People v. Rush

• Decision Date: 30 September 2014
• Docket Number: No. 1–12–3462.,1–12–3462.
• Citation: 19 N.E.3d 1196
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Cordell RUSH, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

19 N.E.3d 1196

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Cordell RUSH, Defendant–Appellant.

No. 1–12–3462.

Appellate Court of Illinois, First District, Fifth Division.

Sept. 30, 2014.

Rehearing Denied Nov. 3, 2014.

Michael J. Pelletier, Alan D. Goldberg, and Todd T. McHenry, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, William Toffenetti, and Christopher R. Sullivan, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice McBRIDE

delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant Cordell Rush was convicted of unlawful use of a weapon by a felon (UUWF) and possession of a firearm with defaced identification marks. The latter conviction merged with the UUWF conviction and the trial court subsequently sentenced defendant to a term of eight years in the Illinois Department of Corrections.

¶ 2 Defendant appeals, arguing that: (1) the Illinois UUWF statute (720 ILCS 5/24–1.1(a)

(West 2010)) is unconstitutional as applied because it forbids a person previously convicted of a forcible felony from applying for a firearm owners identification card (FOID card) until at least 20 years have passed since the conviction; (2) the State improperly used his prior felony conviction to prove an element of the UUWF charge and to elevate the classification of the offense to a Class 2 felony; and (3) the mittimus should be corrected to show that the lesser charge of possession of a firearm with defaced identification marks merged with the UUWF conviction.

¶ 3 Since defendant has not challenged the sufficiency of the evidence on appeal, we will present a brief summary of the facts underlying defendant's conviction.

¶ 4 In April 2009, defendant's daughter Corneshia Rush went to defendant's house with a friend to visit him. During the course of the conversation, defendant and Corneshia began to argue. Defendant yelled for someone to get his gun and told Corneshia that he was “gonna put [her] in the ground.” Defendant then left the room for approximately 30 seconds and returned with a gun in his hand. Defendant sat down at the kitchen table and then unloaded and reloaded the gun. Defendant waved the gun in the air. Corneshia called her mother on the telephone. Defendant spoke to Corneshia's mother and told her that if she called the police he was going “to show them how crazy he really is.” Corneshia testified at trial that defendant “was going to kill me, I guess.” Corneshia's mother called back and spoke with defendant, who allowed Corneshia to leave. Corneshia left with her friend and ran down the street to meet an uncle and wait for her mother.

¶ 5 Sergeant K.C. Erickson of the Calumet City police department spoke with Corneshia, her friend, her mother, and defendant's live-in girlfriend. Defendant's girlfriend gave the officer permission to enter defendant's home. While in the home, Sergeant Erickson saw a .45–caliber round on top of the dryer in the laundry room. He then recovered a .45–caliber handgun under the mattress in the master bedroom and a bulletproof vest in a closet. Sergeant Erickson observed that the serial number had been scratched or filed off of the handgun. He also found a wallet and gas and electric bills which listed defendant's name and listed the address of the home. Defendant admitted possession of the gun but denied threatening Corneshia with it. He said the gun was in his waistband during the argument, but he did not take it out.

¶ 6 Following deliberations, the jury found defendant guilty of UUWF and possession of a firearm with defaced identification marks. The trial court merged the latter count into the UUWF conviction and sentenced defendant for an extended-term sentence of eight years.

¶ 7 This appeal followed.

¶ 8 On appeal, defendant contends that he does not challenge the State's ability to place restrictions on the possession of firearms by felons, but the statute violates the second amendment of the United States Constitution and the right to bear arms under the Illinois Constitution because defendant was barred from applying for a FOID card for a period of 20 years based on a single felony burglary conviction from 1997, which criminalized his possession of a handgun in his home.

¶ 9 Defendant admits that he has raised this issue for the first time on appeal, but contends he has not forfeited the issue because a constitutional challenge can be raised at any time. To preserve an issue for review, a defendant must both object at trial and in a written posttrial motion. People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988)

. However, as defendant asserts, “a constitutional challenge to a criminal statute can be raised at any time.” In re J.W., 204 Ill.2d 50, 61, 272 Ill.Dec. 561, 787 N.E.2d 747 (2003) ; see also People v. Wright, 194 Ill.2d 1, 23, 251 Ill.Dec. 469, 740 N.E.2d 755 (2000) ; People v. Bryant, 128 Ill.2d 448, 454, 132 Ill.Dec. 415, 539 N.E.2d 1221 (1989) ; People v. Bailey, 396 Ill.App.3d 459, 462, 335 Ill.Dec. 741, 919 N.E.2d 460 (2009) ( “While it is true, and defendant concedes, that he did not preserve this issue accordingly, we note that we are dealing with a constitutional challenge involving the validity of a statute. Such an argument may be presented at any time, regardless of a violation of technical waiver rules”).

¶ 10 “ ‘[A]ll statutes are presumed to be constitutional, and the burden of rebutting that presumption is on the party challenging the validity of the statute to demonstrate clearly a constitutional violation.’ ” People v. Dinelli, 217 Ill.2d 387, 397, 299 Ill.Dec. 236, 841 N.E.2d 968 (2005)

(quoting People v. Greco, 204 Ill.2d 400, 406, 274 Ill.Dec. 73, 790 N.E.2d 846 (2003), citing People v. Sypien, 198 Ill.2d 334, 338, 261 Ill.Dec. 294, 763 N.E.2d 264 (2001) ). Further, a court, whenever reasonably possible, must construe a statute to uphold its constitutionality. Dinelli, 217 Ill.2d at 397, 299 Ill.Dec. 236, 841 N.E.2d 968. We review the constitutionality of a statute de novo.

Dinelli, 217 Ill.2d at 397, 299 Ill.Dec. 236, 841 N.E.2d 968.

¶ 11 Section 24–1.1(a) of the Criminal Code of 1961 (the Code) provides:

“It is unlawful for a person to knowingly possess on or about his person or on his land or in his own 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. This Section shall not apply if the person has been granted relief by the Director of the Department of State Police under Section 10 of the Firearm Owners Identification Card Act,” 720 ILCS 5/24–1.1(a)

(West 2008).

¶ 12 Section 10(c)(1) of the Firearm Owners Identification Card Act (the Act) provides:

“(c) Any person prohibited from possessing a firearm under Sections 24–1.1 or 24–3.1 of the Criminal Code of 1961 or acquiring a Firearm Owner's Identification Card under Section 8 of this Act may apply to the Director of the Department of State Police or petition the circuit court in the county where the petitioner resides, whichever is applicable in accordance with subsection (a) of this Section, requesting relief from such prohibition and the Director or court may grant such relief if it is established by the applicant to the court's or Director's satisfaction that:

* * *

(1) the applicant has not been convicted of a forcible felony under the laws of this State or any other jurisdiction within 20 years of the applicant's application for a Firearm Owner's Identification Card, or at least 20 years have passed since the end of any period of imprisonment imposed in relation to that conviction[.]” 430 ILCS 65/10(c)(1)

(West 2008).

¶ 13 “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. Garvin, 2013 IL App (1st) 113095, ¶ 14, 374 Ill.Dec. 139, 994 N.E.2d 1076

(quoting People v. Crawford, 145 Ill.App.3d 318, 321, 99 Ill.Dec. 290, 495 N.E.2d 1025 (1986) ).

¶ 14 Under section 24–1.1 of the Code, defendant, as a felon, was prohibited from possessing a handgun unless he had been granted relief under section 10 of the Act. Defendant was convicted of burglary in 1997, and under section 10(c)(1) of the Act, he was not eligible to apply for a FOID card until 20 years had passed since the end of his imprisonment on that conviction. Defendant argues that section 24–1.1 violated his second amendment rights by criminalizing his possession of a firearm when more than 10 years had passed since his burglary conviction and he was barred from applying for a FOID card. Defendant contends that section 24–1.1 is unconstitutional as applied to him. “An as-applied challenge stems from the defendant's contention that the statute as it was applied to the defendant's particular situation is unconstitutional.” Id. ¶ 17. “Facts surrounding the defendant's particular circumstances are only relevant to an as-applied challenge.” Id.

¶ 15 In People v. Aguilar, the Illinois Supreme Court found that the Class 4 form of the aggravated unlawful use of a weapon statute, section 24–1.6(a)(1), (a)(3)(A), (d) of the Code (720 ILCS 5/24–1.6(a)(1)

, (a)(3)(A), (d) (West 2008)), which made it unlawful for a person to possess an uncased, loaded and immediately accessible firearm except when the person was on his land or in his abode or fixed place of business, was a comprehensive ban, rather than a reasonable regulation, of the right to possess and use an operable firearm for self-defense outside the home. People v. Aguilar, 2013 IL 112116, ¶ 21, 377 Ill.Dec. 405, 2 N.E.3d 321. Accordingly, the court concluded that section 24–1.6(a)(1), (a)(3)(A), (d) of the aggravated unlawful...