People v. Bell

2014 IL App (1st) 120314

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDRE BELL, Defendant-Appellant.

No. 1-12-0314

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT THIRD DIVISION

JUNE 11, 2014

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the

Circuit Court of

Cook County.

No. 09 CR 9979

Honorable

Thomas M. Davy,

Judge Presiding.

JUSTICE PUCINSKI delivered the judgment of the court.

Justices Fitzgerald Smith and Lavin concurred in the judgment.

ORDER

¶ 1 Held: Certain portions of the aggravated unlawful use of a weapon statute have not been held unconstitutional and defendant's conviction thereunder is valid.

¶ 2 Following a bench trial, defendant Andre Bell was convicted of aggravated unlawful use of a weapon (AUUW) and sentenced to two years' probation. On appeal, defendant contends that the AUUW statute (720 ILCS 5/24-1.6 (West 2008)) "under which he was convicted unconstitutionally infringes onan individual's right to bear arms for his own defense and [his] convictions must be reversed." U.S. Const. amend. II. Alternatively, he contends that we should vacate two of his three convictions for AUUW as redundant because all three convictions are based on the same physical act of possessing a firearm. For the reasons stated below, we reverse in part, affirm in part, and remand for resentencing.

¶ 3 Defendant was charged with a controlled substance offense and six counts of AUUW. He was found guilty of three of the AUUW charges which are the subject of this appeal. They are Count 2: "in that he knowingly carried on or about his person a firearm, at a time when he was not on his own land or in his own abode or fixed place of business and the firearm possessed was uncased, loaded and immediately accessible at the time of the offense in violation of Chapter 720 Act 5 Section 24-1.6(a) (1)/ (3)(a)(sic.) of the Illinois Compiled Statutes 1992 as amended" and, Count 4 "in that he knowingly carried in any vehicle a firearm at a time when he was not on his own land or in his own abode or fixed place of business and the firearm possessed was uncased, loaded and immediately accessible at the time of the offense in violation of Chapter 720 Act 5 Section 24-1.6(a) (1)/ (3)(a)(sic.) of the Illinois Compiled Statutes 1992 as amended" and, Count 6, "he knowingly possessed on or about his person a firearm, upon a public street, to wit: South Brennan, within the corporate limits of a city, to wit: the City of Chicago, at a time when he was not on his own land or in his own abode or fixed place of business and when he was not an invitee thereon for the purpose of display of such weapon or lawful commerce in weapons, and the firearm possessed was uncased, loaded and immediately accessible at the time of the offense, in violation of Chapter 720 Act 5 Section 24-1.6(a) (2)/ (3) (a)(sic.) of the Illinois Compiled Statutes 1992 as amended."

¶ 4 At trial, the evidence was that on May 6, 2009, when police stopped defendant's vehicle for a traffic offense, three officers saw him exit his car and put a gun into his waistband. Defendant fled on foot, ran into a random house without the owner's permission and a pursuing officer testified that while he was chasing the defendant in the house he saw defendant discard the gun and a "clear object" on the thirdfloor. A gun and a bag containing cannabis and narcotics were later found in the same area. The gun was identified as a Taurus arms Model PT 145 Pro, two tone semiautomatic handgun. It had in it a 10 magazine clip with 9 live rounds. On this evidence, the court found defendant not guilty of the controlled substance charge and granted the defendant's motion for a directed finding on three counts of AUUW alleging that he did not have a valid FOID because, inexplicably, there was no evidence presented at trial concerning whether he had a valid FOID (Count 3, 720 ILCS 5/24-1.6(a)(1)/ (3)(c)(sic.) [carrying loaded, uncased and accessible firearm on his person without a valid FOID]; Count 5, 720 ILCS 5/24-1.6(a)(1)/ (3)(c)(sic.) [carried ***in any vehicle without a valid FOID card], and Count 7, 720 ILCS 5/24-1.6(a)(2) /(3)(c)(sic.) [possessed on or about his person upon a public street ***without a valid VOID]. (West 2008)). Although there was evidence at trial that he ran into another person's home without that person's permission, he was not charged by information with criminal trespass to residence [720 ILCS 5.0/19-4-A-1] although that offense is on the arrest report.

¶5 The court found him guilty of the three remaining gun counts. That is, that he knowingly carried a loaded, uncased and immediately accessible firearm while not on his land or in his abode, legal dwelling or fixed place of business (720 ILCS 5/24-1.6(a)(1)/ (3)(A) (West 2008)); that he was carrying a firearm in a vehicle (720 ILCS 5/24-1.6(a)(1)/ (3)(A) (West 2008); and that he was carrying a firearm on a public street (720 ILCS 5/24-1.6(a)(2) (West 2008).

¶6 It is the conviction for carrying a firearm on a public street, 720 ILCS 5/24-1.6(a)(2) that is the main problem here.

¶ 7 The pre-sentencing investigation - accepted by the parties without correction - showed that defendant has a prior felony conviction for a controlled substance offense, for which he received and satisfactorily completed two years' probation. However, the court noted that because of the satisfactory completion of "410 probation *** it would not even be a conviction." See 720 ILCS 570/410(f), (g) (West2008) (satisfactory completion of first-offender probation for minor controlled substance offenses dismisses the case so that it "is not a conviction *** for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.") The court stated that it was sentencing defendant on a Class 4 felony. Following arguments in aggravation and mitigation, the court sentenced him to two years of probation. The written orders imposing probation and assessing fines and fees refer to defendant's offense as "Agg. UUW" without further specificity as to the counts or statutes on which he was found guilty. We note that this sort of incomplete documentation is inaccurate and is problematic in some cases. Here, however, the trial court's oral pronouncement made it clear that he was found guilty of counts 2, 4 and 6. This appeal timely followed.

¶ 8 On appeal, defendant primarily contends that the AUUW statute infringes upon his constitutional right to keep and bear arms.

¶ 9 At the time of defendant's offense, the UUW statute prohibited a person from carrying or concealing on or about his person, or in any vehicle, a firearm except when on his land or in his abode or fixed place of business. 720 ILCS 5/24-1(a)(4) (West 2008).

¶10 Also at that time, the AUUW statute prohibited the same with any of various additional factors.

"720/5.24-1.6 Aggravated unlawful use of a weapon

(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, stun gun or taser or other firearm; and

(3) one of the following factors is present:

(A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense." 720 ILCS 5/24-1.6(a)(1), (2), and (3)(A) (West 2008).

¶ 11 The United States Court of Appeals for the Seventh Circuit recently found the UUW and AUUW statutes unconstitutional. Moore v. Madigan, 702 F. 3d 933 (7th Cir. 2012). The United States Supreme Court has found that the Second Amendment creates a personal right, binding upon the States through the Fourteenth Amendment (U.S. Const., amend. XIV, § 1), "to keep and bear arms for lawful purposes, most notably for self-defense within the home." McDonald v. City of Chicago, 561 U.S. --, 130 S. Ct. 3020, 3044 (2010), citing District of Columbia v. Heller, 554 U.S. 570 (2008). The Seventh Circuit held in Moore v. Madigan (7^th Cir.2012) that the "interest in self protection is as great outside as inside the home" and found that Illinois' UUW and AUUW statutes create a "uniquely sweeping ban," and remanded the case to the federal district court for declarations of unconstitutionality and injunctive relief. Moore v. Madigan, 702 F. 3d at 941.¹ The Seventh Circuit stayed its mandate "to allow the Illinois legislature tocraft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public." Id. The General Assembly has since amended the UUW and AUUW statutes pursuant to Moore v. Madigan (7^th Circ. 2012) Pub. Act 98-0063 (eff. July 9, 2013). We note that the language of the Federal Appeals Court in Moore v. Madigan (Id.) was sweeping, "The Supreme Court has decided that the [2^nd] amendment confers a right to bear arms for self-defense, which is as important outside the home as inside***The Supreme Court's interpretation of the Second Amendment therefore compels us to reverse the decisions of the two cases before us and remand them to their...