People v. Bailey

• Decision Date: 25 November 2009
• Docket Number: No. 1-07-3381.,1-07-3381.
• Citation: 919 N.E.2d 460
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Marcus BAILEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

919 N.E.2d 460

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Marcus BAILEY, Defendant-Appellant.

No. 1-07-3381.

Appellate Court of Illinois, First District.

November 25, 2009.

Office of the Illinois State Appellate Defender, Chicago, IL, Michael J. Pelletier, State Appellate Defender; Patricia Unsinn, Deputy Defender; Maria A. Harrigan, Assistant Appellate Defender, for Appellant.

Office of the Illinois State's Attorney, County of Cook, Chicago, IL, Anita Alvarez, State's Attorney; James E. Fitzgerald, Eve Reilly, and Robin Murphy, Assistant State's Attorneys, for Appellee.

Justice FITZGERALD SMITH delivered the opinion of the court:

Following a bench trial, defendant Marcus Bailey (defendant) was convicted of one count of the offense of armed habitual criminal and four counts of unlawful use of a weapon by a felon. He was sentenced to five concurrent terms of six years' imprisonment. He appeals, contending that his conviction for armed habitual criminal violates ex post facto laws, and that, alternatively, one of his convictions for unlawful use of a weapon by a felon is improper. He asks that we reverse and vacate the former, or that we vacate the latter. For the following reasons, we affirm in part and reverse in part, and vacate a portion of defendant's sentence.

BACKGROUND

The facts of this cause are not in dispute.

On July 26, 2006, police officers Gallegos and Culhane participated in the execution of three search warrants for a two-flat residence on West Maypole in Chicago. Defendant's nephew and his family lived on the second floor, defendant's mother and brother lived on the first floor, and defendant and his fiancée lived in the basement. After announcing their presence, officers Gallegos and Culhane entered the first floor and saw defendant at the rear of the residence. They gave chase and detained him in the basement. Defendant's nephew and fiancée were also detained. When officer Culhane began to search the basement pursuant to one of the warrants, he recovered four firearms from the furnace room: a .45 semiautomatic rifle, a Ruger semiautomatic pistol, a revolver and a loaded handgun.

Subsequently, defendant was charged with one count of the offense of armed habitual criminal and four counts of unlawful use of a weapon by a felon. Defendant had two prior felony convictions of record, both from November 1997: manufacture and delivery of a controlled substance and possession of a controlled substance with intent to deliver. At trial on the instant charges, defendant's nephew and fiancée testified on his behalf, and defendant himself denied putting any firearms in the furnace room.

The trial court found defendant guilty on all five counts charged and sentenced him to five concurrent terms of seven years in prison. Following a motion to reconsider sentence filed by defendant, the court reduced these to five concurrent terms of six years in prison.

ANALYSIS

Defendant's first contention on appeal is that his conviction for the offense of armed habitual criminal violates the ex post facto clauses of the United States and Illinois Constitutions. He asserts that this offense is a substantive new criminal offense and not merely an enhancement provision. Citing People v. Levin, 157 Ill.2d 138, 191 Ill.Dec. 72, 623 N.E.2d 317 (1993), and People v. Dunigan, 165 Ill.2d 235, 209 Ill.Dec. 53, 650 N.E.2d 1026 (1995), he further claims that, because his two prior convictions constituted a necessary element of the offense of armed habitual criminal and occurred before the effective date of this legislation's enactment, these could not be used to support a conviction under this more recent felony statute and, therefore, he was improperly punished.

As a threshold matter, the State argues that defendant has forfeited this argument for our review by failing to object at trial and include it in a posttrial motion. See, e.g., People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988). While it is true, and defendant concedes, that he did not preserve this issue accordingly, we note that we are dealing with a constitutional challenge involving the validity of a statute. Such an argument may be presented at any time, regardless of a violation of technical waiver rules. See People v. Yancy, 368 Ill.App.3d 381, 388, 306 Ill.Dec. 657, 858 N.E.2d 454 (2005); accord People v. Wagener, 196 Ill.2d 269, 279, 256 Ill.Dec. 550, 752 N.E.2d 430 (2001).

However, turning to the merits of defendant's claim here, we find that it cannot stand.

In addressing a challenge to the constitutionality of a statute, we begin with the presumption that the statute is constitutional. See People v. Malchow, 193 Ill.2d 413, 418, 250 Ill.Dec. 670, 739 N.E.2d 433 (2000). If reasonably possible, a court must construe the statute so as to uphold its constitutionality and validity. See Malchow, 193 Ill.2d at 418, 250 Ill.Dec. 670, 739 N.E.2d 433. The party challenging the statute's constitutionality has the burden of demonstrating its invalidity. See Malchow, 193 Ill.2d at 418, 250 Ill.Dec. 670, 739 N.E.2d 433. Whether the statute is constitutional is reviewed under a de novo standard. See Malchow, 193 Ill.2d at 418, 250 Ill.Dec. 670, 739 N.E.2d 433.

The Illinois Criminal Code of 1961 (Code) states:

"(a) A person commits the offense of being an armed habitual criminal if he or she receives, sells, possesses, or transfers any firearm after having been convicted a total of 2 or more times of any combination of the following offenses:

(1) a forcible felony as defined in Section 2-8 of this Code;

(2) unlawful use of a weapon by a felon; aggravated unlawful use of a weapon; aggravated discharge of a firearm * * *; or

(3) any violation of the Illinois Controlled Substances Act * * * that is punishable as a Class 3 felony or higher." 720 ILCS 5/24-1.7(a) (West 2006).

The effective date of this statute was August 2, 2005. See 720 ILCS 5/24-1.7(a) (West 2006).

Both the United States and Illinois Constitutions prohibit ex post facto laws. See U.S. Const., art. I, § 9, cl. 3; § 10, cl. 1; Ill. Const.1970, art. I, § 16. "An ex post facto law is one that: (1) makes criminal and punishable an act innocent when done; (2) aggravates a crime, or makes it greater than it was when committed; (3) increases the punishment for a crime and applies the increase to crimes committed before the enactment of the law; or (4) alters the rules of evidence to require less or different evidence than required when the crime was committed." People v. Leonard, 391 Ill.App.3d 926, 931, 331 Ill.Dec. 582, 911 N.E.2d 403 (2009); see People v. Morgan, 377 Ill.App.3d 821, 823, 317 Ill.Dec. 339, 881 N.E.2d 507 (2007), citing Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648, 650 (1798). The prohibition against ex post facto laws is founded on the basis of a person's right to have fair warning of conduct giving rise to criminal penalties and punishment. See People v. Coleman, 111 Ill.2d 87, 93-94, 94 Ill.Dec. 762, 488 N.E.2d 1009 (1986).

Defendant's exact contention regarding the offense of armed habitual criminal and its alleged violation of ex post facto laws was recently raised in the Third District case of People v. Leonard, 391 Ill.App.3d 926, 331 Ill.Dec. 582, 911 N.E.2d 403 (2009). There, the defendant was convicted of this offense upon possessing a firearm and having had been convicted previously of three qualifying offenses between 1998 and 2004, including a violation of the Illinois Controlled Substances Act (720 ILCS 570/100 et seq. (West 2004)) (unlawful possession with intent to deliver a look-alike substance). On appeal, the defendant, also citing Levin and Dunigan as defendant does here, argued that his conviction had to be vacated because the offense of armed habitual criminal violated the prohibition against ex post facto laws, since his prior convictions were used an element of the offense even though they occurred before the offense was enacted.

In a well-reasoned and succinct decision, the Leonard court disagreed, finding that the statute does not constitute ex post facto legislation. It began by noting that, in Illinois, recidivist statutes such as the instant one "have consistently been found constitutional on the basis that they punish a defendant for a new and separate crime, not for the earlier offense committed before the statute was enacted." Leonard, 391 Ill.App.3d at 931, 331 Ill.Dec. 582, 911 N.E.2d 403 (rather, the defendant's prior convictions are only an element of the new crime). After examining the statute, the Leonard court explained that it did not punish the defendant for offenses he committed before it was enacted but, instead, punished him for the separate offense of possessing a firearm after having been convicted of three of the statute's enumerated offenses. See Leonard, 391 Ill. App.3d at 931, 331 Ill.Dec. 582, 911 N.E.2d 403. He possessed the firearm in April 2006, after the statute's August 2005 effective date; thus, he had ample warning that, in combination with his prior convictions, he was committing the offense of armed habitual criminal. See Leonard, 391 Ill.App.3d at 931-32, 331 Ill.Dec. 582, 911 N.E.2d 403. And, because his prior convictions were only an element of the offense, he was not being punished for those acts but for the new act of possessing a firearm. See Leonard, 391 Ill. App.3d at 932, 331 Ill.Dec. 582, 911 N.E.2d 403.

Moreover, in addressing the defendant's claim that because the offense of armed habitual criminal is a substantive offense requiring that all the elements thereof must have occurred after the law was enacted, the Leonard court concluded that his reliance on Levin and Dunigan...