People v. Smith

Decision Date29 September 2017
Docket NumberNo. 1-15-1643,1-15-1643
Citation2017 IL App (1st) 151643,89 N.E.3d 960
Parties The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Zachary SMITH, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Michael J. Pelletier, Patricia Mysza, and Darren E. Miller, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, 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 MIKVA delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant Zachary Smith was convicted of being an armed habitual criminal (AHC) and for unlawful use of a weapon by a felon (UUWF). Mr. Smith was sentenced on the AHC charge to a prison term of six years, followed by three years of mandatory supervised release (MSR), and on the UUWF charge to a concurrent sentence of two years. On appeal, Mr. Smith argues that we must vacate his AHC conviction because one of the predicate convictions for that offense was for aggravated unlawful use of a weapon (AUUW), under a statutory provision later held by the Illinois Supreme Court to be facially unconstitutional. Mr. Smith alternatively asks us to correct his mittimus because—under the one-act, one-crime rule—he cannot be convicted of both AHC and UUWF based on the same act of possessing a firearm. For the reasons that follow, we affirm Mr. Smith's AHC conviction and vacate his UUWF conviction.


¶ 3 Mr. Smith was charged in this case with one count of AHC—premised on his prior convictions for AUUW (case No. 09 CR 16524) and UUWF (case No. 07 CR 12576)—and three counts of UUWF. At his bench trial, the State introduced certified copies of both prior convictions. The State also presented the testimony of two Chicago police officers, who testified that on the evening of October 25, 2013, they entered an apartment to investigate a reported domestic battery and observed Mr. Smith with a gun in his hand. The officers arrested Mr. Smith and advised him of his Miranda rights. According to the officers, Mr. Smith explained to them that he was holding the gun because he thought the officers were members of his ex-girlfriend's family coming to seek revenge against him for having battered her.

¶ 4 Two witnesses testified for the defense. Mr. Smith's ex-girlfriend, Lakeisha Horton, testified that there was a party at her apartment on the afternoon of October 25, 2013. According to Ms. Horton, a fight broke out at the party, and she threatened to call the police. Those attending the party fled, leaving some of their possessions behind. When Mr. Smith later arrived to collect some clothing he had left at the apartment, he brought another woman with him, angering Ms. Horton and causing her to falsely report that he had battered her. Ms. Horton testified that there was a gun on the floor by the garbage can when officers arrived in response to her call, but it did not belong to Mr. Smith. Mr. Smith's girlfriend, Laquita Handy, testified that she was the woman who accompanied Mr. Smith to Ms. Horton's apartment to retrieve his clothing that day and, to her knowledge, he did not have a weapon with him at that time.

¶ 5 The trial court found the testimony of the officers to be more credible than that of the defense witnesses and found Mr. Smith guilty as charged. The court denied Mr. Smith's post-trial motion and sentenced him to six years of imprisonment and three years of MSR on the AHC count, merged the remaining counts into a single count of UUWF, and sentenced him to a concurrent two-year sentence on that count. This appeal followed.


¶ 7 The trial court sentenced Mr. Smith on May 7, 2015, and he filed his notice of appeal the same day. We therefore have jurisdiction pursuant to article VI, section 6, of the Illinois Constitution ( Ill. Const. 1970, art. VI, § 6 ) and Illinois Supreme Court Rules 603 and 606, governing appeals from final judgments of conviction in criminal cases (Ill. S. Ct. Rs. 603, 606 (eff. Feb. 6, 2013)).

¶ 9 A. Predicate Conviction

¶ 10 On appeal, Mr. Smith argues that his AHC conviction must be vacated because one of the two predicate convictions the State relied on to support that charge was pursuant to a statutory provision later held to be facially unconstitutional and thus void ab initio .

¶ 11 To support a conviction for AHC, the State must prove beyond a reasonable doubt that a defendant possessed a firearm after having been convicted two or more times of certain enumerated offenses, including AUUW and UUWF. 720 ILCS 5/24-1.7(a)(2) (West 2012). One of Mr. Smith's two prior convictions was his 2009 conviction for AUUW, which he says was under the section of the Criminal Code of 1961 that prohibited the carrying of an "uncased, loaded, and immediately accessible" firearm outside the home. 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008). In People v. Aguilar , 2013 IL 112116, ¶ 22, 377 Ill.Dec. 405, 2 N.E.3d 321 —as clarified in People v. Burns , 2015 IL 117387, ¶¶ 22, 32, 413 Ill.Dec. 810, 79 N.E.3d 159 —our supreme court struck down that portion of the AUUW statute as facially unconstitutional, concluding that it violated the right to keep and bear arms guaranteed by the second amendment to the United States Constitution.

¶ 12 Recently, in People v. McFadden , 2016 IL 117424, 406 Ill.Dec. 470, 61 N.E.3d 74, our supreme court considered the effect of its holding in Aguilar on a defendant's subsequent conviction for UUWF, which required the State to prove that a defendant who "has been convicted of a felony" knowingly possessed a firearm ( 720 ILCS 5/24-1.1(a) (West 2008)). The defendant in that case claimed that his predicate felony conviction was under the portion of the AUUW statute held to be unconstitutional in Aguilar . McFadden , 2016 IL 117424, ¶ 16, 406 Ill.Dec. 470, 61 N.E.3d 74. The McFadden court began with the proposition that, "[w]hen a statute is held to be facially unconstitutional, the statute is said to be void ab initio , i.e. , void from the beginning." (Internal quotation marks omitted.) Id. ¶ 17. It noted that a defendant may not be prosecuted under a facially unconstitutional statute and, "as a remedy, must be allowed to apply the court's declaration as a basis to vacate [the] judgment of conviction." Id. ¶ 19. But the defendant in McFadden did not seek to vacate his prior AUUW conviction. Id. ¶ 21. He instead challenged his subsequent UUWF conviction, arguing that the State could not rely on his constitutionally invalid AUUW conviction as the predicate felony for the UUWF conviction. Id.

¶ 13 The McFadden court did not agree. Noting that its own precedent applying the void ab initio doctrine did not resolve the question, it looked to the United States Supreme Court's decision in Lewis v. United States , 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). McFadden , 2016 IL 117424, ¶ 22, 406 Ill.Dec. 470, 61 N.E.3d 74. There, the Court was asked to consider whether a prior felony conviction, which the defendant claimed was constitutionally infirm because he was unrepresented by counsel, could nevertheless be used by the government as the predicate felony for a charge that the defendant had violated the federal felon-in-possession-of-a-firearm statute. Lewis , 445 U.S. at 65, 100 S.Ct. 915. The McFadden court concluded that the plain language of the UUWF statute, like the plain language of the statute at issue in Lewis , evidenced the legislature's intent to subject a broad category of individuals to a prohibition on gun possession. McFadden , 2016 IL 117424, ¶¶ 23, 28-29, 406 Ill.Dec. 470, 61 N.E.3d 74. In the McFadden court's view, neither statute required the government to prove the predicate offense itself, but merely the defendant's status as a convicted felon, a status that " [w]ould cease only when the conviction upon which the status depend[ed] ha[d] been vacated.’ " Id. ¶ 29 (quoting Lewis , 445 U.S. at 61 n.5, 100 S.Ct. 915 ). Under McFadden , the burden is thus on a criminal defendant who has been convicted under a facially unconstitutional statute to clear his status as a felon through the judicial process to avoid future convictions predicated in part on that status. Id. ¶ 30.

¶ 14 Like the defendant in McFadden , Mr. Smith has not sought to vacate his prior AUUW conviction, but contends that it cannot properly serve as a predicate offense for a later conviction. Mr. Smith argues that we should not follow McFadden because it is inconsistent with the United States Supreme Court's decisions in Montgomery v. Louisiana , 577 U.S. ––––, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), and Ex Parte Siebold , 100 U.S. 371, 25 L.Ed. 717 (1879). He also argues that the McFadden court's reliance on Lewis is inapplicable here because the AHC statute requires the State to prove more than just a defendant's status as a convicted felon. In response, the State insists that McFadden unequivocally dictates the result in this case.

¶ 15 For the reasons discussed below, we agree with the State—and with the other panels of this court that have considered this issue—that we are bound by precedent to affirm Mr. Smith's AHC conviction. There is no doubt that the holding in this case and others like it extends the reach of McFadden and greatly increases the collateral consequences of a constitutionally invalid criminal conviction. We join the other members of this court who have recognized that this inequitable result calls out for a legislative remedy.

¶ 16 Whether a conviction may properly serve as a predicate offense is a question of law, which we review de novo . People v. O'Neal , 2016 IL App (1st) 132284, ¶ 29, 408 Ill.Dec. 598, 66 N.E.3d 390. The specific legal question presented here—whether the rule in McFadden that an invalid conviction can serve as a predicate offense for a subsequent conviction should be applied in cases where the...

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