THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTINELL ANTHONY, Defendant-Appellant.
No. 1-09-1528
First District (6th Division)
March 31, 2011
408 Ill. App. 3d 799
The Illinois Supreme Court instructed us in Harris that as a general rule it is improper to cross-examine a defendant about a prior juvenile conviction unless the “defendant opens the door to such cross-examinations.” Harris, 231 Ill. 2d at 592 (citing People v. Coleman, 158 Ill. 2d 319, 337 (1994)). “[T]he pivotal question in this case is this: When defendant testified that ‘I don‘t commit crimes,’ was he attempting to mislead the jury about his criminal background? If he was, then he ‘opened the door’ and the trial court was well within its discretion to allow the admission of defendant‘s prior adjudications for purposes of impeachment. If he was not, then defendant‘s testimony was not a proper basis for the admission of evidence.” Harris, 231 Ill. 2d at 590.
The majority interprets Harris as permitting the introduction of a juvenile adjudication so long as a defendant was attempting to mislead the jury about anything, without any regard to the topic about which he or she was allegedly trying to mislead. 408 Ill. App. 3d at 796 (issue is whether it was “not unreasonable to assume that defendant attempted to mislead the jury“). Interpreting Harris so broadly creates the classic exception that swallows the rule. If a defendant testifies, the State will always argue that the defendant was attempting to mislead the jury about something, and that the defendant has then opened the door to his or her juvenile adjudications.
Since I would not broaden Harris to include any time when a defendant allegedly misleads the jury, I must respectfully dissent.
Opinion filed March 31, 2011.
Anita M. Alvarez, State‘s Attorney, of Chicago (Alan J. Spellberg, Annette Collins, and Mary P. Needham, Assistant State‘s Attorneys, of counsel), for the People.
JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Presiding Justice Garcia concurred in the judgment and opinion.
Justice R.E. Gordon dissented, with opinion.
OPINION
Following a bench trial, defendant, Martinell Anthony, was convicted of two counts of unlawful possession of a weapon by a felon and sentenced to concurrent terms of six years’ imprisonment. On appeal, defendant contends that one of his convictions must be vacated because it was unauthorized by statute. Defendant also disputes various fines and fees imposed against him.
Defendant was arrested and charged by information with, among other things, two counts of unlawful possession of a weapon by a felon (
The following evidence was presented at defendant‘s trial.
On September 11, 2008, at approximately 8 p.m., Chicago police officer Christopher Ware was in the parking lot of the 63rd Street Beach in Chicago, IL. The parking lot was lit by moonlight and artificial lighting in the lot. Officer Ware saw a woman sitting in the passenger seat of a vehicle and a man, whom he identified as defendant, standing near the vehicle holding a semi-automatic handgun. Defendant put the gun in his pocket and entered the driver‘s seat of the vehicle. Officer Ware approached and told defendаnt to exit the vehicle. He asked defendant what he had been holding in his hand, and defendant replied that it was a cell phone. Officer Ware conducted a protective pat-down of defendant but did not discover a weapon. Defendant said the cell phone he had been holding was inside the vehicle and gave the officer permission to search the vehicle. Upon a search of that vehicle, the officer found a loaded semiautomatic handgun under a jacket behind the front passenger seat that he believed was the same gun that he had seen defendant holding. A further search of the vehicle revealed a backpack under the rear seat that contained two handgun magazines and approximately 96 rounds of ammunition.
Defendant called his brother-in-law, Derrick Harris, as a witness. Harris owned the vehicle in which the weapons were found and he explained that, on the night of the incident, he and defendant had gone to the beach with two women. Harris was approximately 35 feet away from defendant when the police arrived and he did not see defendant with the weapon that the police recovered on the night of the incident. Harris testified that he was a Navy officer and that he was the owner of the .45-caliber semiautomatic handgun and the ammunition that the police found in his vehicle.
Following closing arguments, the trial court found defendant guilty of two counts of unlawful possession of a weapon by a felon based upon possession of the firearm and possession of the ammunition inside that firearm.1 The court also found defendant guilty of one count of aggravated unlawful use of a weapon, but merged that conviction into the first count of unlawful possession of a weapon by a felon. The court clarified that the ammunition found inside the backpack at the rear of the vehicle “isn‘t a consideration by this court
Initially, a question was raised whether aggravated unlawful use of a weapon was a greater offense than unlawful use of a weapon by a felon. Although each offense is a Class 2 felony, the sentencing provision for unlawful use of a weapon by a felon provides for a sentence of 3 to 14 years’ imprisonment (see
Defendant first contends that one of his convictions for unlawful possession of a wеapon should be vacated because the legislature did not intend to permit multiple convictions based upon the possession of a single, loaded firearm. Defendant did not preserve this issue in the trial court and asks that we review it for plain error. “The plain error doctrine allows a reviewing court to address defects affecting substantial rights (1) if the evidence is closely balanced or (2) if fundamental fairness so requires rather than finding the claims waived.” People v. Carter, 213 Ill. 2d 295, 299 (2004). Defendant does not claim that the evidence in this case was closely balanced but, rather, he points out that our supreme court has held that “the potential for a surplus conviction and sentence affects the integrity of the judicial process, thus satisfying the second prong of the plain error rule.” People v. Harvey, 211 Ill. 2d 368, 389 (2004); see also Carter, 213 Ill. 2d at 299 (considering the question of whether multiple convictions could be entered for unlawful possession of weapons by a felon based оn simultaneous possession of two guns and ammunition for those guns under the second prong of the plain error doctrine). However, “[t]he first step of plain-error review is to determine whether any error occurred.” People v. Lewis, 234 Ill. 2d 32, 43 (2009). Accordingly, we first consider whether defendant‘s multiple convictions constituted error.
The question of whether the unlawful possession of a weapon by a felon statute permits separate offenses to be charged for simultaneous possession of a handgun and the firearm ammunition inside that handgun is an issue of first impression.2 The interpretation of a statute is a question of law that is reviewed de novo. Carter, 213 Ill. 2d at 301.
In this case, the plain and unambiguous language of the statute allows for multiple convictions based upon simultaneous possession of a firearm and firearm ammunition. Section 24-1.1 makes it unlawful for a person who has been convicted of a felony to possess “any firearm or any firearm ammunition.”
Defendant nevertheless relies upon our supreme court‘s decision in Carter to assert that the statute is аmbiguous and that it therefore must be construed to prohibit his conviction for unlawful possession of a weapon based upon the ammunition inside the firearm.
In Carter, the defendant was found in possession of two loaded semiautomatic weapons, a .22-caliber handgun and a .25-caliber handgun, and an ammunition clip containing .22-caliber bullets. The defendant was charged with and convicted of, among other things, four counts of unlawful possession of weapons by a felon. Those four counts were based upon the defendant‘s possession of a .22-caliber handgun, a .25-caliber handgun, and ammunition for the .22-caliber handgun. Carter, 213 Ill. 2d at 298. On appeal, the supreme court was asked to determine “whether multiple convictions can be entered for unlawful possession of weapons by a felon based on the simultaneous possession of two guns and the ammunition for those guns.” Carter, 213 Ill. 2d at 299. The defendant argued that nothing in the statute indicated that each article of contraband possessed constituted a separate offense and that any ambiguity in the statute should be resolved in his favor. The defendant further argued that because all four of his convictions for unlawful possession were based on a single, simultaneous act of possession, three of his convictions had to be vacated under the one-act, one-crime rule. Carter, 213 Ill. 2d at 300.
The court stated that whether the legislature intended for the simultaneous possession of weapons and ammunition to be the same
The court then noted that it had consistently held that, “where a statute is ambiguous, in the absence of a statutory provision to the contrary, simultaneous possession could not support multiple convictions.” Carter, 213 Ill. 2d at 302. The court cited to its prior decision in People v. Manning, 71 Ill. 2d 132 (1978), in which the defendant was found guilty of two counts of possession of controlled substances. In Manning, 71 Ill. 2d at 137, the State argued that the defendant committed two separate offenses in that he knowingly possessed two types of controlled substances, and the defendant asserted that his simultaneous possession of both substances arose out of a single act. The court held that “in the absence of a statutory provision to the contrary, the simultaneous possession of more than one type of controlled substance, under the circumstances shown on this record, constituted a single offense, and only one sentence should have been imposed.” Manning, 71 Ill. 2d at 137.
Our supreme court acknowledged in Carter that its decision in Manning had been superceded by an amendment to the Illinois Controlled Substances Act (the Act) which expressly authorized multiple convictions where a defendant simultaneously possesses more than one type of controlled substance. See
After Carter, the legislature amended the unlawful possession of a weapon by a felon statute by adding the language providing that “[t]he possession of each firearm or firearm ammunition in violation of this Section constitutes a single and separate violation.”
As we previously found, the plain language of the statute allows for multiple convictions based upon possession of both a firearm and firearm ammunition. The statute contains no exception for situations in which the ammunition is loaded inside of the handgun. Because the language of the statute is clear and unambiguous, we will not interpret the statute so as to create such an exception. See Carter, 213 Ill. 2d at 301; People v. Woodard, 175 Ill. 2d 435, 443 (1997) (“Where an enactment is clear and unambiguous, the court is not free to depart from the plain language and meaning of the statute by reading into it exceptions, limitations, or conditions that the legislature did not express.“). Additionally, defendant acknowledges that multiple convictions for simultaneous possession of a firearm and separate firearm ammunition are proper under the amended statute but claims that multiple convictions for possession of a loaded firearm are improper. Taking defendant‘s argument to its logical conclusion would result in a greater punishment for a felon who рossessed an unloaded firearm and separately possessed firearm ammunition than would result for a felon who possessed a loaded firearm. A reviewing court may not interpret a statute in a way that produces absurd results. Pullen, 192 Ill. 2d at 42; People v. Kohl, 364 Ill. App. 3d 495, 501 (2006). Defendant‘s interpretation of the statute would produce such a result.
Defendant also claims that the legislative history shows that the amendment to the statute was not intended to permit multiple convictions based upon a loaded firearm. However, where the language of a statute is plain and unambiguous, we must apply the statute withоut resort to further aids of statutory construction. People v. Collins, 214 Ill. 2d 206, 214 (2005). Where statutory language is ambiguous, however, we may consider other extrinsic aids for construction, such as legislative history and transcripts of legislative debates, to resolve the ambiguity. Collins, 214 Ill. 2d at 214. In this case, the language of the unlawful possession of a weapon statute is clear and unambiguous. Accordingly, we will not interpret the statute by considering extrinsic aids such as legislative history. See Collins, 214 Ill. 2d at 214.
Defendant next contends that several of the fines and fees assessed against him must be vacated. He also claims that he is entitled to have presentence credit applied toward some of those fines. “The propriety of a trial court‘s imposition of fines and fees raises a question of statutory interpretation, which we review de novo.” People v. Price, 375 Ill. App. 3d 684, 697 (2007).
The State initially argues that defendant has forfeited these claims because he failed to raise any issue regarding the fines he was assеssed in his motion to reconsider his sentence. Defendant acknowledges his failure to do so, but he points out that the issue of whether a
Defendant first challenges his $200 assessment for DNA analysis pursuant to section 5-4-3 of the Unified Code of Corrections (
Defendant claims that the $200 DNA fee was improperly assessed against him because he previously submitted a DNA sample in connection with a prior felony conviction for burglary or possession of a controlled substance. Defendant asserts that the statute contemplates the imposition of a single, one-time fee and does not authorize additional assessments.
A split of authority has recently developed among the various districts and divisions of this court as to whether or not a defendant should be assessed the $200 DNA fee when he has already been assessed that fee in conjunction with a prior conviction. In People v. Hubbard, 404 Ill. App. 3d 100, 103 (2010), this court analyzed the statutory language of section 5-4-3 and agreed with the holdings in People v. Grayer, 403 Ill. App. 3d 797 (2010), and People v. Marshall, 402 Ill. App. 3d 1080, 1082-83 (2010), appeal allowed, 237 Ill. 2d 577 (2010), that a defendant may be ordered to submit a DNA sample and be assessed the DNA fee regardless of whether a DNA sample was previously ordered or the fee was previously assessed. The reasoning in these decisions was that the legislature was aware of recidivism but that the statute did not limit the taking of DNA samples or the assessment of the analysis fee to a single instance. Hubbard, 404 Ill. App. 3d at 102; Grayer, 403 Ill. App. 3d at 801; Marshall, 402 Ill. App. 3d at
Defendant argues in the alternative that he is entitled to have the $200 DNA ID System Fee offset by his presentence credit because the charge is a “fine” and not a “fee.” Defendant cites to People v. Long, 398 Ill. App. 3d 1028 (4th Dist. 2010), in support of his contention. See also People v. Mingo, 403 Ill. App. 3d 968 (2010); People v. Clark, 404 Ill. App. 3d 141 (2010) (following Long).
In Williams, 405 Ill. App. 3d at 966, this district agreed with the holding in People v. Tolliver, 363 Ill. App. 3d 94, 97 (2006), that the DNA analysis fee is a charge intended to compensate the State in part for the cost of obtaining DNA analysis for convicted defendants and therefore is not subject to preincarceration credit. Moreover, Long is distinguishable from the present case. In Long, 398 Ill. App. 3d at 1033-34, the State argued that the DNA analysis fee is a fine and conceded that it was subject to the credit. In this case, the State argues that the DNA analysis fee is a fee and contests the applicability of the credit. Long preceded our decisions in Hubbard and Grayer, in which we found that there are rational bases for the State to collect DNA samples and assess the DNA analysis fee after doing so upon an earlier conviction. That finding supports our conclusion that the DNA analysis fee is compensatory rather than punitive, which is the key
In Graves and Jones, our supreme court has distinguished fines on one hand from fees and costs on the other:
” ‘A “fine” is a pecuniary punishment imposed as part of a sentence on a person convicted of a criminal offense. [Citation.] A “cost” is a charge or fee taxed by a court such as a filing fee, jury fee, courthouse fee, or reporter fee. [Citation.] Unlike a fine, which is punitive in nature, a cost does not punish a defendant in addition to the sentence he received, but instead is a сollateral consequence of the defendant‘s conviction that is compensatory in nature. [Citation.] A “fee” is a charge for labor or services, especially professional services. [Citation.]’ (Emphasis in original.) Jones, 223 Ill. 2d at 581 (quoting People v. White, 333 Ill. App. 3d 777, 781 (2002)).”
In other words, a “fine” is a pecuniary punishment for a criminal conviction, payable to the public treasury, while a “fee” or “cost” seeks to recoup expenses incurred by the State or to compensate the State for some expenditure incurred as the result of prosecuting a defendant. Graves, 235 Ill. 2d at 250; Jones, 223 Ill. 2d at 582.
The DNA analysis fee does not go into the general fund of the State treasury but exclusively to the State Police laboratory, except for a $10 portion of each fee for the clerk of the circuit court to offset his or her costs in implementing the DNA analysis statute.
Next, defendant claims, and the State concedes, that the $5 court system fee (
“A $5 fee to be paid by the defendant on a judgment of guilty or a grant of supervision for violation of the Illinois Vehicle Code other than Section 11-501 or violations of similar provisions contained in county or municipal ordinances committed in the county, and up to a $30 fee to be paid by the defendant on a judgment of guilty or a grant of supervision for violation of Section 11-501 of the Illinois Vehicle Code or a violation of a similar provision contained in county or municipal ordinances committed in the county.”
55 ILCS 5/5-1101(a) (West 2008) .
We agree with the parties and find that the $5 court system fee must be vacated because defendant‘s convictions were not for violations of the Illinois Vehicle Code or a similar county or municipal ordinance. See Adair, 406 Ill. App. 3d at 144 (vacating the court system fee where the defendant was convicted of possession of a controlled substance because the fee applies only to convictions for violations of the Illinois Vehicle Code or a similar municipal ordinance); Willis, 402 Ill. App. 3d 47 (2010) (vacating the court system fee where the defendant was convicted of possession of a controlled substance, an offense not related to the Illinois Vehicle Code or a similar municipal ordinance).
Defendant next claims that the $25 court services fee assessment must be vacated because it applies only to the offenses enumerated in the statute and because he was not convicted of one of those offenses. See
“A county board may enact by ordinance or resolution a court services fee dedicated to defraying court security expenses incurred by the sheriff in providing court services or for any other court services deemed necessary by the sheriff to provide for court security. *** Such fee shall be paid in civil cases by each party at the time of filing the first pleading, paper or other appearance. *** In criminal, local ordinance, county ordinance, traffic and conservation cases, such fee shall be assessed against the defendant upon a plea of guilty, stipulation of facts or findings of guilty, resulting in a judgment of conviction, or order of supervision, or sentence of probation without entry of judgment pursuant to Section 10 of the Cannabis Control Act, Section 410 of the Illinois Controlled Substances Act, Section 70 of the Methamphetamine Control and Community Protection Act, Section 12-4.3 of the Criminal Code of 1961, Section 10-102 of the Illinois Alcoholism and Other Drug Dependency Act, Section 40-10 of the Alcoholism and Other Drug Abuse and Dependency Act, or Section 10 of the Steroid Control Act. In setting such fee, the county board may impose, with the concurrence of the Chief Judge of the judicial circuit in which the county is located by administrative order entered by the Chief
Judge, differential rates for the various types or categories of criminal and civil cases, but the maximum rate shall not exceed $25. All proceeds from this fee must be used to defray court security expenses incurred by the sheriff in providing court services. No fee shall be imposed or collected, however, in traffic, conservation, and ordinance cases in which finеs are paid without a court appearance. The fees shall be collected in the manner in which all other court fees or costs are collected and shall be deposited into the county general fund for payment solely of costs incurred by the sheriff in providing court security or for any other court services deemed necessary by the sheriff to provide for court security.” 55 ILCS 5/5-1103 (West 2008) .
We initially note that defendant has failed to support his contention with any analysis of the statute or citation to relevant authority. See
“Based on the encompassing language of the statute and its clear purpose of defraying court security expenses, we are unpersuaded that the failure to list the offenses the defendant committed means he cannot be required to defray the expenses incurred by the sheriff for his court proceedings. We reject the defendant‘s reading of the statute as authorizing a court services fee only for a conviction involving the single section of the Criminal Code of 1961 listed, section 12-4.3 (aggravated battery of a child). The limited application of section 5-1103 in criminal proceedings the defendant advocates is inconsistent with the legislature‘s clear intent, expressed in the plain language of the statute, in enacting such a fee.” Adair, 406 Ill. App. 3d at 144.
The same result was reached by the court in Williams, 405 Ill. App. 3d at 965, which held that “the statute permits assessment of this fee upon any judgment of conviction.” We follow the holdings in Adair and Williams and therefore find that the court services fee was properly assessed following defendant‘s convictions.
Defendant also claims that the imposition of the $10 county jail medical fund fee was unauthorized because he required no medical attention during custody. See
“An arresting authority shall be responsible for any incurred medical expenses relating to the arrestee until such time as the arrestee is placed in the custody of the sheriff. However, the arresting authority shall not be so responsible if the arrest was made pursuant to a request by the sheriff. When medical expenses are required by any person held in custody, the county shall be entitled to obtain reimbursement from the County Jail Medical Costs Fund to the extent moneys are available from the Fund. To the extent that the person is reasonably able to pay for that care, including reimbursement from any insurance program or from other medical benefit programs available to the person, he or she shall reimburse the county.
The county shall be entitled to a $10 fee for each conviction or order of supervision for a criminal violation, other than a petty offense or business offense. The fee shall be taxed as costs to be collected from the defendant, if possible, upon conviction or entry of an order of supervision. The fee shall not be considered a part of the fine for purposes of any reduction in the fine.
All such fees collected shall be deposited by the county in a fund to be established and known as the County Jail Medical Costs Fund. Moneys in the Fund shall be used solely for reimbursement to the county of costs for medical expenses and administration of the Fund.”
730 ILCS 125/17 (West 2008) .
We initially note that the current version of the statute, set forth above, is the result of an amendment to the statute which occurred approximately one month prior to defendant‘s offense. The prior version of the statute provided, in relevant part:
“All such fees collected shall be deposited by the county in a fund to be established and known as the Arrestee‘s Medical Costs Fund. Moneys in the Fund shall be used solely for reimbursement of costs for medical expenses relating to the arrestee while he or she is in the custody of the sheriff and administration of the Fund.”
730 ILCS 125/17 (West 2006) .
This court has analyzed this prior version of the statute and held that it applied to defendants who did not incur medical costs while under arrest. See People v. Jones, 397 Ill. App. 3d 651, 663 (2009). In Jones, 397 Ill. App. 3d at 662, this court reasoned that the prior version of the statute did not place any conditions on the county‘s right to the fee and that the last sentence of the statute quoted above indicated that the county could use the $10 fee for reimbursement of either costs for medical expenses incurred by the defendant while under arrest or costs for administration of the fund. Recently, in Hubbard, 404 Ill. App. 3d at 105-06, this court again considered the previous version of the statute and followed its decision in Jones to conclude that the
In Public Act 95-842, effective August 15, 2008, the legislature amended section 17 of the Act. Pub. Act 95-842, §5, eff. August 15, 2008 (amending
In this case, defendant‘s offense occurred on September 11, 2008, after the effective date of the amendment. Therefore, the current version of the statute, set forth above, applies in this case. Prior decisions have considered the statute when it contained the language “reimbursement of costs for medical expenses relating to the arrestee while he or she is in the custody of the sheriff” and when the fund was titled “Arrestee‘s Medical Costs Fund” and found that a defendant could be charged the fee even if he did not incur medical costs while under arrest. By replacing that language with the current version of statute, the amendment makes it clear that the fee is to be collected irrespective of whether a defendant incurs injury or requires treatment while in custody and supports the analysis of this court‘s prior decisions on this issuе. Accordingly, we follow our holdings in Jones and Hubbard and find that defendant was properly assessed the $10 county jail medical fund fee.
Defendant further claims, and the State concedes, that he is entitled to presentence credit toward the $10 mental health court fee. See
Defendant finally claims, and the State agrees, that he is entitled to have his presentence credit applied toward the $30 Children‘s
Accordingly, pursuant to Illinois Supreme Court Rule 615(b)(1), the $5 court system fee is vacated. We order that the mittimus be corrected to reflect a credit of $40 toward the imposed fines which, along with the vacatur of the $5 court system fee, reduces defendant‘s monetary judgment from $580 to $535.
Affirmed in part and vacated in part; mittimus corrected.
JUSTICE ROBERT E. GORDON, dissenting:
On appeal, defendant asked this court to vacate one of his two convictions on the ground that the possession of a single loaded firearm cannot serve as the basis for multiple convictions.
I must dissent, because I agree that we must vacate one of defendant‘s two convictions. I reach this conclusion based on our legislature‘s amendment, enacted in response to our supreme court‘s decision in People v. Carter, 213 Ill. 2d 295 (2004).
This is a case of first impression; neither the court nor the parties found another case interpreting and applying the 2005 amendment. Pub. Act 94-284 (eff. July 1, 2005) (amending
The majority finds that the Illinois Supreme Court‘s decision in Carter presented an issue, which was then resolved by a statutory amendment. The majority finds that the amendment is not ambiguous and thus our job is done. However, the Carter case actually presented a number of different issues, which were not resolved by the
In Carter, during a search of defendant‘s vehicle, the police recovered weapons and ammunition.4 Carter, 213 Ill. 2d at 298. As a result of this one incident, defendant was charged with four separate counts of unlawful possession of a weapon by a felon. Carter, 213 Ill. 2d at 298. The four counts were for: (1) an unloaded .22-caliber handgun; (2) a .25-caliber handgun; (3) the ammunition clip that was attached to the .25-caliber handgun; and (4) a clip for the .22-caliber handgun, that was found near the .22-caliber handgun, but that was not attached to it. Carter, 344 Ill. App. 3d at 664-65.
The Carter case thus presented at least three potential issues: (1) whether the simultaneous possession of two firearms constituted one offense or two; (2) whether the possession of a loaded handgun constituted one offense or two; and (3) whether a loaded handgun presented a different issue than an unloaded handgun with a clip nearby.
The Carter court found that, under the version of the statute that applied to the facts before it, the simultaneous possession of the two weapons and their respective ammunition constituted one offense. Carter, 213 Ill. 2d at 304. Thus, the Carter court resolved all three potential issues with one holding. However, the Carter court asked our legislature to provide guidance on the issues raised by “the simultaneous possession оf multiple firearms” and “the simultaneous possession of *** a firearm and ammunition.” Carter, 213 Ill. 2d at 304. Our supreme court observed that almost every federal court of appeals that had considered these issues had found only one crime. Carter, 213 Ill. 2d at 304. Our supreme court specifically asked for legislative guidance with respect to a “loaded gun,” stating: “While we agree with the State that a felon who possesses a loaded gun may be more dangerous than a felon who possesses a gun but no ammunition, it is for the legislature to ‘define what it desires to make the [allowable] unit of prosecution.’ ” Carter, 213 Ill. 2d at 306 (quoting Manning, 71 Ill. 2d at 137, quoting Bell, 349 U.S. at 83).
The subsequent amendment states that “[t]he possession of each firearm or firearm ammunition in violation of this Section constitutes a single and separate violation.”
In other weapons laws, the legislature has carefully drawn distinctions among: (1) a “loaded” firearm; (2) an “unloaded” firearm where “the ammunition for the weapon was immediately accessible“; and (3) an unloaded firearm without immediately accessible ammunition.
The ambiguity inherent in the statute becomes clear when we consider the phrase “each *** ammunition.”
The majority suggests that, if we hold that a loaded firearm represents only one offense, our holding would have the absurd result of encouraging convicted felons to carry their guns loaded. If a holding
Since I decide this issue based solely on statutory construction, I do not reach any possible constitutional questions, such as whether the statute violates the one-act, one-crime rule. People v. Quinones, 362 Ill. App. 3d 385, 397 (2005) (multiple convictions “based on the same act, specifically, defendant‘s possession of the firearm” “cannot stand under the one-act, one-crime doctrine“). “One-act, one-crime principles apply only if the statute is construed as permitting multiple convictions ***” Carter, 213 Ill. 2d at 301. Our supreme court has “repeatedly stated that cases should be decided on nonconstitutional grounds whenever possible, reaching constitutionаl issues only as a last resort.” In re E.H., 224 Ill. 2d 172, 178 (2006); People v. Melchor, 226 Ill. 2d 24, 34 (2007).
Since the amendment is ambiguous, I find that only one offense is permitted for a single loaded firearm, and I would vacate one of defendant‘s two convictions. Defendant did not ask this court to remand for re-sentencing; otherwise I would also have ordered it.