Prior to Aguilar, this court applied intermediate scrutiny to a constitutional challenge of the AAUW statute involving possession of a firearm by an individual convicted of a felony, concluding the statute is a valid exercise of the important governmental interest in protecting the health, safety and general welfare of its citizens. People v. Brisco, 2012 IL App (1st) 101612, ¶¶ 51–57, 361 Ill.Dec. 365, 971 N.E.2d 20. Accordingly, even assuming for the sake of argument that the possession of firearms by felons is conduct that falls inside the scope of the second amendment's protection, we would nevertheless uphold the constitutionality of the specific statute involved in this appeal.

This court has repeatedly interpreted this statutory scheme as requiring a defendant sentenced as a mandatory Class X offender receive the Class X MSR term of three years. People v. Davis, 2012 IL App (5th) 100044, ¶¶ 26-34; People v. Brisco, 2012 IL App (1st) 101612, ¶¶ 58-62; People v. Lampley, 2011 IL App (1st) 090661-B, ¶¶ 47-49; People v. Allen, 409 Ill. App. 3d 1058, 1078 (2011); People v. Rutledge, 409 Ill. App. 3d 22, 26 (2011); People v. Holman, 402 Ill. App. 3d 645, 652-53 (2010); People v. McKinney, 399 Ill. App. 3d 77, 81-83 (2010); People v. Lee, 397 Ill. App. 3d 1067, 1072-73 (2010); People v. Watkins, 387 Ill. App. 3d 764, 766-67 (2009); People v. Smart, 311 Ill. App. 3d 415 (2000); People v. Anderson, 272 Ill. App. 3d 537, 541-42 (1995).

Officers Stinar and Pierri alleged that they were on patrol when they spotted Brisco at the entrance of an alley, robbing a man on a bicycle. Id. at ¶ 14 (summarizing the police report); People v. Brisco, 2012 IL App (1st) 101612, at ¶ 6, 361 Ill. Dec. 365, 971 N.E.2d 20 (2012). When Brisco saw the officers, he took off, running into a nearby building.

It is well settled that a defendant's right to counsel of choice must be measured against the trial court's interest in trying the case with diligence and the orderly process of judicial administration. People v. Brisco, 2012 IL App (1st) 101612, ¶ 41; People v. Curry, 2013 IL App (4th) 120724, ¶ 48.

We agree with the State that the invitee exemption is not an element of the offense of AUUW. ¶ 42 Defendant, however, cites People v. Brisco, 2012 IL App (1st) 101612, ¶ 16, for the proposition that the invitee exemption was "a necessary element of the offense of AUUW after August 25, 2009." We do not find Brisco persuasive because it stated that proposition without any analysis or discussion of sections 24-2(b)(5) and 24-2(h).

This court has repeatedly held that a defendant sentenced as a mandatory Class X offender receives the Class X MSR term of three years. See People v. Wade, 2013 IL App (1st) 112547, ¶¶ 36-38 (recognizing that defendants subject to Class X sentences are subject to the Class X three-year MSR term); People v. Brisco, 2012 IL App (1st) 101612, ¶¶ 59-62; People v. Lampley, 2011 IL App (1st) 090661-B, ¶¶ 47-49; People v. Allen, 409 Ill. App. 3d 1058, 1078 (2011); People v. Rutledge, 409 Ill. App. 3d 22, 26 (2011); People v. McKinney, 399 Ill. App. 3d 77, 81-83 (2010); People v. Holman, 402 Ill. App. 3d 645, 652-53 (2010); People v. Lee, 397 Ill. App. 3d 1067, 1072-73 (2010); People v. Watkins, 387 Ill. App. 3d 764, 766-67 (2009); and People v. Anderson, 272 Ill. App. 3d 537, 541-42 (2009). We will not depart from these well-reasoned decisions.

The State responds that it was respondent's burden to raise and prove the exception for invitees. ¶ 10 Our supreme court has held that the exceptions listed in the body of the AUUW statute are elements of the offense which the State must disprove. People v. Laubscher, 183 Ill. 2d 330, 335 (1998); see also People v. Brisco, 2012 IL App (1st) 101612, ¶ 16 (a defendant's status, or lack thereof, as an invitee is a necessary element of the offense of AUUW). When an exception appears as part of the body of a substantive offense, the State has the burden to disprove the exception beyond a reasonable doubt in order to sustain a conviction.

Furthermore, this court has repeatedly held that a defendant sentenced as a mandatory Class X offender receives the Class X MSR term of three years. See People v. Wade, 2013 IL App (1st) 112547, ¶¶ 36-38 (recognizing that defendants subject to Class X sentences are subject to the Class X three-year MSR term); People v. Brisco, 2012 IL App (1st) 101612, ¶¶ 59-62; People v. Lampley, 2011 IL App (1st) 090661-B, ¶¶ 47-49; People v. Allen, 409 Ill. App. 3d 1058, 1078 (2011); People v. Rutledge, 409 Ill. App. 3d 22, 26 (2011); People v. McKinney, 399 Ill. App. 3d 77, 81-83 (2010); People v. Holman, 402 Ill. App. 3d 645, 652-53 (2010); People v. Lee, 397 Ill. App. 3d 1067, 1072-73 (2010); People v. Watkins, 387 Ill. App. 3d 764, 766-67 (2009); and People v. Anderson, 272 Ill. App. 3d 537, 541-42 (2009). We will not depart from these well-reasoned decisions.

See People v. Mimes, 2011 IL App (1st) 082747, ¶ 82 (holding the challenged provisions of the aggravated unlawful use of a weapon statute are constitutional and the statute's "substantial and important goal is absolutely reasonable although arguably somewhat imperfect."). See also People v. Brisco, 2012 IL App (1st) 101612, ¶ 56 (holding, "we conclude that the statute is constitutionally permissible despite its restrictions on the right of felons to bear arms, as it is a valid exercise of the important governmental interest in protecting the health, safety and general welfare of its citizens."). The unlawful use of a weapon by a felon statute has also been determined constitutional by this court.

Furthermore, as to the defendant's "as applied" theory, it is well settled that where, as here, there has been no evidentiary hearing or any findings of fact in the lower court, the reviewing court cannot make an "as applied" determination of the constitutionality of a statute. People v. Brisco, 2012 IL App (1st) 101612, ¶57. We, therefore, decline to consider the defendant's "as applied" challenge to the statute since he failed to raise this issue in the trial court and has therefore forfeited a review.