People v. Spivey
2017 IL App (1st) 123563
| Ill. App. Ct. | 2017Background
- In 2010 Donald Spivey was charged with armed habitual criminal, two counts of unlawful use of a weapon by a felon (UUWF), and several counts of aggravated unlawful use of a weapon (AUUW); some counts were nol-prossed and the trial proceeded on UUWF and AUUW counts.
- Count two alleged UUWF based on a prior AUUW conviction from 2004 (case No. 04 CR 18579); trial evidence included a certified statement of that prior conviction.
- Police testified they observed Spivey with an object resembling a revolver, he fled, and officers recovered a loaded .357 revolver near a fence where he had thrown an object; Spivey denied possessing a gun.
- The trial court convicted Spivey of UUWF (count two) and merged the other counts into it, sentencing him to four years’ imprisonment plus MSR.
- On initial appeal the court vacated the UUWF conviction because the predicate AUUW statute had been declared unconstitutional (People v. Aguilar), but the Illinois Supreme Court issued supervisory order directing reconsideration in light of People v. McFadden.
- On reconsideration the appellate court reaffirmed the UUWF conviction, holding under McFadden that a prior AUUW conviction may serve as the predicate felony for UUWF when the defendant did not first vacate that prior conviction.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Spivey) | Held |
|---|---|---|---|
| Whether a prior AUUW conviction later declared void ab initio may serve as the predicate felony for UUWF | The prior AUUW conviction validly proved the predicate element for UUWF; McFadden controls and permits use of the prior conviction unless it had been vacated | The prior AUUW statute was unconstitutional and thus could not serve as the predicate; conviction should be vacated | Affirmed: under McFadden the prior AUUW conviction satisfied the predicate element because Spivey had not cleared his felon status before possessing the firearm |
| Whether U.S. Supreme Court decisions (Montgomery, Siebold) require reversal despite McFadden not addressing them | McFadden and Illinois Supreme Court considered relevant federal authority; McFadden controls and this court must follow it | Montgomery and Siebold require applying different principles that would mandate reversal | Rejected: court follows McFadden and declines to apply Montgomery/Siebold to change result here |
| Whether felony classification must be reduced (from Class 2 to Class 3) under Lewis v. United States | UUWF statutory classification is fixed; Lewis does not forbid using a prior felony as an element to determine statutory class where only one class is possible | Lewis requires reclassification to a lesser felony when predicate is infirm | Rejected: Lewis does not alter that the prior felony is an element for UUWF and statutory class remains a Class 2 under these circumstances |
| Whether legislative or equitable relief is needed for people whose prior AUUW convictions are void ab initio | N/A (State did not ask for legislative action) | Argues lingering injustice—vacated predicate convictions still create felon status | Court affirms conviction but a special concurrence urges legislative action to address practical injustice; court recommends legislative fix |
Key Cases Cited
- People v. McFadden, 2016 IL 117424 (Illinois Supreme Court) (prior AUUW conviction may serve as UUWF predicate unless vacated)
- People v. Aguilar, 2013 IL 112116 (Illinois Supreme Court) (portions of AUUW statute declared facially unconstitutional)
- Montgomery v. Louisiana, 136 S. Ct. 718 (U.S. 2016) (procedural/vindictive-due-process principles in retroactivity contexts)
- Ex parte Siebold, 100 U.S. 371 (U.S. 1879) (principles regarding finality and collateral review)
- Lewis v. United States, 445 U.S. 55 (U.S. 1980) (effect of prior convictions on subsequent penalties and classifications)
- People v. Burns, 2015 IL 117387 (Illinois Supreme Court) (clarifying scope of Aguilar)
- People v. Artis, 232 Ill. 2d 156 (Illinois Supreme Court 2009) (appellate courts must follow state supreme court precedent)
- Blumenthal v. Brewer, 2016 IL 118781 (Illinois Supreme Court) (on appellate obligation to follow supreme court decisions)