Opinion
No. 1-13-2376
10-28-2015
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK SPECIALE, 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. 12 CR 17557 The Honorable Clayton J. Crane, Judge Presiding. JUSTICE PUCINSKI delivered the judgment of the court.
Presiding Justice Mason and Justice Fitzgerald Smith concurred in the judgment.
ORDER
¶ 1 Held: Defendant's UUWF conviction and the sentence imposed thereon are vacated because his prior Class 4 AUUW conviction, which was based on a statutory provision subsequently found to be unconstitutional and void ab initio in Aguilar, could not satisfy the prior felony element of UUWF. Defendant's AUUW convictions for carrying a firearm without a valid FOID card are affirmed and the cause remanded for sentencing on the AUUW counts (three, five, and seven). ¶ 2 Following a bench trial, defendant Frank Speciale was found guilty of one count of unlawful use of a weapon by a felon (UUWF) and three counts of aggravated unlawful use of a weapon (AUUW). The trial court merged the convictions and sentenced defendant to four years' imprisonment, followed by two years of mandatory supervised release, for his conviction on count one for UUWF. On appeal, defendant contends that his UUWF conviction must be vacated because the underlying predicate felony, his prior Class 4 AUUW conviction, was rendered void ab initio by People v. Aguilar, 2013 IL 112116. He also contends that we should not remand for sentencing on any of the three merged counts of AUUW where the subsection under which he was found guilty is "essentially and inseparably connected" to the subsection found unconstitutional by the supreme court in Aguilar.
¶ 3 BACKGROUND
¶ 4 The record shows that defendant was charged by information, under case number 12 CR 17557, with one count of UUWF and six counts of AUUW. Specifically, count one charged defendant with UUWF for knowingly possessing a firearm on his person after having been previously convicted of AUUW under case number 08 CR 9332. 720 ILCS 5/24-1.1(a) (West 2012). Count two charged defendant with AUUW for knowingly carrying an "uncased, loaded and immediately accessible" firearm inside a vehicle outside his home. 720 ILCS 5/24-1.6(a)(1)/(3)(B) (West 2012). Count three charged defendant with AUUW for knowingly carrying a firearm inside a vehicle outside his home without having been issued a currently valid Firearm Owner's Identification (FOID) card. 720 ILCS 5/24-1.6(a)(1)/(3)(C) (West 2012). Count four charged defendant with AUUW for knowingly carrying an uncased, unloaded firearm outside his home when the ammunition was immediately accessible. 720 ILCS 5/24-1.6(a)(1)/(3)(B) (West 2012). Count five charged defendant with AUUW for knowingly carrying an uncased, unloaded firearm outside his home without having been issued a currently valid FOID card. 720 ILCS 5/24-1.6(a)(1)/(3)(C) (West 2012). Count six charged defendant with AUUW for knowingly carrying a firearm on his person, upon a public street and the firearm was "uncased, unloaded and the ammunition for the weapon was immediately accessible." 720 ILCS 5/24-1.6(a)(2)/(3)(B) (West 2012). Count seven charged defendant with AUUW for knowingly carrying a firearm on his person, upon a public street, and without having been issued a currently valid FOID card. 720 ILCS 5/24-1.6(a)(2)/(3)(C) (West 2012). As to sentencing, the State further alleged in each of the six AUUW counts, "The State shall seek to sentence [defendant] as a Class 2 offender in that he has been previously convicted of the offense of [AUUW] under case number 08CR09332." Additionally, the supplemental common law record contains the information in case number 08 CR 9332, charging defendant with four counts of AUUW, and a corresponding certified statement of defendant's Class 4 AUUW conviction under count one, which was introduced by the State at trial. ¶ 5 Briefly stated, the evidence presented at trial showed that at 1:37 a.m. on September 10, 2012, Chicago police officers Brian Cahill and Mark Foster responded to a report of shots fired at a gas station located at the intersection of Archer Street and Halsted Avenue. There, the officers observed a minivan matching the suspect vehicle description given over the radio and followed it for a short distance. Officer Foster was driving when Officer Cahill observed the hand of a white male toss a handgun out of the front passenger window and onto a city garbage can in an alley. Officer Cahill identified defendant in court as the white male that he observed seated in the front passenger seat of the minivan when it was stopped. A .380-caliber handgun with an empty five-round magazine was recovered and inventoried. Five .380-caliber cartridge casings were recovered from the ground at the gas station. During questioning under Miranda, defendant explained that he had the handgun because he had been shot by a street gang known as the Satan Disciples. In addition, the parties stipulated that defendant did not possess a valid FOID card at the time, and the State introduced a certified statement of defendant's prior Class 4 AUUW conviction under case number 08 CR 9332. After the State rested its case-in-chief, the trial court granted defendant's motion for a directed verdict on count two, which alleged AUUW based on knowingly carrying a loaded firearm, because the evidence established that the handgun was unloaded or empty. However, the trial court denied the motion as to the remaining counts in the information. Thereafter, defendant presented the testimony of his cousin, Daniel Massey, the driver of the minivan. According to Massey, defendant sat in the back of the minivan where the windows do not open and a Hispanic male acquaintance sat in the front passenger seat. ¶ 6 The trial court found defendant guilty of counts one (UUWF), three, five, and seven (AUUW), and "not guilty" of counts two, four, and six. The trial court merged the convictions and sentenced defendant to four years' imprisonment, followed by two years of mandatory supervised release, for his conviction on count one for UUWF. ¶ 7 In this court, defendant first contends that his UUWF conviction must be vacated because the underlying predicate felony, his prior Class 4 AUUW conviction, was rendered void ab initio by People v. Aguilar, 2013 IL 112116.
Subsection (3)(B) of the AUUW statute provides that "the firearm possessed was uncased, unloaded and the ammunition for the weapon was immediately accessible at the time of the offense." (Emphasis added.) 720 ILCS 5/24-1.6(3)(B) (West 2012). --------
¶ 8 ANALYSIS
¶ 9 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. The constitutionality of a criminal statute may be raised at any time, subject to de novo review. People v. Henderson, 2013 IL App (1st) 113294, ¶ 11. ¶ 10 To sustain a conviction for UUWF, the State must prove that defendant knowingly possessed a weapon or ammunition, and that he had previously been convicted of a felony. 720 ILCS 5/24-1.1(a) (West 2012). "Illinois law has long held that, in prosecutions for the offense of UUW by a felon, the prior felony conviction is an element of the offense which must be proven beyond a reasonable doubt by the State in its case in chief." People v. McFadden, 2014 IL App (1st) 102939, ¶ 42 (citing People v. Walker, 211 Ill. 2d 317 (2004)). ¶ 11 In Aguilar, 2013 IL 112116, ¶ 22, our supreme court held the Class 4 version of the AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)), to be facially unconstitutional in violation of the second amendment right to bear arms. Here, at trial, the State entered into evidence a certified statement of defendant's prior Class 4 AUUW conviction in case number 08 CR 9332, and after trial, the court found defendant guilty of one count of UUWF (count one) and three counts of AUUW (counts three, five, and seven), but "not guilty" of the remaining three counts of AUUW (counts two, four, and six). ¶ 12 Defendant argues that because his prior Class 4 AUUW conviction is void ab initio under Aguilar, the State could not rely on it in satisfaction of the subject prior felony conviction element of UUWF. As support for his argument, defendant cites the opinions of this court in People v. Dunmore, 2013 IL App (1st) 121170, People v. McFadden, 2014 IL App (1st) 102939, pet. for leave to appeal allowed, No. 117424 (May 28, 2014), and People v. Fields, 2014 IL App (1st) 110311, pet. for leave to appeal denied, No. 117457 (May 28, 2014). ¶ 13 In Dunmore, the defendant pled guilty to one count of AUUW and was sentenced to 18 months' probation. Dunmore, 2013 IL App (1st) 121170, ¶ 3. When the defendant violated the terms of his probation, the trial court revoked his probation and sentenced him to two years' imprisonment on the underlying AUUW conviction. Dunmore, 2013 IL App (1st) 121170, ¶ 5. Noting that judicial decisions declaring a statute unconstitutional apply to cases pending on direct appeal and our independent duty to vacate void orders, we observed that once the defendant's appeal of his probation revocation came before us, we were bound to apply Aguilar and vacate the defendant's AUUW conviction as void. Dunmore, 2013 IL App (1st) 121170, ¶ 10. The State acknowledged the same and requested that the cause be remanded for reinstatement of the charges that were nol-prossed, asserting that whatever charges it reinstated would likely pass constitutional muster. Dunmore, 2013 IL App (1st) 121170, ¶ 11. We declined the State's invitation to render what would essentially be an advisory opinion on the constitutionality of charges yet to be reinstated. Dunmore, 2013 IL App (1st) 121170, ¶ 12. Rather, in light of Aguilar, we vacated the defendant's AUUW conviction, the probation order based on that conviction, and the two-year prison sentence imposed upon the revocation of probation as void. Dunmore, 2013 IL App (1st) 1121170, ¶ 9. ¶ 14 In McFadden, the Second Division of this court vacated the defendant's UUWF conviction, finding that the evidence was insufficient to sustain the conviction where his prior Class 4 AUUW conviction, in case number 02 CR 30903, was used to satisfy the prior felony element of the offense. McFadden, 2014 IL App (1st) 102939, ¶¶ 41-44. In so finding, the reviewing court added that it found Dunmore to be instructive, notwithstanding differences in procedural posture, i.e., unlike Dunmore's AUUW conviction, McFadden's AUUW conviction in case number 02 CR 30903 was not at issue. McFadden, 2014 IL App (1st) 102939, ¶ 41. The reviewing court reasoned, "because defendant's case is pending on direct appeal in this court, similar to the court in Dunmore we cannot ignore Aguilar's effects on his conviction for UUW by a felon." McFadden, 2014 IL App (1st) 102939, ¶ 41 (citing Dunmore, 2013 IL App (1st) 121170, ¶ 10; People v. Gersch, 135 Ill. 2d 384, 397 (1990) (judicial decisions that declare a statute unconstitutional apply to cases pending on direct review)). ¶ 15 In Fields, the Second Division of this court vacated the defendant's armed habitual criminal conviction in light of Aguilar "because the State could not prove an element of the offense of armed habitual criminal through the use of a predicate felony conviction [AUUW] that is void ab initio." Fields, 2014 IL App (1st) 110311, ¶ 44. Again, the reviewing court found Dunmore to be instructive, notwithstanding the differences in procedural posture. Fields, 2014 IL App (1st) 110311, ¶¶ 40, 42. The reviewing court reasoned, "because defendant's case is pending on direct appeal in this court, similar to the court in Dunmore we cannot ignore Aguilar's effects on his conviction for armed habitual criminal." Fields, 2014 IL App (1st) 110311, ¶ 42 (citing Dunmore, 2013 IL App (1st) 121170, ¶ 10; Gersch, 135 Ill. 2d at 397). ¶ 16 Moreover, we observe that in People v. Claxton, 2014 IL App (1st) 132681, ¶ 20, the Fifth Division of this court vacated the defendant's UUWF conviction, finding that the evidence was insufficient to sustain the conviction where his prior AUUW conviction in case number 11 CR 16293, was used to satisfy an essential element of the defendant's UUWF conviction. In so finding, the reviewing court added that it agreed with Fields and McFadden that a prior conviction for AUUW unconstitutional under Aguilar is void ab initio and cannot form the predicate felony element of a subsequent offense, and further stated, "A statute declared unconstitutional on its face is void ab initio, that is 'was constitutionally infirm from the moment of its enactment and, therefore, is unenforceable.' " Claxton, 2014 IL App (1st) 132681, ¶ 16 (quoting People v. Davis, 2014 IL 115595, ¶ 25). Further, the reviewing court did not find the State's federal authority persuasive because, unlike Illinois courts, it did not recognize the distinction between void and voidable judgments. Claxton, 2014 IL App (1st) 132681, ¶ 19. ¶ 17 Here, as in Dunmore, McFadden, Fields, and Claxton, we cannot allow defendant's prior Class 4 AUUW conviction, which was based on a statute that was found to be unconstitutional and void ab initio in Aguilar, to stand as the predicate offense for his UUWF conviction. Claxton, 2014 IL App (1st) 132681, ¶ 16 (agreeing with Fields and McFadden). The State disagrees, citing Lewis v. United States, 445 U.S. 55 (1980), "eleven federal circuit courts and fifteen states" for the proposition that "the person's status as a felon at the time he possess[es] a firearm controls; any subsequent expungement or invalidation of the predicate conviction is irrelevant." This proposition, however, was considered and rejected in Claxton, 2014 IL App (1st) 132681, ¶ 19, wherein the Fifth Division of this court noted that federal cases interpreting federal statutes are not binding on Illinois courts interpreting Illinois statutes, but are merely persuasive authority. See also People v. Gutman, 2011 IL 110338, ¶ 17 ("A federal court's construction of a federal statute is not binding on Illinois courts in construing a similar state statute."). In turn, we are not persuaded by the federal cases cited by the State because they do not recognize the distinction between void and voidable judgments. See Claxton, 2014 IL App (1st) 132681, ¶ 19 ("Illinois courts have maintained the distinction between void and voidable judgments, and we shall not abandon it now."). ¶ 18 The State concedes that McFadden and Fields are factually on point with the facts here, but argues that they were wrongly decided. Although we acknowledge the State's footnote citation that it filed petitions for leave to appeal in McFadden and Fields, we are bound to honor our supreme court's decision in Aguilar unless, and until, it is revised by our supreme court or overruled by the United States Supreme Court. People v. Fountain, 2012 IL App (3d) 090558, ¶ 23. Applying Aguilar, as we are bound to do, we vacate defendant's UUWF conviction and the sentence imposed thereon "because the State did not prove an essential element of the offense where it alleged in the charging instrument and proved at trial a predicate offense that has been declared unconstitutional and void ab initio." McFadden, 2014 IL App (1st) 102939, ¶ 43. ¶ 19 Defendant next contends that we should not remand for sentencing on any of the three merged counts of AUUW without a currently valid FOID card where the underlying subsection, (a)(3)(C), is "essentially and inseparably connected" to subsection (a)(3)(A), which was found unconstitutional by our supreme court in Aguilar. The State responds, and defendant concedes in his reply brief, that this position is foreclosed by our supreme court's recent decision in People v. Mosley, 2015 IL 115872, ¶ 31, which held that subsection (a)(3)(C) of the AUUW statute (720 ILCS 5/24-1.6 (a)(3)(C) (West 2012)) "can stand independently without the inclusion of subsection (a)(3)(A)," which was invalidated by Aguilar. See also In re Jordan G., 2015 IL 116834, ¶ 19 ("We continue to hold that severing subsection (a)(3)(A) 'undermines neither the completeness of, nor the ability to, execute the remaining subsections.' "). However, defendant maintains, and we agree, that we must remand the matter for sentencing on the AUUW counts (three, five, and seven) because his prior Class 4 AUUW conviction for violating the unconstitutional (a)(3)(A) subsection "cannot form a valid basis to elevate the present AUUW charge[s] from Class 4 to Class 2." Mosley, 2015 IL 115872, ¶ 61; 720 ILCS 5/24-1.6(d)(1) (West 2012); 730 ILCS 5/5-4.5-45(a) (West 2012); see People v. Dixon, 91 Ill. 2d 346, 353-54 (1982) (remanding the cause for imposition of sentence pursuant to Illinois Supreme Court Rule 615(b)(2) (eff. April 1, 2015)).
¶ 20 CONCLUSION
¶ 21 For the reasons stated, we vacate defendant's UUWF conviction and the sentence imposed thereon; we affirm defendant's AUUW convictions for carrying a firearm without a valid FOID card and remand for sentencing on the AUUW counts (three, five, and seven). ¶ 22 Affirmed in part; vacated in part; and remanded with instructions.