People v. Daniels

56 N.E.3d 450

404 Ill.Dec. 466

The PEOPLE of the State of Illinois, Respondent–Appellee

v.Ronald DANIELS, Petitioner–Appellant.

No. 1–14–2130.

Appellate Court of Illinois, First District, First Division.

June 20, 2016.

Rehearing Denied July 20, 2016.

Michael J. Pelletier, Patricia Mysza, and Brian W. Carroll, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan Spellberg, John Nowak, and Sari London, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice CUNNINGHAM delivered the judgment of the court, with opinion.

¶ 1 Defendant Ronald Daniels was arrested on a city bus after Chicago police officers investigated a call reporting that an individual on that bus was carrying a weapon. Defendant was charged with six counts of aggravated unlawful use of a weapon (AUUW) and two counts of unlawful use of a weapon by a felon (UUWF). Defendant pled guilty to one charge of AUUW (720 ILCS 5/24–1.6(a)(1), (a)(3)(B) (West 2004)) in exchange for a six-year prison sentence, and the State nolle prosequied the remaining seven counts. After he completed his sentence, defendant filed a petition to vacate his conviction, which was denied. On appeal, defendant contends the trial court erred in denying his petition because section 24–1.6(a)(1), (a)(3)(B) of the Criminal Code of 1961 (Code) (720 ILCS 5/24–1.6(a)(1), (a)(3)(B) (West 2004)) was found facially unconstitutional in People v. Aguilar, 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321. The State agrees with defendant's position on that issue, and asks this court to remand this cause to the trial court to reinstate six of the seven nolle prosequied charges against defendant. For the following reasons, we vacate defendant's conviction and deny the State's request.

¶ 2 BACKGROUND

¶ 3 Defendant was charged with six counts of AUUW (pursuant to various combinations of provisions of the AUUW statute, 720 ILCS 5/24–1.6 (West 2004) ) and two counts of UUWF (720 ILCS 5/24–1.1(a) (West 2004)). On March 13, 2006, defendant pled guilty to count I: AUUW pursuant to section 24–1.6(a)(1), (a)(3)(B) of the Code (720 ILCS 5/24–1.6(a)(1), (a)(3)(B) (West 2004)). At that hearing, the parties stipulated that, had this case gone to trial, evidence would have been presented establishing the following facts: at approximately 1 a.m. on November 6, 2005, Chicago police officers received a call informing them that a passenger on a southbound bus at 3258 South State Street was carrying a gun. A description of the passenger was provided to the police. The officers traveled to that location, curbed the bus, and boarded it. Defendant, who matched the description which had been provided to the officers, was sitting in the middle of the bus. The officers conducted a pat down of defendant and recovered an unloaded .38–caliber blue steel revolver and four live .38–caliber rounds in the weapon's case. Additionally, prior to these events, defendant had been convicted of the offense of delivery of a controlled substance.

¶ 4 Based on the foregoing, the trial court found a factual basis for defendant's guilty plea as to count I and entered judgment against him pursuant to subsection (a)(3)(B). The court also noted that because of defendant's prior felony conviction, this offense was a Class 2 felony. For the purposes of sentencing, the State provided evidence of defendant's two prior convictions for offenses classified as Class 2 felonies or greater, and defendant was sentenced as a Class X offender to six years' imprisonment. The State nolle prosequied the remaining seven counts against defendant.

¶ 5 After completing his sentence, on January 2, 2014, defendant filed a petition in the circuit court of Cook County pursuant to section 2–1401 of the Code of Civil Procedure (735 ILCS 5/2–1401 (West 2012) ) seeking to vacate his conviction.¹

In his petition, defendant claimed that under People v. Aguilar, 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321, section 24–1.6(a)(1), (a)(3)(A) of the AUUW statute (720 ILCS 5/ 24–1.6(a)(1), (a)(3)(A) (West 2008)) is unconstitutional and void ab initio, and therefore his conviction must be vacated. In response to defendant's petition, the State argued that Aguilar was limited in scope and did not hold void the AUUW provisions which prohibit the carrying of firearms by individuals previously convicted of felony offenses. In support, the State relied on People v. Burns, 2013 IL App (1st) 120929, 378 Ill.Dec. 552, 4 N.E.3d 151, rev'd, 2015 IL 117387, ––– Ill.Dec. ––––, –––N.E.3d ––– –, in which the appellate court found only the Class 4 version of the AUUW offense to be unconstitutional under Aguilar, while the Class 2 version of the offense remained enforceable. Burns, 2013 IL App (1st) 120929, ¶ 24, 378 Ill.Dec. 552, 4 N.E.3d 151. On March 11, 2014, defendant's petition to vacate his conviction was denied and the trial court subsequently denied his motion to reconsider its denial. This timely appeal followed, accordingly, this court has jurisdiction to resolve this matter.

¶ 6 ANALYSIS

¶ 7 The sole issue defendant raises on appeal is whether his conviction pursuant to subsection (a)(3)(B) (720 ILCS 5/24–1.6(a)(1), (a)(3)(B) (West 2004)) must be vacated because the statute is unconstitutional and void ab initio. Defendant argues that subsection (a)(3)(B), like subsection (a)(3)(A), which was found facially unconstitutional in People v. Aguilar, 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321, creates a “blanket ban on possessing ready-to-use firearms outside the home” and is likewise unconstitutional because it violates the right to keep and bear arms, as guaranteed by the second amendment of the United States Constitution (U.S. Const., amend. II ). A facially unconstitutional statute is void ab initio, which means that it is unenforceable and inoperative as though it had never been passed. People v. Blair, 2013 IL 114122, ¶ 28, 369 Ill.Dec. 126, 986 N.E.2d 75. Defendant argues that his conviction under a facially unconstitutional statute is invalid and must be vacated. See People v. Campbell, 2013 IL App (4th) 120635, ¶¶ 14–16, 377 Ill.Dec. 968, 2 N.E.3d 1249.

¶ 8 Shortly after defendant filed his opening brief on appeal, our supreme court filed People v. Burns, 2015 IL 117387, ––– Ill.Dec. ––––, –––N.E.3d ––– –, in which it held that section 24–1.6(d) of the Code (720 ILCS 5/24–1.6(d) (West 2008)), the sentencing provision of the AUUW statute, did not create “separate and distinct offenses” depending on whether the charge is classified as a Class 4 felony or a Class 2 felony. Burns, 2015 IL 117387, ¶¶ 22–24, ––– Ill.Dec. ––––, ––– N.E.3d ––– –. The court stated that it had “improperly placed limiting language” on its holding in Aguilar, and clarified that subsection (a)(3)(A) is facially unconstitutional, without limitation. Id. ¶ 25. In accordance with our supreme court's decision in Burns, the State concedes that defendant's conviction pursuant to subsection (a)(3)(B) must be vacated.

¶ 9 Although Aguilar finds only subsection (a)(3)(A) to be facially unconstitutional, the parties are in agreement that the underlying rationale extends to defendant's conviction under subsection (a)(3)(B). Subsection (a)(3)(A) prohibits the possession of an uncased firearm that is “loaded and immediately accessible,” whereas subsection (a)(3)(B) prohibits the possession of an uncased firearm that is “unloaded and the ammunition for the weapon [is] immediately accessible.” 720 ILCS 5/24–1.6(a)(1), (a)(3)(A)-(B) (West 2004). A conclusion that subsection (a)(3)(B) is valid would illogically prohibit the possession of an unloaded gun in the same situation where, under Aguilar, the possession of a loaded gun is constitutionally protected. We believe the second amendment's protection of an individual's right to carry a loaded firearm naturally extends to protect an individual's right to carry an unloaded firearm with immediately accessible ammunition. Accordingly, we find subsection (a)(3)(B) constitutionally invalid based on Aguilar.

¶ 10 A conviction pursuant to a facially unconstitutional statute must be vacated. See People v. Henderson, 2013 IL App (1st) 113294, ¶ 11, 382 Ill.Dec. 240, 12 N.E.3d 519 (vacating the defendant's conviction based on a statutory section invalidated under Aguilar ). Accordingly, defendant's conviction pursuant to subsection (a)(3)(B) is vacated.

¶ 11 As defendant's sole conviction is now vacated, the State asks this court to “remand this case to the circuit court to permit the [State] to reinstate the nolle prosequied counts that are still constitutional and therefore valid.” The State argues that because it nolle prosequied those charges pursuant to the plea agreement between defendant and the State, principles of contract law require that the State be afforded the opportunity to reinstate those charges due to the subsequent vacatur of defendant's conviction. It is the State's position that reinstating the nolle prosequied charges would not infringe upon defendant's constitutional rights against double jeopardy and there are no other constitutional or statutory limitations which would preclude the prosecution of defendant on those charges.

¶ 12 A nolle prosequi is the “formal entry of record by the prosecuting attorney by which he declares that he is unwilling to prosecute a case” and serves to terminate the charge against the defendant. People v. DeBlieck, 181 Ill.App.3d 600, 603, 130 Ill.Dec. 321, 537 N.E.2d 388 (1989). It operates “like a nonsuit or discontinuance in a civil suit, and leaves the matter in the same condition in which it was before the commencement of the prosecution.” People v. Watson, 394 Ill. 177, 179, 68 N.E.2d 265 (1946). As it is not a final disposition of a case, a nolle prosequi will not bar another prosecution for the same offense. Id. Subject to relevant statutory or constitutional defenses, the State may reprosecute the defendant on a previously nolle...