Opinion
No. 1-12-0320
01-23-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYRIS JACKSON, 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. 10 CR 16895
Honorable
James M. Obbish,
Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices McBride and Palmer concurred in the judgment.
ORDER
¶ 1 HELD: Defendant's Class 2 conviction under the AUUW statute for carrying a weapon that was uncased, loaded and immediately accessible is affirmed in light of our supreme court's modified ruling in People v. Aguilar, 2013 IL 112116. ¶ 2 Following a bench trial, defendant Tyris Jackson was convicted of aggravated unlawful use of a weapon (AUUW), unlawful use of a weapon by a felon (UUWF), and armed habitual criminal while on mandatory supervised release. Defendant's conviction under the armed habitual criminal statute was dismissed prior to sentencing on the basis that the underlying felony admitted into evidence by the State was not among the offenses supporting the offense of armed habitual criminal. Defendant's remaining convictions were merged and defendant was sentenced to a six-year prison term for his conviction under the AUUW statute, and his sentence was enhanced to a category 2 felony due to his prior 2008 conviction of aggravated battery of a police officer. ¶ 3 On appeal, defendant contends that the AUUW statute violates both federal and state guarantees of an individual's right to bear arms and is unconstitutional, making his conviction void. For the reasons that follow, we affirm defendant's AUUW conviction.
¶ 4 BACKGROUND
¶ 5 On September 8, 2010, at approximately 11:00 p.m., while Chicago police officers Robert Long and Rocio Salgado were out patrolling, Long observed defendant riding a bicycle near 4800 South Drexel. As the officers approached defendant, Long observed defendant put a silver gun in his right jacket pocket. Long announced his office and ordered defendant to stop. Defendant began to flee and Long followed. Defendant ultimately dropped his bike at 4825 South Drexel, hopped a fence and continued running. The officers called for backup, and defendant was subsequently arrested by Officer Vacek in the backyard of 927 East 49th Street. When the police went back to where defendant had dropped his bike, they recovered a silver Smith & Wesson .38 special revolver next to the bike. Long recognized the gun to be the same gun that he saw defendant put into his pocket earlier. Four live rounds and two spent shell casings were removed from the gun. ¶ 6 Defendant was convicted of armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2008)), UUWF (720 ILCS 5/24-1.1(a) (West 2008)), and AUUW (720 ILCS 5/24-1.6(a)(1) (West 2008)). The trial court subsequently vacated the armed habitual criminal conviction, merged defendant's convictions and sentenced defendant to a six-year prison term for AUUW based on the fact that the firearm found next to defendant's bike was uncased, loaded and immediately accessible. Defendant's conviction was enhanced to a category 2 felony due to his prior 2008 conviction of aggravated battery of a police officer. Defendant's motion to reconsider his sentence was denied, and this timely appeal followed. For the following reasons, we affirm defendant's AUUW conviction.
¶ 7 ANALYSIS
¶ 8 I. Standing
¶ 9 Before addressing defendant's constitutional claims, we must first address the State's position that defendant lacks standing to challenge the constitutionality of the AUUW statute. The State argues that defendant does not have standing to challenge the constitutionality of the AUUW statute because he relinquished his right to possess a firearm as a parolee serving a mandatory supervised release (MSR) and because he cannot enjoy the protections of the second amendment since he was previously convicted of a felony. We disagree. ¶ 10 "The doctrine of standing is intended to insure that issues are raised and argued only by those parties with a real interest in the outcome of the controversy." People v. Greco, 204 Ill. 2d 400, 409 (2003). "To 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); People v. Hill, 199 Ill. 2d 440, 445 (2002) ("A defendant does not ordinarily have standing to challenge a statute as it might be applied to others in different circumstances."). "The claimed injury must be (1) distinct and palpable; (2) fairly traceable to defendant's actions; and (3) substantially likely to be prevented or redressed by the grant of the requested relief." (Internal quotation marks omitted.) Chicago Teachers Union, 189 Ill. 2d at 207. "Standing is an element of justiciability, and it must be defined on a case-by-case basis." Greco, 204 Ill. 2d at 409. ¶ 11 Here, while we realize that defendant was currently serving a MSR, which required him to refrain from possessing a firearm, and that defendant was previously convicted of a felony, defendant was not convicted of violating his MSR. Here, defendant was convicted of possessing a weapon that was "uncased, loaded, and immediately accessible" under the AUUW statute and was sentenced to 6 years in prison for this violation. As such, he sustained a direct injury as a result of the AUUW statute being enforced against him. As stated by our supreme court in People v. Aguilar, 2013 IL 112116, ¶ 12 (2013), a case in which the defendant was convicted under the AUUW statute, "[i]f anyone has standing to challenge the validity of these sections, it is defendant. Or to put it another way, if defendant does not have standing to challenge the validity of these sections, then no one does." Id. at ¶ 12. ¶ 12 Had defendant been charged with violating his MSR and the State sought to take away his firearm or have him re-incarcerated for the violation, or had the punishment under the AUUW statute been taking away his weapon or re-incarcerating defendant--punishments that would not be any greater than those imposed for violating his MSR--we would likely agree that defendant had no standing to challenge the constitutionality of the AUUW statute. However, in this case, the consequence of defendant's violation of the AUUW statute was not merely taking away his weapon or re-incarcerating him. Defendant here suffered a direct adverse consequence for his violation of the AUUW statute because he was sentenced to a separate six-year imprisonment specifically for violating the AUUW statute. These consequences were distinct from and went beyond any punishment he could have received for violating his MSR. As such, the six-year sentence under the AUUW statute was "distinct and palpable," traceable to defendant's actions of carrying a gun in public that was "uncased, loaded, and immediately accessible," and, if the AUUW statute was found to be unconstitutional, it would void his conviction. Therefore, defendant has standing to challenge the constitutionality of the AUUW statute. See Chicago Teachers Union, 189 Ill. 2d at 207.
¶ 13 II. Constitutionality of the AUUW statute
¶ 14 Our review of the constitutionality of a statute is de novo. People v. Davis, 408 Ill. App. 3d 747, 749 (2011). A challenge to the constitutionality of a criminal statute may be raised for the first time on appeal. People v. Marin, 342 Ill. App. 3d 716, 722 (2003). Because we assume that a statute is constitutional, defendant has the burden of showing the constitutional violation. People v. Sole, 357 Ill. App. 3d 988, 991 (2005). "Our duty is to construe a statute in a manner that upholds its validity and constitutionality if it can be reasonably done." (Internal quotation marks omitted.) Id. ¶ 15 The second amendment provides that "A well regulated Militia, being necessary to secure a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const., amend. II. The Illinois Constitution provides that "[s]ubject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed." Ill. Const. 1970, art. I, § 22. ¶ 16 The relevant provisions of the AUUW statute are as follows:
"(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:¶ 17 Defendant contends that his conviction under the AUUW statute is void because the Seventh Circuit Court of Appeals found the AUUW statute to be unconstitutional in Moore v. Madigan. See Moore v. Madigan, 702 F.3d 933 (2012). Defendant further contends that the provisions of the AUUW statute at issue in this case violate the second amendment right to bear arms as discussed in District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. ___, 130 S. Ct. 3020 (2010). ¶ 18 Since this appeal was initially briefed, the Illinois Supreme Court decided People v. Aguilar, 2013 IL 112116, which was modified on December 19, 2013. In its modified ruling, the Court held that the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) of the Criminal Code of 1961 (the Code) violates the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution, and therefore is unconstitutional. Aguilar, 2013 IL 112116 at ¶ 22. The Court emphasized that its ruling was "specifically limited to the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) of the AUUW statute" (id. at n.3) because "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." Id. at ¶ 21. ¶ 19 In coming to its holding in the modified Aguilar opinion, the Court noted that "Illinois' '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), (a)(3)(A), (d), is unconstitutional on its face." Id. at ¶ 19 (citing Moore, 702 F. 3d at 940. However, the Court went on to recognize that "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," and further cited the Supreme Court's statement in Heller, that " 'nothing in our opinion should be taken to cast doubt on the longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.' " Id. at ¶ 26 (citing Heller, 554 U.S. at 626-27). Thus, while the Court in its modified Aguilar ruling held that the Class 4 form of the AUUW statute was unconstitutional, it still recognized and acknowledged the longstanding prohibitions on the possession of firearms by felons. As such, because defendant's AUUW conviction was enhanced to a Class 2 conviction because of his prior felony conviction, and because our supreme court has held that the Class 4 form of the AUUW statute is unconstitutional and did not make any such ruling with respect to the Class 2 form of the AUUW statute, we affirm defendant's AUUW conviction here. See Aguilar, 2013 IL 112116; People v. Burns, 2013 IL App (1st) 120929, ¶ 27 (2013) (holding that "the Class 2 form of the AUUW at issue merely regulates the possession of a firearm by a person who has been previously convicted of a felony" and, therefore, is not unconstitutional). ¶ 20 We take note of Justice Theis' dissent in Aguilar in which she expresses concern about the majority's choice to evaluate the constitutionality of the AUUW statute in light of the elements of the statute as well as the sentencing provisions contained in the statute. Aguilar, 2013 IL 112116, ¶ 41-48 (J. Theis, dissenting). Such concerns are especially well taken given that the classification of an AUUW conviction only sets out the penalty that may be imposed (see 720 ILCS 24-1.6(d) (West 2008)), and given that in Illinois there is a separate statute that prohibits felons from possessing firearms, section 24-1.1 of the Code (720 ILCS 24-1.1 (West 2008)), which remains valid despite numerous constitutional challenges. See People v. Davis, 408 Ill. App. 3d 747, 750-51 (2011); People v. Williams, 405 Ill. App. 3d 958, 964 (2010); see also People v. Ross, 407 Ill. App. 3d 931, 942 (2011). However, here, because defendant had a previous felony conviction, and because our courts and the Supreme Court of the United States have persistently recognized "longstanding prohibitions on the possession of firearms by felons" ( Heller, 544 U.S. at 626-27; Aguilar, 2013 IL 112116, at ¶ 26), we find that defendant's conviction under the Class 2 form of the AUUW statute, to the extent that the statute restricts felons from possessing firearms, does not violate the second amendment right to keep and bear arms and, therefore, must be affirmed.
(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, other than a pistol, revolver, or handgun, possessed was uncased, loaded, and immediately accessible at the time of the offense ***.
(d) Sentence. Aggravated unlawful use of a weapon is a Class 4 felony; a second or subsequent offense is a Class 2 felony for which the person shall be sentenced to a term of imprisonment of not less than 3 years and not more than 7 years. Aggravated unlawful use of a weapon by a person who has been previously convicted of a felony in this State or another jurisdiction is a Class 2 felony for which the person shall be sentenced to a term of imprisonment of not less than 3 years and not more than 7 years." 720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008).
While defendant states that he is making facial and as-applied challenges on page 8 of his brief, there is no argument with respect to an as-applied constitutional challenge anywhere within the brief. Further, defendant's reply brief merely requests that the court strike down the AUUW statute as facially unconstitutional. Thus, the only constitutional claim before this court is a facial challenge to the AUUW statute.
The Illinois Supreme Court initially held that the elements of section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute violated the second amendment right to keep and bear arms, however, within its modified opinion, the court limits its ruling by stating that the Class 4 form of the AUUW statute, section 24-1.6(a)(1), (a)(3)(A), (d) of the Code, violates the second amendment right to keep and bear arms. Aguilar, 2013 IL 112116, at ¶ 40.
Defendant here was convicted of possession of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1 (West 2008)) and AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)). His convictions were merged prior to sentencing, and he was sentenced on his AUUW conviction.
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¶ 21 CONCLUSION
¶ 22 For the foregoing reasons, defendant's Class 2 conviction 13 under the AUUW statute is affirmed. ¶ 23 Affirmed.