People v. Mosley

33 N.E.3d 137

The PEOPLE of the State of Illinois, Appellant

v.Donta MOSLEY, Appellee.

No. 115872.

Supreme Court of Illinois.

Feb. 20, 2015.

Rehearing Denied June 5, 2015.

Lisa Madigan, Attorney General, of Springfield, and Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, Annette Collins and Noah Montague, Assistant State's Attorneys, of counsel), for the People.

Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, and Gilbert C. Lenz, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.

OPINION

Justice KARMEIER delivered the judgment of the court, with opinion.

¶ 1 At issue in this case is the constitutionality of certain sections of the aggravated unlawful use of a weapon (AUUW) statute (720 ILCS 5/ 24–1.6 (West 2012)). Defendant was convicted in a bench trial in the circuit court of Cook County, of, inter alia, six counts of AUUW. The circuit court entered a written order holding that due to its findings of statutory unconstitutionality, both facially and as applied to defendant, all six AUUW convictions would be vacated and, instead, a conviction of unlawful use of a weapon (UUW) under section 24–1(a)(4) of the Criminal Code of 2012 (720 ILCS 5/24–1(a)(4) (West 2012)) would be entered. In line with the written order, the trial court imposed a Class A misdemeanor sentence for the UUW conviction. See 720 ILCS 5/24–1(b) (West 2012); 730 ILCS 5/5–4.5–55 (West 2012). Pursuant to Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013), the State's appeal from the circuit court's finding of statutory unconstitutionality comes directly to this court.

¶ 2 PRINCIPAL STATUTE INVOLVED

¶ 3 At the time of proceedings herein, the AUUW statute provided, in pertinent part:

“§ 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 ^{[ 1 ]} ; 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 ^{[ 2 ]} ; 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; or

* * *

(C) the person possessing the firearm has not been issued a currently valid Firearm Owner's Identification Card; or

* * *

(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).

* * *

(d) Sentence.

(1) Aggravated unlawful use of a weapon is a Class 4 felony^[ [^{3 ]} ; * * *

(2) Except as otherwise provided in paragraphs (3) and (4) of this subsection (d), a first offense of aggravated unlawful use of a weapon committed with a firearm by a person 18 years of age or older where the factors listed in both items (A) and (C) of paragraph (3) of subsection (a) are present is a Class 4 felony, for which the person shall be sentenced to a term of imprisonment of not less than one year and not more than 3 years.” 720 ILCS 5/24–1.6 (West 2012).

¶ 4 BACKGROUND

¶ 5 On March 7, 2012, Chicago police officers received a call about a person with a gun at a local park. Upon arrival at the park, the officers noticed a group of children playing and a group of teenagers standing together in the park. When officers approached defendant, who was then 19 years of age, and the other teenagers, defendant walked away. The officers demanded that defendant stop walking, but instead he continued to exit the park. Officers then pursued defendant, noticing his hand was on his right waist. When officers got closer to defendant, he began to run. While in pursuit, an officer witnessed defendant reach inside his waistband and pull out a .32–caliber revolver, which he dropped to the ground. Officers recovered the weapon and found that it was fully loaded with six live rounds. The pursuing officer testified at trial that when she saw defendant pull the weapon out from his waistband, the weapon was loose and not enclosed in any type of gun case. Officers were able to apprehend defendant and place him under arrest. At the time of defendant's arrest, he had not been issued a valid Firearm Owner Identification (FOID) card.

¶ 6 The State charged defendant in count I with UUW in a public park (720 ILCS 5/24–1(a)(10) (West 2012)), and with six counts of AUUW: count II, carrying on his person or in any vehicle, outside the home, a firearm which is “uncased, loaded and immediately accessible” (720 ILCS 5/24–1.6(a)(1), (a)(3)(A) (West 2012)); count III, carrying on his person or in any vehicle, outside the home, a firearm without a valid FOID card (720 ILCS 5/ 24–1.6(a)(1), (a)(3)(C) (West 2012)); count IV, carrying on his person or in any vehicle, outside the home, a firearm which is “a handgun” while under 21 years of age unless “engaged in lawful activities under the Wildlife Code” (720 ILCS 5/24–1.6(a)(1), (a)(3)(I) (West 2012)); count V, carrying or possessing on his person, upon any public way, a firearm that is “uncased, loaded and immediately accessible” (720 ILCS 5/24–1.6(a)(2), (a)(3)(A) (West 2012)); count VI, carrying or possessing on his person, upon any public way, a firearm without a valid FOID card (720 ILCS 5/24–1.6(a)(2), (a)(3)(C) (West 2012)); and count VII, carrying or possessing on his person, upon any public way, a handgun while under 21 years of age unless “engaged in lawful activities under the Wildlife Code” (720 ILCS 5/24–1.6(a)(2), (a)(3)(I) (West 2012)).

¶ 7 On December 10, 2012, following a bench trial, the court found defendant guilty of all seven counts. The case was continued for posttrial motions and sentencing. On February 6, 2013, the trial court heard defendant's motion for a new trial alleging, inter alia, that the State failed to prove him guilty beyond a reasonable doubt as to each of the seven counts. The court granted defendant's posttrial motion as to count I, UUW in a public park, and entered a finding of not guilty on that count. The trial court denied defendant relief as to the remaining six AUUW counts, finding the evidence sufficient for a guilty verdict on counts II through VII. The State asked that defendant be sentenced to “time in the Illinois Department of Corrections,” acknowledging that he had no previous felony convictions or juvenile adjudications. The following colloquy then occurred:

“THE COURT: State, your understanding is that the law requires that [defendant] be sentenced to the penitentiary?

[PROSECUTOR]: Correct.

THE COURT: Because the charges that remain, Count 2 to Count 6, are non-probationable Class 4 felonies?

[PROSECUTOR]: Correct.”⁴

Thereafter, the trial judge, sua sponte, expressed his concerns as to whether the “non-probationable” Class 4 felony sentence required to be imposed upon defendant under the AUUW statute (720 ILCS 5/24–1.6(d)(2) (West 2012)), was constitutional, questioning whether that sentence amounted to cruel and unusual punishment and whether there were proportionality problems where “[t]he only non-probationable Class 4 felon[ies] in the State of Illinois are the charges against the defendant.” The court therefore continued the sentencing hearing to allow the parties to prepare arguments as to these constitutional concerns.

¶ 8 On March 8, 2013, the trial court heard oral arguments by counsel for defendant and the State regarding what the court termed as the “constitutionality of the mandatory sentencing provision for the aggravated unlawful use of weapon charge that the defendant is facing.” Thereafter, on March 15, 2013, the court entered its written order, as required by Illinois Supreme Court Rule 18 (eff. Sept. 1, 2006), finding that “the offense established by 720 ILCS 5/24–1.6(a)(1) & (a)(3)(A) & (C), and the punishment prescribed for the offense by 720 ILCS 5/24–1.6(d)(2), are unconstitutional based on the proportionate penalties clause of Article I, section 11 of the Illinois Constitution and the due process clause of Article I, section 2 of the Illinois Constitution.” The court further found that “as to these provisions, the aggravated unlawful use of weapons statute is unconstitutional both on its face and as applied to the defendant because it cannot be reasonably construed in a manner that would preserve its validity.” At defendant's March 15, 2013, sentencing hearing, the transcript states that the trial court found unconstitutional “720 ILCS 25–41.6a [sic ]” of the AUUW statute, “as well as the sentencing provision of a2 [sic ],” and in an “Addendum” order dated March 15, related to bail and sentencing matters, the first line reads: “Court finds 720–5/24–1.6(A) [sic ] unconstitutional.”⁵ The trial court held at sentencing that, “[f]or the reasons stated in the [Rule 18 ] order,” it was “going to vacate the convictions on those counts which is [sic ] counts two through seven.” Further, and consistent with its Rule 18 order, the trial court found defendant guilty and entered a conviction on the uncharged offense of UUW set forth in section 24–1(a)(4) of the Criminal Code (720 ILCS...