2020 IL App (1st) 171437-U No. 1-17-1437 Order filed February 14, 2020 Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party 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. 14 CR 19101 ) DARIUS LOVE, ) Honorable ) Charles P. Burns, Defendant-Appellant. ) Judge, presiding.
JUSTICE CONNORS delivered the judgment of the court. Justices Cunningham and Harris concurred in the judgment.
ORDER
¶1 Held: We affirm the summary dismissal of defendant’s postconviction petition because the armed habitual criminal statute is not facially unconstitutional.
¶2 Defendant Darius Love appeals from an order of the circuit court summarily dismissing
his pro se petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq.
(West 2016)). For the following reasons, we affirm. No. 1-17-1437
¶3 Defendant was charged in a nine-count information. Count I alleged that defendant
committed the offense of being an armed habitual criminal (AHC) (720 ILCS 5/24-1.7(a) (West
2014)), in that he knowingly or intentionally possessed a firearm after having been convicted of
unlawful use of a weapon by a felon and robbery.
¶4 On April 16, 2015, defendant requested a pretrial conference pursuant to Illinois Supreme
Court Rule 402 (eff. July 1, 2012). During the conference, the State represented that on October
15, 2014, around 11:51 p.m., Chicago police officers received information that someone on a CTA
bus had a firearm in his waistband. The officers stopped that bus on the 8200 block of King Drive
and observed defendant exit and run northwest towards 81st Street and Calumet Avenue. The
officers followed defendant until they observed him throw a firearm. That firearm was recovered
and defendant was arrested. At the time of the incident, defendant did not have a conceal carry
license and his background included convictions for unlawful use of a weapon by a felon and
robbery.
¶5 The following day, defendant accepted the trial court’s offer and pled guilty to one count
of AHC in exchange for eight years’ imprisonment. After the parties stipulated to the facts
presented in the Rule 402 conference, the trial court accepted defendant’s guilty plea and sentenced
him to eight years’ imprisonment to be served at 85% followed by three years’ mandatory
supervised release (MSR).
¶6 On February 10, 2016, defendant filed a motion to withdraw guilty plea and vacate
sentence pursuant to Illinois Supreme Court Rule 604(d) (eff. Dec. 3, 2015). The circuit court
dismissed the motion as “untimely,” “frivolous,” and “baseless.” The record does not show that
defendant filed a direct appeal.
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¶7 On March 15, 2017, defendant filed a pro se postconviction petition. In his petition,
defendant alleged (1) a one act, one crime doctrine violation in his underlying convictions; (2) the
truth-in-sentencing statute was improperly applied to him; (3) ineffective assistance of trial
counsel; (4) the three-year MSR period violated the agreed sentence of eight years’ imprisonment
at 85%; and (5) the AHC statute violates due process because it “punishes violators without giving
them fair warning on what conduct it punishes” and does not consider whether offenders can be
sentenced under the truth-in-sentencing statute.
¶8 On April 19, 2017, the circuit court entered a written order dismissing defendant’s
postconviction petition as “frivolous and patently without merit.” Relevant here, the circuit court
stated defendant’s claim regarding the constitutionality of the AHC statute was “meritless”
because “[s]everal recent appellate court panels have upheld the [AHC] statute as constitutional
and concluded that it does not violate due process nor is it facially unconstitutional.”
¶9 On appeal, defendant argues for the first time that because all Illinois citizens, including
felons, are eligible to legally possess firearms under the Firearm Owners Identification (FOID)
Card Act (430 ILCS 65/1 et seq. (West 2014)), the AHC statute (720 ILCS 5/24-1.7(a) (West
2014)), which criminalizes the lawful and unlawful possession of firearms by certain felons, is
facially unconstitutional.
¶ 10 Generally, claims not raised in a postconviction petition are forfeited. People v. Petrenko,
237 Ill. 2d 490, 502-03 (2010). However, a defendant may raise a facial challenge to the statute
under which he has been convicted at any time. People v. Thompson, 2015 IL 118151, ¶ 32.
Whether a statute is constitutional is a question of law we review de novo. People v. Davis, 2014
IL 115595, ¶ 26.
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¶ 11 “There is a strong presumption that a statute is constitutional, and the party challenging its
constitutionality bears the burden of clearly establishing that the statute violates the constitution.”
People v. Clark, 2014 IL 115776, ¶ 9. Thus, where there is a reasonable way to do so, courts have
a duty to construe statutes to uphold their constitutionality. People v. Thurow, 203 Ill. 2d 352, 367
(2003). Facial challenges to the constitutionality of statutes are the most difficult challenges to
mount. Davis, 2014 IL 115595, ¶ 25. That is because a statute is facially unconstitutional only if
there are no circumstances in which the statute could be validly applied. Id. “A statute is not
facially invalid merely because it could be unconstitutional in some circumstances.” (Emphasis in
original.) People v. West, 2017 IL App (1st) 143632, ¶ 21. Accordingly, a facial challenge fails if
any circumstance exists where the statute could be validly applied. Id.
¶ 12 When, as here, a statute “does not affect a fundamental constitutional right,” we determine
its constitutionality using the “highly deferential rational basis test.” People v. Madrigal, 241 Ill.
2d 463, 466 (2011); People v. Fulton, 2016 IL App (1st) 141765, ¶¶ 21-23 (applying the rational
basis test to the AHC statute). Under this test, a statute will be upheld “so long as it bears a rational
relationship to a legitimate legislative purpose and is neither arbitrary nor unreasonable.” People
v. Hollins, 2012 IL 112754, ¶ 15. Although the legislature has “wide discretion” to determine
penalties for criminal offenses, “this discretion is limited by the constitutional guarantee of
substantive due process, which provides that a person may not be deprived of liberty without due
process of law.” Madrigal, 241 Ill. 2d at 466. A statute violates due process “if it potentially
subjects wholly innocent conduct to criminal penalty without requiring a culpable mental state
beyond mere knowledge.” Id. at 467. In that situation, the statute “fails the rational basis test
because it does not represent a reasonable method of preventing the targeted conduct.” Id. at 468.
-4- No. 1-17-1437
¶ 13 A person commits the offense of AHC if he “receives, sells, possesses, or transfers any
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2020 IL App (1st) 171437-U No. 1-17-1437 Order filed February 14, 2020 Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party 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. 14 CR 19101 ) DARIUS LOVE, ) Honorable ) Charles P. Burns, Defendant-Appellant. ) Judge, presiding.
JUSTICE CONNORS delivered the judgment of the court. Justices Cunningham and Harris concurred in the judgment.
ORDER
¶1 Held: We affirm the summary dismissal of defendant’s postconviction petition because the armed habitual criminal statute is not facially unconstitutional.
¶2 Defendant Darius Love appeals from an order of the circuit court summarily dismissing
his pro se petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq.
(West 2016)). For the following reasons, we affirm. No. 1-17-1437
¶3 Defendant was charged in a nine-count information. Count I alleged that defendant
committed the offense of being an armed habitual criminal (AHC) (720 ILCS 5/24-1.7(a) (West
2014)), in that he knowingly or intentionally possessed a firearm after having been convicted of
unlawful use of a weapon by a felon and robbery.
¶4 On April 16, 2015, defendant requested a pretrial conference pursuant to Illinois Supreme
Court Rule 402 (eff. July 1, 2012). During the conference, the State represented that on October
15, 2014, around 11:51 p.m., Chicago police officers received information that someone on a CTA
bus had a firearm in his waistband. The officers stopped that bus on the 8200 block of King Drive
and observed defendant exit and run northwest towards 81st Street and Calumet Avenue. The
officers followed defendant until they observed him throw a firearm. That firearm was recovered
and defendant was arrested. At the time of the incident, defendant did not have a conceal carry
license and his background included convictions for unlawful use of a weapon by a felon and
robbery.
¶5 The following day, defendant accepted the trial court’s offer and pled guilty to one count
of AHC in exchange for eight years’ imprisonment. After the parties stipulated to the facts
presented in the Rule 402 conference, the trial court accepted defendant’s guilty plea and sentenced
him to eight years’ imprisonment to be served at 85% followed by three years’ mandatory
supervised release (MSR).
¶6 On February 10, 2016, defendant filed a motion to withdraw guilty plea and vacate
sentence pursuant to Illinois Supreme Court Rule 604(d) (eff. Dec. 3, 2015). The circuit court
dismissed the motion as “untimely,” “frivolous,” and “baseless.” The record does not show that
defendant filed a direct appeal.
-2- No. 1-17-1437
¶7 On March 15, 2017, defendant filed a pro se postconviction petition. In his petition,
defendant alleged (1) a one act, one crime doctrine violation in his underlying convictions; (2) the
truth-in-sentencing statute was improperly applied to him; (3) ineffective assistance of trial
counsel; (4) the three-year MSR period violated the agreed sentence of eight years’ imprisonment
at 85%; and (5) the AHC statute violates due process because it “punishes violators without giving
them fair warning on what conduct it punishes” and does not consider whether offenders can be
sentenced under the truth-in-sentencing statute.
¶8 On April 19, 2017, the circuit court entered a written order dismissing defendant’s
postconviction petition as “frivolous and patently without merit.” Relevant here, the circuit court
stated defendant’s claim regarding the constitutionality of the AHC statute was “meritless”
because “[s]everal recent appellate court panels have upheld the [AHC] statute as constitutional
and concluded that it does not violate due process nor is it facially unconstitutional.”
¶9 On appeal, defendant argues for the first time that because all Illinois citizens, including
felons, are eligible to legally possess firearms under the Firearm Owners Identification (FOID)
Card Act (430 ILCS 65/1 et seq. (West 2014)), the AHC statute (720 ILCS 5/24-1.7(a) (West
2014)), which criminalizes the lawful and unlawful possession of firearms by certain felons, is
facially unconstitutional.
¶ 10 Generally, claims not raised in a postconviction petition are forfeited. People v. Petrenko,
237 Ill. 2d 490, 502-03 (2010). However, a defendant may raise a facial challenge to the statute
under which he has been convicted at any time. People v. Thompson, 2015 IL 118151, ¶ 32.
Whether a statute is constitutional is a question of law we review de novo. People v. Davis, 2014
IL 115595, ¶ 26.
-3- No. 1-17-1437
¶ 11 “There is a strong presumption that a statute is constitutional, and the party challenging its
constitutionality bears the burden of clearly establishing that the statute violates the constitution.”
People v. Clark, 2014 IL 115776, ¶ 9. Thus, where there is a reasonable way to do so, courts have
a duty to construe statutes to uphold their constitutionality. People v. Thurow, 203 Ill. 2d 352, 367
(2003). Facial challenges to the constitutionality of statutes are the most difficult challenges to
mount. Davis, 2014 IL 115595, ¶ 25. That is because a statute is facially unconstitutional only if
there are no circumstances in which the statute could be validly applied. Id. “A statute is not
facially invalid merely because it could be unconstitutional in some circumstances.” (Emphasis in
original.) People v. West, 2017 IL App (1st) 143632, ¶ 21. Accordingly, a facial challenge fails if
any circumstance exists where the statute could be validly applied. Id.
¶ 12 When, as here, a statute “does not affect a fundamental constitutional right,” we determine
its constitutionality using the “highly deferential rational basis test.” People v. Madrigal, 241 Ill.
2d 463, 466 (2011); People v. Fulton, 2016 IL App (1st) 141765, ¶¶ 21-23 (applying the rational
basis test to the AHC statute). Under this test, a statute will be upheld “so long as it bears a rational
relationship to a legitimate legislative purpose and is neither arbitrary nor unreasonable.” People
v. Hollins, 2012 IL 112754, ¶ 15. Although the legislature has “wide discretion” to determine
penalties for criminal offenses, “this discretion is limited by the constitutional guarantee of
substantive due process, which provides that a person may not be deprived of liberty without due
process of law.” Madrigal, 241 Ill. 2d at 466. A statute violates due process “if it potentially
subjects wholly innocent conduct to criminal penalty without requiring a culpable mental state
beyond mere knowledge.” Id. at 467. In that situation, the statute “fails the rational basis test
because it does not represent a reasonable method of preventing the targeted conduct.” Id. at 468.
-4- No. 1-17-1437
¶ 13 A person commits the offense of AHC if he “receives, sells, possesses, or transfers any
firearm after having been convicted a total of 2 or more times of any combination” of several
enumerated felonies. 720 ILCS 5/24-1.7 (West 2014). Relevant here, these include unlawful use
of a weapon by a felon and robbery. 720 ILCS 5/24-1.7(a)(1), (2) (West 2014); 720 ILCS 5/2-8
(West 2014).
¶ 14 Under section 8(c) of the FOID Card Act (430 ILCS 65/8(c) (West 2014)), a person who
is convicted of a felony may have his FOID card seized or revoked, or his application denied. Still,
section 10(c) of the FOID Card Act (430 ILCS 65/10(c) (West 2014)) provides that a circuit court
may grant relief to a FOID card applicant prohibited from obtaining a card under section 8(c)
where he establishes certain requirements to the court’s satisfaction. Thus, a felon can acquire a
FOID card and become legally authorized to possess a firearm.
¶ 15 This court has considered and rejected facial challenges to the AHC statute on several
occasions. West, 2017 IL App (1st) 143632, ¶ 22; People v. Brown, 2017 IL App (1st) 150146,
¶ 31; Fulton, 2016 IL App (1st) 141765, ¶ 23; People v. Johnson, 2015 IL App (1st) 133663, ¶ 27.
We have held:
“ ‘While it may be true that an individual could be twice-convicted of the offenses set forth
in the [AHC] statute and still receive a FOID card under certain unlikely circumstances,
the invalidity of a statute in one particular set of circumstances is insufficient to prove that
a statute is facially unconstitutional. [Citation.] The [AHC] statute was enacted to help
protect the public from the threat of violence that arises when repeat offenders possess
firearms. [Citation.] The Supreme Court explicitly noted in District of Columbia v. Heller,
554 U.S. 570 (2008), that “nothing in our opinion should be taken to cast doubt on
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longstanding prohibitions on the possession of firearms by felons.” [Citation.] ***
Accordingly, we find that the potential invalidity of the [AHC] statute in one very unlikely
set of circumstances does not render the statute unconstitutional on its face.’ ” Fulton, 2016
IL App (1st) 141765, ¶ 23 (quoting Johnson, 2015 IL App (1st) 133663, ¶ 27).
¶ 16 Here, defendant has not demonstrated that the AHC statute is facially unconstitutional. The
legislature enacted the AHC statute to protect the public from the danger posed by repeat offenders
possessing firearms. Davis, 408 Ill. App. 3d at 750. The AHC statute can be validly applied in
cases such as this, where a twice-convicted felon does not possess a FOID card. While an
individual twice convicted of the offenses outlined in the AHC statute might conceivably receive
a FOID card and, thus, legally possess a firearm, that unlikely circumstance is insufficient to
establish that the statute is facially unconstitutional. Johnson, 2015 IL App (1st) 133663, ¶ 27.
¶ 17 Defendant concedes that this court’s prior holdings contradict his position on appeal.
Nevertheless, defendant argues that Coram v. State of Illinois, 2013 IL 113867, confirms a
constitutional guarantee for “individualized consideration” of whether a person may legally
possess a firearm, and thus requests that we depart from our holdings and find the AHC statute
facially unconstitutional. In Coram, the Illinois State Police denied the applicant a FOID card
because, under federal law, the applicant’s prior misdemeanor domestic battery conviction barred
him from possessing a firearm. Coram, 2013 IL 113867, ¶ 8. The Illinois supreme court determined
that, under the version of the FOID Card Act in effect when the applicant applied for his FOID
card, nothing prevented the trial court from granting relief from the federal firearm disability. Id.
¶ 9. Consistent with the Illinois Constitution’s guarantee of “the right of the individual citizen to
keep and bear arms” (Ill. Const. 1970, art. 1, § 22), Coram found that the FOID Card Act mandated
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“individual assessment of a person’s application and circumstances” and “individualized judicial
consideration of the basis for denial of a FOID card.” (Emphasis omitted.) Coram, 2013 IL 113867,
¶ 58.
¶ 18 As defendant notes, however, in both Fulton and Johnson this court found Coram
inapplicable because it analyzed an older version of the FOID Card Act in upholding the
individualized consideration of a person’s right to possess a firearm. Fulton, 2016 IL App (1st)
141765, ¶ 24; Johnson, 2015 IL App (1st) 133663, ¶ 29. In Fulton, we further distinguished Coram
because it did not address the constitutionality of the AHC statute. Fulton, 2016 IL App (1st)
141765, ¶ 24. We decline to depart from our prior holdings on this issue, and therefore reject
defendant’s claim that the AHC statute is facially unconstitutional.
¶ 19 For the foregoing reasons, we affirm the circuit court’s summary dismissal of defendant’s
postconviction petition.
¶ 20 Affirmed.
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