Opinion
3-12-0778
01-24-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL T. JOHNSON, 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 the 21st Judicial Circuit,
Kankakee County, Illinois,
Appeal No. 3-12-0778
Circuit No. 05-CF-175
Honorable
Clark E. Erickson,
Judge, Presiding.
JUSTICE delivered the judgment of the court.
Justices Holdridge and Schmidt concurred in the judgment.
ORDER
¶ 1 Held: (1) Defendant's aggravated unlawful use of a weapon conviction did not violate the second amendment. (2) The court did not err when it summarily dismissed defendant's postconviction petition. ¶ 2 Defendant, Michael T. Johnson, was convicted of first degree murder (720 ILCS 5/9-1(a)(1) (West 2004)), aggravated discharge of a firearm (720 ILCS 5/23-1.2(a)(3) (West 2004)), aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1), (3)(A) (West 2004)), and aggravated assault (720 ILCS 5/12-2(a)(6) (West 2004)). On appeal, defendant's conviction for aggravated discharge of a weapon was remanded for resentencing. People v. Johnson, No. 3-070825 (2009) (unpublished order under Illinois Supreme Court Rule 23). Upon remand defendant was resentenced. The new sentence was affirmed on appeal. People v. Johnson, No. 3-10-0262 (2011) (unpublished order under Illinois Supreme Court Rule 23). Thereafter, defendant filed a pro se postconviction petition which was summarily dismissed by the trial court. Defendant appeals, arguing that: (1) his conviction for aggravated unlawful use of a weapon should be vacated; and (2) the court erred when it dismissed his postconviction petition at the first stage. We affirm.
¶ 3 FACTS
¶ 4 The State charged defendant with attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2004)), aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1), (3)(A) (West 2004)), aggravated assault (720 ILCS 5/12-2(a)(6) (West 2004)), and two counts each of first degree murder (720 ILCS 5/9-1(a)(1), (2) (West 2004)) and aggravated discharge of a firearm (720 ILCS 5/23-1.2(a)(3) (West 2004)). The information listed aggravated unlawful use of a weapon as a Class 2 felony due to defendant's previous felony conviction. The cause proceeded to a jury trial. ¶ 5 At trial, Tina Ferguson testified that she was at her mother's house on Easter Sunday when a vehicle pulled up near the residence. The driver of the vehicle exited and approached the victim, Dwayne Cooks, and engaged in a verbal exchange. At the conclusion of the exchange, Cooks began to walk away, and the driver returned to his car. Once there, the driver produced a black rifle-like weapon from his side and pointed it toward Cooks. A passenger in the car also emerged and produced a small handgun. Both men began to fire toward Cooks. After a number of shots were fired, the men got back into the car and drove away. Ferguson saw Cooks lying face down on the steps. Based on Cooks' location, Ferguson believed Cooks was attempting to ascend the steps when he was shot. Prior to those shots being fired, Ferguson did not hear any shots fired. ¶ 6 Police officer Eddie Perez testified that he was on patrol on Easter Sunday when he heard gunshots. As he approached the area where he had heard the shots, he saw two subjects in the middle of the street firing toward a residence. One subject was holding an assault rifle, and the other was holding a handgun. Perez identified defendant as the individual who was shooting the assault rifle. After the two men stopped shooting, they got back into their vehicle and fled the scene. Perez pursued the vehicle. Eventually, the vehicle entered a ditch and blew out its tires. Perez had not lost sight of the vehicle during the pursuit. Defendant and two other individuals were arrested, and guns were found in the vehicle. ¶ 7 Marshall Billips testified that he was Cooks' cousin and was present the day of the shooting. Before the shooting, Billips saw a blue car drive by the residence and park. Defendant emerged from the vehicle and approached Cooks. At this point, defendant had a rifle in his hand. Billips testified that Cooks also had a handgun. Billips grabbed his child and ran towards the house. He noted that Cooks also began to run toward the house. With his back turned, Billips heard gunshots. After securing his child in the residence, Billips went back outside and saw that Cooks had been shot. Defendant and another individual were still firing in Cooks' direction. Billips grabbed Cooks' gun and started firing toward defendant and the other individual. Eventually the shooting stopped, and defendant and his accomplices drove away. ¶ 8 Billips admitted during trial that he had initially denied firing a gun. He also admitted that he had hid the gun from the police after the incident. Billips stated that he had lied because he did not want the police to think Cooks was a violent person. Further, the State elicited testimony from Billips that it had quashed certain warrants that had been issued for his arrest in exchange for his testimony. When asked what the warrants were for, Billips responded, "Uh, traffic, and, uh-I think they both was traffic." Neither the State nor defendant introduced evidence of a bench warrant on a domestic case that was also quashed prior to Billips' testimony in defendant's accomplice's trial. Both parties also failed to mention a petition to revoke in one of Billips' traffic cases that had been withdrawn before his testimony. Information about the bench warrant and the petition to revoke had been disclosed to defendant during discovery. ¶ 9 At the conclusion of the trial, the jury found defendant guilty of first degree murder, aggravated discharge of a firearm, aggravated unlawful use of a weapon, and aggravated assault. The trial court sentenced defendant to a term of imprisonment of 85 years for first degree murder to be served consecutively with sentences of 15 years for aggravated discharge of a firearm and 7 years for aggravated unlawful use of a weapon. Defendant appealed, and this court remanded for resentencing on the aggravated discharge of a weapon conviction. On remand, defendant was sentenced to 12 years' imprisonment. That sentence was affirmed on appeal. ¶ 10 Thereafter, defendant filed a pro se postconviction petition arguing, among other things, that trial counsel was ineffective for failing to object to the State's use of perjured testimony. Specifically, defendant alleged that counsel had failed to note that, contrary to Billips' testimony, the State had quashed a bench warrant in a domestic case and had withdrawn a petition to revoke filed against Billips before he testified. The trial court summarily dismissed the petition at the first stage. Defendant appeals.
¶ 11 ANALYSIS
¶ 12 I
¶ 13 Defendant first contends that his conviction for aggravated unlawful use of a weapon should be vacated because the statute under which he was charged has been found unconstitutional. See People v. Aguilar, 2013 IL 112116. Generally, where a statute has been declared unconstitutional by the supreme court, the statute is null and void as of the date of its enactment. People v. Zeisler, 125 Ill. 2d 42 (1988). Such unconstitutional laws are void ab initio and can be raised at any time. Id. ¶ 14 Initially, we note that the State conceded the issue. In doing so, the State noted that the supreme court had declared section 24-1.6(a)(1), (3)(A) of the Criminal Code of 1961 (Code) unconstitutional. See Aguilar, 2013 IL 112116. However, the State's concession came before the supreme court modified its original decision in Aguilar. In a modified decision, the court held that only the Class 4 form of the statute violated the second amendment's right to keep and bear arms and was therefore facially unconstitutional. Aguilar, 2013 IL 112116; 720 ILCS 5/24-1.6(a)(1), (3)(A) (West 2004). In doing so, it noted that the Class 4 form of the law does not deal with a reasonable regulation but with a comprehensive ban. Id. ¶ 15 Here, defendant's conviction for aggravated unlawful use of a weapon was charged under section 24-1.6(a)(1), (3)(A) of the Code. Therefore we are rejecting the State's concession because in this case, unlike in Aguilar, defendant was charged with a Class 2 felony based on his having a prior felony conviction. See 720 ILCS 5/24-1.6(d) (West 2004). The distinction is an important one. Because the Class 2 felony is predicated on defendant previously being convicted of a felony, it does not impose a comprehensive ban. Instead, it is a reasonable regulation of defendant's second amendment right to keep and bear arms. See Aguilar, 2013 IL 112116 (the second amendment is not unlimited and is subject to meaningful regulation); People v. Taylor, 2013 IL App (1st) 110166 (aggravated unlawful use of weapon based on failure to have a FOID card did not violate the second amendment). Therefore, we conclude that defendant's conviction under section 24-1.6(a)(1), (3)(A) is not unconstitutional in this case.
¶ 16 II
¶ 17 Defendant next contends that his postconviction petition stated the gist of a constitutional claim, and therefore should not have been dismissed. A postconviction petition is a collateral attack on a prior conviction and sentence. People v. Rissley, 206 Ill. 2d 403 (2003). The Post-Conviction Hearing Act provides a three-step procedure for the adjudication of petitions for postconviction relief. 725 ILCS 5/122-1 et seq. (West 2012). At the first stage, the trial court must independently determine whether the petition is frivolous or patently without merit. People v. Morris, 236 Ill. 2d 345 (2010). A petition is frivolous or patently without merit if its allegations, when taken as true, fail to present the gist of a constitutional claim. People v. Brooks, 233 Ill. 2d 146 (2009). A trial court's dismissal of a postconviction petition as frivolous or patently without merit is reviewed de novo. Morris, 236 Ill. 2d 345. ¶ 18 Here, defendant argues that his postconviction allegation that trial counsel was ineffective for failing to raise an issue regarding Billips' alleged perjured testimony stated the gist of a constitutional claim. To establish ineffective assistance of counsel, a defendant must show that: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors the result of the proceeding would have been different. People v. Albanese, 104 Ill. 2d 504 (1984). Defendant must satisfy both prongs in order to prevail on a claim of ineffective assistance of counsel; however, if the claim can be disposed of on the ground that defendant did not suffer prejudice, a court need not determine whether counsel's performance was deficient. Id. ¶ 19 Here, defendant contends that the outcome of the trial might have been different had the jury heard evidence that the State dismissed a bench warrant and a petition to revoke issued against Billips in exchange for his testimony. After our review of the record, we conclude that defendant's argument is without merit because it is not arguable that defendant was prejudiced. See People v. Hodges, 234 Ill. 2d 1 (2009) (a first-stage postconviction petition may be summarily dismissed if it is not arguable that defendant was prejudiced). ¶ 20 Our conclusion is based on the fact that the jury was informed that Billips had benefited from his testimony and because other evidence established that defendant had committed the crime and was not acting in self-defense. First, while it is true that Billips did not testify that the State had quashed the bench warrant or withdrawn the petition to revoke, he did testify that the State quashed traffic warrants for him in exchange for his testimony. Therefore, the jury already knew of the benefits Billips received. Second, other evidence established that defendant was guilty of the crime and that Cooks did not fire at defendant, thereby causing defendant to shoot Cooks in self-defense. Thus, even if Billips' testimony would have been discredited by the fact that he had received another benefit, the remaining evidence would have been sufficient to convict defendant and defeat any self-defense claim. ¶ 21 We note that defendant also argues that appellate counsel was ineffective for not raising the ineffectiveness of trial counsel on appeal. However, because we have concluded that defendant's argument regarding the ineffectiveness of trial counsel is without merit, we do not find that appellate counsel was ineffective. See People v. Moore, 177 Ill. 2d 421 (1997) (appellate counsel is only ineffective if counsel fails to raise a meritorious issue on appeal). ¶ 22 Having found that there was no merit to defendant's claims of ineffective assistance of counsel, we conclude that the trial court did not err when it summarily dismissed defendant's postconviction petition.
¶ 23 CONCLUSION
¶ 24 The judgment of the circuit court of Kankakee County is affirmed. ¶ 25 Affirmed.