People v. McGee

2017 IL App (1st) 141013-B

SECOND DIVISION
June 13, 2017

No. 1-14-1013

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 12 CR 17661
)
MARCHELLO McGEE, ) Honorable
) Mary Margaret Brosnahan,
Defendant-Appellant. ) Judge Presiding.

JUSTICE PIERCE delivered the judgment of the court, with opinion.
Justice Simon concurred in the judgment and opinion.
Presiding Justice Hyman specially concurred, with opinion.

OPINION

¶1 A jury convicted defendant Marchello McGee of armed habitual criminal (AHC) (720

ILCS 5/24-1.7(a) (West 2012)) and unlawful use of a weapon by a felon (UUWF) (720 ILCS

5/24-1.1(a) (West 2012)). An essential element of the offense of AHC is proof that the defendant

was previously convicted of at least two felonies enumerated in the statute. An essential element

of the offense of UUWF is proof that the defendant was previously convicted of any felony

under the laws of this State or of any other jurisdiction. The question presented here is whether a

conviction under the portion of the aggravated unlawful use of a weapon (AUUW) statute found

to be unconstitutional under People v. Aguilar, 2013 IL 112116, and People v. Burns, 2015 IL
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117387, can be used to establish an element of the offense of AHC or UUWF. People v. McGee,

2016 IL App (1st) 141013. We determined that under the facts of this case, defendant’s

conviction for AUUW could not be used to establish an element of the offense of AHC, but

could be used to establish an element of the offense of UUWF. Id. Accordingly, we vacated

defendant’s conviction for AHC, affirmed his conviction for UUWF, and remanded for

sentencing on that conviction because the trial court did not impose sentence on the UUWF

verdict due to merger. Id. ¶ 29.

¶2 In a September 28, 2016, supervisory order, our supreme court instructed us to vacate

our judgment in McGee, 2016 IL App (1st) 141013 and to determine whether in light of People

v. McFadden, 2016 IL 117424, a different result is warranted. The parties were allowed to file

supplemental briefs with respect to the McFadden decision. Upon recommendation, we now

vacate our previous judgment and enter this opinion in its stead.

¶3 BACKGROUND

¶4 Defendant was charged with nine counts of possessing a firearm and ammunition on or

about September 11, 2012. Seven counts were nol-prossed before trial. 1 The State proceeded to

trial on two counts. Count one alleged that defendant committed the offense of AHC in that he

possessed a firearm "after having been convicted of [UUWF] under case number 08CR13500

1 The nol-prossed charges included three counts of UUWF, alleging that defendant possessed a firearm or

ammunition with the UUWF conviction in case number 08 CR 13500, and four counts of AUUW under section

24.1-1.6(a)(3)(A) or section 24-1.6(a)(3)(C) of the Criminal Code (720 ILCS 5/24-1.6(a)(3)(A) (West 2012)

(firearm uncased, loaded, and immediately accessible) (720 ILCS 5/24-1.6(a)(3)(C) (West 2012) (firearm without a

valid Firearm Owner's Identification Card, or FOID)).

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and [AUUW] under case number 07CR5014." See 720 ILCS 5/24-1.7 (West 2012). Count two

alleged that defendant committed the offense of UUWF in that he possessed a firearm "after

having been previously convicted of the felony offense of [UUWF], under case number

08CR13500." See 720 ILCS 5/24-1.1(a) (West 2012). Defendant was convicted of both counts.

The convictions merged and defendant was sentenced to 14 years' imprisonment on the AHC

conviction.

¶5 ANALYSIS

¶6 Before this court, defendant contends that his AHC and UUWF convictions must be

vacated because the predicate felony convictions alleged were aggravated unlawful use of a

weapon (AUUW) convictions based on statutory provisions that were declared facially

unconstitutional in Aguilar. For the reasons stated below, we affirm.

¶7 To sustain a conviction for AHC, the State is required to prove that defendant possessed a

firearm after having "been convicted 2 or more times of any of the following" qualifying

offenses which include, but are not limited to, a forcible felony, AUUW and/or a Class 3 or

higher drug felony. 720 ILCS 5/24-1.7(a) (West 2012). In count one, the AHC charge, the State

alleged that defendant had been previously convicted of two qualifying felony offenses: a

UUWF conviction under case number 08 CR 13500 and an AUUW conviction under case

number 07 CR 5014.

¶8 To prove defendant guilty of UUWF, the State was required to prove that defendant

knowingly possessed any firearm and had previously been convicted of any felony. 720 ILCS

5/24-1.1(a) (West 2012). In count two, the UUWF count, the State alleged that defendant

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knowingly possessed a firearm and had been previously convicted of UUWF in case number 08

CR 13500.

¶9 In case number 07 CR 5014, which served as one of the predicate felony offenses for the

AHC charge, defendant was convicted of AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d)(3)

(West 2006)) committed on or about January 25, 2007, by possessing an uncased, loaded, and

immediately accessible firearm while not on his own land, abode, or fixed place of business,

after previously being convicted of possession of a controlled substance in case number 01 CR

790, and received a Class 2 sentence of three years' imprisonment.

¶ 10 In case number 08 CR 13500, which served as a predicate felony offense for both the

AHC charge and the UUWF charge, defendant was convicted of two counts of UUWF (720

ILCS 5/24-1.1(a) (West 2008)), four counts of AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A),

(a)(1),(a) (3)(C), (a)(2),(a)(3)(A) and (a)(2),(a)(3)(c) (West 2008)), and was sentenced on all six

counts to a Class 2 concurrent sentence of six years' imprisonment. The two UUWF counts

alleged that defendant possessed a firearm and ammunition after having been previously

convicted of AUUW in case number 07 CR 5014. The four AUUW counts consisted of: two

counts alleging possession of an uncased, loaded, and immediately accessible firearm under

section 24-1.6(a)(1), (a)(3)(A) and (a)(2), (a)(3)(A) and two counts alleging possession of a

firearm without a valid FOID card under section 24-1.6(a)(1), (a)(3)(C) and (a)(2), (a)(3)(C).

Each of the four AUUW counts in case number 08 CR 13500 alleged the conviction in case

number 07 CR 5014.

¶ 11 In this case, the trial evidence established that, on the night of September 11, 2012, police

officers responding to a report of a man with a rifle saw defendant on a sidewalk holding a large

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object and discarding it before walking away. The discarded object was immediately found to be

a loaded rifle. After defendant was arrested, he did not expressly admit to possessing the rifle but

told the police "I can get you two more guns if you let me walk on this rifle." The parties

stipulated 2 and the jury was told "that the defendant has been convicted of two qualifying

felonies under cases number 08 CR 13500 and 07 CR 5014." The jury found defendant guilty of

AHC and UUWF. Defendant's presentence investigation report reflected, in relevant part, that he

had five prior felony convictions for controlled substance offenses (two in 1999, one each in

2001, 2003, and 2004), in addition to his 2007 AUUW conviction and 2008 UUWF and AUUW

convictions.

¶ 12 In its response brief filed before the ruling in People v. Burns, 2015 IL 117387, the State

argues that defendant’s merged AHC and UUWF convictions need not be reversed because the

predicate felony convictions in case numbers 07 CR 5014 and 08 CR 13500 are based on the

Class 2 version of AUUW, which has not been declared unconstitutional and that the merged

UUWF conviction is properly based on the predicate felony of UUWF.

2
During motions in limine, defendant argued that his prior convictions were so prejudicial that the trial

should be bifurcated, with the jury first determining whether he possessed a firearm and only then being informed of

the predicate felonies. The court suggested informing the jury "merely that he has been convicted of a qualifying

felony, period." The State opposed bifurcation. The court denied bifurcation and reiterated that it could "simply say

qualifying felony" with the case number unless defendant testified as "then I cannot do any mere-fact impeachment

*** anymore." The parties agreed that the jury would be told that defendant had qualifying felony offenses with the

case numbers. During trial, the parties entered into the stipulation after trial counsel confirmed that "those are, in

fact, his prior felony convictions."

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¶ 13 On the date of this 2012 offense, the unlawful use of a weapon (UUW) statute, with

certain exceptions, essentially prohibited a person from carrying or concealing on or about his

person, or in any vehicle, a firearm except when on his land or in his abode or fixed place of

business (720 ILCS 5/24‑1(a)(4) (West 2012)). The elements of the AUUW offense are set forth

in section 24-1.6(a) (720 ILCS 5/24-1.6(a) (West 2012)) and generally prohibit possession of a

firearm on or about a person or in a vehicle or on a public way or within the corporate limits of a

municipality "and one of nine factors are present." People v. Burns, 2015 IL 117387, ¶ 23. Both

the UUW and the AUUW statute prohibit the same conduct. However, the existence of any one

of the additional factors enumerated in section 24-1.6(a) (720 ILCS 5/24-1.6(a) (West 2012)),

i.e., the firearm "was uncased, loaded and immediately accessible" or the defendant had not been

issued a FOID card, elevates the offense classification from a misdemeanor to different levels of

felony classification and corresponding punishment. 720 ILCS 5/24-1.6(d) (West 2012).

¶ 14 One's right to carry a gun outside of the home was discussed in People v. Aguilar, 2013

IL 112116. Our supreme court adopted the reasoning of District of Columbia v. Heller, 554 U.S.

570 (2008), McDonald v. City of Chicago, 561 U.S. 742 (2010), and Moore v. Madigan, 702

F.3d 933 (7th Cir. 2012), and held that the second amendment right to keep and bear arms

extends beyond the home. Aguilar, 2013 IL 112116, ¶¶ 19-20. The court further held that, "on its

face, the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) violates the right to keep and bear

arms, as guaranteed by the second amendment to the United States Constitution" because, while

"we are in no way saying that such a right is unlimited or is not subject to meaningful regulation"

"we are dealing not with a reasonable regulation but with a comprehensive ban" on possessing an

operable firearm outside one's home. Id. ¶¶ 21-22. "In other words, the Class 4 form of section

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24-1.6(a)(1), (a)(3)(A), (d) amounts to a wholesale statutory ban on the exercise of a personal

right." Id. ¶ 21.

¶ 15 Aguilar was qualified in our supreme court's decision in People v. Burns, 2015 IL

117387, ¶ 22. In Burns, our supreme court "acknowledge[d] that our reference in Aguilar to a

'Class 4 form' of the [AUUW] offense was inappropriate. No such offense exists. There is no

'Class 4 form' or 'Class 2 form' of AUUW." Id. The Burns court accepted the defendant's

argument that "[t]here is only one offense of AUUW based on section 24-1.6(a)(1), (a)(3)(A) and

a prior felony conviction is not an element of that offense. Rather, a prior felony conviction is a

sentencing factor which elevates the offense, for penalty purposes, from a Class 4 felony to a

Class 2 felony." Id. ¶ 20. Our supreme court clarified that Class 2 AUUW - that is, AUUW

committed by a felon - is unconstitutional under the same circumstances and statutory provisions

as Class 4 AUUW expressly addressed in Aguilar and therefore held that "section 24-1.6(a)(1),

(a)(3)(A) of the statute is facially unconstitutional, without limitation," because "[i]t would be

improper for this court to condition the constitutionality of section 24-1.6(a)(1), (a)(3)(A) of the

AUUW statute on the State's proof of a defendant's felon status when the legislature did not

make that requirement an element of the offense." Id. ¶¶ 25, 30.

¶ 16 Burns did not alter the core result in Aguilar. Second amendment rights remain protected

by the scope of the Aguilar ruling. However, Burns did remove any question as to its

applicability: every person is protected without regard to their criminal background. Burns, 2015

IL 117387, ¶ 32 (section 24-1.6(a)(1), (a)(3)(A) "is not enforceable against anyone") .

¶ 17 Our supreme court decided People v. McFadden, 2016 IL 117424, on June 16, 2016,

which involved a direct appeal from a UUWF conviction for possessing a firearm after having a

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prior conviction for AUUW. On direct appeal, McFadden argued that his UUWF conviction

should be vacated because it was predicated on his prior AUUW conviction, which was entered

under the section of the statute that was held facially unconstitutional in Aguilar, and thus, the

State failed to prove all of the elements of the offense. People v. McFadden, 2014 IL App (1st)

102939. We vacated the defendant’s UUWF conviction on the basis that the predicate offense of

AUUW was void ab initio based on Aguilar. Id.

¶ 18 Reversing, our supreme court held that defendant’s status as a felon was not affected by

Aguilar. McFadden, 2016 IL 117424, ¶ 13. The McFadden court examined the language of the

UUWF statute, which prohibits a person from knowingly possessing a firearm “ ‘if the person

has been convicted of a felony under the laws of this State or any other jurisdiction.’ ” Id. ¶ 27

(quoting 720 ILCS 5/24-1.1(a) (West 2008)). The court explained “the language of the statute

[(UUWF)] requires the State to prove only ‘the defendant’s felon status,’ ” and does not require

that the State prove the predicate offense at trial. Id. (quoting People v. Walker, 211 Ill. 2d 317,

337 (2004)); 720 ILCS 5/24-1.1(a) (West 2008). The court expressly found that “[n]othing on the

face of the statute suggests any intent to limit the language to only those persons whose prior

felony convictions are not later subject to vacatur” and further found that “the language of

section 24-.1(a) is ‘consistent with the common-sense notion that a disability based upon one’s

status as a convicted felon should cease only when the conviction upon which that status depends

has been vacated.’ ” Id. ¶¶ 27, 29 (quoting Lewis v. United States, 445 U.S. 55, 61 n.5 (1980)). In

addition, the court found that because the purpose of the UUWF statute is to protect the public

from persons who are potentially dangerous and irresponsible, it is immaterial if the predicate

conviction is subsequently found invalid for any reason. Id. As a result, the court found that the

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UUWF statute is a “status offense” and that the legislature intended that a defendant must clear

his felon status through the judicial process by having his prior felony conviction vacated or

expunged prior to obtaining a firearm and explained:

“It is axiomatic that no judgment, including a judgment of conviction, is deemed

vacated until a court with reviewing authority has so declared. As with any conviction, a

conviction is treated as valid until the judicial process has declared otherwise by direct

appeal or collateral attack. Although Aguilar may provide a basis for vacating

defendant’s prior 2002 AUUW conviction, Aguilar did not automatically overturn that

judgment of conviction. Thus, at the time defendant committed the UUW by a felon

offense, defendant had a judgment of conviction that had not been vacated and that made

it unlawful for him to possess firearms.” Id. ¶ 31.

¶ 19 In this case, the parties filed supplemental briefs discussing McFadden’s impact on issues

defendant presented. Defendant now argues that the AHC statute, which is distinguishable from

both the UUW statute at issue in McFadden, and the federal felon-in-possession of a firearm

statute in Lewis, is not satisfied by proof of a prior conviction that violates the second

amendment. The State responds that this court has already considered and rejected this argument

in People v. Perkins, 2016 IL App (1st) 150889.

¶ 20 In Perkins, 2016 IL App (1st) 150889, we applied the McFadden analysis to an AHC

conviction. Perkins was convicted as an AHC and filed a postconviction petition alleging the

State failed to prove him guilty beyond a reasonable doubt because his AHC conviction was

predicated on the AUUW statute found facially unconstitutional under Aguilar and therefore his

AUUW conviction was void ab initio. Perkins, 2016 IL App (1st) 150889, ¶ 2. The State

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appealed from the trial court’s order granting postconviction relief. Perkins, 2016 IL App (1st)

150889, ¶ 3.

¶ 21 Before this court on appeal, Perkins argued that McFadden’s reasoning was limited to the

offense of UUWF because “UUWF impose[d] a ‘status-based disability’ that precludes any

convicted felon from possessing a firearm” whereas “the offense of [AHC] requires the State to

prove that the defendant was convicted of specific enumerated offenses.” Id. ¶ 6. Perkins further

argued that UUWF imposed a “status-based disability” whereas the AHC conviction “imposes a

conduct-based disability *** based on a defendant’s commission of specific acts” and therefore

“because the conduct of which he was previously convicted—possession of a firearm—was

constitutionally protected, it cannot serve as a predicate for his [AHC] conviction.” (Emphasis in

original.) Id.

¶ 22 The Perkins court rejected defendant’s attempt to distinguish the UUWF offense from the

AHC offense in this context as a “distinction without a difference.” Id. ¶ 7. We explained:

“In order to sustain its burden to prove that defendant is an [AHC], the State need only

prove the fact of the prior convictions of enumerated offenses [citations], just as the State

need only prove the fact of a prior felony conviction to support a UUWF conviction.

Nothing in the [AHC] statute requires a court to examine a defendant’s underlying

conduct in commission of the enumerated offenses in order to find that the State has

sustained its burden of proof. And because here, as in McFadden, Perkins’ prior

convictions had not been vacated prior to his [AHC] conviction, they could properly

serve as predicates for that conviction.” Id.

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¶ 23 Defendant acknowledges Perkins but argues it was wrongly decided. We disagree and

find the reasoning employed in Perkins applies and defeats defendant’s attempt to distinguish the

AHC statute in this case from the UUWF statute in McFadden. Because defendant failed to

vacate his prior AUUW conviction prior to the time he possessed a firearm in this case, the prior

AUUW conviction could serve as the predicate offense for his AHC conviction. Id. ¶ 10.

Accordingly, we reject defendant’s argument.

¶ 24 Defendant also argues that Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718,

(2016), and Ex parte Siebold, 100 U.S. 371, (1880), mandate that defendant’s convictions for

both AHC and UUWF be vacated. Defendant claims that the McFadden court did not consider

the impact of Montgomery and Siebold, which prevent states from punishing citizens based on a

law that is facially unconstitutional, on the issue of whether a facially unconstitutional conviction

can be used as a predicate offense for UUWF, let alone an AHC offense.

¶ 25 We reject defendant’s argument that the McFadden court did not consider Montgomery.

Defense counsel in McFadden was granted leave to cite Montgomery as additional authority and

in response to the defendant’s reliance on Montgomery, the State argued that the United States

Supreme Court decision in Lewis was controlling. Our supreme court agreed. People v. Smith,

2017 IL App (1st) 122370-B, ¶ 28; McFadden, 2016 IL 117424, ¶ 34; People v. Perkins, 2016 IL

App (1st) 150889, ¶ 9.

¶ 26 In view of the foregoing, we review defendant's convictions. In count one defendant was

charged with AHC which required the State to plead and prove the essential element of at least

two enumerated prior felony convictions. The State alleged and proved by way of stipulation that

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defendant was previously convicted of a "qualifying" felony in case number 07 CR 5014 and

case number 08 CR 13500.

¶ 27 Defendant’s felony conviction in case number 07 CR 5014 was alleged as an element of

the AHC offense, and may serve as a predicate felony pursuant to McFadden because there is no

evidence presented that the conviction in 07 CR 5014 was vacated by any judicial process.

Therefore the 07 CR 5014 conviction can properly serve as proof of an essential element of one

of two prior felony convictions necessary to prove the offense of AHC as charged in count one.

We affirm defendant's conviction on count one.

¶ 28 McFadden is also dispositive of defendant’s claim that his UUWF conviction is invalid

because the predicate felony conviction (No. 07 CR 5014) in case number 08 CR 13500 is

constitutionally invalid under Aguilar and Burns. Count two charged defendant with UUWF -

possession of a firearm "after having been previously convicted of the [sic] felony offense." The

State proved by stipulation one felony required for this charge: a felony conviction under case

number 08 CR 13500. An essential element of proof was that the defendant's status as a felon be

established beyond a reasonable doubt, not that a particular or specific felony be proved or that

the felony was charged under a specific or indentified case number. As discussed, defendant did

not vacate his felony conviction for AUUW in 07 CR 5014, and therefore it properly served as a

predicate felony for 08 CR 13500, which the State used to prove defendant’s status as a felon. In

any event, in case number 08 CR 13500, defendant was convicted of six firearm related felony

counts, of which four were for AUUW. Two of those counts were for possession of a firearm

without a valid FOID card under section 24-1.6(a)(1), (a)(3)(C) (720 ILCS 5/24-1.6(a)(1),

(a)(3)(C) (West 2006)). Our supreme court has found AUUW based on not having a valid FOID

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card under section 24-1.6(a)(1), (a)(3)(C) to be constitutional and severable from the

unconstitutional "forms" of AUUW. People v. Mosley, 2015 IL 115872, ¶¶ 31, 36. We therefore

affirm defendant’s conviction for UUWF.

¶ 29 CONCLUSION

¶ 30 For the foregoing reasons, we affirm defendant's conviction for AHC and UUWF.

¶ 31 Affirmed.

¶ 32 PRESIDING JUSTICE HYMAN, specially concurring:

¶ 33 I agree with my colleagues that People v. McFadden controls the result. I write

separately, as I did in my special concurrence in People v. Spivey, 2017 IL App (1st) 123563, to

urge the legislature to amend the relevant statutes to indicate that if a person was convicted under

the unconstitutional AUUW statute, that void conviction may not be used to enhance a later

charge. This would undo the residual effect of the continued viability of convictions obtained

under a statute that has been declared void ab initio and without legal consequence.

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