People v. Green

Illinois Official Reports
Appellate Court
People v. Green, 2014 IL App (4th) 120454Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DION GREEN, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-12-0454
Filed January 30, 2014
Rehearing denied March 5, 2014
Held Even if one of defendant’s two underlying felony convictions was
(Note: This syllabus found unconstitutional in Aguilar, his negotiated guilty plea leading to
constitutes no part of the his conviction for being an armed habitual criminal was not rendered
opinion of the court but void, since defendant had sufficient other felony convictions to satisfy
has been prepared by the the requirements of the armed habitual criminal statute.
Reporter of Decisions
for the convenience of
the reader.)
Decision Under Appeal from the Circuit Court of Sangamon County, No. 11-CF-459;
Review the Hon. John Schmidt, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Karen Munoz, and Amber Corrigan, all of State
Appeal Appellate Defender’s Office, of Springfield, for appellant.
John Milhiser, State’s Attorney, of Springfield (Patrick Delfino,
David J. Robinson, and Luke McNeill, all of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE POPE delivered the judgment of the court, with opinion.
Justices Holder White and Steigmann concurred in the judgment and
opinion.
OPINION
¶1 In August 2011, pursuant to a fully negotiated plea agreement, defendant pleaded guilty to
armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2010)) in exchange for the State’s
agreement to dismiss two additional charges and to recommend a 10-year prison sentence.
¶2 One of the two underlying felony offenses the State used to satisfy the requirements of the
armed habitual criminal statute was a prior conviction for aggravated unlawful use of a weapon
(720 ILCS 5/24-1.6 (West 2000)). In September 2013, our supreme court held section
24-1.6(a)(1), (a)(3)(A) of the aggravated unlawful use of a weapon statute unconstitutional in
People v. Aguilar, 2013 IL 112116. In December 2013, our supreme court modified its earlier
opinion and emphasized its unconstitutionality finding is limited to the Class 4 form of the
statute.
¶3 On appeal, defendant contends his fully negotiated guilty plea leading to a conviction for
armed habitual criminal is void because one of the underlying offenses used to satisfy the
armed habitual criminal statute, i.e., aggravated unlawful use of a weapon, was found
unconstitutional by our supreme court.
¶4 We affirm.
¶5 I. BACKGROUND
¶6 In June 2011, the State charged defendant, Dion Green, by information with armed
habitual criminal, a Class X felony (count I) (720 ILCS 5/24-1.7(a), (b) (West 2010));
aggravated assault, a Class 4 felony (count II) (720 ILCS 5/12-2(a)(6), (b) (West 2010)); and
aggravated unlawful use of a weapon, a Class 2 felony (count III) (720 ILCS 5/24-1.6(a)(1),
(a)(3)(C), (d) (West 2010)).
¶7 In August 2011, pursuant to a fully negotiated plea agreement, defendant pleaded guilty to
armed habitual criminal (count I) in exchange for a 10-year prison sentence and the State’s
agreement to dismiss counts II and III. Prior to accepting the plea agreement, the trial court
admonished defendant the offense of armed habitual criminal was a Class X felony, and
defendant would be required to serve 85% of his sentence, followed by three years of
mandatory supervised release (MSR). The factual basis given by the State for the offense, and
stipulated to by defendant, was defendant was observed by police officers in possession of a
silver handgun. Following a short foot pursuit, defendant was apprehended. Although he no
longer had the firearm on his person, police found the handgun along the path defendant ran.
-2-
The State informed the court defendant had previous convictions for aggravated unlawful use
of a weapon, a Class 2 felony, and manufacture and delivery of a controlled substance, a
Class 1 felony; thus defendant satisfied the requirements of the armed habitual criminal
statute. Pursuant to the agreement, the court sentenced defendant to 10 years’ imprisonment for
armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2010)). Defendant took no direct appeal.
¶8 In January 2012, defendant filed a postconviction petition asserting (1) ineffective
assistance of trial counsel because he did not have three prior Class X felony convictions
qualifying him for sentencing under the armed habitual criminal statute (720 ILCS 5/24-1.7(a)
(West 2010)) and, thus, was not an armed habitual criminal; and (2) the three-year MSR term
violated double jeopardy and due process. In April 2012, the trial court dismissed defendant’s
petition, finding it frivolous and without constitutional merit. In so concluding, the court noted
contrary to defendant’s assertion, the armed habitual criminal statute requires only two certain
felony convictions rather than three. According to the court, defendant’s convictions for
aggravated unlawful use of a weapon and delivery of a controlled substance satisfied the armed
habitual criminal statute. Further, the court found defendant’s sentence did not violate his due
process and double jeopardy rights because defendant agreed to the sentence. Defendant
appealed.
¶9 In May 2012, the office of the State Appellate Defender (OSAD) was appointed to
represent defendant on appeal. In June 2013, OSAD filed a motion to withdraw as counsel
pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). Defendant filed additional points and
authorities and the State responded. On September 16, 2013, OSAD filed a motion to withdraw
its Finley motion following our supreme court’s decision in Aguilar, 2013 IL 112116. This
court allowed OSAD’s motion. In October 2013, OSAD and the State both filed additional
briefs. On December 19, 2013, after the issue in this case had been briefed by the parties, our
supreme court issued a modified opinion upon denial of rehearing in Aguilar that limited its
prior holding.
¶ 10 II. ANALYSIS
¶ 11 On appeal, the issue before us is whether our supreme court’s recent decision in Aguilar
renders defendant’s conviction for armed habitual criminal void. Defendant contends his fully
negotiated guilty plea leading to a conviction for armed habitual criminal is void because one
of the underlying offenses used to satisfy the armed habitual criminal statute, i.e., aggravated
unlawful use of a weapon, was found unconstitutional by our supreme court. The State
disagrees and asserts the fully negotiated plea agreement is valid because both the State and
defendant received the benefit of the bargain and defendant was not prejudiced by the Aguilar
decision. We agree with the State and affirm.
¶ 12 In Aguilar, our supreme court concluded the Class 4 form of section 24-1.6(a)(1),
(a)(3)(A), (d) of the aggravated unlawful use of a weapon statute is unconstitutional because it
violates the second amendment’s guarantee of the right to keep and bear arms. Aguilar, 2013
IL 112116, ¶ 22. That section provided as follows:
-3-
“(a) A person commits the offense of aggravated unlawful use of a weapon when he
or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on or
about his or her person except when on his or her land or in his or her abode, legal
dwelling, or fixed place of business, or on the land or in the legal dwelling of
another person as an invitee with that person’s permission, any pistol, revolver,
stun gun or taser or other firearm; [and]
***
(3) One of the following factors is present:
(A) the firearm possessed was uncased, loaded and immediately accessible
at the time of the offense[.]” 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010).
¶ 13 In this case, it is unclear from the Cook County sentencing judgment whether defendant
was previously convicted under the now-unconstitutional section of the aggravated unlawful
use of a weapon statute because the sentencing judgment simply lists the applicable statute as
“720 [ILCS] 5/24-1.6(A)(1)(3).” Count VIII of the 19-count indictment charged defendant
with violating section 24-1.6(a)(1), (a)(3)(A) of the unlawful use of a weapon statute (720
ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2000))–the Class 4 form of the section of the statute
found unconstitutional in Aguilar. However, count IX charged defendant with violating
section 24-1.6(a)(1), (a)(3)(C) of the aggravated unlawful use of a weapon statute (720 ILCS
5/24-1.6(a)(1), (a)(3)(C) (West 2000)), which deals with the possession of a firearm without a
valid firearm owner’s identification card. Without the corresponding “A” or “C” on the
sentencing judgment, or if “A,” the class of felony, this court is unable to determine whether
defendant was convicted under the unconstitutional section of the statute. We note the
description of the offense, “AGG UUW/VEHICLE/PREV CONVICTION” does not assist in
our determination, nor are the “count” numbers associated with each offense on the mittimus
correct. For example, the mittimus reflects count IV is the aggravated unlawful use of a
weapon charge, but count IV charged defendant with aggravated battery with a firearm.
According to the factual basis for the plea agreement provided by the State–and stipulated to
by defense counsel–defendant’s previous conviction for aggravated unlawful use of a weapon
was a Class 2 felony. Thus, pursuant to the stipulated factual basis, following our supreme
court’s modified opinion, Aguilar does not apply.
¶ 14 Even if this court were to conclude defendant’s conviction for aggravated unlawful use of a
weapon fell under the Class 4 form of the section of the statute ruled unconstitutional in
Aguilar (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010)), we would not find his fully
negotiated plea agreement invalid or his conviction for armed habitual criminal void. Here, the
record reflects, in addition to defendant’s conviction for aggravated unlawful use of a weapon,
he was also convicted of unlawful use of a weapon by a felon (720 ILCS 5/24-1.1 (West 2000))
and aggravated battery with great bodily harm (720 ILCS 5/12-4 (West 2000)) in the same
proceedings. Further, defense counsel stipulated at the plea-agreement hearing defendant had a
prior conviction for manufacture and delivery of a controlled substance, a Class 1 felony. The
armed habitual criminal statute provides as follows:
-4-
“(a) A person commits the offense of being an armed habitual criminal if he or she
receives, sells, possesses, or transfers any firearm after having been convicted a total of
2 or more times of any combination of the following offenses:
(1) a forcible felony as defined in Section 2-8 of this Code;
(2) unlawful use of a weapon by a felon ***; or
(3) any violation of the Illinois Controlled Substances Act or the Cannabis
Control Act that is punishable as a Class 3 felony or higher.” 720 ILCS 5/24-1.7
(West 2010).
A “[f]orcible felony” includes, among other offenses, “aggravated battery resulting in great
bodily harm or permanent disability or disfigurement and any other felony which involves the
use or threat of physical force or violence against any individual.” 720 ILCS 5/2-8 (West
2010). Here, defendant clearly has at least two prior felonies–other than the conviction for
aggravated unlawful use of a weapon–that would satisfy the armed habitual criminal statute.
¶ 15 Our supreme court has recognized the plea-bargaining process is vital to our criminal
justice system as it encourages “prompt disposition of cases, preserves finite judicial and
financial resources, and allows the State to focus its prosecutorial efforts where they are most
needed.” People v. Donelson, 2013 IL 113603, ¶ 18. Plea agreements are enforceable contracts
and, when appropriate, courts will apply contract law principles to plea agreements. Id. In this
case, the State dropped two pending felony charges against defendant and agreed to a 10-year
prison sentence in exchange for his guilty plea to armed habitual criminal. Although the
Aguilar decision may have rendered defendant’s conviction for aggravated unlawful use of a
weapon unconstitutional–which is not demonstrated by the record before us–defendant had at
least two other qualifying felony convictions that satisfied the armed habitual criminal statute.
Defendant received the benefit of his bargain (two additional charges were dropped and a
sentence agreed to) and he was not prejudiced (as the prosecutor could have listed another
qualifying felony conviction and he received the benefit of his bargain). His fully negotiated
plea agreement is not void and we decline to remand so defendant may withdraw his guilty
plea.
¶ 16 III. CONCLUSION
¶ 17 For the reasons stated, we affirm. As part of our judgment, we award the State its $50
statutory assessment against defendant as costs of this appeal.
¶ 18 Affirmed.
-5-