2017 IL App (1st) 141013-B
SECOND DIVISION June 13, 2017
No. 1-14-1013
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 12 CR 17661 ) MARCHELLO McGEE, ) Honorable ) Mary Margaret Brosnahan, Defendant-Appellant. ) Judge Presiding.
JUSTICE PIERCE delivered the judgment of the court, with opinion. Justice Simon concurred in the judgment and opinion. Presiding Justice Hyman specially concurred, with opinion.
OPINION
¶1 A jury convicted defendant Marchello McGee of armed habitual criminal (AHC) (720
ILCS 5/24-1.7(a) (West 2012)) and unlawful use of a weapon by a felon (UUWF) (720 ILCS
5/24-1.1(a) (West 2012)). An essential element of the offense of AHC is proof that the defendant
was previously convicted of at least two felonies enumerated in the statute. An essential element
of the offense of UUWF is proof that the defendant was previously convicted of any felony
under the laws of this State or of any other jurisdiction. The question presented here is whether a
conviction under the portion of the aggravated unlawful use of a weapon (AUUW) statute found
to be unconstitutional under People v. Aguilar, 2013 IL 112116, and People v. Burns, 2015 IL 1-14-1013
117387, can be used to establish an element of the offense of AHC or UUWF. People v. McGee,
2016 IL App (1st) 141013. We determined that under the facts of this case, defendant’s
conviction for AUUW could not be used to establish an element of the offense of AHC, but
could be used to establish an element of the offense of UUWF. Id. Accordingly, we vacated
defendant’s conviction for AHC, affirmed his conviction for UUWF, and remanded for
sentencing on that conviction because the trial court did not impose sentence on the UUWF
verdict due to merger. Id. ¶ 29.
¶2 In a September 28, 2016, supervisory order, our supreme court instructed us to vacate
our judgment in McGee, 2016 IL App (1st) 141013 and to determine whether in light of People
v. McFadden, 2016 IL 117424, a different result is warranted. The parties were allowed to file
supplemental briefs with respect to the McFadden decision. Upon recommendation, we now
vacate our previous judgment and enter this opinion in its stead.
¶3 BACKGROUND
¶4 Defendant was charged with nine counts of possessing a firearm and ammunition on or
about September 11, 2012. Seven counts were nol-prossed before trial. 1 The State proceeded to
trial on two counts. Count one alleged that defendant committed the offense of AHC in that he
possessed a firearm "after having been convicted of [UUWF] under case number 08CR13500
1 The nol-prossed charges included three counts of UUWF, alleging that defendant possessed a firearm or
ammunition with the UUWF conviction in case number 08 CR 13500, and four counts of AUUW under section
24.1-1.6(a)(3)(A) or section 24-1.6(a)(3)(C) of the Criminal Code (720 ILCS 5/24-1.6(a)(3)(A) (West 2012)
(firearm uncased, loaded, and immediately accessible) (720 ILCS 5/24-1.6(a)(3)(C) (West 2012) (firearm without a
valid Firearm Owner's Identification Card, or FOID)).
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and [AUUW] under case number 07CR5014." See 720 ILCS 5/24-1.7 (West 2012). Count two
alleged that defendant committed the offense of UUWF in that he possessed a firearm "after
having been previously convicted of the felony offense of [UUWF], under case number
08CR13500." See 720 ILCS 5/24-1.1(a) (West 2012). Defendant was convicted of both counts.
The convictions merged and defendant was sentenced to 14 years' imprisonment on the AHC
conviction.
¶5 ANALYSIS
¶6 Before this court, defendant contends that his AHC and UUWF convictions must be
vacated because the predicate felony convictions alleged were aggravated unlawful use of a
weapon (AUUW) convictions based on statutory provisions that were declared facially
unconstitutional in Aguilar. For the reasons stated below, we affirm.
¶7 To sustain a conviction for AHC, the State is required to prove that defendant possessed a
firearm after having "been convicted 2 or more times of any of the following" qualifying
offenses which include, but are not limited to, a forcible felony, AUUW and/or a Class 3 or
higher drug felony. 720 ILCS 5/24-1.7(a) (West 2012). In count one, the AHC charge, the State
alleged that defendant had been previously convicted of two qualifying felony offenses: a
UUWF conviction under case number 08 CR 13500 and an AUUW conviction under case
number 07 CR 5014.
¶8 To prove defendant guilty of UUWF, the State was required to prove that defendant
knowingly possessed any firearm and had previously been convicted of any felony. 720 ILCS
5/24-1.1(a) (West 2012). In count two, the UUWF count, the State alleged that defendant
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knowingly possessed a firearm and had been previously convicted of UUWF in case number 08
CR 13500.
¶9 In case number 07 CR 5014, which served as one of the predicate felony offenses for the
AHC charge, defendant was convicted of AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d)(3)
(West 2006)) committed on or about January 25, 2007, by possessing an uncased, loaded, and
immediately accessible firearm while not on his own land, abode, or fixed place of business,
after previously being convicted of possession of a controlled substance in case number 01 CR
790, and received a Class 2 sentence of three years' imprisonment.
¶ 10 In case number 08 CR 13500, which served as a predicate felony offense for both the
AHC charge and the UUWF charge, defendant was convicted of two counts of UUWF (720
ILCS 5/24-1.1(a) (West 2008)), four counts of AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A),
(a)(1),(a) (3)(C), (a)(2),(a)(3)(A) and (a)(2),(a)(3)(c) (West 2008)), and was sentenced on all six
counts to a Class 2 concurrent sentence of six years' imprisonment. The two UUWF counts
alleged that defendant possessed a firearm and ammunition after having been previously
convicted of AUUW in case number 07 CR 5014. The four AUUW counts consisted of: two
counts alleging possession of an uncased, loaded, and immediately accessible firearm under
section 24-1.6(a)(1), (a)(3)(A) and (a)(2), (a)(3)(A) and two counts alleging possession of a
firearm without a valid FOID card under section 24-1.6(a)(1), (a)(3)(C) and (a)(2), (a)(3)(C).
Each of the four AUUW counts in case number 08 CR 13500 alleged the conviction in case
¶ 11 In this case, the trial evidence established that, on the night of September 11, 2012, police
officers responding to a report of a man with a rifle saw defendant on a sidewalk holding a large
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object and discarding it before walking away. The discarded object was immediately found to be
a loaded rifle. After defendant was arrested, he did not expressly admit to possessing the rifle but
told the police "I can get you two more guns if you let me walk on this rifle." The parties
stipulated 2 and the jury was told "that the defendant has been convicted of two qualifying
felonies under cases number 08 CR 13500 and 07 CR 5014." The jury found defendant guilty of
AHC and UUWF. Defendant's presentence investigation report reflected, in relevant part, that he
had five prior felony convictions for controlled substance offenses (two in 1999, one each in
2001, 2003, and 2004), in addition to his 2007 AUUW conviction and 2008 UUWF and AUUW
convictions.
¶ 12 In its response brief filed before the ruling in People v. Burns, 2015 IL 117387, the State
argues that defendant’s merged AHC and UUWF convictions need not be reversed because the
predicate felony convictions in case numbers 07 CR 5014 and 08 CR 13500 are based on the
Class 2 version of AUUW, which has not been declared unconstitutional and that the merged
UUWF conviction is properly based on the predicate felony of UUWF.
2 During motions in limine, defendant argued that his prior convictions were so prejudicial that the trial
should be bifurcated, with the jury first determining whether he possessed a firearm and only then being informed of
the predicate felonies. The court suggested informing the jury "merely that he has been convicted of a qualifying
felony, period." The State opposed bifurcation. The court denied bifurcation and reiterated that it could "simply say
qualifying felony" with the case number unless defendant testified as "then I cannot do any mere-fact impeachment
*** anymore." The parties agreed that the jury would be told that defendant had qualifying felony offenses with the
case numbers. During trial, the parties entered into the stipulation after trial counsel confirmed that "those are, in
fact, his prior felony convictions."
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¶ 13 On the date of this 2012 offense, the unlawful use of a weapon (UUW) statute, with
certain exceptions, essentially prohibited a person from carrying or concealing on or about his
person, or in any vehicle, a firearm except when on his land or in his abode or fixed place of
business (720 ILCS 5/24‑1(a)(4) (West 2012)). The elements of the AUUW offense are set forth
in section 24-1.6(a) (720 ILCS 5/24-1.6(a) (West 2012)) and generally prohibit possession of a
firearm on or about a person or in a vehicle or on a public way or within the corporate limits of a
municipality "and one of nine factors are present." People v. Burns, 2015 IL 117387, ¶ 23. Both
the UUW and the AUUW statute prohibit the same conduct. However, the existence of any one
of the additional factors enumerated in section 24-1.6(a) (720 ILCS 5/24-1.6(a) (West 2012)),
i.e., the firearm "was uncased, loaded and immediately accessible" or the defendant had not been
issued a FOID card, elevates the offense classification from a misdemeanor to different levels of
felony classification and corresponding punishment. 720 ILCS 5/24-1.6(d) (West 2012).
¶ 14 One's right to carry a gun outside of the home was discussed in People v. Aguilar, 2013
IL 112116. Our supreme court adopted the reasoning of District of Columbia v. Heller, 554 U.S.
570 (2008), McDonald v. City of Chicago, 561 U.S. 742 (2010), and Moore v. Madigan, 702
F.3d 933 (7th Cir. 2012), and held that the second amendment right to keep and bear arms
extends beyond the home. Aguilar, 2013 IL 112116, ¶¶ 19-20. The court further held that, "on its
face, the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) violates the right to keep and bear
arms, as guaranteed by the second amendment to the United States Constitution" because, while
"we are in no way saying that such a right is unlimited or is not subject to meaningful regulation"
"we are dealing not with a reasonable regulation but with a comprehensive ban" on possessing an
operable firearm outside one's home. Id. ¶¶ 21-22. "In other words, the Class 4 form of section
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24-1.6(a)(1), (a)(3)(A), (d) amounts to a wholesale statutory ban on the exercise of a personal
right." Id. ¶ 21.
¶ 15 Aguilar was qualified in our supreme court's decision in People v. Burns, 2015 IL
117387, ¶ 22. In Burns, our supreme court "acknowledge[d] that our reference in Aguilar to a
'Class 4 form' of the [AUUW] offense was inappropriate. No such offense exists. There is no
'Class 4 form' or 'Class 2 form' of AUUW." Id. The Burns court accepted the defendant's
argument that "[t]here is only one offense of AUUW based on section 24-1.6(a)(1), (a)(3)(A) and
a prior felony conviction is not an element of that offense. Rather, a prior felony conviction is a
sentencing factor which elevates the offense, for penalty purposes, from a Class 4 felony to a
Class 2 felony." Id. ¶ 20. Our supreme court clarified that Class 2 AUUW - that is, AUUW
committed by a felon - is unconstitutional under the same circumstances and statutory provisions
as Class 4 AUUW expressly addressed in Aguilar and therefore held that "section 24-1.6(a)(1),
(a)(3)(A) of the statute is facially unconstitutional, without limitation," because "[i]t would be
improper for this court to condition the constitutionality of section 24-1.6(a)(1), (a)(3)(A) of the
AUUW statute on the State's proof of a defendant's felon status when the legislature did not
make that requirement an element of the offense." Id. ¶¶ 25, 30.
¶ 16 Burns did not alter the core result in Aguilar. Second amendment rights remain protected
by the scope of the Aguilar ruling. However, Burns did remove any question as to its
applicability: every person is protected without regard to their criminal background. Burns, 2015
IL 117387, ¶ 32 (section 24-1.6(a)(1), (a)(3)(A) "is not enforceable against anyone") .
¶ 17 Our supreme court decided People v. McFadden, 2016 IL 117424, on June 16, 2016,
which involved a direct appeal from a UUWF conviction for possessing a firearm after having a
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prior conviction for AUUW. On direct appeal, McFadden argued that his UUWF conviction
should be vacated because it was predicated on his prior AUUW conviction, which was entered
under the section of the statute that was held facially unconstitutional in Aguilar, and thus, the
State failed to prove all of the elements of the offense. People v. McFadden, 2014 IL App (1st)
102939. We vacated the defendant’s UUWF conviction on the basis that the predicate offense of
AUUW was void ab initio based on Aguilar. Id.
¶ 18 Reversing, our supreme court held that defendant’s status as a felon was not affected by
Aguilar. McFadden, 2016 IL 117424, ¶ 13. The McFadden court examined the language of the
UUWF statute, which prohibits a person from knowingly possessing a firearm “ ‘if the person
has been convicted of a felony under the laws of this State or any other jurisdiction.’ ” Id. ¶ 27
(quoting 720 ILCS 5/24-1.1(a) (West 2008)). The court explained “the language of the statute
[(UUWF)] requires the State to prove only ‘the defendant’s felon status,’ ” and does not require
that the State prove the predicate offense at trial. Id. (quoting People v. Walker, 211 Ill. 2d 317,
337 (2004)); 720 ILCS 5/24-1.1(a) (West 2008). The court expressly found that “[n]othing on the
face of the statute suggests any intent to limit the language to only those persons whose prior
felony convictions are not later subject to vacatur” and further found that “the language of
section 24-.1(a) is ‘consistent with the common-sense notion that a disability based upon one’s
status as a convicted felon should cease only when the conviction upon which that status depends
has been vacated.’ ” Id. ¶¶ 27, 29 (quoting Lewis v. United States, 445 U.S. 55, 61 n.5 (1980)). In
addition, the court found that because the purpose of the UUWF statute is to protect the public
from persons who are potentially dangerous and irresponsible, it is immaterial if the predicate
conviction is subsequently found invalid for any reason. Id. As a result, the court found that the
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UUWF statute is a “status offense” and that the legislature intended that a defendant must clear
his felon status through the judicial process by having his prior felony conviction vacated or
expunged prior to obtaining a firearm and explained:
“It is axiomatic that no judgment, including a judgment of conviction, is deemed
vacated until a court with reviewing authority has so declared. As with any conviction, a
conviction is treated as valid until the judicial process has declared otherwise by direct
appeal or collateral attack. Although Aguilar may provide a basis for vacating
defendant’s prior 2002 AUUW conviction, Aguilar did not automatically overturn that
judgment of conviction. Thus, at the time defendant committed the UUW by a felon
offense, defendant had a judgment of conviction that had not been vacated and that made
it unlawful for him to possess firearms.” Id. ¶ 31.
¶ 19 In this case, the parties filed supplemental briefs discussing McFadden’s impact on issues
defendant presented. Defendant now argues that the AHC statute, which is distinguishable from
both the UUW statute at issue in McFadden, and the federal felon-in-possession of a firearm
statute in Lewis, is not satisfied by proof of a prior conviction that violates the second
amendment. The State responds that this court has already considered and rejected this argument
in People v. Perkins, 2016 IL App (1st) 150889.
¶ 20 In Perkins, 2016 IL App (1st) 150889, we applied the McFadden analysis to an AHC
conviction. Perkins was convicted as an AHC and filed a postconviction petition alleging the
State failed to prove him guilty beyond a reasonable doubt because his AHC conviction was
predicated on the AUUW statute found facially unconstitutional under Aguilar and therefore his
AUUW conviction was void ab initio. Perkins, 2016 IL App (1st) 150889, ¶ 2. The State
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appealed from the trial court’s order granting postconviction relief. Perkins, 2016 IL App (1st)
150889, ¶ 3.
¶ 21 Before this court on appeal, Perkins argued that McFadden’s reasoning was limited to the
offense of UUWF because “UUWF impose[d] a ‘status-based disability’ that precludes any
convicted felon from possessing a firearm” whereas “the offense of [AHC] requires the State to
prove that the defendant was convicted of specific enumerated offenses.” Id. ¶ 6. Perkins further
argued that UUWF imposed a “status-based disability” whereas the AHC conviction “imposes a
conduct-based disability *** based on a defendant’s commission of specific acts” and therefore
“because the conduct of which he was previously convicted—possession of a firearm—was
constitutionally protected, it cannot serve as a predicate for his [AHC] conviction.” (Emphasis in
original.) Id.
¶ 22 The Perkins court rejected defendant’s attempt to distinguish the UUWF offense from the
AHC offense in this context as a “distinction without a difference.” Id. ¶ 7. We explained:
“In order to sustain its burden to prove that defendant is an [AHC], the State need only
prove the fact of the prior convictions of enumerated offenses [citations], just as the State
need only prove the fact of a prior felony conviction to support a UUWF conviction.
Nothing in the [AHC] statute requires a court to examine a defendant’s underlying
conduct in commission of the enumerated offenses in order to find that the State has
sustained its burden of proof. And because here, as in McFadden, Perkins’ prior
convictions had not been vacated prior to his [AHC] conviction, they could properly
serve as predicates for that conviction.” Id.
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¶ 23 Defendant acknowledges Perkins but argues it was wrongly decided. We disagree and
find the reasoning employed in Perkins applies and defeats defendant’s attempt to distinguish the
AHC statute in this case from the UUWF statute in McFadden. Because defendant failed to
vacate his prior AUUW conviction prior to the time he possessed a firearm in this case, the prior
AUUW conviction could serve as the predicate offense for his AHC conviction. Id. ¶ 10.
Accordingly, we reject defendant’s argument.
¶ 24 Defendant also argues that Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718,
(2016), and Ex parte Siebold, 100 U.S. 371, (1880), mandate that defendant’s convictions for
both AHC and UUWF be vacated. Defendant claims that the McFadden court did not consider
the impact of Montgomery and Siebold, which prevent states from punishing citizens based on a
law that is facially unconstitutional, on the issue of whether a facially unconstitutional conviction
can be used as a predicate offense for UUWF, let alone an AHC offense.
¶ 25 We reject defendant’s argument that the McFadden court did not consider Montgomery.
Defense counsel in McFadden was granted leave to cite Montgomery as additional authority and
in response to the defendant’s reliance on Montgomery, the State argued that the United States
Supreme Court decision in Lewis was controlling. Our supreme court agreed. People v. Smith,
2017 IL App (1st) 122370-B, ¶ 28; McFadden, 2016 IL 117424, ¶ 34; People v. Perkins, 2016 IL
App (1st) 150889, ¶ 9.
¶ 26 In view of the foregoing, we review defendant's convictions. In count one defendant was
charged with AHC which required the State to plead and prove the essential element of at least
two enumerated prior felony convictions. The State alleged and proved by way of stipulation that
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defendant was previously convicted of a "qualifying" felony in case number 07 CR 5014 and
case number 08 CR 13500.
¶ 27 Defendant’s felony conviction in case number 07 CR 5014 was alleged as an element of
the AHC offense, and may serve as a predicate felony pursuant to McFadden because there is no
evidence presented that the conviction in 07 CR 5014 was vacated by any judicial process.
Therefore the 07 CR 5014 conviction can properly serve as proof of an essential element of one
of two prior felony convictions necessary to prove the offense of AHC as charged in count one.
We affirm defendant's conviction on count one.
¶ 28 McFadden is also dispositive of defendant’s claim that his UUWF conviction is invalid
because the predicate felony conviction (No. 07 CR 5014) in case number 08 CR 13500 is
constitutionally invalid under Aguilar and Burns. Count two charged defendant with UUWF -
possession of a firearm "after having been previously convicted of the [sic] felony offense." The
State proved by stipulation one felony required for this charge: a felony conviction under case
number 08 CR 13500. An essential element of proof was that the defendant's status as a felon be
established beyond a reasonable doubt, not that a particular or specific felony be proved or that
the felony was charged under a specific or indentified case number. As discussed, defendant did
not vacate his felony conviction for AUUW in 07 CR 5014, and therefore it properly served as a
predicate felony for 08 CR 13500, which the State used to prove defendant’s status as a felon. In
any event, in case number 08 CR 13500, defendant was convicted of six firearm related felony
counts, of which four were for AUUW. Two of those counts were for possession of a firearm
without a valid FOID card under section 24-1.6(a)(1), (a)(3)(C) (720 ILCS 5/24-1.6(a)(1),
(a)(3)(C) (West 2006)). Our supreme court has found AUUW based on not having a valid FOID
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card under section 24-1.6(a)(1), (a)(3)(C) to be constitutional and severable from the
unconstitutional "forms" of AUUW. People v. Mosley, 2015 IL 115872, ¶¶ 31, 36. We therefore
affirm defendant’s conviction for UUWF.
¶ 29 CONCLUSION
¶ 30 For the foregoing reasons, we affirm defendant's conviction for AHC and UUWF.
¶ 31 Affirmed.
¶ 32 PRESIDING JUSTICE HYMAN, specially concurring:
¶ 33 I agree with my colleagues that People v. McFadden controls the result. I write
separately, as I did in my special concurrence in People v. Spivey, 2017 IL App (1st) 123563, to
urge the legislature to amend the relevant statutes to indicate that if a person was convicted under
the unconstitutional AUUW statute, that void conviction may not be used to enhance a later
charge. This would undo the residual effect of the continued viability of convictions obtained
under a statute that has been declared void ab initio and without legal consequence.
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