People v. Baxton

2020 IL App (5th) 150500

172 N.E.3d 1164

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Keelan BAXTON, Defendant-Appellant.

NO. 5-15-0500

Appellate Court of Illinois, Fifth District.

Filed July 7, 2020

James E. Chadd, Catherine K. Hart, and Janieen R. Tarrance, of State Appellate Defender's Office, of Springfield, for appellant.

James A. Gomric, State's Attorney, of Belleville (Patrick Delfino, David J. Robinson, and Luke McNeill, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

PRESIDING JUSTICE WELCH delivered the judgment of the court, with opinion.

¶ 1 The defendant, Keelan Baxton, was convicted of aggravated unlawful use of a weapon (AUUW) based on misdemeanor possession of cannabis ( 720 ILCS 5/24-1.6(a)(1), (a)(3)(E) (West 2014)). He was sentenced to 30 months of probation under the election-of-treatment provisions set forth in section 40-10 of the Alcoholism and Other Drug Abuse and Dependency Act ( 20 ILCS 301/40-10 (West 2014) ). On appeal, he contends that section 24-1.6(a)(1), (a)(3)(E) of the AUUW statute ( 720 ILCS 5/24-1.6(a)(1), (a)(3)(E) (West 2014)) is facially unconstitutional because it violates the second amendment ( U.S. Const., amend. II ) and that the statute is unconstitutional as applied to him. He further challenges various fines and assessments that were imposed by the circuit clerk but were not ordered by the circuit court.¹ For the reasons that follow, we affirm.

¶ 2 I. BACKGROUND

¶ 3 The facts are not in dispute here. On January 23, 2015, the defendant was pulled over for speeding. During the traffic stop, the officer smelled cannabis and asked the defendant about it. The defendant informed the officer that he had in his possession a small amount of cannabis and a handgun. The officer arrested the defendant and retrieved from his pockets a loaded, silver .22-caliber revolver and a baggie containing 0.2 grams of cannabis. Thereafter, on January 27, 2015, the defendant was charged with AUUW, a Class 4 felony, for possessing a firearm while committing a misdemeanor violation of the Cannabis Control Act ( 720 ILCS 550/1 et seq. (West 2014)). 720 ILCS 5/24-1.6(a)(1), (a)(3)(E) (West 2014). At the time of the offense in January 2015, section 4(a) of the Cannabis Control Act made possession of "not more than 2.5 grams of any substance containing cannabis" a Class C misdemeanor. 720 ILCS 550/4(a) (West 2014).

¶ 4 On September 1, 2015, the defendant filed a motion to dismiss the AUUW charge, arguing that section 24-1.6(a)(1), (a)(3)(E) was unconstitutional on the basis that it violated the second amendment of the United States Constitution and the proportionate penalties clause of the Illinois Constitution. The defendant cited People v. Aguilar , 2013 IL 112116, ¶¶ 21-22, 377 Ill.Dec. 405, 2 N.E.3d 321, in which our supreme court struck down a different section of an older version of the AUUW statute, section 24-1.6(a)(1), (a)(3)(A), (d), as facially unconstitutional under the second amendment. 720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008). The Aguilar court concluded that section of the AUUW statute categorically prohibited the possession and use of an operable firearm for self-defense outside of the home by prohibiting the carrying, on one's person or in one's vehicle, a firearm that was uncased, loaded, and immediately accessible. Aguilar , 2013 IL 112116, ¶ 1, 377 Ill.Dec. 405, 2 N.E.3d 321. The defendant here argued that, like the restriction in Aguilar , section 24-1.6(a)(1), (a)(3)(E) was an unreasonable restriction on the exercise of a constitutional right, i.e. , the right to bear arms, because it inflated the constitutionally protected right into a felony offense when combined with an "unrelated, petty offense."

¶ 5 On September 4, 2015, the trial court denied the defendant's motion to dismiss following a hearing. The case then proceeded to a stipulated bench trial, which was held on September 15, 2015. At the bench trial, the parties stipulated that the defendant was pulled over for speeding by Jeffrey Jensen, a detective with the Belleville Police Department, and was found in possession of a small baggie containing 0.2 grams of cannabis and a loaded handgun. The court subsequently found the defendant guilty of the Class 4 felony of AUUW because he possessed a loaded handgun at a time when he also possessed cannabis, a controlled substance.

¶ 6 On September 15, 2015, the defendant filed a posttrial motion, again challenging the constitutionality of section 24-1.6(a)(1), (a)(3)(E). Thereafter, the trial court denied his motion and sentenced him to 30 months of probation under the election-of-treatment provisions of section 40-10 of the Alcoholism and Other Drug Abuse and Dependency Act ( 20 ILCS 301/40-10 (West 2014) ), which required him to attend an intensive outpatient treatment program or be subject to the entry of a conviction. The court added a "special condition of probation" that he attend eight Wednesday morning sessions of drug court as an observer. The court also imposed a $250 DNA fee and a $25 monthly probation fee. The circuit court then included a number of additional assessments in the fines and fees sheet. On November 16, 2015, the defendant appealed, arguing that section 24-1.6(a)(1), (a)(3)(E) is facially unconstitutional as it violates the second amendment and that the statute is unconstitutional as applied to him.

¶ 7 In July 2016, after the defendant filed his notice of appeal, the General Assembly enacted Public Act 99-697 (eff. July 29, 2016) (amending 720 ILCS 550/4(a) ), which changed the classification of the offense from a Class C misdemeanor to a civil law violation. Also during the pendency of this appeal, the General Assembly enacted Public Act 101-27 (eff. June 25, 2019) (adding 410 ILCS 705/10-5 ), which legalized the possession of marijuana as follows, in pertinent part:

"(a) Beginning January 1, 2020, notwithstanding any other provision of law, and except as otherwise provided in this Act, the following acts are not a violation of this Act and shall not be a criminal or civil offense under State law or the ordinances of any unit of local government of this State or be a basis for seizure or forfeiture of assets under State law for persons other than natural individuals under 21 years of age:

(1) possession, consumption, use, purchase, obtaining, or transporting an amount of cannabis for personal use that does not exceed the possession limit^[2] under Section 10-10 or otherwise in accordance with the requirements of this Act[.]"

Section 4 of the Cannabis Control Act was also amended to state as follows:

"Except as otherwise provided in the Cannabis Regulation and Tax Act and the Industrial Hemp Act, it is unlawful for any person knowingly to possess cannabis.

Any person who violates this Section with respect to:

(a) not more than 10 grams of any substance containing cannabis is guilty of a civil law violation * * *." Pub. Act 101-593 (eff. Dec. 4, 2019) (amending 720 ILCS 550/4(a) ).

¶ 8 After the parties filed their appellate briefs, this court, on its own motion, ordered the parties to prepare supplemental briefs addressing the impact, if any, the passage of the Cannabis Regulation and Tax Act (Pub. Act 101-27 (eff. June 25, 2019) (adding 410 ILCS 705/1-1 et seq. )) had on the arguments of the parties or the issues on appeal. The parties complied and have submitted the requested supplemental briefs.

¶ 9 II. ANALYSIS

¶ 10 The defendant first argues that section 24-1.6(a)(1), (a)(3)(E) is facially unconstitutional as it violates the second amendment and that the statute is unconstitutional as applied to him. Statutes are presumed constitutional. People v. Lake , 2015 IL App (4th) 130072, ¶ 48, 390 Ill.Dec. 383, 28 N.E.3d 1036. A party challenging the constitutionality of a statute carries a heavy burden of successfully rebutting this strong presumption. Id. Courts have a duty to construe the statute in a manner that upholds its constitutionality whenever reasonably possible, resolving any doubts in favor of the statute's validity. Id. ; Aguilar , 2013 IL 112116, ¶ 15, 377 Ill.Dec. 405, 2 N.E.3d 321. Moreover, it is a long-standing principle that a statute is facially unconstitutional only where no set of circumstances exists for which it would be valid. People v. Burns , 2015 IL 117387, ¶ 26, 413 Ill.Dec. 810, 79 N.E.3d 159. We review de novo a challenge to the constitutionality of a statute. Aguilar , 2013 IL 112116, ¶ 15, 377 Ill.Dec. 405, 2 N.E.3d 321.

¶ 11 A. Relevant AUUW Statute

¶ 12 Section 24-1.6 of the AUUW statute in effect at the time of the defendant's January 2015 offense provided, in pertinent part, as follows:

"(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:

(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm; or

(2) Carries or possesses on or about his or her person, upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town, except when an invitee thereon or therein, for the purpose of the display of such weapon or the lawful commerce in weapons, or except when on his or her own land or in his or her own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm; and

(3) One of the following factors is present:

* * *

(E) the person possessing the weapon was engaged in a misdemeanor violation of the Cannabis Control Act, in a misdemeanor violation of the Illinois Controlled Substances Act, or in a misdemeanor violation of the

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