THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AARON S. HOLLEY, Defendant-Appellant, 377 Ill. App. 3d 809

PRESIDING JUSTICE LYTTON delivered the opinion of the court: A jury found the defendant, Aaron S. Holley, guilty of aggravated criminal sexual assault (720 ILCS 5/12 — 14(a)(1) (West 2004)). The trial court denied the defendant’s pro se motion for a new trial in which he alleged, among other things, ineffective assistance of counsel. The court sentenced the defendant to 24 years of imprisonment.

On appeal, the defendant argues that (1) the matter should he remanded for the trial court to determine whether a new attorney should he appointed to argue his ineffective assistance claim; (2) his sentence was void because it was not authorized by statute; (3) the statutory provision under which he should have been sentenced violates the Illinois Constitution’s prohibition against disproportionate penalties; and (4) in imposing the sentence, the court relied upon an improper factor in aggravation. The State contends that the defendant lacks standing to make his proportionate penalties argument.

We (1) remand the matter for a hearing to determine whether a new attorney should be appointed to argue the defendant’s ineffective assistance claim; (2) vacate the defendant’s sentence, and remand the cause for resentencing; and (3) rule that the defendant does not have standing to assert his proportionate penalties argument. FACTS In its indictment, the State charged the defendant with having committed aggravated criminal sexual assault “by the use of force or threat of force while displaying a dangerous weapon[,] being a handgun *** in violation of 720 ILCS 5/12 — 14(a)(1)” in 2004.

As the defendant points out, however,

section 12 — 14(a)(1) concerns commission of the offense while displaying a dangerous weapon “other than a firearm.” 720 ILCS 5/12 — 14(a)(1) (West 2004). At the trial, the victim testified that the defendant and another man sexually penetrated her while threatening her with a handgun. The jury found the defendant guilty. The defendant filed a pro se motion for a new trial in which he alleged, among other things, ineffective assistance of counsel for failing to file a motion to dismiss and a motion to suppress. During the hearing on the defendant’s motion, the court asked the defendant about his motion.

As part of one long, rambling sentence in which the defendant discussed his attorney’s failure to file a motion to dismiss and a motion to suppress, as well as the lack of “DNA” evidence in the case, the defendant also said, “I was telling him that I should have had took a bench trial anyway, and he knows that, I don’t know anything about the law, but he knows that, and he didn’t — he didn’t go basically to his law experience and take it to a bench trial instead of jury trial.” The defendant’s reference to a bench trial was not discussed again during the remainder of the hearing.

The court denied the defendant’s motion. The matter then proceeded directly to sentencing. As part of the sentencing hearing, the judge said, “The Court is *** required under the law to sentence to *** a minimum of 16 years because of the jury’s verdict for a violation of 720 ILCS 5/12 — 14(a)(1), which sets forth a Class X felony *** for which ten years shall be added to the term of imprisonment.” Later, the judge stated, “The Court will sentence Mr.

Holley to serve a [prison] term *** of 14 years, and then by statute, impose an additional ten years as required by law, total sentence being 24 years.” The court denied the defendant’s motion to reconsider the sentence, and the defendant appealed. ANALYSIS I. Ineffective Assistance The defendant submits that the matter should be remanded for the trial court to determine whether a new attorney should be appointed to argue his ineffective assistance claim. When a defendant presents ineffective assistance claims, the trial court should first examine the factual basis of the claims. People v.

Moore, 207 Ill. 2d 68, 797 N.E.2d 631 (2003). The trial court is required to appoint new counsel to argue the defendant’s ineffective assistance claims if the court determines that the underlying facts reveal possible neglect on the part of the defendant’s trial counsel. Moore, 207 Ill. 2d 68, 797 N.E.2d 631. Where the trial court fails to rule on a defendant’s pro se posttrial motion, the appellate court must decline to consider the motion’s merits and must remand the matter to the trial court. People v. Jackson, 158 Ill. App. 3d 394, 511 N.E.2d 923 (1987).

In the present case, the defendant presented ineffective assistance claims as part of his pro se motion for a new trial. During the hearing on the motion, the defendant stated that he had asked his attorney about requesting a bench trial. From the context of the defendant’s statement, we cannot determine whether the defendant discussed a request for a bench trial with his attorney before or after the trial. Neither the parties nor the court sought clarification of this point from the defendant or his attorney at the hearing.

In any event, although the trial court denied the defendant’s motion generally, the court did not rule on the defendant’s allegation concerning having discussed a bench trial with his attorney. Therefore, under Moore and Jackson, we must remand the matter to the trial court for a hearing to determine the factual basis of the defendant’s ineffective assistance claim concerning requesting a bench trial.

If the court determines that the underlying facts reveal possible neglect on the part of the defendant’s trial counsel regarding the defendant’s request for a bench trial, the court would then be required to appoint new counsel to argue the defendant’s ineffective assistance claims. See Moore, 207 111. 2d 68, 797 N.E.2d 631. We note that, in spite of our supreme court’s holding on this issue in Moore that “ ‘[i]n the absence of a ruling by the trial court on the defendant’s pro se post-trial motion, we decline to consider its merits’ ” (Moore, 207 Ill. 2d at 81, quoting Jackson, 158 Ill.

App. 3d at 401), the partial dissent has broadly considered the merits of the defendant’s specific ineffective assistance claim. It contends that the defendant in this case could not prevail in his ineffective assistance argument because although a defendant has a constitutional right to a jury trial, a defendant does not have a constitutional right to a bench trial, that is, a constitutional right to waive a jury trial.

Even if, arguendo, we were to consider this contention, the Illinois Supreme Court has twice stated that a defendant, after consulting with his attorney, has the right to decide, among other things, whether to waive a jury trial. See People v. Brocksmith, 162 Ill. 2d 224, 642 N.E.2d 1230 (1994); People v. Ramey, 152 Ill. 2d 41, 604 N.E.2d 275 (1992). According to Brocksmith and Ramey, the trial attorney in the present case arguably would have provided ineffective assistance by failing to honor the defendant’s wish to waive a jury trial.

In support of its argument, the partial dissent cites obiter dicta from People v. Powell, 281 Ill. App. 3d 68, 666 N.E.2d 365 (1996). However, the dicta in Powell is, by definition, not the holding of the case. The holding in Powell concerned a trial attorney’s erroneous communication with a defendant, whereas the present case concerned the defendant’s communication with the lawyer, which, the defendant argues, the lawyer ignored. We find the holding of Powell to be distinguishable from the instant case, and therefore inapplicable.

Because we cannot rule on the defendant’s ineffective assistance issue, our remand of the cause cannot conclude this matter. Therefore, we next consider the defendant’s sentencing arguments. II. Sentence The defendant contends that he was incorrectly sentenced under the subsection of the aggravated criminal sexual assault statute (720 ILCS 5/12 — 14(a)(1) (West 2004)) that was listed in the charging instrument. For the sake of clarity, we note that the defendant is not arguing that the charging instrument was fatally flawed but, rather, that the trial court erred in imposing his sentence.

Specifically, the defendant argues that (1) the sentence the trial court imposed is void because it was not authorized by subsection 14(a)(1); and (2) the subsection of the statute under which he should have been sentenced (720 ILCS 5/12 — 14(a)(8) (West 2004)) violates the Illinois Constitution’s proportionate penalty clause. A. Void Sentence The defendant argues that his sentence was void because it was not authorized by subsection 14(a)(1). A sentence that does not conform to a statutory requirement is void. People v. Thompson, 209 Ill. 2d 19, 805 N.E.2d 1200 (2004). This issue concerns the

interpretation of a statute, which is a question of law, and therefore our review is de novo. See People v. Jones, 223 Ill. 2d 569, 861 N.E.2d 967 (2006). The defendant in this case was found guilty of committing aggravated criminal sexual assault. Subsection (

a) of the aggravated criminal sexual assault statute states that an “accused commits aggravated criminal sexual assault if he *** commits criminal sexual assault and any of’ 10 enumerated aggravating factors. 720 ILCS 5/12— 14(a) (West 2004). The defendant in the present case was sentenced under the first aggravating factor of subsection (a), which states that “the accused displayed, threatened to use, or used a dangerous weapon, other than a firearm.” 720 ILCS 5/12 — 14(a)(1) (West 2004).

Aggravated criminal sexual assault is a Class X felony for which the basic sentencing range is 6 to 30 years. 720 ILCS 5/12 — 14(d)(1) (West 2004); 730 ILCS 5/5 — 8—1(a)(3) (West 2004). However, certain subsections of the aggravated criminal sexual assault statute increase the sentence beyond the Class X sentencing range. See 720 ILCS 5/12 — 14(d)(1) (West 2004). With regard to this case, “[a] violation of subsection (a)(1) is a Class X felony for which 10 years shall be added to the term of imprisonment imposed by the court.” 720 ILCS 5/12— 14(d)(1) (West 2004).

In the instant case, the trial court mistakenly sentenced the defendant under subsection (a)(1) of the aggravated criminal sexual assault statute. A sentence under subsection (a)(1) requires that the defendant committed the crime while he “displayed, threatened to use, or used a dangerous weapon, other than a firearm.” 720 ILCS 5/12 — 14(a)(1) (West 2004). In this case, the record clearly shows that the weapon displayed by the defendant was a firearm.

The defendant’s sentence was void as a matter of law because it did not conform with the statutory requirement that the dangerous weapon displayed by the defendant must be a weapon other than a firearm. See Thompson, 209 111. 2d 19, 805 N.E.2d 1200. Therefore, we vacate the defendant’s sentence and remand the cause to the trial court for resentencing. Because we have vacated the defendant’s sentence, we need not consider his argument concerning the court’s use of an improper sentencing factor in aggravation. B.

Disproportionate Penalty The defendant submits that the trial court should have sentenced him under subsection (a)(8) of the aggravated criminal sexual assault statute (720 ILCS 5/12 — 14(a)(8) (West 2004)) because the record shows that he was armed with a firearm while he committed the offense. The defendant contends that subsection (a)(8) violates the proportionate penalty clause of the Illinois Constitution. He argues that the sentence for subsection (a)(8) must revert to the sentence under the version of the statute that was in place before subsection (a)(8) was enacted, which was a Class X sentence.

The defendant claims, therefore, that we should order the trial court to impose a Class X sentence on remand. The State asserts that the defendant lacks standing to raise this issue because he was not sentenced under subsection (a)(8). Initially, the defendant’s argument was based, in part, on People v. Hampton, 363 Ill. App. 3d 293, 842 N.E.2d 1124 (2005) (Hampton P). However, during the pendency of these proceedings, in People v. Hampton, 225 Ill. 2d 238, 867 N.E.2d 957

(2007) CHampton II), the Illinois Supreme Court vacated that portion of Hampton I that had found subsection (a)(8) to violate the proportionate penalty clause. We granted the defendant’s motion to add Hampton II as authority. A defendant does not have standing to challenge the constitutionality of a sentencing statute under which he was not sentenced unless he argues that the entire act by which the statute was enacted is unconstitutional. People v. Mayberry, 63 Ill. 2d 1, 345 N.E.2d 97 (1976); People v. Sonntag, 238 Ill. App. 3d 854, 605 N.E.2d 1064 (1992).

In this case, the defendant is not arguing that the entire act under which subsection (a)(8) was enacted is unconstitutional. He is arguing that subsection (a)(8) violates the proportionate penalty clause of the Illinois Constitution. However, the defendant was not sentenced under subsection (a)(8). As we discussed above, he was improperly sentenced under subsection (a)(1). Therefore, we agree with the State and rule that the defendant does not have standing to raise this issue.

In further support of our decision, we note that our supreme court stated in Hampton II that we should not rest our decision on constitutional grounds if the matter may be resolved on other grounds. In this case, we need not reach the defendant’s constitutional argument because our decision rests on the preliminary issue that the defendant lacks standing to bring such a constitutional argument. Additionally, we observe that in Hampton II the Illinois Supreme Court reiterated its admonition against issuing advisory opinions.

Even though on remand it is possible that the trial court will resentence the defendant under subsection (a)(8), our consideration of the constitutionality of subsection (a)(8) would be advisory at this point in the proceedings. For this additional reason, we must decline the defendant’s invitation to consider his constitutional argument. CONCLUSION We affirm the Peoria County circuit court’s judgment of conviction, vacate the sentence imposed by the court, and remand the cause for resentencing.

We also remand the matter for further proceedings consistent with this order concerning the defendant’s ineffective assistance claim. Affirmed in part, vacated in part, and remanded with directions. We observe that the partial dissent erroneously states that we suggest that the trial court did not rule on the defendant’s ineffective assistance of counsel claim because the court denied the defendant’s motion generally.