People v. Garvin

• Decision Date: 07 August 2013
• Docket Number: Docket No. 1–11–3095.
• Citation: 374 Ill.Dec. 139,994 N.E.2d 1076,2013 IL App (1st) 113095
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Kevin GARVIN, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 113095

994 N.E.2d 1076

374 Ill.Dec. 139

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

v.Kevin GARVIN, Defendant–Appellant.

Docket No. 1–11–3095.

Appellate Court of Illinois,

First District, Third Division.

Aug. 7, 2013.

Michael J. Pelletier, Alan D. Goldberg, and Darrel F. Oman, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Margaret M. Smith, Assistant State's Attorneys, of counsel), for the People.

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

OPINION

¶ 1 Does the unlawful use of weapons by felons statute (720 ILCS 5/24–1.1 (West 2010)), violate a defendant's second amendment rights by criminalizing the knowing possession of firearm ammunition alone, without regard to whether or not the defendant also possesses a firearm?

¶ 2 Defendant draws on District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago, 561 U.S. ––––, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), cases in which the United States Supreme Court recognized an individual's second amendment right to bear arms, to argue the unlawful use of weapons by felons statute infringes on that right either facially or as applied to him, and is unconstitutional. But defendant's argument is belied by the Supreme Court's recognition that the second amendment guarantees “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” (Emphasis added.) Heller, 554 U.S. at 635, 128 S.Ct. 2783; see also McDonald, 561 U.S. at ––––, 130 S.Ct. at 3047 (“[w]e made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill * * *.’ We repeat those assurances here.” (quoting Heller, 554 U.S. at 626, 128 S.Ct. 2783)). As a convicted felon, defendant's second amendment rights may be constitutionally abridged. ¹ We uphold defendant's convictions, finding the unlawful use of weapons by felons statute does not violate the second amendment's right to bear arms either facially or as applied to defendant. It would be a strange world indeed for the law to be constitutionally sound in preventing and prohibiting convicted felons from having firearms, but allowing them to keep the very thing that makes firearms deadly.

¶ 3 BACKGROUND

¶ 4 Defendant, Kevin Garvin, was charged with one count of possession of a controlled substance with intent to deliver and one count of unlawful use or possession of a weapon by a felon (UUWF) based on his possession of firearm ammunition.

¶ 5 At the bench trial, Chicago police officer Michael Kelly testified that on April 16, 2011, a team of officers executed a search warrant at Garvin's home, 2124 West 70th Street. They recovered six bags of suspected crack cocaine from Garvin's girlfriend's person. They searched the bedroom, where they recovered more suspect crack cocaine behind an entertainment center. The officers also recovered five live .38-caliber bullets inside of a small red tin case on top of the entertainment center. Next to the tin, the officers found Garvin's state identification card, his Illinois probation card, a watch, hat, and other personal items. In the bedroom closet, officers recovered a piece of mail from the Department of Health with Garvin's name on it and the address of the premises being searched. At the time of his arrest, Garvin did not have a firearm on his person, and no firearms were recovered from his home.

¶ 6 Garvin was arrested and advised of his Miranda rights. Officer Kelly testified Garvin then stated that the bullets and the bags of suspected crack cocaine found on his girlfriend belonged to him. He said the bullets “were from the old days” when he had “used them for protection.” OfficerKelly also testified he never saw Garvin handle the recovered bullets.

¶ 7 The parties stipulated that a proper chain of custody of the physical evidence was maintained. The parties further stipulated that a forensic chemist tested and weighed the suspected crack cocaine. The substance tested positive for crack cocaine and weighed 5.2 grams. The State introduced Garvin's October 14, 2004, certified conviction in case number 04 CR 5469 for the offense of possession of a controlled substance with intent to deliver. Garvin was found guilty of the lesser included offense of possession of a controlled substance and unlawful use or possession of a weapon by a felon. The court inquired about Garvin's criminal history and the State responded that Garvin was on probation for one of his four previous convictions. Defense counsel acknowledged that defendant had violated probation and accepted a plea of a sentence of 26 consecutive months.

¶ 8 The trial court denied defendant's motion for a new trial and sentenced him to concurrent terms of six years and six months, and three years. Defendant's motion to reconsider his sentence was denied.

¶ 9 Defendant timely appeals.

¶ 10 ANALYSIS

¶ 11 Garvin argues his UUWF conviction violates his right to keep and bear arms under the second amendment of the United States Constitution. U.S. Const., amend. II. The second amendment provides, “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const., amend. II. In the much-discussed case of District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the United States Supreme Court struck down a District of Columbia law banning the possession of handguns in the home. In doing so, the Court recognized that the second amendment grants an individual the right to keep and bear arms ( Heller, 554 U.S. at 592, 128 S.Ct. 2783), and that the “central component of the right” is the right of armed self-defense, particularly in one's home. (Emphasis omitted.) Heller, 554 U.S. at 595, 599–600, 128 S.Ct. 2783. In McDonald v. City of Chicago, 561 U.S. ––––, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), the Supreme Court incorporated the second amendment right recognized in Heller against the states.

¶ 12 Garvin challenges the UUWF statute both as facially unconstitutional and as unconstitutional as applied to him. He argues that “a blanket prohibition against the mere possession of bullets with no firearm inside of one's home cannot survive constitutional scrutiny.” Relying on Heller and McDonald, Garvin argues the UUWF statute is invalid as applied to him. In doing so, he recognizes that neither case addresses ammunition not accompanied by a handgun.

¶ 13 Garvin acknowledges he did not raise this issue before the trial court, but a constitutional challenge to a statute may be raised at any time, and thus, the issue is properly before this court for consideration. See People v. Bryant, 128 Ill.2d 448, 454, 132 Ill.Dec. 415, 539 N.E.2d 1221 (1989).

¶ 14 The UUWF statute provides:

“(a) It is unlawful for a person to knowingly possess on or about his person or on his land or in his abode or fixed place of business any weapon prohibited under Section 24–1 of this Act or any firearm or any firearm ammunition if the person has been convicted of a felony under the laws of this State or any other jurisdiction.” (Emphasis added.) 720 ILCS 5/24–1.1(a) (West 2010).The purpose of the UUWF statute “is to protect the health and safety of the public by deterring possession of weapons by convicted felons, a class of persons that the legislature has determined presents a higher risk of danger to the public when in possession of a weapon.” People v. Crawford, 145 Ill.App.3d 318, 321, 99 Ill.Dec. 290, 495 N.E.2d 1025 (1986) (citing Rawlings v. Department of Law Enforcement, 73 Ill.App.3d 267, 29 Ill.Dec. 333, 391 N.E.2d 758 (1979)).

¶ 15 We review the constitutionality of a statute de novo. People ex rel. Birkett v. Konetski, 233 Ill.2d 185, 200, 330 Ill.Dec. 761, 909 N.E.2d 783 (2009). Our supreme court has instructed us that statutes “are presumed constitutional” and that a party challenging the validity of a statute bears the burden of rebutting that presumption. People v. Cornelius, 213 Ill.2d 178, 189, 290 Ill.Dec. 237, 821 N.E.2d 288 (2004). “Moreover, ‘ “it is our duty to construe acts of the legislature so as to uphold their constitutionality and validity if it can reasonably be done, and, further, that if their construction is doubtful, the doubt will be resolved in favor of the validity of the law attacked.” [Citations.]’ ” Davis v. Brown, 221 Ill.2d 435, 442, 303 Ill.Dec. 773, 851 N.E.2d 1198 (2006) (quoting People v. Inghram, 118 Ill.2d 140, 146, 113 Ill.Dec. 65, 514 N.E.2d 977 (1987)).

¶ 16 Garvin contends the UUWF statute is unconstitutional on its face because it impermissibly infringes on his second amendment right to keep and bear arms by criminalizing the possession of ammunition unaccompanied by a firearm. A facial challenge to a statute contends that the statute is incapable of constitutional application in any context. In re C.E., 161 Ill.2d 200, 210–11, 204 Ill.Dec. 121, 641 N.E.2d 345 (1994). And a facial challenge is an exceedingly formidable challenge-to prevail, the defendant must show there are no set of circumstances under which the law would be valid. In re C.E., 161 Ill.2d at 210–11, 204 Ill.Dec. 121, 641 N.E.2d 345. “ ‘The fact that the [statute] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an “overbreadth” doctrine outside the limited context of the First Amendment. [Citation.]’ ” In re C.E., 161 Ill.2d at 210–11, 204 Ill.Dec. 121, 641 N.E.2d 345 (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)).

¶ 17 Garvin also contends the UUWF statute is unconstitutional as applied to him. An as-applied challenge stems from the defendant's...