People v. MotonPeople v. Moton
¶ 1 HELD: Defendant‘s conviction for unlawful use of a weapon by a felon must be vacated when his prior felony conviction for aggravated unlawful use of a weapon was void ab initio pursuant to People v. Aguilar, 2013 IL 112116, and could therefore not serve as the necessary predicate felony for the instant conviction.
¶ 2 Following a jury trial, defendant Darnell Moton was convicted of unlawful use of a weapon by a felon (UUWF), and sentenced to five years’ imprisonment. On appeal, defendant contends that his conviction must be reversed because his only prior felony conviction is for a
¶ 3 Defendant was arrested on November 4, 2011, and charged by information with, inter alia, the unlawful use or possession of a weapon by a felon in that he knowingly possessed a handgun after having previously being convicted of AUUW in case number 11 CR 0962501. He was subsequently convicted of UUWF.
¶ 4 On appeal, defendant‘s sole contention is that his UUWF conviction must be reversed because his only prior felony conviction is for a version of AUUW found facially unconstitutional by our supreme court. Specifically, defendant relies on People v. Aguilar, 2013 IL 112116, to argue that his AUUW conviction is void ab initio and cannot serve as the predicate felony for his UUWF conviction. Although the State agrees that the instant conviction rests in part upon defendant‘s prior conviction for the Class 4 offense of AUUW and that Aguilar held that this offense was unconstitutional, the State argues that the instant UUWF conviction must stand because the evidence at trial established beyond a reasonable doubt that defendant was a convicted felon at the time that he possessed the firearm at issue on November 4, 2011.
¶ 5 As of 2011, the time of defendant‘s offense in case number 11 CR 0962501, the AUUW statute prohibited, in pertinent part, a person from carrying a firearm on or about his person or in any vehicle or concealed on or about his person except when on his land or in his abode or fixed place of business. See
¶ 6 Here, the record reveals that defendant was convicted of a Class 4 violation of
¶ 7 People v. McFadden, 2014 IL App (1st) 102939, appeal allowed, No. 117424 (Ill. May 28, 2014), is instructive. In that case, we vacated a UUWF conviction where the predicate felony was a Class 4 AUUW, agreeing with the defendant that “under Aguilar, the State could not rely on this now-void conviction to serve as a predicate offense for UUW by a felon. Therefore, it failed to prove an essential element of the offense.” Id. ¶¶ 38, 43. Because a prior felony conviction is an element of UUWF that must be proven beyond a reasonable doubt by the State, this court concluded that a void conviction for the Class 4 form of AUUW found unconstitutional in Aguilar could not serve as the required predicate offense. Id. ¶¶ 42-43. Although we determined that “we cannot ignore Aguilar‘s effects” on the defendant‘s UUWF conviction because the defendant‘s case was pending on direct appeal before us, we did not rely on Aguilar to vacate the defendant‘s AUUW conviction itself and did not “address whether formal proceedings for collateral relief may be available to defendant to vacate” that conviction. Id. ¶¶ 41, 44. See also People v. Fields, 2014 IL App (1st) 110311, ¶¶ 38-39, 44 (vacating the defendant‘s armed habitual criminal conviction in light of Aguilar because his prior conviction for Class 4 AUUW was void under Aguilar and the State could not rely on it as a predicate offense such that the State failed to prove an element of the offense of armed habitual criminal).
¶ 8 Here, defendant is directly appealing his UUWF conviction on the grounds that it cannot stand because the predicate felony, his AUUW conviction, is void ab initio. Our supreme court has held that a statute which is declared unconstitutional on its face is void ab initio, i.e., “the
¶ 9 In the case at bar, we will follow the reasoning of Fields and McFadden, in that we consider the effect of the predicate conviction on the conviction that is being appealed while taking no action on the prior conviction itself. See Fields, 2014 IL App (1st) 110311, ¶ 44 (“A void conviction for the Class 4 form of AUUW found to be unconstitutional in Aguilar cannot now, nor can it ever, serve as a predicate offense for any charge.“). Here, defendant‘s prior conviction for a Class 4 violation of
¶ 10 The State disagrees, relying on several federal cases, including Lewis v. United States, 445 U.S. 55 (1980), for the proposition that defendant‘s conviction for UUWF is valid because at the time of his conviction his previous AUUW conviction was valid. In other words, because defendant was a felon at the time of his conviction, it is irrelevant that the statute under which he was previously convicted was later determined to be unconstitutional. We recently rejected a similar argument in People v. Claxton, 2014 IL App (1st) 132681, ¶ 19, finding, in pertinent part, that federal cases interpreting federal statutes are not binding on this court when we interpret Illinois law, but are merely persuasive authority. The State also argues that Fields and McFadden were wrongly decided. The Illinois Supreme Court granted a petition for leave to appeal in May 2014 in the McFadden case. See People v. McFadden, No. 117424 (Ill. May 28, 2014). Thus, a definitive answer will come from our supreme court on the question that we are called upon to
¶ 11 Ultimately, here, because defendant‘s prior conviction for AUUW is void ab initio (see Aguilar, 2013 IL 112116, ¶¶ 20-22), it cannot serve as the predicate felony for his UUWF conviction such that his UUWF conviction must be reversed. See Fields, 2014 IL App (1st) 110311, ¶ 44; McFadden, 2014 IL App (1st) 102939, ¶ 42-43.
¶ 12 Accordingly, the judgment of the circuit court of Cook County is reversed.
¶ 13 Reversed.