Case Information
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SECOND DIVISION Opinion filed June 17, 2014 Modified Upon Denial of Rehearing July 15, 2014 No. 1-09-3418
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of Plaintiff-Appellee, ) Cook County )
v. ) No. 08 CR 14227
) RASHEEN AKINS, ) Honorable
) Victoria A. Stewart, Defendant-Appellant. ) Judge Presiding.
JUSTICE PIERCE delivered the judgment of the court, with opinion.
Justices Simon and Liu concurred in the judgment and opinion.
OPINION Following a bench trial, defendant Rasheen Akins was found guilty of four counts of
aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6 (West 2008)) and was sentenced to 12 months’ probation. He was also assessed fines and fees totaling $300. On August 3, 2011, we affirmed defendant's conviction but vacated his violent victim's assistance fee reinstating it in a different amount, and vacated his court system fee. People v. Akins , 2011 IL App (1st) 093418-U. Pursuant to a January 29, 2014, supervisory order from our supreme *2 court ( People v. Akins , No. 112886 (Ill. Jan. 29, 2014) (supervisory order)), we now vacate our August 3, 2011, order and reconsider the issues raised in light of People v. Aguilar , 2013 IL 112116. BACKGROUND Defendant was charged in this case with four counts of aggravated unlawful use of a
weapon (AUUW): count I for violating section 24-1.6(a)(1), (a)(3)(A), which criminalizes the possession of an “uncased, loaded and immediately accessible" firearm on one’s person or in one’s vehicle (hereinafter, "possession outside the home"); count II for violating section 24- 1.6(a)(1), (a)(3)(C), which criminalizes the possession of a firearm on one’s person or in one’s vehicle without a valid Firearm Owner’s Identification Card (FOID card) (hereinafter, "possession outside the home with no FOID card"); count III for violating section 24-1.6(a)(2), (a) (3)(A), which criminalizes the possession of firearm that is “uncased, loaded, and immediately accessible" "upon any public street, alley, or other public lands" within city limits (hereinafter, "possession on the public way"); and count IV for violating section 24-1.6(a)(2), (a)(3)(C) which makes it unlawful to possess a firearm within city limits without a valid FOID card (hereinafter "possession on the public way with no FOID card"). 720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (a)(3)(C), (a)(2), (a)(3)(A), (a)(3)(C) (West 2008). The record shows, in relevant part, that about 10:15 p.m., on July 16, 2008, police
responded to a call of an individual with a gun at 10432 South Maryland Street, in Chicago. When they arrived on the scene they saw defendant, who matched the description given to them of the offender. As they approached him, defendant fled into a vacant lot. The officers gave chase and pursued him into an alley where Chicago police officer Inez Benson observed him *3 remove a blue steel, semi-automatic Glock handgun, loaded with 17 live rounds, from his waistband and discard it into a yard. Defendant was apprehended in the adjacent yard and did not furnish a valid FOID card. After a bench trial, the court found defendant guilty of four counts of AUUW and sentenced him to 12 months’ probation.
¶ 5 On direct appeal, defendant challenged the constitutionality of the AUUW statute and
certain of the pecuniary penalties imposed by the court. On August 3, 2011, we affirmed
defendant's conviction but vacated his violent victim's assistance fee, reinstating it in a different
amount, and vacated his court system fee.
People v. Akins
,
supplemental briefs in this case to address the applicability of . We have received and considered those briefs. For the reasons stated below, we vacate defendant’s convictions under counts I and III, but affirm the remaining convictions under counts II and IV. We also again vacate his violent victim's assistance fee reinstating it in a different amount and vacate his court system fee. ANALYSIS To convict a defendant of AUUW, the State must prove beyond a reasonable doubt either
that a defendant carried a weapon on his person or in his vehicle, outside his home (720 ILCS
5/24-1.6(a)(1) (West 2008)) or carried a weapon on his person on the public way (720 ILCS
5/24-1.6(a)(2) (West 2008)) and one of the nine factors in subsection (a)(3). 720 ILCS 5/24-
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1.6(a)(1) to (a)(3) (West 2008);
People v. Zimmerman
,
AUUW that makes it illegal to possess an uncased, loaded firearm outside one's home to be a
comprehensive ban that categorically prohibits possession and use of a firearm for self-defense
outside of the home in contravention of the right to bear arms. 720 ILCS 5/24-1.6(a)(1),
(a)(3)(A) (West 2008)). The
Aguilar
court noted that the United States Supreme Court has
stated that a central component of the second amendment right to bear arms is "‘the inherent
right of self-defense.’"
Aguilar,
never been passed. See
People v. Tellez-Valencia
,
arguments. The defendant in
Henderson
argued that his conviction for possession outside the
home without an FOID card (720 ILCS 5/24-1.6 (a)(1), (a)(3)(C) (West 2008)) should be
reversed under
Aguilar
because it was not severable from the subsections found to be
unconstitutional. This court upheld that conviction holding that the subsection was not facially
unconstitutional and was severable from the subsection struck in
Aguilar
.
Henderson,
2013 IL
App (1st) 113294, ¶¶ 13-23. In so holding, we reasoned that the FOID section was severable
because the subsections that define the possession elements of the offense, subsection (a)(1) and
(a)(2), combined with the factor setting forth the element of carrying a firearm without a FOID
card, can stand independently from the subsection struck down by
Aguilar
, because the
subsection struck down by is only one of several factors that could constitute the offense
of AUUW
. Henderson,
individualized rights, which allows for individualized consideration of a person's right to keep
and bear arms, including the right to consider and reject an application for a FOID card),
Henderson
also rejected the defendant’s argument that the failure to possess a valid FOID card
(720 ILCS 5/24-1.6(a)(3)(C) (West 2008)), used to transform an otherwise unlawful use of a
weapon offense under either subsection (a)(1) or subsection (a)(2) to an AUUW, is
unconstitutional (720 ILCS 5/24-1.6(a)(1), (a)(3)(C), (a)(2), (a)(3)(C) (West 2008)), as it denies
adults 18 to 20 years of age the right to keep and bear arms for the purpose of self-defense.
Henderson
,
“Because the restriction in section 24-1.6(a)(1), (a)(3)(C) is limited to those lacking a FOID card and is not a flat ban, we decline to extend the holding of Aguilar to this section of the AUUW statute. Moreover, under either strict scrutiny analysis or the more recently used 'text, history, and tradition' approach, this section of the AUUW statute does not violate the right to bear arms guaranteed under the second amendment. *8 We, therefore, find that section 24-1.6(a)(1), (a)(3)(C) is not facially unconstitutional.” ¶ 15 We find no reason to depart from our holdings in Henderson or Taylor , and find that the FOID requirement does not violate the second amendment under the rationale of Aguilar because it denies those 18 to 20 years of age their right to bear arms. Consequently, we find that defendant’s convictions for counts II and IV are not unconstitutional under and must stand. In its order of probation, the sentencing court merged defendant's FOID counts of
AUUW into count I. Because we have vacated count I and count III, the original merger is no
longer in effect and defendant now stands convicted of two counts of AUUW. Defendant argues
that under the one-act, one-crime rule (
People v. King
,
conjunction with his inability to produce a valid FOID card. 720 ILCS 5/24-1.6(a)(1), (a)(3)(C),
(a)(2), (a)(3)(C) (West 2008). Count II alleged that defendant possessed the firearm on his
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person or in his vehicle without a valid FOID card. Count IV alleged that defendant possessed
the firearm on the public way without a valid FOID card. Both charges are Class 4 felonies.
In
In re Samantha V
.,
penalties imposed by the court. Although defendant did not raise these claims in the circuit
court, this court has recognized that a sentencing error may affect defendant's substantial rights,
and thus can be reviewed for plain error.
People v. Black
,
¶ 21 Defendant first claims that his $20 fee under the Violent Crime Victims Assistance Act
(VCV Act) (725 ILCS 240/10 (West 2008)) should be reduced to $4 where he was also assessed
a $30 Children's Advocacy Center fine. The State concedes that defendant should only have
been assessed $4 pursuant to section 10(b) of the VCV Act. We agree, and therefore vacate the
$20 VCV Act fine and order the circuit court clerk to amend defendant's fee order to include a $4
fee pursuant to section 10(b) of the VCV Act.
People v. Jones
,
the assessment was improper in this case, and we agree that the fee does not apply because defendant was convicted of AUUW, a violation of the Criminal Code of 1961, and not a violation of the Illinois Vehicle Code (625 ILCS 5/1400 et seq . (West 2008)) or of a similar municipal ordinance (55 ILCS 5/5-1101(a) (West 2008)), to which the fee is directed. We therefore vacate the $5 court system fee. Defendant finally contends that he was improperly assessed a $25 court services fee,
claiming that the statute only authorizes assessment of the fee under certain criminal statutes,
none of which include the offense of armed robbery. The State responds that the statute
authorizes assessment of the fee in all criminal cases resulting in a judgment of conviction.
Under the Counties Code (55 ILCS 5/5-1103 (West 2008)), the court may assess a $25
court services fee against a defendant upon a finding of guilty resulting in a judgment of
conviction, or for an order of supervision or probation without entry of judgment made under
specific enumerated criminal provisions.
People v. Williams
,
pursuant to , and vacate defendant's conviction in Count II pursuant to the one-act, one- crime rule. Defendant's conviction for AUUW under Count IV stands. We also vacate the $20 VCV Act fee and the $5 court system fee, order the circuit court clerk to modify the fines and fees order to that effect and to include a $4 fee pursuant to section 10(b) of the VCV Act, and affirm the judgment in all other respects. Vacated in part; affirmed in part; modified.