People v. Spivey
2017 IL App (1st) 123563
| Ill. App. Ct. | 2017Background
- Donald Spivey was charged with armed habitual criminal (nol-prossed), two counts of unlawful use of a weapon by a felon (UUWF), and two counts of aggravated unlawful use of a weapon (AUUW); the court admitted a certified prior AUUW conviction (2004) as a predicate.
- Facts: police observed Spivey with an object resembling a revolver, he fled, threw an object; officers recovered a loaded .357 revolver from a backyard fence; Spivey denied possession.
- Trial court found Spivey guilty of UUWF (count II) and merged other counts into that conviction; sentenced to four years’ imprisonment and two years MSR.
- On initial appeal this court vacated the UUWF conviction because the predicate AUUW statute had been held facially unconstitutional (People v. McFadden reasoning adopted). The Illinois Supreme Court then ordered reconsideration in light of McFadden (2016 IL 117424).
- On rehearing, this panel applied McFadden and affirmed Spivey’s UUWF conviction, holding the prior AUUW conviction (though based on a statute later declared void) could serve as the predicate felony because Spivey had not cleared his felon status before possessing the firearm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a prior AUUW conviction (under statute later held void ab initio) may serve as the predicate felony for UUWF | State: McFadden controls; prior AUUW conviction may be used as predicate when felon status was not cleared before possession | Spivey: prior AUUW was void ab initio per Aguilar, so it cannot satisfy predicate element | Court: Affirmed McFadden — prior AUUW conviction may serve as predicate unless conviction was vacated before possession |
| Whether U.S. Supreme Court cases (Montgomery, Siebold) require a different result | State: McFadden is controlling and considered Montgomery; no reason to depart | Spivey: Montgomery and Siebold require reversal despite McFadden not addressing them | Court: Rejected defendant’s reliance on those cases; McFadden governs outcome |
| Whether UUWF classification must be reduced under Lewis v. United States | State: Lewis does not change that UUWF has only one statutorily possible class here (Class 2) when predicate exists | Spivey: If conviction stands, felony class should be reduced to Class 3 per Lewis | Court: Rejected reduction argument; McFadden and statutory scheme support Class 2 classification |
Key Cases Cited
- People v. McFadden, 2016 IL 117424 (Illinois Supreme Court) (prior AUUW conviction may serve as predicate for UUWF unless conviction was vacated before possession)
- 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) (retroactivity principles under Teague/related habeas jurisprudence)
- Lewis v. United States, 445 U.S. 55 (U.S. 1980) (when prior conviction may affect present offense classification/sentencing)
- Ex parte Siebold, 100 U.S. 371 (U.S. 1880) (principles regarding federal supremacy and judicial authority)