People v. Cavette

2018 IL App (4th) 150910

118 N.E.3d 699

427 Ill.Dec. 498

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

v.Justin E. CAVETTE, Defendant-Appellant.

NO. 4-15-0910

Appellate Court of Illinois, Fourth District.

Filed October 23, 2018

James E. Chadd, Patricia Mysza, and Gavin J. Dow, of State Appellate Defender’s Office, of Chicago, for appellant.

Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, David J. Robinson, and David E. Mannchen, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

JUSTICE KNECHT delivered the judgment of the court, with opinion.

¶ 1 In October 2015, a jury found defendant, Justin E. Cavette, guilty of armed habitual criminal ( 720 ILCS 5/24-1.7(a)(1) (West 2014) ) and unlawful possession of cannabis ( 720 ILCS 550/4(c) (West 2014) ). Defendant appealed his convictions and sentence.

¶ 2 In June 2017, while defendant's appeal was pending, defendant's 2011 aggravated unlawful use of a weapon (AUUW) ( 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010) ) conviction, a predicate offense to the armed habitual criminal conviction, was vacated. The statute by which defendant had been convicted was declared by the Illinois Supreme Court to be facially unconstitutional. On appeal, defendant argues, in part, his armed habitual criminal conviction must be reversed as his AUUW conviction, a predicate offense, is void ab initio . Defendant further argues the trial court improperly instructed the jury regarding evidence of the predicate offenses, undermining the guilty verdict on both charges. We agree and reverse and remand for a new trial.

¶ 3 I. BACKGROUND

¶ 4 In May 2015, defendant was arrested and charged with armed habitual criminal and unlawful possession of cannabis after he was found in the same apartment as two bags of marijuana hidden in a bathroom trashcan and a handgun tucked into a full laundry basket. Specifically, regarding the armed habitual criminal charge, the State alleged the following:

"[D]efendant knowingly possessed a firearm, namely a High Point .380 handgun, after having previously been convicted of the offense of Unlawful Use of Weapon by a Felon, a class 3 felony, in Champaign County cause number 08-CF-1750 and of the offense of Aggravated Unlawful Use of a Weapon, a class 2 felony, in Champaign County cause number 11-CF-1477 * * * [ ( 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010) ) ]."

¶ 5 At the October 2015 jury trial, testimony established defendant was at his sister's home at 1517 Hunter Street in Urbana, Illinois, attending a barbecue with friends and family. He stayed at the barbecue most of the day, drinking, eating, and wrestling with his uncle. Two family members testified to having physical contact with defendant. Defendant's uncle wrestled with defendant, having "him up and folding him all type of ways all day long." Defendant's sister welcomed defendant to the barbecue with a big hug. Neither felt nor observed a gun on defendant.

¶ 6 According to testimony, defendant told his sister around 5 p.m. that he was leaving to smoke marijuana with Richard Lane, who lived in an apartment at 1507 Hunter Street. The sister observed defendant with a small Baggie of marijuana. Defendant was also carrying a bottle of vodka. Robin Arbiter, who lived in a neighboring apartment, watched through her window as defendant walked through the parking lot. She was approximately 30 feet from defendant. Defendant had a bottle in one hand. In the other hand, defendant was "sliding [a gun] in and out of his pocket partially and almost to the top of his pocket." Arbiter stated she could clearly see it was a silver and black gun. She called the police.

¶ 7 Lane testified he saw defendant pull up in a car and step out. Lane invited defendant into his apartment. They talked for a couple minutes in the living room. The police arrived. Lane, looking out for defendant, told police defendant had left. After the police said they wanted to talk with defendant, Lane reported he was in the bathroom, which is where officers found him. The officers allowed defendant to finish using the bathroom before they escorted him out.

¶ 8 With Lane's permission, police searched the apartment. An officer found a large Baggie and a small Baggie of marijuana hidden in the trash can, below the garbage bag. These items were sent to the Illinois State Police crime laboratory for testing and fingerprinting. No fingerprints were found. Officers searched Lane's bedroom and bedroom closet. Inside the closet was a laundry basket. An officer removed a shirt sitting on top and found, pushed into the side of the basket, a gun. The gun and marijuana were sent to the crime lab. No forensic physical evidence linked the gun or marijuana to defendant.

¶ 9 Lane initially told the police he did not smoke marijuana but admitted at trial to using it "at times." Lane denied the marijuana or gun were his. Lane stated he had not looked inside the trash can for approximately one month or in the laundry basket for a week or two before defendant's arrest. Lane testified he occasionally had guests at his apartment but "not too much." According to Lane, defendant was the only individual who visited him that day. Defendant's sister testified she observed others at Lane's earlier the same day.

¶ 10 The parties stipulated defendant "was previously convicted of two prior qualifying offenses under the armed habitual criminal statute." After asking both parties if they agreed to the stipulation, the trial court advised the jury of the following: "Ladies and gentlemen, you should consider this along with all of the other evidence in this case."

¶ 11 Approximately 2½ hours after deliberations began, the jury sent a note asking, "when did [Arbiter] first describe the [weapon] details?" Twenty minutes later, the jury sent a note regarding the cannabis charge: "If the defendant intended to smoke cannabis but did not have knowledge of the bags of cannabis found, was he in possession of those bags of cannabis?" The jury, almost four hours into deliberations, informed the trial court they were deadlocked: "We are unable to come to an agreement on either charge. Please advise." The parties agreed the jury should be given the deadlock instruction. The jury asked to hear the testimony of two of the witnesses, Arbiter and a police officer. Almost eight hours after deliberations began, the jury reached a verdict.

¶ 12 Defendant was found guilty of both armed habitual criminal and possession of cannabis. In November 2015, he was sentenced to concurrent terms of 3 years' imprisonment for possession of cannabis and 16 years for armed habitual criminal. Defendant appealed.

¶ 13 While defendant's appeal was pending, the Illinois Supreme Court, in December 2015, clarified it found facially unconstitutional the entire AUUW offense contained in section 24-1.6(a)(1), (a)(3)(A) of Criminal Code of 1961 ( 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008) ). See People v. Burns , 2015 IL 117387, ¶¶ 22-23, 413 Ill.Dec. 810, 79 N.E.3d 159. Section 24-1.6(a)(1), (a)(3)(A) is the section by which defendant was convicted in 2011. In June 2017, the circuit court of Champaign County vacated defendant's 2011 AUUW conviction.

¶ 14 II. ANALYSIS

¶ 15 A. A Prior Conviction Based on a Statute That Has Been Subsequently Declared Facially Unconstitutional May Not Serve as Proof of a Predicate Felony Conviction in Prosecuting the Offense of Armed Habitual Criminal.

¶ 16 This issue presents a question of law, which we review de novo . People v. Smith , 191 Ill. 2d 408, 411, 247 Ill.Dec. 458, 732 N.E.2d 513, 514 (2000).

¶ 17 The offense of armed habitual criminal appears in section 24-1.7(a) of the Criminal Code of 2012 ( 720 ILCS 5/24-1.7(a) (West 2014) ). To be convicted of armed habitual criminal, a defendant must have at least two convictions of specified offenses:

"(a) A person commits the offense of being an armed habitual criminal if he or she receives, sells, possesses, or transfers any firearm after having been convicted a total of 2 or more times of any combination of the following offenses:

* * *

(2) unlawful use of a weapon by a felon [or] aggravated unlawful use of a weapon * * *." Id. § 24-1.7(a)(2).

Armed habitual criminal is a Class X felony. Id. § 24-1.7(b).

¶ 18 One of the predicate offenses for defendant's armed habitual criminal conviction—defendant's 2011 AUUW conviction—is facially unconstitutional and invalid. The validity of the AUUW statute was finally determined over the course of two Illinois Supreme Court decisions:

People v. Aguilar , 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321, and Burns , 2015 IL 117387, 413 Ill.Dec. 810, 79 N.E.3d 159. In Aguilar , the court held specific subsections of section 24-1.6(a) of the AUUW statute, which as a whole banned individuals from carrying outside their home any firearm that was uncased, loaded, and immediately accessible, to be facially unconstitutional pursuant to the second amendment. Aguilar , 2013 IL 112116, ¶ 22, 377 Ill.Dec. 405, 2 N.E.3d 321. In Burns , the court clarified the Aguilar holding extends to the entirety of the AUUW offense in section 24-1.6(a)(1), (a)(3)(A) ( Burns , 2015 IL 117387, ¶ 22, 413 Ill.Dec. 810, 79 N.E.3d 159 ), the section on which defendant's AUUW conviction is based.

¶ 19 Defendant argues, because his AUUW conviction is based on a facially unconstitutional statute, the void ab initio doctrine applies and his armed habitual criminal conviction—based on an invalid conviction—must accordingly be reversed.

¶ 20 According to the ab initio doctrine, when a statute is found facially unconstitutional—unconstitutional in all its applications (see In re Rodney H. , 223 Ill. 2d 510, 521, 308 Ill.Dec. 292, 861 N.E.2d 623, 630 (2006) )—it is void " ‘from the beginning.’ " Perlstein v. Wolk , 218 Ill. 2d 448, 455, 300 Ill.Dec. 480, 844 N.E.2d 923, 926 (2006) (quoting Black's Law Dictionary 1604 (8th ed. 2004) ). This means the statute was constitutionally infirm from the time of its enactmen...