People v. Floyd F. (In re N.G.)

• Decision Date: 20 January 2017
• Docket Number: Appeal No. 3–16–0277
• Citation: 72 N.E.3d 436,2017 IL App (3d) 160277
• Parties: IN RE N.G., a/k/a N.F., a Minor (The People of the State of Illinois, Petitioner–Appellee, v. Floyd F., Respondent–Appellant).
• Court: United States Appellate Court of Illinois

2017 IL App (3d) 160277
72 N.E.3d 436

IN RE N.G., a/k/a N.F., a Minor

(The People of the State of Illinois, Petitioner–Appellee,
v.
Floyd F., Respondent–Appellant).

Appeal No. 3–16–0277

Appellate Court of Illinois, Third District.

Opinion filed January 20, 2017

Neil J. Adams, of Joliet, for appellant.

James Glasgow, State's Attorney, of Joliet (Richard T. Leonard, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

Kristen N. Messamore, of Joliet, guardian ad litem.

OPINION

JUSTICE McDADE delivered the judgment of the court, with opinion.

¶ 1 The circuit court entered orders finding the respondent, Floyd F., to be an unfit parent and terminating his parental rights to the minor, N.G. On appeal, the respondent argues that the circuit court's finding of unfitness based on depravity was error because his 2008 felony conviction was based on a statute that was declared unconstitutional by the supreme court and it must be vacated. We reverse and remand the case for further proceedings.

¶ 2 FACTS

¶ 3 On December 19, 2011, a juvenile petition was filed that alleged the minor was neglected due to an injurious environment. The minor's mother admitted the allegations of the petition and the minor was adjudicated neglected on September 19, 2012. After a dispositional hearing, the circuit court made the minor a ward of the court, granted guardianship to the Department of Children and Family Services with the right to place, and found, inter alia , the respondent to be an unfit parent.

¶ 4 In February 2016, the State sought to terminate the respondent's parental rights to the minor, alleging he was depraved based on his three felony convictions: (1) a Class 4 felony conviction for

72 N.E.3d 438

aggravated unlawful use of a weapon (circuit court case No. 08–CF–910); (2) a Class 2 felony conviction for unlawful use of a weapon by a felon (circuit court case No. 09–CF–10); and (3) a Class X felony conviction for armed habitual criminal (circuit court case No. 11–CF–201).

¶ 5 At the termination hearing in May 2016, the State presented certified copies of the respondent's three felony convictions. Counsel for the respondent informed the court that there was an appeal pending regarding the respondent's 2008 conviction and objected to the introduction of the certified copy of that conviction. The court overruled the objection, stating, "I don't believe the appeal has any effect on the judgment of conviction." The transcript of that hearing reflects the following discussion:

"MR. PAVUR: Your Honor, my client tells me that on the third exhibit, that there is a pending appeal going on. And I am not exactly sure how that would effect [sic] it. But I just couldn't let it go by.

So I do have an objection to that one based on the fact there is an ongoing appeal having been filed challenging the constitutionality of the arrest.

MS. RIPPY: Judge, I have no information, nor has this conviction been reversed. If there is an appeal pending, this conviction still stands until the Appellate Court states otherwise. So I ask to admit People's Exhibit 3.

THE COURT: I don't believe the appeal has any effect on the judgment of conviction. Over your objection, People's 3 is admitted."

¶ 6 Other evidence presented at the termination hearing established that the respondent was currently incarcerated on his armed habitual criminal conviction, for which he received a sentence of 9½ years of imprisonment, and he was projected to be paroled in 2019. At the close of the hearing, the circuit court found that the respondent was depraved and, therefore, unfit. After a best interest hearing on the same date, the court found that it was in the minor's best interest to terminate the respondent's parental rights. The respondent appealed.

¶ 7 Supplemental Briefing

¶ 8 We sought and obtained documents from the Will County circuit court regarding the respondent's 2008 conviction for aggravated unlawful use of a weapon and 2011 conviction for armed habitual criminal. Those documents indicated that the respondent pled guilty to aggravated unlawful use of a weapon in the 2008 case pursuant to section 24–1.6(a)(1), (a)(3)(A) of the Criminal Code of 1961 (720 ILCS 5/24–1.6(a)(1), (a)(3)(A) (West 2008)) and that there was no appeal or other matter pending regarding that case at any time after October 2008. However, there is a pending postconviction petition in the 2011 case, which alleges that the respondent's armed habitual criminal conviction cannot stand because it was predicated in part on his 2008 conviction, which has been rendered a nullity by People v. Aguilar , 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321.

¶ 9 Upon receipt of these documents, we asked the parties to provide additional briefing pursuant to the following minute order:

"The panel assigned to the above-captioned case has secured, sua sponte , (1) the indictment in case number 08–CF–910, reciting that the respondent in the instant case was charged with two counts of aggravated unlawful use of a weapon in violation of 720 ILCS 5/24–1.6(a)(1)(3)(A) (West 2008), the section of the statute found unconstitutional by the Illinois Supreme Court in

72 N.E.3d 439

People v. Aguilar , 2013 IL 112116 [377 Ill.Dec. 405, 2 N.E.3d 321], (2) the amended judgment-sentence showing he was found guilty of violating 720 ILCS 5/24–1.6(a)(1)(3), a Class 4 felony, and (3) the circuit court's docket entry that states the court accepted the defendant's guilty plea to aggravated unlawful use of a weapon (Class 4 felony) as charged in Count II of the indictment.

The parties are asked to answer the following question and to submit additional documents pertinent to supporting your answer: ARE THE PARTIES AWARE OF ANY REASON WHY THIS COURT COULD NOT TAKE JUDICIAL NOTICE OF THE IDENTIFIED DOCUMENTS AS A FACTUAL BASIS FOR FINDING THE 2008 CONVICTION AT ISSUE IN THIS APPEAL VOID?"

¶ 10 The parties filed their supplemental briefs, which we have considered in reaching the following disposition.

¶ 11 ANALYSIS

¶ 12 The respondent's sole issue in this appeal is his contention that the circuit court erred when it found him to be an unfit parent based on depravity. The sole basis for this contention is that his 2008 conviction is a nullity because the statutory provision under which he was prosecuted and pled guilty in 2008 was found unconstitutional by our supreme court in Aguilar . Resolution of this issue places us at the junction of several recent supreme court decisions: Aguilar , 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321, People v. McFadden, 2016 IL 117424, 406 Ill.Dec. 470, 61 N.E.3d 74 ; People v. Castleberry, 2015 IL 116916, 398 Ill.Dec. 22, 43 N.E.3d 932 ; People v. Ernest Thompson , 209 Ill.2d 19, 282 Ill.Dec. 183, 805 N.E.2d 1200 (2004) ; and People v. Dennis Thompson, 2015 IL 118151, 398 Ill.Dec. 74, 43 N.E.3d 984.

¶ 13 In its original responsive brief, the State asserted that the respondent had forfeited this issue by failing to raise it in the trial court and by failing, in his initial brief, to ask this court to consider his claim under the plain error doctrine. We reserve resolution of the State's forfeiture challenge to a later point in this decision.

¶ 14 We begin with the State's asserted basis for the finding of depravity. In relevant part, section 1(D)(i) of the Adoption Act provides that a rebuttable presumption arises that a parent is depraved (and is therefore an unfit person) if he or she has been convicted of at least three felonies in Illinois and at least one of those convictions has occurred within the five years preceding the filing of the termination petition. 750 ILCS 50/1(D)(i) (West 2014). A circuit court's determination that a parent is an unfit person will not be overturned unless it is against the manifest weight of the evidence. In re E.C. , 337 Ill.App.3d 391, 398, 272 Ill.Dec. 51, 786 N.E.2d 590 (2003).

¶ 15 Here, the respondent admits that his three convictions technically satisfied these requirements such that he could legally be found an unfit person due to depravity. See 750 ILCS 50/1(D)(i) (West 2014). However, the respondent argues that the circuit court should not have included his 2008 conviction (for Class 4 felony aggravated unlawful use of a weapon) in the depravity determination because the specific section of the statute under which he was prosecuted and convicted has since been declared unconstitutional.

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