People v. Mosley , 2015 IL 115872 ( 2015 )

Illinois Official Reports
Supreme Court
People v. Mosley, 2015 IL 115872Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
Court: DONTA MOSLEY, Appellee.
Docket No. 115872
Filed February 20, 2015
Rehearing denied June 5, 2015
Decision Under Appeal from the Circuit Court of Cook County, the Hon. Michael
Review Brown, Judge, presiding.
Judgment Circuit court judgment affirmed in part and reversed in part.
Cause remanded.
Counsel on Lisa Madigan, Attorney General, of Springfield, and Anita M.
Appeal Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Michelle
Katz, Annette Collins and Noah Montague, Assistant State’s
Attorneys, of counsel), for the People.
Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg,
Deputy Defender, and Gilbert C. Lenz, Assistant Appellate Defender,
of the Office of the State Appellate Defender, of Chicago, for
appellee.
Justices JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke,
and Theis concurred in the judgment and opinion.
OPINION
¶1 At issue in this case is the constitutionality of certain sections of the aggravated unlawful
use of a weapon (AUUW) statute (720 ILCS 5/24-1.6 (West 2012)). Defendant was convicted
in a bench trial in the circuit court of Cook County, of, inter alia, six counts of AUUW. The
circuit court entered a written order holding that due to its findings of statutory
unconstitutionality, both facially and as applied to defendant, all six AUUW convictions
would be vacated and, instead, a conviction of unlawful use of a weapon (UUW) under section
24-1(a)(4) of the Criminal Code of 2012 (720 ILCS 5/24-1(a)(4) (West 2012)) would be
entered. In line with the written order, the trial court imposed a Class A misdemeanor sentence
for the UUW conviction. See 720 ILCS 5/24-1(b) (West 2012); 730 ILCS 5/5-4.5-55 (West
2012). Pursuant to Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013), the State’s appeal from
the circuit court’s finding of statutory unconstitutionality comes directly to this court.
¶2 PRINCIPAL STATUTE INVOLVED
¶3 At the time of proceedings herein, the AUUW statute provided, in pertinent part:
Ҥ 24-1.6. Aggravated unlawful use of a weapon.
(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[1]; 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, 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[2];
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; or
1
For purposes of simplicity, hereafter, the language of subsection (a)(1) of the AUUW statute will
be summarized as “carrying on his person or in any vehicle, outside the home, a firearm.”
2
Similarly, the language of subsection (a)(2) will be summarized as “carrying or possessing on his
person, upon any public way, a firearm.”
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***
(C) the person possessing the firearm has not been issued a currently valid
Firearm Owner’s Identification Card; or
***
(I) the person possessing the weapon was under 21 years of age and in
possession of a handgun as defined in Section 24-3, unless the person under 21
is engaged in lawful activities under the Wildlife Code or described in
subsection 24-2(b)(1), (b)(3), or 24-2(f).
***
(d) Sentence.
(1) Aggravated unlawful use of a weapon is a Class 4 felony[3]; ***
(2) Except as otherwise provided in paragraphs (3) and (4) of this subsection
(d), a first offense of aggravated unlawful use of a weapon committed with a
firearm by a person 18 years of age or older where the factors listed in both items
(A) and (C) of paragraph (3) of subsection (a) are present is a Class 4 felony, for
which the person shall be sentenced to a term of imprisonment of not less than one
year and not more than 3 years.” 720 ILCS 5/24-1.6 (West 2012).
¶4 Background
¶5 On March 7, 2012, Chicago police officers received a call about a person with a gun at a
local park. Upon arrival at the park, the officers noticed a group of children playing and a
group of teenagers standing together in the park. When officers approached defendant, who
was then 19 years of age, and the other teenagers, defendant walked away. The officers
demanded that defendant stop walking, but instead he continued to exit the park. Officers then
pursued defendant, noticing his hand was on his right waist. When officers got closer to
defendant, he began to run. While in pursuit, an officer witnessed defendant reach inside his
waistband and pull out a .32-caliber revolver, which he dropped to the ground. Officers
recovered the weapon and found that it was fully loaded with six live rounds. The pursuing
officer testified at trial that when she saw defendant pull the weapon out from his waistband,
the weapon was loose and not enclosed in any type of gun case. Officers were able to
apprehend defendant and place him under arrest. At the time of defendant’s arrest, he had not
been issued a valid Firearm Owner Identification (FOID) card.
¶6 The State charged defendant in count I with UUW in a public park (720 ILCS
5/24-1(a)(10) (West 2012)) and with six counts of AUUW; count II, carrying on his person or
in any vehicle, outside the home, a firearm which is “uncased, loaded and immediately
accessible” (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2012)); count III, carrying on his person
or in any vehicle, outside the home, a firearm without a valid FOID card (720 ILCS
5/24-1.6(a)(1), (a)(3)(C) (West 2012)); count IV, carrying on his person or in any vehicle,
outside the home, a firearm which is “a handgun” while under 21 years of age unless “engaged
3
The term of imprisonment for a Class 4 felony “shall be a determinate sentence of not less than one
year and not more than 3 years” and, notwithstanding certain exceptions inapplicable here, “the period
of probation or conditional discharge shall not exceed 30 months.” 730 ILCS 5/5-4.5-45(a), (d) (West
2012).
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in lawful activities under the Wildlife Code” (720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2012));
count V, carrying or possessing on his person, upon any public way, a firearm that is “uncased,
loaded and immediately accessible” (720 ILCS 5/24-1.6(a)(2), (a)(3)(A) (West 2012)); count
VI, carrying or possessing on his person, upon any public way, a firearm without a valid FOID
card (720 ILCS 5/24-1.6(a)(2), (a)(3)(C) (West 2012)); and count VII, carrying or possessing
on his person, upon any public way, a handgun while under 21 years of age unless “engaged in
lawful activities under the Wildlife Code” (720 ILCS 5/24-1.6(a)(2), (a)(3)(I) (West 2012)).
¶7 On December 10, 2012, following a bench trial, the court found defendant guilty of all
seven counts. The case was continued for posttrial motions and sentencing. On February 6,
2013, the trial court heard defendant’s motion for a new trial alleging, inter alia, that the State
failed to prove him guilty beyond a reasonable doubt as to each of the seven counts. The court
granted defendant’s posttrial motion as to count I, UUW in a public park, and entered a finding
of not guilty on that count. The trial court denied defendant relief as to the remaining six
AUUW counts, finding the evidence sufficient for a guilty verdict on counts II through VII.
The State asked that defendant be sentenced to “time in the Illinois Department of
Corrections,” acknowledging that he had no previous felony convictions or juvenile
adjudications. The following colloquy then occurred:
“THE COURT: State, your understanding is that the law requires that [defendant]
be sentenced to the penitentiary?
[PROSECUTOR]: Correct.
THE COURT: Because the charges that remain, Count 2 to Count 6, are
non-probationable Class 4 felonies?
[PROSECUTOR]: Correct.”4
Thereafter, the trial judge, sua sponte, expressed his concerns as to whether the
“non-probationable” Class 4 felony sentence required to be imposed upon defendant under the
AUUW statute (720 ILCS 5/24-1.6(d)(2) (West 2012)) was constitutional, questioning
whether that sentence amounted to cruel and unusual punishment and whether there were
proportionality problems where “[t]he only non-probationable Class 4 felon[ies] in the State of
Illinois are the charges against the defendant.” The court therefore continued the sentencing
hearing to allow the parties to prepare arguments as to these constitutional concerns.
¶8 On March 8, 2013, the trial court heard oral arguments by counsel for defendant and the
State regarding what the court termed as the “constitutionality of the mandatory sentencing
provision for the aggravated unlawful use of weapon charge that the defendant is facing.”
Thereafter, on March 15, 2013, the court entered its written order, as required by Illinois
Supreme Court Rule 18 (eff. Sept. 1, 2006), finding that “the offense established by 720 ILCS
5/24-1.6(a)(1) & (a)(3)(A) & (C), and the punishment prescribed for the offense by 720 ILCS
5/24-1.6(d)(2), are unconstitutional based on the proportionate penalties clause of Article I,
4
The prosecutor erred in responding to the court’s question, as only counts II, III, V and VI charged
Class 4 offenses which required sentencing under the “non-probationable” section of the AUUW
statute. See 720 ILCS 5/24-1.6(d)(2) (West 2012). Both counts IV and VII, the latter of which the court
failed to mention, charged offenses requiring Class 4 felony sentencing, which allows for a sentence of
probation. See 720 ILCS 5/24-1.6(d)(1) (West 2012); 730 ILCS 5/5-4.5-45(d) (West 2012). This error,
as we shall explain, is not relevant to our decision.
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section 11 of the Illinois Constitution and the due process clause of Article I, section 2 of the
Illinois Constitution.” The court further found that “as to these provisions, the aggravated
unlawful use of weapons statute is unconstitutional both on its face and as applied to the
defendant because it cannot be reasonably construed in a manner that would preserve its
validity.” At defendant’s March 15, 2013, sentencing hearing, the transcript states that the trial
court found unconstitutional “720 ILCS 25-41.6a [sic]” of the AUUW statute, “as well as the
sentencing provision of a2 [sic],” and in an “Addendum” order dated March 15, related to bail
and sentencing matters, the first line reads: “Court finds 720-5/24-1.6(A) [sic]
unconstitutional.”5 The trial court held at sentencing that, “[f]or the reasons stated in the [Rule
18] order,” it was “going to vacate the convictions on those counts which is [sic] counts two
through seven.” Further, and consistent with its Rule 18 order, the trial court found defendant
guilty and entered a conviction on the uncharged offense of UUW set forth in section
24-1(a)(4) of the Criminal Code (720 ILCS 5/24-1(a)(4) (West 2012)). That section states that
the UUW statute is violated when, as applicable here, one knowingly “[c]arries or possesses in
any vehicle or concealed on or about his person except when on his land *** any *** firearm.”
720 ILCS 5/24-1(a)(4) (West 2012). Defendant was sentenced to 180 days in jail and 15
months probation for this Class A misdemeanor. See 720 ILCS 5/24-1(b) (West 2012); 730
ILCS 5/5-4.5-55(a), (d) (West 2012). This direct appeal to our court by the State followed. Ill.
S. Ct. R. 603 (eff. Feb. 6, 2013).
¶9 ANALYSIS
¶ 10 Initially, we address the discrepancy as to which portions of the AUUW statute the trial
court actually found unconstitutional. In the trial court’s discussion portion of its Rule 18
order, the court at times refers to the entirety of section 24-1(a) as being unconstitutional,
which is in line with our interpretation of the court’s statements at sentencing and in the
Addendum order. However, in the specific portion of the order entitled “Findings Under
Illinois Supreme Court Rule 18,” the trial court confined its findings of unconstitutionality to
those sections under which defendant was charged and subject to sentencing, and which were
the only matters before the court, although it neglected to specifically mention section
24-1.6(a)(2) and subsection (a)(3)(I). In their briefs, and at oral argument, the parties also
confine their contentions regarding the propriety of the trial court’s judgment to those
subsections of the AUUW statute of which defendant was originally convicted, as well as
subsection (d)(2) of the statute’s sentencing provision. The parties may have proceeded in this
manner in recognition of the fact that the trial court had, at times, found unconstitutional the
entirety of section 24-1.6(a), which it had no jurisdiction to do. We agree with the parties’
actions, as the subsections setting forth offenses of which defendant had not been charged or
convicted were not justiciable matters before the trial court.
5
Both the statutory sections set forth in the sentencing transcript and in the Addendum order are
apparently scriveners’ errors. Reviewing the record as a whole, we believe that the trial court was
actually referring to section 24-1.6(a) of the AUUW statute and the sentencing provision set forth in
subsection (d)(2), and we will proceed accordingly. 720 ILCS 5/24-1.6(a), (d)(2) (West 2012). See
McKay Plating Co. v. Industrial Comm’n, 91 Ill. 2d 198, 206-07 (1982) (Court agreed with petitioner
that discrepancy in date stated in decision of Commission and date as shown by the record was
attributable to scrivener’s error and correct date should be the latter.).
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¶ 11 Article VI, section 9 of the Illinois Constitution grants circuit courts original jurisdiction
over all justiciable matters. Ill. Const. 1970, art. VI, § 9; Slepicka v. Illinois Department of
Public Health, 2014 IL 116927, ¶ 32. “Generally speaking, a ‘justiciable matter’ is ‘a
controversy appropriate for review by the court, in that it is definite and concrete, as opposed to
hypothetical or moot, touching upon the legal relations of parties having adverse legal
interests.’ ” In re Luis R., 239 Ill. 2d 295, 301 (2010) (quoting Belleville Toyota, Inc. v. Toyota
Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 335 (2002)). More importantly, courts do not rule on
the constitutionality of a statute where its provisions do not affect the parties (Klein v.
Department of Registration & Education, 412 Ill. 75, 87-88 (1952)), and decide constitutional
questions only to the extent required by the issues in the case. Grasse v. Dealer’s Transport
Co., 412 Ill. 179, 201 (1952); see also Illinois Municipal League v. Illinois State Labor
Relations Board, 140 Ill. App. 3d 592, 599 (1986). Here, therefore, the trial court’s
pronouncement as to the constitutionality of any offense-based subsections of the AUUW
statute other than subsections (a)(3)(A), (a)(3)(C), and (a)(3)(I), as applicable under
subsections (a)(1) and (a)(2), were advisory opinions, which Illinois courts are not permitted to
render. See In re Alfred H.H., 233 Ill. 2d 345, 351 (2009) (“As a general rule, courts in Illinois
do not *** render advisory opinions, or consider issues where the result will not be affected
regardless of how those issues are decided.”).
¶ 12 Accordingly, we limit our discussion to those subsections under section 24-1.6(a) of which
defendant was convicted, and subsection (d)(2) of the statute’s sentencing provision, which
was applicable to defendant. See People v. Aguilar, 2013 IL 112116, ¶ 22 n.3 (“[O]ur finding
of unconstitutionality in this decision is specifically limited to the [statutory section at issue].
We make no finding, express or implied, with respect to the constitutionality or
unconstitutionality of any other section or subsection of the AUUW statute.”). Further, to the
extent that the trial court’s orders or statements could be interpreted as finding any other
portion of section 24-1.6(a), which is not at issue in this case, as being unconstitutional, such
finding is vacated. 720 ILCS 5/24-1.6(a) (West 2012).
¶ 13 As an additional preliminary matter, we now must address defendant’s claim that this court
does not have jurisdiction to hear this appeal because the trial court’s actions prior to
sentencing amounted to an unappealable acquittal of each of his six AUUW convictions. In
People v. Quigley, 183 Ill. 2d 1, 12 (1998), this court held that an acquittal occurs when the
trier of fact renders a verdict or finding of not guilty. The Quigley court further stated: “An
acquittal generally requires some resolution of a defendant’s factual guilt or innocence.” Id.(citing United States v. Scott, 437 U.S. 82, 97-99 (1978)); see also People v. Henry, 204 Ill. 2d
267, 283-94 (2003) (entry of a directed verdict in favor of the defendant is an acquittal for
purposes of double jeopardy when there was insufficient evidence to establish, as a matter of
law, some or all of the essential elements of the crime). Here, however, no acquittal occurred
where, at the conclusion of defendant’s bench trial, the trial court found defendant guilty of,
inter alia, six counts of AUUW (counts II through VII), three of which involved combining
statutory section 24-1.6(a)(1) with subsections (a)(3)(A), (a)(3)(C), and (a)(3)(I), while the
other three involved combining section 24-1.6(a)(2) with subsections (a)(3)(A), (a)(3)(C), and
(a)(3)(I). Additional support for a finding that no acquittal occurred lies in the fact that the
court later denied defendant’s motion for a new trial challenging the factual sufficiency of
those six AUUW convictions, while it granted defendant’s posttrial motion as to count I, UUW
in a public park, and entered a finding of not guilty on that count. It is therefore uncontroverted
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that the court, as trier of fact, convicted defendant of six counts of AUUW after concluding that
each element of the offense set forth in those subsections was proven and, posttrial, affirmed
the sufficiency of the evidence as to those convictions.
¶ 14 We note that a trial court’s act in vacating a defendant’s convictions as a remedy for its
posttrial finding that those convictions were based upon unconstitutional statutory sections, as
occurred here, is quite different from a trier of fact acquitting a defendant of an offense due to
an insufficiency of evidence to convict. In People v. Williams, 279 Ill. App. 3d 22, 25-26
(1996), the appellate court stated: “The fact that a conviction is later vacated for constitutional
reasons is generally not considered to be the functional equivalent of an acquittal, absent some
suggestion that the evidence was insufficient to convict.” Here, as we have indicated, neither
the court’s convictions of defendant at trial nor its denial of defendant’s posttrial motion
suggests any insufficiency in the evidence, and there is no claim by defendant that the court’s
order finding sections of the AUUW statute unconstitutional are based on any evidentiary
concerns. Thus, for purposes of determining jurisdiction in this case, we conclude that where
defendant’s six AUUW convictions were vacated based solely on constitutional grounds, and
where the sufficiency of the evidence as to those convictions is clear, no acquittals occurred.
See id.¶ 15 Next, we reject defendant’s contention that the trial court’s posttrial entry of a conviction
on a lesser-included offense, ipso facto, constitutes an acquittal of the greater offense. It is true
that when the trier of fact enters a conviction for a lesser-included offense before jeopardy
expires, an acquittal of the greater offense occurs. See Green v. United States, 355 U.S. 184,
190-91 (1957) (for purposes of double jeopardy analysis, a conviction of a lesser-included
offense constituted an acquittal of the greater offense because the finder of fact was given the
choice to convict defendant of the greater offense and chose not to before jeopardy ended);
People v. McCutcheon, 68 Ill. 2d 101, 106 (1977) (“The finding of guilty on a lesser charge by
the trier of fact is presumptively a finding of not guilty on the greater offense since the trier of
fact has the opportunity to find the defendant guilty of the greater offense.”). However, in this
case, the court, sitting as trier of fact, found defendant guilty of all six counts of AUUW with
which he was charged, and only vacated those convictions and entered a conviction on a
lesser-included offense during posttrial proceedings. Under these circumstances, the question
of whether an acquittal has occurred is dependent on whether the posttrial ruling is based on
the State’s failure of proof as to the greater offense, or on the establishment of a legal
conclusion which does not support the greater offense. See People v. Zeisler, 125 Ill. 2d 42,
44-45, 48-50 (1988) (holding that a conviction for a greater offense, later voided as
unconstitutional by the circuit court following a postconviction hearing, does not bar a second
trial for a lesser offense under the double jeopardy clause).
¶ 16 Here, the trial court’s posttrial ruling vacating defendant’s AUUW convictions was based
on its legal conclusion that the subsections of the statute under which he was convicted and
sentenced could no longer support those convictions. See People v. Blair, 2013 IL 114122,
¶ 28 (the effect of finding a statute facially unconstitutional is to render it “void ab initio,” and
thus incapable of being enforced); see also People v. Gersch, 135 Ill. 2d 384, 398 (1990) (“this
court has expressly held that a defendant cannot be prosecuted under an unconstitutional act”).
Therefore, the trial court’s decision to enter a conviction on a lesser offense, based on its
posttrial legal ruling, was not an acquittal and may be reversed by this court. See People v.
Klepper, 234 Ill. 2d 337, 358-59 (2009) (reversing the circuit court’s erroneous decision, based
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on its posttrial finding that the felony disorderly conduct statute was unconstitutional under the
proportionate penalties clause, to vacate the defendant’s felony conviction and enter a
misdemeanor disorderly conduct conviction).6
¶ 17 Additionally, as no acquittal of any AUUW charge occurred in this case, defendant’s claim
that the State’s appeal is barred by article VI, section 6 of the Illinois Constitution must also be
rejected. See Ill. Const. 1970, art. VI, § 6 (“after a trial on the merits in a criminal case, there
shall be no appeal from a judgment of acquittal”). Similarly, we reject defendant’s contention
that the double jeopardy clauses of the United States and Illinois Constitutions bar this court
from hearing this appeal or reinstating defendant’s convictions. This court has held that the
double jeopardy clause prohibits appellate review of a judgment of acquittal where, if the
government’s appeal is successful, the defendant will be subject to a second trial for the same
offense. People v. Mink, 141 Ill. 2d 163, 175 (1990) (citing United States v. Wilson, 420 U.S.
332 (1975)). However, in the case before us, we have established that defendant was not
acquitted of his AUUW convictions and the record shows that the State has not requested a
second trial. Thus, where neither the bar on appeals from acquittals under the Illinois
Constitution nor double jeopardy principles is implicated herein, this court has jurisdiction.
See Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); In re Derrico G., 2014 IL 114463, ¶ 1 (exercising
jurisdiction pursuant to Rule 603 on the State’s appeal from the circuit court’s sua sponte
finding that a statute was unconstitutional).
¶ 18 Because we have rejected defendant’s contentions that this court lacks jurisdiction over the
State’s appeal, we now address its merits. To convict a defendant under the AUUW statute, the
State must prove beyond a reasonable doubt either that a defendant was carrying on his person
or in any vehicle, outside the home, a firearm (720 ILCS 5/24-1.6(a)(1) (West 2012)), or was
carrying or possessing on his person, upon any public way, a firearm (720 ILCS 5/24-1.6(a)(2)
(West 2012)) and that one of the factors set forth in subsection (a)(3) exists. See 720 ILCS
5/24-1.6(a)(1)-(a)(3) (West 2012); People v. Zimmerman, 239 Ill. 2d 491, 499 (2010) (the
factors in subsection (a)(3) transform the crime from “simple” unlawful use of a weapon to
aggravated unlawful use of a weapon). The following factors are relevant to this case:
subsection (a)(3)(A), the firearm was uncased, loaded and immediately accessible; subsection
(a)(3)(C), the person possessing the firearm had not been issued a valid FOID card; and
subsection (a)(3)(I), the person possessing the firearm, a handgun, was under 21 years of age
and not engaged in lawful activities prescribed under the Wildlife Code (520 ILCS 5/1.1 et seq.
(West 2012)). See 720 ILCS 5/24-1.6(a)(3)(A), (C), (I) (West 2012). Additionally, section
24-1.6(d), entitled “Sentence,” provides that AUUW is a Class 4 felony unless certain
circumstances exist which mandate a greater sentence. 720 ILCS 5/24-1.6(d) (West 2012).
6
While this case was pending, defendant filed a “Motion for Judicial Notice of Appendix to State’s
Brief in People v. Klepper, 234 Ill. 2d 337 (2009),” asking that we consider statements made by the trial
court therein to clarify ambiguity in its judgment. We ordered defendant’s motion taken with the case
and now allow that motion, as we may take judicial notice of briefs filed in another case. See People v.
Glasper, 234 Ill. 2d 173, 190 (2009) (“at defendant’s behest, we have reviewed the briefs filed in
[People v. Zehr, 103 Ill. 2d 472 (1984),] and take judicial notice [of the issues raised]”); see also People
v. Mata, 217 Ill. 2d 535, 539 (2005).
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¶ 19 Here, as outlined above, defendant was charged and originally convicted of six counts of
AUUW. The following chart explains the statutory subsections upon which these counts were
based:
AUUW Subsections Under Which Defendant Was Charged/Convicted
720 ILCS 5/24-1.6: (a)(1)—Person or (a)(2)—Public
Vehicle Way
(a)(3)(A)—Uncased, Loaded Firearm count II count V
(a)(3)(C)—No FOID Card count III count VI
(a)(3)(I)—Under 21 and Not Engaged
count IV count VII
in Lawful Hunting Activities
¶ 20 Constitutionality of the AUUW Statute
¶ 21 We are asked in this case to decide whether the subsections of the AUUW statute under
which defendant was originally convicted, as well as a sentencing section, violate
constitutional principles such that the trial court properly vacated those convictions. Here, in
holding portions of the AUUW statute unconstitutional, the trial court found that certain
subsections of the statute violated, both on their face and as applied, one or more of the
following: (1) defendant’s right to keep and bear arms, as guaranteed by the second
amendment to the United States Constitution (U.S. Const., amend. II); (2) his due process
rights under both the United States (U.S. Const., amend. XIV) and Illinois Constitutions (Ill.
Const. 1970, art. I, § 2); or (3) the proportionate penalties clause of the Illinois Constitution
(Ill. Const. 1970, art. I, § 11). On appeal, defendant raises additional contentions that certain of
his original convictions were unconstitutional based on violations of both his equal protection
and due process rights under the United States and Illinois Constitutions. In re J.W., 204 Ill. 2d
50, 61 (2003) (a constitutional challenge to a criminal statute can be raised at any time).
¶ 22 All statutes carry a strong presumption of constitutionality. People v. Aguilar, 2013 IL
112116, ¶ 15. This court will find a statute constitutional and, therefore, valid if it can be
reasonably done. Id. To overcome this presumption, the party challenging the statute must
clearly establish its invalidity. People v. Guevara, 216 Ill. 2d 533, 543 (2005). The question of
whether a statute is constitutional is a question of law, which this court reviews de novo.
Aguilar, 2013 IL 112116, ¶ 15; People v. Dinelli, 217 Ill. 2d 387, 397 (2005). We apply these
principles in reviewing the propriety of each of the constitutional violations found by the trial
court, or argued by defendant.
¶ 23 The Right to Keep and Bear Arms
¶ 24 During the pendency of the State’s appeal, this court in People v. Aguilar, 2013 IL 112116,
¶ 21, held the Class 4 form of AUUW set forth in section 24-1.6(a)(1), (a)(3)(A), (d), which
prohibited carrying on one’s person or in any vehicle, outside the home, a firearm which was
uncased, loaded and immediately accessible, to be a comprehensive ban that categorically
prohibited possession and use of a firearm for self-defense outside of the home. Accordingly,
this court held the subsection at issue to be facially unconstitutional because it violated the
second amendment right to keep and bear arms. Id. ¶ 22. Although the trial court herein did not
have the benefit of our decision in Aguilar in making its Rule 18 findings, because defendant’s
conviction under count II involves the same subsection of the AUUW statute found
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unconstitutional in Aguilar, that portion of the trial court’s judgment vacating count II is
affirmed. See People v. Henderson, 2013 IL App (1st) 113294, ¶ 11 (where Aguilar squarely
resolved issue presented by declaring same section of statute facially unconstitutional, the
ultimate outcome would be to vacate defendant’s conviction based upon that statutory
section); People v. Jamesson, 329 Ill. App. 3d 446, 451-52 (2002) (citing People v. Zeisler,
125 Ill. 2d 42, 48 (1988) (noting that the doctrine of void ab initio declares an unconstitutional
statute null and void as of the date of its enactment, “which results in the court’s vacating a
conviction based upon such statute”)).
¶ 25 We next address whether, in light of Aguilar, defendant’s conviction under count V, for
violating section 24-1.6(a)(2), (a)(3)(A), was properly vacated where this count also concerns
carrying, outside the home, a firearm which is uncased, loaded and immediately accessible.7
In Aguilar, 2013 IL 112116, ¶ 19, we adopted the holding in Moore v. Madigan, 702 F.3d 933,
940 (7th Cir. 2012), which held that Illinois’s “flat ban on carrying ready-to-use guns outside
the home,” as embodied in the Class 4 form of section 24-1.6(a)(1), is unconstitutional. The
only distinction between the section invalidated in Aguilar and the section under which
defendant was originally convicted in count V is the location where one possesses an uncased,
loaded and immediately accessible firearm. See People v. Akins, 2014 IL App (1st) 093418-B,
¶ 11. If, under Aguilar, a person cannot be barred from carrying an uncased, loaded and
immediately accessible firearm while in a vehicle or concealed on or about his or her person
based on the second amendment of the United States Constitution, it is logical that the same
conduct should not be barred when the alleged offender similarly carries a firearm on a public
way. Indeed, we determined in Aguilar, 2013 IL 112116, ¶ 18, that neither District of
Columbia v. Heller, 554 U.S. 570, 635 (2008), nor McDonald v. City of Chicago, 561 U.S.
742, 791 (2010), expressly limited the second amendment’s protections to the home. We
therefore agree with the appellate court in Akins, 2014 IL App (1st) 093418-B, ¶ 11, that the
reasoning in Aguilar extends to a conviction under section 24-1.6(a)(2), (a)(3)(A) for
possession of an uncased, loaded firearm on a public way. 720 ILCS 5/24-1.6(a)(2), (a)(3)(A)
(West 2012). As that section of the AUUW statute cannot be reasonably held constitutional,
the trial court’s judgment vacating count V is affirmed. Akins, 2014 IL App (1st) 093418-B,
¶ 11 (vacating, as void ab initio, defendant’s AUUW conviction based on section 24-1.6(a)(2),
(a)(3)(A) of the AUUW statute).
¶ 26 Severability
¶ 27 Next, defendant argues that the subsections of the AUUW statute set forth in counts III
through VII are not severable from section 24-1.6(a)(1), (a)(3)(A), which this court declared
unconstitutional in Aguilar. Given that we have now additionally found section 24-1.6(a)(2),
(a)(3)(A), as charged in count V, to be unconstitutional, we consider the severability of the
remaining four subsections at issue to determine if they are severable from both (a)(3)(A)
subsections.
7
We repeat that while the court failed to specifically cite the basis for its vacation of certain
subsections of the AUUW statute in its Rule 18 order, it attempted to clarify its holding by later stating
that it found the entirety of section 24-1.6(a) unconstitutional. Regardless, we may affirm or reject the
lower court’s holdings based on any reason supported by the record. Beacham v. Walker, 231 Ill. 2d 51,
61 (2008) (“[T]his court may affirm the circuit court’s judgment on any basis contained in the record.”).
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¶ 28 As stated, defendant was charged in counts III and VI with possessing a firearm while,
respectively, outside his home and on a public way, and without a valid FOID card. 720 ILCS
5/24-1.6(a)(1), (a)(3)(C) (West 2012); 720 ILCS 5/24-1.6(a)(2), (a)(3)(C) (West 2012). He
was charged in counts IV and VII with possessing a firearm while, respectively, outside his
home and on a public way, and being under 21 years of age and not engaged in lawful hunting
activities. 720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2012); 720 ILCS 5/24-1.6(a)(2), (a)(3)(I)
(West 2012). Without citing any authority, defendant argues that the purpose of the AUUW
statute is a comprehensive ban on gun possession and that the statute would not have been
enacted without the portion struck down in Aguilar, because the legislature “operating under
the erroneous assumption that Illinois could categorically ban the possession of operable
firearms outside the home.” The State, however, argues that both subsections (a)(3)(C) and
(a)(3)(I) continue to set forth constitutionally valid offenses, regardless of whether subsection
(a)(3)(A) creates an operable offense or not. That is, the State—citing People v. Pomykala, 203
Ill. 2d 198, 209 (2003), and People v. Henderson, 2013 IL App (1st) 113294,
¶¶ 22-26—contends that those subsections are individually complete and capable of being
executed wholly independently of whether subsection (a)(3)(A) is an operable offense. Based
on the following case law, we agree with the State’s proposition.
¶ 29 The issue of severability involves a question of statutory construction, which primarily
involves ascertaining and giving effect to the intent of the legislature. People ex rel. Chicago
Bar Ass’n v. State Board of Elections, 136 Ill. 2d 513, 534 (1990). In determining whether a
statutory provision containing an unconstitutional portion may be severed from the rest of a
statute, we first look at the statute’s own specific severability provision. People v. Alexander,
204 Ill. 2d 472, 484 (2003). If no specific severability clause is in the statute, we look to the
Statute on Statutes’ general severability provision, which states in pertinent part: “ ‘If any
provision of an Act *** is held invalid, such invalidity does not affect other provisions *** of
the Act which can be given effect without the invalid *** provision, and to this end the
provisions of each Act *** are severable, unless otherwise provided by the Act.’ ” Alexander,
204 Ill. 2d at 484 (quoting 5 ILCS 70/1.31 (West 2000)).
¶ 30 Here, the AUUW statute at issue (720 ILCS 5/24-1.6 (West 2012)), does not contain its
own specific severability provision. Thus, pursuant to the Statute on Statutes (5 ILCS 70/1.31
(West 2012)), we must determine whether the valid and invalid portions of the statute are
essentially and inseparably connected in substance, such that the legislature would not have
passed the valid portions of the statute absent the invalid portion. Alexander, 204 Ill. 2d at 484;
see also Fiorito v. Jones, 39 Ill. 2d 531, 540 (1968) (subsections are not severable if it is this
court’s belief that the legislature intended them as a whole, and if all could not be carried into
effect the legislature would not pass the residue independently). Consequently, we may
remove an unconstitutional portion of a statute and preserve the remainder if what remains is
complete in and of itself, and is capable of being executed wholly independently of the severed
portion. Pomykala, 203 Ill. 2d at 209-10 (concluding that section 9-3(b) of the Criminal Code
of 1961 (720 ILCS 5/9-3 (West 2000)) may be severed from the remainder of the statute);
People v. Sanders, 182 Ill. 2d 524, 534 (1998) (finding section 2(c) of the Hunter Interference
Prohibition Act (720 ILCS 125/2 (West 1996)) severable from the remaining statute).
¶ 31 In Henderson, 2013 IL App (1st) 113294, ¶ 22, the appellate court used the above
reasoning when considering a severability question in the aftermath of Aguilar:
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“From our reading of the [AUUW] statute as a whole (e.g., People v. Lloyd, 2013
IL 113510, ¶ 25), we find that the invalidity of subsection (a)(3)(A) by Aguilar is not
fatal to the balance of the statute, particularly the FOID card requirement in subsection
(a)(3)(C), which forms the basis for defendant’s conviction on count V. Although
Aguilar did not expressly pass on the issue of whether subsection (a)(3)(A) is severable
from the balance of the statute, we are mindful of our obligation to uphold legislative
enactments whenever reasonably possible, and we believe that subsections (a)(1),
(a)(2), and the remaining factors in subsection (a)(3) can stand independently of
subsection (a)(3)(A), which is only one of several factors that operate in conjunction
with subsection (a)(1) or (a)(2) to comprise the substantive offense. People v. Sanders,
182 Ill. 2d 524, 534 (1998). Because the removal of one factor (subsection (a)(3)(A))
by application of Aguilar ‘undermines neither the completeness nor the executability of
the remaining subsections’ (Sanders, 182 Ill. 2d at 534), we cannot conclude that it is
‘so intertwined with the rest of the statute that the legislature intended the statute to
stand or fall as a whole’ (People v. Singmouangthong, 334 Ill. App. 3d 542, 547
(2002)). Tully v. Edgar, 171 Ill. 2d 297, 313 (1996).” Henderson, 2013 IL App (1st)
113294, ¶ 22.
See also People v. Akins, 2014 IL App (1st) 093418-B, ¶¶ 12-13 (applying the reasoning of
Henderson to reject defendant’s argument that subsection (a)(3)(C) cannot be severed from
provision of AUUW statute found unconstitutional in Aguilar).
Henderson, 2013 IL App (1st) 113294, ¶ 26, further noted that the “balance of the [AUUW]
statute,” was a continuing reflection of the statute’s legislative purpose to protect the police
and public from dangerous weapons. Thus, given this court’s proviso in Aguilar, 2013 IL
112116, ¶ 21, that “we are in no way saying that [the second amendment right to keep and bear
arms] is unlimited or is not subject to meaningful regulation,” and the finding by the United
States Court of Appeals for the Seventh Circuit in Moore v. Madigan, 702 F.3d 933, 941 (7th
Cir. 2012), that the Illinois legislature could implement sensible requirements for the public
carriage of handguns without running afoul of the second amendment, the appellate court
therein declined to accept the defendant’s assertion against severability of the unconstitutional
section of Aguilar. Henderson, 2013 IL App (1st) 113294, ¶¶ 24-26. We again find the
reasoning in Henderson sound and, therefore believe that the legislature would find that
subsections (a)(3)(C) and (a)(3)(I) can stand independently without the inclusion of subsection
factor (a)(3)(A). This severability from subsection (a)(3)(A) undermines neither the
completeness of, nor the ability to execute, the remaining subsections of section (a)(3). See
Sanders, 182 Ill. 2d at 534.
¶ 32 Second Amendment Rights of 18- to 20-Year-Olds
¶ 33 Next, we address the trial court’s findings, and defendant’s contentions, that his AUUW
convictions under the “FOID card” subsections, (a)(1), (a)(3)(C) and (a)(2), (a)(3)(C), as well
as the “under 21” subsections (a)(1), (a)(3)(I) and (a)(2), (a)(3)(I), unconstitutionally disarm
young adults who are 18 to 20 years old in violation of the second amendment. U.S. Const.,
amend. II. Again, the FOID card subsections prohibit the possession of a firearm while outside
one’s home or on a public way and without a valid FOID card, while the under 21 subsections
prohibit the possession of a firearm while outside one’s home or on a public way while under
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21 years of age and not engaged in lawful hunting activities. Defendant claims that adults 18
and over are among “the People,” protected by the second amendment. In support of this
proposition, defendant cites District of Columbia v. Heller, 554 U.S. 570, 635 (2008), and its
discussion of the First Militia Act, enacted by Congress in 1792, which created the organized
militia and provided in the definition of “able-bodied men,” to include males as young as 18.
Heller, 554 U.S. at 596 (citing Act of May 8, 1792, 1 Stat. 271). Accordingly, defendant argues
that subsections (a)(3)(C) and (a)(3)(I) impose burdens on those, like himself, aged 18 to 20
which amount to an unconstitutional flat ban on their second amendment rights.
¶ 34 When analyzing the constitutionality of a restriction on the second amendment right to bear
arms, we apply the two-part approach this court adopted in Wilson v. County of Cook, 2012 IL
112026, ¶ 41. Under this approach, the court first conducts a textual and historical inquiry to
determine whether the challenged law imposes a burden on conduct that was understood to be
within the scope of the second amendment’s protection at the time of ratification. Id. The
regulated activity is categorically unprotected if the challenged law applies to conduct falling
outside the scope of the second amendment right. Id. However, if the historical evidence is
inconclusive or suggests that the regulated activity is not categorically unprotected, then the
court, applying the appropriate level of means-ends scrutiny, conducts a second inquiry into
the strength of the government’s justification for restricting or regulating the exercise of
second amendment rights. Id. ¶ 42; see also People v. Henderson, 2013 IL App (1st) 113294,
¶ 29; Ezell v. City of Chicago, 651 F.3d 684, 701-04 (7th Cir. 2011).
¶ 35 Therefore, in determining whether the conduct set forth in subsections (a)(3)(C) and
(a)(3)(I) infringes on the second amendment rights of 18- to 20-year-olds, we must first
examine whether that conduct is at the core of the right to bear arms. Once more, we find
relevant the reasoning of the appellate court in Henderson, 2013 IL App (1st) 113294, which
relied upon our decision in Aguilar in applying the Wilson approach to the FOID card
subsection (a)(3)(C), of the AUUW:
“[I]n Aguilar, the supreme court expressly agreed with the ‘obvious and undeniable’
conclusion of those courts, since Heller, which have undertaken a comprehensive
historical examination of ‘presumptively lawful regulatory measures,’ e.g., laws
proscribing the carriage of firearms in sensitive places such as schools and government
buildings, and cited with approval several cases, all of which concluded that the
possession of handguns by minors is conduct that falls outside the second amendment’s
core protection. Aguilar, 2013 IL 112116, ¶¶ 26-27 (citing National Rifle Ass’n of
America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185,
204 (5th Cir. 2012) (concluding that ‘[m]odern restrictions on the ability of persons
under 21 to purchase handguns—and the ability of persons under 18 to possess
handguns—seem, to us, to be firmly historically rooted’), United States v. Rene E., 583
F.3d 8, 16 (1st Cir. 2009) (concluding that the ‘right to keep arms in the founding
period did not extend to juveniles’), and Powell v. Tompkins, 926 F. Supp. 2d 367,
387-90 (D. Mass. 2013) (holding that a Massachusetts law proscribing the carry of
firearms by persons under the age of 21 ‘comports with the Second Amendment and
imposes no burden on’ the right to keep and bear arms)). We thus reject defendant’s
contention that the public carriage of handguns by those under 21 is core conduct
subject to second amendment protection.” Henderson, 2013 IL App (1st) 113294, ¶ 30.
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¶ 36 Indeed, we find the FOID card requirement of subsection (a)(3)(C) is consistent with this
court’s recognition that the second amendment right to possess firearms is still “subject to
meaningful regulation.” Aguilar, 2013 IL 112116, ¶ 21; see also People v. Taylor, 2013 IL
App (1st) 110166, ¶¶ 28-32 (holding subsection (a)(3)(C) does not violate the second
amendment where it contains a reasonable restriction on firearm possession, i.e., the restriction
is limited to those lacking a FOID card and is not a flat ban); National Rifle Ass’n of America,
Inc. v. McCraw, 719 F.3d 338, 347 (5th Cir. 2013) (upholding, after conducting an extensive
historical analysis, Texas statutory ban on persons under 21 years of age from possessing guns
in public because that conduct “falls outside the Second Amendment’s protection” (internal
quotation marks omitted)); National Rifle Ass’n of America, Inc. v. Bureau of Alcohol,
Tobacco, Firearms, & Explosives, 700 F.3d 185, 204 n.17 (5th Cir. 2012) (finding defendant’s
militia-based argument unavailing for various reasons). Furthermore, because we agree with
the reasoning of Henderson, we find it unnecessary to repeat the historical evidence set forth in
the decisions cited by Aguilar. See Aguilar, 2013 IL 112116, ¶ 27. Rather, we simply conclude
that where “the possession of handguns by minors is conduct that falls outside the scope of the
second amendment’s protection” (id.), subsection (a)(3)(C) passes the first half of the Wilson
analysis, and we are not required to undertake the second half analysis. See Wilson v. County of
Cook, 2012 IL 112026, ¶ 41.
¶ 37 Next, in considering whether subsection (a)(3)(I) is constitutional under Wilson, we
similarly find that the restriction on persons under the age of 21 who are not engaged in lawful
hunting activities is both historically rooted and not a core conduct subject to second
amendment protection. Moreover, the restriction included in subsection (a)(3)(I) provides for
multiple exceptions and exemptions to protect the rights of law-abiding persons under the age
of 21. See, e.g., 720 ILCS 5/24-2(b)(1), (b)(3), (f) (West 2012). Therefore, subsection (a)(3)(I)
also passes the first part of the Wilson analysis and, as with defendant’s challenge to subsection
(a)(3)(C), a second half analysis under Wilson is unnecessary. See Wilson, 2012 IL 112026,
¶ 41.
¶ 38 Accordingly, we conclude that, under the Wilson approach, neither subsection (a)(3)(C),
nor subsection (a)(3)(I) violates the second amendment rights of defendant or other 18- to
20-year-old persons.
¶ 39 Equal Protection Challenges
¶ 40 Defendant also argues on appeal that the AUUW statute’s distinction between those over
and under 21 years of age, as found in subsections (a)(3)(C) and (a)(3)(I), violates the equal
protection clause of the fourteenth amendment to the United States Constitution (U.S. Const.,
amend. XIV), by placing an additional burden on the fundamental right to bear arms of those
aged 18 to 20 than that placed on those over the age of 21. The constitutional right to equal
protection under the law requires the government to treat similarly situated persons in the same
manner. People v. Warren, 173 Ill. 2d 348, 361 (1996). The guarantee of equal protection of
the United States and Illinois Constitutions does not preclude the state from enacting
legislation that draws distinctions between different categories of people, but it does prohibit
the state from according unequal treatment to persons who have been placed by a statute into
different classes on the basis of criteria wholly unrelated to the purpose of the legislation.
People v. Fisher, 184 Ill. 2d 441 (1998). A court uses the same analysis in assessing equal
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protection claims under both the state and federal constitutions. People v. Reed, 148 Ill. 2d 1, 7
(1992). We repeat that statutes enjoy a strong presumption of constitutionality and we are
required to uphold the constitutionality of a statute whenever reasonably possible. Aguilar,
2013 IL 112116, ¶ 15. The party challenging the constitutionality of the statute has the burden
to prove its invalidity. Id.¶ 41 We disagree with defendant’s argument that strict scrutiny applies to this equal protection
claim because the FOID card and under 21 subsections impinge on a fundamental right. When
analyzing legislation under equal protection, the level of scrutiny to be applied depends on the
type of legislative classification at issue. In re Detention of Samuelson, 189 Ill. 2d 548, 561
(2000). As discussed above, the challenged statutory provisions do not burden a fundamental
right at the core of the second amendment. Accordingly, both Illinois and federal courts have
routinely held that because age is not a suspect class for purposes of equal protection analysis,
this court applies the rational basis standard. See People v. M.A., 124 Ill. 2d 135, 140 (1988);
see also National Rifle Ass’n of America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, &
Explosives, 700 F.3d 185, 212 (5th Cir. 2012) (applying rational basis to equal protection
challenge of Texas gun law where persons under 21 had no fundamental right under second
amendment and age was not a suspect classification). Thus, we evaluate the age restrictions of
the AUUW statute merely to determine whether they rationally relate to a legitimate
government interest. See People v. Alcozer, 241 Ill. 2d 248, 262-63 (2011); In re Detention of
Samuelson, 189 Ill. 2d at 562 (judicial review of legislative classifications under the rational
basis test is limited and generally deferential).
¶ 42 As mentioned, Illinois appellate courts have upheld the validity of the AUUW statute since
its enactment, finding that the state has a legitimate interest in protecting the public and the
police from the possession and use of dangerous weapons. See Henderson, 2013 IL App (1st)
113294, ¶ 26; People v. Pulley, 345 Ill. App. 3d 916, 924 (2004); People v. Marin, 342 Ill.
App. 3d 716, 723-24 (2003); see also People v. Williams, 60 Ill. App. 3d 726, 727 (1978) (the
unlawful use of a weapon statute demonstrates a “legislative intent to regulate the possession
and use of weapons for the safety and good order of society”). Additionally, other courts have
upheld age restrictions placed on those under 21 years of age by concluding that, given the
immaturity and impulsivity of youth, prohibiting the public carrying of handguns for
individuals under age 21 is substantially related to that important public interest. See National
Rifle Ass’n of America, Inc., 700 F.3d at 207-10 & n.21 (cataloging congressional findings
about the disproportionate arrest rate for violent crimes among those under age 21 and stating
that “[a]mong murderers, 18- to 20-year olds were more likely to use a firearm than adults 21
and over” and that “modern scientific research supports the commonsense notion that
18-to-20-year-olds tend to be more impulsive than young adults aged 21 and over”); see also
People v. Alvarado, 2011 IL App (1st) 082957, ¶ 53 (finding, inter alia, that subsections
(a)(3)(C) and (a)(3)(I) of the AUUW statute did not violate defendant’s equal protection
rights), vacated on other grounds, No. 113757 (Ill. Jan. 29, 2014) (supervisory order).
Therefore, it is clear that an extensive relationship exists between reasonable restrictions on the
use of firearms by persons under the age of 21 and the state’s interest in protecting the public
and police. As such, we cannot find that defendant has carried his burden of proving
subsections (a)(3)(C) and (a)(3)(I) of the AUUW statute do not rationally relate to a legitimate
government interest, and we reject defendant’s equal protection claims.
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¶ 43 Due Process Violations
¶ 44 We also reject defendant’s argument that, under due process, subsection (a)(3)(C) and the
Firearm Owners Identification Card Act (FOID Card Act) (430 ILCS 65/0.01 (West 2012)) are
unconstitutional, both facially and as applied. Defendant relies on the trial court finding that
subsection (a)(3)(C), in combination with the FOID Card Act, violates due process by placing
special burdens on the ability of defendant, and all similarly situated 18- to 20-year-old adults,
to obtain a FOID card. The relevant portions of the FOID Card Act states as follows:
“(a) Each applicant for a Firearm Owner’s Identification Card must:
***
(2) Submit evidence to the Department of State Police that:
(i) He or she is 21 years of age or over, or if he or she is under 21 years of age
that he or she has the written consent of his or her parent or legal guardian to
possess and acquire firearms and firearm ammunition *** provided, however, that
such parent or legal guardian is not an individual prohibited from having a [FOID]
Card ***[.]
(ii) He or she has not been convicted of a felony under the laws of this or any
other jurisdiction[.]” 430 ILCS 65/4(a)(2)(i), (ii) (West 2012).
¶ 45 Defendant contends that in order to avoid prosecution under subsection (a)(3)(C) of the
AUUW statute, he must obtain a FOID card, i.e., that the FOID Card Act places additional,
special burdens on adults aged 18 to 20 by requiring them to first get permission from a parent
before they can successfully apply for a FOID card. However, under the FOID Card Act,
because he is under 21 years of age and both his parents have felony convictions, thus
prohibiting them from having a FOID card, he cannot obtain their consent and, consequently, it
is impossible for him to obtain a FOID card.
¶ 46 The State, in response, argues that the trial court’s as applied finding of unconstitutionality,
made without the benefit of an evidentiary hearing, is flawed where no evidence of record
supports a finding that defendant: (1) ever applied for a FOID card; (2) was ever denied a
FOID card or ever appealed that denial; did not have a legal guardian who could have given
valid consent to apply for a FOID card, or could not have had such a guardian appointed. See
430 ILCS 65/0.01 et seq. (West 2012). The State points to the trial court’s assumption that
defendant’s constitutional rights were violated based on the presentence investigation report
statement that defendant was unable to get a FOID card because his parents had been
“incarcerated.” However, the fact that a person has been “incarcerated” does not, without more
information, establish that they have been convicted of a felony, but may simply mean that
they have been in jail. See People v. Riley, 2013 IL App (1st) 112472, ¶ 10 (finding that
“incarceration,” which is not defined in the Code of Criminal Procedure or the Code of
Corrections or any other relevant statute, is limited to “ ‘ “[i]mprisonment; confinement in a
jail or penitentiary.” ’ ” (quoting People v. Kuhns, 372 Ill. App. 3d 829, 839 (2007) (Gilleran
Johnson, J., concurring in part and dissenting in part), quoting Black’s Law Dictionary 760
(6th ed. 1990)). Further, at the March 8, 2013 hearing, the State questioned whether defendant
had any potential legal guardian who might be eligible to consent to his FOID card application,
but the court failed to consider the State’s question in its order. The State, therefore, contends
that because there is no evidence that defendant ever actually applied for a FOID card and was
rejected, he lacks standing to make a due process claim. Thus, the State contends that under the
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record before this court, defendant cannot challenge the constitutionality of subsection
(a)(3)(C).
¶ 47 We agree that it is improper for this court to render a decision on this issue given the lack of
evidence presently before us. Indeed, we have stated:
“A court is not capable of making an ‘as applied’ determination of
unconstitutionality when there has been no evidentiary hearing and no findings of fact.
[Citation.] Without an evidentiary record, any finding that a statute is unconstitutional
‘as applied’ is premature. [Citations.] Nor would it be appropriate for this court, sua
sponte, to consider whether [a] statute has been constitutionally applied since we, as a
reviewing court, are not arbiters of the facts.” In re Parentage of John M., 212 Ill. 2d
253, 268 (2004).
¶ 48 Additionally, “[t]o have standing to challenge the constitutionality of a statute, one must
have sustained or be in immediate danger of sustaining a direct injury as a result of
enforcement of the challenged statute.” Chicago Teachers Union, Local 1 v. Board of
Education of the City of Chicago, 189 Ill. 2d 200, 206 (2000). We cannot make such a finding
in this case without the trial court conducting an evidentiary hearing setting forth a factual
foundation. See Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 228 (2010) (reversing
the circuit court’s as applied ruling when there had been no evidentiary hearing and no findings
of fact). Therefore, we hold that defendant has not upheld his burden to establish that the
AUUW statute, as applied to him, violates his due process rights.
¶ 49 When there has been no evidentiary hearing and no findings of fact, the constitutional
challenge must be facial. Lebron, 237 Ill. 2d at 228 (citing In re Parentage of John M., 212 Ill.
2d 253, 268 (2004)); Reno v. Flores, 507 U.S. 292, 300-01 (1993). To find a statute facially
invalid, no set of circumstances may exist under which the statute would be valid. Lebron, 237
Ill. 2d at 228.
¶ 50 Contrary to the trial court’s order, the FOID Card Act (430 ILCS 65/0.01 et seq. (West
2012)), however, does not amount to an outright prohibition against those under the age of 21
who wish to obtain a FOID card. In fact, the Act mandates individualized consideration of a
person’s FOID card application and circumstances by the department of state police and the
judiciary. Coram v. State, 2013 IL 113867, ¶ 58 (citing 430 ILCS 65/5, 8, 10 (West 2010)).
Minors aged 18 to 20, and even younger, have an opportunity to obtain a FOID card by
supplying a parental signature. 430 ILCS 65/4 (West 2012). Even if a parental signature is
unavailable, an applicant can appeal to the Director of the Department of State Police. 430
ILCS 65/10 (West 2012). Furthermore, the Department of State Police has promulgated rules
setting forth procedures for such appeals and providing that the Director may grant relief to
persons under the age of 21 (20 Ill. Adm. Code 1230.70(d)(3) (eff. Dec. 31, 2013)) and the
Director’s decisions are subject to judicial review (430 ILCS 65/11 (West 2012)). These
provisions demonstrate that it is not impossible for a person under the age of 21 to obtain a
FOID card without his or her parents’ permission or signature. As such, the fact that the FOID
Card Act could be found constitutional under some set of circumstances, i.e., appeal a
prohibition to the Director of the Department of State Police, defendant’s facial challenge must
fail. See Lebron, 237 Ill. 2d at 261 (Karmeier, J., concurring in part and dissenting in part,
joined by Garman, J.) (citing In re M.T., 221 Ill. 2d 517, 536-37 (2006)).
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¶ 51 Constitutionality/Severability of Sentencing Subsection (d)(2)
¶ 52 Under the statute applicable here, due to defendant’s age and his convictions based on
subsections (a)(3)(A) and (a)(3)(C) of the AUUW statute, he faced a mandatory term of
imprisonment under subsection (d)(2) of the statute’s sentencing provision. See 720 ILCS
5/24-1.6(d)(2) (West 2012). As noted, following posttrial proceedings, the court held
subsection (d)(2) unconstitutional. We find that section (d)(2) is invalid, as it incorporates
subsection (a)(3)(A), found to be unconstitutional in Aguilar.
¶ 53 At all times pertinent to this case, AUUW section 24-1.6(d)(2), stated as follows:
“(2) Except as otherwise provided in paragraphs (3) and (4) of this subsection (d), a
first offense of aggravated unlawful use of a weapon committed with a firearm by a
person 18 years of age or older where the factors listed in both items (A) and (C) of
paragraph (3) of subsection (a) are present is a Class 4 felony, for which the person
shall be sentenced to a term of imprisonment of not less than one year and not more
than 3 years.” 720 ILCS 5/24-1.6(d)(2) (West 2012).8
The State contends that a defendant may be sentenced under subsection (d)(2) when the
“factors listed in both items (A) and (C) *** are present.” (Emphases added.) 720 ILCS
5/24-1.6(d)(2) (West 2012). Essentially, the State asks this court to find this language does not
refer to the existence of the offenses stated in subsections (a)(3)(A) and (a)(3)(C), but rather
that the facts identified in those “items” are “present,” i.e., that the facts of the case establish
that defendant had an uncased, loaded weapon and was not issued a FOID card. We decline to
do so.
¶ 54 Indeed, to accept the State’s interpretation, this court would have to ignore the plain and
ordinary language of the statute. People v. Perez, 2014 IL 115927, ¶ 9 (the best evidence of
legislative intent is the language used in the statute itself, which must be given its plain and
ordinary meaning). Here, the plain language of the sentencing provision in subsection (d)(2)
directly references the AUUW offense stated in subsection (a)(3)(A). See People v.
Zimmerman, 239 Ill. 2d 491, 499 (2010) (the factors in subsection (a)(3) transform the crime
from “simple” unlawful use of a weapon to aggravated unlawful use of a weapon). Thus, under
its plain language, a person may only be sentenced under subsection (d)(2) if the factors
constituting the AUUW offenses identified in both subsections (a)(3)(A) and (a)(3)(C) are
present.
¶ 55 However, because subsection (a)(3)(A) has been found unconstitutional, the requirements
for sentencing under subsection (d)(2) cannot be met, as a statutory section cannot be “present”
if it is void ab initio. In People v. Blair, 2013 IL 114122, ¶ 28, this court recently discussed the
meaning of the void ab initio doctrine, stating, in part: “When a statute is held facially
unconstitutional, i.e., unconstitutional in all its applications [citation], the statute is said to be
void ab initio. Lucien v. Briley, 213 Ill. 2d 340, 344-45 (2004); Hill v. Cowan, 202 Ill. 2d 151,
156 (2002) [citations].” An unconstitutional statute is, literally, “void ‘from the beginning.’
See Black’s Law Dictionary 1604 (8th ed. 2004).” Perlstein v. Wolk, 218 Ill. 2d 448, 455
(2006). Therefore, as this court has found subsection (a)(3)(A) to be void from its beginning, it
8
While this version of the AUUW statute was replaced by Pub. Act 98-63, § 155 (eff. July 9, 2013),
there is no change in the language of subsection (d)(2) which would affect our decision under the facts
of this case.
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was never validly incorporated into the sentencing subsection (d)(2). Accordingly, we find
subsection (2) of sentencing subsection (d) of the AUUW statute to be invalid, as it requires a
conviction based upon an unconstitutional and unenforceable statutory section. See Blair,
2013 IL 114122, ¶ 30 (statute declared unconstitutional was infirm from the moment of its
enactment and, therefore, unenforceable). We thus examine the severability of subsection
(d)(2).
¶ 56 As noted earlier, the AUUW statute is examined under the Statute on Statutes’ general
severability provision, which states in pertinent part: “ ‘If any provision of an Act *** is held
invalid, such invalidity does not affect other provisions *** of the Act which can be given
effect without the invalid *** provision, and to this end the provisions of each Act *** are
severable, unless otherwise provided by the Act.’ ” Alexander, 204 Ill. 2d at 484 (quoting 5
ILCS 70/1.31 (West 2000)). Although general severability statutes carry less weight in
ascertaining legislative intent than specific severability clauses, they do establish a
presumption that the legislature intended for an invalid statutory provision to be severable.
Northern Illinois Home Builders Ass’n v. County of Du Page, 165 Ill. 2d 25, 48 (1995) (citing
People ex rel. Chicago Bar Ass’n v. State Board of Elections, 136 Ill. 2d 513, 532 (1990)). This
presumption will be overcome and the entire act held unconstitutional if the legislative body
would not have passed the statute with the invalid portion eliminated. Id.¶ 57 Here, we believe it is clear that the legislature would have intended that the AUUW statute
remain in force despite the invalidity of sentencing subsection (d)(2). This portion of the
sentencing provision is not such an interdependent and essential part of the statute that its
severance requires the remainder of the statute to fail. As the appellate court found in
Henderson, 2013 IL App (1st) 113294, ¶ 26, the “balance of the [AUUW] statute,” is a
continuing reflection of the statute’s legislative purpose to protect the police and public from
dangerous weapons. Given the severability of the unconstitutional subsection (a)(3)(A), this
legislative purpose is not defeated by the invalidation of a sentencing provision citing to that
subsection, and we may leave the remainder of the statute in force. See Northern Illinois Home
Builders, 165 Ill. 2d at 49. Thus, we find that defendant may properly be sentenced, on remand,
to the applicable provision of section (d) of the statute.
¶ 58 Proportionate Penalties Violation
¶ 59 Finally, the trial court found, and defendant argues on appeal, that section 24-1.6(d)(2) of
the Criminal Code (720 ILCS 5/24-1.6(d)(2) (West 2012)), is unconstitutional because it
violates the proportionate penalties clause of the Illinois Constitution. Ill. Const. 1970, art. I,
§ 11. However, as we have held that the sentencing provision in subsection (d)(2) is invalid, it
is unnecessary to address this issue. See People v. Clark, 2014 IL 115776, ¶ 23.
¶ 60 CONCLUSION
¶ 61 For the reasons set forth above, we affirm the trial court’s judgment vacating defendant’s
Class 4 convictions of AUUW under counts II and V, as the offenses charged therein are based
on, respectively, statutory sections 24-1.6(a)(1), (a)(3)(A), and 24-1.6(a)(2), (a)(3)(A), which
we find to be unconstitutional. Further, we reverse the trial court’s judgment vacating
defendant’s Class 4 convictions of AUUW under counts III and VI, as the offenses charged
therein are based on, respectively, statutory sections 24-1.6(a)(1), (a)(3)(C), and 24-1.6(a)(2),
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(a)(3)(C), which we find to be constitutional and severable from the unconstitutional (a)(3)(A)
subsection stated in counts II and V. We also reverse the trial court’s judgment vacating
defendant’s Class 4 convictions of AUUW under counts IV and VII, as the offenses charged
therein are based on, respectively, statutory sections 24-1.6(a)(1), (a)(3)(I), and 24-1.6(a)(2),
(a)(3)(I), which we find to be constitutional and severable from the unconstitutional (a)(3)(A)
subsection stated in counts II and V. Additionally, we find that portion of the AUUW statute
set forth in section 24-1.6(d)(2) to be invalid, as that sentencing subsection relies upon the
unconstitutional and void ab initio (a)(3)(A) subsection. 720 ILCS 5/24-1.6(d)(2) (West 2012).
Finally, we vacate the trial court’s judgment convicting and sentencing defendant for one
count of misdemeanor UUW under section 24-1.6(d)(2) of the Criminal Code. 720 ILCS
5/24-1(a)(4) (West 2012). Accordingly, we remand this cause to the trial court for sentencing.
¶ 62 Circuit court judgment affirmed in part and reversed in part.
¶ 63 Cause remanded.
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