2017 IL App (1st) 151630
No. 1-15-1630
SECOND DIVISION
September 19, 2017
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 96 CR 16520
)
JOSE GAMEZ, )
) The Honorable
Defendant-Appellant. ) Mary Margaret Brosnahan,
) Judge Presiding.
______________________________________________________________________________
JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
Justices Lavin and Cobbs concurred in the judgment and opinion.
OPINION
¶1 The defendant, Jose Gamez, appeals from the trial court’s denial of his petition for relief
from judgment brought pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS
5/2-1401 (West 2014)). In his section 2-1401 petition, the defendant sought to have his 1996
conviction for unlawful use of a weapon (720 ILCS 5/24-1(a)(4) (West 1996)) vacated on the
basis that the statute under which he was convicted (1996 UUW statute) was unconstitutional.
On appeal, the State concedes that the 1996 UUW statute was, in fact, unconstitutional, and we
agree.
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¶2 BACKGROUND
¶3 In October 1996, the defendant pleaded guilty to unlawful use of a weapon for the
knowing possession of a firearm in a vehicle at a time when he was not on his own land or in his
own abode or fixed place of business, in violation of 1996 UUW statute. He was sentenced to 15
months’ conditional discharge.
¶4 In March 2014, the defendant filed his section 2-1401 petition, in which he sought to
have his conviction vacated based on the holdings of Moore v. Madigan, 702 F.3d 933 (7th Cir.
2012), and People v. Aguilar, 2013 IL 112116, which had respectively held the 2010 version of
the unlawful use of a weapon statute (720 ILCS 5/24-1(a)(4) (West 2010)) (2010 UUW statute)
and the 2008 version of the aggravated unlawful use of a weapon statute (720 ILCS 5/24-
1.6(a)(1), (a)(3)(A) (West 2008)) (2008 AUUW statute) unconstitutional. The State moved to
dismiss the defendant’s section 2-1401 petition on the basis that the holding in Aguilar was
limited to “the specific Class 4 version” of the 2008 AUUW statute. Following arguments by the
parties, the trial court denied the defendant’s section 2-1401 petition, finding that the 1996 UUW
statute did not constitute a comprehensive ban on weapons outside the home, as was involved in
Moore, and that Aguilar did not apply because the defendant was not convicted of aggravated
unlawful use of a weapon.
¶5 The defendant then filed this timely appeal.
¶6 ANALYSIS
¶7 On appeal, the defendant argues that the trial court erred in denying his section 2-1401
petition, because, under the reasoning of Moore and Aguilar, the 1996 UUW statute was
unconstitutional. More specifically, the defendant argues that the elements of the offense for
which he was convicted were nearly identical to those in Moore and Aguilar. Therefore, because
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the courts in Moore and Aguilar found the statutes at issue in those cases to represent
unconstitutional bans on the possession of firearms outside of the home, the 1996 UUW statute
was also unconstitutional. The State concedes on appeal that the holdings of Moore and Aguilar
dictate the conclusion that the 1996 UUW statute was unconstitutional and, thus, the defendant’s
conviction must be vacated.
¶8 The purpose of a section 2-1401 petition is to present to the court facts outside the record
that, if known at the time that the judgment was entered, would have prevented the entry of
judgment. In re Detention of Morris, 362 Ill. App. 3d 321, 322 (2005). Section 2-1401 also
provides litigants with a vehicle to attack a judgment on voidness grounds. Sarkissian v. Chicago
Board of Education, 201 Ill. 2d 95, 104 (2002). Despite typically being characterized as a civil
remedy, section 2-1401 petitions may also be utilized in the criminal context. Morris, 362 Ill.
App. 3d at 323. Where a section 2-1401 petition is disposed of other than after an evidentiary
hearing, our review is de novo. People v. Morfin, 2012 IL App (1st) 103568, ¶ 30.
¶9 In Moore, 702 F.3d 933, the Seventh Circuit addressed, among other things, a
constitutional challenge to the 2010 UUW statute under which the defendant was convicted. The
2010 UUW statute provided in relevant part as follows:
“(a) A person commits the offense of unlawful use of weapons when he knowingly:
***
(4) Carries or possesses in any vehicle or concealed on or about his person except
when on his land or in his own 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, except that this
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subsection (a) (4) does not apply to or affect transportation of weapons that meet one
of the following conditions:
(i) are broken down in a non-functioning state; or
(ii) are not immediately accessible; or
(iii) are unloaded and enclosed in a case, firearm carrying box, shipping
box, or other container by a person who has been issued a currently valid Firearm
Owner’s Identification Card[.]” 720 ILCS 5/24-1(a)(4) (West 2010).
After discussing the United States Supreme Court’s holding in District of Columbia v. Heller,
544 U.S. 570, 635 (2008), that the Second Amendment of the United States Constitution confers
“the right of law abiding, responsible citizens to use arms in defense of hearth and home,” the
Seventh Circuit reasoned that the right to bear arms for self-defense is just as important outside
the home as it is inside the home. Moore, 702 F.3d at 942. Accordingly, the Moore court
concluded that statutes that effectively ban the carrying of ready-to-use (loaded, immediately
accessible, and uncased) firearms outside the home are unconstitutional restrictions on citizens’
Second Amendment rights. Id. Because the 2010 UUW statute was such a ban, the Seventh
Circuit held it to be unconstitutional. Id.
¶ 10 The following year, the Illinois Supreme Court, in Aguilar, followed suit. There, the court
addressed the constitutionality of the 2008 AUUW statute, which provided in relevant part:
“(a) A person commits the offense of aggravated unlawful use of a weapon when he
or she knowingly:
(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 abode or fixed place
of business any pistol, revolver, stun gun or taser or other firearm; [and]
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***
(3) One of the following factors is present:
(A) the firearm possessed was uncased, loaded and immediately accessible
at the time of the offense[.]”720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008).
Absent aggravating circumstances, violation of this statute constituted a Class 4 felony. 720
ILCS 5/24-1.6(d) (West 2008). Concluding that this statute amounted to a “comprehensive ban”
that “categorically prohibits the possession and use of an operable firearm for self-defense
outside the home,” the Illinois Supreme Court found the statute, under the reasoning of Moore, to
violate the Second Amendment of the United States Constitution. Aguilar, 2013 IL 112116, ¶ 21.
Although the court initially limited its holding to the Class 4 form of the offense (id. ¶ 22), the
Illinois Supreme Court later clarified that the offense of aggravated unlawful use of a weapon, as
set forth in the 2008 AUUW statute, was facially unconstitutional, whether classified as a Class 4
felony or otherwise. People v. Burns, 2015 IL 117387, ¶ 25.
¶ 11 The defendant here argues that because the 1996 UUW statute under which he was
convicted contains the same essential elements as the 2010 UUW statute and the 2008 AUUW
statute held unconstitutional in Moore and Aguilar, it too is unconstitutional. The 1996 UUW
statute provided in relevant part:
“(a) A person commits the offense of unlawful use of weapons when he knowingly:
***
(4) Carries or possesses in any vehicle or concealed on or about his person except
when on his land or in his own abode or fixed place of business any pistol, revolver,
stun gun or taser or other firearm[.]”720 ILCS 5/24-1(a)(4) (West 1996).
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Aside from the fact that the 2010 UUW statute contains additional exceptions for the
transportation of firearms under certain circumstances and the 2008 AUUW statute requires the
State to prove that the firearm was uncased, loaded, and immediately accessible, these statutes
are nearly identical to the 1996 UUW statute under which the defendant was convicted. In fact,
given that the 2010 UUW statute includes additional exceptions and the 2008 AUUW statute
requires proof of an aggravating factor, the 1996 UUW statute represents an even wider ban on
the possession of firearms outside of the home than the other two statutes. Accordingly, it
necessarily follows that if the statutes in Moore and Aguilar violated the Second Amendment
because they were too comprehensive of bans, then the 1996 UUW statute—which is even
broader—must also violate the Second Amendment.
¶ 12 Because we conclude that the statute under which the defendant was convicted is
unconstitutional and thus void ab initio, the defendant’s conviction must be vacated. People v.
McFadden, 2016 IL 117424, ¶ 20.
¶ 13 CONCLUSION
¶ 14 For the foregoing reasons, we conclude that the defendant’s conviction and sentence for
unlawful possession of a weapon under section 24-1 (720 ILCS 5/24-1(a)(4) (West 1996)) must
be vacated because said statute is facially unconstitutional.
¶ 15 Reversed.
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