2024 IL App (1st) 231277-U No. 1-23-1277 Order filed November 12, 2024 First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 21 CR 1529 ) MICHAEL LEWIS, ) Honorable ) Sophia Atcherson, Defendant-Appellant. ) Judge, presiding.
JUSTICE COBBS delivered the judgment of the court. Justices Lavin and Pucinski concurred in the judgment.
ORDER
¶1 Held: The circuit court’s order denying defendant’s petition for relief from judgment is affirmed where the statute under which he was convicted is not unconstitutional on its face.
¶2 Defendant Michael Lewis appeals from the denial of his petition for relief from judgment
filed pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West
2022)). On appeal, defendant contends that his conviction is unconstitutional on its face under New
York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). We affirm. No. 1-23-1277
¶3 Defendant was charged with, inter alia, aggravated unlawful use of a weapon (AUUW)
(720 ILCS 5/24-1.6(a)(1), (3)(A-5) (West 2020)). In particular, the indictment alleged that
defendant had not been issued a currently valid license under the Firearm Concealed Carry Act
(Concealed Carry Act) (430 ILCS 66/1 et seq. (West 2020)), and defendant qualified for Class 2
sentencing due to a prior felony conviction (720 ILCS 5/24-1.6(d)(3)).
¶4 On December 9, 2021, defendant pleaded guilty to one count of Class 2 AUUW in
exchange for five years’ imprisonment, consecutive to the 5-year sentence imposed for possession
of a controlled substance in circuit court case number 19 CR 15025. The factual basis for
defendant’s plea established that, on January 14, 2021, police officers responded to a call at Avis
Car Rental in Franklin Park, Illinois, where defendant, who had an active warrant, possessed a
loaded firearm. The State would have presented evidence that defendant had been convicted under
circuit court case number 14 CR 15720 for possession of a stolen motor vehicle. Defendant did
not file a direct appeal.
¶5 On December 14, 2022, defendant filed a petition for relief from judgment arguing that his
AUUW conviction was void under People v. Aguilar, 2013 IL 112116.
¶6 On May 19, 2023, the circuit court denied defendant’s petition in a written order. The court
found that Aguilar did not apply to defendant’s Class 2 AUUW conviction premised on a prior
felony conviction.
¶7 Defendant filed a motion seeking leave to file a late notice of appeal on July 18, 2023,
which this court granted on July 24, 2023.
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¶8 On appeal, defendant argues that the AUUW statute is unconstitutional on its face under
the second amendment to the United States Constitution because the statute fails under the new
framework set forth in Bruen.
¶9 Here, defendant was convicted of AUUW under sections 1.6(a)(1) and (3)(A-5) of the
statute, which provide that “[a] person commits the offense of aggravated unlawful use of a weapon
when he or she knowingly: (1) carries on or about his person or in any vehicle or concealed on or
about his person *** any *** firearm,” and “(A-5) *** has not been issued a currently valid license
under the Firearm Concealed Carry Act.” 720 ILCS 5/24-1.6 (a)(1), (3)(A-5) (West 2020).
¶ 10 Section 2-1401 of the Code is a civil remedy that extends to criminal cases and provides a
statutory mechanism for vacating final judgments more than 30 days from their entry. 735 ILCS
5/2-1401 (West 2020); People v. Stoecker, 2020 IL 124807, ¶ 18. More specifically, a section 2-
1401 petition is the means by which “to correct all errors of fact occurring in the prosecution of a
cause, unknown to the petitioner and court at the time judgment was entered, which, if then known,
would have prevented its rendition.” People v. Haynes, 192 Ill. 2d 437, 461 (2000).
¶ 11 “Relief under section 2-1401 is predicated upon proof, by a preponderance of evidence, of
a defense or claim that would have precluded entry of the judgment in the original action and
diligence in both discovering the defense or claim and presenting the petition.” People v. Vincent,
226 Ill. 2d 1, 7-8 (2007). A section 2-1401 petition is “not designed to provide a general review of
all trial errors nor to substitute for direct appeal.” (Internal quotation marks omitted.) Haynes, 192
Ill. 2d at 461. A trial court may sua sponte dispose of a section 2-1401 petition when it is clear on
its face that the defendant is not entitled to relief as a matter of law. Vincent, 226 Ill. 2d at 12.
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Where a section 2-1401 petition was decided without an evidentiary hearing, we review de novo
the circuit court’s judgment. Id. at 18.
¶ 12 Likewise, we review de novo the constitutionality of a statute. People v. Ligon, 2016 IL
118023, ¶ 11. In analyzing a challenge to the constitutionality of a statute, “we begin with the
presumption that the statute is constitutional and that, if reasonably possible, this court must
construe the statute so as to affirm its constitutionality and validity.” Id.
¶ 13 A party raising a facial challenge to the constitutionality of a statute “faces a particularly
heavy burden,” because “[a] statute will be deemed facially unconstitutional only if there is no set
of circumstances under which the statute would be valid.” People v. Bochenek, 2021 IL 125889,
¶ 10. Therefore, a facial challenge fails if any situation exists where the statute could be validly
applied. People v. Davis, 2014 IL 115595, ¶ 25.
¶ 14 The second amendment provides: “A well regulated Milita, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend. II. In 2008, the United States Supreme Court issued its decision in District of Columbia v.
Heller, 554 U.S. 570 (2008), holding that the second amendment elevated “the right of law-
abiding, responsible citizens to use arms in defense of hearth and home.” Heller, 554 U.S. at 635.
The second amendment applies to the States through the fourteenth amendment of the United
States Constitution. McDonald v. City of Chicago, 561 U.S. 742, 778 (2010).
¶ 15 Under Heller and McDonald, courts developed a two-step test to assess second amendment
challenges to firearm regulations. See People v. Smith, 2024 IL App (1st) 221455, ¶ 11. First, the
government could justify the regulation by establishing that the regulated activity fell outside the
scope of the second amendment as it was originally understood. Id. If the conduct fell beyond the
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2024 IL App (1st) 231277-U No. 1-23-1277 Order filed November 12, 2024 First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 21 CR 1529 ) MICHAEL LEWIS, ) Honorable ) Sophia Atcherson, Defendant-Appellant. ) Judge, presiding.
JUSTICE COBBS delivered the judgment of the court. Justices Lavin and Pucinski concurred in the judgment.
ORDER
¶1 Held: The circuit court’s order denying defendant’s petition for relief from judgment is affirmed where the statute under which he was convicted is not unconstitutional on its face.
¶2 Defendant Michael Lewis appeals from the denial of his petition for relief from judgment
filed pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West
2022)). On appeal, defendant contends that his conviction is unconstitutional on its face under New
York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). We affirm. No. 1-23-1277
¶3 Defendant was charged with, inter alia, aggravated unlawful use of a weapon (AUUW)
(720 ILCS 5/24-1.6(a)(1), (3)(A-5) (West 2020)). In particular, the indictment alleged that
defendant had not been issued a currently valid license under the Firearm Concealed Carry Act
(Concealed Carry Act) (430 ILCS 66/1 et seq. (West 2020)), and defendant qualified for Class 2
sentencing due to a prior felony conviction (720 ILCS 5/24-1.6(d)(3)).
¶4 On December 9, 2021, defendant pleaded guilty to one count of Class 2 AUUW in
exchange for five years’ imprisonment, consecutive to the 5-year sentence imposed for possession
of a controlled substance in circuit court case number 19 CR 15025. The factual basis for
defendant’s plea established that, on January 14, 2021, police officers responded to a call at Avis
Car Rental in Franklin Park, Illinois, where defendant, who had an active warrant, possessed a
loaded firearm. The State would have presented evidence that defendant had been convicted under
circuit court case number 14 CR 15720 for possession of a stolen motor vehicle. Defendant did
not file a direct appeal.
¶5 On December 14, 2022, defendant filed a petition for relief from judgment arguing that his
AUUW conviction was void under People v. Aguilar, 2013 IL 112116.
¶6 On May 19, 2023, the circuit court denied defendant’s petition in a written order. The court
found that Aguilar did not apply to defendant’s Class 2 AUUW conviction premised on a prior
felony conviction.
¶7 Defendant filed a motion seeking leave to file a late notice of appeal on July 18, 2023,
which this court granted on July 24, 2023.
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¶8 On appeal, defendant argues that the AUUW statute is unconstitutional on its face under
the second amendment to the United States Constitution because the statute fails under the new
framework set forth in Bruen.
¶9 Here, defendant was convicted of AUUW under sections 1.6(a)(1) and (3)(A-5) of the
statute, which provide that “[a] person commits the offense of aggravated unlawful use of a weapon
when he or she knowingly: (1) carries on or about his person or in any vehicle or concealed on or
about his person *** any *** firearm,” and “(A-5) *** has not been issued a currently valid license
under the Firearm Concealed Carry Act.” 720 ILCS 5/24-1.6 (a)(1), (3)(A-5) (West 2020).
¶ 10 Section 2-1401 of the Code is a civil remedy that extends to criminal cases and provides a
statutory mechanism for vacating final judgments more than 30 days from their entry. 735 ILCS
5/2-1401 (West 2020); People v. Stoecker, 2020 IL 124807, ¶ 18. More specifically, a section 2-
1401 petition is the means by which “to correct all errors of fact occurring in the prosecution of a
cause, unknown to the petitioner and court at the time judgment was entered, which, if then known,
would have prevented its rendition.” People v. Haynes, 192 Ill. 2d 437, 461 (2000).
¶ 11 “Relief under section 2-1401 is predicated upon proof, by a preponderance of evidence, of
a defense or claim that would have precluded entry of the judgment in the original action and
diligence in both discovering the defense or claim and presenting the petition.” People v. Vincent,
226 Ill. 2d 1, 7-8 (2007). A section 2-1401 petition is “not designed to provide a general review of
all trial errors nor to substitute for direct appeal.” (Internal quotation marks omitted.) Haynes, 192
Ill. 2d at 461. A trial court may sua sponte dispose of a section 2-1401 petition when it is clear on
its face that the defendant is not entitled to relief as a matter of law. Vincent, 226 Ill. 2d at 12.
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Where a section 2-1401 petition was decided without an evidentiary hearing, we review de novo
the circuit court’s judgment. Id. at 18.
¶ 12 Likewise, we review de novo the constitutionality of a statute. People v. Ligon, 2016 IL
118023, ¶ 11. In analyzing a challenge to the constitutionality of a statute, “we begin with the
presumption that the statute is constitutional and that, if reasonably possible, this court must
construe the statute so as to affirm its constitutionality and validity.” Id.
¶ 13 A party raising a facial challenge to the constitutionality of a statute “faces a particularly
heavy burden,” because “[a] statute will be deemed facially unconstitutional only if there is no set
of circumstances under which the statute would be valid.” People v. Bochenek, 2021 IL 125889,
¶ 10. Therefore, a facial challenge fails if any situation exists where the statute could be validly
applied. People v. Davis, 2014 IL 115595, ¶ 25.
¶ 14 The second amendment provides: “A well regulated Milita, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend. II. In 2008, the United States Supreme Court issued its decision in District of Columbia v.
Heller, 554 U.S. 570 (2008), holding that the second amendment elevated “the right of law-
abiding, responsible citizens to use arms in defense of hearth and home.” Heller, 554 U.S. at 635.
The second amendment applies to the States through the fourteenth amendment of the United
States Constitution. McDonald v. City of Chicago, 561 U.S. 742, 778 (2010).
¶ 15 Under Heller and McDonald, courts developed a two-step test to assess second amendment
challenges to firearm regulations. See People v. Smith, 2024 IL App (1st) 221455, ¶ 11. First, the
government could justify the regulation by establishing that the regulated activity fell outside the
scope of the second amendment as it was originally understood. Id. If the conduct fell beyond the
-4- No. 1-23-1277
second amendment’s original scope, it was “categorically unprotected.” Id. Otherwise, the court
would progress to the second step and conduct a “means-end analysis” where the court weighed
the severity of the regulation against the ends the government sought to achieve. Id.
¶ 16 In Bruen, the United States Supreme Court announced a new analytical framework for
evaluating the constitutionality of firearm regulations under the second amendment. People v.
Brooks, 2023 IL App (1st) 200435, ¶ 68 (citing Bruen, 597 U.S. at 17). Under Bruen, a court must
first determine whether “the Second Amendment’s plain text covers an individual’s conduct.”
Bruen, 597 U.S. at 24; Brooks, 2023 IL App (1st) 200435, ¶ 69. If it does, then the Constitution
“presumptively protects that conduct” and the government must justify the regulation by showing
that it is consistent with the nation’s historical tradition of firearm regulation. Bruen, 597 U.S. at
24; Brooks, 2023 IL App (1st) 200435, ¶ 69. To make this showing, the government must point to
historical precedent which establishes what the founders understood the second amendment to
mean. Bruen, 597 U.S. at 24-25; Brooks, 2023 IL App (1st) 200435, ¶ 70.
¶ 17 Initially, the State argues that defendant cannot transform his facial unconstitutionality
claim premised upon Aguilar into a facial unconstitutionality claim based upon Bruen for the first
time on review. The State contends that defendant could have chosen to present a Bruen claim to
the circuit court, and because he did not do so, we should honor his procedural default. See
Caulkins v. Pritzker, 2023 IL 129453, ¶¶ 41-43. However, a challenge to the constitutionality of a
statute may be raised at any time. See In re M.I., 2013 IL 113776, ¶ 39 (reviewing respondent’s
Apprendi claim which was first raised in the opening brief before the supreme court). Thus, we
will address defendant’s Bruen claim on the merits.
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¶ 18 Defendant contends that under Bruen, the second amendment “presumptively guarantees”
his right to bear arms in public for self-defense and the valid license requirement under the
Concealed Carry Act is not consistent with the historical tradition of firearm regulation. A different
panel of this court rejected this same argument in People v. Gunn, 2023 IL App (1st) 221032, and
we agree with its reasoning.
¶ 19 In Gunn, this court interpreted Bruen in the context of AUUW and determined that Bruen
does not apply to cases regarding the FOID Card Act or the Concealed Carry Act, because the
strictures of both statutes, background checks and completion of a firearms training course, were
expressly authorized by the Supreme Court in Bruen. Id. at ¶¶ 19, 27. Specifically, as to the
Concealed Carry Act, the court pointed out that “the State does not have any discretion to deny a
CCL to an applicant who fulfills [the] objective criteria[,]” and thus, it is a shall-issue statutory
scheme that “mandates issuance of *** CCLs within the framework of what has always been
historically acceptable in the United States.” Id. at ¶ 22. Additionally, we found it unnecessary to
engage in a historical analysis to determine whether the Concealed Carry Act’s 90-day waiting
period and $150 renewal fee every five years were constitutional because they did not constitute a
“lengthy” wait time or an “exorbitant fee” as defined by Bruen. Id. ¶ 28; see Bruen, 597 U.S. at 38
n.9 (noting that “shall-issue” licensing regimes, such as Illinois, have “narrow, objective, and
definite standards” for licensing officials; however, constitutional challenges to abusive permitting
schemes in shall-issue regimes could be possible where “lengthy wait times in processing licensing
applications or exorbitant fees deny ordinary citizens their right to public carry”). We follow Gunn
and therefore conclude that the section in the AUUW statute under which defendant was convicted
is not facially unconstitutional and Bruen does not provide a basis to invalidate it. Id. ¶ 32; see
-6- No. 1-23-1277
People v. Burns, 2024 IL App (4th) 230428, ¶¶ (following Gunn and concluding that the AUUW
statute is facially constitutional under Bruen); People v. Hatcher, 2024 IL App (1st) 220455
(same).
¶ 20 Defendant nevertheless contends that Gunn was wrongly decided because the court did not
undertake any historical analysis or establish a historical tradition of criminal punishment as
required by Bruen. Defendant cites to the Seventh Circuit case, Atkinson v. Garland, 70 F. 4th
1018, 1022 (7th Cir. 2023), which found that the district court sidestepped a rigorous historical
analysis as required by Bruen in dismissing the plaintiff’s case. The Atkinson court vacated the
district court’s order and remanded to the district court for further proceedings. Id. at 1025.
¶ 21 Although enlightening, “[f]ederal cases are not binding authority in our state courts.”
Illinois State Toll Highway Authority v. Amoco Oil Company, 336 Ill. App. 3d 300, 317 (2003).
Similarly, “the opinion of one district, division, or panel of the appellate court is not binding on
other districts, divisions, or panels.” O’Casek v. Children’s Home and Aid Soc. of Illinois, 229 Ill.
2d 421, 440 (2008). Nonetheless, we find the decision in Gunn, as well as those cases following
Gunn, well-reasoned, and unless instructed otherwise by our supreme court, we decline to depart
from that decision. 1 Thus, we do not find that the AUUW statute is unconstitutional on its face.
¶ 22 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 23 Affirmed.
1 The Illinois Supreme Court has allowed a petition for leave to appeal in a case involving this precise issue. People v. Thompson, 2023 IL App (1st) 220429-U, appeal allowed, No. 129965 (Ill. Nov. 29, 2023).
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