People v. Villareal

2023 IL 127318

216 N.E.3d 188

465 Ill.Dec. 937

The PEOPLE of the State of Illinois, Appellee,

v.Juan VILLAREAL, Appellant.

Docket No. 127318

Supreme Court of Illinois.

Filed January 20, 2023

James E. Chadd, State Appellate Defender, Douglas R. Hoff, Deputy Defender, and Deepa Punjabi, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.

Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Katherine M. Doersch and Joshua M. Schneider, Assistant Attorneys General, of Chicago, of counsel), for the People.

Rebecca K. Glenberg, of Roger Baldwin Foundation of ACLU, Inc., and Emily D. Steeb, of Faegre Drinker Biddle & Reath LLP, both of Chicago, for amicus curiae American Civil Liberties Union of Illinois.

JUSTICE HOLDER WHITE delivered the judgment of the court, with opinion.

¶ 1 Petitioner, Juan Villareal, pleaded guilty in the circuit court of Cook County to unlawful possession of a firearm by a gang member in violation of section 24-1.8(a)(1) of the Criminal Code of 1961 ( 720 ILCS 5/24-1.8(a)(1) (West 2010)). The circuit court sentenced petitioner to four years in prison pursuant to a plea agreement. Petitioner subsequently filed a petition pursuant to section 2-1401 of the Code of Civil Procedure ( 735 ILCS 5/2-1401 (West 2018) ) arguing his sentence was improperly increased because he was required to serve a period of mandatory supervised release. The circuit court dismissed the petition.

¶ 2 On appeal, petitioner challenged section 24-1.8(a)(1) as facially unconstitutional under the eighth amendment to the United States Constitution ( U.S. Const., amend. VIII ) because the statute impermissibly criminalized his status as a gang member. See 720 ILCS 5/24-1.8(a)(1) (West 2010). In supplemental briefing, petitioner added an additional claim, arguing the statute was facially unconstitutional, as it violated substantive due process. The appellate court rejected petitioner's eighth amendment challenge and declined to address the due process claim, as it was raised for the first time in petitioner's supplemental brief. 2021 IL App (1st) 181817, ¶¶ 17-21, 28, 448 Ill.Dec. 807, 177 N.E.3d 1158. One dissenting justice found the statute violated substantive due process. Id. ¶ 44 (Walker, P.J., dissenting).

¶ 3 Petitioner now argues section 24-1.8(a)(1) is facially unconstitutional for three reasons: (1) it violates the fourteenth amendment's guarantee of substantive due process ( U.S. Const., amend. XIV ) because it is not rationally related to a legitimate state interest, (2) it violates substantive due process because it is vague, and (3) it violates the eighth amendment. For the following reasons, we hold the statute is constitutional and comports with both the eighth and fourteenth amendments to the United States Constitution.

¶ 4 BACKGROUND

¶ 5 In October 2011, police officers stopped petitioner while he was driving a car the officers believed had been involved in a neighborhood shooting. During the traffic stop, officers searched the car and recovered a fully loaded handgun. Petitioner was charged with several offenses related to the firearm, including unlawful possession of a firearm by a streetgang member in violation of the Criminal Code of 1961 ( 720 ILCS 5/24-1.8(a)(1) (West 2010)). Petitioner pleaded guilty to unlawful possession of a firearm by a streetgang member. The State dropped the additional charges pursuant to the plea agreement. As part of the factual basis for the plea, the State informed the court petitioner was "a member of the Satan Disciples from 24 and Washtenaw" and that he had never been issued a Firearm Owner's Identification (FOID) card. Petitioner stipulated to this information. The circuit court sentenced petitioner to four years in prison. Petitioner did not file a direct appeal.

¶ 6 In April 2018, petitioner filed a petition pursuant to section 2-1401 of the Code of Civil Procedure ( 735 ILCS 5/2-1401 (West 2018) ), arguing the statute governing Illinois's mandatory supervised release scheme was unconstitutional because his sentence was improperly increased when he was required to serve an additional two-year period of mandatory supervised release. The circuit court dismissed the petition. Petitioner appealed the dismissal.

¶ 7 On appeal, petitioner abandoned the claims raised in his petition. Instead, he argued his conviction for unlawful possession of a firearm by a streetgang member was unconstitutional under the eighth amendment to the United States Constitution because it increased the penalty for unlawful possession of a firearm based solely on the person's status as a gang member. See 720 ILCS 5/24-1.8(a)(1) (West 2010). Petitioner acknowledged he had not previously raised the claim in the circuit court but argued the issue was properly before the appellate court because a facially unconstitutional statute could be challenged at any time. See People v. Thompson , 2015 IL 118151, ¶ 32, 398 Ill.Dec. 74, 43 N.E.3d 984.

¶ 8 After the parties filed their briefs, the appellate court sua sponte asked the parties to file supplemental briefs addressing two cases— State v. O.C. , 748 So. 2d 945 (Fla. 1999), and State v. Bonds , 502 S.W.3d 118 (Tenn. Crim. App. 2016) —dealing with the constitutionality of sentencing enhancements for streetgang members. In petitioner's supplemental brief, he argued section 24-1.8(a)(1) was also facially unconstitutional because it violated substantive due process.

¶ 9 A majority of the appellate court rejected petitioner's eighth amendment challenge, finding the statute criminalized more than mere gang membership because it also prohibited the voluntary possession of a firearm without a valid FOID card. 2021 IL App (1st) 181817, ¶¶ 17-21, 448 Ill.Dec. 807, 177 N.E.3d 1158. In addition, the majority noted that, in a prosecution for unlawful possession of a firearm by a gang member, the "State must prove substantially more than mere gang member status; it must prove specific criminal offenses directly related to or in furtherance of the gang's objectives, and therefore, an explicit nexus is required between illegal firearm possession and gang-related activity." Id. ¶ 21. The statute did not allow for the prosecution of passive gang members and only permitted the prosecution of gang members involved in specific criminal acts who also unlawfully possessed weapons. Id. ¶ 20. The majority declined to address the substantive due process claim, as it was raised for the first time in petitioner's supplemental brief, which the majority found was in violation of Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020). 2021 IL App (1st) 181817, ¶¶ 23-28, 448 Ill.Dec. 807, 177 N.E.3d 1158.

¶ 10 Presiding Justice Walker dissented because he found the application of the harsher penalty under the statute was triggered solely by petitioner's status as a gang member. Id. ¶ 33 (Walker, P.J., dissenting). Presiding Justice Walker noted:

"The issue here is proof that the group qualifies as a street gang does not entail proof that an individual knew of the group's criminal activities. In addition, proof that the group qualifies as a street gang does not entail proof connecting the possession of the firearm to any of the criminal acts that qualify the group for street gang status." Id. ¶ 34.

Presiding Justice Walker concluded the statute violated due process. Id. ¶ 43.

¶ 11 This court granted petitioner's petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Oct. 1, 2020). We allowed the American Civil Liberties Union of Illinois leave to file an amicus curiae brief in support of petitioner's position. Ill. S. Ct. R. 345(a) (eff. Sept. 20, 2010).

¶ 12 ANALYSIS

¶ 13 Before this court, petitioner argues section 24-1.8(a)(1) is facially unconstitutional for the following reasons: (1) it violates the eighth amendment to the Unites States Constitution because it increases an individual's sentence based solely on his status as a gang member, and (2) it violates substantive due process under the fourteenth amendment to the United States Constitution because it (a) criminalizes mere gang association without requiring a nexus between the association and the conduct prohibited under the statute and (b) is vague as written and is therefore void. See 720 ILCS 5/24-1.8(a)(1) (West 2010); U.S. Const., amends. VIII, XIV. Although the appellate court declined to address petitioner's substantive due process argument, we choose to address all of petitioner's claims because they are facial challenges to the statute, which this court has held can be raised at any time. In re J.W. , 204 Ill. 2d 50, 61, 272 Ill.Dec. 561, 787 N.E.2d 747 (2003).

¶ 14 We begin with the familiar rules controlling the review of a facial constitutional challenge to a statutory provision. A party bringing a facial challenge to a statute faces a particularly heavy burden. People v. Eubanks , 2019 IL 123525, ¶ 34, 442 Ill.Dec. 663, 160 N.E.3d 843. The party must prove there is no set of circumstances under which the statute would be valid. Id. Statutes are presumed constitutional, and the party challenging the constitutionality of a statute has the burden of clearly establishing its invalidity. People v. Coty , 2020 IL 123972, ¶ 22, 449 Ill.Dec. 220, 178 N.E.3d 1071. This court has a duty to construe a statute in a manner upholding the statute's validity and constitutionality if it can be reasonably done. People v. Hollins , 2012 IL 112754, ¶ 13, 361 Ill.Dec. 402, 971 N.E.2d 504. The issue of whether a statute is constitutional presents a question of law, which this court reviews de novo. People v. Austin , 2019 IL 123910, ¶ 14, 440 Ill.Dec. 669, 155 N.E.3d 439.

¶ 15 Petitioner challenges the constitutionality of section 24-1.8(a)(1), which states:

"(a) A person commits unlawful possession of a firearm by a street gang member when he or she knowingly:

(1) possesses, carries, or conceals on or about his or her person a firearm and firearm ammunition while

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