People v. Campbell , 2013 IL App (4th) 120635 ( 2014 )

Illinois Official Reports
Appellate Court
People v. Campbell, 2013 IL App (4th) 120635
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JOHNATHAN CAMPBELL, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-12-0635
Filed December 24, 2013
Held On appeal from defendant’s convictions for aggravated battery and
(Note: This syllabus aggravated unlawful use of a weapon under section 24-1.6(a)(1),
constitutes no part of the (a)(3)(A) of the Criminal Code, his conviction for aggravated battery
opinion of the court but was affirmed in the absence of any challenge on appeal, his conviction
has been prepared by the for aggravated unlawful use of a weapon under section 24-1.6(a)(1),
Reporter of Decisions (a)(1)(A) was reversed on the ground it was void based on the decision
for the convenience of of the Illinois Supreme Court in Aguilar holding that the statute was
the reader.) unconstitutional on its face, the order requiring defendant to pay for
his court-appointed counsel was vacated due to the trial court’s failure
to hold a hearing on defendant’s ability to pay, and the cause was
remanded for such a hearing; further, the cause was remanded with
directions that the trial court enter a judgment of conviction under
section 24-1.6(a)(1), (a)(3)(C) of the Code and impose a sentence
therefor.
Decision Under Appeal from the Circuit Court of Sangamon County, No. 10-CF-268;
Review the Hon. Leo J. Zappa, Judge, presiding.
Judgment Affirmed in part as modified, reversed in part, and vacated in part;
cause remanded with directions.
Counsel on Michael J. Pelletier, Karen Munoz, and Janieen R. Tarrance, all of
Appeal State Appellate Defender’s Office, of Springfield, for appellant.
John Milhiser, State’s Attorney, of Springfield (Patrick Delfino,
Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Justices Knecht and Turner concurred in the judgment and opinion.
OPINION
¶1 In April 2012, a jury found defendant, Johnathan Campbell, guilty of aggravated battery
(720 ILCS 5/12-4(b) (West 2010)) and aggravated unlawful use of a weapon (720 ILCS
5/24-1.6(a)(1), (a)(3)(A) (West 2010)). In August 2012, the trial court sentenced defendant to
concurrent terms of five years in prison.
¶2 Defendant appeals, arguing that (1) his conviction for aggravated unlawful use of a
weapon is void because the supreme court has declared the provision of the statute at issue in
this case unconstitutional on its face, and (2) the trial court erred by ordering him to pay for
the services of court-appointed counsel without first holding a hearing on his ability to pay.
We affirm in part, reverse in part, vacate in part, and remand with directions.
¶3 I. BACKGROUND
¶4 The facts are not in dispute. On April 27, 2010, defendant and another man attacked Zack
Koehler outside of a Western Union in Springfield, Illinois, by hitting him over the head with
handguns. Officer Michael Brown, who was on patrol in his police cruiser at the time,
noticed the altercation. Defendant and the other man got into a vehicle, and Brown followed
in pursuit. During a short chase that ended when defendant crashed into a light pole, Brown
saw two handguns thrown out of the vehicle. After retrieving the handguns, investigators
identified defendant’s fingerprints on the magazine of one of the guns.
¶5 In May 2010, the State charged defendant with (1) attempt (armed robbery) (720 ILCS
5/8-4(a), 18-2 (West 2010)), (2) two counts of aggravated battery, and (3) two counts of
aggravated unlawful use of a weapon.
¶6 In April 2012, a jury found defendant guilty of both counts of aggravated battery and
both counts of aggravated unlawful use of a weapon but acquitted him of attempt (armed
robbery). In August 2012, the trial court entered judgment against defendant on one count of
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aggravated battery and one count of aggravated unlawful use of a weapon and sentenced
defendant to concurrent terms of five years in prison for each count.
¶7 This appeal followed.
¶8 II. ANALYSIS
¶9 A. Aggravated Unlawful Use of a Weapon
¶ 10 Defendant argues that his conviction for aggravated unlawful use of a weapon is void
because the supreme court has declared the provision of the statute at issue in this case
unconstitutional on its face. We agree.
¶ 11 The jury convicted defendant of aggravated unlawful use of a weapon under section
24-1.6(a)(1), (a)(3)(A) of the Criminal Code of 1961 (Code), which provides as follows:
“(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, 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, 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[.]” 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010).
(We note that although the jury also found defendant guilty of aggravated unlawful use of a
weapon under section 24-1.6(a)(1), (a)(3)(C) of the Code (possession without a currently
valid firearm owner’s identification (FOID) card, the trial court did not enter judgment of
conviction against defendant under that section. Instead, the court entered judgment of
conviction under section 24-1.6(a)(1), (a)(3)(A) of the Code. See People v. Lashmett, 126 Ill.
App. 3d 340, 345-46, 467 N.E.2d 356, 361 (1984) (“The judge, not the jury, renders
judgment in a case. *** A conviction contemplates more than a mere finding of guilt.”).
¶ 12 In the recent case of People v. Aguilar, 2013 IL 112116, ¶ 22, the supreme court held
that, “on its face, the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) [of the Code]
violates the right to keep and bear arms, as guaranteed by the second amendment to the
United States Constitution.” Citing the United States Supreme Court’s decisions in District of
Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. ___,
130 S. Ct. 3020 (2010), as well as the Seventh Circuit Court of Appeals’ decision in Moore v.
Madigan, 702 F.3d 933 (7th Cir. 2012), the supreme court held that “the second amendment
protects the right to possess and use a firearm for self-defense outside the home.” Aguilar,
2013 IL 112116, ¶ 21. Because section 24-1.6(a)(1), (a)(3)(A) of the Code “categorically
prohibits the possession and use of an operable firearm for self-defense outside the home,”
the court concluded that it “amounts to a wholesale statutory ban on the exercise of a
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personal right that is specifically named in and guaranteed by the United States Constitution,
as construed by the United States Supreme Court.” Id.
¶ 13 In this case, the State argues that because defendant is a convicted felon, his conviction
under section 24-1.6(a)(1), (a)(3)(A) of the Code is constitutional. In support of its position,
the State relies upon Heller and McDonald, in which the Supreme Court clarified that its
holdings should not be taken to cast doubt upon the long-standing prohibitions of the
possession of firearms by felons. See Heller, 554 U.S. at 626; McDonald, 561 U.S. at ___,
130 S. Ct. at 3047. The State asserts that, based upon these clarifications in Heller and
McDonald, “[d]efendant’s claim that [section 24-1.6(a)(1), (a)(3)(A) of the Code] was
unconstitutional on its face should therefore be rejected.”
¶ 14 The State seems to misunderstand the nature of the supreme court’s decision in Aguilar.
The court in Aguilar did not merely hold that section 24-1.6(a)(1), (a)(3)(A) of the Code was
unconstitutional as applied in that case–the court held that the statute was unconstitutional on
its face. Aguilar, 2013 IL 112116, ¶ 22. “A statute is facially unconstitutional if there are no
circumstances in which it could be validly applied.” Lucien v. Briley, 213 Ill. 2d 340, 344,
821 N.E.2d 1148, 1150 (2004). Because section 24-1.6(a)(1), (a)(3)(A) of the Code is
unconstitutional on its face, neither defendant’s status as a felon nor any other factor could
render his conviction under that provision of the aggravated unlawful use of a weapon statute
constitutional.
¶ 15 Further, by arguing that defendant’s conviction was constitutional because he was a
convicted felon, the State is attempting to meld together two separate criminal offenses.
Section 24-1.1 of the Code, which the supreme court has not declared unconstitutional,
generally prohibits felons from possessing firearms anywhere. 720 ILCS 5/24-1.1 (West
2010). The State did not charge defendant with violating section 24-1.1 of the Code. Instead,
the State charged defendant with violating section 24-1.6(a)(1), (a)(3)(A) of the Code, which
contains no specific provision pertaining to felons. Moreover, the jury in this case was not
instructed to make a finding that defendant was a felon, nor did its verdict reflect such a
finding.
¶ 16 Because defendant was convicted of violating a statute that the supreme court has
declared unconstitutional on its face, his conviction for aggravated unlawful use of a weapon
under section 24-1.6(a)(1), (a)(3)(A) of the Code is void, and we reverse. We earlier noted
that the jury also found defendant guilty of aggravated unlawful use of a weapon under
section 24-1.6(a)(1), (a)(3)(C) of the Code (possession without a currently valid FOID card)
and that the trial court did not enter a judgment of conviction against defendant under that
section. Given our reversal of his conviction for aggravated unlawful use of a weapon under
section 24-1.6(a)(1), (a)(3)(A) of the Code, we remand with directions that the trial court
enter a judgment of conviction against defendant under section 24-1.6(a)(1), (a)(3)(C) of the
Code and impose a sentence upon that conviction. See People v. Dixon, 91 Ill. 2d 346,
352-53, 438 N.E.2d 180, 184 (1982).
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¶ 17 B. The Trial Court’s Imposition of Costs for
Court-Appointed Counsel
¶ 18 Defendant also argues that the trial court erred by ordering him to pay for the services of
court-appointed counsel without first holding a hearing on his ability to pay. The State
concedes that the court erred by ordering defendant to pay $4,300 for the services of
court-appointed counsel without holding a hearing. We accept the State’s concession.
¶ 19 Section 113-3.1(a) of the Code of Criminal Procedure of 1963 allows the trial court to
order a defendant to pay a reasonable sum to compensate the county or State for the services
of court-appointed counsel. 725 ILCS 5/113-3.1(a) (West 2010). Due process requires that
before the court orders such payment, “the court must give the defendant notice that it is
considering imposing the fee, and the defendant must be given the opportunity to present
evidence regarding his or her ability to pay and any other relevant circumstances.” People v.
Somers, 2013 IL 114054, ¶ 14, 984 N.E.2d 471. “The hearing must focus on the costs of
representation, the defendant’s financial circumstances, and the foreseeable ability of the
defendant to pay.” Id. (citing People v. Love, 177 Ill. 2d 550, 563, 687 N.E.2d 32, 38 (1997)).
¶ 20 Because the trial court did not hold a hearing on defendant’s ability to pay the costs of
court-appointed counsel, we vacate the court’s payment order and remand for a hearing.
¶ 21 III. CONCLUSION
¶ 22 We affirm defendant’s conviction for aggravated battery, which he did not challenge in
this appeal. Because section 24-1.6(a)(1), (a)(3)(A) of the Code is unconstitutional on its
face, defendant’s conviction under that statute is void. Accordingly, we reverse defendant’s
conviction for aggravated unlawful use of a weapon. We remand with directions that the trial
court enter a judgment of conviction against defendant under section 24-1.6(a)(1), (a)(3)(C)
of the Code and then impose a sentence upon defendant for that conviction. We also vacate
the trial court’s payment order for court-appointed counsel and remand for a hearing on
defendant’s ability to pay.
¶ 23 Affirmed in part as modified, reversed in part, and vacated in part; cause remanded with
directions.
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