Opinion
No. 1-12-0314
06-11-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDRE BELL, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 09 CR 9979
Honorable
Thomas M. Davy,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Justices Fitzgerald Smith and Lavin concurred in the judgment.
ORDER
¶ 1 Held: Certain portions of the aggravated unlawful use of a weapon statute have not been held unconstitutional and defendant's conviction thereunder is valid. ¶ 2 Following a bench trial, defendant Andre Bell was convicted of aggravated unlawful use of a weapon (AUUW) and sentenced to two years' probation. On appeal, defendant contends that the AUUW statute (720 ILCS 5/24-1.6 (West 2008)) "under which he was convicted unconstitutionally infringes on an individual's right to bear arms for his own defense and [his] convictions must be reversed." U.S. Const. amend. II. Alternatively, he contends that we should vacate two of his three convictions for AUUW as redundant because all three convictions are based on the same physical act of possessing a firearm. For the reasons stated below, we reverse in part, affirm in part, and remand for resentencing. ¶ 3 Defendant was charged with a controlled substance offense and six counts of AUUW. He was found guilty of three of the AUUW charges which are the subject of this appeal. They are Count 2: "in that he knowingly carried on or about his person a firearm, at a time when he was not on his own land or in his own abode or fixed place of business and the firearm possessed was uncased, loaded and immediately accessible at the time of the offense in violation of Chapter 720 Act 5 Section 24-1.6(a) (1)/ (3)(a)(sic.) of the Illinois Compiled Statutes 1992 as amended" and, Count 4 "in that he knowingly carried in any vehicle a firearm at a time when he was not on his own land or in his own abode or fixed place of business and the firearm possessed was uncased, loaded and immediately accessible at the time of the offense in violation of Chapter 720 Act 5 Section 24-1.6(a) (1)/ (3)(a)(sic.) of the Illinois Compiled Statutes 1992 as amended" and, Count 6, "he knowingly possessed on or about his person a firearm, upon a public street, to wit: South Brennan, within the corporate limits of a city, to wit: the City of Chicago, at a time when he was not on his own land or in his own abode or fixed place of business and when he was not an invitee thereon for the purpose of display of such weapon or lawful commerce in weapons, and the firearm possessed was uncased, loaded and immediately accessible at the time of the offense, in violation of Chapter 720 Act 5 Section 24-1.6(a) (2)/ (3) (a)(sic.) of the Illinois Compiled Statutes 1992 as amended." ¶ 4 At trial, the evidence was that on May 6, 2009, when police stopped defendant's vehicle for a traffic offense, three officers saw him exit his car and put a gun into his waistband. Defendant fled on foot, ran into a random house without the owner's permission and a pursuing officer testified that while he was chasing the defendant in the house he saw defendant discard the gun and a "clear object" on the third floor. A gun and a bag containing cannabis and narcotics were later found in the same area. The gun was identified as a Taurus arms Model PT 145 Pro, two tone semiautomatic handgun. It had in it a 10 magazine clip with 9 live rounds. On this evidence, the court found defendant not guilty of the controlled substance charge and granted the defendant's motion for a directed finding on three counts of AUUW alleging that he did not have a valid FOID because, inexplicably, there was no evidence presented at trial concerning whether he had a valid FOID (Count 3, 720 ILCS 5/24-1.6(a)(1)/ (3)(c)(sic.) [carrying loaded, uncased and accessible firearm on his person without a valid FOID]; Count 5, 720 ILCS 5/24-1.6(a)(1)/ (3)(c)(sic.) [carried ***in any vehicle without a valid FOID card], and Count 7, 720 ILCS 5/24-1.6(a)(2) /(3)(c)(sic.) [possessed on or about his person upon a public street ***without a valid VOID]. (West 2008)). Although there was evidence at trial that he ran into another person's home without that person's permission, he was not charged by information with criminal trespass to residence [720 ILCS 5.0/19-4-A-1] although that offense is on the arrest report. ¶5 The court found him guilty of the three remaining gun counts. That is, that he knowingly carried a loaded, uncased and immediately accessible firearm while not on his land or in his abode, legal dwelling or fixed place of business (720 ILCS 5/24-1.6(a)(1)/ (3)(A) (West 2008)); that he was carrying a firearm in a vehicle (720 ILCS 5/24-1.6(a)(1)/ (3)(A) (West 2008); and that he was carrying a firearm on a public street (720 ILCS 5/24-1.6(a)(2) (West 2008). ¶6 It is the conviction for carrying a firearm on a public street, 720 ILCS 5/24-1.6(a)(2) that is the main problem here. ¶ 7 The pre-sentencing investigation - accepted by the parties without correction - showed that defendant has a prior felony conviction for a controlled substance offense, for which he received and satisfactorily completed two years' probation. However, the court noted that because of the satisfactory completion of "410 probation *** it would not even be a conviction." See 720 ILCS 570/410(f), (g) (West 2008) (satisfactory completion of first-offender probation for minor controlled substance offenses dismisses the case so that it "is not a conviction *** for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.") The court stated that it was sentencing defendant on a Class 4 felony. Following arguments in aggravation and mitigation, the court sentenced him to two years of probation. The written orders imposing probation and assessing fines and fees refer to defendant's offense as "Agg. UUW" without further specificity as to the counts or statutes on which he was found guilty. We note that this sort of incomplete documentation is inaccurate and is problematic in some cases. Here, however, the trial court's oral pronouncement made it clear that he was found guilty of counts 2, 4 and 6. This appeal timely followed. ¶ 8 On appeal, defendant primarily contends that the AUUW statute infringes upon his constitutional right to keep and bear arms. ¶ 9 At the time of defendant's offense, the UUW statute prohibited a person from carrying or concealing on or about his person, or in any vehicle, a firearm except when on his land or in his abode or fixed place of business. 720 ILCS 5/24-1(a)(4) (West 2008). ¶10 Also at that time, the AUUW statute prohibited the same with any of various additional factors.
"720/5.24-1.6 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; or 5(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, 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), (2), and (3)(A) (West 2008). ¶ 11 The United States Court of Appeals for the Seventh Circuit recently found the UUW and AUUW statutes unconstitutional. Moore v. Madigan, 702 F. 3d 933 (7th Cir. 2012). The United States Supreme Court has found that the Second Amendment creates a personal right, binding upon the States through the Fourteenth Amendment (U.S. Const., amend. XIV, § 1), "to keep and bear arms for lawful purposes, most notably for self-defense within the home." McDonald v. City of Chicago, 561 U.S. --, 130 S. Ct. 3020, 3044 (2010), citing District of Columbia v. Heller, 554 U.S. 570 (2008). The Seventh Circuit held in Moore v. Madigan (7th Cir.2012) that the "interest in self protection is as great outside as inside the home" and found that Illinois' UUW and AUUW statutes create a "uniquely sweeping ban," and remanded the case to the federal district court for declarations of unconstitutionality and injunctive relief. Moore v. Madigan, 702 F. 3d at 941. The Seventh Circuit stayed its mandate "to allow the Illinois legislature to 6 craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public." Id. The General Assembly has since amended the UUW and AUUW statutes pursuant to Moore v. Madigan (7th Circ. 2012) Pub. Act 98-0063 (eff. July 9, 2013). We note that the language of the Federal Appeals Court in Moore v. Madigan (Id.) was sweeping, "The Supreme Court has decided that the [2nd] amendment confers a right to bear arms for self-defense, which is as important outside the home as inside***The Supreme Court's interpretation of the Second Amendment therefore compels us to reverse the decisions of the two cases before us and remand them to their respective district courts for the entry of declarations of unconstitutionality and permanent injunctions." Both of the two underlying federal cases specifically challenged 720 ILCS 5/24-1.6(a)(2)[carrying weapon on the public way]. ¶ 12 In People v. Stanberry, 47 Ill. 2d 541,545 (1971) (overruled in part on other grounds), our supreme court held that "decisions of the lower Federal Courts can be held to be no more than persuasive and certainly not binding on State Courts." See also People v. Rendak, 2011 IL App (1st) 082093 ¶18 ("While we acknowledge that federal court decisions are not binding upon this court, such decisions can serve as persuasive authority."). ¶ 13 However, in People v. Aguilar, 2013 IL 112116, our supreme court recently decided to follow Moore v. Madigan (7th Cir. 2012) and held that "on its face, the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) violates the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution." Aguilar, 2013 IL 112116, ¶ 22. 7 "Of course, in concluding that the second amendment protects the right to possess and use a firearm for self-defense outside the home, we are in no way saying that such a right is unlimited or is not subject to meaningful regulation. [Citation.] That said, we cannot escape the reality that, in this case, we are dealing not with a reasonable regulation but with a comprehensive ban. Again, in the form presently before us, the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) categorically prohibits the possession and use of an operable firearm for self-defense outside the home. In other words, the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) amounts to a wholesale statutory ban on the exercise of a personal right that is specifically named in and guaranteed by the United States Constitution, as construed by the United States Supreme Court. In no other context would we permit this, and we will not permit it here either." Id., ¶ 21. The Aguilar court also affirmed as constitutional a conviction for possessing a concealable firearm while under 18 years of age (720 ILCS 5/24-3.1(a)(1) (West 2008)), finding that the constitutional right to keep and bear arms does not extend to minors. Id., ¶¶ 24-28. ¶14 We note that Aguilar did not rule on 720 ILCS 5/ 24-1.6(a)(2). (Emphasis added.) ¶ 15 This court has since distinguished Aguilar and found that Class 2 AUUW by a convicted felon, though also pursuant to section 24-1.6(a)(1) and (a)(3)(A), is constitutional because the Supreme Court and our supreme court have affirmed that the right to keep and bear arms is subject to regulation, specifically including presumptively-lawful prohibitions on the possession of firearms by felons. People v. Burns, 2013 IL App (1st) 120929, ¶ 25, citing Aguilar, 2013 IL 112116, ¶¶ 21, 26, and Heller, 554 U.S. 8 570 (2008). We have also distinguished Aguilar regarding AUUW based on not having a valid FOID, pursuant to section 24-1.6(a)(3)(C), on the basis that it is not a comprehensive ban on carrying firearms for self-defense outside of the home but affects only a specified class of people, and particularly because Moore v. Madigan acknowledged that reasonable restrictions on the right to keep and bear firearms may include a permitting requirement. People v. Taylor, 2013 IL App (1st) 110166, ¶ 28, citing Moore v. Madigan, 702 F. 3d at 940-41. ¶ 16 Here, defendant was convicted of three counts of the Class 4 felony of AUUW under sections 24-1.6(a)(1), (a)(2), and (a)(3)(A). We note that our supreme court in Aguilar added language to "make no finding, express or implied, with respect to the constitutionality or unconstitutionality of any other section or subsection of the AUUW statute." Aguilar, 2013 IL 112116, ¶ 21. n. 3. Thus, defendant's convictions are potentially distinguishable from those reversed in Aguilar insofar as 5/24-1.6(a)(1)/(3)(A) and 5/24-1.6(a)(2)(3)(A) are distinguishable. Practically, the point of distinction is that paragraph 5/24-1.6(a)(2) allowed for a person to be declared an invitee on the public way or public land for purposes of displaying or selling firearms. However, this invitee provision does not protect the right to possess a firearm outside the home for self-defense but for the limited purposes of display and commerce. (We note that, somewhat redundantly, this paragraph also includes the same language found in 24-1.6(a)(1) "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's as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm;" language which serves no useful purpose.) In this regard, we note that the Seventh Circuit in Moore v. Madigan found the statutes before it, 720 ILCS 5/24-1.6(a)(1), (a)(2) and (a)(3)(A), (a)(3)(B) and (d)unconstitutional, See Moore v. Madigan, 702 F. 3d at 934. Therefore, pursuant to Aguilar, we find that while our supreme court has found the Class 4 felony form of section 24-1.6(a)(1) and (a)(3)(A) violated defendant's constitutional right to keep and bear arms, 9 it has made no such finding regarding 5/24-1.6(a)(2) and we decline to extend the reasoning in Aguilar, particularly since the legislature added to 6(a)(2) the "purpose of display of such weapon or lawful commerce in weapons" language to having a loaded, accessible and uncased weapon on a public way. We recognize that the logic of Aguilar may well extend to 720 ILCS 5/24-1.6(a)(2), since Aguilar is based on the Second Amendment right "to keep and bear" arms now including outside one's home. But the specific question of the right to bear arms on the public way and the further question of self defense versus display or lawful commerce in weapons have not been fully presented to this court or to date decided by the our supreme court and we will not jump ahead of potential litigation on this issue. Also following Aguilar, we make no finding regarding the constitutionality, facial or as-applied, of any other section or subsection of the AUUW statute. ¶ 17 Because we are reversing two of defendant's convictions, we need not address his contention that two of his three convictions for AUUW should be vacated as redundant. ¶18 In addition we note that nowhere in the record is there a specific finding that a Taurus Arms firearm, Model PT145 Pro, Two- tone, 3 inch barrel is in fact a "pistol, revolver, stun gun or taser or other firearm" within the meaning of the statute and direct the court to make a finding. ¶ 19 Accordingly, the judgment of the circuit court is reversed as to Counts 2 and 4, is affirmed as to Count 6, and is remanded with instructions for resentencing on this basis. ¶ 20 Reversed in part, affirmed in part, and remanded for resentencing.