People v. Akins

2014 IL App (1st) 093418-B, 16 N.E.3d 50

Opinion

2014 IL App (1st) 093418-B

SECOND DIVISION June 17, 2014

No. 1-09-3418

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 08 CR 14227 ) RASHEEN AKINS, ) Honorable ) Victoria A. Stewart, Defendant-Appellant. ) Judge Presiding.

JUSTICE PIERCE delivered the judgment of the court, with opinion. Justices Simon and Liu concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, defendant Rasheen Akins was found guilty of four counts of

aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6 (West 2008)) and was

sentenced to 12 months’ probation. He was also assessed fines and fees totaling $300. On

August 3, 2011, we affirmed defendant's conviction but vacated his violent victim's assistance

fee reinstating it in a different amount, and vacated his court system fee. People v. Akins, 2011

IL App (1st) 093418-U. Pursuant to a January 29, 2014, supervisory order from our supreme

court (People v. Akins, No. 112886 (Ill. Jan. 29, 2014) (supervisory order)), we now vacate our 1-09-3418

August 3, 2011, order and reconsider the issues raised in light of People v. Aguilar, 2013 IL

112116.

¶2 BACKGROUND

¶3 Defendant was charged in this case with four counts of aggravated unlawful use of a

weapon (AUUW): count I for violating section 24-1.6(a)(1), (a)(3)(A), which criminalizes the

possession of an “uncased, loaded and immediately accessible" firearm on one’s person or in

one’s vehicle (hereinafter, "possession outside the home"); count II for violating section 24-

1.6(a)(1), (a)(3)(C), which criminalizes the possession of a firearm on one’s person or in one’s

vehicle without a valid Firearm Owner’s Identification Card (FOID card) (hereinafter,

"possession outside the home with no FOID card"); count III for violating section 24-1.6(a)(2),

(a) (3)(A), which criminalizes the possession of firearm that is “uncased, loaded, and

immediately accessible" "upon any public street, alley, or other public lands" within city limits

(hereinafter, "possession on the public way"); and count IV for violating section 24-1.6(a)(2),

(a)(3)(C) which makes it unlawful to possess a firearm within city limits without a valid FOID

card (hereinafter "possession on the public way with no FOID card"). 720 ILCS 5/24-1.6(a)(1),

(a)(3)(A), (a)(3)(C), (a)(2), (a)(3)(A), (a)(3)(C) (West 2008).

¶4 The record shows, in relevant part, that about 10:15 p.m., on July 16, 2008, police

responded to a call of an individual with a gun at 10432 South Maryland Street, in Chicago.

When they arrived on the scene they saw defendant, who matched the description given to them

of the offender. As they approached him, defendant fled into a vacant lot. The officers gave

chase and pursued him into an alley where Chicago police officer Inez Benson observed him

remove a blue steel, semi-automatic Glock handgun, loaded with 17 live rounds, from his

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waistband and discard it into a yard. Defendant was apprehended in the adjacent yard and did

not furnish a valid FOID card. After a bench trial, the court found defendant guilty of four

counts of AUUW and sentenced him to 12 months’ probation.

¶5 On direct appeal, defendant challenged the constitutionality of the AUUW statute and

certain of the pecuniary penalties imposed by the court. On August 3, 2011, we affirmed

defendant's conviction but vacated his violent victim's assistance fee, reinstating it in a different

amount, and vacated his court system fee. People v. Akins, 2011 IL App (1st) 093418-U. On

January 29, 2014, our supreme court issued a supervisory order in this case ordering this court to

vacate our August 3, 2011, order and to reconsider the issues raised by defendant in light of the

court’s recent decision in People v. Aguilar, 2013 IL 112116.

¶6 On March 21, 2014, on the court's own motion, we ordered the parties to file

supplemental briefs in this case to address the applicability of Aguilar. We have received and

considered those briefs. For the reasons stated below, we vacate defendant’s convictions under

counts I and III, but affirm the remaining convictions under counts II and IV. We also again

vacate his violent victim's assistance fee reinstating it in a different amount and vacate his court

system fee.

¶7 ANALYSIS

¶8 To convict a defendant of AUUW, the State must prove beyond a reasonable doubt either

that a defendant carried a weapon on his person or in his vehicle, outside his home (720 ILCS

5/24-1.6(a)(1) (West 2008)) or carried a weapon on his person on the public way (720 ILCS

5/24-1.6(a)(2) (West 2008)) and one of the nine factors in subsection (a)(3). 720 ILCS 5/24-

1.6(a)(1) to (a)(3) (West 2008); People v. Zimmerman, 239 Ill. 2d 491, 499 (2010). Subsection

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(a)(3) lists the nine factors that " 'transform' " the offense of unlawful use of a weapon to

AUUW. People v. Henderson, 2013 IL App (1st) 113294, ¶ 21; 720 ILCS 5/24-1.6(a)(3) (West

2008). Relevant to this case are factors (3)(A), the firearm was uncased, loaded and immediately

accessible, and (3)(C), the person possessing the firearm had not been issued a valid FOID card.

¶9 Defendant was convicted of four counts of AUUW. Counts I and III were based on

defendant’s possession of an uncased, loaded, and immediately accessible firearm. 720 ILCS

5/24-1.6(a)(1), (a)(3)(A), (a)(2), (a)(3)(A) (West 2008). Counts II and IV were predicated on

defendant’s possession of a firearm in conjunction with his inability to produce a valid FOID

card. 720 ILCS 5/24-1.6(a)(1), (a)(3)(C), (a)(2), (a)(3)(C) (West 2008).

¶ 10 Recently, in Aguilar, 2013 IL 112116, ¶ 22, our supreme court found the Class 4 form of

AUUW that makes it illegal to possess an uncased, loaded firearm outside one's home to be a

comprehensive ban that categorically prohibits possession and use of a firearm for self-defense

outside of the home in contravention of the right to bear arms. 720 ILCS 5/24-1.6(a)(1),

(a)(3)(A) (West 2008)). The Aguilar court noted that the United States Supreme Court has

stated that a central component of the second amendment right to bear arms is "‘the inherent

right of self-defense.’" Aguilar, 2013 IL 112116, ¶ 16, (citing District of Columbia v. Heller, 554

U.S. 570, 628 (2008)); see also McDonald v. City of Chicago, 561 U.S. __, 130 S. Ct. 3020,

3026 (2010). Consequently, the court reversed Aguilar's AUUW conviction. Aguilar, 2013 IL

112116, ¶ 22.

¶ 11 When a statue is declared unconstitutional, it is void ab initio, or as though the law had

never been passed. See People v. Tellez-Valencia, 188 Ill. 2d 523, 526 (1999). Both defendant

and the State agree that pursuant to the court's holding in Aguilar, we must vacate defendant's

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possession outside the home conviction under count I (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West

2008)), because it is void ab initio. In addition, the parties agree that defendant’s conviction

under count III for possession on the public way (720 ILCS 5/24-1.6(a)(2),(a)(3)(A) (West

2008)), should be vacated pursuant to Aguilar because it also concerns possession of an

“uncased, loaded and immediately accessible” firearm while outside of the home. The only

distinction between the charge invalidated in Aguilar and the charge in count III is that the

former concerns firearm possession on another person’s privately owned land or in a privately-

owned vehicle, while the latter concerns firearm possession on a public way. 720 ILCS 5/24-

1.6(a)(1), (a)(3)(A), (a)(2), (a)(3)(A) (West 2008). While we acknowledge that the Aguilar court

specifically limited its holding to possession outside of the home (720 ILCS 5/24

1.6(a)(1),(a)(3)(A) (West 2008)), we agree with the parties that the reasoning in Aguilar extends

to defendant's conviction for possession on the public way (720 ILCS 5/24-1.6(a)(2),(a)(3)(A)

(West 2008)). We therefore vacate defendant’s convictions under counts I and III.

¶ 12 Defendant also argues that his remaining convictions for possession without a FOID card

and possession on a public way without a FOID card, counts II and IV, must be vacated under

Aguilar. Defendant maintains that while Aguilar did not expressly strike down the subsections

of the AUUW statute predicated upon a defendant’s inability to produce a valid FOID card (720

ILCS 5/24-1.6(a)(1), (a) (3)(C), (a)(2),(a)(3)(C) (West 2008)), those provisions are nonetheless

unconstitutional for two reasons. First, they are inextricably bound to the subsections found

unconstitutional in Aguilar and cannot be severed. Second, they are facially unconstitutional as

they deny adults 18 to 20 years of age the right to keep and bear arms for the purpose of self-

defense.

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¶ 13 We find People v. Henderson, 2013 IL App (1st) 113294, dispositive of defendant’s

arguments. The defendant in Henderson argued that his conviction for possession outside the

home without an FOID card (720 ILCS 5/24-1.6 (a)(1), (a)(3)(C) (West 2008)) should be

reversed under Aguilar because it was not severable from the subsections found to be

unconstitutional. This court upheld that conviction holding that the subsection was not facially

unconstitutional and was severable from the subsection struck in Aguilar. Henderson, 2013 IL

App (1st) 113294, ¶¶ 13-23. In so holding, we reasoned that the FOID section was severable

because the subsections that define the possession elements of the offense, subsection (a)(1) and

(a)(2), combined with the factor setting forth the element of carrying a firearm without a FOID

card, can stand independently from the subsection struck down by Aguilar, because the

subsection struck down by Aguilar is only one of several factors that could constitute the offense

of AUUW. Henderson, 2013 IL App (1st) 113294, ¶ 22. Removing the subsection struck down

by Aguilar "undermines neither the completeness nor the executability of the remaining

subsections," and therefore, it cannot be concluded that the FOID provision is "so intertwined

with the rest of the statute that the legislature intended the statute to stand or fall as a whole."

(Internal quotation marks omitted.) Henderson, 2013 IL App (1st) 113294, ¶ 22. Defendant has

not provided any compelling reason for us to depart from the reasoning in Henderson on this

issue and we therefore reject defendant’s argument.

¶ 14 Relying on Coram v. State of Illinois, 2013 IL 113867 (the Illinois Constitution grants

individualized rights, which allows for individualized consideration of a person's right to keep

and bear arms, including the right to consider and reject an application for a FOID card),

Henderson also rejected the defendant’s argument that the failure to possess a valid FOID card

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(720 ILCS 5/24-1.6(a)(3)(C) (West 2008)), used to transform an otherwise unlawful use of a

weapon offense under either subsection (a)(1) or subsection (a)(2) to an AUUW, is

unconstitutional (720 ILCS 5/24-1.6(a)(1), (a)(3)(C), (a)(2), (a)(3)(C) (West 2008)), as it denies

adults 18 to 20 years of age the right to keep and bear arms for the purpose of self-defense.

Henderson, 2013 IL App (1st) 113294, ¶ 30 (rejecting defendant’s claim that “the public carriage

of handguns by those under 21 is core conduct subject to second amendment protection”). In

addition, subsequent to Henderson, this court in People v. Taylor, 2013 IL App (1st) 110166, ¶

32, upheld the FOID card subsections of the AUUW statute, finding that:

“Because the restriction in section 24-1.6(a)(1), (a)(3)(C) is limited to those

lacking a FOID card and is not a flat ban, we decline to extend the holding of Aguilar to

this section of the AUUW statute. Moreover, under either strict scrutiny analysis or the

more recently used 'text, history, and tradition' approach, this section of the AUUW

statute does not violate the right to bear arms guaranteed under the second amendment.

We, therefore, find that section 24-1.6(a)(1), (a)(3)(C) is not facially unconstitutional.”

¶ 15 We find no reason to depart from our holdings in Henderson or Taylor, and find that the

FOID requirement does not violate the second amendment under the rationale of Aguilar because

it denies those 18 to 20 years of age their right to bear arms. Consequently, we find that

defendant’s convictions for counts II and IV are not unconstitutional under Aguilar and must

stand.

¶ 16 Defendant next challenges the calculation and assessment of certain of the pecuniary

penalties imposed by the court. Although defendant did not raise these claims in the circuit

court, this court has recognized that a sentencing error may affect defendant's substantial rights,

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and thus can be reviewed for plain error. People v. Black, 394 Ill. App. 3d 935, 939 (2009)

(citing People v. Hicks, 181 Ill. 2d 541, 544-45 (1998)). The propriety of court-ordered fines and

fees raises a question of statutory interpretation, which we review de novo. People v. Price, 375

Ill. App. 3d 684, 697 (2007).

¶ 17 Defendant first claims that his $20 fee under the Violent Crime Victims Assistance Act

(VCV Act) (725 ILCS 240/10 (West 2008)) should be reduced to $4 where he was also assessed

a $30 Children's Advocacy Center fine. The State concedes that defendant should only have

been assessed $4 pursuant to section 10(b) of the VCV Act. We agree, and therefore vacate the

$20 VCV Act fine and order the circuit court clerk to amend defendant's fee order to include a $4

fee pursuant to section 10(b) of the VCV Act. People v. Jones, 397 Ill. App. 3d 651, 660-61

(2009).

¶ 18 Defendant next contests the assessment of a $5 court system fee. The State concedes that

the assessment was improper in this case, and we agree that the fee does not apply because

defendant was convicted of AUUW, a violation of the Criminal Code of 1961, and not a

violation of the Illinois Vehicle Code (625 ILCS 5/1400 et seq. (West 2008)) or of a similar

municipal ordinance (55 ILCS 5/5-1101(a) (West 2008)), to which the fee is directed. We

therefore vacate the $5 court system fee.

¶ 19 Defendant finally contends that he was improperly assessed a $25 court services fee,

claiming that the statute only authorizes assessment of the fee under certain criminal statutes,

none of which include the offense of armed robbery. The State responds that the statute

authorizes assessment of the fee in all criminal cases resulting in a judgment of conviction.

¶ 20 Under the Counties Code (55 ILCS 5/5-1103 (West 2008)), the court may assess a $25

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court services fee against a defendant upon a finding of guilty resulting in a judgment of

conviction, or for an order of supervision or probation without entry of judgment made under

specific enumerated criminal provisions. People v. Williams, 405 Ill. App. 3d 958, 965 (2010).

In this case, a judgment of conviction was entered against defendant, which, alone, made him

eligible for the court services fee. Id. We thus find that the trial court did not err in assessing

him a $25 court services fee.

¶ 21 CONCLUSION

¶ 22 For the reasons stated, we vacate defendant’s convictions for AUUW in counts I and III,

vacate the $20 VCV Act fee and the $5 court system fee, order the circuit court clerk to modify

the fines and fees order to that effect and to include a $4 fee pursuant to section 10(b) of the

VCV Act, and affirm the judgment in all other respects.

¶ 23 Vacated in part; affirmed in part; modified.