2026 IL App (1st) 240636-U No. 1-24-0636 Order filed January 27, 2026 Second 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. ) ) Nos. 16 CR 14634 v. ) 21 CR 7670 ) 22 C5 50587 ) MARQUELL ROSE, ) Honorable ) Kenneth J. Wadas, Defendant-Appellant. ) Judge, presiding.
JUSTICE McBRIDE delivered the judgment of the court. Justices Ellis and D.B. Walker concurred in the judgment.
ORDER
¶1 Held: We affirm the denial of defendant’s motion to vacate his aggravated unlawful use of a weapon conviction because the statute creating that offense is not facially unconstitutional and defendant forfeited his as-applied constitutional challenge to the statute.
¶2 Defendant Marquell Rose appeals from a circuit court order denying his pro se motion to
vacate his conviction for aggravated unlawful use of a weapon (AUUW). On appeal, he contends
that the AUUW statute is unconstitutional facially and as applied to him. We affirm. No. 1-24-0636
¶3 Defendant entered negotiated guilty pleas to three firearm offenses spanning from 2016 to
2022. In case 16 CR 14634, pursuant to his guilty plea on March 8, 2017, defendant was convicted
of AUUW for carrying an uncased, loaded, and immediately accessible firearm outside his home
without having been issued a valid license under the Firearm Concealed Carry Act (CCL) or a
valid firearm owner’s identification (FOID) card (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5), (a)(3)(C)
(West 2016)), and was sentenced to one year in prison.
¶4 In case 21 CR 7670, pursuant to his guilty plea on December 20, 2022, defendant was
convicted of unlawful use of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1(a) (West 2020)),
the predicate felony being his AUUW conviction in case 16 CR 14634, and sentenced to nine years
in prison.
¶5 In case 22 C5 50587, pursuant to his guilty plea on January 17, 2023, defendant was
convicted of AUUW for carrying an uncased, loaded, and immediately accessible firearm outside
his home without having been issued a valid CCL (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West
2022)), and was sentenced to one year in prison, consecutive to the sentence in 21 CR 7670.
¶6 On October 12, 2023, defendant filed the instant pro se motion to vacate his AUUW
conviction as facially unconstitutional and void ab initio under People v. Aguilar, 2013 IL 112116.
The motion included only case number 16 CR 14634 in the caption and did not mention the other
cases. The State asserted that defendant was not convicted under the version of AUUW held void
under Aguilar. On November 3, 2023, the circuit court denied the motion and noted defendant had
“served his time on this case.”
¶7 On December 13, 2023, defendant sent the circuit court clerk a letter asking for the status
of his case. The letter stated that defendant’s October 2023 motion challenged all three of his
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convictions but also that the other convictions were “not mentioned in the motion yet are very
much true.”
¶8 Defendant filed a pro se motion for leave to file a late notice of appeal, which we granted.
His motion included all three circuit court case numbers in the caption and claimed that his motion
to vacate challenged all three convictions. Defendant attached as exhibits copies of two motions
to vacate his AUUW conviction under Aguilar, one in case 16 CR 14634 and the other in case 22
C5 50587. Both motions bear circuit court clerk “filed” stamps dated October 12, 2023. However,
there is no indication in the record that the second motion in the 2022 case was filed or presented
in the circuit court.
¶9 On appeal, defendant contends that the AUUW statute under which he was convicted is
unconstitutional facially and as applied to him. Specifically, he contends that the provisions of the
AUUW statute requiring the issuance of a valid CCL or FOID card are unconstitutional.
¶ 10 As a threshold matter, we agree with the State that defendant has forfeited the claim that
the AUUW statute is unconstitutional as applied to him. Facial and as-applied constitutional
challenges are “not interchangeable,” and because an as-applied challenge requires a showing that
the statute is unconstitutional as it applies to a defendant’s particular facts and circumstances, “it
is paramount that the record be sufficiently developed in terms of those facts and circumstances
for purposes of appellate review.” People v. Thompson, 2015 IL 118151, ¶¶ 36-37. A defendant
forfeits an as-applied challenge when raising it for the first time on appeal. Id. ¶ 39.
¶ 11 Here, the motion claimed only facial unconstitutionality under Aguilar, the parties did not
create a record of particular facts and circumstances, and the circuit court considered only facial
unconstitutionality. Thus, we will not consider the as-applied constitutional challenge to the
AUUW statute. Id. ¶ 39.
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¶ 12 As another threshold matter, the record is unclear as to whether defendant challenged in
the circuit court all three convictions he included in his notice of appeal. However, we need not
resolve that question. If defendant’s claim of facial unconstitutionality is correct, we could grant
relief in all three cases as a facially unconstitutional statute is void ab initio and may be challenged
at any time. In re N.G., 2018 IL 121939, ¶¶ 43, 57. Also, a court has an independent duty to vacate
the void judgment sua sponte. Id. ¶ 57. Thus, if defendant’s unconstitutionality claim is correct,
vacatur of both his AUUW convictions would be appropriate. Similarly, the felony underlying
defendant’s UUWF conviction was his first AUUW conviction. A conviction found void based on
a facially unconstitutional law cannot be used in subsequent proceedings to support guilt or
enhance punishment for another offense. Id. ¶ 38. Thus, if defendant’s claim is correct, his first
void AUUW conviction could not make him a felon and his UUWF conviction would not stand.
In sum, either all or none of defendant’s convictions included in his notice of appeal are invalid.
¶ 13 The second amendment to the United States Constitution (U.S. Const., amend. II) provides
that “[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.”
¶ 14 As relevant here, an individual commits AUUW when he knowingly carries on his or her
person an uncased, loaded, and immediately accessible firearm while not “on his or her land or in
his or her abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling
of another person as an invitee with that person’s permission,” without having been issued a valid
CCL or a valid FOID card. 720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5), (C) (West 2016).
¶ 15 Defendant contends that the provisions of the AUUW statute requiring a valid CCL or
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2026 IL App (1st) 240636-U No. 1-24-0636 Order filed January 27, 2026 Second 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. ) ) Nos. 16 CR 14634 v. ) 21 CR 7670 ) 22 C5 50587 ) MARQUELL ROSE, ) Honorable ) Kenneth J. Wadas, Defendant-Appellant. ) Judge, presiding.
JUSTICE McBRIDE delivered the judgment of the court. Justices Ellis and D.B. Walker concurred in the judgment.
ORDER
¶1 Held: We affirm the denial of defendant’s motion to vacate his aggravated unlawful use of a weapon conviction because the statute creating that offense is not facially unconstitutional and defendant forfeited his as-applied constitutional challenge to the statute.
¶2 Defendant Marquell Rose appeals from a circuit court order denying his pro se motion to
vacate his conviction for aggravated unlawful use of a weapon (AUUW). On appeal, he contends
that the AUUW statute is unconstitutional facially and as applied to him. We affirm. No. 1-24-0636
¶3 Defendant entered negotiated guilty pleas to three firearm offenses spanning from 2016 to
2022. In case 16 CR 14634, pursuant to his guilty plea on March 8, 2017, defendant was convicted
of AUUW for carrying an uncased, loaded, and immediately accessible firearm outside his home
without having been issued a valid license under the Firearm Concealed Carry Act (CCL) or a
valid firearm owner’s identification (FOID) card (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5), (a)(3)(C)
(West 2016)), and was sentenced to one year in prison.
¶4 In case 21 CR 7670, pursuant to his guilty plea on December 20, 2022, defendant was
convicted of unlawful use of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1(a) (West 2020)),
the predicate felony being his AUUW conviction in case 16 CR 14634, and sentenced to nine years
in prison.
¶5 In case 22 C5 50587, pursuant to his guilty plea on January 17, 2023, defendant was
convicted of AUUW for carrying an uncased, loaded, and immediately accessible firearm outside
his home without having been issued a valid CCL (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West
2022)), and was sentenced to one year in prison, consecutive to the sentence in 21 CR 7670.
¶6 On October 12, 2023, defendant filed the instant pro se motion to vacate his AUUW
conviction as facially unconstitutional and void ab initio under People v. Aguilar, 2013 IL 112116.
The motion included only case number 16 CR 14634 in the caption and did not mention the other
cases. The State asserted that defendant was not convicted under the version of AUUW held void
under Aguilar. On November 3, 2023, the circuit court denied the motion and noted defendant had
“served his time on this case.”
¶7 On December 13, 2023, defendant sent the circuit court clerk a letter asking for the status
of his case. The letter stated that defendant’s October 2023 motion challenged all three of his
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convictions but also that the other convictions were “not mentioned in the motion yet are very
much true.”
¶8 Defendant filed a pro se motion for leave to file a late notice of appeal, which we granted.
His motion included all three circuit court case numbers in the caption and claimed that his motion
to vacate challenged all three convictions. Defendant attached as exhibits copies of two motions
to vacate his AUUW conviction under Aguilar, one in case 16 CR 14634 and the other in case 22
C5 50587. Both motions bear circuit court clerk “filed” stamps dated October 12, 2023. However,
there is no indication in the record that the second motion in the 2022 case was filed or presented
in the circuit court.
¶9 On appeal, defendant contends that the AUUW statute under which he was convicted is
unconstitutional facially and as applied to him. Specifically, he contends that the provisions of the
AUUW statute requiring the issuance of a valid CCL or FOID card are unconstitutional.
¶ 10 As a threshold matter, we agree with the State that defendant has forfeited the claim that
the AUUW statute is unconstitutional as applied to him. Facial and as-applied constitutional
challenges are “not interchangeable,” and because an as-applied challenge requires a showing that
the statute is unconstitutional as it applies to a defendant’s particular facts and circumstances, “it
is paramount that the record be sufficiently developed in terms of those facts and circumstances
for purposes of appellate review.” People v. Thompson, 2015 IL 118151, ¶¶ 36-37. A defendant
forfeits an as-applied challenge when raising it for the first time on appeal. Id. ¶ 39.
¶ 11 Here, the motion claimed only facial unconstitutionality under Aguilar, the parties did not
create a record of particular facts and circumstances, and the circuit court considered only facial
unconstitutionality. Thus, we will not consider the as-applied constitutional challenge to the
AUUW statute. Id. ¶ 39.
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¶ 12 As another threshold matter, the record is unclear as to whether defendant challenged in
the circuit court all three convictions he included in his notice of appeal. However, we need not
resolve that question. If defendant’s claim of facial unconstitutionality is correct, we could grant
relief in all three cases as a facially unconstitutional statute is void ab initio and may be challenged
at any time. In re N.G., 2018 IL 121939, ¶¶ 43, 57. Also, a court has an independent duty to vacate
the void judgment sua sponte. Id. ¶ 57. Thus, if defendant’s unconstitutionality claim is correct,
vacatur of both his AUUW convictions would be appropriate. Similarly, the felony underlying
defendant’s UUWF conviction was his first AUUW conviction. A conviction found void based on
a facially unconstitutional law cannot be used in subsequent proceedings to support guilt or
enhance punishment for another offense. Id. ¶ 38. Thus, if defendant’s claim is correct, his first
void AUUW conviction could not make him a felon and his UUWF conviction would not stand.
In sum, either all or none of defendant’s convictions included in his notice of appeal are invalid.
¶ 13 The second amendment to the United States Constitution (U.S. Const., amend. II) provides
that “[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.”
¶ 14 As relevant here, an individual commits AUUW when he knowingly carries on his or her
person an uncased, loaded, and immediately accessible firearm while not “on his or her land or in
his or her abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling
of another person as an invitee with that person’s permission,” without having been issued a valid
CCL or a valid FOID card. 720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5), (C) (West 2016).
¶ 15 Defendant contends that the provisions of the AUUW statute requiring a valid CCL or
FOID card are facially unconstitutional under New York State Rifle & Pistol Ass’n v. Bruen, 597
U.S. 1 (2022), because criminalization of firearm possession without a CCL and FOID card
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burdens the individual right to bear arms with no historical analogue. The State responds that Bruen
and People v. Thompson, 2025 IL 129965, hold otherwise. Whether a statute is constitutional is a
question of law reviewed de novo. People v. Villareal, 2023 IL 127318, ¶ 14.
¶ 16 In Bruen, the United States Supreme Court held that “the Second and Fourteenth
Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”
Bruen, 597 U.S. at 9. The Court then provided a two-step test to determine the constitutionality of
firearm regulations. At the first step, if the government can prove that the regulated conduct falls
beyond the Second Amendment’s original scope, the analysis ends and the regulation is
constitutional. Id. at 18. If the government cannot so prove, the court proceeds to the second step:
“to assess whether modern firearms regulations are consistent with the Second Amendment’s text
and historical understanding.” Id. at 26.
¶ 17 Bruen involved a challenge to a New York statute requiring a license to possess a firearm
inside or outside one’s home, with the applicant having to show “proper cause;” that is, a special
need for self-protection distinguishable from the general public’s need. Id. at 11-12. The Bruen
Court noted that 43 states, including Illinois, are “shall issue” jurisdictions where authorities have
no discretion to deny a concealed-carry license when threshold requirements are met. Id. at 13. In
contrast, New York and 6 other jurisdictions have “may issue” licensing laws granting authorities
discretion to deny licenses even when all statutory criteria are met. Id. at 13-15. In finding New
York’s “may issue” licensing regime unconstitutional, the Bruen Court stated that “nothing in our
analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’
licensing regimes.” Id. at 38 n.9.
¶ 18 In Thompson, the defendant challenged the constitutionality of the AUUW statute “as
impermissibly restricting law-abiding citizens’ right to openly carry handguns in public and
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enforcing an ahistorical double licensing regime that mandates CCLs and FOID cards.” Thompson,
2025 IL 129965, ¶ 13. Applying Bruen to the CCL and FOID card requirements, our supreme
court noted that the Bruen Court focused on the “may issue” nature of the New York statute, in
contrast to the “shall issue” nature of CCLs and FOID cards, which must be issued “whenever
applicants satisfy certain threshold requirements, without granting licensing officials discretion to
deny licenses based on a perceived lack of need or suitability.” Id. ¶¶ 21-23; 29-30.
¶ 19 Our supreme court explained that the “Bruen Court expressly declared shall-issue licensing
regimes facially constitutional under the second amendment because they neither give officials
licensing discretion nor require the applicant to show an atypical need for self-defense.” (Emphasis
in original.) Id. ¶ 39. The court noted the “defendant’s possession of a ready-to-use firearm in his
vehicle constitutes public concealed carriage, which is presumptively protected under Bruen.” Id.
¶ 44. The court determined, however, that the Bruen Court’s “express endorsement of shall-issue
licensure obviates the need for this court to apply the historical-tradition component of the Bruen
analysis to defendant’s facial challenge to section 24-1.6(a)(1), (a)(3)(A-5) and its enforcement of
CCL and FOID card licensure.” Id. The court concluded that “Illinois’s shall-issue regime does
not violate the second amendment.” Id. ¶ 45.
¶ 20 Here, we have no basis to depart from Thompson and similarly must conclude that the CCL
and FOID card provisions of the AUUW statute are not facially unconstitutional. Yakich v. Aulds,
2019 IL 123667, ¶ 13 (lower courts are bound to apply our supreme court’s precedent). Defendant
points to Justice Overstreet’s dissent in Thompson and asks us to conduct our own Bruen analysis
rather than follow Thompson. We decline. Id.
¶ 21 Accordingly, the judgment of the circuit court of Cook County is affirmed.
¶ 22 Affirmed.
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