People v. McFadden ( 2016 )

Digitally signed by
Illinois Official Reports Reporter of Decisions
Reason: I attest to the
accuracy and integrity
of this document
Supreme Court Date: 2016.10.21
08:41:23 -05'00'
People v. McFadden, 2016 IL 117424
Caption in Supreme THE PEOPLEOF THE STATE OF ILLINOIS, Appellant, v.
Court: ONAFFIA McFADDEN, Appellee.
Docket No. 117424
Filed June 16, 2016
Rehearing denied September 26, 2016
Decision Under Appeal from the Appellate Court for the First District; heard in that
Review court on appeal from the Circuit Court of Cook County, the Hon.
Sharon Sullivan, Judge, presiding.
Judgment Appellate court judgment affirmed in part and reversed in part.
Circuit court judgment affirmed in part and vacated in part.
Counsel on Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
Appeal State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz and
John E. Nowak, Assistant State’s Attorneys, of counsel), for the
People.
Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg,
Deputy Defender, and Pamela M. Rubeo, Assistant Appellate
Defender, of the Office of the State Appellate Defender, of Chicago,
for appellee.
Justices JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Thomas, and Karmeier
concurred in the judgment and opinion.
Justice Kilbride concurred in part and dissented in part, with opinion,
joined by Justice Burke.
Justices Freeman, Kilbride, and Burke dissented upon denial of
rehearing, without opinion.
OPINION
¶1 This case involves an appeal from a conviction for unlawful use of a weapon by a felon
(UUW by a felon). 720 ILCS 5/24-1.1(a) (West 2008). The conviction was based on defendant
Onaffia McFadden’s possession of a firearm at a time when he had been convicted of
aggravated unlawful use of a weapon (AUUW). The appellate court vacated the conviction for
UUW by a felon based on this court’s decision in People v. Aguilar, 2013 IL 112116, which
declared section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute unconstitutional and void
ab initio. 2014 IL App (1st) 102939, ¶ 43. For the following reasons, we reverse that part of the
appellate court judgment and reinstate defendant’s UUW by a felon conviction.
¶2 BACKGROUND
¶3 In December 2002, defendant, then 17 years old, was indicted in Cook County case No.
02CR 30903 on six counts of AUUW for the events that transpired on November 21, 2002,
involving two separate firearms. One count alleged that he carried in a vehicle, outside the
home, a .38-caliber handgun which was “uncased, loaded and immediately accessible” in
violation of 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2002); one count alleged that he carried
in a vehicle, outside the home, a .38-caliber handgun without a valid Firearm Owner’s
Identification (FOID) card in violation of 720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2002); one
count alleged that he carried in a vehicle, outside the home, a .38-caliber handgun while under
21 years of age in violation of 720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2002); one count
alleged that he carried in a vehicle a 9-millimeter handgun which was “uncased, loaded and
immediately accessible” in violation of 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2002); one
count alleged that he carried in a vehicle a 9-millimeter handgun without a valid FOID card in
violation of 720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2002); and one count alleged that he
carried in a vehicle a 9-millimeter handgun while under 21 years of age in violation of 720
ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2002).
¶4 Thereafter, defendant pleaded guilty to one count of AUUW in exchange for the dismissal
of the other five counts, and he was sentenced to one year of probation. There is no
confirmation in the record as to which count of AUUW defendant pleaded guilty or as to the
factual basis for the plea. Defendant subsequently violated the terms of his probation, was
again sentenced to one year of probation, and was ordered to complete boot camp. His
probation was ultimately terminated unsatisfactorily. In 2005, defendant was convicted of
-2-
possession of a controlled substance with the intent to deliver, a felony, and was sentenced to
six years in prison.
¶5 Subsequently, in March 2008, defendant was charged in separate cases with multiple
counts of armed robbery (720 ILCS 5/18-2(a)(2) (West 2008)), AUUW (720 ILCS
5/24-1.6(a)(1), (a)(3)(A); (a)(2), (a)(3)(A); (a)(1), (a)(3)(C); (a)(2), (a)(3)(C) (West 2008)),
and UUW by a felon “having been previously convicted of the felony offense of [AUUW]
under case number 02CR-30903” (720 ILCS 5/24-1.1(a) (West 2008)).
¶6 The cases were joined and proceeded to a bench trial. The evidence established that
defendant robbed three different victims at gunpoint within a 24-hour period. For purposes of
the UUW by a felon charges, defendant stipulated that he “has previously been convicted of
aggravated unlawful use of [a] weapon under Case No. 02 CR 30903.” The court admonished
defendant regarding his understanding that a stipulation is an agreement, and defendant
acknowledged that he understood that he was agreeing that he had a prior conviction for
AUUW.
¶7 The Cook County circuit court found defendant guilty of three counts of armed robbery
and two counts of UUW by a felon. Defendant was sentenced to concurrent prison terms of 29
years for each armed robbery conviction, which included 15-year mandatory sentencing
enhancements, and a concurrent sentence of 10 years for the UUW by a felon convictions. His
motion to reconsider his sentence was denied.
¶8 On appeal, defendant’s convictions and sentences for armed robbery were affirmed. 2014
IL App (1st) 102939, ¶ 53. With respect to the UUW by a felon convictions, the appellate court
vacated one of the convictions based on one-act, one-crime principles. Id. ¶ 29. With respect to
the remaining conviction, defendant argued that it must be vacated because it was based on his
prior 2002 felony conviction of AUUW, which arose from a statute that was held to be facially
unconstitutional in People v. Aguilar, 2013 IL 112116. 2014 IL App (1st) 102939, ¶ 36. The
appellate court held that it was “bound to apply Aguilar and vacate defendant’s remaining
UUW by a felon conviction because the State did not prove an essential element of the offense
where it alleged in the charging instrument and proved at trial a predicate offense that has been
declared unconstitutional and void ab initio.” Id. ¶ 43.
¶9 The State subsequently filed a petition for leave to appeal in this court, which we allowed.
Ill. S. Ct. R. 315 (eff. July 1, 2013). Defendant has cross-appealed, contending that he is
entitled to a new sentencing hearing on his 29-year prison sentence for armed robbery.
¶ 10 ANALYSIS
¶ 11 1. The Validity of Defendant’s UUW by a Felon Conviction
¶ 12 In Aguilar, on appeal from the defendant’s conviction for AUUW, this court held that
section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute—which prohibited the carrying outside
the home of a firearm which is uncased, loaded, and immediately accessible—was facially
unconstitutional under the second amendment of the United States Constitution. Aguilar, 2013
IL 112116, ¶ 22; People v. Burns, 2015 IL 117387, ¶ 21 (clarifying our holding in Aguilar). As
a result, we reversed the defendant’s conviction for AUUW. Aguilar, 2013 IL 112116, ¶ 22.
¶ 13 Subsequently, courts have been grappling with the legal effect of our decision in Aguilar as
it relates to various circumstances. In this appeal, unlike the defendant in Aguilar, defendant is
not seeking to vacate his 2002 conviction for AUUW. Rather, defendant contends that the
-3-
State failed to prove all of the essential elements necessary to sustain his 2008 conviction for
the offense of UUW by a felon. 720 ILCS 5/24-1.1(a) (West 2008). Accordingly, defendant
contends that his 2008 conviction for UUW by a felon must be vacated.
¶ 14 The UUW by a felon statute makes it unlawful for a person to knowingly possess a firearm
“if the person has been convicted of a felony under the laws of this State or any other
jurisdiction.” 720 ILCS 5/24-1.1(a) (West 2008). This court has explained that to prove the
prior felony conviction, the prosecutor need only establish “the defendant’s felon status.”
People v. Walker, 211 Ill. 2d 317, 337 (2004). Our statute “does not require proof of a specific
felony conviction.” Id.
¶ 15 In this case, the fact of defendant’s prior felony conviction was established when defendant
chose to stipulate to his felon status by agreeing that he “ha[d] previously been convicted of
aggravated unlawful use of [a] weapon under Case No. 02 CR 30903.” It is well settled that a
stipulation is “an agreement between parties or their attorneys with respect to an issue before
the court” (People v. Woods, 214 Ill. 2d 455, 468 (2005)), and a defendant may, by stipulation,
waive the necessity of proof of all or part of the State’s case against him (People v. Polk, 19 Ill.
2d 310, 315 (1960)). When made, a stipulation is “ ‘conclusive as to all matters necessarily
included in it’ [citation] and ‘[n]o proof of stipulated facts is necessary, since the stipulation is
substituted for proof and dispenses with the need for evidence’ [citation].” Woods, 214 Ill. 2d
at 469. Thus, a defendant is generally precluded from attacking or contradicting the stipulation.
Id.
¶ 16 Nevertheless, defendant argues that he should be relieved of his stipulation regarding the
fact of his felon status because he asserts that the statute under which he was convicted in 2002
was subsequently declared unconstitutional and void ab initio in Aguilar. From that premise,
he concludes that his prior 2002 felony conviction for AUUW may not then be used to prove
the fact of his felon status to support his conviction for the 2008 UUW by a felon offense.
Defendant relies on the principles of the void ab initio doctrine and its application to facially
unconstitutional criminal statutes to support his contention.
¶ 17 When a statute is held to be facially unconstitutional, the statute is said to be void ab initio,
i.e., void “ ‘from the beginning.’ ” Perlstein v. Wolk, 218 Ill. 2d 448, 455 (2006) (quoting
Black’s Law Dictionary 1604 (8th ed. 2004)); Hill v. Cowan, 202 Ill. 2d 151, 156 (2002)
(limiting the doctrine to facially unconstitutional statutes). A declaration that a statute is void
ab initio means that the statute was constitutionally infirm from the moment of its enactment
and, therefore, is unenforceable. People v. Blair, 2013 IL 114122, ¶ 30.
¶ 18 In stating the rationale behind the doctrine and articulating the appropriate remedy, we
have explained that when a statute violates the constitution it “suddenly cuts off rights that are
guaranteed to every citizen” and “perverts the duties owed to those citizens.” People v. Gersch,
135 Ill. 2d 384, 397 (1990). Thus, this court found that “[t]o hold that a judicial decision that
declares a statute unconstitutional is not retroactive would forever prevent those injured under
the unconstitutional legislative act from receiving a remedy for the deprivation of a guaranteed
right. This would clearly offend all sense of due process.” Id. at 397-98. We concluded that
“where a statute is violative of constitutional guarantees, we have a duty not only to declare
such a legislative act void, but also to correct the wrongs wrought through such an act by
holding our decision retroactive.” Id. at 399.
-4-
¶ 19 Thus, in considering the void ab initio doctrine’s application to various circumstances, we
have consistently held that when a criminal statute has been declared facially unconstitutional,
a defendant may not be prosecuted under it and, as a remedy, must be allowed to apply the
court’s declaration as a basis to vacate his judgment of conviction premised on the facially
unconstitutional statute. In Gersch, for example, the defendant argued on direct appeal from
his murder conviction that the State’s jury demand violated his constitutional right to a bench
trial. He relied on a decision of this court holding that the statute which granted the State a right
to demand a jury in certain criminal trials was unconstitutional. Id. at 397-98. To remedy the
wrong, we reversed his conviction and remanded the cause for a new trial. Id. at 401-02. In
People v. Zeisler, 125 Ill. 2d 42 (1988), defendant filed a successful successive postconviction
petition, seeking to vacate his conviction for aggravated arson under the void ab initio doctrine
after this court declared the aggravated arson statute under which he was convicted
unconstitutional. Id. at 45-46. In vacating his conviction, we relied on the principle that “the
doctrine of void ab initio declares a statute unconstitutional, null and void, which results in the
court’s vacating a conviction based upon such statute.” Id. at 48.
¶ 20 Indeed, in numerous cases, defendants have successfully had a judgment of conviction
vacated because it was premised on a facially unconstitutional statute. See, e.g., People v.
Manuel, 94 Ill. 2d 242, 244-45 (1983) (affirming on direct appeal the dismissal of an
indictment premised on an unconstitutional statute, reasoning that a defendant cannot be
prosecuted under a criminal statute that is unconstitutional in its entirety); People v.
Tellez-Valencia, 188 Ill. 2d 523, 527 (1999) (reversing a conviction where the statute creating
the offense was subsequently declared unconstitutional and was therefore unenforceable);
People v. Mosley, 2015 IL 115872, ¶ 24 (trial court properly vacated defendant’s AUUW
convictions as remedy for its posttrial finding that offenses charged were based upon the
facially unconstitutional statutory sections in Aguilar); People v. Burns, 2015 IL 117387, ¶ 32
(where defendant was convicted of AUUW and sought to vacate his conviction on appeal
based on Aguilar, proper remedy was to vacate his conviction). Based on this court’s
precedent, we continue to reaffirm the principle that the void ab initio doctrine renders a
facially unconstitutional statute unenforceable and renders a conviction under that facially
unconstitutional statute subject to vacatur.
¶ 21 Applying these principles of law to defendant, the void ab initio doctrine would enable him
to seek to vacate his 2002 AUUW conviction by filing an appropriate pleading. However, in
this case, defendant is not seeking to apply the void ab initio doctrine to vacate his prior 2002
AUUW conviction. Rather, defendant is seeking to reverse his 2008 conviction for UUW by a
felon, a constitutionally valid offense, by challenging the sufficiency of the evidence to convict
him. This distinction presents a different question, namely whether a prior conviction, which is
asserted to be based on a statute that has been subsequently declared facially unconstitutional,
may nevertheless serve as proof of the predicate felony conviction in prosecuting the offense
of UUW by a felon.
¶ 22 None of this court’s existing precedent applying the void ab initio doctrine resolves this
question. The United States Supreme Court, however, answered a similar question in the
affirmative. In Lewis v. United States, 445 U.S. 55 (1980), the Court held that under a federal
felon-in-possession-of-a-firearm statute, a constitutionally infirm prior felony conviction
could be used by the government as the predicate felony. Id. at 65. The statute “prohibit[ed] a
felon from possessing a firearm despite the fact that the predicate felony may be subject to
-5-
collateral attack on constitutional grounds.” Id. The Lewis Court rejected the petitioner’s
ability to challenge, in the federal proceeding, the use of his uncounseled state felony
conviction as the basis for his federal prosecution for being a felon in possession of a firearm.
Id. at 67.
¶ 23 To answer the question presented, the Court examined the language of the federal firearms
statute and concluded that “[t]he statutory language is sweeping, and its plain meaning is that
the fact of a felony conviction imposes a firearm disability until the conviction is vacated or the
felon is relieved of his disability by some affirmative action.” Id. at 60-61. The Court
“view[ed] the language Congress chose as consistent with the common-sense notion that a
disability based upon one’s status as a convicted felon should cease only when the conviction
upon which that status depends has been vacated.” Id. at 61 n.5. The Court noted that the
federal firearms statute contained “[n]o exception *** for a person whose outstanding felony
conviction ultimately might turn out to be invalid for any reason.” Id. at 62. The legislature
intended that “the defendant clear his status before obtaining a firearm,” in keeping with
Congress’s purpose to keep firearms away from persons who are potentially irresponsible and
dangerous. (Emphasis in original.) Id. at 64-65.
¶ 24 Thus, under Lewis and its progeny, the fact of a felony conviction without any intervening
vacatur or other affirmative action to nullify the conviction triggers the firearms disability. Id.
at 60-61. See, e.g., United States v. Mayfield, 810 F.2d 943, 945-46 (10th Cir. 1987) (affirming
federal firearms conviction even though state predicate conviction may have been void for lack
of jurisdiction under state law); People v. Chambers, 922 F.2d 228, 238-40 (5th Cir. 1991)
(even where predicate felony was subject to nullification on collateral attack, it was
nevertheless a conviction for purposes of federal firearms statute); United States v. Padilla,
387 F.3d 1087, 1092 (9th Cir. 2004) (even where predicate felony was subsequently vacated
nunc pro tunc, such conviction must be invalidated before felon takes possession of firearm;
later relief will not invalidate federal felon-in-possession conviction); United States v.
Leuschen, 395 F.3d 155, 157-59 (3d Cir. 2005) (holding that the federal felon-in-possession
statute precluded the defendant’s collateral attack on a prior conviction irrespective of validity
of that conviction, even where defendant claimed the law had been amended prior to trial). In
particular, in United States v. Wallace, 280 F.3d 781, 784 n.1 (7th Cir. 2002), the Seventh
Circuit affirmed the defendant’s conviction as a felon in possession despite the fact that the
basis for his felon status was premised on a statute that was void ab initio. The court relied on
the fact that the defendant pled guilty to the UUW by a felon offense and could not challenge
that admission. Id. at 784. However, the court also noted that the defendant’s argument lacked
merit in any event, reaffirming the principles in Lewis “despite different permutations of the
[defendant’s] change in status regarding the predicate felony.” Id. at 784 n.1. The court
reiterated that those cases reinforced the “straightforward principle that the only relevant
question is the defendant’s status at the time he was charged with unlawfully possessing a
firearm.” Id.
¶ 25 The State maintains that like the federal statute, under Illinois’s UUW by a felon statute, a
defendant’s felon status is determined at the time of the firearms possession and his disability
ceases only when the prior conviction has been properly vacated. Thus, the fact that a prior
felony conviction may subsequently turn out to be invalid for any reason and subject to vacatur
under the void ab initio doctrine is not relevant for purposes of proving the elements of the
separate offense of UUW by a felon.
-6-
¶ 26 We agree that the resolution of the question before us requires us to first consider the
language of section 24-1.1(a), the controlling statute under which defendant was convicted in
2008. 720 ILCS 5/24-1.1(a) (West 2008). The interpretation of a statute presents a question of
law, subject to de novo review. People v. Simpson, 2015 IL 116512, ¶ 29. Our primary
objective is to ascertain and give effect to the true intent of the legislature. Id. This inquiry
starts with the plain language of the statute, which is the most reliable indicator of legislative
intent. Id. In determining the plain meaning of the statute, we may also consider “the reason for
the law, the problems sought to be remedied, the purposes to be achieved, and the
consequences of construing the statute one way or another.” People v. Gutman, 2011 IL
110338, ¶ 12. We presume that “the legislature did not intend to create absurd, inconvenient, or
unjust results.” Id.
¶ 27 The UUW by a felon statute prohibits the possession of a firearm by any person “if the
person has been convicted of a felony under the laws of this State or any other jurisdiction.”
720 ILCS 5/24-1.1(a) (West 2008). As previously explained, that language of the statute
requires the State to prove only “the defendant’s felon status.” Walker, 211 Ill. 2d at 337.
Contrary to the appellate court’s finding, the statute does not require the State to prove the
predicate offense at trial. Additionally, the proscription under section 24-1.1(a) is expressed in
the past tense, thus applying to any person who “has been convicted” of a felony (720 ILCS
5/24-1.1(a) (West 2008)). Nothing on the face of the statute suggests any intent to limit the
language to only those persons whose prior felony convictions are not later subject to vacatur.
¶ 28 We see no reason to treat the interpretation of section 24-1.1(a) differently than the
Supreme Court’s interpretation of the similar federal statute in Lewis. Although the Supreme
Court’s construction of a federal statute is not binding on Illinois courts in construing an
Illinois statute, the Supreme Court’s interpretation of a similar federal statute may provide
guidance in interpreting our own statute. Gutman, 2011 IL 110338, ¶ 17.
¶ 29 As with the federal statute, the language of section 24-1.1(a) is “consistent with the
common-sense notion that a disability based upon one’s status as a convicted felon should
cease only when the conviction upon which that status depends has been vacated.” Lewis, 445
U.S. at 61 n.5. The purpose of the statute, like the federal prohibition, is to protect the public
from persons who are potentially irresponsible and dangerous. People v. Garvin, 2013 IL App
(1st) 113095, ¶ 14. Thus, under section 24-1.1(a), it is immaterial whether the predicate
conviction “ultimately might turn out to be invalid for any reason.” Lewis, 445 U.S. at 62.
Moreover, as with the federal statute, the UUW by a felon statute is not concerned with
prosecuting or enforcing the prior conviction. Rather, the legislation is concerned with “the
role of that conviction as a disqualifying condition for the purpose of obtaining firearms.”
Mayfield, 810 F.2d at 946. Accordingly, based on the plain wording of this particular statutory
scheme, the UUW by a felon offense is a status offense, and the General Assembly intended
that a defendant must clear his felon status before obtaining a firearm.
¶ 30 Moreover, the policy and purpose of the UUW by a felon statute are served by requiring an
individual to clear his felony record before possessing a firearm, “no matter what infirmity
infects his conviction.” Padilla, 387 F.3d at 1091. As one jurisdiction aptly pointed out, a
defendant “may not resort to self help by first obtaining and possessing [a] firearm, and
thereafter try[ing] to assert the invalidity of the prior conviction as a defense to a [UUW by a
felon] prosecution.” People v. Harty, 219 Cal. Rptr. 85, 88 (Cal. App. 1985). Additionally
-7-
illustrative of the policy and purpose of the statute is Clark v. State, 739 P.2d 777 (Alaska Ct.
App. 1987), where the Alaska court explained:
“It appears to us that sound policy supports what we perceive to be the intent of the
legislature. *** We see no reason why the legislature would want to encourage a
person who has formerly been convicted of a felony to gamble by possessing a
concealable firearm, hoping that if he or she is arrested for being a felon in possession
that he or she can defend against that offense by having the former conviction set
aside.” Id. at 781.
There is nothing absurd or unjust or unreasonable about requiring a person who believes he has
been wrongly convicted of a felony to clear his status through the judicial process before being
allowed to possess a firearm. The UUW by a felon statute represents a considered and
deliberate decision to require that a prior felony conviction be vacated or expunged before a
firearm is possessed.
¶ 31 It is axiomatic that no judgment, including a judgment of conviction, is deemed vacated
until a court with reviewing authority has so declared. As with any conviction, a conviction is
treated as valid until the judicial process has declared otherwise by direct appeal or collateral
attack. Although Aguilar may provide a basis for vacating defendant’s prior 2002 AUUW
conviction, Aguilar did not automatically overturn that judgment of conviction. Thus, at the
time defendant committed the UUW by a felon offense, defendant had a judgment of
conviction that had not been vacated and that made it unlawful for him to possess firearms.
¶ 32 This case in particular highlights the importance of having the judgment of conviction
vacated before possessing a firearm. Although for purposes of this appeal, the State does not
dispute that defendant’s 2002 conviction is premised on an unconstitutional statute, the record
does not confirm defendant’s assertion. The indictment for the 2008 UUW by a felon offense
does not identify the specific nature of the 2002 predicate AUUW offense under which
defendant pleaded guilty. Rather, it alleges that defendant had a felony conviction for
“[AUUW] under case number 02CR-30903.” Furthermore, the records submitted by defendant
in his appendix to his supplemental appellate brief in support of his argument that his
conviction was unconstitutional fall outside the certified record of the proceedings. Even if
considered, they provide no more clarity.
¶ 33 The indictment in the 02CR 30903 case reflects six separate charges of AUUW based on
two separate guns, under various subsections of the statute, including the fact that defendant
was under 21 at the time he possessed the firearms and lacked a FOID card. The record further
indicates that defendant pleaded guilty in case No. 02CR 30903 to one count of AUUW, but
the record does not affirmatively reflect that defendant pleaded guilty under section
24-1.6(a)(1), (a)(3)(A), the only section held unconstitutional in Aguilar. The record does not
contain the plea colloquy or the factual basis for that plea. Thus, had defendant properly sought
to vacate his 2002 guilty plea before possessing a firearm, these issues could have been
adequately considered and resolved in an appropriate proceeding.
¶ 34 Lastly, we reject defendant’s undeveloped assertion that interpreting the UUW by a felon
statute in line with the State’s argument would lead to a violation of due process or would
violate second amendment rights. Statutes are presumed to be constitutional, and we have a
duty to uphold the constitutionality of a statute whenever reasonably possible. Mosley, 2015 IL
115872, ¶ 40. The party challenging the constitutionality of the statute has the burden to prove
-8-
its invalidity. Id. As stated in Lewis, with respect to due process, the legislature “could
rationally conclude that any felony conviction, even an allegedly invalid one, is a sufficient
basis on which to prohibit the possession of a firearm.” Lewis, 445 U.S. at 66. As explained,
nothing in the UUW by a felon statute prevents a defendant who believes his prior conviction
is invalid from seeking a remedy for the deprivation of a guaranteed right. The remedy is to
challenge the judgment of conviction and have the unlawful judgment of conviction set aside
before deciding to possess a firearm.
¶ 35 With respect to the second amendment, in its normal application, the UUW by a felon
statute is a presumptively lawful “longstanding prohibition[ ] on the possession of firearms.”
District of Columbia v. Heller, 554 U.S. 570, 626 (2008). In McDonald v. City of Chicago,
Illinois, 561 U.S. 742, 786 (2010) (quoting Heller, 554 U.S. at 626), the Court reiterated that
“[w]e made it clear in Heller that our holding did not cast doubt on such longstanding
regulatory measures as ‘prohibitions on the possession of firearms by felons.’ ” See also
Burns, 2015 IL 117387, ¶ 29 (indicating that the legislature can constitutionally prohibit felons
from carrying readily accessible firearms outside the home).
¶ 36 Nevertheless, defendant appears to mount an as-applied challenge, contending that it
would violate the second amendment to apply the UUW by a felon statute to felons whose
status derived from constitutionally protected conduct. We have previously stated that it would
be improper for this court to render a decision on an as-applied challenge where there has been
no evidentiary hearing and no findings of fact on that issue. Mosley, 2015 IL 115872, ¶ 47. In
any event, defendant has not shown that his conduct was entitled to second amendment
protections, which are held by “law-abiding, responsible citizens” for self-defense (Heller, 554
U.S. at 635), where he chose to possess a firearm, which he used to rob three victims at
gunpoint, knowing that he had not vacated his prior felony conviction.
¶ 37 In sum, defendant may seek to vacate his prior 2002 conviction for AUUW under the void
ab initio doctrine based on this court’s declaration in Aguilar. Nevertheless, even if successful,
that remedy would neither alter nor extinguish the requirement under section 24-1.1(a) that
defendant clear his felon status before obtaining a firearm. Accordingly, for all of the
foregoing reasons, defendant’s prior conviction properly served as proof of the predicate
felony conviction for UUW by a felon.
¶ 38 2. Cross-Relief
¶ 39 In his cross-appeal, defendant contends that the appellate court erred when it ruled that his
29-year concurrent sentences for the armed robberies need not be remanded for resentencing.
In the appellate court, defendant argued that his concurrent 29-year sentences for armed
robbery were excessive and that the appellate court should consider that without his prior
AUUW conviction he had only one prior felony conviction in his background.
¶ 40 Defendant now contends that the appellate court failed to consider that had the trial court
been aware that his 2002 AUUW conviction was unconstitutional, and that he had fewer
convictions, the trial court would have likely sentenced him to less than the concurrent 29-year
sentences for the armed robberies of the three victims. Accordingly, defendant asks this court
to either reduce his sentences from 29 years to the minimum available sentence of 21 years or
alternatively to remand for resentencing.
-9-
¶ 41 We reiterate that the constitutional invalidity of defendant’s 2002 AUUW conviction is not
confirmed by the record in this case. Nevertheless, even if it was constitutionally infirm, the
record adequately demonstrates that the weight placed on the 2002 AUUW conviction was not
significant and did not warrant a new sentencing hearing. Nor has defendant shown that the
one count of UUW by a felon that the appellate court vacated based on the one-act, one-crime
doctrine had any effect on his armed robbery sentence. People v. Payne, 98 Ill. 2d 45, 55
(1983) (resentencing unnecessary unless record indicates a vacated conviction had effect on
the other sentences).
¶ 42 In support of his argument, defendant relies on the trial court’s statement in sentencing; the
nature of the offense; the mitigation regarding defendant’s childhood, mental health problems,
and drug and alcohol addiction; and his rehabilitative potential. He also relies upon United
States v. Tucker, 404 U.S. 443 (1972). There, the federal district court expressly considered
two particular prior felony convictions in sentencing that were unconstitutional, and the
Supreme Court remanded for a new sentencing hearing. Id. at 447. In that case, the Court
believed that without the convictions, “the factual circumstances of the respondent’s
background would have appeared in a dramatically different light at the sentencing
proceeding.” Id. at 448.
¶ 43 Here, in sentencing defendant, the trial court recognized defendant’s difficult childhood,
his past drug and mental health issues, and his rehabilitative potential. The court specifically
noted that he “showed some insight,” in expressing remorse and taking responsibility for his
actions. The judge noted that “[i]f I could forget everything else, it would be great.
Unfortunately, you know, you come here with your history, your criminal history, you come
here with the facts of this case, all of which this Court has a responsibility to take into
consideration.” We disagree with defendant’s assertion that this case warrants a remand for a
new sentencing hearing.
¶ 44 With respect to his criminal history, the trial court did not point to any one prior conviction
but, rather, referenced generally his “criminal history” as a factor in sentencing. Defendant’s
criminal record is extensive. The record reveals that defendant not only violated the terms of
his probation for the 2002 AUUW offense, his probation was ultimately terminated
unsatisfactorily for that offense, and then he went on to continue to commit other crimes.
Defendant had a juvenile disposition for aggravated battery and convictions for battery,
resisting arrest, aggravated assault, criminal trespass to a vehicle, assault, theft, driving while
under the influence, and possession of a controlled substance with the intent to deliver. In
addition, the presentence investigation report revealed that defendant was a “three-star
universal” in the Conservative Vice Lords gang, which he joined at the age of 11. The State
explained that this title applies to the violent enforcer who is tasked with securing the gang’s
territory.
¶ 45 With respect to the nature of the armed robberies, the court considered that defendant
committed armed robberies against three victims during a single 24-hour period. During one of
the robberies, defendant held a gun to one victim’s neck, and after obtaining his wallet and cell
phone and the other victim’s cell phone, he returned, again holding the gun to the victim’s
neck, and demanded more money. Later that day, defendant grabbed another victim’s
shoulder, pushed him into a fence, and held a gun to his sternum. After obtaining only a few
dollars, a cell phone, and a wallet, defendant told the victim, “I could have shot you for that.”
- 10 -
The victim testified that the gun was at his chest throughout the robbery and that he was afraid
that defendant would shoot him.
¶ 46 Furthermore, armed robbery is a Class X offense punishable by not less than 6 years and
not more than 30 years’ imprisonment. 730 ILCS 5/5-4.5-25(a) (West 2008). The trial court
imposed a 14-year sentence on the armed robbery counts, to which the 15-year enhancement
was added because defendant used a firearm during the commission of the offenses. 720 ILCS
5/18-2(b) (West 2008). Thus, defendant’s concurrent sentences for committing armed
robberies against three victims were 16 years below the maximum sentences permissible for
those offenses. Based on this record, we conclude that a remand for resentencing on his armed
robbery convictions is not required.
¶ 47 CONCLUSION
¶ 48 We hold that under the UUW by a felon statute, defendant’s felon status at the time of the
offense properly served as sufficient proof of the predicate felony conviction. Additionally, we
reject defendant’s assertion that the trial court’s imposition of concurrent 29-year prison terms
for his armed robbery convictions requires a sentencing reduction or remand for a new
sentencing hearing. Accordingly, for all of the foregoing reasons, we affirm the judgment of
the appellate court in part and reverse in part.
¶ 49 Appellate court judgment affirmed in part and reversed in part.
¶ 50 Circuit court judgment affirmed in part and vacated in part.
¶ 51 JUSTICE KILBRIDE, concurring in part and dissenting in part:
¶ 52 The majority chooses to define the question in this case as “whether a prior conviction,
which is asserted to be based on a statute that has been subsequently declared facially
unconstitutional, may nevertheless serve as proof of the predicate felony conviction in
prosecuting the offense of UUW by a felon.” Supra ¶ 21. In light of this court’s longstanding
precedent on the void ab initio doctrine, however, the question is actually whether a conviction
for UUW by a felon may be predicated on a prior conviction for a felony that could never have
been validly established or prosecuted. The majority answers that question in the affirmative. I
respectfully dissent from that view.
¶ 53 When a statute is held facially unconstitutional, i.e., unconstitutional in all its applications
(see In re Rodney H., 223 Ill. 2d 510, 521 (2006)), 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); see also
People v. Gersch, 135 Ill. 2d 384, 390 (1990) (“ ‘[w]hen a statute is held unconstitutional in its
entirety, it is void ab initio’ ” (quoting People v. Manuel, 94 Ill. 2d 242, 244-45 (1983)));
Perlstein v. Wolk, 218 Ill. 2d 448, 455 (2006) (an unconstitutional statute is void “from the
beginning”). The void ab initio doctrine is based on the theory that “ ‘[a]n unconstitutional act
is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no
office; it is, in legal contemplation, as inoperative as though it had never been passed.’ ”
(Internal quotation marks omitted.) People v. Blair, 2013 IL 114122, ¶ 28 (quoting Perlstein,
218 Ill. 2d at 454). These principles have long been strictly applied in our criminal
jurisprudence. Perlstein, 218 Ill. 2d at 466-67; Gersch, 135 Ill. 2d at 396-401.
- 11 -
¶ 54 As the majority notes, “[t]he UUW by a felon statute makes it unlawful for a person to
knowingly possess a firearm ‘if the person has been convicted of a felony under the laws of this
State or any other jurisdiction.’ ” Supra ¶ 14 (quoting 720 ILCS 5/24-1.1(a) (West 2008)). The
majority then implies, without concluding, that defendant’s stipulation of his felon status
“precluded [him] from attacking or contradicting [that] stipulation” (supra ¶ 15 (citing People
v. Woods, 214 Ill. 2d 455, 469 (2005))). Woods is inapt because the defendant there challenged
only the evidence of the State’s chain of custody after having entered into a trial stipulation as
to the narcotics found. Woods, 214 Ill. 2d at 462-66; supra ¶ 15. Constitutional questions were
never at issue. Finally, the majority addresses defendant’s substantive claim under the void
ab initio doctrine. It relies on two cases purportedly addressing “a similar question,” Lewis v.
United States, 445 U.S. 55 (1980), and United States v. Wallace, 280 F.3d 781, 784 n.1 (7th
Cir. 2002). Supra ¶¶ 22-34. With Lewis and Wallace, the majority misses the mark.
¶ 55 In Lewis, the United States Supreme Court considered whether a federal
felon-in-possession conviction could be based on a prior felony conviction obtained without
counsel or a valid waiver of counsel, in violation of the sixth amendment to the United States
Constitution. It is worth noting that the Supreme Court never used the term “void ab initio” in
its discussion. The absence of any mention of that term is understandable, however, because
the void ab initio doctrine was inapplicable; no statute was held facially unconstitutional in
Lewis. The Court ultimately concluded that the defendant could be convicted of unlawfully
possessing a gun due to his status as a felon even when his prior felony conviction violated his
sixth amendment rights. Lewis, 445 U.S. at 67.
¶ 56 In this court, a sixth amendment violation would not have supported a void ab initio
finding either. In Lewis, the defendant’s predicate felony remained a valid offense, and a
properly tried defendant could still be convicted on that charge. The opposite is true in this
case. Contrary to the majority’s description, the issues in Lewis and this case are “similar” only
at the most superficial level.
¶ 57 While at first blush this case may appear to be similar to Lewis because both involve
defendants’ challenges to the use of unconstitutional prior felony convictions as predicate
felonies in later felon-in-possession prosecutions, that illusion fades rapidly in the light of
serious legal scrutiny. In Lewis, the constitutional error occurred as part of the trial process; the
predicate offense always remained valid. Here, in stark contrast to Lewis, this court invalidated
the predicate offense in its entirety in Aguilar, 2013 IL 112116, ¶ 22, concluding it was a facial
violation of “the right to keep and bear arms, as guaranteed by the second amendment to the
United States Constitution.”
¶ 58 As the majority explains, under our void ab initio doctrine, the invalidated AUUW statute
was rendered
“void ‘ “from the beginning.” ’ Perlstein v. Wolk, 218 Ill. 2d 448, 455 (2006) (quoting
Black’s Law Dictionary 1604 (8th ed. 2004)); Hill v. Cowan, 202 Ill. 2d 151, 156
(2002) (limiting the doctrine to facially unconstitutional statutes). A declaration that a
statute is void ab initio means that the statute was constitutionally infirm from the
moment of its enactment and, therefore, is unenforceable. People v. Blair, 2013 IL
114122, ¶ 30.” Supra ¶ 17.
Thus, after our decision in Aguilar, as clarified in People v. Burns, 2015 IL 117387, the offense
used as the predicate felony for the UUW by a felon charge in this case “was constitutionally
- 12 -
infirm” when it was enacted and must be treated as if its underlying statute was never
operative.
¶ 59 In addition, the majority relies on the Seventh Circuit Court of Appeals decision in
Wallace. The Seventh Circuit described Wallace’s conviction for unlawful use of a weapon as
being “vacated as void ab initio when the Supreme Court of Illinois ruled that the Act that had
transformed the unlawful use of weapon (‘UUW’) charge from a misdemeanor to a felony
violated the Illinois Constitution.” Wallace, 280 F.3d at 782-83 (citing People v. Cervantes,
189 Ill. 2d 80 (1999)). The constitutional violation in Cervantes, however, was of the Illinois
Constitution’s single-subject clause (Ill. Const. 1970, art. IV, § 8(d)). Cervantes, 189 Ill. 2d at
93-96. That violation was based on the constitutionally invalid structure of the public act and
did not independently consider the constitutional validity of any one provision within that
public act. Cervantes did not declare the very heart of a particular provision facially
unconstitutional, as did our holding in Aguilar.
¶ 60 In fact, a close reading of Cervantes reveals it, like Lewis, never used the term “void
ab initio,” underscoring its inapplicability. Moreover, the circuit court in Wallace corrected the
defendant’s improper felony conviction by entering “a misdemeanor conviction nunc pro
tunc” for the offense. Wallace, 280 F.3d at 783. The fact that Wallace could still be convicted
of the misdemeanor form of that offense at all after this court’s decision in Cervantes indicates
that this court did not declare the criminal statute void ab initio. If we had, the entire offense
would have ceased to exist, and Wallace’s conviction would have been vacated outright. Thus,
respectfully, the Seventh Circuit mischaracterized the impact of this court’s decision in
Cervantes, rendering Wallace inapposite here.
¶ 61 This court has also held that the effect of the void ab initio doctrine is necessarily
retroactive, applying universally to unwind every conviction ever obtained under section
24-1.6(a)(1), (a)(3)(A) of the AUUW statute because “ ‘[t]o hold that a judicial decision that
declares a statute unconstitutional is not retroactive would forever prevent those injured under
the unconstitutional legislative act from receiving a remedy for the deprivation of a guaranteed
right. This would clearly offend all sense of due process.’ ” Supra ¶ 18 (quoting Gersch, 135
Ill. 2d at 397-98). See also People v. Thompson, 2015 IL 118151 (permitting facial
constitutional challenges to be raised even collaterally in petitions filed pursuant to section
2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010))). Based on the need
to vindicate a criminal “defendant’s constitutionally guaranteed rights,” we have mandated
“strict application” of the void ab initio doctrine in criminal cases despite its potentially
far-reaching consequences. Perlstein, 218 Ill. 2d at 466-67. Because of its fundamental
constitutional flaw, the relevant portion of the AUUW statute is utterly unenforceable.
Consequently, no one may be, or has ever been, validly convicted under that subsection.
¶ 62 Despite openly acknowledging the critical role the void ab initio doctrine plays in our state
jurisprudence, the majority nevertheless concludes that defendants may obtain retroactive
relief from a criminal statute declared to be facially unconstitutional only by first jumping
through prescribed procedural hoops. The majority requires defendants not only to request, but
also to obtain, official vacatur of their convictions for their non-offenses prior to engaging in
constitutionally protected conduct, including expression of their fundamental second
amendment rights, or face yet another felony conviction and sentence.
- 13 -
¶ 63 This court has expressly recognized the fundamental nature of an individual’s right to keep
and bear arms. Coram v. State of Illinois, 2013 IL 113867, ¶ 49 (quoting McDonald v. City of
Chicago, Illinois, 561 U.S. 742, 778 (2010)); Aguilar, 2013 IL 112116, ¶ 17 (quoting
McDonald, 561 U.S. at 749-50). I fail to see how placing these additional burdens on
defendants who have already been harmed by suffering felony prosecutions for offenses so
grievously flawed that they cannot be validly applied in even a single instance comports with
any “sense of due process.” See supra ¶ 18 (quoting Gersch, 135 Ill. 2d at 397-98 (declaring
that the conclusion that the unconstitutionality of a statute is not retroactive “ ‘would clearly
offend all sense of due process’ ”)).
¶ 64 Moreover, the majority’s position raises more practical questions, and those answers
further heighten the likelihood of the State again meting out injustice to defendants who have
already been the unwitting victims of misplaced criminal prosecutions and, undoubtedly in
many cases, years lost in prison. These questions include: how and, perhaps more importantly,
when would these individuals discover they are the victims of an inherently unconstitutional
legislative act? What, if any, mechanism is in place to notify those “convicted” of criminal
statutes later determined to be so profoundly flawed that each and every prosecution ever
conducted is invalid? I am aware of none. Virtually the only time individuals “convicted”
under any criminal statute later declared void ab initio would realistically become aware of
their plight would be after being charged with another criminal offense.
¶ 65 In the majority’s view, however, their fate has already been sealed at that point. According
to the majority, they cannot simply, and logically, rely on the utter invalidity of their purported
prior offense to provide a remedy. See supra ¶¶ 29-32. And why not? Merely because they
acted too late to seek official vacatur of convictions that they had no reason to even suspect
were fatally and irreparably flawed. Once again, I fail to see how the majority’s approach
comports with any “sense of due process.” See supra ¶ 18 (declaring that a decision holding
the unconstitutionality of a statute is not retroactive “ ‘would clearly offend all sense of due
process’ ” (quoting Gersch, 135 Ill. 2d at 397-98)).
¶ 66 The majority also cites the purpose of the UUW by a felon statute: “to protect the public
from persons who are potentially irresponsible and dangerous.” Supra ¶ 29. But because not a
single AUUW conviction ever obtained under section 24-1.6(a)(1), (a)(3)(A) can properly
stand after Aguilar and Burns, those convicted under that provision cannot rightfully be
lumped together with defendants whose prior convictions justify deeming them presumptively
“irresponsible and dangerous.” The contrary conclusion would effectively mean the mere
exercise of citizens’ fundamental second amendment rights renders them “irresponsible and
dangerous,” a clearly erroneous result that contradicts our plain holding in Aguilar and its
progeny. And if, as in this case, a defendant has other prior felony convictions befitting the use
of that description, the State may be entitled to refile charges of UUW by a felon based on the
alternative prior conviction. Thus, the public can be protected without unnecessarily trampling
citizens’ second amendment rights.
¶ 67 While the majority makes much of a defendant’s “felon status” (supra ¶¶ 24-30), its view
places form over constitutional substance and is fundamentally inconsistent with this court’s
historical explanation of its strict application of the void ab initio doctrine in criminal cases. At
the time defendant received his 2002 AUUW felony conviction, the parties and trial court all
labored under the mistaken, though entirely understandable, belief that his conviction made
- 14 -
him a felon. Only after this court examined that AUUW provision in Aguilar and determined it
could not be validly applied under any set of circumstances did that error become self-evident.
If this court truly means what it says about the void ab initio doctrine, no defendant can
properly be prosecuted for violating the onerous restrictions imposed on the constitutional
rights of those officially bearing “felon status,” if that “felony” effectively never existed. The
injustice resulting from subjecting those defendants to further criminal prosecutions based on
convictions for an offense that could never have been validly charged in the first place simply
because they have not already officially shed their status as a “felon” is manifest.
¶ 68 In its analysis, the majority opinion also shifts the focus from the plain language of the
UUW by a felon statute to the defendant’s “status” as a felon. Under the express language of
the UUW by a felon statute, however, the State must prove that a defendant knowingly
possessed a firearm while “convicted of a felony under the laws of this State.” 720 ILCS
5/24-1.1(a) (West 2008). It does not require proof of the defendant’s “felon status.” The
AUUW conviction specified in the charging instrument for the State’s UUW by a felon count
could not be established here because, under this court’s void ab initio doctrine, the underlying
statute was invalid from the day of its enactment. People v. Mosley, 2015 IL 115872, ¶ 55;
Blair, 2013 IL 114122, ¶ 30.
¶ 69 These circumstances create a situation somewhat akin to mutual mistake. At the time of the
pre-Aguilar UUW by a felon proceedings, both the State and defendant believed the prior
AUUW constituted a valid felony conviction. Only after this court’s holding in Aguilar did the
error come to light. The impact of that holding was that, without exception, every AUUW
conviction ever entered under that section was immediately invalid and unenforceable. See
Thompson, 2015 IL 118151, ¶ 32; People v. Blair, 2013 IL 114122, ¶ 30. After all, what is a
conviction if not the enforcement of a criminal statute? Logic and fundamental fairness
mandate that no person can be constitutionally convicted of an offense that could never be
validly created or prosecuted. It is a legal impossibility. See People v. Hayes, 365 Ill. 318, 322
(1937) (concluding embezzlement was a physical and legal impossibility when the paper
warrants at issue were void). The application of these bedrock principles precludes defendant
from being convicted of UUW by a felon based on his facially unconstitutional 2002 AUUW
“conviction.”
¶ 70 The majority’s contrary holding seriously undermines this court’s void ab initio doctrine,
effectively making convictions for offenses later declared facially unconstitutional merely
voidable. At best, the majority appears to be manufacturing an undefined exception to that
doctrine. That exception effectively creates a grace period for unconstitutional legislation that
could last for over a decade, as in this case, and affect vast numbers of people. During that
time, our citizens’ most basic constitutional rights, including the fundamental right to keep and
bear firearms, may be violated with impunity. The cost to the citizens of Illinois is simply too
high. See People v. Krueger, 175 Ill. 2d 60, 75 (1996) (expressing similar sentiments in the
context of this state’s exclusionary rule).
¶ 71 At a minimum, this court’s diversion from its longstanding “strict application” of the void
ab initio doctrine in criminal cases (Perlstein, 218 Ill. 2d at 466-67) should be done expressly
and with special justification for its departure from stare decisis. People v. Colon, 225 Ill. 2d
125, 146 (2007). Instead, the majority opinion incongruously asserts that it “continue[s] to
reaffirm the principle that the void ab initio doctrine renders a facially unconstitutional statute
- 15 -
unenforceable and renders a conviction under that facially unconstitutional statute subject to
vacatur.” Supra ¶ 20.
¶ 72 Imposing the prerequisite of a prior official vacatur of a conviction for a crime that could
never be validly prosecuted before an individual is absolved of the full criminal consequences
of his “felony conviction” is manifestly unjust and creates an absurd result. That is particularly
true when, through no fault of his own, the individual is almost certainly never going to
become aware of the opportunity to have his conviction vacated until after being held on
another charge. Undoubtedly, some, if not many, of these individuals will have no prior
offenses other than the one declared to be facially unconstitutional, yet all will be subject to
additional charges, punishments, and lifelong restrictions on their basic rights under the
majority’s view. Rather than support the interests of justice, the majority “would forever
prevent those injured under the unconstitutional legislative act from receiving a remedy for the
deprivation of a guaranteed right. This would clearly offend all sense of due process.” Gersch,
135 Ill. 2d at 397-98.
¶ 73 As we clearly explained in Gersch, “where a statute is violative of constitutional
guarantees, we have a duty not only to declare such a legislative act void, but also to correct the
wrongs wrought through such an act by holding our decision retroactive.” Gersch, 135 Ill. 2d
at 399. For these reasons, I must dissent from the portion of the majority opinion upholding
defendant’s conviction for UUW by a felon premised on a prior felony that could never be
validly prosecuted. I agree, however, with the majority’s disposition of defendant’s
cross-appeal and concur in that portion of the opinion.
¶ 74 JUSTICE BURKE joins in this partial concurrence, partial dissent.
- 16 -