2018 IL App (4th) 150910
Ill. App. Ct.2019Background
- In May 2015 police found a handgun in a laundry basket and two bags of marijuana hidden in a trash can in an apartment where defendant Justin Cavette had been visiting; no forensic link tied the items to Cavette.
- A neighbor, Robin Arbiter, testified she observed Cavette from about 30 feet sliding a silver-and-black handgun in and out of his pocket; other witnesses did not observe a gun on him.
- The State charged Cavette with armed habitual criminal (based on two prior felony convictions) and unlawful possession of cannabis; the parties stipulated Cavette had two prior qualifying convictions.
- The jury convicted Cavette of both offenses after lengthy deliberations that included a deadlock instruction; he was sentenced to concurrent terms (16 years for armed habitual criminal, 3 years for cannabis).
- While the appeal was pending, Cavette’s 2011 aggravated unlawful use of a weapon (AUUW) conviction — one predicate for the armed-habitual count — was vacated because the AUUW statute subsection was declared facially unconstitutional; the trial court subsequently vacated that prior conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a prior conviction based on a statute later found facially unconstitutional may serve as a predicate felony for armed habitual criminal | The State initially argued such a void predicate may still be used (relying on prior Illinois precedent) | Cavette argued the AUUW conviction is void ab initio and cannot serve as a predicate | Court held the void AUUW conviction cannot serve as a predicate; reversed armed habitual criminal conviction |
| Whether the court’s instruction telling the jury to consider the stipulation of priors "along with all of the other evidence" was erroneous and prejudicial | State did not contest on appeal after conceding the first issue at argument | Cavette argued the instruction improperly allowed other-crimes evidence to be used like ordinary evidence and was plain error | Court held the instruction misstated the law, constituted plain error given closely balanced evidence, and required reversal of cannabis conviction and retrial |
Key Cases Cited
- People v. Smith, 191 Ill. 2d 408, 732 N.E.2d 513 (Illinois 2000) (standard of review for questions of law; cited for de novo review)
- Perlstein v. Wolk, 218 Ill. 2d 448, 844 N.E.2d 923 (Illinois 2006) (explains void ab initio doctrine and that facially unconstitutional statutes are void from inception)
- People v. Donoho, 204 Ill. 2d 159, 788 N.E.2d 707 (Illinois 2003) (other-crimes evidence generally inadmissible to prove propensity)
- People v. Belknap, 2014 IL 117094, 23 N.E.3d 325 (Illinois 2014) (plain-error framework for review of forfeited trial errors)
- People v. Blair, 2013 IL 114122, 986 N.E.2d 75 (Illinois 2013) (convictions under unconstitutional law are unenforceable)
- Montgomery v. Louisiana, 577 U.S. _, 136 S. Ct. 718 (U.S. 2016) (void convictions cannot serve to justify punishments or legal disabilities)