People v. Montyce H.

• Decision Date: 18 November 2011
• Docket Number: No. 1–10–1788.,1–10–1788.
• Citation: 355 Ill.Dec. 193,2011 IL App (1st) 101788,959 N.E.2d 221
• Parties: The PEOPLE of the State of Illinois, Petitioner–Appellee, v. MONTYCE H., Respondent–Appellant.
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 101788

355 Ill.Dec. 193

959 N.E.2d 221

The PEOPLE of the State of Illinois, Petitioner–Appellee,

v.MONTYCE H., Respondent–Appellant.

No. 1–10–1788.

Appellate Court of Illinois, First District, Sixth Division.

Nov. 18, 2011.

Michael J. Pelletier, State Appellate Defender (Alan D. Goldberg, Deputy Defender, Thomas G. Gonzalez, Assistant Appellate Defender, of counsel), for Appellant.

Anita Alvarez, State's Attorney, County of Cook (Alan J. Spellberg, Douglas P. Harvath, Jessica R. Bargmann, Assistant State's Attorneys, of counsel), for Appellee.

OPINION

Presiding Justice ROBERT GORDON delivered the judgment of the court with opinion.

[355 Ill.Dec. 194] ¶ 1 The sole issue on this direct appeal is whether the aggravated unlawful use of a weapon statute, insofar as it criminalizes the possession of a loaded, uncased and accessible firearm outside the home, violates the constitutional right to bear arms. Respondent concedes that the Illinois Appellate Court has considered several times whether this exact same statute violates this exact same right and has held that it does not, every time. People v. Dawson, 403 Ill.App.3d 499, 510, 343 Ill.Dec. 274, 934 N.E.2d 598 (2010); People v. Aguilar, 408 Ill.App.3d 136, 142–150, 348 Ill.Dec. 575, 944 N.E.2d 816 (2011); People v. Mimes, 2011 IL App (1st) 082747, ¶ 82, 352 Ill.Dec. 119, 953 N.E.2d 55, 77 (2011) ( “defendant's AUUW conviction must stand because the challenged statutory provisions do not violate either the second amendment or the Illinois Constitution”). However, he asks us to find that our precedent was wrongly decided. This we decline to do. Therefore, we affirm his adjudication of delinquency.

¶ 2 Respondent Montyce H. was 15 years old when he was arrested and charged on September 29, 2009, in a petition for adjudication of wardship. The petition contained a total of four counts: three counts of aggravated unlawful use of a weapon (720 ILCS 5/24–1.6(a) (West 2008)), and one count of unlawful possession of a firearm (720 ILCS 5/24–3.1 (West 2008)). After a trial on December 30, 2009, the trial court “hereby found” respondent “to be delinquent on all 4 counts.” However, the trial court then stated that it was entering judgment on only the first count and that the other counts were “merged into one.” On May 13, 2010, the trial court sentenced respondent to 18 months of probation

¶ 3 The only count upon which judgment was entered was a count for aggravated unlawful use of a firearm. The statute for aggravated unlawful use of a firearm lists several different “factors,” any one of which will make the use “aggravated.” 720 ILCS 5/24–1.6(a)(3) (West 2008). The count supporting respondent's conviction charged the “factor[ ]” that the firearm “was uncased, loaded and immediately accessible.” 720 ILCS 5/24–1.6(a)(3)(A) (West 2008). The statute criminalizes possession of an uncased, loaded and accessible firearm, only if it is outside the home. 720 ILCS 5/24–1.6(a)(1) (West 2008).

¶ 4 In his appellate brief, respondent raised two claims: (1) that the aggravated unlawful use of a weapon statute, which criminalizes the possession of a loaded, uncased and accessible firearm outside the home, violates both federal and state guarantees of the right to bear arms; and (2) that the unlawful possession of firearms statute, insofar as it criminalizes a 15–year old's possession of a handgun, violates both the federal and state guarantees of the right to bear arms.

¶ 5 Since respondent was found delinquent on an aggravated use count, the unlawful possession statute is not properly before us. Aguilar, 408 Ill.App.3d at 150, 348 Ill.Dec. 575, 944 N.E.2d 816 (“we find that we cannot review defendant's conviction for unlawful possession of a firearm because the trial court did not impose sentence”); People v. Baldwin, 199 Ill.2d 1, 5, 262 Ill.Dec. 9, 764 N.E.2d 1126 (2002) (“Absent a sentence, a conviction is not a final and appealable order”). In addition, although respondent claims in the headings in his brief to be raising a state challenge as well as a federal challenge, there is no discussion of the Illinois constitutional right in his brief. His discussion of the aggravated use statute is based entirely on the second amendment right found in the United States constitution and the case law interpreting it. “Points not argued are waived ***.” Ill. S.Ct. R. 341(h)(7)(eff. July 1, 2008); Wilson v. Cook County, 407 Ill.App.3d 759, 775–76, 348 Ill.Dec. 160, 943 N.E.2d 768 (2011) (finding that plaintiffs had waived any argument concerning the Illinois Constitution's right to bear arms where they made a “one-sentence statement” and failed to provide any support or analysis).

¶ 6 Thus, the issue before us on this appeal is solely whether the aggravated unlawful use of a weapon statute, insofar as it criminalizes the possession of a loaded, uncased and accessible firearm outside the home, violates the federal constitutional right to bear arms.

¶ 7 BACKGROUND

¶ 8 On this direct appeal, the facts are not in dispute. Respondent in his brief to this court admits that the following facts are true:

“On September 28, 2009, around 9:43 p.m. Officer Pedroza was on patrol with another marked squad car on the 6400 block of South Peoria when officers noticed a white vehicle double parked in the middle of the road partially blocking traffic. The police cars stopped next to the white car. A male identified in court as Montyce was leaning inside the white car on the passenger's side. Once the officers pulled up, Montyce looked in their direction and ran off grabbing his waistband as he ran. A foot chase ensued, during which Montyce tossed a gun in a nearby gangway. Montyce was quickly arrested a couple [of] houses away.

Officer Pedroza recovered the loaded handgun from the gangway and kept it in his possession until he tendered it at the station to one of his partners for inventory. The gun was inventoried in Pedroza's possession.”

Thus, in his brief to this court, respondent admits that “Montyce tossed a gun in a nearby gangway.”

¶ 9 ANALYSIS

¶ 10 As we previously observed, the sole issue on this appeal is whether the aggravated unlawful use of a weapon statute, insofar as it criminalizes the possession of a loaded, uncased and accessible firearm outside the home, violates the federal constitutional right to bear arms.

¶ 11 I. Standard of Review

¶ 12 The question of a statute's constitutionality is reviewed de novo. People ex rel. Birkett v. Konetski, 233 Ill.2d 185, 200, 330 Ill.Dec. 761, 909 N.E.2d 783 (2009); People v. Cornelius, 213 Ill.2d 178, 188, 290 Ill.Dec. 237, 821 N.E.2d 288 (2004). Statutes are presumed to be constitutional, and the party challenging the constitutionality of a statute has the burden of overcoming this presumption. Cornelius, 213 Ill.2d at 189, 290 Ill.Dec. 237, 821 N.E.2d 288. After listening to the parties' arguments, a reviewing court should attempt to construe the statute as constitutional. Cornelius, 213 Ill.2d at 189, 290 Ill.Dec. 237, 821 N.E.2d 288. If the reviewing court has any doubt about how to construe the statute, it should resolve that doubt in favor of finding the statute constitutional. Cornelius, 213 Ill.2d at 189, 290 Ill.Dec. 237, 821 N.E.2d 288. “This is not to mean that statutes are unassailable,” but rather that they enjoy a strong presumption of validity. Cornelius, 213 Ill.2d at 190, 290 Ill.Dec. 237, 821 N.E.2d 288.

¶ 13 Although respondent did not challenge the constitutionality of the statute at trial, a constitutional challenge to a criminal statute can generally be raised at any time. In re J.W., 204 Ill.2d 50, 61, 272 Ill.Dec. 561, 787 N.E.2d 747 (2003). Accordingly, respondent has not waived his constitutional challenge to the statute, even though he first raised this challenge in the appellate court. J.W., 204 Ill.2d at 61–62, 272 Ill.Dec. 561, 787 N.E.2d 747.

¶ 14 II. Facial and Applied Challenges

¶ 15 Respondent challenges the constitutionality of the statute both as applied and on its face. “The difference between an as-applied and a facial challenge is that if a plaintiff⁽¹⁾ prevails in an as-applied claim, he may enjoin the objectionable enforcement of a statute only against himself, while a successful facial challenge voids enactment in its entirety and in all applications.” Morr–Fitz, Inc. v. Blagojevich, 231 Ill.2d 474, 498, 327 Ill.Dec. 45, 901 N.E.2d 373 (2008).

¶ 16 This difference affects the scope of our review, because the facts of a defendant's case become relevant only if he or she brings an as-applied challenge. In an “as-applied” challenge, the challenging party contests only how the statute was applied against him or her within a particular context, and, as a result, the facts of his or her particular case become relevant. Napleton v. The Village of Hinsdale, 229 Ill.2d 296, 306, 322 Ill.Dec. 548, 891 N.E.2d 839 (2008). By contrast, in a facial challenge, the facts of his or her particular case do not affect our review.

¶ 17 Since a successful facial challenge will void the statute for all parties in all contexts, it is “the most difficult challenge to mount successfully.” Napleton, 229 Ill.2d at 305, 322 Ill.Dec. 548, 891 N.E.2d 839. “ ‘Facial invalidation “is, manifestly, strong medicine” that “has been employed by the court sparingly and only as a last resort.” ’ ” Poo–Bah Enterprises, Inc. v. The County of Cook, 232 Ill.2d 463, 473, 328 Ill.Dec. 892, 905 N.E.2d 781 (2009) (quoting National Endowment for the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998), quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)).

¶ 18 Respondent claims that the statute is unconstitutional, not only on its face, but also as applied to him. However, he offers no separate “as applied” arguments, and we can think of no reason why a 15–year–old would have a greater right to possess a loaded handgun on the street than an adult. The United States...