People v. McGee, 49 N.E.3d 892

Defendant Marchello McGee was tried for possessing a firearm on Sept. 11, 2012; jury convicted him of Armed Habitual Criminal (AHC) and Unlawful Use of a Weapon by a Felon (UUWF).
AHC count alleged two prior qualifying felonies: UUWF (08 CR 13500) and AUUW (07 CR 5014). UUWF count alleged prior felony (08 CR 13500). Parties stipulated the prior convictions.
The 07 CR 5014 conviction was for AUUW based on possessing an uncased, loaded, immediately accessible firearm while previously convicted of a drug felony. The 08 CR 13500 judgment included multiple AUUW and UUWF convictions (some AUUW counts based on lack of FOID card).
Illinois Supreme Court decisions (Aguilar and later Burns) declared section 24-1.6(a)(1),(a)(3)(A) of the AUUW statute facially unconstitutional and therefore convictions under that provision are void ab initio. Mosley confirmed that a statute declared facially unconstitutional is void ab initio.
The trial court merged sentences; on appeal the principal question was whether a predicate AUUW conviction rendered void by Aguilar/Burns can be used to establish the element of a prior felony for AHC or UUWF.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an AUUW conviction voided by Aguilar/Burns can serve as a predicate felony for AHC	The State argued the Class 2 (felon-based) AUUW sentencing form was not invalid and thus could serve as a predicate for AHC	McGee argued the AUUW conviction under §24‑1.6(a)(1),(a)(3)(A) is void ab initio and cannot satisfy AHC's required two prior felonies	Vacated AHC conviction because one of the two alleged predicate felonies (07 CR 5014) is void ab initio and the State alleged only two priors, so an essential element of AHC was not proven
Whether a void AUUW predicate in a prior case invalidates the UUWF conviction here	State argued UUWF conviction may stand because the charged predicate (08 CR 13500) included valid felonies and UUWF only requires proof of felon status	McGee argued UUWF is invalid because the predicate in 08 CR 13500 relied in part on the unconstitutional AUUW conviction (07 CR 5014)	Affirmed UUWF conviction: UUWF requires proof of felon status, not a specific prior offense; 08 CR 13500 included constitutionally valid AUUW counts (FOID-based) so felon status was proven

People v. Aguilar, 2013 IL 112116 (held that possession of an operable firearm outside the home under §24‑1.6(a)(1),(a)(3)(A) is facially unconstitutional)
People v. Burns, 2015 IL 117387 (clarified Aguilar: §24‑1.6(a)(1),(a)(3)(A) is facially unconstitutional and unenforceable against anyone)
People v. Mosley, 2015 IL 115872 (a statute declared facially unconstitutional is void ab initio; FOID‑based AUUW counts are severable/constitutional)
People v. Walker, 211 Ill. 2d 317 (2004) (UUWF requires proof only of felon status; prior felony is an element of UUWF)
People v. McFadden, 2014 IL App (1st) 102939 (appellate court vacated UUWF where predicate AUUW conviction was void under Aguilar)
People v. Fields, 2014 IL App (1st) 110311 (vacated AHC where one predicate AUUW conviction was void under Aguilar)