People v. McNeal

2024 IL App (1st) 231051-U

• Court: Appellate Court of Illinois
• Decided: August 12, 2024
• Docket: 1-23-1051
• Status: Unpublished

Opinion

2024 IL App (1st) 231051-U No. 1-23-1051 Order filed August 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. 17 CR 1246 ) ARTEZ McNEAL, ) Honorable ) Ursula Walowski, Defendant-Appellant. ) Judge, presiding.

JUSTICE PUCINSKI delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.

ORDER

¶1 Held: The circuit court’s dismissal of defendant’s postconviction petition is affirmed where defendant has abandoned the claim of ineffective assistance of counsel which was raised in his petition and his claim on appeal that the armed habitual criminal statute is facially unconstitutional under the second amendment is without merit.

¶2 Defendant Artez McNeal appeals from an order of the circuit court of Cook County

granting the State’s motion to dismiss his petition for relief filed under the Post-Conviction

Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). On appeal, defendant has abandoned No. 1-23-1051

the claim of ineffective assistance of counsel which was raised in his postconviction petition and,

instead, solely contends that the armed habitual criminal statute under which he was convicted

(720 ILCS 5/24-1.7 (West 2016)) is facially unconstitutional under the second amendment of the

United States Constitution (U.S. Const., amend. II). For the following reasons, we affirm.

¶3 Following a 2017 jury trial, defendant was convicted of being an armed habitual criminal

(AHC) and sentenced to a term of 10 years’ imprisonment. The two predicate felony convictions

underlying the AHC conviction were defendant’s 2009 conviction for aggravated vehicular

hijacking and his 2013 conviction for manufacture or delivery of a controlled substance. On direct

appeal, this court affirmed defendant’s conviction. People v. McNeal, 2019 IL App (1st) 180015.

¶4 On December 7, 2020, defendant filed a pro se postconviction petition under the Act

raising a single claim of ineffective assistance of trial counsel for failing to investigate and call a

particular witness at trial who may have provided exonerating testimony. Defendant attached to

his petition an affidavit from that witness averring that she never gave a written or verbal statement

against defendant and that counsel never contacted her to confirm or deny if she made a statement.

The circuit court appointed counsel to represent defendant and advanced his petition to the second

stage of proceedings under the Act.

¶5 On March 16, 2023, the State moved to dismiss defendant’s postconviction petition arguing

that counsel’s decision regarding which witnesses to call at trial was a matter of trial strategy that

was entitled to deference and generally immune from claims of ineffective assistance. The State

pointed out that there was no evidence that the proposed witness ever provided a statement against

defendant, and no written or verbal statement from her had been introduced at trial. Consequently,

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the proposed witness’s testimony would not have changed the outcome of trial and defendant had

not been prejudiced by counsel’s decision not to call her.

¶6 Following a hearing on May 31, 2023, the circuit court granted the State’s motion and

dismissed defendant’s postconviction petition.

¶7 On appeal, defendant has abandoned his claim of ineffective assistance of trial counsel

raised in his postconviction petition. Instead, for the first time on appeal, he solely contends that,

in light of the United States Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc.

v. Bruen, 597 U.S. 1 (2022), the AHC statute under which he was convicted is facially

unconstitutional under the second amendment of the United States Constitution (U.S. Const.,

amend II).

¶8 Generally, a claim not raised in a postconviction petition cannot be raised for the first time

on appeal from the dismissal of that petition. People v. Jones, 213 Ill. 2d 498, 507-08 (2004).

However, a challenge to a statute as facially unconstitutional is exempt from forfeiture and may

be raised at any time. People v. Thompson, 2015 IL 118151, ¶ 32. Here, the parties agree, and we

concur, that the record on appeal is sufficiently developed to allow this court to address defendant’s

constitutional challenge. See id. ¶ 37. Whether the AHC statute is constitutional is a question of

law which we review de novo. People v. Smith, 2024 IL App (1st) 221455, ¶ 9 (citing People v.

Davis, 2014 IL 115595, ¶ 26).

¶9 The AHC statute provides:

“(a) A person commits the offense of being an armed habitual criminal if he or she

receives, sells, possesses, or transfers any firearm after having been convicted a total of 2

or more times of any combination of the following offenses:

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(1) a forcible felony as defined in Section 2-8 of this Code;

(2) unlawful use of a weapon by a felon; aggravated unlawful use of a

weapon; aggravated discharge of a firearm; vehicular hijacking; aggravated

vehicular hijacking; aggravated battery of a child as described in Section 12-4.3 or

subdivision (b)(1) of Section 12-3.05; intimidation; aggravated intimidation;

gunrunning; home invasion; or aggravated battery with a firearm as described in

Section 12-4.2 or subdivision (e)(1), (e)(2), (e)(3), or (e)(4) of Section 12-3.05; or

(3) any violation of the Illinois Controlled Substances Act or the Cannabis

Control Act that is punishable as a Class 3 felony or higher.

(b) Sentence. Being an armed habitual criminal is a Class X felony.” 720 ILCS

5/24-1.7 (West 2016).

¶ 10 Defendant argues that the AHC statute is unconstitutional under the second amendment on

its face. A facial challenge is “the most difficult challenge to mount.” Davis, 2014 IL 115595, ¶ 25.

Statutes are presumed constitutional. People v. Bochenek, 2021 IL 125889, ¶ 10. To rebut that

presumption and establish that a statute is facially unconstitutional, the party challenging the

constitutionality must demonstrate that there are no circumstances under which the statute would

be valid. Id. “If it is reasonably possible to construe the statute in a way that preserves its

constitutionality, we must do so.” Id.

¶ 11 The second amendment provides: “A well regulated Militia, 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, in which it stated that the second amendment elevated “the right of law-abiding,

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responsible citizens to use arms in defense of hearth and home.” District of Columbia v. Heller,

554 U.S. 570, 635 (2008). In 2010, the Court extended the right to keep and bear arms to the states

under the fourteenth amendment. McDonald v. City of Chicago, 561 U.S. 742 (2010). The Court

reiterated that its decision in Heller “did not cast doubt on such longstanding regulatory measures

as ‘prohibitions on the possession of firearms by felons.’ ” Id. at 786 (quoting Heller, 554 U.S. at

626-27).

¶ 12 Following Heller and McDonald, courts developed a two-step analysis for evaluating

second amendment challenges to firearm regulations. See Smith, 2024 IL App (1st) 221455, ¶ 11.

First, the courts considered whether the regulated activity fell within the scope of the second

amendment as it was originally understood. Id. If the government did not establish that the

regulated activity was outside the scope of the second amendment, the courts proceeded to the

second step and conducted a “means-end analysis.” (Internal quotation marks omitted.) Id. During

that step of the analysis, the courts weighed the severity of the regulation against the ends which

the government sought to achieve in enacting the regulation. Id.

¶ 13 However, in 2022 the Supreme Court issued Bruen, in which it adopted a new analytical

framework for evaluating the constitutionality of firearm regulations. Id. ¶ 12 (citing Bruen, 597

U.S. at 17, 24). The Court condemned the means-end analysis. Id. (citing Bruen, 597 U.S. at 19).

Rather, under Bruen, where the second amendment’s plain text covers an individual’s conduct, the

conduct is presumptively protected. Id. (citing Bruen, 597 U.S. at 17, 24). To justify the regulation

of that conduct, the government must then demonstrate that the regulation “ ‘is consistent with the

Nation’s historical tradition of firearm regulation.’ ” Id. (quoting Bruen, 597 U.S. at 24). To do so,

the government must point to historical precedent, focusing on what the founders understood the

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second amendment to mean. People v. Brooks, 2023 IL App (1st) 200435, ¶ 70 (citing Bruen, 597

U.S. at 27, 34-35).

¶ 14 Initially, the State responds that in this case we need not reach the analytical framework

that Bruen provided. The State notes that Bruen concerned a portion of a New York statute that

only issued licenses to carry a firearm outside one’s home or place of business to those who showed

that “proper cause” existed. Bruen, 597 U.S. at 11-13. The Court differentiated New York’s “may-

issue” licensing regime from the majority of states that have “shall-issue” licensing regimes, where

the states issue a license whenever an applicant meets certain, objective requirements. Id. at 38

n.9. Bruen expressly stated that nothing in its decision “should be interpreted to suggest the

unconstitutionality” of any “shall-issue” licensing regime. Id.

¶ 15 Following Bruen, in People v. Gunn, this court rejected the defendant’s argument that the

aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6(a) (West 2020)) was facially

unconstitutional because it criminalized possessing a firearm if the possessor was not in

compliance with the Firearm Owners Identification (FOID) Card Act (430 ILCS 65/1 et seq. (West

2020)) or the Firearm Concealed Carry Act (430 ILCS 66/1 et seq. (West 2020)) (Acts). Gunn,

2023 IL App (1st) 221032, ¶¶ 7, 19, 29-30. We found in Gunn that those Acts were “shall-issue”

licensing programs of the type that Bruen had approved, and, therefore, the aggravated unlawful

use of a weapon statute was not unconstitutional for criminalizing the possession of a firearm by

a person who was not in compliance with those Acts. Id. ¶¶ 14-30.

¶ 16 The State notes that those Acts prohibit convicted felons from obtaining a FOID card or

CCL. 430 ILCS 65/8(c) (West Supp. 2021); 430 ILCS 66/25(2) (West 2022). The State asserts that

we may therefore reject defendant’s facial challenge to the AHC statute without reaching any of

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the analytical steps provided by Bruen because, like those Acts, the AHC statute prohibits felons

from carrying firearms. We are not convinced that Gunn and Bruen’s discussion of licensing

schemes should control here. See Brooks, 2023 IL App (1st) 200435, ¶ 79 n.11 (rejecting the

State’s request to find Bruen inapplicable to the AHC statute based on Bruen’s endorsement of

shall-issue licensing regimes). In any case, the outcome of this appeal would not differ, as the AHC

statute is constitutional under Bruen’s analytical framework.

¶ 17 Thus, we turn to the analysis provided by Bruen. Again, the first question under Bruen is

whether the second amendment’s plain text covers the conduct at issue. Bruen, 597 U.S. at 24. If

it does, the second question is whether the State has demonstrated that the regulation comports

with our national historical tradition of firearm regulation. Id.

¶ 18 Here, defendant claims that the conduct prohibited by the AHC statute, possessing a

firearm, is covered by the plain text of the second amendment and therefore presumptively

protected. We disagree. In Bruen, the Supreme Court reiterated that the second amendment does

not grant an unrestricted right to carry firearms by all people at all times. Rather, it explained that:

“The Second Amendment guaranteed to ‘all Americans’ the right to bear commonly used

arms in public subject to certain reasonable, well-defined restrictions. Heller, 554 U.S. at

581, 128 S. Ct. 2783. Those restrictions, for example, limited the intent for which one could

carry arms, the manner by which one carried arms, or the exceptional circumstances under

which one could not carry arms, such as before justices of the peace and other government

officials.” Id. at 70.

¶ 19 In Heller, McDonald, and Bruen, the Supreme Court expressly stated that the second

amendment protects the rights of “law-abiding citizens.” See Bruen, 597 U.S. at 8-10 (agreeing

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that “law-abiding citizens” have a right to carry handguns for self-defense outside the home); see

also Heller, 554 U.S. at 635 (second amendment elevated “the right of law-abiding, responsible

citizens to use arms in defense of hearth and home” (emphasis added)); McDonald, 561 U.S. at

786 (reiterating that Heller “did not cast doubt on such longstanding regulatory measures as

prohibitions on the possession of firearms by felons” (internal quotation marks omitted)).

¶ 20 On that basis, this court recently rejected a substantially similar facial constitutional

challenge to the AHC statute that defendant presents here, concluding that Bruen did not apply to

laws that attempted to regulate firearm possession by felons. See People v. Kelley, 2024 IL App

(1st) 230569, ¶ 16. In Kelley, we found it significant that the majority opinion in Bruen repeated

the phrase “law-abiding” no fewer than 13 times. We further found that Bruen did not indicate any

intent to expand the second amendment’s protection to citizens who are not “law-abiding.” Id.

Moreover, we noted that the explicit holding in Bruen was that the New York statute violated the

fourteenth amendment because it prevented “ ‘law-abiding citizens with ordinary self-defense

needs from exercising their right to keep and bear arms.’ ” Id. (quoting Bruen, 597 U.S. at 71). We

stated, “[w]e presume that the Supreme Court’s inclusion of ‘law-abiding’ in the holding is not

superfluous or irrelevant, especially given the Court’s repeated use of the phrase throughout the

Bruen opinion, as well as its prior decisions.” Id.

¶ 21 Therefore, in light of our holding that the AHC statute was facially constitutional in Kelley,

defendant’s facial challenge to that statute in this case must fail. See Bochenek, 2021 IL 125889,

¶ 10 (“A statute will be deemed facially unconstitutional only if there is no set of circumstances

under which the statute would be valid.”).

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¶ 22 Defendant points out that in Brooks, this court found that the defendant’s felon status was

“irrelevant” during the first step of its Bruen analysis and that the effect of the defendant’s prior

felony conviction on his second amendment right to possess a firearm was more appropriately

evaluated under the second step’s historical tradition analysis. Brooks, 2023 IL App (1st) 200435,

¶ 89. In Brooks, the defendant claimed that the AHC statute was unconstitutional “as applied to

him.” Id. ¶ 1. It is well-settled that facial and as-applied constitutional challenges are not

interchangeable. Thompson, 2015 IL 118151, ¶ 36. “An as-applied challenge requires a showing

that the statute violates the constitution as it applies to the facts and circumstances of the

challenging party.” Id. Here, defendant raised only a facial challenge, which we determined above

is without merit.

¶ 23 Nevertheless, although we find it unnecessary to engage in a fulsome historical analysis, if

we were to do so, defendant’s facial challenge would still fail. Under the second step of the Bruen

analysis, Brooks found ample historical support for the legislature’s ability to prohibit possession

of firearms by twice-convicted felons. Brooks, 2023 IL App (1st) 200435, ¶¶ 90-105. The

historical analogues included “widespread acceptance of the legislatures’ authority to disarm

felons” during the founders’ era. Id. ¶ 96. Brooks recognized a “historical tradition of legislatures

exercising their discretion to impose status-based restrictions disarming entire categories of

persons” and that “the founders understood that felons were one such group.” (Internal quotation

marks and citations omitted.) Id. ¶ 97.

¶ 24 Defendant acknowledges our conclusion in Brooks but contends that portion of the decision

was wrongly decided. We decline to revisit Brooks here. Rather, we will follow Kelley and reject

defendant’s facial challenge to the AHC statute under the second amendment. As defendant has

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not shown that the AHC statute is unconstitutional, we affirm the circuit court’s dismissal of his

postconviction petition.

¶ 25 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 26 Affirmed.

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