People v. Martin

• Decision Date: 22 June 2018
• Docket Number: No. 1–15–2249,1–15–2249
• Citation: 2018 IL App (1st) 152249,111 N.E.3d 168
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Erick MARTIN, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 152249

111 N.E.3d 168

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

v.Erick MARTIN, Defendant–Appellant.

No. 1–15–2249

Appellate Court of Illinois, First District, FIFTH DIVISION.

June 22, 2018

James E. Chadd, Patricia Mysza, and Jonathan Yeasting, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg and John E. Nowak, Assistant State’s Attorneys, of counsel), for the People.

PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant Erick Martin was convicted of (1) armed habitual criminal, (2) unlawful use of a weapon by a felon, and (3) six counts of aggravated unlawful use of a weapon. These convictions were merged into the single offense of armed habitual criminal, and the trial court imposed the minimum six-year term of imprisonment. Defendant's sole contention on appeal is that the armed habitual criminal statute is unconstitutional as applied to him, where his underlying felony offenses were nonviolent and more than 20 years old. For the reasons that follow, we affirm the judgment of the circuit court.

¶ 2 BACKGROUND

¶ 3 Defendant was charged with multiple offenses including armed habitual criminal ( 720 ILCS 5/24–1.7(a) (West 2012) ), unlawful use of a weapon by a felon (id. § 24–1.1(a) ) and six counts of aggravated unlawful use of a weapon (id. §§ 24–1.6(a)(1), (3)(A), (C); 24–1.6(a)(2), (3)(C) ) based, in part, on his possession of a .357 blue steel revolver without a firearm owner's identification (FOID) card. Defendant waived his right to a jury and elected to proceed by way of a bench trial.

¶ 4 At trial, two officers, Steve Jarosz and Ryan Harty of the Chicago Police Department, testified regarding their interaction with defendant and their recovery of a blue steel .357 revolver on April 24, 2013. According to Jarosz, while on patrol they observed defendant's vehicle turn into an alley without using a turn signal. Jarosz activated the siren and followed the vehicle into the alley, but the vehicle did not stop. The vehicle continued to travel through the alley, during which time Jarosz observed the driver open the driver's side door and drop a handgun onto the ground. Harty also observed the driver drop an object outside of the driver's side door, but he was unable to discern what the object was. The vehicle later stopped at the end of the alley, and defendant was removed from the driver's side of the vehicle. Jarosz recovered the handgun from where he had observed it fall. The handgun was loaded with six live rounds of ammunition. Jarosz further testified that defendant did not have a FOID card. A certified copy of a firearm service bureau report was entered into evidence which revealed that defendant did not possess a FOID card.

¶ 5 Certified copies of defendant's two prior felony convictions—a 1989 manufacture/delivery of a controlled substance offense and a 1992 unlawful use of a weapon by a felon offense—were entered into the record without objection.

¶ 6 Defendant testified that he was not in possession of a firearm that evening nor did he open his vehicle door while driving through the alley. According to defendant, after he was stopped by the officers he waited for 30 minutes while one of the officers walked down the alley and returned with a handgun and asked if it was his weapon. Defendant informed the officers at that time that it was not his weapon.

¶ 7 After considering the evidence presented, the trial court indicated it found the officers to be credible and thus found defendant guilty on all counts. The counts were then merged into a single armed habitual criminal conviction. At the sentencing hearing, defendant presented evidence in mitigation that he was employed, participated in church, volunteered as a disc jockey for neighborhood events, and had no criminal convictions since 1992. The trial court also reviewed defendant's presentence investigation report. This report indicated that defendant had been convicted of five felonies between 1989 and 1992. However, after 1992 defendant earned a vending machine operator's license, was employed at a mailing company, and then for the last 25 years worked as an independent professional disc jockey earning $3200 a week. The presentence investigation report further indicated that defendant had a "great" relationship with his family and provided financial support to his 18–year–old son. After hearing evidence offered in aggravation and mitigation, the trial court sentenced defendant to the minimum six years' imprisonment for the Class X offense of armed habitual criminal. This appeal followed.

¶ 8 ANALYSIS

¶ 9 Defendant's sole contention on appeal is that the Illinois armed habitual criminal statute is unconstitutional as applied to him because the statute's application to him was triggered by nonviolent offenses that were more than 20 years old. Defendant asserts that the statute violates his second amendment right to possess a firearm. U.S. Const., amend. II ("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.").¹ Defendant does not challenge the sufficiency of the evidence.

¶ 10 In response, the State maintains that defendant's as-applied challenge fails both procedurally and substantively. The State asserts that the challenge fails procedurally because he did not raise the issue in the trial court and therefore there was no evidentiary hearing and no findings of fact regarding his as-applied challenge. Substantively, the State maintains that defendant's as-applied challenge fails because he has not established that his conduct was entitled to second amendment protection where he chose to possess a firearm knowing that his prior felony convictions had not been vacated or otherwise set aside. The State maintains defendant was not a "law abiding, responsible citizen" protected by the second amendment.

¶ 11 As relevant here, an individual commits the offense of armed habitual criminal when 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:

* * *

(2) unlawful use of a weapon by a felon; * * *

(3) any violation of the Illinois Controlled Substances Act or the Cannabis Control Act that is punishable as a Class 3 felony or higher." 720 ILCS 5/241.7(a) (West 2012).

An as-applied challenge arises from a defendant's contention that the statute or law as it is applied to his particular situation is unconstitutional. People v. Campbell , 2014 IL App (1st) 112926, ¶ 57, 380 Ill.Dec. 687, 8 N.E.3d 1229. The facts that surround a defendant's particular circumstances are relevant to an as-applied challenge. Id. We review de novo whether the armed habitual criminal statute under section 24–1.7 of the Criminal Code of 2012 ( 720 ILCS 5/1–1 et seq. (West 2012) ), as applied to the defendant, was unconstitutional under the second amendment of the United States Constitution. See People v. Robinson , 2011 IL App (1st) 100078, ¶ 12, 357 Ill.Dec. 872, 964 N.E.2d 551 ; see also U.S. Const., amend. II.

¶ 12 We first address the State's contention that defendant's as-applied challenge fails procedurally due to a lack of an evidentiary hearing below. We decline to find the issue procedurally defaulted. We recognize that in People v. McFadden , 2016 IL 117424, ¶ 36, 406 Ill.Dec. 470, 61 N.E.3d 74, and People v. Mosley , 2015 IL 115872, ¶ 47, 392 Ill.Dec. 588, 33 N.E.3d 137, our supreme court declined to consider as-applied challenges that were raised for the first time on appeal. In so concluding, the Mosley court stated that

"A court is not capable of making an as applied determination of unconstitutionality when there has been no evidentiary hearing and no findings of fact. [Citation.] Without an evidentiary record, any finding that a statute is unconstitutional as applied is premature. [Citation.] Nor would it be appropriate for this court, sua sponte , to consider whether [a] statute has been constitutionally applied since we, as a reviewing court, are not arbiters of the facts." (Internal quotation marks omitted.) Id.

Our supreme court, however, has also held that where the evidentiary record developed below is sufficient, the constitutionality of a statute may be challenged on appeal. People v. Holman , 2017 IL 120655, ¶ 32, 418 Ill.Dec. 889, 91 N.E.3d 849 ; see People v. Gray , 2017 IL 120958, ¶¶ 55–67, 418 Ill.Dec. 916, 91 N.E.3d 876 (considering an as-applied constitutional challenge raised for the first time on appeal); Robinson , 2011 IL App (1st) 100078, ¶¶ 12, 17, 29, 357 Ill.Dec. 872, 964 N.E.2d 551 (considering facial and as-applied constitutional challenges that were raised for the first time on appeal).

¶ 13 On appeal, defendant's as-applied challenge is based on facts already in the record, i.e. , the age and nature of his felony convictions and his alleged rehabilitation since his last conviction. In the prosecution of defendant's current offenses, evidence was presented at trial as to defendant's possession of the firearm and his two prior felony convictions. Other relevant facts, such as defendant's age at the time of his prior felonies and his lack of criminal history after 1992 as well as his employment history, were presented during the sentencing hearing and in the court-ordered presentence investigation report. We fail to see what further facts would be necessary to adduce at an evidentiary hearing, and notably, the State fails to identify any additional facts not in the record that would preclude our review of this issue. Accordingly, we conclude that defendant's as-applied challenge to the armed habitual criminal statute is reviewable on appeal. See, e.g. , Gray , 2017 IL 120958, ¶¶ 55–67, 418 Ill.Dec. 916, 91 N.E.3d 876 ; Robinson , 2011 IL App (1st) 100078, ¶¶ 12, 17, 29, 357 Ill.Dec. 872, ...