, defendant had a judgment of conviction that had not been vacated and that made it unlawful for him to possess firearms." Id. ¶ 31.¶ 30 The court found that, although the defendant could seek to vacate his prior AUUW conviction as being void ab initio under Aguilar, that remedy would not alter the requirement under the UUWF statute that he clear his felon status prior to obtaining a firearm. Id. ¶ 37. Accordingly, the court concluded that the defendant's prior AUUW conviction properly served as proof of the predicate felony conviction for UUWF. Id. ¶ 31 We recently applied the McFadden analysis to an AHC conviction in People v. Perkins, 2016 IL App (1st) 150889. In Perkins, the defendant was convicted of AHC and filed a post-conviction petition alleging the State failed to prove him guilty beyond a reasonable doubt because his AHC conviction was predicated on the AUUW statute found facially unconstitutional under Aguilar and void ab initio. Id. ¶ 2. The trial court agreed, and granted the post-conviction petition. Id. The State appealed. Id. ¶ 3. ¶ 32 While the case was on appeal, the supreme court decided McFadden. The appellate court gave the parties the opportunity to brief McFadden's impact. Id. ¶ 5. The defendant argued that McFadden's reasoning was limited to the offense of UUWF, which requires the State to prove only his felon status and does not require proof of a specific felony conviction. Id. ¶ 6. The defendant argued that because the offense of AHC requires the State to prove that he was convicted of specific enumerated offenses, the AHC offense "imposes a conduct-based disability by allowing for harsher punishment based on a defendant's commission of specific acts." Id. The defendant argued that because the conduct of which he was previously convicted (possession of a firearm) was constitutionally protected, it cannot serve as the predicate for his AHC conviction. Id. ¶ 33 The appellate court disagreed:
"We find this to be a distinction without a difference. In order to sustain its burden to prove that a defendant is an armed habitual criminal, the State need only prove the fact of the prior convictions of enumerated offenses [citations], just as the State need only prove the fact of a prior felony conviction to support a UUWF conviction. Nothing in the armed habitual criminal statute requires a court to examine a defendant's underlying conduct in commission of the enumerated offenses in order to find that the
State has sustained its burden of proof. And because here, as in McFadden, [the defendant's] prior convictions had not been vacated prior to his armed habitual criminal conviction, they could properly serve as predicates for that conviction." Id. ¶ 7.¶ 34 The appellate court next addressed the defendant's argument that McFadden need not be followed because the United States Supreme Court decision in Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), mandated that his AHC conviction be vacated. Perkins, 2016 IL App (1st) 150889, ¶ 8. In Montgomery, the Supreme Court held that the prohibition against mandatory life sentences without parole for juvenile offenders was a substantive rule of constitutional law entitled to retroactive effect on collateral review. Montgomery, 577 U.S. at ___, 136 S. Ct. at 734. The defendant argued that Aguilar was entitled to the same retroactive effect and that the State's reliance on his unconstitutional prior AUUW convictions violates Montgomery's central premise: " 'There is no grandfather clause that permits States to enforce punishments the Constitution forbids. To conclude otherwise would undercut the Constitution's substantive guarantees.' " Perkins, 2016 IL App (1st) 150889, ¶ 8 (quoting Montgomery, 577 U.S. at ___, 136 S. Ct. at 731)). ¶ 35 In analyzing the defendant's argument, the appellate court noted that the defendant was not seeking to vacate his prior unconstitutional AUUW conviction, but instead was challenging his status as a convicted felon at the time of his trial for AHC and, as such, that Montgomery posed no constitutional impediment to the affirmance of his AHC conviction. Id. ¶ 9. The appellate court concluded that because the defendant's prior AUUW conviction had not been vacated at the time he possessed a firearm, it could serve as the predicate for his AHC conviction. Id. ¶ 10. ¶ 36 In the present case, defendant's AUUW conviction in case number 07 CR 733 was not vacated prior to his AHC conviction. Pursuant to McFadden and Perkins, we hold that defendant's prior AUUW conviction in case number 07 CR 733 could serve as the predicate for his AHC conviction and, therefore, that defendant was proven guilty beyond a reasonable doubt. ¶ 37 Defendant also argues the State failed to prove him guilty beyond a reasonable doubt of AHC, because the other predicate offense, UUWF, was based on his possession of a weapon after having been convicted of AUUW in case number 07 CR 733. Defendant contends the UUWF offense cannot be used as the predicate offense for AHC because it stemmed from the subsection of the AUUW statute found unconstitutional in Aguilar. ¶ 38 For the same reasons discussed earlier in this order with regard to the use of the AUUW conviction as a predicate offense, defendant's conviction of UUWF could serve as a predicate for his AHC conviction because it had not been vacated prior thereto. Accordingly, the State proved defendant guilty of AHC beyond a reasonable doubt. ¶ 39 Next, defendant argues the State denied him a fair trial by making several improper remarks during rebuttal closing arguments. Defendant forfeited review of most of the prosecutor's comments by failing to object at trial and raise the issue in his posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Even choosing to address the issue on the merits, we find no reversible error. ¶ 40 A prosecutor is allowed wide latitude during closing arguments and may comment on the evidence presented at trial and any reasonable inferences therefrom, even if the inferences reflect negatively on defendant. People v. Willis, 409 Ill. App. 3d 804, 812 (2011). The prosecutor may also respond to arguments from defense counsel that clearly provoke a response. People v. Hudson, 157 Ill. 2d 401, 441 (1993). A closing argument must be viewed in its entirety, and the challenged remarks must be viewed in their context. People v. Nicholas, 218 Ill. 2d 104, 122 (2005). ¶ 41 The appropriate standard of review for closing arguments is currently uncertain. In People v. Wheeler, 226 Ill. 2d 92 (2007), our supreme court applied a de novo standard of review (id. at 121); however, in People v. Blue, 189 Ill. 2d 99 (2000), which Wheeler cited with approval, our supreme court applied an abuse of discretion standard (id. at 128). We need not resolve this conflict, as our holding is the same under either standard. ¶ 42 First, defendant contends the prosecutor improperly minimized the State's burden of proof when he stated during rebuttal closing arguments:
"Evidence doesn't have to be some fingerprint or DNA. I mean, unfortunately television has made these incredible, outrageous scenarios where you take a person, capture a mosquito in a room, you get DNA from the mosquito, and you prove this somebody was there. That is absurd because that's television. This, ladies and gentlemen, is real life. ***¶ 43 These comments were made in direct response to the following comments made by defense counsel during closing argument:
You will get the law in the form of jury instructions, comb through those jury instructions. Find the instructions that says we need DNA to convict. We need fingerprints to convict. Look for that instruction. I'm going to tell you right now you are not going to find it because it doesn't exist. The law does not require fingerprints or DNA.
Maybe TV shows require, require it, books, but in real life the credible testimony of an officer is enough. ***
You don't need to present DNA because that is not required."
"The officers' testimony just because they say so is not enough. They could have fingerprinted this gun. It would be just too onerous, too much of a backlog, they chose not to. That would have given you evidence. They could have sent this gun for DNA, they chose not to. That could have given you evidence. They could have sent the magazine for DNA and testing, they *** chose not to."¶ 44 As the prosecutor's comments regarding how the State was not required to provide DNA and fingerprinting to prove defendant guilty were made in response to defense counsel's arguments indicating that defendant should be acquitted without such DNA and fingerprint evidence, we find no error. See also People v. Willis, 409 Ill. App. 3d at 813-14 (holding that a complained-of comment distinguishing the evidence in defendant's case from that found in the television program CSI was not error, as the comment was a "benign reference to the jurors' common knowledge that this was not an investigatory television mystery, but rather a real-world criminal case"). ¶ 45 Next, defendant contends the State improperly vouched for the credibility of the police officers, denigrated defense counsel, and shifted the burden of proof when it made the following comments:
"Considering what counsel has gotten up here and asked you to believe with the evidence they presented. They pretty much has said these guys are completely perjuring themselves and lying to you. ***
[O]ne of the officers goes into an alley, presumably either takes out a gun out of his pocket or finds a gun in an alley and plants it on this defendant.
Ladies and gentlemen, what they have been accused of, they are being accused of being monsters of two people who are going to randomly pick this person out of the unlucky lottery and say hey, we are going to pin a gun on this person. Why? People don't just lie for no reason at all, ladies and gentlemen. Why would these two officers pick a person they have no idea about and put a case on them, accuse them of having this gun? Why? There has got to be a reason. People just don't lie for no reason at all. ***¶ 46 Said comments were made during the State's rebuttal closing argument and were in direct response to the following comments made by defense counsel during closing argument:
[T]hey didn't make it up because what they testified to is true. That was fact. So counsel says here in screaming over and over again throughout the trial, no prints, no DNA. You know, it's odd that this city says we are going to give these guys a badge, we are going to give these guys a gun, we are going to give these guys a vehicle that is unmarked, swear them to uphold the law, but if they say they saw a person with a gun, we don't believe you. ***
Ladies and gentlemen, you can make sure by valuing the testimony of that witness that took that stand, who got up here, took a oath, the same oath that you guys took, an oath that said I am going to tell the truth, you're going to uphold the law.
You guys took an oath too, uphold the law. These officers are telling the truth. They have no reason to lie."
"They want you to believe because they say so that the car sped away. You heard from Kyle Ramsey. Kyle says he was the driver of this car. Kyle says he stopped the car, and at no time did [defendant] jump out or throw a gun. Kyle told you that when they made the turn on Lafayette the officers were right behind him and he stopped.
Kyle Ramsey is just as credible as these officers. The officers are no more credible just because they are officers. Kyle is an unimpeached witness. Just because the officers say this is what happened doesn't make it so, and because it's not so. [Defendant] never was in possession of this weapon. Nothing the State has shown you is proof beyond a reasonable doubt. Saying it's so is not so, and it is not proof beyond a reasonable doubt."¶ 47 Clearly, the intent of defense counsel's argument was to cast doubt on the credibility of the police officers' testimony that the car sped away, and that defendant jumped out of the car and threw away the gun. The State's remarks during rebuttal closing argument in support of the officers' credibility were in response to defense counsel's statements contradicting the credibility of the officers, and did not constitute error. See People v. Love, 377 Ill. App. 3d 306, 314 (2007) (where the State's remarks are in response to opposing counsel's own statements contradicting the credibility of a witness, there is no error). ¶ 48 Defendant next contends the State improperly shifted the burden of proof and ridiculed the defense theory during rebuttal closing argument by stating:
"I guess this guy is just the unluckiest person in world that got picked out having done nothing, having nothing illegal on him, and has a gun planted on him by two monsters who is going to come here and perjure themselves and say no, that's not what happened. I'll tell you what happened, we going to put a gun on this kid. ***
Now *** if you are going to believe a conspiracy or the officer is going to make up a story about finding it an alley, does this look like a weapon that was sitting in an alley? It's fairly pristine, ladies and gentlemen. It's not a weapon that was sitting in an alley and happened to be found by an officer who decided to put it on him.
In fact it is so pristine that I guess the story would have to be he had it on his person. He carries around a gun looking to put it on somebody. For what reason, I don't know, just evil I guess. That's not the truth. *** [Y]ou know that not to be the case because you have [to] look for the evidence and use your common sense and reason. And you got a chance to hear from these two officers that dedicated their life to public service. If he's going to get up here and accuse them of all of terrible things, but in reality these two gentlemen did nothing except their jobs, the job on this particular night led them to try to stop the vehicle of which he got out of."¶ 49 Again, these comments by the State were made in direct response to defense counsel's comments (quoted earlier in this order) attacking the officers' credibility and did not constitute error. ¶ 50 Finally, defendant contends the State made an "incendiary" remark during rebuttal closing arguments when it stated: "Defendant is not being accused of being Adolph Hitler, he is accused of having a gun." ¶ 51 Although references to Hitler are best not made, in considering this issue, we note that the State made no improper comparison between defendant and Hitler, or between defense counsel and Hitler. Rather, the State remarked that defendant was not accused of being Hitler, but instead was being accused of having a gun. This remark was intended to show that the officers were not engaged in some type of elaborate conspiracy to accuse defendant of crimes he did not commit, but rather that they were accusing him of gun possession (in violation of the AHC statute) where they saw him in possession of the gun. ¶ 52 Even assuming, for the sake of argument, that the State's remark was in error, we would find no cause for reversal. A prosecutor's remarks during closing argument are grounds for reversal only when they result in substantial prejudice to defendant. People v. Armstrong, 183 Ill. 2d 130, 145 (1998). To prove substantial prejudice, defendant must show the result of the trial would have been different absent the complained-of remarks. People v. Patrick, 298 Ill. App. 3d 16, 28 (1998). Defendant has failed to show he was substantially prejudiced by the prosecutor's isolated comment regarding how defendant is not accused of being Hitler, but rather is accused of having a gun. ¶ 53 Defendant argues that the cumulative effect of the State's improper argument warrants a new trial. We disagree. "Where the alleged errors do not amount to reversible error on any individual issue, there generally is no cumulative error." People v. Moore, 358 Ill. App. 3d 683, 695 (2005). ¶ 54 Next, defendant contends he was denied a fair sentencing hearing when the trial court improperly considered in aggravation factors that were inherent in the offense of AHC, specifically, the two prior convictions for AUUW and UUWF that were the predicate convictions for his AHC conviction. See People v. Saldivar, 113 Ill. 2d 256, 272 (1986) (the trial court may not consider in aggravation a factor that is inherent in the offense for which the defendant is being sentenced). ¶ 55 "A trial court is not required to refrain from any mention of sentencing factors that constitute elements of the offense. [Citation.] Sentencing hearings do not occur in a vacuum and the duty to impose a fair sentence entails an explanation of the court's reasoning in the context of the offenses of which a defendant has been convicted. A fair sentence is not just the product of mechanically tallying factors in aggravation and mitigation and calculating the result. Indeed, a sentencing hearing is likely the only opportunity a court has to communicate its views regarding the defendant's conduct and thus we do not agree that a trial judge's commentary on the nature and circumstances of a defendant's crimes necessarily results in improperly using elements of the offense as factors in aggravation." People v. Sauseda, 2016 IL App (1st) 140134, ¶ 15. ¶ 56 In explaining its reasoning for imposing a 10-year sentence on defendant, the trial court noted he had been convicted of being an AHC, meaning he had been convicted of two predicate offenses. However, the court did not focus on the underlying predicate convictions (or even name them or discuss any details about them), and instead discussed defendant's family, educational, and work background and noted he had admitted to police that he was a member of the Gangster Disciples. Viewing the trial court's explanation of its reasoning in its entirety, we find that the court's brief recitation of the nature of defendant's offense of AHC as including two predicate offenses was a commentary on the nature and circumstances of his crime and did not establish that it improperly considered an element of the offense as an aggravating factor in sentencing. ¶ 57 Defendant also argues that, during sentencing, the trial court should not have considered his predicate AUUW conviction in aggravation as it was unconstitutional under Aguilar, and should not have considered his predicate UUWF conviction in aggravation as it was based on the unconstitutional AUUW conviction. As discussed, neither of defendant's AUUW and UUWF convictions was vacated at the time of his possession of the firearm at issue here, and thus they each could serve as a predicate for his AHC conviction. See McFadden, 2016 IL 117424, ¶ 37. In discussing defendant's AHC conviction during sentencing, the court merely noted that defendant had been convicted of two predicate offenses. The court's statement was factually correct and the court did not focus on the predicate offenses when explaining its reasoning for sentencing defendant to 10 years' imprisonment, but rather focused on defendant's family, education and work background and his membership in the Gangster Disciples. We find no prejudicial error. Id. ¶ 41 (where the weight placed on the unconstitutional predicate offense as an aggravating factor during sentencing is "not significant," a new sentencing hearing is not warranted). ¶ 58 Next, defendant contends the trial court considered certain unreliable evidence when sentencing him. Defendant forfeited review by failing to raise this issue in his post-sentencing motion. People v. Hall, 194 Ill. 2d 305, 352 (2000). However, forfeiture is a limitation on the parties, not the court, and in the interest of justice we will consider defendant's argument. Westbank v. Maurer, 276 Ill. App. 3d 553, 563 (1995). ¶ 59 When determining the admissibility of evidence during the aggravation/mitigation phase of sentencing, the only requirement is that the evidence be reliable and relevant. Hudson, 157 Ill. 2d at 449. Evidence is not reliable where based on speculation. People v. Zapata, 347 Ill. App. 3d 956, 964 (2004). The evaluation of the evidence's reliability and relevance lies within the sound discretion of the sentencing judge. Hudson, 157 Ill. 2d at 450. ¶ 60 Defendant argues the trial court engaged in improper speculation when it stated: "I question how much financial support [defendant's two children] have ever received from [defendant] in light of his employment history." ¶ 61 Defendant's PSI indicates that "he was most recently employed as a part-time construction laborer, [o]n and off from mid-2011 through mid-2012," and was "previously employed as a part-time machine operator, from late, 2006 through early, 2007." Given defendant's relatively sparse employment history, we cannot say the trial court engaged in improper speculation when questioning the amount of financial support defendant's children received from him. ¶ 62 Defendant also argues the trial court erred in relying on unreliable evidence of his gang membership when sentencing him. At sentencing, the ordinary rules of evidence are relaxed; evidence may be admitted as long as it is both relevant and reliable. People v. Sims, 403 Ill. App. 3d 9, 23 (2010). "The source and type of admissible information is virtually without limits." Id. ¶ 63 In the present case, the trial court noted during sentencing that the PSI stated that defendant had renounced his gang membership; however, the trial court expressly relied, as an aggravating factor, on the arrest report indicating defendant was a "self-admitted Gangster Disciple." The trial court's reliance on the arrest report as evidence of defendant's gang membership was not error, where the court may search "anywhere," within reasonable bounds, for facts tending to aggravate or mitigate the offense. Id. ¶ 64 Defendant contends the trial court should not have considered his gang membership in aggravation, where it was protected activity under the first amendment. Defendant's contention is without merit. See Dawson v. Delaware, 503 U.S. 159, 165 (1992) ("the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment"). ¶ 65 Defendant also contends the trial court should not have considered his gang membership as it "had nothing to do with this case." However, the sentencing court may consider defendant's gang membership when considering his general moral character, his mentality, his habits, his social environments, his abnormal tendencies, his age, his natural inclination or aversion to commit crime and the stimuli that motivated his conduct. Zapata, 347 Ill. App. 3d at 966. Accordingly, we find no error in the trial court's consideration of defendant's gang membership in aggravation. ¶ 66 Finally, defendant contends the trial court should have sentenced him to the minimum six years' imprisonment. We review a sentence within the statutory limits for an abuse of discretion, and may alter the sentence only when it varies greatly from the spirit and purpose of the law or is manifestly disproportionate to the nature of the offense. People v. Jones, 2014 IL App (1st) 120927, ¶ 56. The trial court has wide latitude in sentencing defendant to any term within the applicable statutory range as long as it does not ignore pertinent mitigating factors or consider incompetent evidence or improper aggravating factors. Id. ¶ 67 The record indicates that the trial court considered all the evidence in aggravation and mitigation and did not consider incompetent evidence or improper aggravating factors. The court sentenced defendant to 10 years' imprisonment, which was only four years above the minimum allowable sentence and 24 years below the maximum allowable sentence. See 720 ILCS 5/24-1.7(b) (West 2016); 730 ILCS 5/5-4.5-25(a) (West 2016). We find no abuse of discretion. ¶ 68 For the foregoing reasons, we affirm the circuit court. ¶ 69 Affirmed.
Our supreme court has since clarified that section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute is facially unconstitutional, without limitation. People v. Burns, 2015 IL 117387, ¶ 25. --------