THE PEOPLE OF THE STATE OF ILLINOIS, Plаintiff-Appellee, v. OMAR WILLIAMS, Defendant-Appellant.
No. 1-09-1667
Appellate Court of Illinois, First District, Fourth Division
December 15, 2011
2011 IL App (1st) 091667-B
Hon. Kenneth J. Wadas, Judge, presiding.
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
Defendant‘s conviction for aggravated unlawful use of a weapon was affirmed over defendant‘s claim that the statute violated the second amendment, but the cause was remanded for modification of the mittimus to reflect the vacation of the court system fee, the court supervision fee and the serious traffic violation fee, the application of the presentence incarceration credit to the mental health “fee,” the youth diversion/peer court “fee,” the Children‘s Advocacy Center “fee,” and the drug court “fee,” which are actually fines, and the vacation of the DNA anаlysis fee, because defendant provided a DNA sample pursuant to a prior conviction.
Decision Under Review
Appeal from the Circuit Court of Cook County, No. 08-CR-16364; the Hon. Kenneth J. Wadas, Judge, presiding.
Judgment
Affirmed in part and vacated in part; cause remanded with directions.
Michael J. Pelletier, Alan D. Goldberg, and Brian A. McNeil, all of State Appellate Defender‘s Office, of Chicago, for appellant.
Anita M. Alvarez, State‘s Attorney, of Chicago (Alan J. Spellberg, Williаm Toffenetti, Mary Needham, and Tasha-Marie Kelly, Assistant State‘s Attorneys, of counsel), for the People.
Panel
JUSTICE PUCINSKI delivered the opinion of the court, with opinion.*
Presiding Justice Lavin and Justice Salone concurred in the judgment and opinion.**
OPINION
¶ 1 Defendant Omar Williams was convicted in a bench trial of two counts of unlawful use of a weapon by a felon and six counts of aggravated unlawful use of a weapon (AUUW). At sentencing, all counts were merged into оne AUUW conviction and defendant was sentenced to 5 years in prison, with 308 days’ credit for the time he served awaiting trial. Defendant was also assessed costs totaling $715. On appeal defendant challenges the constitutionality of the criminal laws of which he was convicted as violative of the second amendment to the United States Constitution. He also challenges some of the fines and fees that the trial court assessed. On Decembеr 2, 2010, this court issued an opinion upholding defendant‘s conviction and sentence but modifying the costs that he was assessed. People v. Williams, 405 Ill. App. 3d 958 (2010). Thereafter, on September 28, 2011, the supreme court issued a supervisory order directing this court to vacate our decision and reconsider defendant‘s claims in light of its recent decision in People v. Marshall, 242 Ill. 2d 285 (2011). People v. Williams, No. 111594 (Ill. Sept. 28, 2011). On reconsideration, we again affirm defendant‘s conviction and sentence and modify the fees and costs that he was ordered to pay.
¶ 2 Defendant does not challenge the sufficiency of the evidence underlying his convictions; rather, he challenges the constitutionality of statutes under which he was convicted. Accordingly, we only include a brief recitation of the relevant facts.
¶ 3 The State‘s evidence at trial established that on August 14, 2008, at about 5 p.m. the victim, Robert Brown, was walking and conversing with a friend in the area of 1324 West 13th Street in Chicago. Defendant, whom Brown had known for about 10 years, ran up behind Brown and struck him in the face with a silver-gray 9-millimeter handgun. Defendant then took $30 from Brown‘s pants pocket. Brown walked to his grandmother‘s house, where he cleaned himself off, and then rode his bike to the hospital. Brown subsequently identified defendant as his assailant in a lineup and also identified him at trial. Defendant was arrested on the street later that same day. Police found a chrome 9-millimeter semiautomatic handgun loaded with nine bullets on defendant‘s person. They also recovered money from defendant, including one $100 bill, one $10 bill, and two $1 bills. The prosecution introduced evidence that defendant had previously been convicted of unlawful use of a weapon by a felon. Because the money found on defendant did not match the $30 he allegedly took at gunpoint from Brown and no part of the bills that police recovered could add up to $30, the trial judgе acquitted defendant of the offense of robbery, with which he was also charged. The trial court, however, did convict defendant of six counts of aggravated unlawful use of a weapon and two counts of unlawful use of a weapon by a felon. The trial court subsequently merged the charges into one count of aggravated unlawful use of a weapon conviction, sentenced defendant to five years in prison, and assessed a numbеr of costs. Defendant‘s timely appeal followed.
II. ANALYSIS
¶ 4 On appeal, defendant challenges the constitutionality of the aggravated unlawful use of a weapons statute and the unlawful use of a weapon by a felon statute, arguing that these provisions violate his constitutional right to bear arms.
¶ 5 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.”
U.S. Const., amend. II .
¶ 6 We need not discuss defendant‘s contention that the second amendment is incorporated in the due process clause of the fourteenth amendment and therefore applies to individual states, including Illinois. This proposition was answered affirmatively in McDonald v. City of Chicago, 561 U.S. ___, ___, 130 S. Ct. 3020, 3044 (2010). Nor need we reexamine the case of Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483 (1984), as defendant suggests we should in light of McDonald. Kalodimos held that a village ordinance prohibiting, with a few exceptions, the possession of operable handguns was a correct exercise of police power and was not in violation of the Illinois constitutional provision which provides: “Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.”
¶ 7 Defendant‘s central contention is that the recent cases of District of Columbia v. Heller, 554 U.S. 570, 635-36 (2008), and McDonald, which applied the second amendment to invalidate laws virtually banning any possession of loaded handguns for self-defense in the home, shоuld be extended to invalidate the statutes of which defendant was convicted, which criminalize defendant‘s possession of a loaded handgun outside of his home. This court has recently explored this very issue and definitively determined that the United States Supreme Court‘s holdings in Heller and McDonald do not establish that the Illinois statute on aggravated unlawful use of a weapon is unconstitutional. People v. Dawson, 403 Ill. App. 3d 499, 506, 934 N.E.2d 598, 607 (2010). We find Dawson to be persuasive, and accordingly, we reject defendant‘s challenges tо the AUUW statute as well as the statute criminalizing the unlawful use of a weapon by a felon, the two statutes of which he was convicted in eight different permutations.
¶ 8 This challenge to the constitutionality of a statute is subject to de novo review. Davis v. Brown, 221 Ill. 2d 435, 443 (2006). Moreover, as we stated in Dawson:
“We begin review of such an argument with the presumption that the statute is constitutional. *** It is our duty, when it may be reasonably done, to construe a challenged statute in a manner that upholds its validity and constitutionality. [Citation.]” Dawson, 403 Ill. App. 3d at 506.
¶ 9 Upon close review of the arguments presented by defendant, it becomes clear that he overstates the holdings of Heller and McDonald in order to make them appear to control the outcome of the present challenge. For example, defendant notes that Heller found that a handgun, the type of firearm at issue there and in the case before us, was one contemplated for protection by the drafters of the second amendment, beсause it was commonly in use at the time and not particularly dangerous or unusual as a firearm. But it is clear that Heller found this a necessary but not sufficient quality of those weapons that were protected. Heller also noted that a crucial factor in permitting the criminalization of such weapons might not be just their type but their location, such as possessing them in schools and government buildings. Heller, 554 U.S. at 626-27. Thus, pursuant to the holding in Heller, a handgun that would be legal to possess in one‘s home could be illegal to possess in a school or library.
¶ 10 Defendant attempts to turn this reasoning on its head by concluding that Heller‘s citation of “sensitive” places where firearms could be banned outside the home necessarily meant that they could not be banned everywhere outside the home. There are two responses to this argument. One response is that the Illinois statute does permit firearms to be possessed outside the home under certain сircumstances if they are not “uncased, loaded and immediately accessible.”
¶ 11 Along with the narrow holdings of Heller and McDonald, we must acknowledge the numerous Illinois cases predating those two decisions which have found the Illinois statute on unlawful use of weapons to be constitutional and a rational expression of public policy in the face of due process challenges. People v. Sole, 357 Ill. App. 3d 988, 991 (2005); People v. Austin, 349 Ill. App. 3d 766, 772 (2004); People v. Pulley, 345 Ill. App. 3d 916, 925 (2004); People v. Marin, 342 Ill. App. 3d 716, 729 (2003); People v. Grant, 339 Ill. App. 3d 792, 802-03 (2003). As we held in Austin:
“[T]he [AUUW] statute reflects a rational relationship to its intended purpose to impose greater punishment for conduct that creates ‘inherent danger to police officers and the general public, even if the person carrying thе weapon has no criminal objective.‘” Austin, 349 Ill. App. 3d at 772 (quoting Pulley, 345 Ill. App. 3d at 925, citing Grant, 339 Ill. App. 3d at 806).
¶ 12 These courts applied a rational basis test in determining the constitutionality of the AUUW statute because they found that no fundamental right was at issue. Like the court in Dawson, we found that no fundamental right is implicated here, even in light of the holdings of Heller and McDonald. As we stated in Dawson:
“[I]t is essential to the resolution of this issue to understand that the Heller Court ultimately limited its holding to the question presented—that the second amendment right to bear arms protected thе right to possess a commonly used firearm, a handgun, in the home for self-defense purposes. Heller, 554 U.S. at 598-99, 624-25, 171 L. Ed. 2d at 661-62, 677, 128 S. Ct. at 2801-02, 2815-16. McDonald also addressed the limited question of whether a ban on the possession of a handgun in the home violated the second amendment right to bear arms. The holding in McDonald was similarly constrained with a plurality of the Court concluding that the right to possess a handgun in the home for self-defense was fundamental and incorporated under the due process clause. McDonald, 561 U.S. at ___, 177 L. Ed. 2d at 929, 130 S. Ct. at 3040.” Dawson, 403 Ill. App. 3d at 508.
For this reason, the Heller court expressly determined not to apply any particular level of constitutional scrutiny, declaring that although rational basis scrutiny would be too low (Heller, 554 U.S. at 628 n.27) under any of the traditional heightened levels of scrutiny, banning the possession of handguns in the home for self-protection would be unconstitutional (Heller, 554 U.S. at 626-29).
¶ 13 But the AUUW statute does not implicate the fundamental right announced by Heller and extended to the states under the due process clause by McDonald, the right to possess a loaded handgun in the home for self-protectiоn. For this reason, we adhere to the cases we have cited, such as Austin and Pulley, which found that there was a rational basis to the
¶ 14 Defendant was 19 years old when he was arrested for possession of a loaded handgun. He presents an alternative argument, necessarily premised on a finding by us that under the second amendment adults have a constitutional right to possess loaded handguns outside of their homes. Defendant contends that his youth should not prevent the application of such a holding to him and therefore the statute under which he was convicted is unconstitutional because it specifically prohibits the possession of handguns outside the home by anyone under the age of 21.
¶ 15 Defendant asserts that the holdings of Heller and McDonald also render unconstitutional the statute under which he was convicted for unlawful use of a weapon and possession of ammunition by a felon.
“[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill ***.” Heller, 554 U.S. at 626.
McDonald was even stronger in its defense of these traditional prohibitions:
“We made it clear in Heller that our holding did not cast doubt оn such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill’ ***. We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.” McDonald, 561 U.S. at ___, 130 S. Ct. at 3047.
Even if this language is construed as dictum, subsequent courts have determined that under an intermediate level of scrutiny, laws prohibiting the possession of firearms by felons or by repeat sexual offеnders would withstand constitutional scrutiny. United States v. Williams, 616 F.3d 685, 694 (7th Cir. 2010) (where defendant had been convicted of a violent felony, no merit to his claim that a statute banning possession of firearms by convicted felons infringed upon his constitutional right to possess a firearm); United States v. Skoien, 614 F.3d 638, 645 (7th Cir. 2010) (statute banning possession of firearms by persons convicted of at least two misdemeanor crimes of domestic violence was constitutional). We agree that under any appropriate levеl of scrutiny, the second amendment was not intended to permit a convicted felon to possess, on his person, a loaded handgun. We also note that defendant was found to be in possession of this handgun and ammunition while standing on a public street, thus negating any possible application of the holding of Heller and McDonald concerning possession of handguns in the home. Because the statute applies to the situation
¶ 16 On the question of costs, the defendant contends, and the State correctly concedes, that it was improper to assess the defendant a $5 court system fee (
¶ 17 Defendant also challenges the assessment of a court services fee of $25, contending that the statute limits the assessment to those convicted of specific designаted statutes, which do not include the statutes under which he was convicted. Defendant misreads the court services fee statute, which provides in pertinent part:
“In criminal, local ordinance, county ordinance, traffic and conservation cases, [the court services 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 [certain enumerated criminal statutes].”
55 ILCS 5/5-1103 (West 2008).
It is clear that the statute permits assessment of this fee upon any judgment of conviction but also permits such assessment for orders of supervision or probation, made without entry of a judgment of conviction, for certain limited and enumerated criminal provisions. Judgments of conviction were entered for defendant, and the fact that these convictions were not among those enumerated by the statute for imposition of this fee without entry of conviction does not void the assessment.
¶ 18 We must next consider whether certain designated “fees” assessed against the defendant were in fact “fines” for which he is entitled to presentence incarceration credit of $5 a day.
“Broadly speaking, a ‘fine’ is a part of the punishment for the conviction, whereas a ‘fee’ or ‘cost’ seeks to recoup expenses incurred by the state—to ‘compensat[e]’ the state for some expenditure incurred in prosecuting the defendant.”
Thus, despite the statutory label, a “fee” that is not intended to specifically reimburse the State for costs it has incurred in prosecuting a defendant is actually a “fine.” Jones, 223 Ill. 2d at 581. Here, defendant was assessed a $10 mental health “fee” to be placed in a general fund to finance the mеntal health court (
¶ 19 Defendant next claims that he is entitled to a similar credit for the $200 mandatory fee for DNA collection and testing that was imposed upon him pursuant to section 5-4-3 of the Unified Code of Corrections (Code of Corrections) (
¶ 20 Section 5-4-3 of the Unified Code, in pertinent part, provides:
“Any person *** convicted or found guilty of any offense classified as a felony under Illinois law, *** shall, regardless of the sentence or disposition imposed, be required to submit specimens of blood, saliva, or tissue to the Illinois Department of State Police in accordance with the provisions of this Section, provided such person is:
***
(3.5) convicted or found guilty of any offense classified as a felony under Illinois law *** on or after August 22, 2002.”
730 ILCS 5/5-4-3(a)(3.5) (West 2008).
The provision further provides that: “Any person required by subsection (a) to submit specimens of blood, saliva, or tissue to the Illinois Department of State Poliсe for analysis and categorization into genetic marker grouping, in addition to any other disposition, penalty, or fine imposed, shall pay an analysis fee of $200.”
¶ 21 Here, the record reveals that defendant had previously been convicted of felonies before he was convicted of the offenses in the case at bar. Namely, defendant‘s criminal history includes a 2007 conviction for reckless discharge of a firearm under case number 07 CR 0502701 and a 2007 unlawful use of a weapon by a felon conviction under case number 07 CR 1939501. Although the record does not indicate whether or not the DNA assessment fee was imposed in those cases, we note that this statutory provision was added to the Unified Code by amendment in 1997 (Pub. Act 90-130, § 30 (eff. Jan. 1, 1998) (amending
III. CONCLUSION
¶ 22 For the reasons set forth in this opinion, we affirm defendant‘s conviction and sentence but remand for modification of the mittimus to accord with our findings regarding the imposition of certain costs and the application of pretrial incarceration credit.
¶ 23 Affirmed in part and vacated in part; cause remanded with directions.