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No. 1-00-0751

PRESIDING JUSTICE HALL delivered the opinion of the court:

Following a bench trial, the defendant, Dominick Steppan, was found guiltyof aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 1996)),armed violence (720 ILCS 5/33A-2(West 1996)), and aggravated battery (720 ILCS5/12-4(a) (West 1996)). The defendant was sentenced to 26 years' imprisonmentin the Department of Corrections on the aggravated battery with a firearmconviction.

The defendant appeals, raising the following issues: (1) whether he wasdenied the effective assistance of counsel by his trial attorney's failure torequest a fitness hearing prior to trial; (2) whether the trial court erred inretroactively finding him fit to stand trial; (3) whether the trial court erredin imposing sentence on his aggravated battery with a firearm conviction; and(4) whether the case must be remanded for sentencing. We affirm in part,vacate in part and remand for further proceedings.

The defendant was indicted and charged with the offenses of attemptedfirst degree murder, aggravated battery with a firearm, two counts of armedviolence, and three counts of aggravated battery, all in connection with theshooting of Charles Cox. Prior to trial, the State dismissed one of the armedviolence counts and two of the aggravated battery counts.

At the defendant's bench trial, Cox testified that on December 23, 1996,he had been drinking at a bar with the defendant and Dave Siecky. Cox accepteda ride from the defendant and Siecky. Outside the bar, they were joined by athird man. The four men drove to an alley which, Cox subsequently learned, wasbehind the defendant's house. The defendant and Siecky went into the house. Approximately 15 minutes later, the defendant came out of the house and orderedCox out of the car. When Cox exited the car, the defendant shot him in hisright thigh, saying, "Merry Christmas, m----- f-----." Cox was eventuallydiscovered and transported to a hospital. The defendant did not testify.

The trial court acquitted the defendant of attempted first degree murderand found him guilty of aggravated battery with a firearm, armed violence, andaggravated battery. The trial court also found that the aggravated batteryconviction merged with the armed violence conviction.

Defense counsel filed a motion for a judgment of acquittal or, in thealternative, a new trial. He also filed a motion seeking to withdraw ascounsel for the defendant on the basis that the defendant would not communicateor cooperate with him. The defendant filed a motion alleging that he hadreceived ineffective assistance of counsel. Inter alia, the defendant allegedthat defense counsel did not request a fitness hearing for the defendant eventhough he was aware that the defendant was taking psychotropic medication andwas receiving out-patient treatment for a psychological disorder.

The trial court granted defense counsel's motion to withdraw and appointedthe public defender to represent the defendant. The trial court also orderedthat the defendant be examined to determine his fitness for trial and forsentencing. Subsequently, private counsel filed an appearance on behalf of thedefendant.

Pursuant to the trial court's order, the defendant was examined by Dr.Stafford Christopher Henry, a forensic psychiatrist. Based upon hisexamination of the defendant, Dr. Henry concluded that the defendant was notcurrently fit for sentencing. In the course of his examination, Dr. Henryobserved that the defendant initially had difficulty enumerating the charges ofwhich he had been found guilty. The defendant described the trial judge as"sounding like a VCR going very fast" and that he could not understand what thetrial judge was saying. The defendant described his mental state on the day ofthe trial as "confused and garbled." At one point he believed that a witnesswho was testifying was actually using the voice of another. When he attemptedto bring his psychotic mental state to the attention of his attorney, theattorney told him to "shut-up."

The defendant told Dr. Henry that since the age of 13 he had heard voicescommanding him to hurt himself. He experienced an auditory hallucinationapproximately four days before the trial. During the trial, he heard voicessaying "there is no justice and to get out." The defendant admitted to a longhistory of depressive symptomatology and stated that he was currently andactively suicidal. At the time of the examination, the defendant was takingDepakote, Chlorpromazine and cithium carbonate.

Dr. Henry diagnosed the defendant as suffering from a bipolar affectivedisorder, a personality disorder not otherwise specified with antisocialfeatures, alcohol dependence, and attention deficit disorder. In Dr. Henry'sopinion, the defendant was unfit for sentencing and was subject to involuntaryadmission. However, Dr. Henry was unable to render an opinion at that time asto whether the defendant had been fit to stand trial, due to the defendant'scurrent inability to discuss his thoughts and behavior at the trial as well asthe fact that the doctor had not yet received the defendant's medical recordswhich would provide information regarding his mental state at the time of histrial.

The defendant was placed in the custody of the mental health departmentand sent to the Elgin Mental Health Center. After treatment, the staff atElgin concluded that the defendant was fit for sentencing with medication. After examining the defendant, Dr. Henry agreed that the defendant was fit forsentencing with medication. The defendant was currently taking lithium andDepakote for mood vacillations and impulsivity, and Thorazine for nervousness,agitation, irritability and impulsivity.

On September 2, 1999, following a hearing, the trial court found thedefendant fit for sentencing with medication. However, the trial courtordered that the defendant be examined to determine whether he had been fit tostand trial.

At the defendant's October 26, 1999, fitness for trial hearing, Dr. Henrytestified as follows.

Dr. Henry examined the defendant on September 28, 1999. During theexamination, the defendant attempted to focus on his belief that he hadreceived inadequate representation at his trial. One of the traits of theantisocial personality disorder that the defendant suffered from wasdeceitfulness. Dr. Henry noted several instances in which the defendant hadbeen deceitful. The defendant stated that he had been an alcoholic since age13 and had a long history of alcohol dependence. However, in his Cermak HealthService records, the defendant described himself as a "social drinker." Whenthe doctor confronted him about the discrepancy, the defendant responded thathe lied because he did not like going to meetings. The defendant also toldDr. Henry that he drank alcohol repeatedly in the weeks preceding the trial aswell as during the trial itself. He even secreted alcohol on his person sothat he could drink during the trial. However, he told the probationdepartment in connection with its social investigation that he had lastconsumed alcohol one year ago and had been sober ever since. A pivotal factorin Dr. Henry's conclusion that the defendant was unfit for sentencing was thedefendant's suicidal feelings. However, upon his admission to Elgin, thedefendant reported that his thoughts of suicide were fleeting and were nothingserious. In addition, the defendant had only been at Elgin for 21 days whenhe was deemed fit to be sentenced; in Dr. Henry's experience, people weregenerally at Elgin for a significant amount of time and that a shorter stay wasnot common.

Dr. Henry further testified that the defendant's initial recollection ofhis trial was confused and garbled but, upon further questioning, he was ableto provide details about what he remembered occurring at the time of his trial. He was aware that he had been offered a plea bargain of two years in exchangefor a plea of guilty to a lesser charge and that he had refused the offerbecause he had not committed the crime. The defendant also recalled specificexchanges with his attorney; how he tried to bring certain matters to hisattorney's attention, such as the existence of two witnesses he wanted hisattorney to call and the fact that he was on psychotropic medication. He alsorecalled the testimony of a witness and his response to it.

One of the documents Dr. Henry utilized in reaching his conclusion was thetranscript of the proceeding wherein the defendant elected to waive a jurytrial in favor of a bench trial. Dr. Henry read into the record the followingcolloquy which had occurred at that proceeding:

"'THE COURT: Let the record reflect we are in the Judge's chambersbecause we have a jury in the courtroom in the presence of the Defendant,his attorney, and the Prosecutors in this case.

Your lawyer indicated to me, Mr. Steppan, that you are asking,waiving the right to trial by jury and are proceeding to trial by theCourt. Realize that, before you do that, the right to trial by jury isone that is guaranteed by the Constitution of the United States, and itconsists of 12 persons deciding whether or not you are guilty, and so ifyou decide to have the case tried by the Judge, you give up aconstitutional right. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: And there are no promises or considerations made?

THE DEFENDANT: From nobody, from nobody, no, sir; it is my choice. This is my choice, your Honor.

THE COURT: Because - -

THE DEFENDANT: It is my understanding you decide the facts, youdecide the law. The Jury decides the facts. I would rather take a benchtrial, and if you want me to sign - -'

'THE DEFENDANT: *** a Jury Waiver - -

THE COURT: That is the next thing I have to do. It is a matter oflaw. Sign your name to the Waiver of the right to trial by jury, andindicate that Mr. Petro (defense counsel) is preparing the form.

THE DEFENDANT: Could I ask you one question? I have two (2)witnesses that the State - - that the State has been subpoenaing sincethe case has been going on. For some reason or another - -

MR. PETRO: Do you want to talk to me about this first?

THE COURT: Here is the thing - -

THE DEFENDANT: I am just wondering why they weren't subpoenaedbecause they are in my favor now. You understand what I am saying?

THE COURT: Those kind of things, Mr. Steppan, you know - -

THE DEFENDANT: I understand, I understand.

THE COURT: You should discuss with your lawyer because you have alawyer.

THE DEFENDANT: And I will.

THE COURT: You are to use that 6th Amendment right to an attorney. Keep him as a barrier between himself and everyone else. You can'trepresent both yourself and use an attorney, so mention those matters toyour lawyer, and we will see what we can do.

MR. PETRO: I think we should correct one thing. He indicated thathe thought that the jury was going to decide the facts and that you weregoing to decide the law. At a bench trial, you would decide them both.

THE DEFENDANT: Right.

THE COURT: Right. He was correct on that. Mr. Steppan tried onecase previously where it was [a] bench trial, and the Judge - - I was theJudge. I decided the law and the facts in the case, and I have no biasagainst the Defendant.

THE DEFENDANT: Thank you, sir. If I thought you did, I wouldn'ttake a bench trial. I would go with a jury.

THE COURT: Let the record reflect that Mr. Steppan is executing awritten Jury Waiver. At this time, I am going to discharge the jury.

THE DEFENDANT: We will be here tomorrow?

THE COURT: We are going to start in a minute. Let's go into thecourt.'"

Dr. Henry found the above exchange to be significant for several reasons. It indicated that, at the time of the trial, the defendant had a clearunderstanding of his choice to have either a jury or a bench trial. It alsoindicated that the defendant was aware of the proper decorum to assume inaddressing the judge. On another occasion, the defendant had apologized tothe judge for being late. It further indicated his ability to assimilateinformation.

Based upon these factors, Dr. Henry concluded within a reasonable degreeof medical certainty that at the time of his trial, the defendant was fit tostand trial with medication. The defendant told him that, at the time of histrial, he was taking lithium, Thorazine, Depakote, and Ritalin, all of whichwould have aided his fitness at the time of his trial.

On cross-examination, Dr. Henry testified that in reaching his opinionthat the defendant was not fit for sentencing, he had relied largely on thedefendant's "self-report" in which he reported his symptoms to be pronouncedand that he was acutely suicidal.

According to Dr. Henry, the use of alcohol with psychotropic medicationscould cause a clouding of one's mental ability, cause a lot of frustration anda tendency to be impulsive. While Dr. Henry could not state with certaintywhat effects the consumption of alcohol, in combination with the psychotropicdrugs, had on the defendant at the time of his trial, he relied on theinformation gathered from his evaluations of the defendant, the psycho-socialhistory provided by the defendant's wife, as well as the trial transcripts inevaluating the defendant's mental state at the time of his trial.

Dr. Henry acknowledged that it was easier to determine someone's fitnesscloser to the time frame for which the opinion was being sought but denied thatit would be a better based opinion. The fact that the defendant suffered someperceptual difficulties, such as the witness speaking with another person'svoice, would not have caused his decision to reject the plea agreement. Thedefendant was able to explain why he rejected the plea agreement, and it wasdifficult to imagine a continuous disturbance that interfered with hisreasoning ability relative to the plea offer that he considered over time.

At the conclusion of the hearing, the trial court found that the defendanthad been fit for trial. Following sentencing, the defendant filed a timelynotice of appeal.

To prevail on a claim of ineffective assistance of counsel, the defendantmust show that (1) counsel's performance was so seriously deficient as to fallbelow an objective standard of reasonableness under prevailing professionalnorms, and (2) the deficient performance so prejudiced the defendant as to denyhim a fair trial. People v. Mitchell, 189 Ill. 2d 312, 332, 727 N.E.2d 254,267 (2000); Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693,104 S. Ct. 2052, 2064 (1984).

In Illinois, a defendant is presumed fit to stand trial, to plead and tobe sentenced. A defendant is unfit if, because of his mental or physicalcondition, he is unable to understand the nature and purpose of the proceedingsagainst him or to assist in his defense. 725 ILCS 5/104-10 (West 1996). Atrial court has a duty to order a fitness hearing whenever there exists a bonafide doubt as to the defendant's ability to understand the charges against himand to participate in his defense. People v. Kinkead, 168 Ill. 2d 394, 407,660 N.E.2d 852, 857 (1995).

In Mitchell, our supreme court overruled prior case law which hadinterpreted section 104-21 of the Code of Criminal Procedure of 1963 (the Code)(725 ILCS 5/104-21 (West 1994)) as providing that a bona fide doubt as to adefendant's fitness was raised and a fitness hearing must be held if thedefendant was taking psychotropic medication. See Mitchell, 189 Ill. 2d at330-31, 334, 727 N.E.2d at 266-67, 268 (overruling in part People v. Gevas, 166Ill. 2d 461, 655 N.E.2d 894 (1995), and overruling People v. Brandon, 162 Ill.2d 450, 643 N.E.2d 712 (1994)). Moreover, the Illinois legislature amendedsection 104-21(a) effective December 31, 1996, to provide that a defendant whowas receiving psychotropic drugs would not be presumed unfit to stand trialsolely by virtue of receiving those drugs or medications. People v. Wiggins,312 Ill. App. 3d 1113, 1115, 728 N.E.2d 772, 774 (2000); see 725 ILCS 5/104-21(a) (West 1998).

Whether a bona fide doubt as to a defendant's fitness has arisen isgenerally a matter within the trial court's discretion. People v. Damico, 309Ill. App. 3d 203, 209, 722 N.E.2d 194, 200 (1999). Relevant factors that atrial court may consider in assessing whether a bona fide doubt of fitnessexists include a defendant's "'"irrational behavior, his demeanor at trial, andany prior medical opinion on competence to stand trial."' [Citations.]" Damico,309 Ill. App. 3d at 209, 722 N.E.2d at 200. It is undisputed, however, thatthere are "'"no fixed or immutable signs which invariably indicate the need forfurther inquiry to determine fitness to proceed; the question is often adifficult one in which a wide range of manifestations and subtle nuances areimplicated."' [Citations.]" Damico, 309 Ill. App. 3d at 209, 722 N.E.2d at 200. Some doubt of a defendant's fitness is not enough. Damico, 309 Ill. App. 3d at209, 722 N.E.2d at 200.

The defendant contends that a bona fide doubt as to his fitness to standtrial existed is borne out by the following factors: that he was takingpsychotropic medication around the time of his trial, that he had a priorhistory of mental illness, that the trial court ordered him to undergopsychiatric examinations and conducted fitness hearings, and that, initially,he was found unfit for sentencing even though he was on medication. Thedefendant also points out that his trial attorney withdrew from representinghim because he could not communicate with the defendant.

A defendant may be competent to participate at trial even though his mindis otherwise unsound. Damico, 309 Ill. App. 3d at 210, 722 N.E.2d at 201. Fitness speaks only to a person's ability to function within the context of atrial; it does not refer to competence in other areas. Damico, 309 Ill. App.3d at 210, 722 N.E.2d at 201. No single factor in and of itself raises a bonafide doubt of a defendant's fitness to stand trial; the fact that the defendantsuffers a mental disturbance or requires psychiatric treatment does notnecessarily raise a bona fide doubt. Damico, 309 Ill. App. 3d at 210, 722N.E.2d at 201. Even evidence of extreme disruptive behavior does not compelthe conclusion that a bona fide doubt exists as to a defendant's fitness tostand trial. Damico, 309 Ill. App. 3d at 210, 722 N.E.2d at 201.

The factors cited by the defendant do not raise a bona fide doubt as tohis fitness to stand trial. The record in this case supports the finding thatthe defendant was able to understand the charges against him and to participatein his defense. Dr. Henry observed that, while the defendant's initialrecollection of the trial was garbled and confused, upon further questioning,he was able to recall details about the trial. He also was able to articulatea reason for refusing the plea offer made by the State, namely, that he had notcommitted the act charged. The defendant's exchange with the trial court inconnection with his waiver of a jury trial indicated that he understood therights he was giving up, that he understood the function of the trial court ina bench trial, and that he was participating in his defense by asking about thesubpoenaing of witnesses favorable to him.

The fact that the defendant was initially found unfit for sentencing doesnot raise a bona fide doubt as to the defendant's fitness to stand trial inthis case. As Dr. Henry explained, his opinion that the defendant was unfitfor sentencing was based upon what the defendant told him, a pivotal factorbeing the defendant's thoughts of suicide. Also, Dr. Henry was not as yet inpossession of the defendant's records from Cermak Health Service. Subsequentto formulating his opinion that the defendant was unfit for sentencing, Dr.Henry learned that the defendant had acknowledged at Elgin that his thoughts ofsuicide were not serious and that the defendant had told inconsistent storiesabout his alcohol consumption. Therefore, the fact that the defendant wasfound unfit for sentencing does not raise a bona fide doubt as to his fitnessto stand trial.

The defendant's reliance on People v. Jackson, 57 Ill. App. 3d 809, 373N.E.2d 583 (1978), is misplaced. In that case, the trial court had ordered afitness examination of the defendant prior to sentencing but had proceeded tosentence the defendant without him having been examined and despite having beeninformed that the defendant had not received the medication necessary tomaintain his fitness. Jackson, 57 Ill. App. 3d at 814, 373 N.E.2d at 587. Thereviewing court reversed and remanded for a new sentencing hearing finding thata bona fide doubt existed as to the defendant's fitness to be sentenced, sincethe trial court had previously found the defendant fit on the basis that he wastaking medication which allowed him to cooperate with his attorney, and that byordering the presentence fitness examination, the trial court indicated aconcern as to the defendant's fitness. Jackson, 57 Ill. App. 3d at 814, 373N.E.2d at 587. In the instant case, the trial court ordered the presentencefitness examination because the defendant requested it, not because an issue asto fitness had been raised prior to trial or because the trial court sua sponteraised the issue of fitness based upon a concern as to the defendant's fitness. In addition, the finding of unfitness to be sentenced was based upon certainfactors that were later discovered to be unreliable.

Finally, the fact that the defendant's trial attorney withdrew because hecould not communicate with the defendant does not raise a bona fide doubt ofthe defendant's fitness to stand trial in the absence of a reflection in therecord of the nature and the extent of the communication problem between thedefendant and his trial counsel. See Jackson, 57 Ill. App. 3d at 814, 373N.E.2d at 586.

We conclude that the defendant has failed to demonstrate that a bona fidedoubt existed as to his fitness to stand trial, and therefore, the defendanthas failed to demonstrate that his trial counsel's performance fell below anobjective standard of reasonableness. Having determined that the defendantfailed to satisfy the first prong of the Strickland test, we hold that thedefendant was not deprived of the effective assistance of counsel. See Peoplev. Burgess, 176 Ill. 2d 289, 313, 680 N.E.2d 357, 367 (1997) (defendant mustestablish both prongs of the Strickland test in order for the court to find theineffective assistance of counsel).

Next, the defendant contends that the trial court erred in retroactivelyfinding him fit to stand trial.

Initially, we note that our supreme court's prior disapproval ofretroactive fitness hearings has been overcome. See Mitchell, 189 Ill. 2d at338, 727 N.E.2d 254, 270; People v. Neal, 179 Ill. 2d 541, 554, 689 N.E.2d1040, 1046 (1997); Burgess, 176 Ill. 2d at 303, 680 N.E.2d at 363.

A trial court's determination regarding fitness will not be disturbed onreview unless it is against the manifest weight of the evidence. People v.Cortes, 181 Ill. 2d 249, 276-77, 692 N.E.2d 1129, 1141 (1998).

The defendant maintains that the State failed to carry its burden ofproving that the defendant was fit to stand trial. He argues that the findingthat he was unfit for sentencing raises a bona fide doubt that he had been fitto stand trial. He further argues that Dr. Henry was unable to render anopinion as to the effect on his mental state of the combination of alcohol andthe psychotropic drugs he was ingesting at the time of his trial.

The defendant's reliance on People v. Johnson, 121 Ill. App. 3d 859, 460N.E.2d 336 (1984), is misplaced. In that case, the reviewing court determinedthat the fact that the defendant was found unfit for sentencing presented a riskthat the defendant may have been unfit for trial. However, in finding that a bonafide doubt existed as to the defendant's fitness for trial, the court also reliedon the additional factors that defendant's demeanor both before and at trialindicated that he had serious mental problems and defense counsel'srepresentations to the trial court that a doctor had informed him that thedefendant was unfit for trial. Johnson, 121 Ill. App. 3d at 861, 460 N.E.2d at338. None of those additional factors are present in this case. Moreover as wepreviously noted, the initial finding that the defendant was unfit for sentencingwas based upon factors later determined to be unreliable.

While Dr. Henry could not render an opinion as to the effect that alcohol hadon the defendant, given the psychotropic drugs he was taking at the same time, thedoctor testified that his conversations with the defendant and the verifieddocumentation established the clarity of the defendant's mental state and hisability to process information. The doctor also rejected the concept thatpsychotropic drugs caused the defendant to act impulsively in rejecting theState's plea offer in light of the defendant's consideration of the offer oversome period of time prior to rejecting it. Further, it must be noted that thedefendant's testimony as to his alcohol intake must be subject to suspicion giventhe inconsistent information he gave regarding his alcohol usage.

We conclude that the trial court's decision that the defendant was fit fortrial was not against the manifest weight of the evidence.

The defendant contends that the trial court erred when it sentenced him onhis conviction for aggravated battery with a firearm.

The defendant was found guilty of armed violence, aggravated battery with afirearm and aggravated battery. The trial court found that the aggravated batteryconviction merged into the armed violence conviction. At the defendant'ssentencing hearing, the trial court imposed a sentence only on the aggravatedbattery with a firearm conviction.

The defendant correctly argues that when multiple convictions of greater orlesser offenses arise from a single act, a sentence should be imposed on the mostserious offense, and the convictions on the less serious offenses should bevacated. People v. Edwards, 304 Ill. App. 3d 250, 255, 710 N.E.2d 507, 510(1999). The question then becomes, which offense is the greater of the two? The State argues that in this case, neither offense could be deemed thegreater of the other in light of People v. Cervantes, 189 Ill. 2d 80, 723 N.E.2d(1999). In Cervantes, our supreme court held that Public Act 88-680 (Pub. Act 88-680, eff. January 1, 1995), under which the legislature increased the minimumpenalty for armed violence with a category I weapon to 15 years' imprisonment (see720 ILCS 5/33A-3(a) (West 1996)), was unconstitutional as violative of the singlesubject rule. Cervantes, 189 Ill. 2d at 98, 723 N.E.2d at 274. The Statemaintains that since prior to the 1995 amendment armed violence carried the samesentence as aggravated battery with a firearm, neither offense could be deemed thegreater of the other, and therefore, the trial court had the right to sentence thedefendant on either offense.

Both aggravated battery with a firearm and armed violence (with a categoryI weapon) are Class X felonies. See 720 ILCS 5/12-4.2(b), and 720 ILCS 5/33A-3(a)(West 1994). A longer prison sentence would appear to represent a legislativedetermination that one offense is more serious than another.

People v. Cosby, 305 Ill. App. 3d 211, 228, 711 N.E.2d 1174, 1187 (1999). However, in People v. Mack, 105 Ill. 2d 103, 473 N.E.2d 880 (1984), our supremecourt noted that such an approach is of no assistance where the offenses carry thesame penalty. Thus, where the defendant was convicted of three counts of murderbut where there was only one victim, the court determined that the most seriousof the three counts was the one with the more culpable mental state of theintentional and knowing killing of the victim rather than the shooting of thevictim with a gun knowing the shooting created a strong probability of death orgreat bodily harm. Mack, 105 Ill. 2d at 137, 473 N.E.2d at 898.

As charged in this case, it would appear that aggravated battery with afirearm would be the more serious offense since it carried the more culpablemental state than did the armed violence charge: the defendant was charged withintentionally or knowingly discharging a firearm and knowingly causing injury tothe victim, whereas the armed violence charge stated only that the defendantcommitted aggravated battery while armed with a handgun. See People v. Bowens,307 Ill. App. 3d 484, 495, 718 N.E.2d 602, 611 (1999) (although attempted murderand armed violence are both Class X felonies, attempted murder is considered themore serious offense since it is a specific intent crime).

We observe, however, that at the time the defendant committed the offensesand was sentenced in this case, armed violence carried a minimum sentence of 15years, while aggravated battery with a firearm carried a minimum sentence of 6years, indicating that the legislature had determined that armed violence was amore serious offense than aggravated battery with a firearm. This conclusionfinds further support in the recent amendment to section 33A-1, where thelegislature expressed its concern with the use of dangerous weapons in thecommission of a felony offense recognizing that the use of a firearm in thecommission of a criminal felony offense "significantly *** increases the potentialfor harm to more persons." Pub. Act 91-404,