People v. Lewis

1

2024 IL App (1st) 230568-U

THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. MICHAEL LEWIS, Petitioner-Appellant.

No. 1-23-0568

Court of Appeals of Illinois, First District, Fifth Division

June 7, 2024

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. 10 CR 20217 Honorable Tyria Walton, Judge, Presiding.

JUSTICE NAVARRO delivered the judgment of the court. Justices Mikva and Lyle concurred in the judgment.

ORDER

NAVARRO, JUSTICE.

¶ 1 Held: The circuit court's order denying defendant's section 2-1401 petition is affirmed over defendant's contention that the subsection of the aggravated unlawful use of a weapon statute under which he was convicted violates the second amendment of the United States Constitution under the framework set forth by the United States Supreme Court in New York State Rifle &Pistol Ass 'n, Inc., v. Bruen, 597 U.S. 1 (2022).

¶ 2 In 2010, petitioner, Michael Lewis, pled guilty to aggravated unlawful use of a weapon (AUUW) based on possessing a firearm outside the home while under the age of 21 and not engaged in lawful wildlife activities (720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2010)) and was sentenced to boot camp. In 2012, Lewis violated the terms of boot camp and was resentenced to four years in prison. In 2023, Lewis filed a petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2022)), arguing that the subsection of the AUUW statute under which he was convicted was unconstitutional. The circuit court denied his petition, and Lewis now appeals that order. For the following reasons, we affirm.

¶ 3 I. BACKGROUND

¶ 4 In December 2010, Lewis entered into a negotiated plea agreement whereby in exchange for a sentence of boot camp and payment of fees, he pled guilty to one count of AUUW, in that he possessed a firearm outside of his home while he was under the age of 21 and was not engaged in lawful activities under the Wildlife Code (720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2010)). He was eligible for a Class 2 sentence based on a prior felony conviction (id. § 24-1.6(d)) for aggravated driving under the influence. In March 2012, Lewis violated the terms of his boot camp sentence, so the court held a resentencing hearing. At the hearing, the State told the court that Lewis had four prior felony convictions as well as misdemeanor convictions for domestic battery, "driving on a suspended", resisting an officer, and criminal damage. The court resentenced Lewis to four years in prison.

¶ 5 In January 2023, Lewis filed a pro se petition for relief from judgment under section 2-1401 of the Code, in which he argued that the subsection of the AUUW statute under which he was convicted was unconstitutional and violated the second amendment of the United States Constitution (U.S. Const., amend II) under People v. Aguilar, 2013 IL 112116, as well as District of Columbia v. Heller, 554 U.S. 570 (2008), McDonald v. City of Chicago, 561 U.S. 742 (2010), and Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012).

¶ 6 In February 2023, the circuit court denied Lewis' petition. This appeal follows.

¶ 7 II. ANALYSIS

¶ 8 Lewis contends that his conviction under subsection 24-1.6(a)(1), (a)(3)(I) of the AUUW statute is facially unconstitutional and void ab initio. He argues that this subsection in the AUUW statute that bans persons under the age of 21 from possessing handguns, unless the person is engaged in specified wildlife activities, does not comply with the test set forth by the United States Supreme Court in New York State Rifle &Pistol Ass'n, Inc., v Bruen, 597 U.S. 1 (2022), because the regulation is inconsistent with the nation's historical tradition of firearm regulation. He argues therefore that under Bruen, subsection 24-1.6(a)(1), (a)(3)(I) of the AUUW statute violates the second amendment of the United States Constitution (U.S. Const., amend II).

¶ 9 Generally, under section 2-1401 of the Code, a party has two years to file a petition to vacate a judgment that is older than 30 days. 735 ILCS 5/2-1401(c) (West 2022). However, when a defendant raises a challenge to a final judgment based on a facially unconstitutional statute, as here, the defendant may do so at any time. People v. Thompson, 2015 IL 118151, ¶ 32. Further, "a motion to vacate a void judgment is properly raised in a petition for relief from judgment under section 2-1401" (People v. Ligon, 2016 IL 118023, ¶ 9), which authorizes a circuit court to "vacate or modify a final order or judgment older than 30 days." People v. Abdullah, 2019 IL 123492, ¶ 13. We review the constitutionality of a statute de novo. People v. Baker, 2023 IL App (1st) 220328, ¶ 21. We also review a circuit court's dismissal of a section 2-1401 petition de novo. People v. Moran, 2012 IL App (1st) 111165, ¶ 12. Under this standard of review, we "may affirm on any basis found in the record." People v. Jackson, 2021 IL App (1st) 190263, ¶ 38.

¶ 10 Initially, we note that the State argues Lewis forfeited his challenge based on Bruen because he entered into a knowing and voluntary guilty plea. Our supreme court has concluded that "a guilty plea does not preclude a defendant from arguing on appeal that he was sentenced under a statute that was facially unconstitutional and void ab initio." People v. Guevara, 216 Ill.2d 533, 542-43 (2005). Further, our supreme court has explained that "[defendants convicted under a facially unconstitutional statute may challenge the conviction at any time, even after a guilty plea, because the state or government had no power to impose the conviction to begin with." In re N.G., 2018 IL 121939, ¶ 49. Accordingly, Lewis did not forfeit his argument that, under Bruen, the subsection in the AUUW statute under which he was convicted and sentenced was facially unconstitutional.

¶ 11 We now address Lewis' argument that under Bruen, the subsection of the AUUW statute under which he was convicted is facially unconstitutional in violation of the second amendment of the United States Constitution (U.S. Const., amend II). Lewis contends that under the framework for analyzing firearm regulations set forth in Bruen, the AUUW statute that bans persons under 21 from possessing handguns outside the home unless that person is engaged in specified wildlife activities is unconstitutional. He maintains that Bruen calls into question the Illinois Supreme Court's decision in People v. Mosley, 2015 IL 115872, ¶¶ 37-38, which concluded that prohibiting persons under 21 from possessing handguns outside the home unless they are engaged in lawful hunting activities did not violate the second amendment rights of 18- to 20-year-old persons.

¶ 12 A judgment that is based on a statute that is facially unconstitutional is void ab initio. (Abdullah, 2019 IL 123492, ¶ 13), which "means that the statute was constitutionally infirm from the moment of its enactment and, therefore, unenforceable." Thompson, 2015 IL 118151, ¶ 32. We presume a statute is constitutional and must construe it "in a manner that upholds its validity and constitutionality if reasonably possible." People v. Taylor, 2019 IL App (1st) 160173, ¶ 26. "To rebut the presumption, the challenging party must clearly establish a constitutional violation." People v. Jenk, 2016 IL App (1st) 143177, ¶ 21. "A facial challenge to the constitutionality of a statute is the most difficult challenge to mount." People v. Davis, 2014 IL 115595, ¶ 25. To succeed on a facial challenge, a defendant must show that the statute is unconstitutional "under any set of facts." People v. Hilliard, 2023 IL 128186, ¶ 21.

¶ 13 The AUUW statute under which Lewis was convicted provides, in 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; ***

*** and

(3) One of the following factors is present:

***

(I) the person possessing the weapon was under 21 years of age and in possession of a handgun as defined in Section 24-3, unless the person under 21 is engaged in lawful activities under the Wildlife Code or described in subsection 24-2(b)(1), (b)(3), or 24-2(f)." 720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2010).

Accordingly, the subsection in the AUUW statute under which Lewis was convicted penalizes persons under the age of 21 from possessing a handgun outside the home unless the person is engaged in certain lawful wildlife activities. Id.; see Interest of C.P., 2023 IL App (1st) 231033-U, ¶ 4, pet. for leave to appeal pending, No. 130294 (filed Jan. 30, 2024)^[1].

¶ 14 The second amendment of 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. Through the fourteenth amendment of the United States Constitution (U.S. Const., amend XIV), this second amendment right applies to the States. McDonald, 561 U.S. at 750. In McDonald and Heller, 554 U.S. 570, the United States Supreme Court held that the second and fourteenth amendments "protect an individual right to keep and bear arms for self-defense." Bruen, 597 U.S. at 17. In Bruen, the United States Supreme Court clarified that, consistent with Heller and McDonald,...