Opinion
No. 1-12-2651
06-17-2015
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOVONTE BROWN, 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. 11 CR 5579 The Honorable Matthew E. Coghlan, Judge Presiding. PRESIDING JUSTICE PUCINSKI delivered the judgment of the court.
Justices Hyman and Mason concurred in the judgment.
ORDER
¶ 1 Held: Defendant's armed habitual criminal conviction and sentence vacated because his prior Class 4 AUUW conviction, which was used to establish the prior felony conviction element of armed habitual criminal, was rendered void ab initio by Aguilar; defendant's Class 4 AUUW conviction under count VII is vacated under Aguilar; and defendant's Class 2 UUWF under count VI is affirmed and the cause remanded to the circuit court to impose a sentence within the appropriate range for that offense. ¶ 2 Following a joint bench trial with codefendant Lamar Washington, who is not a party to this appeal, defendant Jovonte Brown was found guilty of unlawful use of a weapon by a felon (UUWF), aggravated unlawful use of a weapon (AUUW), and armed habitual criminal (AHC). The trial court merged the convictions and sentenced defendant to six years' imprisonment on the AHC count. On appeal, defendant contends that his AHC conviction must be reversed because his prior Class 4 AUUW conviction, which was used to establish the prior felony conviction element of AHC, was rendered void ab initio by People v. Aguilar, 2013 IL 112116. Defendant also contends that his Class 2 AUUW conviction should be reversed, because he was convicted of violating the same subsection of the AUUW statute declared unconstitutional in Aguilar, and the cause remanded for resentencing on the Class 3 offense of UUWF.
¶ 3 BACKGROUND
¶ 4 The record shows that a grand jury charged defendant and codefendants, Lamar Washington and Davon Reed, with firearm-related offenses arising out of an incident on March 21, 2011, when Chicago police officers dispersed a group of men gathered around a makeshift memorial on the 3400 block of West Fulton Boulevard. As relevant here, the April 14, 2011, indictment charged defendant with: (1) count V, being an armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2010)), in that he knowingly or intentionally possessed a firearm after having been convicted of AUUW under case number 08 CR 2016 and possession of a controlled substance with intent to deliver under case number 09 CR 8417; (2) count VI, UUWF (720 ILCS 5/24-1.1(a) (West 2010)), in that he knowingly possessed a firearm on or about his person after having been convicted of possession of a controlled substance with intent to deliver under case number 09 CR 8417; and (3) count VII, AUUW (720 ILCS 5/24-1.6(a)(1)/(3)(A) (West 2010)), in that he knowingly carried a firearm when not on his own land, abode or business, and the firearm was uncased, loaded, and immediately accessible. In counts VI and VII, the State also requested that defendant be sentenced as a Class 2 offender based on his prior Class 4 AUUW conviction in case number 08 CR 2016. ¶ 5 The record also shows that defendant was charged by information, in case number 08 CR 2016, with eight counts of AUUW, then convicted and sentenced to two years' imprisonment on count I of AUUW, a Class 4 felony (720 ILCS 5/24-1.6(a)(2)/(3)(A), (d)(1) (West 2010)). In case number 09 CR 8417, defendant was convicted of possession of a controlled substance with intent to deliver, a Class 2 felony (720 ILCS 570/401(d) (West 2010)). ¶ 6 At trial, the evidence showed in relevant part, that at around noon on March 21, 2011, Chicago police officers Beckman and Gallagher assembled with members of the Eleventh District tactical team in response to a report that several armed men were gathered around a makeshift memorial on the 3400 block of West Fulton Boulevard. The officers converged on that location from various routes. Officers Beckman and Gallagher were approaching from the north alley of Fulton Boulevard when they heard over the "car-to-car" radio frequency that two individuals were running westbound on Fulton Boulevard. Upon reaching the mouth of the alley on St. Louis Avenue, the officers observed defendant running west on Fulton Boulevard. Officers Beckman and Gallagher pursued defendant in their unmarked vehicle and observed him remove a black handgun from his waistband and throw it onto the flat roof of a garage at 3455 West Fulton Boulevard. Officer Gallagher stopped the vehicle at 240 North St. Louis Avenue and Officer Beckman exited and detained defendant. Officer Gallagher subsequently recovered a loaded .357-caliber Rossi handgun from the roof of the garage at 3455 West Fulton Boulevard. Both officers identified the black handgun as the same one that defendant threw onto the garage roof. As part of its case-in-chief, and without objection, the State presented certified statements of defendant's prior Class 2 conviction of possession of a controlled substance with intent to deliver in case number 09 CR 8417 and his prior Class 4 conviction of AUUW in case number 08 CR 2016. ¶ 7 Defendant presented testimony from Cynthia Coleman-Clark, a family friend who lived at 3446 West Fulton Boulevard, across the street from the makeshift memorial where defendant and several others were gathered. Standing on the steps of her front porch, Coleman-Clark did not observe anyone run from the police or any police officer recover a handgun from the roof of the garage at 3455 West Fulton Boulevard. Defendant also presented the testimony of Chicago police officer Alan Rogers, a member of the Eleventh District tactical team, who acknowledged that his case report did not indicate he made a radio call over the "car-to-car" frequency that two individuals were "fleeing westbound on Fulton." In rebuttal, Officer Gallagher identified an aerial map of the 3400 block of West Fulton Boulevard showing that the garage at 3455 West Fulton Boulevard was not visible from the north side of West Fulton Boulevard. ¶ 8 Following closing arguments, the trial court found defendant guilty of UUWF, AUUW, and AHC. The trial court merged the UUWF and AUUW convictions into the AHC conviction and sentenced defendant to six years' imprisonment on the AHC conviction. ¶ 9 In this court, defendant contends that his AHC conviction must be reversed because his prior Class 4 AUUW conviction in case number 08 CR 2016, which was used to establish the prior felony element of AHC, was rendered void ab initio by People v. Aguilar, 2013 IL 112116. He also contends that we should reverse his Class 2 AUUW conviction and remand this cause for resentencing on the Class 3 offense of UUWF.
Codefendant Reed pled guilty to unlawful use of a weapon in exchange for a sentence of two years' imprisonment. Codefendant Washington was found guilty of UUWF and AUUW, then sentenced to five years' imprisonment on the former.
¶ 10 STANDARD OF REVIEW
¶ 11 When defendant challenges the sufficiency of the evidence to sustain his AHC conviction (People v. McFadden, 2014 IL App (1st) 102939, ¶ 36), the relevant question on review is whether, after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt (Jackson v. Virginia, 443 U.S. 307, 315-16 (1979); People v. Siguenza-Brito, 235 Ill. 2d 213, 224 (2009)). We will not set aside a criminal conviction unless the evidence is so improbable or unsatisfactory as to create a reasonable doubt of defendant's guilt. Siguenza-Brito, 235 Ill. 2d at 224.
¶ 12 ANALYSIS
¶ 13 We have an independent duty to vacate void orders and may sua sponte declare an order void. People v. Thompson, 209 Ill. 2d 19, 27 (2004). A statute that is held facially unconstitutional is void ab initio, or as if the law never existed. People v. Tellez-Valencia, 188 Ill. 2d 523, 526 (1999). Correspondingly, a trial court is without jurisdiction to enter a conviction against a defendant based on conduct that does not constitute a criminal offense. People v. Dunmore, 2013 IL App (1st) 121170, ¶ 9. ¶ 14 To sustain a conviction for AHC, the State must prove that defendant possessed a firearm after being convicted of two or more enumerated offenses, including UUWF and 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(a) (West 2010). "A defendant's prior crimes count as elements of a violation of the armed habitual criminal statute, as the prior offenses establish that the defendant fits in the class of persons who must not possess firearms." People v. Davis, 408 Ill.App.3d 747, 751-52 (2011). ¶ 15 In Aguilar, 2013 IL 112116, ¶ 22, our supreme court held that the Class 4 version of the AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)) was facially unconstitutional in violation of the second amendment right to bear arms. Here, as part of its case-in-chief, the State entered into evidence, certified statements of defendant's prior Class 2 conviction of possession of a controlled substance in case number 09 CR 8417 and his prior Class 4 conviction of AUUW in case number 08 CR 2016. ¶ 16 Citing the recent opinions of this court in People v. Dunmore, 2013 IL App (1st) 121170, and People v. McFadden, 2014 IL App (1st) 102939, pet. for leave to appeal allowed, No. 117424 (May 28, 2014), defendant argues, and we agree, that his prior Class 4 conviction of AUUW in case number 08 CR 2016 is void ab initio under Aguilar and the State could not rely on it in satisfaction of the prior felony element of AHC (People v. Fields, 2014 IL App (1st) 110311, ¶ 44). ¶ 17 The State nonetheless maintains that there was sufficient evidence to prove defendant guilty of AHC because his prior Class 4 AUUW conviction, under case number 08 CR 2016, "was perfectly valid at the time of the current offense," citing the United States Supreme Court's decision in Lewis v. United States, 445 U.S. 55, 60-62 (1980), which interpreted a federal UUWF statute and held that the status of the prior felony conviction at the time the accused possesses the firearm controls, regardless of whether that prior conviction might later be invalidated or found to be unconstitutional, and several subsequent federal circuit court decisions that held the same. This argument was expressly rejected by the Fifth Division of this court in People v. Claxton, 2014 IL App (1st) 132681, ¶¶ 17-18, and we see no reason to depart from that well-reasoned opinion. We reject the same argument by the State here and vacate defendant's AHC conviction and the sentence imposed thereon. ¶ 18 However, our inquiry does not end here, as the trial court also found defendant guilty of UUWF (720 ILCS 5/24-1.1(a) (West 2010)) and AUUW (720 ILCS 5/24-1.6(a)(1)/(3)(A) (West 2010)), counts of the indictment that included the State's request that defendant be sentenced as a Class 2 offender based on his prior Class 4 AUUW conviction in case number 08 CR 2016. In this regard, defendant contends that his Class 2 AUUW conviction should be reversed, because he was convicted of violating the same subsection of the AUUW statute declared unconstitutional in Aguilar, and the cause remanded for resentencing on the Class 3 offense of UUWF. ¶ 19 We vacate defendant's Class 4 AUUW conviction under count VII where the State sought to enhance the classification of the offense to a Class 2 felony based on his prior Class 4 AUUW conviction, which we now know is based upon a statute found unconstitutional and void ab initio in Aguilar. Defendant was charged by indictment with violating section 24-1.6(a)(1)/(3)(A) of the AUUW statute (720 ILCS 5/24-1.6(a)(1)/(3)(A) (West 2010)). The elements of AUUW are the same regardless of the felony classification. People v. Gayfield, 2014 IL App (4th) 120216-B, ¶ 28. There are only two elements the State must prove to sustain a conviction for AUUW as charged in count VII of the indictment: (1) that defendant knowingly carried a firearm when not on his own land, abode or business and (2) the firearm was uncased, loaded, and immediately accessible. 720 ILCS 5/24-1.6(a)(1)/(3)(A) (West 2010); Gayfield, 2014 IL App (4th) 120216-B, ¶ 28. More importantly, the State is not required to prove defendant was a felon (Gayfield, 2014 IL App (4th) 120216-B, ¶ 28); defendant's prior Class 4 AUUW conviction is a sentencing enhancement (720 ILCS 5/24-1.6(d) (West 2010)), not an element of AUUW (People v. Mosley, 2015 IL 115872, ¶ 18). Given the State's inability to rely upon defendant's prior Class 4 AUUW conviction to enhance the classification of the instant offense from a Class 4 to a Class 2 felony, defendant now stands convicted of the Class 4 version of AUUW, which as previously discussed, is void ab initio under Aguilar. For that reason, we vacate defendant's Class 4 AUUW conviction under count VII. Aguilar, 2013 IL 112116, ¶ 22. ¶ 20 Moreover, we affirm defendant's Class 2 UUWF conviction under count VI where the State proved beyond a reasonable doubt the elements of UUWF, i.e., (1) the knowing possession or use of a firearm and (2) the prior felony drug conviction under case number 09 CR 8417, and we remand for sentencing on this conviction, which is a Class 2 felony offense despite defendant's belief that it is a Class 3 felony. ¶ 21 Citing the sentencing provision of the UUWF statute (720 ILCS 5/24-1.1(e) (West 2010)), defendant asserts, "Originally, the State charged [him] with UUWF as a Class 2 offense, but the sentence-enhancing factor alleged by the State was that [he] was 'previously convicted of [AUUW] under case no. 08 CR 2016.' " (Emphasis added.) Defendant argues that because his prior AUUW conviction in case number 08 CR 2016 is void under Aguilar, his "sentence on the current UUWF conviction cannot be enhanced by virtue of the prior conviction." (Emphasis added.) He further argues, "because the State used [his] other prior conviction, for possession of a controlled substance [with intent to deliver], to prove the prior offense element of UUWF, the State could not use that same offense to enhance the sentencing range." (Emphases added.) ¶ 22 Section 24-1.1(a) of the Criminal Code (720 ILCS 5/24-1.1(a) (West 2010)) sets forth the elements of UUWF: (1) the knowing possession or use of a firearm and (2) a prior felony conviction. People v. Gonzalez, 151 Ill. 2d 79, 87 (1992). Section 24-1.1(e) of the Criminal Code provides in pertinent part:
"(e) Sentence. Violation of this Section by a person not confined in a penal institution shall be a Class 3 felony for which the person *** shall be sentenced to no less than 2 years and no more than 10 years ***. Violation of this Section by a person not confined in a penal institution who has been convicted of a forcible felony, a felony in violation of Article 24 of this Code ***, or a Class 2 or greater felony
under the Illinois Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act is a Class 2 felony for which the person shall be sentenced to not less than 3 and not more than 14 years." (Emphases added.) 720 ILCS 5/24-1.1(e) (West 2010).¶ 23 Here, count VI of the indictment charged defendant with UUWF in that he knowingly possessed a firearm on or about his person after having been convicted of possession of a controlled substance with intent to deliver under case number 09 CR 8417, which is a Class 2 felony (720 ILCS 570/401(d) (West 2010)). Pursuant to count VI of the indictment, a Class 2 sentence is the only statutorily authorized sentence available because section 24-1.1(e), the sentencing provision of the UUWF statute, classifies the offense as a Class 2 felony when, as here, it is committed by a person previously convicted of "a Class 2 or greater felony under the Illinois Controlled Substances Act" (720 ILCS 5/24-1.1(e) (West 2010)). People v. Nowells, 2013 IL App (1st) 113209, ¶ 27. While we acknowledge that count VI of the indictment also includes the State's request that defendant be sentenced as a Class 2 offender, based on his prior Class 4 AUUW conviction in case number 08 CR 2016, we observe that "[w]here an indictment charges all essential elements of an offense, other matters unnecessarily added may be regarded as surplusage" (People v. Collins, 214 Ill. 2d 206, 219 (2005)). The State's additional "sentence-enhancing factor," i.e., defendant's prior Class 4 AUUW conviction in case number 08 CR 2016, was immaterial and may be regarded as surplusage (People v. McCarter, 2011 IL App (1st) 092864, ¶¶ 87-88) because defendant was subject to a Class 2 sentence for UUWF based, in part, upon proof beyond a reasonable doubt that he was previously convicted of possession of a controlled substance with intent to deliver under case number 09 CR 8417, which the State satisfied by presenting a certified statement thereof as part of its case-in-chief (Nowells, 2013 IL App (1st) 113209, ¶ 29; accord People v. Soto, 2014 IL App (1st) 121937, ¶ 24), and not his prior Class 4 AUUW conviction in case number 08 CR 2016. The sentencing provision of the UUWF statute "differentiates only between a Class 3 conviction and a Class 2 conviction based on the nature of the accused's prior felony" (People v. Powell, 2012 IL App (1st) 102363, ¶ 17) and reflects the legislature's intent to upgrade the felony classification for felons in possession of a weapon who have previously committed "a Class 2 or greater felony under the Illinois Controlled Substances Act" (720 ILCS 5/24-1.1(e) (West 2010)). Defendant was consistently charged and found guilty of a Class 2 offense (People v. Easley, 2014 IL 115581, ¶ 26); a Class 2 sentence is the only possible sentence classification defendant can receive, having been charged with UUWF specifically premised on his prior Class 2 felony drug conviction (Nowells, 2013 IL App (1st) 113209, ¶ 30). ¶ 24 We likewise reject defendant's double-enhancement argument because "[o]nce he was convicted of the Class 2 felony, no further enhancement occurred." Powell, 2012 IL App (1st) 102363, ¶ 11. Defendant's prior Class 2 felony drug conviction "elevated his commission of unlawful use of weapons from a Class A misdemeanor to a Class 2 felony, not to a Class 3 felony." Powell, 2012 IL App (1st) 102363, ¶ 12. ¶ 25 In Easley, the supreme court rejected the same double-enhancement argument made by defendant here, explaining:
"Defendant's prior conviction was used only as an element of the offense, and he received the only class of offense and sentence he could receive. *** Again, defendant's argument erroneously assumes that he was charged and convicted of a Class 3 offense and sentenced as a Class 2 offender. Because we have found that defendant was charged, convicted, and sentenced as a Class 2 offender, defendant's double enhancement claim
necessarily fails. The prior conviction for unlawful use of a weapon by a felon [UUWF] was used only once, as an element of the offense, and not also to enhance the offense." Easley, 2014 IL 11581, ¶ 28.¶ 26 Moreover, as the Second Division of this court aptly noted in Powell, 2012 IL App (1st) 102363, ¶ 12, "The flaw in defendant's reasoning is that the sentencing court did not determine that defendant committed a Class 2 felony; the General Assembly made that determination in enacting section 24-1.1(e)." Put another way, defendant's contention that the cause should be remanded for resentencing on the Class 3 offense of UUWF "erroneously assumes that he was charged and convicted of a Class 3 offense." Easley, 2014 IL 11581, ¶ 28. Because defendant was consistently charged and convicted of the Class 2 offense of UUWF premised on his prior Class 2 felony drug conviction, defendant's double-enhancement claim necessarily fails. Easley, 2014 IL 11581, ¶ 28; People v. Wooden, 2014 IL App (1st) 130907, ¶ 29.
¶ 27 CONCLUSION
¶ 28 For the reasons stated, we vacate defendant's AHC conviction under count V and his Class 4 AUUW conviction under count VII; we affirm his Class 2 UUWF conviction under count VI and remand the cause to the circuit court to impose a sentence thereon within the appropriate statutory range. ¶ 29 Vacated in part, affirmed in part, and remanded for sentencing.