People v. Smith , 49 N.E.3d 885 ( 2016 )

2016 IL App (2d) 130997
No. 2-13-0997
Opinion filed February 8, 2016
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
)
v. ) No. 11-CF-3438
)
VERNON L. SMITH, ) Honorable
) John R. Truitt,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
PRESIDING JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Justices Jorgensen and Birkett concurred in the judgment and opinion.
OPINION
¶1 After a jury trial, defendant, Vernon L. Smith, was convicted of armed robbery with a
firearm (720 ILCS 5/18-2(a)(2) (West 2010)) and was sentenced to a 20-year prison term (730
ILCS 5/5-4.5-25(a) (West 2010)) and a mandatory add-on of 15 years (720 ILCS 5/18-2(b)
(West 2010)), for a total of 35 years. On appeal, his initial brief argued that he is entitled to a
new sentencing hearing because the trial court improperly considered in aggravation a prior
conviction of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(3)(A) (West
2002)). This conviction, from 2003 in Winnebago County, was a Class 2 felony, owing to
defendant’s prior felony convictions (see 720 ILCS 5/24-1.6(d) (West 2002)). Defendant’s
initial brief contended that the AUUW conviction is void because it was based on the AUUW
2016 IL App (2d) 130997
statute that was held facially unconstitutional in People v. Aguilar, 2013 IL 112116. Defendant
also had a recent conviction of unlawful use of a weapon by a felon in Cook County.
¶2 The State responded that Aguilar invalidated the statute only insofar as it created the
Class 4 offense of AUUW, which is committed by a defendant who lacks a prior felony
conviction (or other aggravating factor). See 720 ILCS 5/24-1.6(d) (West 2012). The State also
contended that any error was harmless.
¶3 After the parties filed their initial briefs, we ordered supplemental briefing on the issue of
whether we have the authority to decide whether defendant’s AUUW conviction is void. Our
order cited People v. Ware, 2014 IL App (1st) 120485. The parties submitted briefs accordingly.
¶4 Defendant also filed a second supplemental brief, contending that the trial court had erred
in considering in aggravation his Cook County conviction, which had been reversed outright on
appeal owing to a fourth-amendment violation. The State filed a response brief. We now decide
both of defendant’s claims of error. We hold that the trial court committed reversible error in
considering both convictions at issue. We thus remand the cause for resentencing.
¶5 We start with the proceedings in this case. The trial evidence showed that, on December
7, 2011, defendant approached the victim, pointed a gun at him, and told him to hand over his
money. The victim complied, and defendant ran away. The jury found him guilty. The pretrial
service report (PSR), which served as a presentencing investigation report, revealed the
following pertinent facts. Defendant had no juvenile record. His felony convictions were as
follows. In 1998, he was convicted of residential burglary and was sentenced to six years in
prison. In 2000, he was convicted of residential burglary and received four years in prison. In
2003, he was convicted of AUUW as a Class 2 felony and was sentenced to four years in prison.
As pertinent here, the AUUW statute read:
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“(a) A person commits the offense of aggravated unlawful use of a weapon when
he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on
or about his or her person except when on his or her land or in his or her abode or
fixed place of business any pistol, revolver, stun gun or taser or other firearm; or
(2) Carries or possesses on or about his or her person, upon any public
street, alley, or other public lands within the corporate limits of a city, village or
incorporated town, except when an invitee thereon or therein, for the purpose of
the display of such weapon or the lawful commerce in weapons, or except when
on his or her own land or in his or her own abode or fixed place of business, any
pistol, revolver, stun gun or taser or other firearm; and
(3) One of the following factors is present:
(A) the firearm possessed was uncased, loaded and immediately
accessible at the time of the offense; ***
***
(d) Sentence. Aggravated unlawful use of a weapon is a Class 4 felony; a second
or subsequent offense is a Class 2 felony. Aggravated unlawful use of a weapon by a
person who has been previously convicted of a felony in this State or another jurisdiction
is a Class 2 felony.” 720 ILCS 5/24-1.6 (West 2002).
¶6 Defendant also had a 2013 felony conviction, in Cook County, of unlawful use of a
weapon by a felon; he had been out on bond in that case when he committed the offense here.
¶7 At the sentencing hearing, the parties presented no new evidence. In argument, the State
requested that the court impose a sentence in the high end of the Class X range (6 to 30 years)
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(730 ILCS 5/5-4.5-25(a) (West 2010)). The State emphasized the seriousness of the offense and
defendant’s long criminal history, stating that the present offense was his “third conviction
involving a firearm.” Defendant also had several misdemeanors. Further, the State argued that a
substantial sentence was needed to deter defendant and others from committing similar crimes.
¶8 Defendant requested the minimum sentence, which by law would run consecutively to his
sentence in the Cook County case. He had four children and had been working toward a GED.
¶9 The trial judge stated as follows. The only mitigating factor was the hardship that
defendant’s absence might cause his children. His criminal history was “certainly a factor in
aggravation.” He had committed two residential burglaries before turning 20. Although the
misdemeanors were of little weight, “[p]robably more significantly back in ’03 when he was 23
years of age is his first weapons offense, [AUUW], for which the defendant in ’03 was sentenced
to four years in [prison]. That is felony No. 3.” There was also the recent Cook County
conviction of unlawful use of a weapon by a felon. Thus, the present conviction was defendant’s
“fifth felony conviction and third felony conviction involving the use of a weapon and *** he
was out on bond on the Cook County case when this offense was committed.” The judge
continued:
“The bottom line is this: His prior record and the nature of these felony
convictions is significant, and it warrants a sentence far in excess of the mandatory
minimum. I think I already commented this is mandatory DOC, but his prior record
alone coupled with the facts of this case certainly require a sentence far in excess of the
minimum.”
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¶ 10 Defendant was sentenced to 35 years’ imprisonment, representing a discretionary term of
20 years and the mandatory add-on of 15 years, to run consecutively to the sentence in the Cook
County case. The trial court denied his motion to reconsider his sentence. He timely appealed.
¶ 11 On appeal, defendant contends first that the cause must be remanded for resentencing
because the trial court improperly relied on his AUUW conviction. Defendant asserts that the
conviction is void ab initio because it was based on the AUUW statute, which Aguilar held void
for violating the second amendment (U.S. Const., amend. II). Defendant observes that a
sentencing court may not consider, as a factor in aggravation, a prior conviction that was based
on a statute later declared unconstitutional. See People v. Alejos, 97 Ill. 2d 502, 511 (1983). He
notes that the Aguilar court limited its holding to Class 4 AUUW, i.e., the prohibition of certain
weapons-related conduct by a person who has no prior felony convictions or other factors that
would make the offense a Class 2 felony under the AUUW statute. However, he contends, the
AUUW statute does not set out two separate offenses but describes only a single offense
(AUUW) with varying penalties.
¶ 12 The State responds that we need not reach the constitutional issue, because defendant
would have received the same sentence had the AUUW conviction not been considered. The
State also argues that the AUUW statute embodies two separate offenses, Class 4 AUUW and
Class 2 AUUW, and that Aguilar did not invalidate Class 2 AUUW.
¶ 13 After the parties submitted their initial briefs, we ordered supplemental briefing on the
issue of whether this court has the authority to decide whether defendant’s conviction of AUUW
is void. Our order was based on People v. Ware, 2014 IL App (1st) 120485. There, the
defendant was convicted of six counts of armed robbery with a firearm and sentenced to
concurrent 50-year prison terms. Among the aggravating factors at sentencing were the
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2016 IL App (2d) 130997
defendant’s two convictions years earlier of Class 2 AUUW. Id. ¶¶ 9, 34. On appeal, the
defendant argued in part that a remand for resentencing was necessary so that the trial court
could decide whether, under the intervening opinion in Aguilar, those two convictions were void,
making them improper aggravating factors. Id. ¶¶ 1, 33. The appellate court agreed with the
State that the validity of the convictions under Aguilar was not properly before it on the appeal
from a wholly separate proceeding. Id. ¶ 33.
¶ 14 The court noted that the defendant’s notice of appeal, which limited the court’s
jurisdiction, referred only to defendant’s convictions of armed robbery and not to his convictions
of AUUW. Id. ¶ 34. The court continued:
“Furthermore, the fact that Aguilar found the Class 4 form of AUUW void does not give
us jurisdiction over defendant’s prior convictions. Compare People v. Dunmore, 2013 IL
App (1st) 121170 (where court found it had authority to vacate AAUW [sic] conviction
based on Aguilar on appeal from a revocation of the sentence of probation imposed on
that AAUW [sic] conviction but did not have jurisdiction to consider State’s request to
remand the matter so it could reinstate nol-prossed charges). First, the ‘appellate court is
not vested with authority to consider the merits of a case merely because the dispute
involves an order or judgment that is, or is alleged to be, void.’ People v. Flowers, 208
Ill. 2d 291, 308 (2003). Therefore, if defendant wishes to challenge his prior convictions
[of] AUUW, he must file appropriate pleadings.” Id.
The court also stated that, in any event, any error was harmless, as the trial court had placed little
emphasis on the AUUW convictions. Id. ¶ 36.
¶ 15 The State, of course, argues that Ware bars us from considering defendant’s argument on
appeal. Defendant responds, however, with a clarification of what he is arguing: he “is not
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2016 IL App (2d) 130997
asking this Court to vacate his 2003 AUUW conviction; he is asking this Court to review
whether that conviction could be used in aggravation during the sentencing hearing in this case,
the appeal from which is properly before this Court.” Defendant relies on People v. Fischer, 100
Ill. App. 3d 195 (1981). There, the defendant was convicted of voluntary manslaughter. He had
a prior conviction of possession of marijuana, based on a statute that had since been declared
unconstitutional. Despite this infirmity, the trial court considered the conviction in aggravation.
Id. at 199-200. The appellate court reversed the defendant’s sentence and remanded. Id. at 200.
The court did not address whether it had the authority to void the possession conviction, and it
did not purport to do so. Instead, it explained only that the trial court had abused its discretion in
considering a conviction that was based on a statute that was later held unconstitutional. Id.
¶ 16 We accept defendant’s distinction. Although we have jurisdiction of the judgment in this
case, it is questionable whether we could actually vacate defendant’s AUUW conviction, which
of course was entered in a different case. However, as defendant has now made clear, he is not
asking us to do so; rather, he is asking us simply to hold that his AUUW conviction should not
have been given any effect in this case. We agree that, per Fischer, we may decide whether the
trial court erred in relying on the AUUW conviction in aggravation, even if we may not vacate
that conviction itself.
¶ 17 Defendant claims that his sentence was tainted by the judge’s consideration of the
AUUW conviction. His argument is premised on his assertion that, despite Aguilar’s qualified
holding, Class 2 AUUW is void ab initio. Defendant reasons that there is only one offense of
AUUW and that the “Class 2” and “Class 4” forms merely represent different sentencing
schemes based on factors that are not elements of AUUW.
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2016 IL App (2d) 130997
¶ 18 The State initially contends that we need not reach the constitutional issue, because the
conviction of AUUW did not influence defendant’s sentence. The State asserts that the judge
focused on defendant’s entire criminal history, noting its increasing seriousness over time and
that defendant was out on bond in the Cook County case when he committed the present offense.
Defendant responds that the judge concentrated on defendant’s three convictions that involved
the possession or use of weapons. After putting aside the misdemeanor offenses, the judge
noted, “[p]robably more significantly back in ’03 when he was 23 years of age is his first
weapons offense, [AUUW], for which the defendant in ’03 was sentenced to four years in
[prison]. That is felony No. 3.” He then noted, “[Defendant’s] prior record and the nature of
these felony convictions [were] significant” and warranted a lengthy sentence. From these
remarks, we cannot say that the weight that the judge placed on defendant’s AUUW conviction
was so insignificant that it did not affect the sentence. See People v. Heider, 231 Ill. 2d 1, 21
(2008). The AUUW conviction plainly meant a great deal to the judge’s consideration. Having
only two felony weapons convictions to consider, instead of three, might well have lessened the
sentence. Therefore, we must reject the State’s argument that any error was harmless.
¶ 19 We turn to the merits of defendant’s contention that his AUUW conviction was an
improper sentencing factor. This requires us to decide whether his conviction of the Class 2
form of AUUW is constitutionally invalid. 1 In light of the supreme court’s recent decision in
1
As noted, defendant describes his conviction as “void.” Strictly speaking, a judgment is
“void” only if the court that entered it lacked jurisdiction (People v. Castleberry, 2015 IL
116916, ¶ 13), and it is questionable whether the unconstitutionality of a statute divests a trial
court of jurisdiction to enter a conviction (People v. McGuire, 2015 IL App (2d) 131266, ¶ 13).
We need not decide the issue, however. Substantively, defendant’s claim is that, because the
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People v. Burns, 2015 IL 117387, we must agree with defendant that the entire statute is
unconstitutional and that there is no distinction between Class 2 AUUW and Class 4 AUUW.
Therefore, defendant’s AUUW conviction is invalid and may not be considered in sentencing.
¶ 20 In Aguilar, as pertinent here, the supreme court phrased the issue as “whether the Class 4
form of [the AUUW statute]” violated the second amendment. Aguilar, 2013 IL 112116, ¶ 1.
The defendant claimed that the Class 4 form of the statute (and another statute not at issue here)
were facially invalid, meaning that they could not be constitutionally enforced against anyone.
Id. ¶ 12. To begin its analysis, the court observed that, in District of Columbia v. Heller, 554
U.S. 570, 635 (2008), the Supreme Court had struck down a local law flatly banning the
possession of handguns in the home. Aguilar, 2013 IL 112116, ¶ 16. Later, in McDonald v. City
of Chicago, 561 U.S. 742, 760 (2010), the Court held that the fourteenth amendment (U.S.
Const., amend. XIV) makes the second amendment operable against state legislation, and it
invalidated a Chicago ordinance as violating the right to keep and bear arms for self-defense.
Aguilar, 2013 IL 112116, ¶ 17.
¶ 21 The supreme court next turned to Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012),
which held that the Class 4 form of AUUW created, in effect, “ ‘a flat ban on carrying ready-to-
use guns outside the home’ ” and, as such, violated the second amendment as construed by
Heller and McDonald. Aguilar, 2013 IL 112116, ¶ 19 (quoting Moore, 702 F.3d at 940). The
AUUW statute is unconstitutional even as it pertains to the Class 2 form of the offense, the trial
court here should not have considered his conviction in aggravation. If the statute indeed is
unconstitutional in that sense, then his argument is correct, regardless of whether his conviction
is “void.” See Alejos, 97 Ill. 2d at 511.
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reason was that the second amendment protects the right to bear arms for self-defense outside, as
well as inside, the home. Id.; see Moore, 702 F.3d at 940, 942.
¶ 22 Aguilar recognized that the right to keep and bear arms is not absolute; it is subject to
“meaningful regulation.” Aguilar, 2013 IL 112116, ¶ 21. However, the Class 4 form of AUUW
was not a “reasonable regulation” but a “comprehensive ban.” Id. It “categorically prohibit[ed]
the possession and use of an operable firearm for self-defense outside the home.” Id. Thus, on
its face, the Class 4 form of the AUUW statute violated the second amendment. Id. ¶ 22. The
court specifically limited its holding to the Class 4 form and made “no finding, express or
implied,” about the constitutionality of any other portion of the AUUW statute. Id. ¶ 22 n.3.
¶ 23 After Aguilar, the appellate court issued conflicting rulings on whether only the Class 4
form of AUUW violates the second amendment. In People v. Burns, 2013 IL App (1st) 120929,
rev’d, 2015 IL 117387, the court affirmed the defendant’s conviction of Class 2 AUUW. The
court recognized the difficulties of carving a separate offense of Class 2 AUUW out of the
AUUW statute, as the Class 2 factors were contained in subsection (d). Yet the court noted that
Aguilar repeatedly distinguished between the two types of AUUW, implying that only the Class
4 form was unconstitutional. Id. ¶ 24. The court then reasoned that, as there is no constitutional
bar to prohibiting felons from possessing firearms, the Class 2 form of AUUW was
constitutional. Id. ¶¶ 25-30.
¶ 24 People v. Gayfield, 2014 IL App (4th) 120216-B, reached the opposite conclusion and
vacated the defendant’s conviction of Class 2 AUUW. The court based its holding on the
proposition that subsection (d) of the statute is a “sentencing provision.” Id. ¶ 23. Indeed, the
court noted, in People v. Zimmerman, 239 Ill. 2d 491, 500-01 (2010), the supreme court had held
that subsection (d) is a sentencing provision and thus does not create any new elements of a
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substantive offense. Gayfield, 2013 IL App (4th) 120126-B, ¶¶ 23-24. Thus, Gayfield
explained, the Zimmerman court had held that subsection (a) of the statute contains all of the
elements of AUUW whereas subsection (d) contains the sentences and sentence-enhancement
factors. Id. ¶ 24. Because the defendant had been charged with this offense—the one defined by
subsection (a)—he was, in actuality, convicted of the same offense as was the defendant in
Aguilar. He had merely received a harsher penalty. Id. ¶ 30.
¶ 25 On further appeal in Burns, the supreme court agreed with the reasoning of Gayfield and
Zimmerman. The court stated, “[W]e now acknowledge that our reference in Aguilar to a ‘Class
4 form’ of the offense was inappropriate. No such offense exists. There is no ‘Class 4 form’ or
‘Class 2 form’ of aggravated unlawful use of a weapon.” Burns, 2015 IL 117387, ¶ 22. Thus,
“section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute is facially unconstitutional.” Id. ¶ 25.
¶ 26 Based on Burns, we hold that, because defendant’s AUUW conviction was based on an
unconstitutional statute, the trial court erred in relying on it in sentencing him. Further, as we
have explained, the error was not harmless.
¶ 27 We turn to the issue raised in defendant’s second supplemental brief: whether
resentencing is required also because, as the State concedes, the appellate court reversed his
conviction in the Cook County case. For the same reasons outlined above, we agree with
defendant that resentencing is required on this ground also.
¶ 28 The State notes that, even though at resentencing it may not introduce either of
defendant’s defunct convictions as evidence in aggravation, the court in resentencing defendant
may, in its discretion, consider defendant’s prior conduct that did not result in a conviction (or
that even resulted in an acquittal). People v. Jackson, 149 Ill. 2d 540, 549 (1992). Any such
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conduct must be proved by sworn testimony presented in open court by a witness who can be
cross-examined. See People v. La Pointe, 88 Ill. 2d 482, 498-99 (1981).
¶ 29 For the foregoing reasons, we affirm defendant’s present conviction of armed robbery but
vacate his sentence and remand the cause for resentencing consistent with this opinion.
¶ 30 Affirmed in part and vacated in part; cause remanded.
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