People v. Smith

2017 IL App (1st) 151643
FIRST DIVISION
September 29, 2017
No. 1-15-1643
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 13 CR 22324
)
ZACHARY SMITH, ) Honorable
) Erica L. Reddick,
Defendant-Appellant. ) Judge Presiding.
)
JUSTICE MIKVA delivered the judgment of the court, with opinion.
Justice Simon concurred in the judgment and opinion.
Justice Harris specially concurred, with opinion.
OPINION
¶1 Following a bench trial, defendant Zachary Smith was convicted of being an armed
habitual criminal (AHC) and for unlawful use of a weapon by a felon (UUWF). Mr. Smith was
sentenced on the AHC charge to a prison term of six years, followed by three years of mandatory
supervised release (MSR), and on the UUWF charge to a concurrent sentence of two years. On
appeal, Mr. Smith argues that we must vacate his AHC conviction because one of the predicate
convictions for that offense was for aggravated unlawful use of a weapon (AUUW), under a
statutory provision later held by the Illinois Supreme Court to be facially unconstitutional. Mr.
Smith alternatively asks us to correct his mittimus because—under the one-act, one-crime rule—
he cannot be convicted of both AHC and UUWF based on the same act of possessing a firearm.
For the reasons that follow, we affirm Mr. Smith’s AHC conviction and vacate his UUWF
conviction.
No. 1-15-1643
¶2 BACKGROUND
¶3 Mr. Smith was charged in this case with one count of AHC—premised on his prior
convictions for AUUW (case No. 09 CR 16524) and UUWF (case No. 07 CR 12576)—and three
counts of UUWF. At his bench trial, the State introduced certified copies of both prior
convictions. The State also presented the testimony of two Chicago police officers, who testified
that on the evening of October 25, 2013, they entered an apartment to investigate a reported
domestic battery and observed Mr. Smith with a gun in his hand. The officers arrested Mr. Smith
and advised him of his Miranda rights. According to the officers, Mr. Smith explained to them
that he was holding the gun because he thought the officers were members of his ex-girlfriend’s
family coming to seek revenge against him for having battered her.
¶4 Two witnesses testified for the defense. Mr. Smith’s ex-girlfriend, Lakeisha Horton,
testified that there was a party at her apartment on the afternoon of October 25, 2013. According
to Ms. Horton, a fight broke out at the party, and she threatened to call the police. Those
attending the party fled, leaving some of their possessions behind. When Mr. Smith later arrived
to collect some clothing he had left at the apartment, he brought another woman with him,
angering Ms. Horton and causing her to falsely report that he had battered her. Ms. Horton
testified that there was a gun on the floor by the garbage can when officers arrived in response to
her call, but it did not belong to Mr. Smith. Mr. Smith’s girlfriend, Laquita Handy, testified that
she was the woman who accompanied Mr. Smith to Ms. Horton’s apartment to retrieve his
clothing that day and, to her knowledge, he did not have a weapon with him at that time.
¶5 The trial court found the testimony of the officers to be more credible than that of the
defense witnesses and found Mr. Smith guilty as charged. The court denied Mr. Smith’s post-
trial motion and sentenced him to six years of imprisonment and three years of MSR on the AHC
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count, merged the remaining counts into a single count of UUWF, and sentenced him to a
concurrent two-year sentence on that count. This appeal followed.
¶6 JURISDICTION
¶7 The trial court sentenced Mr. Smith on May 7, 2015, and he filed his notice of appeal the
same day. We therefore have jurisdiction pursuant to article VI, section 6, of the Illinois
Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules 603 and 606,
governing appeals from final judgments of conviction in criminal cases (Ill. S. Ct. Rs. 603, 606
(eff. Feb. 6, 2013)).
¶8 ANALYSIS
¶9 A. Predicate Conviction
¶ 10 On appeal, Mr. Smith argues that his AHC conviction must be vacated because one of the
two predicate convictions the State relied on to support that charge was pursuant to a statutory
provision later held to be facially unconstitutional and thus void ab initio.
¶ 11 To support a conviction for AHC, the State must prove beyond a reasonable doubt that a
defendant possessed a firearm after having been convicted two or more times of certain
enumerated offenses, including AUUW and UUWF. 720 ILCS 5/24-1.7(a)(2) (West 2012). One
of Mr. Smith’s two prior convictions was his 2009 conviction for AUUW, which he says was
under the section of the Criminal Code of 1961 that prohibited the carrying of an “uncased,
loaded, and immediately accessible” firearm outside the home. 720 ILCS 5/24-1.6(a)(1),
(a)(3)(A) (West 2008). In People v. Aguilar, 2013 IL 112116, ¶ 22—as clarified in People v.
Burns, 2015 IL 117387, ¶¶ 22, 32—our supreme court struck down that portion of the AUUW
statute as facially unconstitutional, concluding that it violated the right to keep and bear arms
guaranteed by the second amendment to the United States Constitution.
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¶ 12 Recently, in People v. McFadden, 2016 IL 117424, our supreme court considered the
effect of its holding in Aguilar on a defendant’s subsequent conviction for UUWF, which
required the State to prove that a defendant who “has been convicted of a felony” knowingly
possessed a firearm (720 ILCS 5/24-1.1(a) (West 2008)). The defendant in that case claimed that
his predicate felony conviction was under the portion of the AUUW statute held to be
unconstitutional in Aguilar. McFadden, 2016 IL 117424, ¶ 16. The McFadden court began with
the proposition that, “[w]hen a statute is held to be facially unconstitutional, the statute is said to
be void ab initio, i.e., void from the beginning.” (Internal quotation marks omitted.) Id. ¶ 17. It
noted that a defendant may not be prosecuted under a facially unconstitutional statute and, “as a
remedy, must be allowed to apply the court’s declaration as a basis to vacate [the] judgment of
conviction.” Id. ¶ 19. But the defendant in McFadden did not seek to vacate his prior AUUW
conviction. Id. ¶ 21. He instead challenged his subsequent UUWF conviction, arguing that the
State could not rely on his constitutionally invalid AUUW conviction as the predicate felony for
the UUWF conviction. Id.
¶ 13 The McFadden court did not agree. Noting that its own precedent applying the void
ab initio doctrine did not resolve the question, it looked to the United States Supreme Court’s
decision in Lewis v. United States, 445 U.S. 55 (1980). McFadden, 2016 IL 117424, ¶ 22. There,
the Court was asked to consider whether a prior felony conviction, which the defendant claimed
was constitutionally infirm because he was unrepresented by counsel, could nevertheless be used
by the government as the predicate felony for a charge that the defendant had violated the federal
felon-in-possession-of-a-firearm statute. Lewis, 445 U.S. at 65. The McFadden court concluded
that the plain language of the UUWF statute, like the plain language of the statute at issue in
Lewis, evidenced the legislature’s intent to subject a broad category of individuals to a
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prohibition on gun possession. McFadden, 2016 IL 117424, ¶¶ 23, 28-29. In the McFadden
court’s view, neither statute required the government to prove the predicate offense itself, but
merely the defendant’s status as a convicted felon, a status that “ ‘[w]ould cease only when the
conviction upon which the status depend[ed] ha[d] been vacated.’ ” Id. ¶ 29 (quoting Lewis, 445
U.S. at 61 n.5). Under McFadden, the burden is thus on a criminal defendant who has been
convicted under a facially unconstitutional statute to clear his status as a felon through the
judicial process to avoid future convictions predicated in part on that status. Id. ¶ 30.
¶ 14 Like the defendant in McFadden, Mr. Smith has not sought to vacate his prior AUUW
conviction, but contends that it cannot properly serve as a predicate offense for a later
conviction. Mr. Smith argues that we should not follow McFadden because it is inconsistent with
the United States Supreme Court’s decisions in Montgomery v. Louisiana, 577 U.S. ___, 136 S.
Ct. 718 (2016), and Ex Parte Siebold, 100 U.S. 371 (1879). He also argues that the McFadden
court’s reliance on Lewis is inapplicable here because the AHC statute requires the State to prove
more than just a defendant’s status as a convicted felon. In response, the State insists that
McFadden unequivocally dictates the result in this case.
¶ 15 For the reasons discussed below, we agree with the State—and with the other panels of
this court that have considered this issue—that we are bound by precedent to affirm Mr. Smith’s
AHC conviction. There is no doubt that the holding in this case and others like it extends the
reach of McFadden and greatly increases the collateral consequences of a constitutionally invalid
criminal conviction. We join the other members of this court who have recognized that this
inequitable result calls out for a legislative remedy.
¶ 16 Whether a conviction may properly serve as a predicate offense is a question of law,
which we review de novo. People v. O’Neal, 2016 IL App (1st) 132284, ¶ 29. The specific legal
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question presented here—whether the rule in McFadden that an invalid conviction can serve as a
predicate offense for a subsequent conviction should be applied in cases where the subsequent
conviction is for AHC, rather than UUWF—is one this court has already considered a number of
times. We first held, in People v. Perkins, that the rule announced in McFadden indeed applies to
convictions for AHC. People v. Perkins, 2016 IL App (1st) 150889, ¶ 10. And in the year since
Perkins was decided, this court has repeatedly reaffirmed that holding. See, e.g.,People v.
McGee, 2017 IL App (1st) 141013-B, ¶¶ 19-27; People v. Cowart, 2017 IL App (1st) 113085-B,
¶¶ 43-54; People v. Fields, 2017 IL App (1st) 110311-B, ¶¶ 38-49; People v. Faulkner, 2017 IL
App (1st) 132884-B, ¶¶ 15-33.
¶ 17 Mr. Smith attacks the holding in these cases on two fronts. First, he insists that the United
States Supreme Court’s decisions in Montgomery and Siebold require us to disregard McFadden.
In Montgomery, the Court held that the prohibition on mandatory life sentences without parole
for juvenile offenders established in Miller v. Alabama, 567 U.S. 460, 465 (2012), was a new
substantive rule that should be given retroactive effect. Montgomery, 577 U.S. at ___, 136 S. Ct.
at 734. The Court reiterated a point it had made over 100 years ago in Siebold, “that when a State
enforces a proscription or penalty barred by the Constitution, the resulting conviction or sentence
is, by definition, unlawful.” Id. at ___, 136 S. Ct. at 729-30. See also Siebold, 100 U.S. at 376-77
(noting that a conviction under an unconstitutional law “is not merely erroneous, but is illegal
and void, and cannot be a legal cause of imprisonment”).
¶ 18 We do not agree that the holding in McFadden is precluded or limited by either
Montgomery or Siebold. As we have noted before, our supreme court was well aware of those
cases when it issued its opinion in McFadden. See McGee, 2017 IL App (1st) 141013-B, ¶ 25
(noting that defense counsel in McFadden was granted leave to cite Montgomery—which in turn
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No. 1-15-1643
cites Siebold—as supplemental authority). In Montgomery, the United States Supreme Court
merely reaffirmed that “states have no power to enforce a conviction or penalty barred by the
Constitution.” People v. Smith, 2017 IL App (1st) 122370-B, ¶ 29 (citing Montgomery, 577 U.S.
at ___, 136 S. Ct. at 729-30). But the State here did not attempt to enforce Mr. Smith’s invalid
AUUW conviction; rather, it presented evidence of the existence of the conviction to establish an
element of another crime. We have relied on this distinction to reject substantially similar
arguments in other cases. See, e.g., id.; Perkins, 2016 IL App (1st) 150889, ¶ 9. Pursuant to
McFadden, it is irrelevant that Mr. Smith might very well succeed if he availed himself of the
judicial process to vacate his prior AUUW conviction. Mr. Smith failed to take such steps and
the conviction thus remained on his record.
¶ 19 Presenting a more difficult question, Mr. Smith also contends that the AHC statute, which
requires the State to prove the existence of two specific qualifying convictions, is qualitatively
different from both the UUWF statute at issue in McFadden and the federal felon-in-possession
statute in Lewis, which require only proof of a defendant’s status as a felon to make the act of
possessing a firearm illegal. Mr. Smith contends that the AHC statute is more like the penalty-
enhancing recidivist statute at issue in United States v. Bryant, 579 U.S. ___, ___, 136 S. Ct.
1954, 1961 (2016). In that case, the Supreme Court held that prior convictions obtained in tribal
court—where a defendant is not provided with counsel but where this is permissible under tribal
law and thus constitutional—could still be used as predicate convictions for purposes of a state
recidivist statute. Id. at ___, 136 S. Ct. at 1966. At the same time, however, the Court reaffirmed
the broader rule, first stated in Burgett v. Texas, 389 U.S. 109 (1967), that it is impermissible for
a conviction obtained in violation of the Constitution to be used in a subsequent proceeding
“ ‘either to support guilt or enhance punishment for another offense.’ ” Bryant, 579 U.S. at ___,
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136 S. Ct. at 1962 (quoting Burgett, 389 U.S. at 115); see also United States v. Tucker, 404 U.S.
443, 447-48 (1972) (remanding for resentencing where the trial court “gave specific
consideration to the [defendant’s] previous convictions” during sentencing but where “two of
those convictions were wholly unconstitutional”); Loper v. Beto, 405 U.S. 473, 483 (1972)
(plurality op.) (concluding that the Burgett rule against the use of uncounseled prior convictions
to prove guilt was also intended to prohibit their use to impeach a defendant’s credibility as a
witness).
¶ 20 The premise for both the Supreme Court’s decision in Lewis and our supreme court’s
decision in McFadden was that the UUWF statute and the federal felon-in-possession statute
were different from general recidivist statutes. McFadden, 2016 IL 117424, ¶¶ 23, 29. Both
employed criminal penalties to enforce what was essentially a civil prohibition against gun
possession on all individuals with felon status. Id. Both courts viewed this status-based disability
as one that could “ ‘cease only when the conviction upon which that status depend[ed] ha[d]
been vacated.’ ” Id. ¶ 29 (quoting Lewis, 445 U.S. at 61 n.5). Lewis made clear that using a
constitutionally invalid prior conviction as the basis for imposing a civil firearms disability in
this way was “not inconsistent with Burgett, Tucker, and Loper [and] *** d[id] not ‘support guilt
or enhance punishment.’ ” Lewis, 445 U.S. at 67 (quoting Burgett, 389 U.S. at 115).
¶ 21 We agree with Mr. Smith that the AHC statute is quite different from the statutes in
McFadden and Lewis. A defendant in an AHC case is already “disabled” from having a gun by
virtue of a first felony. The second felony required by the statute does not result in the imposition
of any new disability; it simply increases—significantly—the criminal sanction used to enforce
the disability. Here, Mr. Smith, who was already disqualified from possessing a gun because of
his first qualifying felony conviction, now faces a Class X sentence based solely on his prior
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AUUW conviction, which the State does not dispute is constitutionally invalid under Aguilar.
Under these circumstances, it is difficult to conclude that the invalid conviction is relied on for
anything other than to “enhance punishment,” something the Lewis Court made clear is still
prohibited under Burgett. Id.
¶ 22 The problem with Mr. Smith’s reliance on Burgett and its progeny, however, is that the
rule stated in those cases was limited some time ago by the Supreme Court, as it explained in
Custis v. United States, 511 U.S. 485, 496 (1994). There, the Court ruled that, under the Armed
Career Criminal Act of 1984 (18 U.S.C. § 924(e))—which requires enhanced sentences for those
convicted of possessing firearms after having received three prior convictions for violent felonies
or drug offenses—the government was entitled to rely on the defendant’s prior convictions
without considering whether those convictions were constitutionally invalid because the
defendant had received ineffective assistance of counsel or because his guilty plea had not been
voluntary. Custis, 511 U.S. at 496-97. The Court refused to extend the right to mount a collateral
attack on a prior conviction in later proceedings—the right contemplated in cases like Burgett
and Bryant—beyond those cases where the defendant was denied the right to have appointed
counsel, as established in Gideon v. Wainwright, 372 U.S. 335 (1963). Custis, 511 U.S. at 496-
97. Where, as here, a prior conviction is challenged on any non-Wainright basis, the Burgett line
of cases do not support the argument that it is unconstitutional to use the fact of the prior
conviction to establish the elements of a subsequent crime.
¶ 23 Of course, just because something is constitutional does not mean that it is what our
legislature intended. But on that score, we are bound by our supreme court’s construction of the
relevant statutory language in McFadden. There, the court concluded from the legislature’s use
of the past tense in the phrase “has been convicted” (720 ILCS 5/24-1.1(a) (West 2008)) that
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“[n]othing on the face of the [UUWF] statute suggests any intent to limit the language to only
those persons whose prior felony convictions are not later subject to vacatur.” McFadden, 2016
IL 117424, ¶ 27. And as McFadden made clear, the maxim that a conviction is deemed valid
until judicial process had declared it otherwise applies even to convictions under statutory
provisions deemed void ab initio. Id. ¶ 31. As a matter of statutory interpretation, Mr. Smith
provides us with no basis by which to distinguish the AHC statute, which also focuses on
whether a defendant possessed a weapon “after having been convicted” of the predicate felonies
(720 ILCS 5/24-1.7(a) (West 2008)), from the UUWF statute.
¶ 24 In sum, McFadden and Custis control the result in this case. Although Mr. Smith’s
arguments raise important distinctions between the AHC statute at issue in this case and the
UUWF statute at issue in McFadden, we are not at liberty to reach a different result in this case
based on those distinctions. We are constrained on the one hand by the McFadden court’s
interpretation of the legislative text and, on the other, by limits placed on the Burgett line of
cases by the United States Supreme Court in Custis. See Blumenthal v. Brewer, 2016 IL 118781,
¶ 28 (“Where the [s]upreme [c]ourt has declared the law on any point, it alone can overrule and
modify its previous opinion, and the lower judicial tribunals are bound by such decision and it is
the duty of such lower tribunals to follow such decision in similar cases.” (Internal quotation
marks and emphasis omitted.)); People v. Battiste, 133 Ill. App. 2d 62, 65 (1971) (noting that
decisions of the United States Supreme Court likewise “have binding effect on all lower courts
whether state or federal” (internal quotation marks omitted)). Under these authorities, it appears
permissible to use a conviction held invalid under Aguilar as a predicate offense under the AHC
statute.
¶ 25 As Mr. Smith acknowledges in his reply brief, his alternative request, that we hold this
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matter in abeyance pending the United States Supreme Court’s disposition of the petition for a
writ of certiorari filed in McFadden, is now moot, as that petition was denied on June 26, 2017.
People v. McFadden, 2016 IL 117424, cert. denied, ___ U.S. ___, 137 S. Ct. 2291 (2017).
¶ 26 Although we agree with our colleagues that evidence of a constitutionally invalid prior
conviction to establish a predicate offense for a subsequent conviction is neither unconstitutional
nor barred by the relevant statutory text, it now falls to the legislature to decide whether that is
right. To be sure, the plight of an armed felon facing a lengthy sentence is likely to garner little
sympathy. But the scenario presented by this case and others like it is troubling on a broader
level. Conduct other than the possession of firearms was once criminalized and is now
recognized as protected (see, e.g., Loving v. Virginia, 388 U.S. 1, 7-12 (1967) (state laws
criminalizing interracial marriage); Roe v. Wade, 410 U.S. 113, 164 (1973) (criminal abortion
statutes). Texas v. Johnson, 491 U.S. 397, 420 (1989) (state prohibitions on desecrating the
American flag); Lawrence v. Texas, 539 U.S. 558, 577-79 (2003) (state laws criminalizing same-
sex sexual activity)). It strikes us as wholly uncontroversial that there must be a legislative
safeguard to prevent the continued imposition of collateral consequences on individuals based on
constitutionally invalid prior convictions.
¶ 27 The solution need not be an elaborate one. For example, the application notes to the
federal sentencing guidelines, which assess “criminal history points” based on a defendant’s
previous convictions, provide as follows:
“Reversed, Vacated, or Invalidated Convictions.—Sentences resulting from convictions
that (A) have been reversed or vacated because of errors of law or because of
subsequently discovered evidence exonerating the defendant, or (B) have been ruled
constitutionally invalid in a prior case are not to be counted.” (Emphasis added.). U.S.
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Sentencing Guidelines Manual § 4A1.2 cmt. n.6. (U.S. Sentencing Comm’n 2016).
The Seventh Circuit has accordingly held that it is improper for a district court to assign points
for a defendant’s prior conviction under the portion of the AUUW statute struck down in
Aguilar. See, e.g., United States v. Jenkins, 772 F.3d 1092, 1098 (7th Cir. 2014).
¶ 28 As other members of this court have recognized, there is a significant injustice in placing
the burden on a criminal defendant to clear his record of an unconstitutional conviction in order
to avoid collateral consequences of that conviction. As the specially concurring justice in People
v. Spivey stated:
“We cannot realistically expect the public to read judicial pronouncements and seek their
own justice without assistance, or depend on defense attorneys to hunt up their old clients
who might be affected by Aguilar. And why should criminal defendants—often poor,
struggling, jobless, dependent on public funding for their defenses, unsophisticated, and
mostly black or brown—bear the burden to file the necessary paperwork for vacating
their convictions, when those convictions were caused by a legislature passing an
ultimately unconstitutional statute?” People v. Spivey, 2017 IL App (1st) 123563, ¶ 24
(Hyman, J., specially concurring).
¶ 29 These concerns are greatly amplified where, as here, we are compelled by the legal
principles espoused in binding precedent to extend the collateral consequences of an
unconstitutionally void statutory provision to situations involving truly life-altering
consequences for criminal defendants. The maximum sentence for UUWF—10 years of
imprisonment for a first offense and 14 years for a second—pales in comparison to both the 30-
year maximum sentence that a defendant faces on an AHC charge and the 60-year maximum
sentence available on an extended-term sentence for that charge. Compare 720 ILCS 5/24-1.1(e)
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(West 2012) with 720 ILCS 5/24-1.7(b) (West 2012), 730 ILCS 5/5-4.5-25(a) (West 2012), and
730 ILCS 5/5-8-2(a) (West 2012).
¶ 30 Accordingly, we join those of our colleagues who have called for a legislative solution to
this troubling situation. See People v. Somerville, 2017 IL App (1st) 132202-UB, ¶ 17 (“we
incorporate the views expressed in both the majority opinion and special concurrence in [Spivey],
regarding the need for a legislative solution to continuing effects of convictions under the statute
found unconstitutional and void ab initio in Aguilar”); Spivey, 2017 IL App (1st) 123563, ¶ 15
(majority op.) (“the author agrees with the special concurrence that the ripple effects of Aguilar
and McFadden are best resolved by the legislature”); id. ¶ 25 (Hyman, J., specially concurring)
(“[t]he legislature should consider whether it is right that these old convictions, based on an
unconstitutional statute, may be used to create ‘felon status’ in subsequent prosecutions”);
McGee, 2017 IL App (1st) 141013-B, ¶ 33 (Hyman, P.J., specially concurring) (same).
¶ 31 B. One-Act, One Crime
¶ 32 Mr. Smith’s convictions for AHC and UUWF are both based on the same physical act:
his unlawful possession of a single firearm on October 25, 2013. Mr. Smith contends, and the
State agrees, that his conviction for UUWF must therefore be vacated in accordance with the
one-act, one-crime rule. Pursuant to that rule, when a defendant is convicted of more than one
offense for the same physical act, a “sentence should be imposed on the more serious offense and
the less serious offense should be vacated.” People v. Artis, 232 Ill. 2d 156, 170 (2009).
“Pursuant to Supreme Court Rule 615(b), this court may correct the mittimus without remanding
the case to the trial court.” People v. Pryor, 372 Ill. App. 3d 422, 438 (2007) (citing Ill. S. Ct. R.
615(b)). Accordingly, we vacate Mr. Smith’s conviction for UUWF and correct the mittimus to
reflect a single conviction for AHC and a corresponding sentence of six years, plus three years of
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MSR. As there is nothing in the record indicating that the vacated convictions had any effect on
the separate sentence Mr. Smith received for AHC, it is unnecessary for us to remand for
resentencing. People v. Shelton, 252 Ill. App. 3d 193, 209 (1993).
¶ 33 CONCLUSION
¶ 34 For the foregoing reasons, we affirm Mr. Smith’s AHC conviction and vacate his UUWF
conviction.
¶ 35 Affirmed in part and vacated in part; mittimus corrected.
¶ 36 JUSTICE HARRIS, specially concurring.
¶ 37 I concur with my authoring colleague in holding that McFadden and Custis control the
result in this case, and therefore affirm Mr. Smith’s AHC conviction and vacate his UUWF
conviction. Additionally, I concur in urging a legislative solution to prevent the imposition of
collateral consequences based on constitutionally invalid prior convictions.
¶ 38 However, I do not join in paragraphs 27 through 30 of the opinion, nor the statements,
suggestions, or quote from the concurring opinion in People v. Spivey, 2017 IL App (1st)
123563, contained therein. This discussion is dicta and not necessary for our determination here.
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