People v. Deshawn G. (In re Deshawn G.)

• Decision Date: 09 September 2015
• Docket Number: No. 1–14–3316.,1–14–3316.
• Citation: 40 N.E.3d 762
• Parties: In re DESHAWN G., a Minor (The People of the State of Illinois, Petitioner–Appellee, v. Deshawn G., a Minor, Respondent–Appellant).
• Court: United States Appellate Court of Illinois

40 N.E.3d 762

In re DESHAWN G., a Minor (The People of the State of Illinois, Petitioner–Appellee,

v. Deshawn G., a Minor, Respondent–Appellant).

No. 1–14–3316.

Appellate Court of Illinois, First District, Third Division.

Sept. 9, 2015.

Michael J. Pelletier, Alan D. Goldberg, and Christopher R. Bendik, all of State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg and Douglas P. Harvath, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice FITZGERALD SMITH

delivered the judgment of the court, with opinion.

¶ 1 This appeal arises from the trial court's October 2014 order following a jury trial adjudicating respondent-appellant Deshawn G. to be a violent juvenile offender and sentencing him to the Department of Juvenile Justice (DOJJ) until the age of 21, pursuant to the mandatory sentencing provision of the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/5–820 (West 2012)

). That provision of the Act applies upon a minor's second finding of delinquency for an offense that, in an adult case, “would have been a Class 2 or greater felony[,] involving the use or threat of physical force or violence,” or which involves a firearm. 705 ILCS 405/5–820 (West 2012).

¶ 2 Respondent was adjudicated delinquent based on a petition alleging three counts of aggravated unlawful use of a weapon (AUUW) based on his lack of a valid Firearm Owner's Identification (FOID) card; his age (under 21 years old); and his prior felony conviction. Based on the prior adjudication of delinquency for aggravated robbery (a Class 1 offense) and the Class 2 nature of the current offenses which were based upon a prior AUUW conviction, the State filed a notice of intent to prosecute respondent as a violent juvenile offender (VJO) under section 5–820 of the Act (705 ILCS 405/5–820 (West 2012)

). After a jury trial, respondent was adjudicated delinquent of two counts of AUUW based on his lack of a valid FOID card and his youth. Respondent was later sentenced to a mandatory term of confinement until age 21. Respondent appeals, contending: (1) the subsections of the AUUW statute under which he was convicted are not severable from the section of the AUUW statute that was found unconstitutional in People v. Aguilar, 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321, and are, therefore, themselves unconstitutional; (2) the violent juvenile offender provision of the Juvenile Court Act under which respondent was sentenced is unconstitutional; (3) the admission of a certification alleging respondent's lack of a valid FOID card, prepared by a non-testifying witness, violated his right to confrontation; and (4) respondent's adjudications of delinquency for AUUW based on the lack of a valid FOID card and possessing a firearm while under age 21 violated the one-act, one-crime doctrine. For the following reasons, we vacate respondent's adjudication for AUUW based on the lack of a FOID card, and affirm in all other respects.¹

¶ 3 I. BACKGROUND

¶ 4 In January 2014, the State filed a petition for adjudication of wardship for respondent's possession of a firearm on New Year's Eve 2013. Through the petition, the State alleged three Class 2 felony counts of aggravated unlawful use of a weapon: count I for possessing a firearm without a firearm owner's identification card under section 24–1.6(a)(3)(C) of the Criminal Code of 2012 (the Code) (720 ILCS 5/24–1.6(a)(3)(C) (West Supp.2013)

); count II for possessing a firearm while under age 21 and not engaged in lawful activities under the Wildlife Code under section 24–1.6(a)(3)(I) of the Code (720 ILCS 5/24–1.6(a)(3)(I) (West Supp.2013) ); and count 3 for possessing a firearm while having a prior adjudication of delinquency for a crime that would be a felony if committed by an adult under section 24–1.6(a)(3)(D) of the Code (

720 ILCS 5/24–1.6(a)(3)(D)

(West Sup.2013)). Prior to trial, the State nolle prosquei 'd the unlawful possession of a firearm and the AUUW based on the prior adjudication, and the cannabis possession charge was stricken.

¶ 5 Prior to trial, the State filed written notice that it intended to prosecute 16–year old respondent as a violent juvenile offender pursuant to section 5–820 of the Act (705 ILCS 405/5–820 (West 2012)

) because the instant offense was a Class 2 felony and he had a prior June 2012 adjudication of delinquency for the Class 1 felony of aggravated robbery. Respondent then filed motions to dismiss the VJO petition, alleging (1) his prior adjudications of delinquency were not equivalent to convictions so as to classify his current AUUW charges as Class 2 felonies, thus making him subject to the VJO statute; and (2) that prosecution under the VJO statute represents an improper double enhancement. Respondent also filed motions to strike the Class 2 designation of the AUUW counts, alleging that the prior AUUW adjudication upon which they are based was unconstitutional based on People v. Aguilar, 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321, and that it was unclear which counts formed the basis for the prior AUUW adjudication. Following a hearing, the trial court denied these motions.

¶ 6 Respondent also moved in limine to bar the State from introducing a certification from the Illinois State Police firearm services bureau database which indicated that respondent had never been issued a FOID card. The trial court denied the motion, ruling that the document was a “signed and sworn” self-authenticating certification.

¶ 7 The State proceeded to trial on counts I (possession of a firearm without a firearm owner's identification card under section 24–1.6(a)(3)(C) of the Code (720 ILCS 5/24–1.6(a)(3)(C) (West Supp.2013)

)) and count II (possession of a firearm while under age 21 and not engaged in lawful activities under the Wildlife Code under section 24–1.6(a)(3)(I) of the Code (720 ILCS 5/24–1.6(a)(3)(I) (West Supp.2013) )).

¶ 8 Respondent had a jury trial. At trial, Chicago Police officer Reginald Weatherly testified that on December 31, 2013, he was in uniform traveling in an unmarked police vehicle with three other police officers. The officers were conducting a safety mission in the vicinity of 45th Street and Ellis Avenue in Chicago. He described a safety mission is “where we have the majority of our team or all the officers in the districts ride on New Year's Eve because we have a higher volume of calls for shots fired, so we'll ride four men to a car.”

¶ 9 It was a snowy night, and the streets were covered in snow. Around 9:50 p.m., the officers saw a “group of guys” walking along the sidewalk and in the street. The area was lit by regular streetlights. Recognizing some of the individuals, including respondent, Officer Weatherly pulled up near the group and told them to slow down. Some stopped, but one person, whom Officer Weatherly identified in court as respondent, continued walking. Officer Weatherly addressed respondent by his street nickname, saying, “What's up Slushy?” Respondent was the only person in the group not wearing a coat. Officer Weatherly asked respondent, “You're not speaking today, Slushy?” Respondent looked at the officer and continued walking. Officer Weatherly then cracked his car door in order to get out of the car, and respondent fled.

¶ 10 As respondent ran, Officer Weatherly noticed that respondent was holding his side by his hip and pocket. Based on prior experience, then, Officer Weatherly believed respondent had a gun. Officer Weatherly attempted to restrain some of the other individuals in the group who were running into the street. As he was doing so, he looked at respondent and saw him fall. Officer Weatherly saw his partner, Officer Marcus Duncan, running toward respondent. A short while later, Officer Duncan returned carrying a handgun. Soon after, backup officers arrived, who eventually detained respondent. Officer Weatherly traveled to where respondent was being detained and identified respondent as the person who ran from him earlier. Officer Weatherly testified that Officers Duncan, Hunt, and St. Andrew identified respondent, as well. On cross-examination, Officer Weatherly agreed that he never saw respondent with the handgun. Officer Weatherly testified that respondent did not produce a FOID card.

¶ 11 Officer Duncan testified to much of the same activity as did Officer Weatherly. In addition to corroborating testimony, Officer Duncan testified that when Officer Weatherly called out to respondent, respondent picked up his pace, first walking faster and then running. At that point, Officer Duncan exited the squad car and watched respondent. There was nothing between himself and respondent that would have blocked his vision. The street lighting was such that Officer Duncan had no difficulty seeing respondent's face. While Officer Duncan watched, respondent lost his footing and fell to the ground. When he stood up, Officer Duncan saw respondent look left and right, and then bend down, extending his right arm into the snow. Officer Duncan began chasing after respondent. When Officer Duncan reached the spot where he had seen respondent reach into the snow, he saw a “nine millimeter handgun sticking out of the snow with the butt facing up.” The only other impression in the snow was a handprint. Officer Duncan retrieved the weapon, noting that it was fully loaded. Officer Duncan later identified respondent as the individual he had seen reach into the snow.

¶ 12 The State introduced respondent's birth certificate, showing he was born in 1997, and therefore was 16 years old at the time of the crime. The State also introduced, over respondent's objection, a document from the Illinois State Police certifying that respondent had never been issued a Firearm Owners Identification Card.

¶ 13 Respondent rested without testifying and without putting on any evidence.

¶ 14 The jury found respondent guilty of both counts of AUUW, one based on possessing a firearm without a valid FOID card...