People v. Mosley

2015 IL 115872
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 115872)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DONTA MOSLEY,
Appellee.
Opinion filed February 20, 2015.
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
***
(C) the person possessing the firearm has not been issued a
currently valid Firearm Owner’s Identification Card; 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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(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
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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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 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?
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[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, 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
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.
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
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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.
¶ 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
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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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
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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 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
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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 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
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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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).
¶ 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:
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AUUW Subsections Under Which Defendant Was Charged/Convicted
720 ILCS 5/24-1.6: (a)(1)—Person (a)(2)—Public
Or Vehicle Way
(a)(3)(A)—Uncased, Loaded
count II count V
Firearm
(a)(3)(C)—No FOID Card count III count VI
(a)(3)(I)—Under 21 And Not
Engaged In Lawful Hunting count IV count VII
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
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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
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
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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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.
¶ 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
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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
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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:
“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
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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 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
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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.
¶ 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
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“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.
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¶ 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
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
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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.
¶ 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
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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
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“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 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,
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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)).
¶ 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
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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.
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¶ 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), (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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