People v. Thomas

2024 IL App (4th) 240315-U

Opinion

NOTICE 2024 IL App (4th) 240315-U FILED This Order was filed under September 3, 2024 Supreme Court Rule 23 and is NO. 4-24-0315 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Tazewell County LUCAS S. THOMAS, ) No. 22CF538 Defendant-Appellant. ) ) Honorable ) Christopher R. Doscotch, ) Judge Presiding.

PRESIDING JUSTICE CAVANAGH delivered the judgment of the court. Justices Steigmann and Grischow concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed, finding the Illinois armed habitual criminal statute does not violate the United States Constitution.

¶2 In November 2023, defendant, Lucas S. Thomas, was sentenced to 19 years’

imprisonment following his guilty plea to being an armed habitual criminal (720 ILCS

5/24-1.7(a) (West 2022)). On appeal, defendant argues the armed habitual criminal statute

violates the second amendment (U.S. Const., amend. II) on its face pursuant to the United States

Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).

We affirm.

¶3 I. BACKGROUND

¶4 In October 2022, the State charged defendant by indictment with (1) being an

armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2022)) for possessing a firearm after having been convicted of residential burglary in Woodford County case No. 08-CF-82 and

unlawful possession of a weapon by a felon in Peoria County case No. 11-CF-333; (2) unlawful

possession of a weapon by a felon (id. § 24-1.1(a)) for possessing said firearm after having been

convicted in Peoria County case No. 11-CF-333; (3) aggravated domestic battery (id. § 12-3.3(a-

5)) for intentionally strangling a family or household member; (4) aggravated battery (id. § 12-

3.05(f)(1)) for holding a gun, a deadly weapon, to the head of another and thereby making

contact of an insulting or provoking nature; (5) domestic battery (id. § 12-3.2(a)(1)) for causing

bodily harm by striking a family or household member; and (6) resisting a peace officer (id.

§ 31-1)) for refusing to place his hands behind his back, tensing up, and struggling with an

arresting officer, thereby causing the officer to be injured.

¶5 In July 2023, defendant entered into a partially negotiated plea agreement wherein

he pleaded guilty to the armed habitual criminal charge. In exchange, the State dismissed the

remaining charges, agreed not to file any uncharged pending cases against defendant, and agreed

not to refer any cases regarding defendant for federal prosecution. However, the State reserved

the right to utilize any uncharged conduct and the dismissed charges in aggravation at

sentencing. The State proffered a factual basis, citing defendant’s aforementioned felony

convictions from Woodford and Peoria counties. Following the issuance of a search warrant,

officers discovered a handgun in defendant’s bedroom. Additionally, a search of defendant’s

phone revealed a photograph of him holding said handgun. The trial court accepted defendant’s

plea as knowing and voluntary.

¶6 A sentencing hearing was held in November 2023. A presentence investigation

report (PSI) was admitted without objection. According to the PSI, defendant had been convicted

-2- of residential burglary in 2008 and twice convicted of unlawful possession of a weapon by a

felon in 2011 and 2015, respectively.

¶7 The State introduced into evidence the video showing defendant’s arrest and the

recovery of the firearm and the testimony of detective Robert Vester of the East Peoria Police

Department. Vester testified, among other things, to discovering the firearm in defendant’s

bedroom, to investigating defendant for selling stolen all-terrain vehicles, and that, according to

defendant, he had purchased the firearm at issue in St. Louis, Missouri, for self-defense.

¶8 Defendant presented letters from family and friends in mitigation. A neighbor and

friend testified defendant was not a violent person and only obtained the firearm for self-defense.

¶9 Defendant gave a statement in allocution wherein he acknowledged his mistake in

purchasing the firearm. He argued a convicted felon should not lose his rights under the second

amendment and contended he never used or brandished the firearm but was the victim of two

other individuals threatening him with a firearm.

¶ 10 The trial court considered the PSI, evidence presented in aggravation and

mitigation, defendant’s statement in allocution, arguments from the parties, the statutory and

nonstatutory factors in aggravation and mitigation, the history and character of defendant, and

the seriousness of the offense in light of the objective of restoring defendant to useful citizenship.

The court noted the firearm had a “40-round extended clip” and a “green laser tag site,”—

characteristics typically not found on a weapon used merely for self-defense. Defendant

interjected that those items came with the weapon when he bought it. The court rebutted that

defendant, nonetheless, bought it that way. The court sentenced defendant to 19 years’

imprisonment. Defendant filed a motion to reconsider sentence, arguing the court failed to

-3- consider certain statutory factors in mitigation and that his sentence was excessive. The court

denied the motion.

¶ 11 This appeal followed.

¶ 12 II. ANALYSIS

¶ 13 Defendant claims the armed habitual criminal statute is unconstitutional on its

face as violative of the second amendment. See In re N.G., 2018 IL 121939, ¶ 49 (“Defendants

convicted under a facially unconstitutional statute may challenge the conviction at any time, even

after a guilty plea, because the state or government had no power to impose the conviction to

begin with.”). We disagree. The Criminal Code of 2012 (Code) (720 ILCS 5/1-1 et seq. (West

2022)) provides as follows:

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

he or she receives, sells, possess, or transfers any firearm after having been

convicted a total of 2 or more times of any combination of the following offenses:

(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

-4- (3) any violation of the Illinois Controlled substances Act or the

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

720 ILCS 5/24-1.7 (West 2022).

¶ 14 Accordingly, defendant’s stipulated convictions of residential burglary (a forcible

felony pursuant to section 2-8 of the Code (id. § 2-8)) in Woodford County case No. 08-CF-82

and unlawful possession of a weapon by a felon in Peoria County case No. 11-CF-333 were

qualifying convictions under the armed habitual criminal statute.

¶ 15 Defendant relies on the United States Supreme Court’s decision in Bruen. In

Bruen, the Supreme Court held, “When the Second Amendment’s plain text covers an

individual’s conduct, the Constitution presumptively protects that conduct,” and the government

“must then justify its regulation by demonstrating that [the regulation] is consistent with the

Nation’s historical tradition of firearm regulation.” Bruen, 597 U.S. at 24 (2022).

¶ 16 In response to defendant’s facial challenge, the State cites numerous appellate

court decisions relevant to the issue on appeal: People v. Baker, 2023 IL App (1st) 220328,

¶¶ 37-39 (finding Bruen did not apply to the defendant’s as applied constitutional challenge

under the second amendment of the unlawful use of a weapon by a felon statute); People v.

Kelley, 2024 IL App (1st) 230569, ¶¶ 14-22 (finding the armed habitual criminal statute did not

violate the second amendment pursuant to Bruen); People v. Gross, 2024 IL App (2d) 230017-U,

¶¶ 19-29 (finding Bruen did not apply to the defendant’s as applied challenge to the unlawful

possession of a weapon by a felon statute); People v. Echols, 2024 IL App (2d) 220281-U,

¶¶ 143-158 (finding Bruen did not apply to the defendant’s as applied challenge to the unlawful

possession of a weapon by a felon statute); People v. Smith, 2023 IL App (2d) 220340-U,

¶¶ 51-60 (finding the armed habitual criminal statute did not violate the second amendment

-5- pursuant to Bruen); People v. Smith, 2023 IL App (4th) 220958-U, ¶¶ 18-22 (finding the firearm

owner’s identification card requirement constitutional post-Bruen); People v. Boyce, 2023 IL

App (4th) 221113-U, ¶¶ 11-16 (finding Bruen did not apply to the defendant’s facial

constitutional challenge under the second amendment of the unlawful use of a weapon by a felon

statute).

¶ 17 Defendant counters that the cases cited by the State were wrongly decided and

notes the appellate court in People v. Brooks, 2023 IL App (1st) 200435, and People v. Travis,

2024 IL App (3d) 230113, found the second amendment’s plain language presumptively

protected convicted felons. Furthermore, the cases cited by the State were all decided without the

benefit of the Supreme Court’s decision in United States v. Rahimi, 602 U.S. ___, 144 S. Ct.

1889 (2024).

¶ 18 In Brooks, the defendant was convicted of being an armed habitual criminal.

Brooks, 2023 IL App (1st) 200435, ¶ 1. On appeal, the defendant contended the armed habitual

criminal statute as applied to him “impermissibly criminalized his simple possession of a firearm

exclusively on the basis of his two prior nonviolent felony convictions.” Id. ¶ 55. Following the

framework from Bruen, the court in Brooks first considered whether the plain language of the

second amendment protected the defendant’s right to keep and bear arms. Id. ¶¶ 69, 79-87. The

Brooks court concluded the defendant had been convicted under the armed habitual criminal

statute for possessing a firearm after having been twice convicted of two nonviolent felonies. Id.

¶ 86. After observing the Supreme Court, in District of Columbia v. Heller, 554 U.S. 570, 582

(2008), held “to keep arms” simply meant to “have weapons,” the Brooks court reasoned to

“have,” defined as “to be in possession of,” meant the second amendment’s plain language

presumptively protected the defendant’s conduct of possessing a firearm. (Internal quotation

-6- marks omitted.) Brooks, 2023 IL App (1st) 200435, ¶ 87. The court then went on to determine

the armed habitual criminal statute was consistent with the nation’s tradition of firearm

regulation. Id. ¶ 90.

¶ 19 The court in Travis, adopted the reasoning in Brooks and found “the second

amendment’s plain language does not exclude felons.” Travis, 2024 IL App (3d) 230113, ¶ 26.

Similarly, the Travis court also concluded the armed habitual criminal statute was consistent with

the nation’s tradition of firearm regulation. Id. ¶ 33.

¶ 20 In Rahimi, the defendant was charged with possessing a firearm while subject to a

domestic violence restraining order. Rahimi, 602 U.S. __, 144 S. Ct. at 1895. The court noted,

where “a restraining order contains a finding that an individual poses a credible threat to the

physical safety of an intimate partner, that individual may—consistent with the Second

Amendment—be banned from possessing firearms while the order is in effect.” Id. at 1896.

Moreover, “our Nation’s firearm laws have included provisions preventing individuals who

threaten physical harm to others from misusing firearms.” Id. The court went on to clarify that

“the Second Amendment permits more than just those regulations identical to ones that could be

found in 1791.” Id. at 1897-98. “A court must ascertain whether the new law is ‘relevantly

similar’ to laws that our tradition is understood to permit.” Id. at 1898. The Rahimi court rejected

the notion that the defendant could be disarmed “simply because he is not ‘responsible.’ ” Id. at

1903. The court noted that the Heller and Bruen decisions had used the term “responsible” to

“describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right,”

but the term was never defined to reveal those who would be considered “not ‘responsible.’ ” Id.

¶ 21 In essence, defendant asks that we, like the courts in Brooks and Travis, find his

mere possession of a firearm was presumptively protected by the second amendment. Then,

-7- unlike in Brooks and Travis, but following guidance from Rahimi, he asks us to find the armed

habitual criminal statute is inconsistent with the nation’s tradition of firearm regulation, and,

thus, unconstitutional. For the reasons that follow, we are unpersuaded by defendant’s arguments

on appeal. See Insurance Benefit Group, Inc. v. Guarantee Trust Life Insurance Co., 2017 IL

App (1st) 162808, ¶ 44 (stating the “defendant, as the appellant, bears the burden of persuasion

as to [his] claim of error”).

¶ 22 This court, in Boyce, 2023 IL App (4th) 221113-U, ¶ 12, stated:

“ ‘The constitutionality of a statute is analyzed under well-settled

principles. Statutes are presumed constitutional, and to rebut that presumption, the

party challenging a statute’s constitutionality has the burden of establishing a

clear violation. [Citation.] A party raising a facial challenge to a statute faces a

particularly heavy burden. [Citation.] A statute will be deemed facially

unconstitutional only if there is no set of circumstances under which the statute

would be valid. [Citation.] The particular facts related to the challenging party are

irrelevant. [Citation.] If it is reasonably possible to construe the statute in a way

that preserves its constitutionality, we must do so.’ ” (quoting People v. Bochenek,

2021 IL 125889, ¶ 10).

¶ 23 In Boyce, we cited Baker, 2023 IL App (1st) 220328, ¶ 37, for the proposition that

“[t]he Bruen Court could not have been more clear that its newly announced test applied only to

laws that attempted to regulate the gun possession of law-abiding citizens, and not felons like

[the] defendant.” (Internal quotation marks omitted.) Boyce, 2023 IL App (4th) 221113-U, ¶ 14.

Bruen specifically upheld an earlier statement from Heller that courts should not “ ‘cast doubt on

longstanding prohibitions on the possession of firearms by felons.’ ” Bruen, 597 U.S. at 81

-8- (Kavanaugh, J., concurring, joined by Roberts, C.J.) (quoting Heller, 554 U.S. at 626). We find

nothing in defendant’s arguments that would persuade us to believe that previous decisions—

including our own—finding Bruen does not apply to felons were incorrect. As a convicted felon,

Bruen does not apply to defendant. See, e.g., Baker, 2023 IL App (1st) 220328, ¶ 37; Boyce,

2023 IL App (4th) 221113-U, ¶ 16; People v. Smith, 2023 IL App (2d) 220340-U, ¶ 57; People v.

Kelley, 2024 IL App (1st) 230569, ¶ 17; People v. Langston, 2023 IL App (4th) 230162-U, ¶ 19;

People v. Leonard, 2024 IL App (4th) 230413-U, ¶ 15.

¶ 24 Additionally, Rahimi does not help defendant here because as the Supreme Court

explained, “Heller never established a categorical rule that the Constitution prohibits regulations

that forbid firearm possession in the home. In fact, our opinion stated that many such

prohibitions, like those on the possession of firearms by ‘felons and the mentally ill,’ are

‘presumptively lawful.’ ” Rahimi, 602 U.S. __, 144 S. Ct. at 1902 (quoting Heller, 554 U.S. at

626, 627 n.26). Thus, Rahimi does not support the proposition defendant propounds that he is

presumptively protected under the second amendment; to the contrary, the armed habitual

criminal statute prohibiting defendant, a convicted felon, from possessing a firearm is

presumptively lawful. Id. Accordingly, defendant has failed to show the armed habitual criminal

statue is facially unconstitutional.

¶ 25 III. CONCLUSION

¶ 26 For the reasons stated, we affirm the trial court’s judgment.

¶ 27 Affirmed.

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