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                                  Supreme Court                              Date: 2016.01.08
                                                                             09:55:40 -06'00'




                         People v. Schweihs, 2015 IL 117789




Caption in Supreme   THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JAMES
Court:               F. SCHWEIHS, Appellee.



Docket No.           117789



Filed                December 3, 2015



Decision Under       Appeal from the Circuit Court of Kane County, the Hon. John A.
Review               Barsanti, Judge, presiding.



Judgment             Circuit court order reversed.
                     Cause remanded.

Counsel on           Lisa Madigan, Attorney General, of Springfield (Carolyn E. Shapiro,
Appeal               Solicitor General, and Michael M. Glick and Garson S. Fischer,
                     Assistant Attorneys General, of Chicago, of counsel), for the People.

                     John Thomas Moran, Jr., of Chicago, for appellee.



Justices             JUSTICE THEIS delivered the judgment of the court, with opinion.
                     Chief Justice Garman and Justices Freeman, Thomas, Kilbride,
                     Karmeier, and Burke concurred in the judgment and opinion.
                                             OPINION

¶1       In this appeal, we consider whether section 24-1.6(a)(1), (a)(3)(C) of the Aggravated
     Unlawful Use of a Weapon statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2012)) violates
     the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11)
     and the equal protection clauses of the United States and Illinois Constitutions (U.S. Const.,
     amend. XIV; Ill. Const. 1970, art. I, § 2). For the following reasons, we hold that it does not.
     We reverse the order of the circuit court and remand for further proceedings.

¶2                                        BACKGROUND
¶3       In October 2012, defendant James Schweihs was charged in a five-count indictment in
     the circuit court of Kane County with two counts of aggravated unlawful use of a weapon
     (AUUW), one count of violating the Firearm Owners Identification Card Act (FOID Card
     Act), and two counts of domestic battery for striking Patricia Schweihs. Relevant to this
     appeal, count I of the indictment alleged that defendant committed the offense of AUUW by
     violating section 24-1.6(a)(1), (a)(3)(C) (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2012)) in
     that defendant knowingly carried or concealed in a motor vehicle a .45-caliber handgun, at a
     time when he was not on his own land, and at the time he carried it he had not been issued a
     currently valid FOID card. Count II of the indictment alleged that defendant committed the
     offense of AUUW by violating section 24-1.6(a)(1), (a)(3)(A) (720 ILCS 5/24-1.6(a)(1),
     (a)(3)(A) (West 2012)) because he knowingly carried or concealed a handgun in a motor
     vehicle and the handgun was uncased, loaded, and immediately accessible to him at the time.
¶4       Thereafter, defendant filed a motion to dismiss the AUUW charges, asserting that the
     statute violated the second amendment of the United States Constitution. Following this
     court’s opinion in People v. Aguilar, 2013 IL 112116 (which invalidated section 24-1.6(a)(1),
     (a)(3)(A)), count II was dismissed. The circuit court then granted defendant’s motion to
     dismiss count I. The court determined that in light of Aguilar, the substantive elements of the
     AUUW offense under which he was indicted (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West
     2012)) were the same as the substantive elements of a violation of the FOID Card Act (430
     ILCS 65/2 (West 2012)), but that the AUUW statute punished possession of a firearm
     without a FOID card as a Class 4 felony (720 ILCS 5/24-1.6(d) (West 2012)), and the FOID
     Card Act punished possession of a firearm without a FOID card as a Class A misdemeanor
     (430 ILCS 65/14(b) (West 2012)). Therefore, although not raised by defendant as the basis
     for his motion to dismiss, the circuit court sua sponte held that the penalties for the two
     offenses were unconstitutionally disproportionate. The court concluded that the appropriate
     remedy was to dismiss the charge.
¶5       Thereafter, the State filed a notice of appeal, together with a certificate of impairment.
     The matter was subsequently transferred to this court pursuant to Illinois Supreme Court
     Rules 365 and 603 (Ill. S. Ct. R. 365 (eff. Feb. 1, 1994); R. 603 (eff. Feb. 6, 2013)) as a
     matter of right. This court then granted the State’s motion to remand to the circuit court for
     compliance with Illinois Supreme Court Rule 18 (eff. Sept. 1, 2006).
¶6       On remand, the circuit court issued its written order, declaring section 24-1.6(a)(1),
     (a)(3)(C) unconstitutional based on a violation of the proportionate penalties clause. The
     court reasoned that after Aguilar, the triggering elements in section 24-1.6(a)(1) violated the


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       constitution, and that there was no longer any legal significance between carrying a firearm
       on the street or in a vehicle versus on one’s own land because the possession of a loaded
       firearm in either location was conduct protected by the second amendment. Based upon that
       finding, the court concluded that the only illegal behavior constitutionally prohibited was that
       defendant had possessed a firearm without having been issued a valid FOID card under
       subsection (a)(3)(C), which was identical to the elements of a violation of the FOID Card
       Act, but imposed a harsher penalty. Additionally, without any legal analysis, the court
       declared that section 24-1.6(a)(1), (a)(3)(C) violated equal protection guarantees under the
       United States and Illinois Constitutions.

¶7                                               ANALYSIS
¶8          Initially, defendant raises an issue of this court’s jurisdiction over this appeal. Defendant
       contends that the matter is not properly before this court on the State’s filing of a certificate
       of impairment under Illinois Supreme Court Rule 604(a)(1) (eff. Feb. 6, 2013) because the
       circuit court’s ruling only impaired one count of the indictment, and nothing impaired the
       State’s ability to prosecute the remaining counts of the indictment. However, the State
       subsequently filed a motion in the appellate court to transfer the case to this court pursuant to
       Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013).
¶9          Rule 603 provides that “[a]ppeals in criminal cases in which a statute *** of this State
       has been held invalid shall lie directly to the Supreme Court as a matter of right.” Ill. S. Ct.
       R. 603 (eff. Feb. 6, 2013). It was on that basis that the appellate court transferred the cause
       according to Illinois Supreme Court Rule 365 (eff. Feb. 1, 1994) (authorizing courts of
       review to transfer cases that have been appealed to the wrong court). Here, there is no dispute
       that the circuit court’s ruling invalidated a statute of this state. Accordingly, our jurisdiction
       over the appeal is proper under Rule 603. See, e.g., People v. Sharpe, 216 Ill. 2d 481, 486
       (2005); People v. Miller, 202 Ill. 2d 328, 334-35 (2002); People v. Garcia, 199 Ill. 2d 401,
       402 (2002); People v. Espinoza, 184 Ill. 2d 252, 255 (1998).
¶ 10        With respect to the constitutionality of the statute, we begin by noting that the question of
       whether a statute is unconstitutional is a question of law, which this court reviews de novo.
       People v. Richardson, 2015 IL 118255, ¶ 8. All statutes are presumed constitutional, and the
       party challenging the constitutionality of a statute has the burden of clearly establishing that
       it violates the constitution. Id. Article I, section 11, of the Illinois Constitution provides that
       “[a]ll penalties shall be determined both according to the seriousness of the offense and with
       the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. A
       proportionate penalties violation, under the identical elements test, occurs when “two
       offenses have identical elements but disparate sentences.” (Internal quotation marks omitted.)
       People v. Blair, 2013 IL 114122, ¶ 32. We have explained that applying different penalties
       for identical elements violates the proportionate penalties clause because “[i]f the legislature
       determines that the exact same elements merit two different penalties, then one of these
       penalties has not been set in accordance with the seriousness of the offense.” Sharpe, 216 Ill.
       2d at 522.
¶ 11        The State contends that there is no proportionate penalties violation here because the
       offense of AUUW requires proof of different elements than those required to prove a
       violation of the FOID Card Act. Thus, we begin our analysis by setting forth the two statutes


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       at issue.

¶ 12       In relevant part, section 24-1.6 provides as follows:
                    “(a) A person commits the offense of aggravated unlawful use of a weapon when
                he or she knowingly:
                        (1) Carries on or about his or her person or in any vehicle or concealed on or
                    about his or her person except when on his or her land or in his or her abode, legal
                    dwelling, or fixed place of business, or on the land or in the legal dwelling of
                    another person as an invitee with that person’s permission, any pistol, revolver,
                    stun gun or taser or other firearm; [and]
                        ***
                        (3) One of the following factors is present:
                                                     ***
                            (C) the person possessing the firearm has not been issued a currently valid
                        Firearm Owner’s Identification Card[.]” 720 ILCS 5/24-1.6(a)(1), (a)(3)(C)
                        (West 2012).
¶ 13       Section 2(a)(1) of the FOID Card Act provides as follows:
                    “(a)(1) No person may acquire or possess any firearm, stun gun, or taser within
                this State without having in his or her possession a Firearm Owner’s Identification
                Card previously issued in his or her name by the Department of State Police under the
                provisions of this Act.” 430 ILCS 65/2(a)(1) (West 2012).
¶ 14       We recently considered and rejected the argument that these two statutes have identical
       elements in People v. Williams, 2015 IL 117470. There, we explained that to prove the
       offense of AUUW, the State is required to establish that defendant knowingly carried on his
       person or in any vehicle, outside the home, a firearm without having been issued a valid
       FOID card. In contrast, to prove a violation of the FOID Card Act, the State need only prove
       possession of a firearm without a FOID card. Id. ¶ 14. Thus, in Williams we found that the
       AUUW statute requires proof of an additional location element that is not required under the
       FOID Card Act. Id. We noted that a violation of the FOID Card Act can occur in one’s home,
       but that such conduct would not be a violation of the AUUW statute. Id. Because AUUW has
       this additional location element, we determined that the offense of AUUW and a violation of
       the FOID Card Act are not identical. Accordingly, we held that without identical elements,
       there can be no proportionate penalties violation. Id.
¶ 15       Additionally, as we did in Williams (id. ¶ 16), we reject defendant’s argument predicated
       on the trial court’s notion that in Aguilar this court invalidated the “triggering threshold
       elements” of section 24-1.6(a)(1) of the AUUW statute, including the location element. In
       Aguilar we held that the form of AUUW set forth in section 24-1.6(a)(1), (a)(3)(A) violated
       the second amendment right to keep and bear arms because it operated as an absolute ban on
       an individual’s otherwise legal right to possess a gun for self-defense outside the home.
       Aguilar, 2013 IL 112116, ¶ 21. Nevertheless, as we reiterated in Williams, we explicitly held
       that “ ‘[o]f course, in concluding that the second amendment protects the right to possess and
       use a firearm for self-defense outside the home, we are in no way saying that such a right is
       unlimited or is not subject to meaningful regulation.’ ” Williams, 2015 IL 117470, ¶ 16


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       (quoting Aguilar, 2013 IL 112116, ¶ 21). Notably, in Aguilar we did not invalidate any other
       section or subsection of the AUUW statute. Aguilar, 2013 IL 112116, ¶ 22 n.3.
¶ 16        Thereafter, in People v. Mosley, 2015 IL 115872, ¶ 61, we clarified that the location
       element in section 24-1.6(a)(1) of the AUUW statute is constitutional and enforceable when
       combined with subsection (a)(3)(C) and is severable from the provision found
       unconstitutional in Aguilar. Mosley, 2015 IL 115872, ¶ 31 (“[W]e believe that subsections
       (a)(1), (a)(2), and the remaining factors in subsection (a)(3) can stand independently of
       subsection (a)(3)(A), which is only one of several factors that operate in conjunction with
       subsection (a)(1) or (a)(2) to comprise the substantive offense. [Citation.]” (Internal
       quotation marks omitted.)). Thus, contrary to the circuit court’s ruling, the location element
       in section 24-1.6(a)(1) remains a viable element of the AUUW statute when combined with
       subsection (a)(3)(C). Accordingly, we find no proportionate penalties violation.
¶ 17        With respect to the trial court’s separate sua sponte ruling that section 24-1.6(a)(1),
       (a)(3)(C) violates equal protection, we begin by noting that the basis for the trial court’s
       finding was not articulated in the Rule 18 order. The difficult task of reviewing a circuit
       court’s decision to invalidate a statute is made that much more difficult when the ruling is
       conclusory and unsupported by any legal analysis or explanation. People v. Cornelius, 213
       Ill. 2d 178, 189 (2004). We reiterate that “[w]hen a circuit court does something as serious as
       holding that a statute violates the constitution, then the circuit court must also be mindful to
       clearly state *** the legal basis for that ruling.” Id. Furthermore, defendant now concedes
       that our decision in Mosley “eliminated the viability of an Equal Protection argument.”
¶ 18        To the extent that the circuit court’s ruling appears to be intertwined with the
       proportionate penalties argument, we have previously held that when a defendant’s conduct
       violates more than one statute, each of which requires different proof, a defendant is not
       denied equal protection if he is prosecuted under the statute which provides the greater
       penalty. People v. Jamison, 197 Ill. 2d 135, 161-62 (2001); People v. McCollough, 57 Ill. 2d
       440, 444 (1974).

¶ 19                                        CONCLUSION
¶ 20       For the foregoing reasons, the order of the circuit court of Kane County, which declared
       unconstitutional section 24-1.6(a)(1), (a)(3)(C) of the AUUW statute, and which dismissed
       count I of the indictment, is reversed, and the cause is remanded to the circuit court for
       further proceedings.

¶ 21      Circuit court order reversed.
¶ 22      Cause remanded.




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