People v. Kelley

• Docket Number: 1-23-0569
• Decision Date: 12 June 2024
• Citation: People v. Kelley, 2024 IL App (1st) 230569, 1-23-0569 (Ill. App. Jun 12, 2024)
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEREMAINE KELLEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

1

2024 IL App (1st) 230569

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEREMAINE KELLEY, Defendant-Appellant.

No. 1-23-0569

Court of Appeals of Illinois, First District, Third Division

June 12, 2024

Appeal from the Circuit Court of Cook County.No. 20 CR 12886Honorable Michael R. Clancy, Judge, presiding.

Attorneys for Appellant: James E. Chadd, Douglas R. Hoff, and S. Amanda Ingram, of State Appellate Defender's Office of Chicago, for appellant.

Attorneys for Appellee:Kimberly M. Foxx, State's Attorney, of Chicago (Enrique Abraham, Brian Levitsky, and Sara McGann, Assistant State's Attorneys, of counsel) for the People.

Justice D.B. Walker concurred in the judgment and opinion.

Presiding Justice Reyes specially concurred, with opinion.

OPINION

VAN TINE, JUSTICE.

¶ 1 BACKGROUND

¶ 2 Following a bench trial, defendantJeremaine Kelley was convicted of being an armed habitual criminal (AHC)(720 ILCS 5/24-1.7(West 2020)).On appeal, Kelley argues that we must reverse his AHC conviction because the AHC statute is unconstitutional under the second amendment to the United States Constitution(U.S. Const., amend. II) and article I, section 22, of the Illinois Constitution(Ill. Const. 1970, art. I, § 22).For the following reasons, we affirm.

¶ 3 FACTS

¶ 4 At trial, the State adduced the following evidence through its sole witness, Chicago police officer Zachary Kuta.In the early morning hours of August 29, 2020, Kuta and his partner Matt Krzeptowski were on patrol near 2107 West Randolph Street in Chicago, Illinois.Kuta testified that he had patrolled this area before and knew that it was "a well-known narcotic and gang loitering area for the Black Disciples street gang."Shortly after 2 a.m., Kuta observed a group of people drinking in a nearby park and alley.Kuta and Krzeptowski approached the group in their police vehicle.Kuta observed an individual, later identified as Kelley, turn toward the police vehicle and make eye contact with him.Kuta noticed Kelley grab his waistband area and then walk north toward Randolph Street.Kuta exited the police vehicle and began following Kelley, keeping about 15 to 20 feet distance.Kuta testified that there were no obstructions that prevented him from seeing Kelley under the artificial lights.Kuta then observed Kelley turn his head and body toward him, which allowed Kuta to see Kelley's waistband.Kelley removed a dark L-shaped firearm from his waistband and placed it behind the front passenger tire of a vehicle.Kuta then jogged toward Kelley, passing the vehicle.Upon reaching Kelley, Kuta waited for his partner to arrive and placed Kelley in handcuffs.Kuta then recovered the firearm, which he believed to be loaded, from beneath the vehicle.Later, Kuta learned through a Law Enforcement Agencies Data System (LEADS) check that Kelley (1) did not possess a firearm owner's identification (FOID) card, (2) was a convicted felon, and (3) was on parole.^[1]¶ 5 At the time of the arrest, Kelley was on parole for a 2019 conviction for manufacture and delivery of a controlled substance.He had never been issued a FOID card or a concealed carry license.Prior to the AHC conviction at issue here, Kelley had been convicted of numerous felonies, most of them within the past two decades.In 2017, he was convicted of a Class 4 felony under section 6-303 of the Illinois Vehicle Code(625 ILCS 5/6-303(West 2016)) and received a one-year sentence in the Illinois Department of Corrections.^[2] In 2013, he was convicted of retail theft and received probation.In 2012, he was convicted of three felonies: (1) aggravated battery (great bodily harm), (2) resisting a peace officer, and (3) cannabis possession.He was sentenced to two years' imprisonment.In 2002, he was convicted of possessing a stolen motor vehicle and sentenced to three years' imprisonment.Additionally, Kelley has seven misdemeanor convictions, including two DUIs and two domestic batteries.

¶ 6 In this case, the State charged Kelley with unlawful use or possession of a weapon by a felon (720 ILCS 5/24-1.1(a)(West 2020)), aggravated unlawful use of a weapon (id.§ 24-1.6(a)(2)), and being an armed habitual criminal (id.§ 24-1.7).On March 16, 2022, the circuit court held a bench trial in which it found Kelley guilty on all counts, but the court merged them into a single AHC conviction.On November 4, 2022, Kelley petitioned the court for relief from judgment under section 2-1401 of the Code of Civil Procedure(735 ILCS 5/2-1401(West 2022)), arguing his conviction must be voided as it was premised on three unconstitutional statutes.The court denied this petition, holding that the challenged statutes are not facially unconstitutional.Kelley appeals.

¶ 7 ANALYSIS

¶ 8 On appeal, Kelley does not dispute that his conduct satisfied the elements of the AHC statute; rather, he argues that we should reverse his AHC conviction because the AHC statute is facially unconstitutional under the second amendment to the United States Constitution, and both facially and as-applied unconstitutional under article I section 22, of the Illinois Constitution.^[3]

¶ 9 The AHC statute provides:

"(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; vehicular hijacking; aggravated vehicular hijacking; aggravated battery of a child as described in Section 12-4.3 or subdivision (b)(1) of Section 12-3.05; intimidation; aggravated intimidation; gunrunning; home invasion; or aggravated battery with a firearm as described in Section 12-4.2 or subdivision (e)(1), (e)(2), (e)(3), or (e)(4) of Section 12-3.05; or

(3) any violation of the Illinois Controlled Substances Act or the Cannabis Control Act that is punishable as a Class 3 felony or higher.

(b) Sentence.Being an armed habitual criminal is a Class X felony."720 ILCS 5/24-1.7(West 2020).

¶ 10 The second amendment to the United States Constitution 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.

¶ 11 Article I, section 22, of the Illinois Constitution provides: "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed."Ill. Const. 1970, art. I, § 22.

¶ 12 Here, we are tasked with determining whether the AHC statute conflicts with the federal and state constitutions.We presume that a statute is constitutional, and "we have the duty to construe statutes so as to uphold their constitutionality if there is any reasonable way to do so."People v. Jones, 223 Ill.2d 569, 595-96(2006)(citingArangold Corp. v. Zehnder, 187 Ill.2d 341, 351(1999), andPeople v. Inghram, 118 Ill.2d 140, 146(1987)).A facial challenge requires a showing that the statute in question is unconstitutional under any set of facts.People v. Thompson, 2015 IL 118151, ¶ 36.The burden on the challenger is "particularly heavy when *** a facial constitutional challenge is presented."Bartlow v. Costigan, 2014 IL 115152, ¶ 18."[A]n as-applied challenge requires a showing that the statute is unconstitutional as it applies to the specific facts and circumstances of the challenging party."People v. Harris, 2018 IL 121932, ¶ 38(citingPeople ex rel. Hartrich v. 2010 Harley-Davidson, 2018 IL 121636, ¶ 12).A constitutional challenge to a statute presents a question of law, which we review de novo.People v. Madrigal, 241 Ill.2d 463, 466(2011).De novo review means we engage in the same analysis as the trial court.Xuedong Pan v. King, 2022 IL App (1st) 211482, ¶ 16.We begin with our consideration of the AHC statute's constitutionality under the second amendment to the United States Constitution.

¶ 13The United States Constitution

¶ 14 Kelley relies primarily on New York State Rifle &Pistol Ass'n v. Bruen, 597 U.S. 1(2022), to support his argument that the AHC statute is unconstitutional under the second amendment to the United States Constitution.The United States Supreme Court has expounded the second amendment on numerous occasions, most recently in its landmark decision in Bruen.Bruen involved a challenge to a New York licensing regime that regulated firearm possession.Id. at 811.Persons wishing to possess a firearm at home were required to convince a licensing officer that they were of good moral character and did not have a history of crime or mental disease and that no good cause for denial existed.Id. at 12.However persons wishing to carry a firearm outside of their home had to show "proper cause" to be issued a license.(Internal quotation marks omitted.)Id.This generally meant that people had to" 'demonstrate a special need for self-protection distinguishable from that of the general community.'"Id.(quotingIn re Klenosky, 428 N.Y.S.2d 256, 257(App. Div.1980)).The Supreme Court held that the proper cause requirement violated the constitutional right to keep and bear arms.Id. at 70-71.In reaching that conclusion, the Supreme Court engaged in a historical analysis to determine whether the licensing regime passed constitutional muster and clarified that the relevant test "requires courts to assess whether modern firearms regulations are consistent with the Second Amendment's text and historical understanding."Id. at 26.

¶ 15 Relying on the test announced in Bruen, Kelley argues that because the State"cannot show, under what...