Opinion
1-13-0556
05-14-2015
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK STERLING, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 12 CR 16013
Honorable James B. Linn, Judge Presiding.
JUSTICE HOWSE delivered the judgment of the court.
Justices Ellis and Cobbs concurred in the judgment.
ORDER
¶ 1 Held: The circuit court of Cook County's judgment convicting defendant of unlawful use of a weapon by a felon and four counts of aggravated unlawful use of a weapon is reversed. Defendant's prior conviction for aggravated unlawful use of a weapon cannot serve as the predicate felony for a conviction for unlawful use of a weapon by a felon after that offense was declared unconstitutional, and the State failed to prove an essential element of the charges for aggravated unlawful use of a weapon.
¶ 2 The State charged defendant, Mark Sterling, with unlawful use of a weapon by a felon and four counts of aggravated unlawful use of a weapon. Following a bench trial the circuit court of Cook County found defendant guilty of each of the five counts stated above, merged the four counts of aggravated unlawful use of a weapon into the conviction for unlawful use of a weapon by a felon, and sentenced defendant to four years' imprisonment. Defendant appeals, arguing the State failed to prove an element of the offense of aggravated unlawful use of a weapon by a felon. Defendant argues the State failed to prove he was convicted of a felony because the prior conviction charged in the information, aggravated unlawful use of a weapon, cannot form the basis of an unlawful use of a weapon by a felon conviction. Defendant agues his conviction for aggravated unlawful use of a weapon may not serve as the predicate offense for a charge of unlawful use of a weapon by a felon because the statute defining the offense was void ab initio.
¶ 3 For the following reasons, we reverse defendant's convictions.
¶ 4 BACKGROUND
¶ 5 On August 31, 2012, the State filed a 10-count information against defendant charging him with, inter alia, multiple violations of Article 24 of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/24-1 et seq. (West 2012)). Specifically, as it pertains to this appeal, the State charged defendant with committing unlawful use or possession of a weapon by a felon (UUWF) in violation of section 24-1.1(a) (count III), aggravated unlawful use of a weapon (AUUW) in violation of section 24-1.6(a)(1)/(3)(A) (count V), AUUW in violation of section 24-1.6(a)(1)/(3)(C) (count VI), AUUW in violation of section 24-1.6(a)(2)/(3)(A) (count VII), and AUUW in violation of section 24-1.6(a)(2)/(3)(C) (count VIII).
¶ 6 Frank Hasenfang testified at defendant's bench trial. Hasenfang is a police officer for the Chicago Police Department. On July 31, 2012, Officer Hasenfang was working with a partner, Dennis Lanning. At approximately 12:45 a.m., Officer Hasenfang and his partner "responded to a call of a male with a gun" in the area of 6724 South Elizabeth Street in the city of Chicago. Officer Hasenfang testified he and his partner were given a description of a "male black who was larger in stature and had a handgun with a fixed laser he was pointing around." Officer Hasenfang testified that when he arrived he saw defendant, and he testified that defendant fit the description Officer Hasenfang was given. Officer Hasenfang testified that when he pulled up, defendant was amongst other individuals walking down the steps to the front porch at 6724 Elizabeth. Defendant looked in Officer Hasenfang's direction, turned around, and "made an adjusting movement to his waistband." Officer Hasenfang testified he then "[i]mmediately went after Mark Sterling." Officer Hasenfang caught up to defendant as defendant got to the door of the residence, at which time Officer Hasenfang conducted a pat-down search. He testified that when he caught up to defendant Officer Hasenfang believed defendant might be in possession of a weapon. The pat-down revealed an uncased and loaded handgun with an attached laser sight. Officer Hasenfang placed defendant under arrest. On cross-examination, Officer Hasenfang testified that he did not see a bulge when he first saw defendant. Officer Hasenfang testified that he "saw [defendant] turn around and make an adjusting movement to his side and then try to make it back into the house. And by his actions and his demeanor" Officer Hasenfang thought defendant might have a gun. The State also entered evidence of defendant's statement that he lived at the address where he was arrested and evidence of a letter addressed to defendant at that address.
¶ 7 The parties stipulated that on July 31, 2012, defendant had been previously convicted of the felony offense of aggravated unlawful use of a weapon. The parties further stipulated that fact was being "offered for the limited purpose of demonstrating the elements that are required for the charges that are before the court."
¶ 8 Following closing arguments, the trial court found that it was very clear that defendant had possession of the gun found on his person. The court found defendant guilty of counts III, V, VI, VII, and VIII. At defendant's sentencing hearing, the court ruled that all of the other convictions merge into count III. The assistant state's attorney informed the court that he believed defendant had been convicted of a Class 2 felony for aggravated unlawful use of a weapon in 2009. The court sentenced defendant to four years' imprisonment.
¶ 9 This appeal followed.
¶ 10 ANALYSIS
¶ 11 Defendant argues his 2012 conviction for unlawful use of a weapon by a felon (UUWF) under count III of the information must be vacated because the predicate felony forming the basis of that conviction--a 2009 conviction for the Class 4 felony of aggravated unlawful use of a weapon (AUUW)--is void. Defendant argues that if this court does vacate his conviction under count III, this court should not remand the matter to the trial court for sentencing on counts V, VI, VII, or VIII (the merged counts). Initially, we note that the State concedes the evidence failed to sufficiently establish that defendant was not on his own land when he possessed the weapon to prove the elements of AUUW charged in this case. Because the evidence was insufficient to prove every element of the offenses charged in the merged counts defendant's convictions under those counts should be vacated.
¶ 12 Defendant argues that our supreme court found the statute defining the offense of AUUW for which he was convicted in 2009 void ab initio in People v. Aguilar, 2013 IL 112116 (modified upon denial of rehearing December 19, 2013) and, under the void ab initio doctrine, that conviction may not serve as the predicate felony for a conviction for UUWF. Alternatively, defendant argues that his trial counsel provided ineffective assistance of counsel by failing to move to suppress the gun police seized from defendant's person. Defendant argues the failure to move to suppress the gun was not the result of trial strategy and prejudiced him because a motion to suppress the gun would have been meritorious and would have resulted in a different outcome of the trial. Defendant argues a motion to suppress would have been meritorious because Officer Hasenfang lacked a reasonable articulable suspicion that defendant was in possession of a gun before Officer Hasenfang performed the pat-down search.
¶ 13 If, as defendant suggests, the State failed to prove the elements of UUWF because the predicate felony conviction in the information is void, then we have no need to address defendant's claim of ineffective assistance of counsel. Accordingly, we turn first to the argument defendant's 2009 AUUW conviction cannot serve as the predicate felony for a subsequent charge of UUWF.
¶ 14 1. Whether a conviction for AUUW under the void provisions in section 24-1.1 of the Criminal Code may serve as the predicate felony for UUWF.
¶ 15 Our supreme court found "the Class 4 version of the aggravated unlawful use of a weapon (AUUW) statute [(citation)] to be unconstitutional in violation of the second amendment right to bear arms." People v. Cowart, 2015 IL App (1st) 113085, ¶ 46. This court
has addressed the issue in this appeal several times and has consistently held that where a conviction is based on a statute found to be unconstitutional and void ab initio we cannot allow that conviction to stand as a predicate offense for a subsequent conviction for an offense that requires proof of a prior felony conviction as an element of the offense. See Cowart, 2015 IL App (1st) 113085, ¶ 47 (conviction for AUUW cannot stand as predicate offense for armed habitual criminal conviction); People v. Claxton, 2014 IL App (1st) 132681, ¶ 20 (conviction for Class 4 felony form of AUUW cannot serve as essential element of UUWF conviction); People v. Fields, 2014 IL App (1st) 110311, ¶ 44 (holding court was bound to vacate the defendant's armed habitual criminal conviction because the State could not prove an element of the offense through the use of a predicate felony conviction that is void ab initio); People v. McFadden, 2014 IL App (1st) 102939, ¶ 43, petition for leave to appeal allowed May 28, 2014 (holding court cannot allow Class 4 AUUW conviction to stand as a predicate offense for a UUW by a felon conviction).
¶ 16 In this case, the record before this court establishes that the predicate felony underlying defendant's current conviction for UUWF was the "Class 4 version" of AUUW. Count 3 of the information charges defendant with having been previously convicted of a felony in case number 09CR1663101. The supplemental record contains an October 21, 2009 order of commitment and sentence to the Illinois Department of Corrections for one year against defendant in case number 09CR1663101. That order states that the court found defendant guilty of count IV of the charges against defendant. The order of commitment states that the court found defendant guilty of aggravated unlawful use of a weapon in violation of section 24-1.6(A)(1) and that the offense was a Class 4 felony. (Count IV of the
2009 information in the supplemental record charged defendant with unlawful possession of firearms and ammunition in violation of section 24-3.1(A)(1) of the Criminal Code of 1961 (720 ILCS 5/24-3.1(A)(1) (West 2008)).) In this appeal, the State does not dispute that the predicate felony used to convict defendant of UUWF was Class 4 AUUW.
¶ 17 The State does argue that this court's decisions on this issue are wrong because "the United States Supreme Court, eleven federal circuit courts of appeals, and fifteen states have held" that "it is the status of the person's prior conviction at the time he or she possesses the firearm that controls, regardless of whether that prior conviction is later *** declared void ab initio." In this case specifically, the State argues that because the "prior conviction from 2009 was neither vacated nor declared void prior to defendant's possession of the firearm on July 31, 2012," he was a convicted felon (of the offense of Class 4 AUUW) on that date and the "firearm disability" remained intact. The State asserts that the other jurisdictions have followed the lead of the United States Supreme Court and its decision in Lewis v. United States, 445 U.S. 55 (1980). The State argues that under Lewis, it is irrelevant that the predicate conviction may be subject to "collateral attack" on the grounds that a subsequent ruling in an unrelated case "made the predicate conviction unconstitutional." Rather, it is the defendant's status--allegedly as a convicted felon--on the date of possession that controls the analysis.
¶ 18 As this court has noted, Lewis does not involve a predicate felony conviction that was based on an unconstitutional statue and thus has no applicability to the facts in this case. Cowart, 2015 IL App (1st) 113085, ¶ 48. Moreover, we disagree with the State's position that defendant was a convicted felon at the time he possessed the weapon on July 31, 2012 for purposes of using that conviction as an element of a subsequent offense. To hold to the
contrary, as the State asks us to do, would be to give legal effect to the facially unconstitutional provisions of the AUUW statute. When our supreme court declares a statute unconstitutional and void ab initio, it means that the statute was constitutionally infirm from the moment of its enactment and is, therefore, unenforceable. As a consequence, the court will give no effect to the unconstitutional statute. People v. Blair, 2013 IL 114122, ¶ 30.
¶ 19 In People v. Carrera, 203 Ill. 2d 1, 7 (2002), Chicago police effectuated an extraterritorial arrest. The defendant filed a motion to quash arrest and suppress evidence on the grounds the police officers did not have authority to arrest him outside the territorial limits of the city of Chicago. Id. One of the State's arguments was that the officers acted in good-faith reliance upon an amendment to the extraterritorial arrest statute. Id. at 7-8. That amendment was declared unconstitutional several months after the defendant's arrest. Id. at 8. The trial court denied the motion. The trial court found that at the time of the arrest, "everyone agrees that [the arrest] was within their statutory authority as it existed at the time." Id. The trial court reasoned that:
"[B]ecause of this single subject problem that the State is currently going through, it turns out that that statute was invalid. But at the time that the police--if you look into the police minds, for example at the time that the police decided okay, we are going to go out to Schiller Park and do this investigation, and in their mind they were of a belief they were not committing misconduct because it was statutorily
authorized. So obviously what I am talking about is [a] good faith exception to the exclusionary rule." Id.
¶ 20 The appellate court reversed, noting that the amendment to the extraterritorial arrest statute was found to be unconstitutional and, therefore, void ab initio. The appellate court refused to apply a good-faith exception to the exclusionary rule, finding that "it would view the facts of the case as though the statute never existed." Carrera, 203 Ill. 2d at 9. Our supreme court granted the State's petition for leave to appeal and affirmed the appellate court. Id. at 17. Our supreme court's decision was "dictated by application of the void ab initio doctrine." Id. at 14.
¶ 21 The State argued that as of the date of the defendant's arrest, the amendment to the statute had not been declared unconstitutional, therefore, a good-faith exception to the exclusionary rule should apply. Our supreme court held that "to apply the good-faith exception would run counter to our single subject clause and void ab initio jurisprudence—specifically, that once a statute is declared facially unconstitutional, it is as if it had never been enacted." Id. at 16. The State also asked the court to "give legal effect to the historical fact that [the statute] existed and that the police officers acted pursuant to [the statute]." Id. Our supreme court refused, stating:
"In our estimation, to give effect to the historical fact that the [statute] existed at the time of defendant's arrest would effectively resurrect the [statute] and provide a grace period (in this case four years between the effective date of the amendment and the date of our opinion *** finding [the statute]
unconstitutional) during which our citizens would have been subject to extraterritorial arrests without proper authorization. Our decision not to recognize an exception to the exclusionary rule where a statute is enacted in violation of the single subject clause comports with our jurisprudence that a statute which is facially invalid, and thus unconstitutional in its entirety, is void ab initio." Id.
¶ 22 Similarly, in this case, to give effect to the historical fact that defendant was convicted of the unconstitutional form of AUUW would effectively resurrect the unconstitutional AUUW statute. Doing so would not comport with our supreme court's void ab initio jurisprudence. This result is also dictated by our supreme court's decision in People v. Tellez-Valencia, 188 Ill. 2d 523, 524 (1999). There, both defendants involved in the consolidated appeal were convicted of predatory criminal sexual assault of a child, but while their appeals were pending, our supreme court invalidated the statute that created the offense. Id. The General Assembly later reenacted the offense as aggravated criminal sexual assault. Id. at 526. One district of the appellate court allowed the State to amend the indictment on appeal, noting the identical nature and elements of the two offenses. Id. at 525-26. A different district of this court held that only the grand jury could make a substantive change to the indictment. Id. at 525.
¶ 23 The State argued to our supreme court that amending the name of the offense charged was a mere formality and the defendants would not be prejudiced because each was apprised of the nature and elements of the offense from which to prepare a defense. Id. at 526. The
court held that "the defect caused by charging an offense based upon a statute not in effect when the alleged offense occurred is fatal, rendering the entire instrument invalid, and warranting reversal of defendants' convictions." Id. at 527. Our supreme court found that "[t]he offense of predatory criminal sexual assault of a child *** was rendered nonexistent at the time [the] defendants *** committed the acts for which they were convicted." Id. The court held that because the amendment sought by the State was to cure a substantive defect the amendment could not be made on appeal, and the court reversed the defendants' convictions. Id. at 527-28.
¶ 24 In Tellez-Valencia, the offense had not been declared unconstitutional at the time the defendants were convicted and the General Assembly reenacted the offense with the exact same elements. Tellez-Valencia, 188 Ill. 2d at 524-26. Our supreme court acknowledged that formal defects in a charging instrument may be amended by the State at any time, but because the offense was rendered void ab initio, the court did not give any legal effect to the charging instruments in that case and refused to allow the amendment. Tellez-Valencia, 188 Ill. 2d at 526-27. Here, the offense that served as the predicate felony for defendant's UUWF conviction has not been reinstated. Just as the court would not give legal effect to the charging instruments (that could be made to state a valid offense) by allowing them to be amended because the court then knew them to be invalid, we cannot give legal effect to a conviction which we now know to be invalid. See McFadden, 2014 IL App (1st) 102939, ¶ 43 ("we cannot allow defendant's Class 4 AUUW conviction, which we now know is based on a statute that was found to be unconstitutional and void ab initio in Aguilar, to stand as a predicate offense for defendant's UUW by a felon conviction").
¶ 25 Defendant's 2009 conviction for AUUW is void. Consequently, the State's evidence failed to prove an essential element of the offense of UUWF. The State's argument in this appeal fails because under the decisions of our supreme court, when a person's conviction is later declared void ab initio, the status of the conviction at the time he or she subsequently possesses a firearm is that the conviction is void--in legal effect, there is no conviction. Defendant's conviction for UUWF is vacated. The State concedes it failed to prove an essential element of the merged offenses. Accordingly, defendant's convictions under counts V, VI, VII, and VIII are also vacated. In light of this disposition, we have no need to address defendant's remaining arguments.
¶ 26 CONCLUSION
¶ 27 For the foregoing reasons, the circuit court of Cook County is reversed.
¶ 28 Reversed.