People v. JacksonPeople v. Jackson
JUSTICE NAVARRO delivered the judgment of the court.
Presiding Justice Mitchell and Justice Mikva concurred in the judgment.
ORDER
Held: Although we reverse defendant‘s two convictions for aggravated unlawful use of a weapon due to insufficient evidence, we affirm his conviction for unlawful use of a weapon by a felon over his claim that the unlawful use of a weapon by a felon statute is unconstitutional, as applied to him, and find his nine-year sentence for the offense not excessive.
¶ 1 Following a bench trial, defendant was convicted of one count of unlawful use of a weapon by a felon and two counts of aggravated unlawful use of a weapon based on lacking a currently valid concealed carry license and currently valid Firearm Owner‘s Identification card, respectively.
I. BACKGROUND
¶ 3 A grand jury indicted defendant on three counts, all based on his possession of a firearm. Count 1 charged defendant with unlawful use of a weapon by a felon for allegedly possessing the firearm after having been previously convicted of a felony. Count 2 charged defendant with aggravated unlawful use of a weapon for, inter alia, allegedly possessing the firearm without having been issued a currently valid concealed carry license. Lastly, Count 3 charged defendant with aggravated unlawful use of a weapon for, inter alia, allegedly possessing the firearm without having been issued a currently valid Firearm Owner‘s Identification (FOID) card.
¶ 4 The case proceeded to a bench trial, where the State‘s evidence showed that, in the evening of April 3, 2020, Chicago police officers responded to a report of a domestic disturbance at an apartment complex. In a courtyard, an officer observed defendant, who appeared to have a weapon. Upon encountering the police, defendant ran. During a chase of defendant, an officer observed him discard a firearm. The officers eventually apprehended defendant and recovered the firearm, which was loaded, had a laser attachment and an extended magazine. At the conclusion of the State‘s case, it entered into evidence a certified copy of conviction showing that defendant had previously
¶ 5 After defendant filed an unsuccessful motion for new trial, the case proceeded to a sentencing hearing. In aggravation, the State highlighted defendant‘s prior conviction and noted that the trial court found him guilty of unlawful use of a weapon by a felon. Given defendant‘s background, the State asserted that his presumptive minimum sentence was seven years’ imprisonment. In mitigation, defendant noted that the relevant sentencing statute, section 5-4.5-110 of the Unified Code of Corrections (Code) (
¶ 6 Following the parties’ argument, the trial court did not believe defendant‘s age at the time of the predicate offense or the effect on his rehabilitation warranted a departure from the presumptive minimum of seven years’ imprisonment. Although the court noted it was
¶ 7 This appeal followed.
II. ANALYSIS
A. Sufficiency of the Evidence
¶ 8 Defendant first contends that the State presented insufficient evidence to prove his guilt for aggravated unlawful use of a weapon based on him lacking a currently valid concealed carry license (Count 2) or currently valid FOID card (Count 3). Defendant argues that, because the State failed to present any evidence showing he lacked either a currently valid concealed carry license or currently valid FOID card, the State failed to prove an essential element on each count.
¶ 9 Although the State does not dispute that it failed to present this evidence, it posits that defendant‘s sufficiency-of-the-evidence contention is moot because of a one-act, one-crime doctrine violation. Under the one-act, one-crime doctrine “a criminal defendant may not be convicted of multiple offenses when those offenses are all based on precisely the same physical act.” People v. Coats, 2018 IL 121926, ¶ 11. The State asserts that, under the doctrine, because all three of defendant‘s convictions were based on the same physical act of possessing the same firearm, defendant‘s two convictions for aggravated unlawful use of a weapon should be vacated,
¶ 10 When a defendant challenges the sufficiency of the evidence against him, we must determine whether, when the evidence is viewed in the light most favorable to the State, a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. People v. Jackson, 2020 IL 124112, ¶ 64. The reviewing court does not retry the defendant, and thus, we do not substitute our judgment for that of the trier of fact on issues affecting the weight of the evidence. Id. We will not reverse a defendant‘s convictions “unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant‘s guilt.” Id.
¶ 11 The trial court found defendant guilty of two counts of aggravated unlawful use of a weapon, one for lacking a currently valid concealed carry license (Count 2) and one for lacking a currently valid FOID card (Count 3). To prove defendant guilty on Count 2, the State had to prove, inter alia, that defendant possessed a firearm and he did so without having been issued a currently
¶ 12 Turning back to the instant case, as the State failed to prove that defendant had not been issued either a currently valid concealed carry license or currently valid FOID card, the State failed to prove an essential element of Count 2 and Count 3. See
¶ 13 Having concluded that defendant‘s convictions under Count 2 and Count 3 must be reversed, we next address his claim that we should remand the matter for resentencing on Count 1, his conviction for unlawful use of a weapon by a felon, because it cannot be determined how much weight the trial court gave to his now-improper aggravated unlawful use of a weapon convictions. See People v. Durdin, 312 Ill. App. 3d 4, 10 (2000) (remanding for resentencing on a
¶ 14 At the time defendant committed the offense of unlawful use of a weapon by a felon, section 5-4.5-110 of the Code (
¶ 15 During defendant‘s sentencing hearing, the State observed that defendant had been convicted of unlawful use of a weapon by a felon and based on his prior conviction, it asserted that the presumptive minimum sentence for defendant was seven years’ imprisonment. Defendant, in mitigation, echoed the presumptive minimum sentence of seven years’ imprisonment, but argued for a departure from the presumptive minimum based on the statutory factors. Before sentencing defendant, the trial court agreed with the parties that defendant‘s presumptive minimum sentence was seven years’ imprisonment and found no reason to depart from that presumptive minimum based upon the relevant factors. In turn, the court sentenced defendant to nine years’ imprisonment. Admittedly, the court never merged defendant‘s two convictions for aggravated unlawful use of a weapon into his conviction for unlawful use of a weapon by a felon and defendant‘s mittimus
¶ 16 Although the trial court did sentence defendant to two years more than the presumptive minimum sentence for unlawful use of a weapon by a felon, the court justified its above-minimum sentence based on various evidence, including defendant running from the police and the overwhelming evidence of his guilt. Given the court referencing the presumptive minimum sentence of seven years’ imprisonment, which only was the presumptive minimum sentence for unlawful use of a weapon by a felon, the court‘s justification for the above-minimum sentence, the State only referencing defendant‘s conviction for unlawful use of a weapon by a felon and no one, including most importantly the court, mentioning defendant‘s two convictions for aggravated unlawful use of a weapon, we are confident that the court did not give weight to these now-reversed convictions when imposing defendant‘s nine-year sentence for unlawful use of a weapon by a felon. As such, the record is devoid of an indication that defendant‘s now-reversed convictions had any influence on his sentence for unlawful use of a weapon by a felon. “Where there is no
¶ 17 Given our resolution of defendant‘s contention about the sufficiency of the evidence, we need not address his alternative contention concerning the one-act, one-crime doctrine, as that contention is now moot because he stands convicted of only one offense. See People v. Blaylock, 202 Ill. 2d 319, 325 (2002) (a claim is “moot when it presents or involves no actual controversy, interests or rights, or where the issues involved have ceased to exist“).
B. Constitutionality of Firearm Offenses
¶ 18 Defendant next contends that his conviction for unlawful use of a weapon by a felon must be reversed because the unlawful use of a weapon by a felon statute is unconstitutional, as applied to him, under the second amendment (
¶ 19 The second amendment to the United States Constitution provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
¶ 20 In analyzing a challenge to the constitutionality of a statute, we begin with the presumption that the statute is constitutional. People v. Ligon, 2016 IL 118023, ¶ 11. “To rebut the presumption, the party challenging the statute must clearly establish a constitutional violation.” People v. Boeckmann, 238 Ill. 2d 1, 6 (2010). “Courts have a duty to uphold the constitutionality of a statute whenever reasonably possible, resolving any doubts in favor of the statute‘s validity.” People v. Rizzo, 2016 IL 118599, ¶ 23. Although the trial court never was given an opportunity to determine whether the unlawful use of a weapon by a felon statute is unconstitutional, as applied to defendant, this is a question of law that we review de novo. Id. “An as-applied challenge requires a showing that the statute violates the constitution as it applies to the facts and circumstances of the challenging party.” People v. Thompson, 2015 IL 118151, ¶ 36. “Therefore, it is paramount that the record be sufficiently developed in terms of those facts and circumstances for purposes of appellate review.” Id. ¶ 37. “[A] reviewing court is not capable of making an as-applied finding of unconstitutionality in the ‘factual vacuum’ created by the absence of an evidentiary hearing and findings of fact by the trial court.” People v. Harris, 2018 IL 121932, ¶ 41 (quoting People v. Minnis, 2016 IL 119563, ¶ 19).
¶ 21 To this end, the State argues that defendant forfeited his as-applied challenge for failing to raise it initially before the trial court. See Thompson, 2015 IL 118151, ¶ 39. Defendant concedes that he raised his as-applied constitutional challenge for the first time on appeal. But, citing to
¶ 22 In Holman, the defendant appealed from the denial of his pro se petition for leave to file a successive postconviction petition and argued for the first time that his sentence of natural life imprisonment was unconstitutional under recent United States Supreme Court precedent, in particular Miller v. Alabama, 567 U.S. 460 (2012). Holman, 2017 IL 120655, ¶ 20. In reviewing the propriety of the defendant raising the claim for the first time on appeal, our supreme court noted that, in Thompson, it “instruct[ed] that a defendant must present an as-applied constitutional challenge to the trial court to create a sufficiently developed record.” Holman, 2017 IL 120655, ¶ 32. But our supreme court observed that, in People v. Davis, 2014 IL 115595, it “create[d] a very narrow exception to that rule for an as-applied Miller claim for which the record is sufficiently developed for appellate review.” Holman, 2017 IL 120655, ¶ 32. The court subsequently found that the defendant‘s Miller claim “[did] not require factual development,” as “[a]ll of the facts and circumstances to decide the defendant‘s claim *** [were] already in the record.” Id. As such, in the interest of judicial economy, our supreme court addressed the claim. Id. In further analyzing Holman, our supreme court later observed that the reason it could address the defendant‘s as-applied claim was because “the critical determinations were purely legal issues.” Harris, 2018 IL 121932, ¶ 44.
¶ 23 In the instant case, defendant is not making an as-applied Miller claim, but rather an as-applied claim based on the second amendment. Thus, the “very narrow exception” recognized by Holman does not apply. See People v. Ivy, 2023 IL App (4th) 220646-U, ¶ 16 (finding the “the ‘very narrow exception’ discussed in Holman [did] not apply” to a defendant raising an as-applied
¶ 24 Assuming arguendo that as-applied constitutional claims outside the Miller context can be raised for the first time on appeal, we agree with the State that the record here is insufficient to address defendant‘s as-applied challenge. Although defendant posits that the record demonstrates that he has no history of violence, the record below was not created for making this determination. “A court is not capable of making an ‘as applied’ determination of unconstitutionality when there has been no evidentiary hearing and no findings of fact. [Citation.] Without an evidentiary record, any finding that a statute is unconstitutional ‘as applied’ is premature.” People v. Mosley, 2015 IL 115872, ¶ 47 (quoting In re Parentage of John M., 212 Ill. 2d 253, 268 (2004)). It is true that defendant‘s only prior felony conviction was for aggravated unlawful use of a weapon, which was based on his possession of a firearm under unlawful circumstances, and thus, his prior felony conviction was not a violent one. See Black‘s Law Dictionary (11th ed. 2019) (defining “violent offense” as “[a] crime characterized by extreme physical force, such as murder, forcible rape, and assault and battery with a dangerous weapon“). But that does not mean the State could not have presented evidence at a hearing showing that defendant was a violent person such that he could still be considered a violent felon. See Black‘s Law Dictionary (11th ed. 2019) (defining “violent”
¶ 25 After all, in the instant case‘s sentencing hearing, the State asserted that the police arrived to an apartment complex based on a report of a domestic disturbance. In describing that report, the State noted that the report was that “defendant had been threatening [his partner] with a gun.” In fact, defendant‘s presentence investigation report indicated an involvement with the Gangster Disciples street gang, though, in the report, defendant denied that association. Additionally, there could be disciplinary violations from defendant‘s time in prison, which could reflect upon whether he is violent. Certainly, such evidence and others of which we are unaware could show that, while defendant‘s prior felony conviction was for a non-violent offense, he nevertheless was a violent felon. Such an unresolved question is for the trial court to determine following an evidentiary hearing, and thus, the critical determinations to resolve defendant‘s as-applied challenge are not purely legal issues, but rather factual issues about his character. See Harris, 2018 IL 121932, ¶ 44.
¶ 26 Although defendant further relies on People v. Burnett, 2015 IL App (1st) 133610 and People v. Emmett, 264 Ill. App. 3d 296 (1994), for support that we may address his as-applied claim for the first time on appeal, those decisions are contradicted by our recent supreme court decisions on as-applied challenges. Both Burnett and Emmett insinuate that a defendant may raise an as-applied constitutional challenge at any time, regardless of whether he raised the challenge first to the trial court. See Burnett, 2015 IL App (1st) 133610, ¶¶ 80-82; Emmett, 264 Ill. App. 3d at 297. However, that is decidedly not the case. See People v. House, 2021 IL 125124, ¶ 31; Harris, 2018 IL 121932, ¶¶ 37-46. We recognize that the United States Supreme Court decided Bruen only one month before defendant‘s sentencing hearing, but because defendant failed to raise his as-applied constitutional challenge in the trial court, which prevented a developed evidentiary record
C. Defendant‘s Sentence
¶ 27 Defendant lastly contends that his sentence is excessive where the trial court failed to depart from the presumptive minimum sentence under a sentencing statute that has since been repealed and where the court failed to adequately consider his lack of criminal history and potential for rehabilitation.
¶ 28 The Illinois Constitution requires the trial court to sentence a defendant according to the seriousness of his offense and with the goal of returning him to useful citizenship (
¶ 29 We provide such deference to the trial court because it had “the opportunity to weigh such factors as the defendant‘s credibility, demeanor, general moral character, mentality, social environment, habits, and age.” People v. Stacey, 193 Ill. 2d 203, 209 (2000). “We presume a trial court evaluates the relevant factors in mitigation before it, and that presumption cannot be overcome without affirmative evidence of the sentencing court‘s failure to do so.” People v. Williams, 2017 IL App (1st) 150795, ¶ 44. “Nothing requires the trial court set forth every reason or specify the weight it gave to each factor when determining the sentence.” Id. When the court sentences the defendant within the statutory range, the sentence is presumed proper. Knox, 2014 IL App (1st) 120349, ¶ 46. Such a sentence may only “be deemed excessive and the result of an abuse of discretion” if it “is greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense.” Stacey, 193 Ill. 2d at 210.
¶ 30 In the instant case, because defendant was convicted of unlawful use of a weapon by a felon, the weapon at issue was a firearm and he had previously been convicted of aggravated unlawful use of a weapon where the weapon was a firearm, the sentencing range for his conviction was between 7 and 14 years’ imprisonment.
¶ 31 Having reviewed the record, we cannot say the trial court‘s sentence was greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense. In sentencing defendant to nine years’ imprisonment, the court stated that it considered the evidence presented at trial, defendant‘s presentence investigation report, the evidence offered in aggravation and mitigation, the statutory aggravating and mitigating factors, and the arguments of the parties. The court‘s comments when sentencing defendant in conjunction with its explicit consideration of these various factors demonstrates that it gave thoughtful consideration prior to sentencing defendant to nine years’ imprisonment.
¶ 32 Nevertheless, defendant highlights that his prior felony conviction occurred when he was 19 years old, the evidence of his alleged significant rehabilitative potential, his lack of a significant criminal history, among other mitigation evidence, and argues this evidence warrants not only a
¶ 33 Lastly, defendant highlights that section 5-4.5-110 of the Code (
III. CONCLUSION
¶ 34 For the reasons stated, we affirm in part and reverse in part the judgment of the circuit court of Cook County.
¶ 35 Affirmed in part and reversed in part.