2016 IL App (2d) 130997
Ill. App. Ct.2016Background
- Defendant Vernon L. Smith was convicted by a jury of armed robbery with a firearm and sentenced to a 20-year discretionary term plus a mandatory 15-year add-on (total 35 years), to run consecutively to a Cook County sentence.
- The presentence report listed prior felonies including two residential burglaries (1998, 2000), a 2003 conviction for aggravated unlawful use of a weapon (AUUW) treated as a Class 2 felony, and a 2013 Cook County conviction for unlawful use of a weapon by a felon (later reversed on appeal).
- At sentencing the trial judge repeatedly relied on the AUUW conviction and the Cook County weapons conviction as significant aggravating factors (noting multiple firearm-related felonies and that defendant was out on bond at the time).
- Defendant appealed, arguing the trial court improperly considered the 2003 AUUW conviction because People v. Aguilar held the AUUW statute facially unconstitutional (as to what Aguilar characterized as the Class 4 form), and he also argued the Cook County conviction could not be considered because it was reversed on appeal.
- The appellate court ordered supplemental briefing on whether it could address the validity/use of the AUUW conviction and later concluded, in light of People v. Burns, that the entire AUUW statute is unconstitutional and therefore the AUUW conviction could not be used in aggravation.
- The court also held the Cook County conviction was reversed and thus could not be used at resentencing; it affirmed the conviction for armed robbery but vacated the sentence and remanded for resentencing without considering the two invalidated convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly relied on the 2003 AUUW conviction in aggravation | The AUUW statute contains distinct offenses (Class 4 vs Class 2); Aguilar invalidated only the Class 4 form, so the Class 2-based conviction remains valid and any error was harmless | The AUUW statute creates a single offense; Aguilar (and later authority) renders the statute unconstitutional so the AUUW conviction could not be considered in aggravation | The court held Burns controls: there is no separate Class 2/4 offense; the AUUW statute (section 24-1.6(a)(1),(a)(3)(A)) is unconstitutional and the AUUW conviction could not be used in aggravation |
| Whether the appellate court may decide, on this appeal, that the prior AUUW conviction should not have been considered at sentencing (as opposed to vacating that prior conviction in its originating case) | State relied on Ware to argue the appellate court lacked authority to adjudicate validity of a prior conviction from a different case | Defendant clarified he sought only a ruling that the prior AUUW conviction was an improper sentencing factor here (not vacatur of the prior judgment) | The court followed Fischer: it may decide whether an unconstitutional prior conviction was an improper factor at sentencing even if it cannot vacate that prior conviction in the separate case |
| Whether the Cook County weapons conviction (used at sentencing) could be considered given it was later reversed | State conceded the Cook County conviction had been reversed but suggested other conduct might be considered at resentencing | Defendant argued the reversed conviction could not be used at resentencing and thus influenced the original sentence | The court held the reversed Cook County conviction could not be used in aggravation at resentencing; its consideration at the earlier sentencing tainted that sentence |
| Whether the sentencing error was harmless | State argued the AUUW conviction had little effect and the sentence would be the same without it | Defendant argued the judge emphasized the AUUW weapon conviction and it materially affected sentencing | The court found the AUUW conviction was an important aggravating factor and the error was not harmless; resentencing is required |
Key Cases Cited
- People v. Aguilar, 2013 IL 112116 (Illinois Supreme Court) (held AUUW statute’s Class 4 form facially unconstitutional under the Second Amendment)
- People v. Burns, 2015 IL 117387 (Illinois Supreme Court) (held the AUUW statute contains no separate Class 4 or Class 2 offense and section 24-1.6(a)(1),(a)(3)(A) is facially unconstitutional)
- People v. Alejos, 97 Ill. 2d 502 (Illinois Supreme Court) (a sentencing court may not rely on a prior conviction that was based on a statute later held unconstitutional)
- District of Columbia v. Heller, 554 U.S. 570 (U.S. Supreme Court) (recognized an individual right to possess firearms for self-defense in the home)
- McDonald v. City of Chicago, 561 U.S. 742 (U.S. Supreme Court) (incorporated Second Amendment right against the states)
- Moore v. Madigan, 702 F.3d 933 (7th Cir.) (held that a broad ban on carrying ready-to-use firearms outside the home violated the Second Amendment)
- People v. Fischer, 100 Ill. App. 3d 195 (Ill. App. Ct.) (held that a trial court abused its discretion by considering a prior conviction based on a statute later held unconstitutional when sentencing in a separate case)