People v. Fulton

2016 IL App (1st) 141765

FIRST DIVISION
March 31, 2016

No. 1-14-1765

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 11 CR 12001
)
PARNELL FULTON, ) Honorable
) Clayton J. Crane,
Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE LIU delivered the judgment of the court, with opinion.
Justice Cunningham and Justice Connors concurred in the judgment and opinion.

OPINION

¶1 Defendant was convicted of being an armed habitual criminal, aggravated unlawful use

of a weapon, and unlawful use of a weapon by a felon. On appeal, he contends that his armed

habitual criminal conviction subjected him to an improper double enhancement, and that the

armed habitual criminal statute violates substantive due process because it potentially

criminalizes innocent conduct. We find that defendant was not subjected to improper double

enhancement where his conviction for delivery of a controlled substance was only used once, as

a predicate felony, to support his conviction as an armed habitual criminal. Furthermore, the

armed habitual criminal statute is not unconstitutional where the statute is rationally related to

the public interest it serves and defendant failed to demonstrate that the statute could not be

constitutionally applied in any set of circumstances. For these reasons, we affirm the judgment of

the circuit court.
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¶2 BACKGROUND

¶3 Defendant, Parnell Fulton, was charged by information with being an armed habitual

criminal (count I), four counts of aggravated unlawful useful of a weapon (counts II through V),

and two counts of unlawful use of a weapon by a felon (counts VI and VII). Following a bench

trial, the trial court found him guilty on all counts. Defendant was sentenced to a term of six

years' imprisonment each for his armed habitual criminal conviction and his aggravated unlawful

use of a weapon conviction, to run concurrently. The remaining counts were merged into the

armed habitual criminal count.

¶4 The following evidence was adduced during defendant's trial in September of 2013.

Officer Tyson Colvin testified that on July 14, 2011, he was with a group of 10 to 12 other

officers when they received information that weapons "were being kept" in a green Cadillac

"with an off color bumper," which was parked near 4200 West Adams Street in Chicago, Illinois.

At approximately 6:30 p.m., the officers proceeded to the area where Officer Colvin saw the

Cadillac, although no one was in or around the vehicle at the time. He set up surveillance to

watch the vehicle and, approximately 30 minutes later, saw defendant approach the vehicle, open

the driver's side door, and "bend over into the vehicle." Officer Colvin notified his fellow

officers and two "enforcement cars" approached defendant, one from each direction on Adams

Street. When defendant noticed the squad car approaching from the west, he left the vehicle and

started walking east on Adams Street. Shortly after, defendant was detained by the officers in the

car that approached from the west.

¶5 Officer Robert Blomquist testified that on July 14, 2011, he and his partner, Officer Gary

McGovern, along with a larger team of officers, had received information that a green Cadillac

"possibly had a weapon in it." Officers Blomquist and McGovern were assigned to enforcement

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and were posted at Jackson Boulevard and Kildare Avenue. At approximately 7 p.m., they

received information that a person had approached the driver's side of the green Cadillac,

"opened the door, made some sort of the [sic] movement that [Officer Colvin] was not sure about

at that time, and that's when he called for enforcement to come in." According to Officer

Blomquist, he and his partner drove toward the green Cadillac's location and then drove east on

Adams Street, toward the green Cadillac. Another enforcement vehicle approached the Cadillac

from the other direction, and there was a third enforcement vehicle behind his squad car. As they

approached, Officer Blomquist saw defendant crossing Adams Street, and said it "looked like he

was coming from the green Cadillac." He testified that he also observed "a brown handle [of]

what looked to be like a butt of a .38 revolver" protruding from defendant's right pocket. When

the officers were about 10 feet away from defendant, they ordered him to raise his hands, and

Officer Blomquist recovered "a .38 caliber Smith & Wesson fully loaded revolver" from

defendant's right front pocket. Defendant was arrested and, after receiving his Miranda rights, he

made a statement, saying that "he had that gun for protection because his cousin was shot."

¶6 The State then entered two certified convictions of defendant into evidence: (1) a 2007

conviction for unlawful use of a weapon by a felon in case number 07 CR 11926; and (2) a 2006

conviction for manufacture and delivery of a controlled substance in case number 06 CR 3407.

Additionally, the State entered a FOID certification for defendant, which stated that "defendant

did not have a currently valid FOID card issued to him on the date in question." The parties also

stipulated that the gun recovered from defendant was tested for fingerprints and the exam

"resulted in a negative finding for the presence of any ridge impressions."

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¶7 II. ANALYSIS

¶8 A. Double Enhancement

¶9 Defendant first contends that he was subjected to an improper double enhancement

because his 2006 conviction for delivery of a controlled substance was used twice to support the

armed habitual criminal conviction: once as its own predicate felony and once as an element of

the second predicate felony, a 2007 conviction for unlawful use of a weapon by a felon (UUWF).

An impermissible double enhancement occurs when either: (1) a single factor is used as an

element of an offense and as a "basis for imposing 'a harsher sentence than might otherwise have

been imposed' "; or (2) "when the same factor is used twice to elevate the severity of the offense

itself." People v. Phelps, 211 Ill. 2d 1, 12-13 (2004) (quoting People v. Gonzalez, 151 Ill. 2d 79,

83-84 (1992)). Our supreme court has explained that "[t]he reasoning behind this prohibition is

that it is assumed that the legislature, in determining the appropriate range of punishment for a

criminal offense, necessarily took into account the factors inherent in the offense." Gonzalez, 151

Ill. 2d at 84. Where our legislature "designates the sentences which may be imposed for each

class of offenses," it "necessarily considers the factors that make up each offense in that class."

Id. "Thus, to use one of those same factors that make up the offense as [a] basis for imposing a

harsher penalty than might otherwise be imposed constitutes a double use of a single factor."

(Emphasis omitted.) Id. Whether a defendant has been subject to an improper double

enhancement is a question of statutory construction, which we review de novo. Phelps, 211 Ill.

2d at 12.

¶ 10 The statutory provision at issue here, section 24-1.7 of the Criminal Code of 2012

(Code), provides in pertinent part:

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"(a) A person commits the offense of being an armed habitual

criminal if he *** possesses *** any firearm after having been convicted

of a total of 2 or more times any combination of the following offenses:

(1) a forcible felony ***;

(2) unlawful use of a weapon by a felon ***; or

(3) any violation of the Illinois Controlled Substances Act

*** that is punishable as a Class 3 felony or higher.

(b) Sentence. Being an armed habitual criminal is a Class X

felony." 720 ILCS 5/24-1.7 (West 2012).

¶ 11 This court recently considered the same question defendant presents in People v.

Johnson, 2015 IL App (1st) 133663. In Johnson, the defendant was convicted as an armed

habitual criminal based on his possession of a weapon after having been previously convicted of

residential burglary, which qualifies as a forcible felony pursuant to section 2-8 of the Code (720

ILCS 5/2-8 (West 2012)), and UUWF (720 ILCS 5/24-1.1 (West 2012)). Johnson, 2015 IL App

(1st) 133663, ¶ 16. He argued on appeal that he was subject to an improper double enhancement

because his prior residential burglary conviction "was used to prove both predicate felonies of

the armed habitual criminal offense-once by itself, and then again as an element of the second

predicate felony of UUWF." Id. ¶ 13. This court first noted that both of the predicate offenses

relied on by the trial court were "clearly enumerated" by section 24-1.7 of the Code "as valid

offenses upon which to base an armed habitual criminal conviction." Id. ¶ 16. However, we

further observed that the "fact that the residential burglary conviction was the felony upon which

defendant's UUWF conviction was based does not negate the validity of the two offenses as the

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predicate offenses for defendant's armed habitual criminal conviction." Id. Our rationale for this

proposition was as follows:

"Finding that a UUWF conviction could not be predicated on the same

conviction (here, residential burglary) as that used for one of the predicate

offenses required for an armed habitual criminal conviction would render

the armed habitual criminal statute illogical. If defendant's construction of

the armed habitual criminal statute were to be accepted, any defendant

whose armed habitual criminal conviction consisted of the offense of

UUWF would then have to have a third conviction—one that did not serve

as a predicate offense to his UUWF conviction. Defendant's conclusion

reads into the armed habitual criminal statute an element that is not there:

that a court can only use the predicate felony of UUWF if that UUWF

conviction is based on a felony other than the one used as the second

predicate felony for the armed habitual criminal conviction. In other

words, when using UUWF as a predicate felony for an armed habitual

criminal conviction, the offender would have to have at least three prior

felony convictions instead of two. There is no such language in the armed

habitual criminal statute, and we refuse to read it into the statute.

[Citation.] Accordingly, we find that there was no improper double

enhancement in this case." Id. ¶ 18.

¶ 12 Similarly, in the appeal now before us, defendant's armed habitual criminal conviction

was based on two prior convictions: (1) delivery of a controlled substance, a Class 1 felony

under the Illinois Controlled Substances Act (720 ILCS 570/401(c)(1) (West 2006)); and

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(2) UUWF (720 ILCS 5/24-1.1 (West 2006)). Both predicate felony convictions are clearly

enumerated as valid offenses upon which to base an armed habitual criminal conviction. 720

ILCS 5/24-1.7 (West 2012). As the State points out, "no single factor was used both as an

element of the offense and as a factor to impose a harsher sentence." That the 2006 delivery of a

controlled substance conviction supported his 2007 UUWF conviction "does not negate the

validity of the two offenses as the predicate offenses" for his armed habitual criminal conviction.

Johnson, 2015 IL App (1st) 133663, ¶ 16. Moreover, requiring a third predicate felony offense

would add a new element to the statute, rendering the statute "illogical" as we noted in Johnson,

and we decline to read such a requirement into the statute. Accordingly, we find that no double

enhancement resulted from defendant's conviction as an armed habitual criminal based on his

2006 and 2007 convictions.

¶ 13 In support of his argument, defendant relies on People v. Del Percio, 105 Ill. 2d 372

(1985) and the case it interpreted, People v. Haron, 85 Ill. 2d 261 (1981). These cases are

distinguishable. Both Del Percio and Haron involved defendants who were convicted of armed

violence, an offense which, at that time, occurred when a person, " 'while armed with a

dangerous weapon, *** commits any felony defined by Illinois law.' " Del Percio, 105 Ill. 2d at

376 (quoting Ill. Rev. Stat.1979, ch. 38, ¶ 33A-2). In Haron, due to the defendant's possession of

a pistol during the commission of the offense, his battery charge was enhanced to aggravated

battery, and the aggravated battery was used as a predicate offense to charge him with armed

violence. Haron, 85 Ill. 2d at 264. Our supreme court held that the legislature "did not intend that

the presence of a weapon serve to enhance an offense from misdemeanor to felony and also to

serve as the basis for a charge of armed violence." Haron, 85 Ill. 2d at 278.

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¶ 14 In Del Percio, the defendant was convicted and sentenced for various offenses related to

his use of a shotgun during an attempted robbery, including attempted armed robbery and armed

violence predicated on the attempted armed robbery. Del Percio, 105 Ill. 2d at 375. The trial

court subsequently vacated the judgment on the attempted armed robbery charge as a lesser

included offense of armed violence predicated on attempted armed robbery. Id. at 374-75. The

appellate court affirmed, and the supreme court granted the defendant's petition for leave to

appeal. Id. at 375. On appeal, the defendant argued that his armed violence conviction resulted in

improper double enhancement because his possession of the shotgun during the crime was first

used to enhance the offense of attempted robbery to attempted armed robbery, and then to

enhance the attempted armed robbery to armed violence. Del Percio, 105 Ill. 2d at 376-78. The

supreme court agreed, noting that in Haron it had found the armed violence statute

" 'contemplates the commission of a predicate offense which is a felony without enhancement by

the presence of a weapon.' " Del Percio, 105 Ill. 2d at 376 (quoting Haron, 85 Ill. 2d at 278). The

Del Percio court further observed that the Illinois Appellate Courts had applied Haron in two

ways: some finding an improper double enhancement only if the predicate offense was enhanced

from a misdemeanor to a felony, but not from a lesser felony to a greater felony; and others

finding an improper double enhancement even when the predicate offense was enhanced from a

lesser felony to a greater felony. Del Percio, 105 Ill. 2d at 377. Concluding that "Haron applies

whenever a predicate felony is doubly enhanced because of the presence of a weapon," the

supreme court held that the use of the shotgun to enhance the defendant's attempted robbery to

attempted armed robbery and then again to armed violence was an improper double

enhancement. Del Percio, 105 Ill. 2d at 377.

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¶ 15 Defendant argues that, as in Del Percio and Haron, "the same factor was used twice in

this case in order to enhance the charged offense to Class X armed habitual criminal." However,

in those cases, a single factor—the presence of a dangerous weapon—was used both to enhance

the predicate offense to a more serious offense, and as an element of the more serious charge of

armed violence. The resulting judgments fall squarely within the definition of an improper

double enhancement. Here, in contrast, there was no enhancement. Defendant was originally

charged as being an armed habitual criminal and the two predicate offenses, delivery of a

controlled substance and UUWF, were used only once each as an element of the armed habitual

criminal offense. No harsher sentence was imposed and the severity of the offense was never

elevated: defendant was charged as an armed habitual criminal, a Class X offense, he was

convicted as an armed habitual criminal, and he was sentenced as a Class X offender. Therefore,

Del Percio and Haron are unavailing.

¶ 16 B. Constitutionality

¶ 17 Defendant next contends that the armed habitual criminal statute is unconstitutional on its

face. According to defendant, a twice-convicted felon may obtain a Firearm Owner's

Identification (FOID) card pursuant to the Firearm Owners Identification Card Act (FOID Card

Act) (430 ILCS 65/0.01 et seq. (West 2012)) and article I, section 22, of the Illinois Constitution

(Ill. Const. 1970, art. I, § 22). He argues that because the armed habitual criminal statute

criminalizes possession of a weapon regardless of whether that person has a FOID card, the

armed habitual criminal statute violates substantive due process by "potentially [criminalizing]

innocent conduct." People v. Carpenter, 228 Ill. 2d 250, 269 (2008).

¶ 18 Initially, the State asserts that defendant does not have standing to challenge the

constitutionality of the armed habitual criminal statute because in the proceedings at issue here,

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"defendant never claimed to have applied for a FOID Card and there is no evidence in the record

that he did." The State concludes that because defendant did not possess a FOID card, his

possession of a hand gun was not "innocent conduct" and defendant was not injured by the

armed habitual criminal statute.

¶ 19 It is true that for a party to have standing to challenge the constitutionality of a statute, he

must be able to show that " 'he has sustained or is in immediate danger of sustaining some direct

injury as a result of the statute.' " People v. Aguilar, 2013 IL 112116, ¶ 12 (quoting People v.

Mayberry, 63 Ill. 2d 1, 8 (1976)). However, defendant here is challenging the armed habitual

criminal statute as facially unconstitutional, and similar to the defendant in Aguilar, he is

therefore arguing the statute cannot be enforced against anyone, including himself. See Aguilar,

2013 IL 112116, ¶ 12 (noting that the defendant was arguing that two statutes "themselves

facially violate the second amendment, and that consequently neither statute can be enforced

against anyone" (emphases in original)). Having been convicted under a statute that he contends

is facially unconstitutional—the armed habitual criminal statute—defendant has allegedly

suffered the required injury and has standing to challenge the statute's constitutionality.

¶ 20 The constitutionality of a statute is reviewed de novo. People v. Patterson, 2014 IL

115102, ¶ 90. All statutes are presumed to be constitutional, and the party challenging the statute

has the "heavy burden" of overcoming this presumption by clearly establishing a constitutional

violation. Id. Furthermore, it is our duty to uphold a statute's constitutionality "whenever

reasonably possible, resolving any doubts in favor of its validity." Id. A facial challenge to a

statute, in contrast to an "as applied" challenge, is "the most difficult" because "the challenger

must establish that no set of circumstances exists under which the Act would be valid.

[Citations.]" (Internal quotation marks omitted.) People v. Greco, 204 Ill. 2d 400, 407 (2003).

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¶ 21 "The legislature has wide discretion to establish penalties for criminal offenses, but that

discretion is limited by the constitutional guarantee that a person may not be deprived of liberty

without due process of law." Carpenter, 228 Ill. 2d at 267. If the challenged statute does not

affect "a fundamental constitutional right," then the rational basis test is used to determine

whether the statute comports with substantive due process requirements. Id. A statute will be

upheld under the rational basis test where "it bears a reasonable relationship to a public interest

to be served, and the means adopted are a reasonable method of accomplishing the desired

objective." (Internal quotation marks omitted.) Id. at 267-68 (quoting People v. Wright, 194 Ill.

2d 1, 24 (2000), quoting People v. Adams, 144 Ill. 2d 381, 390 (1991)).

¶ 22 The armed habitual criminal statute creates a Class X felony offense for any person who

possesses a firearm if they have been previously twice-convicted of a list of enumerated felony

offenses, including all forcible felonies, UUWF, and Class 3 or higher drug-related felonies. 720

ICLS 5/24-1.7(a) (West 2012). Under the FOID Card Act, a person who is convicted of a felony

may have their FOID card revoked and seized or their application for a FOID card denied. 430

ILCS 65/8(c) (West 2012). However, pursuant to section 10 of the FOID Card Act, such a person

"may apply to the Director of State Police or petition the circuit court ***, requesting relief from

such prohibition." 430 ILCS 65/10(c) (West 2012). Relief may be granted if the following is

established: (1) the applicant has not been convicted of a forcible felony within the 20 years of

the application for a FOID card, or at least 20 years have passed since the end of any sentence

related to such a conviction; (2) in light of his criminal history and reputation, an applicant "will

not be likely to act in a manner dangerous to public safety"; (3) a grant of relief is not contrary to

the public interest; and (4) a grant of relief is not contrary to federal law. Pub. Act 97-1131, § 15

(eff. Jan. 1, 2013) (amending 430 ILCS 65/10(c) (West 2012)).

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¶ 23 According to defendant, the armed habitual criminal statute violates substantive due

process because it "criminalizes wholly innocent conduct" and does not bear a rational

relationship to the purpose it is meant to serve. However, this same question was considered in

Johnson, where we stated:

"While it may be true that an individual could be twice-convicted

of the offenses set forth in the armed habitual criminal statute and still

receive a FOID card under certain unlikely circumstances, the invalidity of

a statute in one particular set of circumstances is insufficient to prove that

a statute is facially unconstitutional. [Citation.] The armed habitual

criminal statute was enacted to help protect the public from the threat of

violence that arises when repeat offenders possess firearms. [Citation.]

The Supreme Court explicitly noted in District of Columbia v. Heller, 554

U.S. 570[, 626] (2008), that 'nothing in our opinion should be taken to cast

doubt on longstanding prohibitions on the possession of firearms by

felons.' [Citation.] *** Accordingly, we find that the potential invalidity of

the armed habitual criminal statute in one very unlikely set of

circumstances does not render the statute unconstitutional on its face."

Johnson, 2015 IL App (1st) 133663, ¶ 27.

We see no reason to depart from the holding in Johnson and therefore find that the armed

habitual criminal statute does not violate substantive due process.

¶ 24 Defendant cites to Coram v. State of Illinois, 2013 IL 113867 in support of his argument,

but we find that case inapposite. In Coram, the supreme court discussed the FOID Card Act but

did not consider the constitutionality of the armed habitual criminal statute. Id. Coram cannot be

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considered to be applicable because at the time of that decision, the amended version of section

10 of the FOID Card Act (430 ILCS 65/10 (West 2012)) was not in effect. See Johnson, 2015 IL

App (1st) 133663, ¶ 29 (noting that the amended FOID Act provision at issue in the case was not

in effect when it decided Coram). As a result, there was nothing in the statute at the time Coram

was decided to prevent the trial court from granting that defendant the relief under section 10 that

he sought. Here, in contrast, the amended version of section 10 is in effect, and we look to

Johnson, not Coram, for proper guidance.

¶ 25 In addition to finding defendant's one particular set of unlikely circumstances insufficient

to render the armed habitual criminal statute facially unconstitutional, we also reject defendant's

reliance on People v. Madrigal, 241 Ill. 2d 463 (2011) and Carpenter, 228 Ill. 2d 250, based on

which he argues that the statute fails the rational basis test because it criminalizes "wholly

innocent conduct." In Madrigal, the supreme court found section 16G-15(a)(7) of the Identity

Theft Law (720 ILCS 5/16G-15(a)(7) (West 2008)) was unconstitutional. Madrigal, 241 Ill. 2d at

479. Section 16G-15(a)(7) provided that a person committed identity theft when he "knowingly

*** uses any personal identification information or personal identification document of another

for the purpose of gaining access to any record of the actions taken, communications made or

received, or other activities or transactions of that person, without the prior express permission of

that person." 720 ILCS 5/16G-15(a)(7) (West 2008). A person convicted of violating section

16G-15(a)(7) was guilty of a Class 3 felony, punishable by up to five years in prison. Madrigal,

241 Ill. 2d at 465. The defendant, who was charged with violating section 16G-15(a)(7), moved

to dismiss the indictment, arguing in pertinent part that the section failed "to require a culpable

mental state and therefore can be read to apply to conduct that is wholly innocent." Id. The trial

court granted the motion to dismiss on that ground and the State appealed. Id. at 465-66.

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¶ 26 On appeal, both parties agreed that the purpose of the identity theft statute was "to protect

the economy and people of Illinois from the ill-effects of identity theft." Id. at 467. The court

noted it had "repeatedly held" that a statute violates due process "if it potentially subjects wholly

innocent conduct to criminal penalty without requiring a culpable mental state beyond mere

knowledge." Id. It reasoned that in those instances, the statute does not bear a rational basis to its

purpose "because it does not represent a reasonable method of preventing the targeted conduct."

Id. at 468. Section 16G-15(a)(7) failed the rational basis test because it would "potentially punish

as a felony a wide array of wholly innocent conduct." (Emphasis added.) Id. at 471. The court

further explained:

"For example, doing a computer search through Google or some other

search engine or through a social networking site such as Facebook or

MySpace, by entering someone's name, could uncover numerous records

of actions taken, communications made or received, or other activities or

transactions of that person. Thus, the statute as it currently reads would

criminalize such innocuous conduct as someone using the internet to look

up how their neighbor did in the Chicago Marathon. Moreover, a husband

who calls a repair shop for his wife, without her 'prior express permission,'

to see if her car is ready, what was wrong, and how much the repair bill is,

would be seeking information in violation of the statute." Id. at 471-72.

The court concluded that the section's lack of culpable mental state "potentially punishes a

significant amount of wholly innocent conduct not related to the statute's purpose" and was not a

rational way of "addressing the problem of identity theft." Id. at 473.

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¶ 27 The statute at issue in Carpenter was section 12-612 of the Illinois Vehicle Code (625

ILCS 5/12-612 (West 2004)), under which it was unlawful for a person to own or operate a car

that the person knew "to contain a false or secret compartment" or to "to knowingly install, build,

or fabricate *** a false or secret compartment" in a car. 625 ILCS 5/12-612(a) (West 2004).

Under that statute, a "secret compartment" was defined as "any enclosure that is intended and

designed to be used to conceal, hide, and prevent discovery by law enforcement officers of the

false or secret compartment, or its contents, and which is integrated into a vehicle." 625 ILCS

5/12-612(b) (West 2004). In reviewing its constitutionality, the supreme court determined that

the statute's purpose was likely "the laudable goal of protecting police and punishing those who

hide guns and illegal contraband from officers." Carpenter, 228 Ill. 2d at 268-69. The court,

however, concluded that the statute was not rationally related to the assumed purpose, as it

"potentially criminalizes innocent conduct, as it visits the status of felon upon anyone who owns

or operates a vehicle he or she knows to contain a false or secret compartment," and pointed out

that "[t]he contents of the compartment do not have to be illegal for a conviction to result." Id. at

269.

¶ 28 Both Madrigal and Carpenter are distinguishable from the present case. We find support

for this conclusion from the supreme court's reasoning in People v. Hollins, 2012 IL 112754.

There, the defendant was charged with three counts of child pornography due to various acts

involving A.V., "a child whom [he] knew to be under the age of 18 years," when A.V. was 17

years old. Id. ¶ 3. The alleged conduct involved the defendant "knowingly" photographing the

minor while she was engaged in sexual acts with the defendant. Id. ¶¶ 9, 12 (quoting 720 ILCS

5/11-20.1(f)(7) (West 2008)). On appeal, the defendant contended that the child pornography

statute, as applied to him, violated due process, arguing that the statute did not bear "a reasonable

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relationship to the public interest to be protected because it denie[d] consenting adults the right

to engage in private sexual activities of their choice." Hollins, 2012 IL 112754, ¶ 16. More

specifically, the defendant claimed that the statute's purpose of "protecting children from sexual

exploitation and abuse" was not rationally related to his situation where the "child" was 17 years

old, and, under Illinois law, "could legally consent to sex" and was involved in a "legal,

consensual sexual relationship" with him. Id. ¶ 17. Relying on Madrigal, the defendant argued

that the statute unconstitutionally punished innocent behavior. Id. ¶ 26.

¶ 29 Our supreme court rejected the defendant's argument in Hollins, and held that the Illinois

child pornography statute was constitutional. In this decision, the court cited to the Nebraska

Supreme Court decision in State v. Senters, 699 N.W.2d 810 (Neb. 2005), which considered a

similar statute outlawing child pornography. Hollins, 2012 IL 112754, ¶ 24. Under the Nebraska

statute, while a person over the age of 16 could consent to sex, "it was still 'unlawful for "a

person to knowingly make, publish, direct, create, provide, or in any manner generate any visual

depiction of sexually explicit conduct" ' with a person under the age of 18." Hollins, 2012 IL

112754, ¶ 20 (quoting Senters, 699 N.W.2d at 813, quoting Neb. Rev. Stat. § 28-1464.02(1)

(Reissue 1995)). The Senters court had concluded that the statute was constitutional, because it

was " 'reasonable to conclude that persons 16 and 17 years old, although old enough to consent

to sexual relations, may not fully appreciate that today's recording of a private, intimate moment

may be the Internet's biggest hit next week.' " Hollins, 2012 IL 112754, ¶ 21 (quoting Senters,

699 N.W.2d at 817). Consistent with the reasoning of the Senters court and a similar federal case

(see United States v. Bach, 400 F.3d 622 (8th Cir. 2005)), our supreme court determined that the

statutory prohibition against photographing or videotaping minors bore a rational relationship to

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the statute's purpose of protecting children from sexual abuse and exploitation. Hollins, 2012 IL

112754, ¶ 24.

¶ 30 As to the defendant's reliance on Madrigal, the Hollins court stated:

"Unlike the hypothetical situation discussed in Madrigal, the

conduct at issue here is not 'wholly innocent.' In Madrigal, the term

'innocent conduct' meant conduct not germane to the harm identified by

the legislature, in that the conduct was wholly unrelated to the legislature's

purpose in enacting the law. [Citation.] Here, while it is true that the

underlying conduct being recorded is legal, it is the actual recording of

that conduct, and the consequences to the child that flow therefrom, that is

the interest being protected by the statute as applied. The legislature's

purpose in enacting the statute was not necessarily to protect from the

harm in the sexual act itself, but the memorialization of that act, for the

reasons discussed above." Hollins, 2012 IL 112754, ¶ 28.

¶ 31 For the same reasons the Hollins court found Madrigal to be inapplicable, we find both

Madrigal and Carpenter are inapplicable to the case before us. Contrary to defendant's assertion

that the armed habitual criminal statute seeks to "punish recidivist offenders for committing a

new gun crime" (emphasis in original), as we noted above, the purpose of the armed habitual

criminal statute is "to help protect the public from the threat of violence that arises when repeat

offenders possess firearms" (emphasis added) (Johnson, 2015 IL App (1st) 133663, ¶ 27). Unlike

the conduct discussed in Madrigal and Carpenter, a twice-convicted felon's possession of a

firearm is not "wholly innocent" and is, in fact, exactly what the legislature was seeking to

prevent in passing the armed habitual criminal statute. The statute's criminalization of a twice-

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convicted felon's possession of a weapon is, therefore, rationally related to the purpose of

"protect[ing] the public from the threat of violence that arises when repeat offenders possess

firearms." Johnson, 2015 IL App (1st) 133663, ¶ 27. Moreover, "[t]he Supreme Court explicitly

noted in District of Columbia v. Heller, 554 U.S. 570 (2008), that 'nothing in our opinion should

be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.' "

Johnson, 2015 IL App (1st) 133663, ¶ 27 (quoting Heller, 554 U.S. at 626). The armed habitual

criminal statute does not violate substantive due process and is, therefore, constitutional.

¶ 32 III. CONCLUSION

¶ 33 For the foregoing reasons, we affirm the judgment of the trial court.

¶ 34 Affirmed.

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