Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County 12 CR 1930 Honorable
Neil J. Linehan, Judge Presiding.
JUSTICE MASON delivered the judgment of the court, with
opinion. Presiding Justice Hyman and Justice Neville
concurred in the judgment and opinion.
1 Following a bench trial, defendant Esau West was convicted
of (1) armed habitual criminal (AHC), (2) aggravated unlawful
use of a weapon (AUUW), and (3) unlawful use of a weapon
(UUW) by a felon. The trial court imposed a six-year
imprisonment term for each conviction, to be served
concurrently. On appeal, West claims that (1) his jury waiver
was invalid because the trial court failed to adequately
admonish him, (2) the AHC statute is facially
unconstitutional, and (3) his AUUW conviction must be vacated
because it was based on the same physical act-possession of a
loaded firearm-as his AHC conviction. Because we find no
merit in West's claims regarding the invalidity of his
jury waiver and the facial unconstitutionality of the AHC
statute, we affirm West's AHC and UUW by a felon
convictions and sentences. But, as the State concedes we
should, we vacate the less serious AUUW conviction as
violating the one-act, one-crime rule and direct the clerk of
the circuit court to correct the mittimus accordingly.
3 Because the police found West in possession of a
9-millimeter semiautomatic handgun loaded with 13 rounds of
ammunition, the State charged him with (1) one count of AHC,
(2) four counts of AUUW, and (3) two counts of UUW by a
felon. After the trial court denied West's motion to
dismiss, his case proceeded to trial.
4 Before his trial began, West signed a written jury waiver
form, which was tendered to the trial court. The written jury
waiver form stated that "I, the undersigned, do hereby
waive the jury trial and submit the above entitled cause to
the Court for hearing." Thereafter, the following
colloquy occurred between the trial court, defense counsel,
"THE COURT: All right. And your client has executed a
Jury Waiver, is that correct?
MR. GREENBERG [Defense Attorney]: Yes.
THE COURT: Mr. West, is this your signature on this document?
THE DEFENDANT: Yes.
THE COURT: Understand that by signing that document and
handing it to me, you're indicating that you wish to
waive your right to a jury trial? THE DEFENDANT: Yes.
THE COURT: Do you understand by tendering that document to
me, I'll hear the evidence rather than a jury, is that