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                              Appellate Court                            Date: 2017.10.02
                                                                         15:46:04 -05'00'



                  People v. McGee, 2017 IL App (1st) 141013-B



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           MARCHELLO McGEE, Defendant-Appellant.



District & No.    First District, Second Division
                  Docket No. 1-14-1013



Filed             June 13, 2017



Decision Under    Appeal from the Circuit Court of Cook County, No. 12-CR-17661; the
Review            Hon. Mary Margaret Brosnahan, Judge, presiding.



Judgment          Affirmed.


Counsel on        Michael J. Pelletier, Patricia Mysza, and Adrienne N. River, of State
Appeal            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.



Panel             JUSTICE PIERCE delivered the judgment of the court, with opinion.
                  Justice Simon concurred in the judgment and opinion.
                  Presiding Justice Hyman specially concurred, with opinion.
                                                OPINION

¶1       A jury convicted defendant Marchello McGee of armed habitual criminal (AHC) (720
     ILCS 5/24-1.7(a) (West 2012)) and unlawful use of a weapon by a felon (UUWF) (720 ILCS
     5/24-1.1(a) (West 2012)). An essential element of the offense of AHC is proof that the
     defendant was previously convicted of at least two felonies enumerated in the statute. An
     essential element of the offense of UUWF is proof that the defendant was previously convicted
     of any felony under the laws of this State or of any other jurisdiction. The question presented
     here is whether a conviction under the portion of the aggravated unlawful use of a weapon
     (AUUW) statute found to be unconstitutional under People v. Aguilar, 2013 IL 112116, and
     People v. Burns, 2015 IL 117387, can be used to establish an element of the offense of AHC or
     UUWF. People v. McGee, 2016 IL App (1st) 141013. We determined that under the facts of
     this case, defendant’s conviction for AUUW could not be used to establish an element of the
     offense of AHC but could be used to establish an element of the offense of UUWF. Id.
     Accordingly, we vacated defendant’s conviction for AHC, affirmed his conviction for UUWF,
     and remanded for sentencing on that conviction because the trial court did not impose a
     sentence on the UUWF verdict due to merger. Id. ¶ 29.
¶2       In a September 28, 2016, supervisory order, our supreme court instructed us to vacate our
     judgment in People v. McGee, 2016 IL App (1st) 141013, and to determine whether in light of
     People v. McFadden, 2016 IL 117424, a different result is warranted. People v. McGee, No.
     120590 (Ill. Sept. 28, 2016) (supervisory order). The parties were allowed to file supplemental
     briefs with respect to the McFadden decision. Upon recommendation, we now vacate our
     previous judgment and enter this opinion in its stead.

¶3                                         BACKGROUND
¶4        Defendant was charged with nine counts of possessing a firearm and ammunition on or
     about September 11, 2012. Seven counts were nol-prossed before trial.1 The State proceeded
     to trial on two counts. Count I alleged that defendant committed the offense of AHC in that he
     possessed a firearm “after having been convicted of [UUWF] under case number 08CR13500
     and [AUUW] under case number 07CR5014.” See 720 ILCS 5/24-1.7 (West 2012). Count II
     alleged that defendant committed the offense of UUWF in that he possessed a firearm “after
     having been previously convicted of the felony offense of [UUWF], under case number
     08CR13500.” See 720 ILCS 5/24-1.1(a) (West 2012). Defendant was convicted of both
     counts. The convictions merged and defendant was sentenced to 14 years’ imprisonment on
     the AHC conviction.




         1
          The nol-prossed charges included three counts of UUWF, alleging that defendant possessed a
     firearm or ammunition with the UUWF conviction in case No. 08 CR 13500 (720 ILCS 5/24-1.1 (West
     2012)), and four counts of AUUW under section 24-1.6 of the Criminal Code of 2012 (720 ILCS
     5/24-1.6(a)(1), (a)(3)(A); (a)(2), (a)(3)(A) (West 2012) (firearm uncased, loaded, and immediately
     accessible); 720 ILCS 5/24-1.6(a)(1), (a)(3)(C); (a)(2), (a)(3)(C) (West 2012) (firearm without a valid
     Firearm Owner’s Identification Card)).

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¶5                                                ANALYSIS
¶6          Before this court, defendant contends that his AHC and UUWF convictions must be
       vacated because the predicate felony convictions alleged were aggravated unlawful use of a
       weapon (AUUW) convictions based on statutory provisions that were declared facially
       unconstitutional in Aguilar. For the reasons stated below, we affirm.
¶7          To sustain a conviction for AHC, the State is required to prove that defendant possessed a
       firearm after having “been convicted a total of 2 or more times of any combination of the
       following” qualifying offenses, which include, but are not limited to, a forcible felony,
       AUUW, and/or a Class 3 or higher drug felony. 720 ILCS 5/24-1.7(a) (West 2012). In count I,
       the AHC charge, the State alleged that defendant had been previously convicted of two
       qualifying felony offenses: a UUWF conviction under case No. 08 CR 13500 and an AUUW
       conviction under case No. 07 CR 5014.
¶8          To prove defendant guilty of UUWF, the State was required to prove that defendant
       knowingly possessed any firearm and had previously been convicted of any felony. 720 ILCS
       5/24-1.1(a) (West 2012). In count II, the UUWF count, the State alleged that defendant
       knowingly possessed a firearm and had been previously convicted of UUWF in case No. 08
       CR 13500.
¶9          In case No. 07 CR 5014, which served as one of the predicate felony offenses for the AHC
       charge, defendant was convicted of AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West
       2006)) committed on or about January 25, 2007, by possessing an uncased, loaded, and
       immediately accessible firearm while not on his own land, abode, or fixed place of business,
       after previously being convicted of possession of a controlled substance in case No. 01 CR
       790, and received a Class 2 sentence of three years’ imprisonment.
¶ 10        In case No. 08 CR 13500, which served as a predicate felony offense for both the AHC
       charge and the UUWF charge, defendant was convicted of two counts of UUWF (720 ILCS
       5/24-1.1(a) (West 2008)) and four counts of AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A);
       (a)(1), (a)(3)(C); (a)(2), (a)(3)(A); (a)(2), (a)(3)(C) (West 2008)) and was sentenced on all six
       counts to a Class 2 concurrent sentence of six years’ imprisonment. The two UUWF counts
       alleged that defendant possessed a firearm and ammunition after having been previously
       convicted of AUUW in case No. 07 CR 5014. The four AUUW counts consisted of two counts
       alleging possession of an uncased, loaded, and immediately accessible firearm under section
       24-1.6(a)(1), (a)(3)(A) and section 24-1.6(a)(2), (a)(3)(A) and two counts alleging possession
       of a firearm without a valid Firearm Owner’s Identification Card (FOID card) under section
       24-1.6(a)(1), (a)(3)(C) and section 24-1.6(a)(2), (a)(3)(C). Each of the four AUUW counts in
       case No. 08 CR 13500 alleged the conviction in case No. 07 CR 5014.
¶ 11        In this case, the trial evidence established that, on the night of September 11, 2012, police
       officers responding to a report of a man with a rifle saw defendant on a sidewalk holding a
       large object and discarding it before walking away. The discarded object was immediately
       found to be a loaded rifle. After defendant was arrested, he did not expressly admit to
       possessing the rifle but told the police “I can get you two more guns if you let me walk on this
       rifle.” The parties stipulated2 and the jury was told “that the defendant has been convicted of

           2
             During motions in limine, defendant argued that his prior convictions were so prejudicial that the
       trial should be bifurcated, with the jury first determining whether he possessed a firearm and only then
       being informed of the predicate felonies. The court suggested informing the jury “merely that he has

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       two qualifying felonies under cases number 08 CR 13500 and 07 CR 5014.” The jury found
       defendant guilty of AHC and UUWF. Defendant’s presentence investigation report reflected,
       in relevant part, that he had five prior felony convictions for controlled substance offenses (two
       in 1999, one each in 2001, 2003, and 2004), in addition to his 2007 AUUW conviction and
       2008 UUWF and AUUW convictions.
¶ 12        In its response brief filed before the ruling in People v. Burns, 2015 IL 117387, the State
       argues that defendant’s merged AHC and UUWF convictions need not be reversed because the
       predicate felony convictions in case Nos. 07 CR 5014 and 08 CR 13500 are based on the Class
       2 version of AUUW, which has not been declared unconstitutional, and that the merged
       UUWF conviction is properly based on the predicate felony of UUWF.
¶ 13        On the date of this 2012 offense, the unlawful use of a weapon (UUW) statute, with certain
       exceptions, essentially prohibited a person from carrying or concealing on or about his person,
       or in any vehicle, a firearm except when on his land or in his abode or fixed place of business
       (720 ILCS 5/24-1(a)(4) (West 2012)). The elements of the AUUW offense are set forth in
       section 24-1.6(a) (720 ILCS 5/24-1.6(a) (West 2012)) and generally prohibit possession of a
       firearm on or about a person or in a vehicle or on a public way or within the corporate limits of
       a municipality “and one of nine factors is present.” People v. Burns, 2015 IL 117387, ¶ 23.
       Both the UUW and the AUUW statute prohibit the same conduct. However, the existence of
       any one of the additional factors enumerated in section 24-1.6(a)(3) (720 ILCS 5/24-1.6(a)(3)
       (West 2012)), i.e., the firearm “was uncased, loaded and immediately accessible” or the
       defendant had not been issued a FOID card, elevates the offense classification from a
       misdemeanor to different levels of felony classification and corresponding punishment. 720
       ILCS 5/24-1.6(d) (West 2012).
¶ 14        One’s right to carry a gun outside of the home was discussed in People v. Aguilar, 2013 IL
       112116. Our supreme court adopted the reasoning of District of Columbia v. Heller, 554 U.S.
       570 (2008), McDonald v. City of Chicago, 561 U.S. 742 (2010), and Moore v. Madigan, 702
       F.3d 933 (7th Cir. 2012), and held that the second amendment right to keep and bear arms
       extends beyond the home. Aguilar, 2013 IL 112116, ¶¶ 19-20. The court further held that, “on
       its face, the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) violates the right to keep and
       bear arms, as guaranteed by the second amendment to the United States Constitution” because,
       while “we are in no way saying that such a right is unlimited or is not subject to meaningful
       regulation” “we are dealing not with a reasonable regulation but with a comprehensive ban” on
       possessing an operable firearm outside one’s home. Id. ¶¶ 21-22. “In other words, the Class 4
       form of section 24-1.6(a)(1), (a)(3)(A), (d) amounts to a wholesale statutory ban on the
       exercise of a personal right ***.” Id. ¶ 21.
¶ 15        Aguilar was qualified in our supreme court’s decision in People v. Burns, 2015 IL 117387,
       ¶ 22. In Burns, our supreme court “acknowledge[d] that our reference in Aguilar to a ‘Class 4
       form’ of the [AUUW] offense was inappropriate. No such offense exists. There is no ‘Class 4


       been convicted of a qualifying felony, period.” The State opposed bifurcation. The court denied
       bifurcation and reiterated that it could “simply say qualifying felony” with the case number, unless
       defendant testified, as “then I cannot do any mere-fact impeachment *** anymore.” The parties agreed
       that the jury would be told that defendant had qualifying felony offenses with the case numbers. During
       trial, the parties entered into the stipulation after trial counsel confirmed that “those are, in fact, his prior
       felony convictions.”

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       form’ or ‘Class 2 form’ of AUUW.” Id. The Burns court accepted the defendant’s argument
       that “[t]here is only one offense of AUUW based on section 24-1.6(a)(1), (a)(3)(A) and a prior
       felony conviction is not an element of that offense. Rather, a prior felony conviction is a
       sentencing factor which elevates the offense, for penalty purposes, from a Class 4 felony to a
       Class 2 felony.” Id. ¶ 20. Our supreme court clarified that Class 2 AUUW—that is, AUUW
       committed by a felon—is unconstitutional under the same circumstances and statutory
       provisions as Class 4 AUUW expressly addressed in Aguilar and therefore held that “section
       24-1.6(a)(1), (a)(3)(A) of the statute is facially unconstitutional, without limitation,” because
       “[i]t would be improper for this court to condition the constitutionality of section 24-1.6(a)(1),
       (a)(3)(A) of the AUUW statute on the State’s proof of a defendant’s felon status when the
       legislature did not make that requirement an element of the offense.” Id. ¶¶ 25, 30.
¶ 16       Burns did not alter the core result in Aguilar. Second amendment rights remain protected
       by the scope of the Aguilar ruling. However, Burns did remove any question as to its
       applicability: every person is protected without regard to their criminal background. Burns,
       2015 IL 117387, ¶ 32 (section 24-1.6(a)(1), (a)(3)(A) “is not enforceable against anyone”) .
¶ 17       Our supreme court decided People v. McFadden, 2016 IL 117424, on June 16, 2016, which
       involved a direct appeal from a UUWF conviction for possessing a firearm after having a prior
       conviction for AUUW. On direct appeal, McFadden argued that his UUWF conviction should
       be vacated because it was predicated on his prior AUUW conviction, which was entered under
       the section of the statute that was held facially unconstitutional in Aguilar, and thus, the State
       failed to prove all of the elements of the offense. People v. McFadden, 2014 IL App (1st)
       102939. We vacated the defendant’s UUWF conviction on the basis that the predicate offense
       of AUUW was void ab initio based on Aguilar. Id. ¶ 43.
¶ 18       Reversing, our supreme court held that defendant’s status as a felon was not affected by
       Aguilar. McFadden, 2016 IL 117424, ¶ 13. The McFadden court examined the language of the
       UUWF statute, which prohibits a person from knowingly possessing a firearm “ ‘if the person
       has been convicted of a felony under the laws of this State or any other jurisdiction.’ ” Id. ¶ 27
       (quoting 720 ILCS 5/24-1.1(a) (West 2008)). The court explained “the language of the statute
       [(UUWF)] requires the State to prove only ‘the defendant’s felon status,’ ” and does not
       require that the State prove the predicate offense at trial. Id. (quoting People v. Walker, 211 Ill.
       2d 317, 337 (2004)); 720 ILCS 5/24-1.1(a) (West 2008). The court expressly found that
       “[n]othing on the face of the statute suggests any intent to limit the language to only those
       persons whose prior felony convictions are not later subject to vacatur” and further found that
       “the language of section 24-1.1(a) is ‘consistent with the common-sense notion that a disability
       based upon one’s status as a convicted felon should cease only when the conviction upon
       which that status depends has been vacated.’ ” McFadden, 2016 IL 117424, ¶¶ 27, 29 (quoting
       Lewis v. United States, 445 U.S. 55, 61 n.5 (1980)). In addition, the court found that because
       the purpose of the UUWF statute is to protect the public from persons who are potentially
       dangerous and irresponsible, it is immaterial if the predicate conviction is subsequently found
       invalid for any reason. Id. ¶ 29 As a result, the court found that the UUWF statute is a “status
       offense” and that the legislature intended that a defendant must clear his felon status through
       the judicial process by having his prior felony conviction vacated or expunged prior to
       obtaining a firearm and explained:
                   “It is axiomatic that no judgment, including a judgment of conviction, is deemed
                vacated until a court with reviewing authority has so declared. As with any conviction,

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                a conviction is treated as valid until the judicial process has declared otherwise by
                direct appeal or collateral attack. Although Aguilar may provide a basis for vacating
                defendant’s prior 2002 AUUW conviction, Aguilar did not automatically overturn that
                judgment of conviction. Thus, at the time defendant committed the UUW by a felon
                offense, defendant had a judgment of conviction that had not been vacated and that
                made it unlawful for him to possess firearms.” Id. ¶ 31.
¶ 19       In this case, the parties filed supplemental briefs discussing McFadden’s impact on issues
       defendant presented. Defendant now argues that the AHC statute, which is distinguishable
       from both the UUW statute at issue in McFadden and the federal felon-in-possession of a
       firearm statute in Lewis, is not satisfied by proof of a prior conviction that violates the second
       amendment. The State responds that this court has already considered and rejected this
       argument in People v. Perkins, 2016 IL App (1st) 150889.
¶ 20       In Perkins, we applied the McFadden analysis to an AHC conviction. Perkins was
       convicted as an AHC and filed a postconviction petition alleging the State failed to prove him
       guilty beyond a reasonable doubt because his AHC conviction was predicated on the AUUW
       statute found facially unconstitutional under Aguilar and therefore his AUUW conviction was
       void ab initio. Id. ¶ 2. The State appealed from the trial court’s order granting postconviction
       relief. Id. ¶ 3.
¶ 21       Before this court on appeal, Perkins argued that McFadden’s reasoning was limited to the
       offense of UUWF because “UUWF impose[d] a ‘status-based disability’ that precludes any
       convicted felon from possessing a firearm” whereas “the offense of [AHC] requires the State
       to prove that the defendant was convicted of specific enumerated offenses.” Id. ¶ 6. Perkins
       further argued that UUWF imposed a “ ‘status-based disability,’ ” whereas the AHC
       conviction “ ‘imposes a conduct-based disability *** based on a defendant’s commission of
       specific acts,’ ” and therefore “because the conduct of which he was previously
       convicted—possession of a firearm—was constitutionally protected, it cannot serve as a
       predicate for his [AHC] conviction.” (Emphasis in original.) Id.
¶ 22       The Perkins court rejected defendant’s attempt to distinguish the UUWF offense from the
       AHC offense in this context as a “distinction without a difference.” Id. ¶ 7. We explained:
                “In order to sustain its burden to prove that a defendant is an [AHC], the State need
                only prove the fact of the prior convictions of enumerated offenses [citations], just as
                the State need only prove the fact of a prior felony conviction to support a UUWF
                conviction. Nothing in the [AHC] statute requires a court to examine a defendant’s
                underlying conduct in commission of the enumerated offenses in order to find that the
                State has sustained its burden of proof. And because here, as in McFadden, Perkins’
                prior convictions had not been vacated prior to his [AHC] conviction, they could
                properly serve as predicates for that conviction.” Id.
¶ 23       Defendant acknowledges Perkins but argues it was wrongly decided. We disagree and find
       the reasoning employed in Perkins applies and defeats defendant’s attempt to distinguish the
       AHC statute in this case from the UUWF statute in McFadden. Because defendant failed to
       vacate his prior AUUW conviction prior to the time he possessed a firearm in this case, the
       prior AUUW conviction could serve as the predicate offense for his AHC conviction. Id. ¶ 10.
       Accordingly, we reject defendant’s argument.
¶ 24       Defendant also argues that Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016),
       and Ex parte Siebold, 100 U.S. 371 (1880), mandate that defendant’s convictions for both

                                                   -6-
       AHC and UUWF be vacated. Defendant claims that the McFadden court did not consider the
       impact of Montgomery and Siebold, which prevent states from punishing citizens based on a
       law that is facially unconstitutional, on the issue of whether a facially unconstitutional
       conviction can be used as a predicate offense for UUWF, let alone an AHC offense.
¶ 25       We reject defendant’s argument that the McFadden court did not consider Montgomery.
       Defense counsel in McFadden was granted leave to cite Montgomery as additional authority
       and in response to the defendant’s reliance on Montgomery, the State argued that the United
       States Supreme Court decision in Lewis was controlling. Our supreme court agreed. People v.
       Smith, 2017 IL App (1st) 122370-B, ¶ 28; McFadden, 2016 IL 117424, ¶ 34; Perkins, 2016 IL
       App (1st) 150889, ¶ 9.
¶ 26       In view of the foregoing, we review defendant’s convictions. In count I, defendant was
       charged with AHC, which required the State to plead and prove the essential element of at least
       two enumerated prior felony convictions. The State alleged and proved by way of stipulation
       that defendant was previously convicted of a “qualifying” felony in case No. 07 CR 5014 and
       case No. 08 CR 13500.
¶ 27       Defendant’s felony conviction in case No. 07 CR 5014 was alleged as an element of the
       AHC offense, and may serve as a predicate felony pursuant to McFadden because there is no
       evidence presented that the conviction in case No. 07 CR 5014 was vacated by any judicial
       process. Therefore the case No. 07 CR 5014 conviction can properly serve as proof of an
       essential element of one of two prior felony convictions necessary to prove the offense of AHC
       as charged in count I. We affirm defendant’s conviction on count I.
¶ 28       McFadden is also dispositive of defendant’s claim that his UUWF conviction is invalid
       because the predicate felony conviction (case No. 07 CR 5014) in case No. 08 CR 13500 is
       constitutionally invalid under Aguilar and Burns. Count II charged defendant with
       UUWF—possession of a firearm “after having been previously convicted of the [sic] felony
       offense.” The State proved by stipulation one felony required for this charge: a felony
       conviction under case No. 08 CR 13500. An essential element of proof was that the
       defendant’s status as a felon be established beyond a reasonable doubt, not that a particular or
       specific felony be proved or that the felony was charged under a specific or indentified case
       number. As discussed, defendant did not vacate his felony conviction for AUUW in case No.
       07 CR 5014, and therefore it properly served as a predicate felony for case No. 08 CR 13500,
       which the State used to prove defendant’s status as a felon. In any event, in case No. 08 CR
       13500, defendant was convicted of six firearm related felony counts, of which four were for
       AUUW. Two of those counts were for possession of a firearm without a valid FOID card under
       section 24-1.6(a)(1), (a)(3)(C) (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2006)). Our supreme
       court has found AUUW based on not having a valid FOID card under section 24-1.6(a)(1),
       (a)(3)(C) to be constitutional and severable from the unconstitutional “forms” of AUUW.
       People v. Mosley, 2015 IL 115872, ¶¶ 31, 36. We therefore affirm defendant’s conviction for
       UUWF.

¶ 29                                       CONCLUSION
¶ 30      For the foregoing reasons, we affirm defendant’s conviction for AHC and UUWF.

¶ 31      Affirmed.


                                                  -7-
¶ 32       PRESIDING JUSTICE HYMAN, specially concurring.
¶ 33       I agree with my colleagues that People v. McFadden controls the result. I write separately,
       as I did in my special concurrence in People v. Spivey, 2017 IL App (1st) 123563, to urge the
       legislature to amend the relevant statutes to indicate that if a person was convicted under the
       unconstitutional AUUW statute, that void conviction may not be used to enhance a later
       charge. This would undo the residual effect of the continued viability of convictions obtained
       under a statute that has been declared void ab initio and without legal consequence.




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