People v. Linzy

2024 IL App (1st) 221921-U

• Court: Appellate Court of Illinois
• Decided: August 14, 2024
• Docket: 1-22-1921
• Status: Unpublished

Opinion

2024 IL App (1st) 221921-U

Nos. 1-22-1921 & 1-23-0620 (consolidated)

THIRD DIVISION August 14, 2024

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. ) Nos. 92 CR 19997, 95 CR ) 28637 JOSEPH LINZY, ) ) Honorable Defendant-Appellant. ) John F. Lyke, Jr. and ) Michael J. Kane, ) Judges, presiding.

JUSTICE D. B. WALKER delivered the judgment of the court. Presiding Justice Reyes and Justice Lampkin concurred in the judgment.

ORDER

¶1 Held: We affirm the trial court’s denial of defendant’s petitions.

¶2 Defendant Joseph Linzy 1 appeals the trial court’s denial of his petitions filed pursuant to

section 2-1401 of the Code of Civil Procedure (Code) 735 ILCS 5/2-1401 (West 2022).

1 Defendant’s name is listed as “Joseph Linzy” in case number 1-22-1921, and “Joe Linzy” in case number 1-23-0620. Nos. 1-22-1921 & 1-23-0620 (consolidated)

Defendant’s petitions challenged his 1992 and 1995 convictions for unlawful use of a weapon by

a felon (UUWF) as unconstitutional under the Second Amendment. On appeal, defendant contends

that the trial court erred in denying his petitions because (1) the UUWF statute is unconstitutional

on its face where there is no founding-era evidence that supports a permanent revocation of the

right to keep and bear arms solely based on a person’s status, and (2) the statute is unconstitutional

as applied to him because the underlying felony he committed was a non-violent offense. For the

following reasons, we affirm.

¶3 I. BACKGROUND

¶4 Defendant pleaded guilty to UUWF in case number 92 CR 19997 on November 5, 1992.

In that case, the State presented the following as the factual basis for defendant’s guilty plea. On

August 6, 1992, police officers went to defendant’s residence while investigating a fatal shooting.

There, they recovered a semiautomatic pistol under a mattress in a bedroom. Defendant told

officers that he had been drinking and shooting the night before. He was with a person named

“Tion,” and Tion left the gun with defendant for safekeeping. The parties stipulated that defendant

had received a three-year sentence in case number 90 CR 4379 for the manufacture and delivery

of a controlled substance, a felony. After accepting defendant’s plea, the trial court sentenced him

to two years’ imprisonment.

¶5 Defendant pleaded guilty to UUWF in case number 95 CR 28637 on January 4, 1996. The

factual basis for defendant’s plea indicated that police officers responded to a call about an armed

man. At the location, they encountered defendant who was standing with a firearm. He told officers

that he needed the weapon for protection. The State presented evidence that defendant had received

three years of probation for a 1990 felony offense, three years’ imprisonment in 1990 for the

manufacture and delivery of a controlled substance, six months of conditional discharge in 1992

-2- Nos. 1-22-1921 & 1-23-0620 (consolidated)

for a misdemeanor conviction, and two years’ imprisonment for the 1992 UUWF conviction. After

accepting defendant’s plea, the trial court sentenced him to three years’ imprisonment.

¶6 After defendant pleaded guilty in the 1995 case, he was charged with the murder of Doris

Harris and concealment of a homicidal death. See People v. Linzy, 2024 IL App (1st)

220832-U, ¶ 3. After a jury trial, he was convicted of both offenses and sentenced to concurrent

terms of 80 and 5 years in prison, respectively. Id. This court affirmed his convictions on direct

appeal. Id. ¶ 34.

¶7 On September 2, 2022, defendant filed a section 2-1401 petition seeking relief from

judgment in his 1995 UUWF case. In his petition, he alleged that, pursuant to People v. Aguilar,

2013 IL 112116, both his 1992 and 1995 UUWF convictions were unconstitutional and should be

vacated. On September 12, 2022, while this petition was pending, defendant filed another section

2-1401 petition which sought relief from his UUWF conviction in the 1992 case. The second

petition raised the same claim that the UUWF statute was unconstitutional under Aguilar.

¶8 On November 1, 2022, the trial court dismissed the second petition. The court found that

Aguilar did not apply, and therefore defendant’s 1992 conviction was constitutional. The court

stated that it did not have jurisdiction to consider defendant’s claim regarding his 1995 UUWF

conviction because “section 2-1401 petitions must be filed in the same proceeding [in which] that

judgment was entered.” Defendant appealed the dismissal of his second petition.

¶9 Following the dismissal of defendant’s petition in the 1992 case, the State filed a motion

to dismiss his petition in the 1995 case. The State argued that the petition should be dismissed

because 1) the trial court had already determined that defendant’s UUWF conviction was

constitutional, and 2) the petition was untimely. On February 24, 2023, the trial court dismissed

-3- Nos. 1-22-1921 & 1-23-0620 (consolidated)

the petition and defendant appealed. Defendant’s appeals in the 1992 and 1995 UUWF cases were

consolidated into the instant appeal.

¶ 10 II. ANALYSIS

¶ 11 On appeal, defendant contends that the trial court erred in dismissing his section 2-1401

petitions. Section 2-1401 establishes a comprehensive, statutory procedure that allows for the

vacatur of a final judgment more than 30 days after its entry. See 735 ILCS 5/2-1401 (West 2022).

Section 2-1401 provides a civil remedy that extends to criminal cases as well as to civil cases.

People v. Sanchez, 131 Ill.2d 417, 420 (1989). A 2-1401 petition may be dismissed if, taking its

allegations as true, it does not state a meritorious defense. People v. Vincent, 226 Ill. 2d 1, 8 (2007).

“Like a complaint, the petition may be challenged by a motion to dismiss for its failure to state a

cause of action or if, on its face, it shows that the petitioner is not entitled to relief.” Klein v. La

Salle National Bank, 155 Ill.2d 201, 205 (1993). The trial court’s dismissal of a section 2-1401

petition is reviewed de novo. Vincent, 226 Ill.2d at 18.

¶ 12 A section 2-1401 petition must be filed no later than two years after entry of the final order

or judgment. 735 ILCS 5/2-1401(c) (West 2022). Our supreme court, however, recognized an

exception to the two-year limitations period if the petition alleged a void judgment. People v.

Thompson, 2015 IL 118151, ¶ 29. A void judgment may be challenged at any time, and such a

challenge is not subject to forfeiture or other procedural restraints. People v. Price, 2016 IL

118613, ¶ 30. Relevant here, a judgment is deemed void ab initio when it is based on a statute that

is facially unconstitutional. Id. “When a statute is declared facially unconstitutional and void ab

initio, it means that the statute was constitutionally infirm from the moment of its enactment and,

therefore, unenforceable.” Thompson, 2015 IL 118151, ¶ 32.

-4- Nos. 1-22-1921 & 1-23-0620 (consolidated)

¶ 13 Here, the State argues that defendant’s petitions were properly dismissed because they were

filed approximately 30 years after his convictions in the 1992 and 1995 cases. Defendant, however,

argues that his convictions were based on the UUWF statute, which he alleges is unconstitutional

on its face following the United States Supreme Court’s ruling in New York State Rifle & Pistol

Association, Inc. v. Bruen, 597 U.S. 1 (2022). A statute is void ab initio under a new constitutional

rule if the new rule renders the statute facially unconstitutional. Lucien v. Briley, 213 Ill. 2d 340,

344 (2004). Void judgments may be challenged on collateral review for the first time on appeal.

People v. Hall, 2014 IL App (1st) 122868, ¶ 8.

¶ 14 Moreover, defendant’s claim challenges his conviction under what he alleges is a facially

unconstitutional statute. His claim does not contradict the terms of his guilty plea. As such, his

guilty plea does not serve as a bar to this appeal. People v. Patterson, 2018 IL App (1st)

160610, ¶¶ 20-21. Accordingly, we will consider defendant’s claims.

¶ 15 Defendant contends that the UUWF statute is unconstitutional on its face where there is no

founding-era evidence supporting a permanent revocation of the right to keep and bear arms based

solely on a person’s status. Rather, defendant argues, such evidence supports only bans based on

a person’s actual dangerousness or violent criminal history. Furthermore, these bans did not apply

to all firearms at all times and could be removed if a person meets objective criteria. Defendant

also argues that the UUWF statute is unconstitutional as applied to him, where the underlying

felony for his UUWF conviction was a non-violent offense. Since there was no evidence at the

time supporting his actual dangerousness, there was no historical basis for prohibiting his

possession of a firearm.

¶ 16 Since the Supreme Court’s decision in Bruen, there have been numerous challenges to the

constitutionality of both federal and state statutes prohibiting felons from possessing firearms. See

-5- Nos. 1-22-1921 & 1-23-0620 (consolidated)

United States v. Calhoun, 2024 WL 36977, *5 (noting the “flurry of filings across the country”

challenging the federal statute); People v. Brooks, 2023 IL App (1st) 200435, ¶ 79 (noting that

“various jurisdictions have grappled with this issue”). However, there is a consensus among federal

and state courts that such statutes are constitutional after Bruen. See Calhoun, 2024 WL 36977, *5

(finding that “the overwhelming majority of courts that have considered the issue” have concluded

that the federal statute remains constitutional); Brooks, 2023 IL App (1st) 200435, ¶ 79 (finding

that the “vast majority” of courts have determined that statutes prohibiting nonviolent felons from

possessing weapons are constitutional under Bruen).

¶ 17 In Brooks, the defendant was convicted of being an armed habitual criminal under section

24-1.7 of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/24-1.7 (West 2016)). Id. ¶ 1.

The defendant was charged with the offense based on his knowing and intentional possession of a

firearm after having been previously convicted of two qualifying felonies. Id. ¶ 3. His prior felony

convictions included one for the manufacture or delivery of narcotics, and one for unlawful

possession of a weapon by a felon. Id.

¶ 18 The defendant argued, for the first time on appeal, that under the new test established in

Bruen, the armed habitual criminal statute violated the Second Amendment as applied to him.

Id. ¶ 55. Although the State argued that the defendant forfeited the issue, the reviewing court

considered the defendant’s claim where the record below was sufficiently developed. ¶¶ 56, 60.

¶ 19 The court acknowledged that Bruen “announced a new analytical framework for evaluating

the constitutionality of firearm regulations.” Id. ¶ 68. In Bruen, the Supreme Court held that “the

standard for applying the Second Amendment is as follows: When the Second Amendment’s plain

text covers an individual’s conduct, the Constitution presumptively protects that conduct. The

government must then justify its regulation by demonstrating that it is consistent with the Nation’s

-6- Nos. 1-22-1921 & 1-23-0620 (consolidated)

historical tradition of firearm regulation.” Bruen, 597 U.S. at 24. To meet this burden, the

government must identify “historical precedent from before, during and even after the founding”

that shows “a comparable tradition of regulation.” Id. at 27.

¶ 20 The court in Brooks first considered whether the plain text of the Second Amendment

covered the defendant’s conduct. It noted that the defendant committed the armed habitual criminal

offense by possessing a firearm after having been convicted of two qualifying offenses. Brooks,

2023 IL App (1st) 200435, ¶ 85. Since the plain language of the Second Amendment protects a

person’s right to keep and bear arms, the court found that the defendant’s possession of a firearm

was “ ‘presumptively constitutional.’ ” Id. ¶ 89, quoting Bruen, 597 U.S. at 17-18. The court noted

that at this stage of the analysis, the defendant’s status as a felon was “irrelevant.” Id.

¶ 21 Instead, courts should consider the defendant’s felon status when analyzing “the nation’s

historical tradition of firearm regulation.” Id. ¶ 90. Upon a thorough review of the historical

restrictions for possession of firearms, the Brooks court concluded that “such categorical

restrictions [were] inextricably linked to the notion of ‘law abiding citizens.’ ” Id. ¶ 92.

¶ 22 The court noted that “[r]estrictions on the possession of firearms date back to England in

the 1600’s when the government repeatedly disarmed individuals whose conduct reflected that

they could not be trusted to abide by ‘the sovereign and [his] dictates.’ ” Id. ¶ 93, quoting Range

v. Attorney General 69 F.4th 96, 120 (3d Cir. 2023) (Krause, J., dissenting). In Colonial America,

legislatures disarmed categories of individuals who were not trusted to obey the law, including

Native Americans and Catholics. Id. ¶ 94.

¶ 23 Furthermore, punishments imposed in the Colonial period showed “the widespread

acceptance of the legislatures’ authority to disarm felons” for certain nonviolent crimes. Id. ¶ 96.

Specifically, legislatures “prescribed death or forfeiture of a person’s entire estate (presumably

-7- Nos. 1-22-1921 & 1-23-0620 (consolidated)

including firearms) as punishment” for nonviolent crimes such as deceit, forgery, and the wrongful

taking of property. Id.

¶ 24 Additionally, legislatures disarmed certain groups not because they were viewed as

dangerous or violent, but because they were “presumed unwilling to obey the law.” Id. ¶ 97. Felons

were understood as one such group. Id. ¶ 97. Citing to scholarship on the Second Amendment, the

Brooks court found that the “majority of legal historians” agreed that the right to bear arms “turn[s]

on one’s law-abiding character.” Id. ¶ 98. The court found no historical requirement that an

individual be deemed dangerous before prohibiting him or her from possessing a firearm. Id. ¶ 102.

¶ 25 The court held that the armed habitual criminal statute, which prohibits the possession of

firearms by convicted felons, was “consistent with the national historical tradition of firearm

regulation.” Id. ¶ 105. Therefore, the statute was constitutional as applied to the defendant. Id.

¶ 26 We agree with the reasoning in Brooks. Although Brooks addressed the constitutionality

of the armed habitual criminal statute, and the provision challenged here is the UUWF statute, the

question of whether the Second Amendment allows legislatures to categorically ban non-violent

convicted felons from possessing firearms is the same one defendant raises in this case.

¶ 27 Defendant argues, however, that we should not follow Brooks because that case cited laws

that disarmed politically unpopular groups, including religious, racial, and political minorities, and

thus should not be considered. He also contends that those historic laws sought to prevent

insurrection, rebellion, resistance to westward expansion, or “pernicious animus,” a purpose unlike

that of the UUWF statute.

¶ 28 We find Calhoun, a recent Northern District of Illinois case, persuasive on these points. In

Calhoun, the defendant challenged the analogous federal statute prohibiting felons from

possessing firearms, 18 U.S.C.A. § 922(g)(1). Calhoun, 2024 WL 36977, *5. The court joined the

-8- Nos. 1-22-1921 & 1-23-0620 (consolidated)

majority of courts in the district finding that § 922(g)(1) was constitutional on its face under

Bruen’s analysis. Id. *6, 8.

¶ 29 The court acknowledged that historic laws disarming categories of people were enacted to

prevent sedition and insurrection, but disagreed with the defendant that they were thus improper

analogues to § 922(g)(1), which imposed “a blanket—and permanent—ban on people who have

been convicted of a felony.” Id. *11. The court reiterated that Bruen “ ‘requires only that the

government identify a well-established and representative historical analogue, not a historical

twin.’ ” (Emphasis in the original.) Id. quoting Bruen, 597 U.S. at 30. Historical regulations

included “extensive and exhaustive penalties for felonies [including] outright capital punishment

and the forfeiture of all property***.” Id. *14.

¶ 30 The court further found that the respective laws placed a comparable burden upon the right

to bear arms. Id. *11. History indicated that certain offenders could obtain permission to possess

firearms. Id. For example, Catholics were allowed to retain their arms if they swore an oath of

allegiance. Id. Likewise, a convicted felon may regain his or her right to possess a firearm through

expungement of his conviction or pardon. Id.

¶ 31 The court also found no historical basis for the individualized assessment of dangerousness

before prohibiting a felon from possessing a firearm. Id. *15-16. Instead, historical analogues

supported “ ‘legislative authority to disarm persons convicted of felonies, regardless of whether

the conviction involved a use (or attempted use) of force.’ ” Id. *15, quoting United States v.

Phillips, 2023 WL 9001124, *14. The district court therefore found § 922(g)(1) constitutional as

applied to the defendant. Id. *16.

¶ 32 Here, defendant cites Range, in which the federal court held, contrary to the Calhoun court,

that § 922(g)(1) was unconstitutional as applied to a defendant who committed a nonviolent felony.

-9- Nos. 1-22-1921 & 1-23-0620 (consolidated)

We note that the judgment in Range has been vacated and the case “remanded to the United States

Court of Appeals for the Third Circuit for further consideration in light of United States v. Rahimi,

602 U.S. __ (2024).” Garland v. Range, No. 23-374, 2024 WL 3259661 (U.S. July 2, 2024).

Nonetheless, we choose to follow the “vast majority” of courts finding that statutes prohibiting

nonviolent felons from possessing firearms are constitutional under Bruen. Brooks, 2023 IL App

(1st) 200435, ¶ 79; see also Calhoun, 2024 WL 36977, *6 (disagreeing with cases finding such

statutes unconstitutional and instead joining “the majority of courts in this District and across the

nation” finding otherwise).

¶ 33 In summary, legislatures have historically banned categories of individuals, particularly

felons, from possessing firearms based on a presumption of untrustworthiness or risk of danger.

Moreover, prohibiting felons from possessing firearms is a comparable burden to punishments

historically imposed upon those committing felonies. As was the case for certain groups

dispossessed of firearms in the past, felons retain an opportunity to possess firearms under the

UUWF statute. A convicted felon may possess a firearm if he or she “has been granted relief by

the Director of the Illinois State Police under Section 10 of the Firearm Owners Identification Card

Act.” See 720 ILCS 5/24-1.1(a) (West 2022). Finally, courts have found no historical requirement

that an individualized assessment of a felon’s dangerousness be made before prohibiting him or

her from possessing a firearm. For the reasons set forth in Brooks and Calhoun, we find that the

UUWF statute is constitutional on its face and as applied to defendant in this case.

¶ 34 III. CONCLUSION

¶ 35 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 36 Affirmed.

- 10 -