People v. Burns, No. 117387.

• Court: Supreme Court of Illinois
• Writing for the Court: Justice BURKE delivered the judgment of the court, with opinion.
• Citation: 79 N.E.3d 159,2015 IL 117387
• Decision Date: 17 December 2015
• Docket Number: No. 117387.
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Edward BURNS, Appellant.

2015 IL 117387
79 N.E.3d 159

The PEOPLE of the State of Illinois, Appellee,
v.
Edward BURNS, Appellant.

No. 117387.

Supreme Court of Illinois.

Dec. 17, 2015.

79 N.E.3d 159

Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, and Adrienne N. River, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.

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

OPINION

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

¶ 1 After a bench trial, defendant was found guilty of violating section 24–1.6(a)(1), (a)(3)(A) of the aggravated unlawful use of a weapon statute (AUUW) ( 720 ILCS 5/24–1.6(a)(1), (a)(3)(A) (West 2008)) and was sentenced to 10 years' imprisonment. Defendant appealed, arguing that his conviction must be reversed because section 24–1.6(a)(1), (a)(3)(A) of the AUUW statute was found to be unconstitutional in People v. Aguilar, 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321.

79 N.E.3d 160

¶ 2 The appellate court affirmed defendant's conviction, finding that, in Aguilar, this court limited its finding of unconstitutionality to the "Class 4 form" of the offense. 2013 IL App (1st) 120929, 378 Ill.Dec. 552, 4 N.E.3d 151. The appellate court then held that the "Class 2 form" of the offense, which is applicable to felons, like defendant, is constitutional and enforceable. Id. ¶ 27.

¶ 3 Defendant filed a petition for leave to appeal, pursuant to Illinois Supreme Court Rules 315 and 612 ( Ill. S.Ct. R. 315 (eff. July 1, 2013); R. 612 (eff. Feb. 6, 2013)), which we granted. We now reverse the judgment of the appellate court.

¶ 4 BACKGROUND

¶ 5 On June 13, 2009, at about 4 a.m., two police officers in a marked police squad car responded to a dispatch call of "shots fired" in the area of 73rd and Blackstone in the city of Chicago. As the officers approached that location, they saw three men getting into a black Nissan, which was parked on 73rd Street, facing east. A woman was sitting in the driver's seat.

¶ 6 Officer McDonough, who was driving the police car, pulled up to the parked Nissan, "nose-to-nose," blocking the Nissan's exit. As Officer McDonough was exiting the police car, he saw the man who had been sitting in the front passenger seat of the Nissan—later identified as defendant, Edward Burns—exit the car with a gun in his hand. When the officer ordered defendant to "Stop, put your hands up," defendant tossed the handgun back into the car, and fled on foot. Officer McDonough pursued defendant and, at one point during the chase, saw defendant throw an object to the ground. Officer McDonough recovered the object, which he discovered was a magazine or "clip," loaded with 9–millimeter rounds and then continued to pursue defendant, who appeared to be doubling back to the parked Nissan.

¶ 7 When defendant arrived back at the Nissan, he was detained by Officer McDonough's partner, Officer Sobczyk. While Officer McDonough was pursuing defendant, Officer Sobczyk had retrieved a gun from the front passenger seat of the Nissan. The gun had no clip, but had one live 9–millimeter round in the chamber. When Officer McDonough returned to the scene, he found that the clip he had retrieved during the chase fit the gun recovered from the car.

¶ 8 Defendant was arrested and later charged by an indictment which contained eleven counts: Count I alleged that defendant was an armed habitual criminal ( 720 ILCS 5/24–1.7 (West 2008) ), counts II and III, alleged unlawful use of a weapon by a felon ( 720 ILCS 5/24–1.1 (West 2008) ), and counts IV through XI alleged aggravated unlawful use of a weapon ( 720 ILCS 5/24–1.6(a) (West 2008)).

¶ 9 The AUUW statute provides, in pertinent part:

"(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 * * *[,] 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 * * *; 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; * * *

79 N.E.3d 161

* * *

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

* * *

(d) Sentence. Aggravated unlawful use of a weapon is a Class 4 felony; a second or subsequent offense is a Class 2 felony for which the person shall be sentenced to a term of imprisonment of not less than 3 years and not more than 7 years. Aggravated unlawful use of a weapon by a person who has been previously convicted of a felony in this State or another jurisdiction is a Class 2 felony for which the person shall be sentenced to a term of imprisonment of not less than 3 years and not more than 7 years." 720 ILCS 5/24–1.6 (West 2008).

¶ 10 Subsequently, on the State's motion, the circuit court of Cook County entered an order of nolle prosequi on counts V, VII, IX, and XI—four counts alleging aggravated unlawful use of a weapon based on defendant's possession of a firearm without a valid Firearm Owner Identification (FOID) card ( 720 ILCS 5/24–1.6(a)(1), (a)(2), (a)(3)(C) (West 2008)). The State then elected to proceed against defendant on counts I, II, III, VI, and X. Count VI alleged aggravated unlawful use of a weapon based on the possession of an uncased, loaded and readily accessible firearm in a vehicle, in violation of section 24–1.6(a)(1), (a)(3)(A) of the AUUW statute; count X alleged aggravated unlawful use of a weapon based on the possession of an uncased, loaded and readily accessible firearm on a public way, in violation of section 24–1.6(a)(2), (a)(3)(A). On November 28, 2011, a bench trial was held. At the conclusion of the bench trial, defendant was found guilty on all counts.

¶ 11 Defendant filed a motion to reconsider in the circuit court. Defendant asserted that the State failed to prove that he had a prior felony conviction, which was a necessary element of the charged offenses. At trial, the State had entered into evidence a certified copy of conviction for a "Damion Smith." Although the State alleged that defendant used the name "Damion Smith" as an alias, the State presented no proof that defendant was the individual named in the certified copy of conviction. Thus, defendant argued, the State, having failed to prove that he had a prior felony conviction, failed to prove him guilty beyond a reasonable doubt and his convictions must be vacated.

¶ 12 The circuit court vacated defendant's convictions for armed habitual criminal and unlawful use of a weapon by a felon, under counts I, II, and III, agreeing with defendant that a prior felony conviction was a necessary element of those offenses which the State failed to prove. However, the circuit court denied defendant's motion with regard to his AUUW convictions, under counts VI and X. The court ruled that a prior felony conviction is not an element of AUUW, but rather, a sentencing factor to be proven at the time of sentencing. The matter then proceeded to sentencing on defendant's conviction under count VI, for aggravated unlawful use of a weapon pursuant to section 24–1.6(a)(1), (a)(3)(A) of the statute.¹

¶ 13 At the sentencing hearing, the State presented, for the first time, a certified copy of defendant's record as proof that he had a prior felony conviction (possession of a controlled substance in case number 99–CR–21991, which was a different felony

79 N.E.3d 162

conviction from the one submitted at trial). Based on this evidence, the circuit court ruled that, pursuant to subsection (d) of the AUUW statute, defendant's conviction for AUUW was a Class 2 felony. However, the circuit court further found that, because the State had presented additional evidence in aggravation, showing that defendant also had two other prior felony convictions, a Class X sentence was mandated. Accordingly, the circuit court imposed a sentence of 10 years' imprisonment.

¶ 14 Defendant appealed. In his initial brief, filed on March 12, 2012, defendant argued that his AUUW conviction must be vacated because the section of the AUUW statute under which he was convicted—section 24–1.6(a)(1), (a)(3)(A)—unconstitutionally infringes on the right to keep and bear arms as guaranteed by the second amendment of the United States Constitution (U.S. Const., amend.II).

¶ 15 On September 12, 2013, while defendant's appeal was still pending, this court issued its decision in Aguilar, 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321. In Aguilar, the defendant was convicted of AUUW pursuant to section 24–1.6(a)(1), (a)(3)(A) of the statute, which was a Class 4 felony pursuant to section (d) of the statute. We reversed the defendant's conviction for AUUW, holding that section 24–1.6(a)(1), (a)(3)(A) is facially unconstitutional because it operates as a flat ban on the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution.

¶ 16 Subsequently, we modified our decision in Aguilar upon denial of the State's petition for rehearing. In our modified opinion, we added language stating that our finding of unconstitutionality was limited to the "Class 4 form" of AUUW, which referred to a conviction which was subject to sentencing as a Class 4 felony pursuant to section (d) of the statute. See id. ¶ 22 n. 3.

¶ 17 Relying on our modified opinion in Aguilar, the appellate court in the case at bar affirmed defendant's AUUW conviction. 2013 IL App (1st) 120929, 378 Ill.Dec. 552, 4 N.E.3d 151. The appellate court noted that, "[i]n general, where a statute initially sets forth the elements of the offense, then separately provides sentencing classifications...