People v. McFadden

Digitally signed by Illinois Official Reports Reporter of Decisions

Reason: I attest to the accuracy and integrity of this document

Supreme Court Date: 2016.10.21

08:41:23 -05'00'

People v. McFadden, 2016 IL 117424

Caption in Supreme THE PEOPLEOF THE STATE OF ILLINOIS, Appellant, v. Court: ONAFFIA McFADDEN, Appellee.

Docket No. 117424

Filed June 16, 2016 Rehearing denied September 26, 2016

Decision Under Appeal from the Appellate Court for the First District; heard in that Review court on appeal from the Circuit Court of Cook County, the Hon.

Sharon Sullivan, Judge, presiding.

Judgment Appellate court judgment affirmed in part and reversed in part.

Circuit court judgment affirmed in part and vacated in part.

Counsel on Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez, Appeal State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz and

John E. Nowak, Assistant State’s Attorneys, of counsel), for the People.

Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, and Pamela M. Rubeo, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.

Justices JUSTICE THEIS delivered the judgment of the court, with opinion.

Chief Justice Garman and Justices Freeman, Thomas, and Karmeier concurred in the judgment and opinion.

Justice Kilbride concurred in part and dissented in part, with opinion, joined by Justice Burke.

Justices Freeman, Kilbride, and Burke dissented upon denial of rehearing, without opinion.

OPINION

¶1 This case involves an appeal from a conviction for unlawful use of a weapon by a felon

(UUW by a felon). 720 ILCS 5/24-1.1(a) (West 2008). The conviction was based on defendant Onaffia McFadden’s possession of a firearm at a time when he had been convicted of aggravated unlawful use of a weapon (AUUW). The appellate court vacated the conviction for UUW by a felon based on this court’s decision in People v. Aguilar, 2013 IL 112116, which declared section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute unconstitutional and void ab initio. 2014 IL App (1st) 102939, ¶ 43. For the following reasons, we reverse that part of the appellate court judgment and reinstate defendant’s UUW by a felon conviction.

¶2 BACKGROUND ¶3 In December 2002, defendant, then 17 years old, was indicted in Cook County case No.

02CR 30903 on six counts of AUUW for the events that transpired on November 21, 2002,

involving two separate firearms. One count alleged that he carried in a vehicle, outside the

home, a .38-caliber handgun which was “uncased, loaded and immediately accessible” in

violation of /24-1.6(a)(1), (a)(3)(A) (West 2002); one count alleged that he carried

in a vehicle, outside the home, a .38-caliber handgun without a valid Firearm Owner’s

Identification (FOID) card in violation of /24-1.6(a)(1), (a)(3)(C) (West 2002); one

count alleged that he carried in a vehicle, outside the home, a .38-caliber handgun while under

21 years of age in violation of /24-1.6(a)(1), (a)(3)(I) (West 2002); one count

alleged that he carried in a vehicle a 9-millimeter handgun which was “uncased, loaded and

immediately accessible” in violation of /24-1.6(a)(1), (a)(3)(A) (West 2002); one

count alleged that he carried in a vehicle a 9-millimeter handgun without a valid FOID card in

violation of /24-1.6(a)(1), (a)(3)(C) (West 2002); and one count alleged that he

carried in a vehicle a 9-millimeter handgun while under 21 years of age in violation of 720

ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2002).

¶4 Thereafter, defendant pleaded guilty to one count of AUUW in exchange for the dismissal

of the other five counts, and he was sentenced to one year of probation. There is no

confirmation in the record as to which count of AUUW defendant pleaded guilty or as to the

factual basis for the plea. Defendant subsequently violated the terms of his probation, was

again sentenced to one year of probation, and was ordered to complete boot camp. His

probation was ultimately terminated unsatisfactorily. In 2005, defendant was convicted of possession of a controlled substance with the intent to deliver, a felony, and was sentenced to six years in prison.

¶5 Subsequently, in March 2008, defendant was charged in separate cases with multiple

counts of armed robbery ( /18-2(a)(2) (West 2008 , AUUW (720 ILCS

5/24-1.6(a)(1), (a)(3)(A); (a)(2), (a)(3)(A); (a)(1), (a)(3)(C); (a)(2), (a)(3)(C) (West 2008 ,

and UUW by a felon “having been previously convicted of the felony offense of [AUUW]

under case number 02CR-30903” ( /24-1.1(a) (West 2008 .

¶6 The cases were joined and proceeded to a bench trial. The evidence established that

defendant robbed three different victims at gunpoint within a 24-hour period. For purposes of

the UUW by a felon charges, defendant stipulated that he “has previously been convicted of

aggravated unlawful use of [a] weapon under Case No. 02 CR 30903.” The court admonished

defendant regarding his understanding that a stipulation is an agreement, and defendant

acknowledged that he understood that he was agreeing that he had a prior conviction for

AUUW.

¶7 The Cook County circuit court found defendant guilty of three counts of armed robbery

and two counts of UUW by a felon. Defendant was sentenced to concurrent prison terms of 29

years for each armed robbery conviction, which included 15-year mandatory sentencing

enhancements, and a concurrent sentence of 10 years for the UUW by a felon convictions. His

motion to reconsider his sentence was denied.

¶8 On appeal, defendant’s convictions and sentences for armed robbery were affirmed. 2014

IL App (1st) 102939, ¶ 53. With respect to the UUW by a felon convictions, the appellate court

vacated one of the convictions based on one-act, one-crime principles. Id. ¶ 29. With respect to

the remaining conviction, defendant argued that it must be vacated because it was based on his

prior 2002 felony conviction of AUUW, which arose from a statute that was held to be facially

unconstitutional in People v. Aguilar, 2013 IL 112116. 2014 IL App (1st) 102939, ¶ 36. The

appellate court held that it was “bound to apply Aguilar and vacate defendant’s remaining

UUW by a felon conviction 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.” Id. ¶ 43.

¶9 The State subsequently filed a petition for leave to appeal in this court, which we allowed.

Ill. S. Ct. R. 315 (eff. July 1, 2013). Defendant has cross-appealed, contending that he is

entitled to a new sentencing hearing on his 29-year prison sentence for armed robbery.

¶ 10 ANALYSIS ¶ 11 1. The Validity of Defendant’s UUW by a Felon Conviction ¶ 12 In Aguilar, on appeal from the defendant’s conviction for AUUW, this court held that

section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute—which prohibited the carrying outside

the home of a firearm which is uncased, loaded, and immediately accessible—was facially

unconstitutional under the second amendment of the United States Constitution. Aguilar, 2013

IL 112116, ¶ 22; People v. Burns, 2015 IL 117387, ¶ 21 (clarifying our holding in Aguilar). As

a result, we reversed the defendant’s conviction for AUUW. Aguilar, 2013 IL 112116, ¶ 22.

¶ 13 Subsequently, courts have been grappling with the legal effect of our decision in Aguilar as

it relates to various circumstances. In this appeal, unlike the defendant in Aguilar, defendant is

not seeking to vacate his 2002 conviction for AUUW. Rather, defendant contends that the State failed to prove all of the essential elements necessary to sustain his 2008 conviction for the offense of UUW by a felon. /24-1.1(a) (West 2008). Accordingly, defendant

contends that his 2008 conviction for UUW by a felon must be vacated.

¶ 14 The UUW by a felon statute makes it unlawful for a person to knowingly possess a firearm

“if the person has been convicted of a felony under the laws of this State or any other

jurisdiction.” /24-1.1(a) (West 2008). This court has explained that to prove the

prior felony conviction, the prosecutor need only establish “the defendant’s felon status.”

People v. Walker, 211 Ill. 2d 317, 337 (2004). Our statute “does not require proof of a specific

felony conviction.” Id.

¶ 15 In this case, the fact of defendant’s prior felony conviction was established when defendant

chose to stipulate to his felon status by agreeing that he “ha[d] previously been convicted of

aggravated unlawful use of [a] weapon under Case No. 02 CR 30903.” It is well settled that a

stipulation is “an agreement between parties or their attorneys with respect to an issue before

the court” (People v. Woods, 214 Ill. 2d 455, 468 (2005 , and a defendant may, by stipulation,

waive the necessity of proof of all or part of the State’s case against him (People v. Polk, 19 Ill.

2d 310, 315 (1960 . When made, a stipulation is “ ‘conclusive as to all matters necessarily

included in it’ [citation] and ‘[n]o proof of stipulated facts is necessary, since the stipulation is

substituted for proof and dispenses with the need for evidence’ [citation].” Woods, 214 Ill. 2d

at 469. Thus, a defendant is generally precluded from attacking or contradicting the stipulation.

Id.

¶ 16 Nevertheless, defendant argues that he should be relieved of his stipulation regarding the

fact of his felon status because he asserts that the statute under which he was convicted in 2002

was subsequently declared unconstitutional and void ab initio in Aguilar. From that premise,

he concludes that his prior 2002 felony conviction for AUUW may not then be used to prove

the fact of his felon status to support his conviction for the 2008 UUW by a felon offense.

Defendant relies on the principles of the void ab initio doctrine and its application to facially

unconstitutional criminal statutes to support his contention.

¶ 17 When a statute is held to be facially unconstitutional, the statute is said to be void ab initio,

i.e., void “ ‘from the beginning.’ ” Perlstein v. Wolk, 218 Ill. 2d 448, 455 (2006) (quoting

Black’s Law Dictionary 1604 (8th ed. 2004 ; Hill v. Cowan, 202 Ill. 2d 151, 156 (2002)

(limiting the doctrine to facially unconstitutional statutes). A declaration that a statute is void

ab initio means that the statute was constitutionally infirm from the moment of its enactment

and, therefore, is unenforceable. People v. Blair, 2013 IL 114122, ¶ 30.

¶ 18 In stating the rationale behind the doctrine and articulating the appropriate remedy, we

have explained that when a statute violates the constitution it “suddenly cuts off rights that are

guaranteed to every citizen” and “perverts the duties owed to those citizens.” People v. Gersch,

135 Ill. 2d 384, 397 (1990). Thus, this court found that “[t]o hold that a judicial decision that

declares a statute unconstitutional is not retroactive would forever prevent those injured under

the unconstitutional legislative act from receiving a remedy for the deprivation of a guaranteed

right. This would clearly offend all sense of due process.” Id. at 397-98. We concluded that

“where a statute is violative of constitutional guarantees, we have a duty not only to declare

such a legislative act void, but also to correct the wrongs wrought through such an act by

holding our decision retroactive.” Id. at 399.

¶ 19 Thus, in considering the void ab initio doctrine’s application to various circumstances, we

have consistently held that when a criminal statute has been declared facially unconstitutional,

a defendant may not be prosecuted under it and, as a remedy, must be allowed to apply the

court’s declaration as a basis to vacate his judgment of conviction premised on the facially

unconstitutional statute. In Gersch, for example, the defendant argued on direct appeal from

his murder conviction that the State’s jury demand violated his constitutional right to a bench

trial. He relied on a decision of this court holding that the statute which granted the State a right

to demand a jury in certain criminal trials was unconstitutional. Id. at 397-98. To remedy the

wrong, we reversed his conviction and remanded the cause for a new trial. Id. at 401-02. In

People v. Zeisler, 125 Ill. 2d 42 (1988), defendant filed a successful successive postconviction

petition, seeking to vacate his conviction for aggravated arson under the void ab initio doctrine

after this court declared the aggravated arson statute under which he was convicted

unconstitutional. Id. at 45-46. In vacating his conviction, we relied on the principle that “the

doctrine of void ab initio declares a statute unconstitutional, null and void, which results in the

court’s vacating a conviction based upon such statute.” Id. at 48.

¶ 20 Indeed, in numerous cases, defendants have successfully had a judgment of conviction

vacated because it was premised on a facially unconstitutional statute. See, e.g., People v.

Manuel, 94 Ill. 2d 242, 244-45 (1983) (affirming on direct appeal the dismissal of an

indictment premised on an unconstitutional statute, reasoning that a defendant cannot be

prosecuted under a criminal statute that is unconstitutional in its entirety); People v.

Tellez-Valencia, 188 Ill. 2d 523, 527 (1999) (reversing a conviction where the statute creating

the offense was subsequently declared unconstitutional and was therefore unenforceable);

People v. Mosley, 2015 IL 115872, ¶ 24 (trial court properly vacated defendant’s AUUW

convictions as remedy for its posttrial finding that offenses charged were based upon the

facially unconstitutional statutory sections in Aguilar); People v. Burns, 2015 IL 117387, ¶ 32

(where defendant was convicted of AUUW and sought to vacate his conviction on appeal

based on Aguilar, proper remedy was to vacate his conviction). Based on this court’s

precedent, we continue to reaffirm the principle that the void ab initio doctrine renders a

facially unconstitutional statute unenforceable and renders a conviction under that facially

unconstitutional statute subject to vacatur.

¶ 21 Applying these principles of law to defendant, the void ab initio doctrine would enable him

to seek to vacate his 2002 AUUW conviction by filing an appropriate pleading. However, in

this case, defendant is not seeking to apply the void ab initio doctrine to vacate his prior 2002

AUUW conviction. Rather, defendant is seeking to reverse his 2008 conviction for UUW by a

felon, a constitutionally valid offense, by challenging the sufficiency of the evidence to convict

him. This distinction presents a different question, namely whether a prior conviction, which is

asserted to be based on a statute that has been subsequently declared facially unconstitutional,

may nevertheless serve as proof of the predicate felony conviction in prosecuting the offense

of UUW by a felon.

¶ 22 None of this court’s existing precedent applying the void ab initio doctrine resolves this

question. The United States Supreme Court, however, answered a similar question in the

affirmative. In Lewis v. United States, 445 U.S. 55 (1980), the Court held that under a federal

felon-in-possession-of-a-firearm statute, a constitutionally infirm prior felony conviction

could be used by the government as the predicate felony. Id. at 65. The statute “prohibit[ed] a

felon from possessing a firearm despite the fact that the predicate felony may be subject to collateral attack on constitutional grounds.” Id. The Lewis Court rejected the petitioner’s ability to challenge, in the federal proceeding, the use of his uncounseled state felony

conviction as the basis for his federal prosecution for being a felon in possession of a firearm.

Id. at 67.

¶ 23 To answer the question presented, the Court examined the language of the federal firearms

statute and concluded that “[t]he statutory language is sweeping, and its plain meaning is that

the fact of a felony conviction imposes a firearm disability until the conviction is vacated or the

felon is relieved of his disability by some affirmative action.” Id. at 60-61. The Court

“view[ed] the language Congress chose as 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. at 61 n.5. The Court noted that the

federal firearms statute contained “[n]o exception *** for a person whose outstanding felony

conviction ultimately might turn out to be invalid for any reason.” Id. at 62. The legislature

intended that “the defendant clear his status before obtaining a firearm,” in keeping with

Congress’s purpose to keep firearms away from persons who are potentially irresponsible and

dangerous. (Emphasis in original.) Id. at 64-65.

¶ 24 Thus, under Lewis and its progeny, the fact of a felony conviction without any intervening

vacatur or other affirmative action to nullify the conviction triggers the firearms disability. Id.

at 60-61. See, e.g., United States v. Mayfield, 810 F.2d 943, 945-46 (10th Cir. 1987) (affirming

federal firearms conviction even though state predicate conviction may have been void for lack

of jurisdiction under state law); People v. Chambers, 922 F.2d 228, 238-40 (5th Cir. 1991)

(even where predicate felony was subject to nullification on collateral attack, it was

nevertheless a conviction for purposes of federal firearms statute); United States v. Padilla,

387 F.3d 1087, 1092 (9th Cir. 2004) (even where predicate felony was subsequently vacated

nunc pro tunc, such conviction must be invalidated before felon takes possession of firearm;

later relief will not invalidate federal felon-in-possession conviction); United States v.

Leuschen, 395 F.3d 155, 157-59 (3d Cir. 2005) (holding that the federal felon-in-possession

statute precluded the defendant’s collateral attack on a prior conviction irrespective of validity

of that conviction, even where defendant claimed the law had been amended prior to trial). In

particular, in United States v. Wallace, 280 F.3d 781, 784 n.1 (7th Cir. 2002), the Seventh

Circuit affirmed the defendant’s conviction as a felon in possession despite the fact that the

basis for his felon status was premised on a statute that was void ab initio. The court relied on

the fact that the defendant pled guilty to the UUW by a felon offense and could not challenge

that admission. Id. at 784. However, the court also noted that the defendant’s argument lacked

merit in any event, reaffirming the principles in Lewis “despite different permutations of the

[defendant’s] change in status regarding the predicate felony.” Id. at 784 n.1. The court

reiterated that those cases reinforced the “straightforward principle that the only relevant

question is the defendant’s status at the time he was charged with unlawfully possessing a

firearm.” Id.

¶ 25 The State maintains that like the federal statute, under Illinois’s UUW by a felon statute, a

defendant’s felon status is determined at the time of the firearms possession and his disability

ceases only when the prior conviction has been properly vacated. Thus, the fact that a prior

felony conviction may subsequently turn out to be invalid for any reason and subject to vacatur

under the void ab initio doctrine is not relevant for purposes of proving the elements of the

separate offense of UUW by a felon.

¶ 26 We agree that the resolution of the question before us requires us to first consider the

language of section 24-1.1(a), the controlling statute under which defendant was convicted in

2008. /24-1.1(a) (West 2008). The interpretation of a statute presents a question of

law, subject to de novo review. People v. Simpson, 2015 IL 116512, ¶ 29. Our primary

objective is to ascertain and give effect to the true intent of the legislature. Id. This inquiry

starts with the plain language of the statute, which is the most reliable indicator of legislative

intent. Id. In determining the plain meaning of the statute, we may also consider “the reason for

the law, the problems sought to be remedied, the purposes to be achieved, and the

consequences of construing the statute one way or another.” People v. Gutman, 2011 IL

110338, ¶ 12. We presume that “the legislature did not intend to create absurd, inconvenient, or

unjust results.” Id.

¶ 27 The UUW by a felon statute prohibits the possession of a firearm by any person “if the

person has been convicted of a felony under the laws of this State or any other jurisdiction.”

/24-1.1(a) (West 2008). As previously explained, that language of the statute

requires the State to prove only “the defendant’s felon status.” Walker, 211 Ill. 2d at 337.

Contrary to the appellate court’s finding, the statute does not require the State to prove the

predicate offense at trial. Additionally, the proscription under section 24-1.1(a) is expressed in

the past tense, thus applying to any person who “has been convicted” of a felony (720 ILCS

5/24-1.1(a) (West 2008 . Nothing 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.

¶ 28 We see no reason to treat the interpretation of section 24-1.1(a) differently than the

Supreme Court’s interpretation of the similar federal statute in Lewis. Although the Supreme

Court’s construction of a federal statute is not binding on Illinois courts in construing an

Illinois statute, the Supreme Court’s interpretation of a similar federal statute may provide

guidance in interpreting our own statute. Gutman, 2011 IL 110338, ¶ 17.

¶ 29 As with the federal statute, the language of section 24-1.1(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.” Lewis, 445

U.S. at 61 n.5. The purpose of the statute, like the federal prohibition, is to protect the public

from persons who are potentially irresponsible and dangerous. People v. Garvin, 2013 IL App

(1st) 113095, ¶ 14. Thus, under section 24-1.1(a), it is immaterial whether the predicate

conviction “ultimately might turn out to be invalid for any reason.” Lewis, 445 U.S. at 62.

Moreover, as with the federal statute, the UUW by a felon statute is not concerned with

prosecuting or enforcing the prior conviction. Rather, the legislation is concerned with “the

role of that conviction as a disqualifying condition for the purpose of obtaining firearms.”

Mayfield, 810 F.2d at 946. Accordingly, based on the plain wording of this particular statutory

scheme, the UUW by a felon offense is a status offense, and the General Assembly intended

that a defendant must clear his felon status before obtaining a firearm.

¶ 30 Moreover, the policy and purpose of the UUW by a felon statute are served by requiring an

individual to clear his felony record before possessing a firearm, “no matter what infirmity

infects his conviction.” Padilla, 387 F.3d at 1091. As one jurisdiction aptly pointed out, a

defendant “may not resort to self help by first obtaining and possessing [a] firearm, and

thereafter try[ing] to assert the invalidity of the prior conviction as a defense to a [UUW by a

felon] prosecution.” People v. Harty, 219 Cal. Rptr. 85, 88 (Cal. App. 1985). Additionally illustrative of the policy and purpose of the statute is Clark v. State, 739 P.2d 777 (Alaska Ct. App. 1987), where the Alaska court explained:

“It appears to us that sound policy supports what we perceive to be the intent of the

legislature. *** We see no reason why the legislature would want to encourage a person who has formerly been convicted of a felony to gamble by possessing a concealable firearm, hoping that if he or she is arrested for being a felon in possession that he or she can defend against that offense by having the former conviction set aside.” Id. at 781.

There is nothing absurd or unjust or unreasonable about requiring a person who believes he has

been wrongly convicted of a felony to clear his status through the judicial process before being

allowed to possess a firearm. The UUW by a felon statute represents a considered and

deliberate decision to require that a prior felony conviction be vacated or expunged before a

firearm is possessed.

¶ 31 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.

¶ 32 This case in particular highlights the importance of having the judgment of conviction

vacated before possessing a firearm. Although for purposes of this appeal, the State does not

dispute that defendant’s 2002 conviction is premised on an unconstitutional statute, the record

does not confirm defendant’s assertion. The indictment for the 2008 UUW by a felon offense

does not identify the specific nature of the 2002 predicate AUUW offense under which

defendant pleaded guilty. Rather, it alleges that defendant had a felony conviction for

“[AUUW] under case number 02CR-30903.” Furthermore, the records submitted by defendant

in his appendix to his supplemental appellate brief in support of his argument that his

conviction was unconstitutional fall outside the certified record of the proceedings. Even if

considered, they provide no more clarity.

¶ 33 The indictment in the 02CR 30903 case reflects six separate charges of AUUW based on

two separate guns, under various subsections of the statute, including the fact that defendant

was under 21 at the time he possessed the firearms and lacked a FOID card. The record further

indicates that defendant pleaded guilty in case No. 02CR 30903 to one count of AUUW, but

the record does not affirmatively reflect that defendant pleaded guilty under section

24-1.6(a)(1), (a)(3)(A), the only section held unconstitutional in Aguilar. The record does not

contain the plea colloquy or the factual basis for that plea. Thus, had defendant properly sought

to vacate his 2002 guilty plea before possessing a firearm, these issues could have been

adequately considered and resolved in an appropriate proceeding.

¶ 34 Lastly, we reject defendant’s undeveloped assertion that interpreting the UUW by a felon

statute in line with the State’s argument would lead to a violation of due process or would

violate second amendment rights. Statutes are presumed to be constitutional, and we have a

duty to uphold the constitutionality of a statute whenever reasonably possible. Mosley, 2015 IL

115872, ¶ 40. The party challenging the constitutionality of the statute has the burden to prove its invalidity. Id. As stated in Lewis, with respect to due process, the legislature “could rationally conclude that any felony conviction, even an allegedly invalid one, is a sufficient

basis on which to prohibit the possession of a firearm.” Lewis, 445 U.S. at 66. As explained,

nothing in the UUW by a felon statute prevents a defendant who believes his prior conviction

is invalid from seeking a remedy for the deprivation of a guaranteed right. The remedy is to

challenge the judgment of conviction and have the unlawful judgment of conviction set aside

before deciding to possess a firearm.

¶ 35 With respect to the second amendment, in its normal application, the UUW by a felon

statute is a presumptively lawful “longstanding prohibition[ ] on the possession of firearms.”

District of Columbia v. Heller, 554 U.S. 570, 626 (2008). In McDonald v. City of Chicago,

Illinois, 561 U.S. 742, 786 (2010) (quoting Heller, 554 U.S. at 626), the Court reiterated that

“[w]e made it clear in Heller that our holding did not cast doubt on such longstanding

regulatory measures as ‘prohibitions on the possession of firearms by felons.’ ” See also

Burns, 2015 IL 117387, ¶ 29 (indicating that the legislature can constitutionally prohibit felons

from carrying readily accessible firearms outside the home).

¶ 36 Nevertheless, defendant appears to mount an as-applied challenge, contending that it

would violate the second amendment to apply the UUW by a felon statute to felons whose

status derived from constitutionally protected conduct. We have previously stated that it would

be improper for this court to render a decision on an as-applied challenge where there has been

no evidentiary hearing and no findings of fact on that issue. Mosley, 2015 IL 115872, ¶ 47. In

any event, defendant has not shown that his conduct was entitled to second amendment

protections, which are held by “law-abiding, responsible citizens” for self-defense (Heller, 554

U.S. at 635), where he chose to possess a firearm, which he used to rob three victims at

gunpoint, knowing that he had not vacated his prior felony conviction.

¶ 37 In sum, defendant may seek to vacate his prior 2002 conviction for AUUW under the void

ab initio doctrine based on this court’s declaration in Aguilar. Nevertheless, even if successful,

that remedy would neither alter nor extinguish the requirement under section 24-1.1(a) that

defendant clear his felon status before obtaining a firearm. Accordingly, for all of the

foregoing reasons, defendant’s prior conviction properly served as proof of the predicate

felony conviction for UUW by a felon.

¶ 38 2. Cross-Relief ¶ 39 In his cross-appeal, defendant contends that the appellate court erred when it ruled that his

29-year concurrent sentences for the armed robberies need not be remanded for resentencing. In the appellate court, defendant argued that his concurrent 29-year sentences for armed robbery were excessive and that the appellate court should consider that without his prior AUUW conviction he had only one prior felony conviction in his background.

¶ 40 Defendant now contends that the appellate court failed to consider that had the trial court

been aware that his 2002 AUUW conviction was unconstitutional, and that he had fewer convictions, the trial court would have likely sentenced him to less than the concurrent 29-year sentences for the armed robberies of the three victims. Accordingly, defendant asks this court to either reduce his sentences from 29 years to the minimum available sentence of 21 years or alternatively to remand for resentencing.

¶ 41 We reiterate that the constitutional invalidity of defendant’s 2002 AUUW conviction is not

confirmed by the record in this case. Nevertheless, even if it was constitutionally infirm, the record adequately demonstrates that the weight placed on the 2002 AUUW conviction was not significant and did not warrant a new sentencing hearing. Nor has defendant shown that the one count of UUW by a felon that the appellate court vacated based on the one-act, one-crime doctrine had any effect on his armed robbery sentence. People v. Payne, 98 Ill. 2d 45, 55 (1983) (resentencing unnecessary unless record indicates a vacated conviction had effect on the other sentences).

¶ 42 In support of his argument, defendant relies on the trial court’s statement in sentencing; the

nature of the offense; the mitigation regarding defendant’s childhood, mental health problems, and drug and alcohol addiction; and his rehabilitative potential. He also relies upon United States v. Tucker, 404 U.S. 443 (1972). There, the federal district court expressly considered two particular prior felony convictions in sentencing that were unconstitutional, and the Supreme Court remanded for a new sentencing hearing. Id. at 447. In that case, the Court believed that without the convictions, “the factual circumstances of the respondent’s background would have appeared in a dramatically different light at the sentencing proceeding.” Id. at 448.

¶ 43 Here, in sentencing defendant, the trial court recognized defendant’s difficult childhood,

his past drug and mental health issues, and his rehabilitative potential. The court specifically noted that he “showed some insight,” in expressing remorse and taking responsibility for his actions. The judge noted that “[i]f I could forget everything else, it would be great. Unfortunately, you know, you come here with your history, your criminal history, you come here with the facts of this case, all of which this Court has a responsibility to take into consideration.” We disagree with defendant’s assertion that this case warrants a remand for a new sentencing hearing.

¶ 44 With respect to his criminal history, the trial court did not point to any one prior conviction

but, rather, referenced generally his “criminal history” as a factor in sentencing. Defendant’s criminal record is extensive. The record reveals that defendant not only violated the terms of his probation for the 2002 AUUW offense, his probation was ultimately terminated unsatisfactorily for that offense, and then he went on to continue to commit other crimes. Defendant had a juvenile disposition for aggravated battery and convictions for battery, resisting arrest, aggravated assault, criminal trespass to a vehicle, assault, theft, driving while under the influence, and possession of a controlled substance with the intent to deliver. In addition, the presentence investigation report revealed that defendant was a “three-star universal” in the Conservative Vice Lords gang, which he joined at the age of 11. The State explained that this title applies to the violent enforcer who is tasked with securing the gang’s territory.

¶ 45 With respect to the nature of the armed robberies, the court considered that defendant

committed armed robberies against three victims during a single 24-hour period. During one of the robberies, defendant held a gun to one victim’s neck, and after obtaining his wallet and cell phone and the other victim’s cell phone, he returned, again holding the gun to the victim’s neck, and demanded more money. Later that day, defendant grabbed another victim’s shoulder, pushed him into a fence, and held a gun to his sternum. After obtaining only a few dollars, a cell phone, and a wallet, defendant told the victim, “I could have shot you for that.”

The victim testified that the gun was at his chest throughout the robbery and that he was afraid

that defendant would shoot him.

¶ 46 Furthermore, armed robbery is a Class X offense punishable by not less than 6 years and

not more than 30 years’ imprisonment. 730 ILCS 5/5-4.5-25(a) (West 2008). The trial court imposed a 14-year sentence on the armed robbery counts, to which the 15-year enhancement was added because defendant used a firearm during the commission of the offenses. 720 ILCS 5/18-2(b) (West 2008). Thus, defendant’s concurrent sentences for committing armed robberies against three victims were 16 years below the maximum sentences permissible for those offenses. Based on this record, we conclude that a remand for resentencing on his armed robbery convictions is not required.

¶ 47 CONCLUSION ¶ 48 We hold that under the UUW by a felon statute, defendant’s felon status at the time of the

offense properly served as sufficient proof of the predicate felony conviction. Additionally, we reject defendant’s assertion that the trial court’s imposition of concurrent 29-year prison terms for his armed robbery convictions requires a sentencing reduction or remand for a new sentencing hearing. Accordingly, for all of the foregoing reasons, we affirm the judgment of the appellate court in part and reverse in part.

¶ 49 Appellate court judgment affirmed in part and reversed in part. ¶ 50 Circuit court judgment affirmed in part and vacated in part.

¶ 51 JUSTICE KILBRIDE, concurring in part and dissenting in part:

¶ 52 The majority chooses to define the question in this case as “whether a prior conviction,

which is asserted to be based on a statute that has been subsequently declared facially unconstitutional, may nevertheless serve as proof of the predicate felony conviction in prosecuting the offense of UUW by a felon.” Supra ¶ 21. In light of this court’s longstanding precedent on the void ab initio doctrine, however, the question is actually whether a conviction for UUW by a felon may be predicated on a prior conviction for a felony that could never have been validly established or prosecuted. The majority answers that question in the affirmative. I respectfully dissent from that view.

¶ 53 When a statute is held facially unconstitutional, i.e., unconstitutional in all its applications

(see In re Rodney H., 223 Ill. 2d 510, 521 (2006 , the statute is said to be void ab initio. Lucien v. Briley, 213 Ill. 2d 340, 344-45 (2004); Hill v. Cowan, 202 Ill. 2d 151, 156 (2002); see also People v. Gersch, 135 Ill. 2d 384, 390 (1990) (“ ‘[w]hen a statute is held unconstitutional in its entirety, it is void ab initio’ ” (quoting People v. Manuel, 94 Ill. 2d 242, 244-45 (1983 ; Perlstein v. Wolk, 218 Ill. 2d 448, 455 (2006) (an unconstitutional statute is void “from the beginning”). The void ab initio doctrine is based on the theory that “ ‘[a]n unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.’ ” (Internal quotation marks omitted.) People v. Blair, 2013 IL 114122, ¶ 28 (quoting Perlstein, 218 Ill. 2d at 454). These principles have long been strictly applied in our criminal jurisprudence. Perlstein, 218 Ill. 2d at 466-67; Gersch, 135 Ill. 2d at 396-401.

¶ 54 As the majority notes, “[t]he UUW by a felon statute makes it unlawful for a person to

knowingly possess a firearm ‘if the person has been convicted of a felony under the laws of this

State or any other jurisdiction.’ ” Supra ¶ 14 (quoting /24-1.1(a) (West 2008 . The

majority then implies, without concluding, that defendant’s stipulation of his felon status

“precluded [him] from attacking or contradicting [that] stipulation” (supra ¶ 15 (citing People

v. Woods, 214 Ill. 2d 455, 469 (2005 . Woods is inapt because the defendant there challenged

only the evidence of the State’s chain of custody after having entered into a trial stipulation as

to the narcotics found. Woods, 214 Ill. 2d at 462-66; supra ¶ 15. Constitutional questions were

never at issue. Finally, the majority addresses defendant’s substantive claim under the void

ab initio doctrine. It relies on two cases purportedly addressing “a similar question,” Lewis v.

United States, 445 U.S. 55 (1980), and United States v. Wallace, 280 F.3d 781, 784 n.1 (7th

Cir. 2002). Supra ¶¶ 22-34. With Lewis and Wallace, the majority misses the mark.

¶ 55 In Lewis, the United States Supreme Court considered whether a federal

felon-in-possession conviction could be based on a prior felony conviction obtained without

counsel or a valid waiver of counsel, in violation of the sixth amendment to the United States

Constitution. It is worth noting that the Supreme Court never used the term “void ab initio” in

its discussion. The absence of any mention of that term is understandable, however, because

the void ab initio doctrine was inapplicable; no statute was held facially unconstitutional in

Lewis. The Court ultimately concluded that the defendant could be convicted of unlawfully

possessing a gun due to his status as a felon even when his prior felony conviction violated his

sixth amendment rights. Lewis, 445 U.S. at 67.

¶ 56 In this court, a sixth amendment violation would not have supported a void ab initio

finding either. In Lewis, the defendant’s predicate felony remained a valid offense, and a

properly tried defendant could still be convicted on that charge. The opposite is true in this

case. Contrary to the majority’s description, the issues in Lewis and this case are “similar” only

at the most superficial level.

¶ 57 While at first blush this case may appear to be similar to Lewis because both involve

defendants’ challenges to the use of unconstitutional prior felony convictions as predicate

felonies in later felon-in-possession prosecutions, that illusion fades rapidly in the light of

serious legal scrutiny. In Lewis, the constitutional error occurred as part of the trial process; the

predicate offense always remained valid. Here, in stark contrast to Lewis, this court invalidated

the predicate offense in its entirety in Aguilar, 2013 IL 112116, ¶ 22, concluding it was a facial

violation of “the right to keep and bear arms, as guaranteed by the second amendment to the

United States Constitution.”

¶ 58 As the majority explains, under our void ab initio doctrine, the invalidated AUUW statute

was rendered

“void ‘ “from the beginning.” ’ Perlstein v. Wolk, 218 Ill. 2d 448, 455 (2006) (quoting Black’s Law Dictionary 1604 (8th ed. 2004 ; Hill v. Cowan, 202 Ill. 2d 151, 156 (2002) (limiting the doctrine to facially unconstitutional statutes). A declaration that a statute is void ab initio means that the statute was constitutionally infirm from the moment of its enactment and, therefore, is unenforceable. People v. Blair, 2013 IL 114122, ¶ 30.” Supra ¶ 17.

Thus, after our decision in Aguilar, as clarified in People v. Burns, 2015 IL 117387, the offense

used as the predicate felony for the UUW by a felon charge in this case “was constitutionally infirm” when it was enacted and must be treated as if its underlying statute was never operative.

¶ 59 In addition, the majority relies on the Seventh Circuit Court of Appeals decision in

Wallace. The Seventh Circuit described Wallace’s conviction for unlawful use of a weapon as

being “vacated as void ab initio when the Supreme Court of Illinois ruled that the Act that had

transformed the unlawful use of weapon (‘UUW’) charge from a misdemeanor to a felony

violated the Illinois Constitution.” Wallace, 280 F.3d at 782-83 (citing People v. Cervantes,

189 Ill. 2d 80 (1999 . The constitutional violation in Cervantes, however, was of the Illinois

Constitution’s single-subject clause (Ill. Const. 1970, art. IV, § 8(d . Cervantes, 189 Ill. 2d at

93-96. That violation was based on the constitutionally invalid structure of the public act and

did not independently consider the constitutional validity of any one provision within that

public act. Cervantes did not declare the very heart of a particular provision facially

unconstitutional, as did our holding in Aguilar.

¶ 60 In fact, a close reading of Cervantes reveals it, like Lewis, never used the term “void

ab initio,” underscoring its inapplicability. Moreover, the circuit court in Wallace corrected the

defendant’s improper felony conviction by entering “a misdemeanor conviction nunc pro

tunc” for the offense. Wallace, 280 F.3d at 783. The fact that Wallace could still be convicted

of the misdemeanor form of that offense at all after this court’s decision in Cervantes indicates

that this court did not declare the criminal statute void ab initio. If we had, the entire offense

would have ceased to exist, and Wallace’s conviction would have been vacated outright. Thus,

respectfully, the Seventh Circuit mischaracterized the impact of this court’s decision in

Cervantes, rendering Wallace inapposite here.

¶ 61 This court has also held that the effect of the void ab initio doctrine is necessarily

retroactive, applying universally to unwind every conviction ever obtained under section

24-1.6(a)(1), (a)(3)(A) of the AUUW statute because “ ‘[t]o hold that a judicial decision that

declares a statute unconstitutional is not retroactive would forever prevent those injured under

the unconstitutional legislative act from receiving a remedy for the deprivation of a guaranteed

right. This would clearly offend all sense of due process.’ ” Supra ¶ 18 (quoting Gersch, 135

Ill. 2d at 397-98). See also People v. Thompson, 2015 IL 118151 (permitting facial

constitutional challenges to be raised even collaterally in petitions filed pursuant to section

2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010 . Based on the need

to vindicate a criminal “defendant’s constitutionally guaranteed rights,” we have mandated

“strict application” of the void ab initio doctrine in criminal cases despite its potentially

far-reaching consequences. Perlstein, 218 Ill. 2d at 466-67. Because of its fundamental

constitutional flaw, the relevant portion of the AUUW statute is utterly unenforceable.

Consequently, no one may be, or has ever been, validly convicted under that subsection.

¶ 62 Despite openly acknowledging the critical role the void ab initio doctrine plays in our state

jurisprudence, the majority nevertheless concludes that defendants may obtain retroactive

relief from a criminal statute declared to be facially unconstitutional only by first jumping

through prescribed procedural hoops. The majority requires defendants not only to request, but

also to obtain, official vacatur of their convictions for their non-offenses prior to engaging in

constitutionally protected conduct, including expression of their fundamental second

amendment rights, or face yet another felony conviction and sentence.

¶ 63 This court has expressly recognized the fundamental nature of an individual’s right to keep

and bear arms. Coram v. State of Illinois, 2013 IL 113867, ¶ 49 (quoting McDonald v. City of

Chicago, Illinois, 561 U.S. 742, 778 (2010 ; Aguilar, 2013 IL 112116, ¶ 17 (quoting

McDonald, 561 U.S. at 749-50). I fail to see how placing these additional burdens on

defendants who have already been harmed by suffering felony prosecutions for offenses so

grievously flawed that they cannot be validly applied in even a single instance comports with

any “sense of due process.” See supra ¶ 18 (quoting Gersch, 135 Ill. 2d at 397-98 (declaring

that the conclusion that the unconstitutionality of a statute is not retroactive “ ‘would clearly

offend all sense of due process’ ” .

¶ 64 Moreover, the majority’s position raises more practical questions, and those answers

further heighten the likelihood of the State again meting out injustice to defendants who have

already been the unwitting victims of misplaced criminal prosecutions and, undoubtedly in

many cases, years lost in prison. These questions include: how and, perhaps more importantly,

when would these individuals discover they are the victims of an inherently unconstitutional

legislative act? What, if any, mechanism is in place to notify those “convicted” of criminal

statutes later determined to be so profoundly flawed that each and every prosecution ever

conducted is invalid? I am aware of none. Virtually the only time individuals “convicted”

under any criminal statute later declared void ab initio would realistically become aware of

their plight would be after being charged with another criminal offense.

¶ 65 In the majority’s view, however, their fate has already been sealed at that point. According

to the majority, they cannot simply, and logically, rely on the utter invalidity of their purported

prior offense to provide a remedy. See supra ¶¶ 29-32. And why not? Merely because they

acted too late to seek official vacatur of convictions that they had no reason to even suspect

were fatally and irreparably flawed. Once again, I fail to see how the majority’s approach

comports with any “sense of due process.” See supra ¶ 18 (declaring that a decision holding

the unconstitutionality of a statute is not retroactive “ ‘would clearly offend all sense of due

process’ ” (quoting Gersch, 135 Ill. 2d at 397-98 .

¶ 66 The majority also cites the purpose of the UUW by a felon statute: “to protect the public

from persons who are potentially irresponsible and dangerous.” Supra ¶ 29. But because not a

single AUUW conviction ever obtained under section 24-1.6(a)(1), (a)(3)(A) can properly

stand after Aguilar and Burns, those convicted under that provision cannot rightfully be

lumped together with defendants whose prior convictions justify deeming them presumptively

“irresponsible and dangerous.” The contrary conclusion would effectively mean the mere

exercise of citizens’ fundamental second amendment rights renders them “irresponsible and

dangerous,” a clearly erroneous result that contradicts our plain holding in Aguilar and its

progeny. And if, as in this case, a defendant has other prior felony convictions befitting the use

of that description, the State may be entitled to refile charges of UUW by a felon based on the

alternative prior conviction. Thus, the public can be protected without unnecessarily trampling

citizens’ second amendment rights.

¶ 67 While the majority makes much of a defendant’s “felon status” (supra ¶¶ 24-30), its view

places form over constitutional substance and is fundamentally inconsistent with this court’s

historical explanation of its strict application of the void ab initio doctrine in criminal cases. At

the time defendant received his 2002 AUUW felony conviction, the parties and trial court all

labored under the mistaken, though entirely understandable, belief that his conviction made him a felon. Only after this court examined that AUUW provision in Aguilar and determined it could not be validly applied under any set of circumstances did that error become self-evident.

If this court truly means what it says about the void ab initio doctrine, no defendant can

properly be prosecuted for violating the onerous restrictions imposed on the constitutional

rights of those officially bearing “felon status,” if that “felony” effectively never existed. The

injustice resulting from subjecting those defendants to further criminal prosecutions based on

convictions for an offense that could never have been validly charged in the first place simply

because they have not already officially shed their status as a “felon” is manifest.

¶ 68 In its analysis, the majority opinion also shifts the focus from the plain language of the

UUW by a felon statute to the defendant’s “status” as a felon. Under the express language of

the UUW by a felon statute, however, the State must prove that a defendant knowingly

possessed a firearm while “convicted of a felony under the laws of this State.” 720 ILCS

5/24-1.1(a) (West 2008). It does not require proof of the defendant’s “felon status.” The

AUUW conviction specified in the charging instrument for the State’s UUW by a felon count

could not be established here because, under this court’s void ab initio doctrine, the underlying

statute was invalid from the day of its enactment. People v. Mosley, 2015 IL 115872, ¶ 55;

Blair, 2013 IL 114122, ¶ 30.

¶ 69 These circumstances create a situation somewhat akin to mutual mistake. At the time of the

pre-Aguilar UUW by a felon proceedings, both the State and defendant believed the prior

AUUW constituted a valid felony conviction. Only after this court’s holding in Aguilar did the

error come to light. The impact of that holding was that, without exception, every AUUW

conviction ever entered under that section was immediately invalid and unenforceable. See

Thompson, 2015 IL 118151, ¶ 32; People v. Blair, 2013 IL 114122, ¶ 30. After all, what is a

conviction if not the enforcement of a criminal statute? Logic and fundamental fairness

mandate that no person can be constitutionally convicted of an offense that could never be

validly created or prosecuted. It is a legal impossibility. See People v. Hayes, 365 Ill. 318, 322

(1937) (concluding embezzlement was a physical and legal impossibility when the paper

warrants at issue were void). The application of these bedrock principles precludes defendant

from being convicted of UUW by a felon based on his facially unconstitutional 2002 AUUW

“conviction.”

¶ 70 The majority’s contrary holding seriously undermines this court’s void ab initio doctrine,

effectively making convictions for offenses later declared facially unconstitutional merely

voidable. At best, the majority appears to be manufacturing an undefined exception to that

doctrine. That exception effectively creates a grace period for unconstitutional legislation that

could last for over a decade, as in this case, and affect vast numbers of people. During that

time, our citizens’ most basic constitutional rights, including the fundamental right to keep and

bear firearms, may be violated with impunity. The cost to the citizens of Illinois is simply too

high. See People v. Krueger, 175 Ill. 2d 60, 75 (1996) (expressing similar sentiments in the

context of this state’s exclusionary rule).

¶ 71 At a minimum, this court’s diversion from its longstanding “strict application” of the void

ab initio doctrine in criminal cases (Perlstein, 218 Ill. 2d at 466-67) should be done expressly

and with special justification for its departure from stare decisis. People v. Colon, 225 Ill. 2d

125, 146 (2007). Instead, the majority opinion incongruously asserts that it “continue[s] to

reaffirm the principle that the void ab initio doctrine renders a facially unconstitutional statute unenforceable and renders a conviction under that facially unconstitutional statute subject to vacatur.” Supra ¶ 20.

¶ 72 Imposing the prerequisite of a prior official vacatur of a conviction for a crime that could

never be validly prosecuted before an individual is absolved of the full criminal consequences

of his “felony conviction” is manifestly unjust and creates an absurd result. That is particularly

true when, through no fault of his own, the individual is almost certainly never going to

become aware of the opportunity to have his conviction vacated until after being held on

another charge. Undoubtedly, some, if not many, of these individuals will have no prior

offenses other than the one declared to be facially unconstitutional, yet all will be subject to

additional charges, punishments, and lifelong restrictions on their basic rights under the

majority’s view. Rather than support the interests of justice, the majority “would forever

prevent those injured under the unconstitutional legislative act from receiving a remedy for the

deprivation of a guaranteed right. This would clearly offend all sense of due process.” Gersch,

135 Ill. 2d at 397-98.

¶ 73 As we clearly explained in Gersch, “where a statute is violative of constitutional

guarantees, we have a duty not only to declare such a legislative act void, but also to correct the

wrongs wrought through such an act by holding our decision retroactive.” Gersch, 135 Ill. 2d

at 399. For these reasons, I must dissent from the portion of the majority opinion upholding

defendant’s conviction for UUW by a felon premised on a prior felony that could never be

validly prosecuted. I agree, however, with the majority’s disposition of defendant’s

cross-appeal and concur in that portion of the opinion.

¶ 74 JUSTICE BURKE joins in this partial concurrence, partial dissent.