                                    2016 IL App (1st) 141013




                                                                             SECOND DIVISION
                                                                               February 16, 2016




No. 1-14-1013


THE PEOPLE OF THE STATE OF ILLINOIS,                         )       Appeal from the
                                                             )       Circuit Court of
                       Plaintiff-Appellee,                   )       Cook County.
                                                             )
v.                                                           )       No. 12 CR 17661
                                                             )
MARCHELLO McGEE,                                             )       Honorable
                                                             )       Mary Margaret Brosnahan,
                       Defendant-Appellant.                  )       Judge Presiding.



       PRESIDING JUSTICE PIERCE delivered the judgment of the court, with opinion.
       Justices Simon and Hyman concurred in the judgment and 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
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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.

¶2                                          BACKGROUND

¶3      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 one 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 two

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.

¶4                                             ANALYSIS

¶5      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


1       The nol-prossed charges included three counts of UUWF, alleging that defendant possessed a firearm or

ammunition with the UUWF conviction in case number 08 CR 13500, and four counts of AUUW under section

24.1-1.6(a)(3)(A) or section 24-1.6(a)(3)(C) of the Criminal Code (720 ILCS 5/24-1.6(a)(3)(A) (West 2012)

(firearm uncased, loaded, and immediately accessible) (720 ILCS 5/24-1.6(a)(3)(C) (West 2012) (firearm without a

valid Firearm Owner's Identification Card, or FOID)).




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unconstitutional in Aguilar. For the reasons stated below, we reverse defendant’s AHC

conviction, affirm the UUWF conviction and remand for sentencing.

¶6      To sustain a conviction for AHC, the State is required to prove that defendant possessed a

firearm after having "been convicted 2 or more times of any 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 one, the AHC charge, the State alleged

that defendant had been previously convicted of two qualifying felony offenses: a UUWF

conviction under case number 08 CR 13500 and an AUUW conviction under case number 07 CR

5014.

¶7      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 two, the UUWF count, the State alleged that defendant

knowingly possessed a firearm and had been previously convicted of UUWF in case number 08

CR 13500.

¶8      In case number 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)(3)

(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 number 01 CR

790, and received a Class 2 sentence of three years' imprisonment.

¶9      In case number 08 CR 13500, which served as a predicate felony offense for both the

ACH charge and the UUWF charge, defendant was convicted of two counts of UUWF (720


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ILCS 5/24-1.1(a) (West 2008)), 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) and (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 number 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 (a)(2), (a)(3)(A) and two counts alleging possession of a

firearm without a valid FOID card under section 24-1.6(a)(1), (a)(3)(C) and (a)(2), (a)(3)(C).

Each of the four AUUW counts in case number 08 CR 13500 alleged the conviction in case

number 07 CR 5014.

¶ 10     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

stipulated 2 and the jury was told "that the defendant has been convicted of two qualifying


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 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




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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.

¶ 11     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 numbers 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.

¶ 12     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 are 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) (720 ILCS 5/24-1.6(a) (West 2012)),



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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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).

¶ 13    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.

¶ 14    Aguilar was qualified in our supreme court's recent 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 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


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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.

¶ 15   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") .

¶ 16   After Aguilar, but before Burns, this court considered the issue raised here: whether a

conviction for UUWF may stand where the defendant's predicate felony as alleged in the

charging document is based on a conviction for a UUW or AUUW offense that is facially

unconstitutional under Aguilar. In People v. McFadden, 2014 IL App (1st) 102939, appeal

allowed, No. 117424 (Ill. May 28, 2014), we vacated a UUWF conviction where the predicate

felony alleged and proven in the charging document was Class 4 AUUW. We agreed with the

defendant that "under Aguilar, the State could not rely on this now-void conviction to serve as a

predicate offense for UUW by a felon" and thus "failed to prove an essential element of the

offense." Id. ¶ 38. Because a prior felony conviction is an element of UUWF that must be proven

beyond a reasonable doubt by the State, we held that a void conviction for "the Class 4 form" of

AUUW found unconstitutional in Aguilar cannot serve as a predicate offense. Id. ¶¶ 42-43


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(citing People v. Walker, 211 Ill. 2d 317 (2004)). While we found that "because defendant's case

is pending on direct appeal in this court, *** we cannot ignore Aguilar's effects on his conviction

for UUW by a felon," we refrained from "vacating defendant's [predicate] AUUW conviction

*** pursuant to Aguilar" and "decline[d] to address whether formal proceedings for collateral

relief may be available to defendant to vacate his conviction in that [predicate] case." Id. ¶¶ 41,

44.

¶ 17   In People v. Fields, 2014 IL App (1st) 110311, the defendant argued that his AHC

conviction must be reversed in light of Aguilar; that is, because his prior conviction for AUUW

under section 1.6(a)(3)(A) is void under Aguilar, the State could not rely on that conviction as a

predicate offense for armed habitual criminal so that the State failed to prove an element of the

offense of armed habitual criminal. Id. ¶¶ 38-39. We held that:

       "[W]e cannot allow defendant's 2005 Class 4 AUUW conviction, which we now know is

       based on a statute that was found to be unconstitutional and void ab initio in Aguilar, to

       stand as a predicate offense for defendant's armed habitual criminal conviction, where the

       State is required to prove each element of the Class 4 AUUW beyond a reasonable doubt.

       A void conviction for the Class 4 form of AUUW found to be unconstitutional in Aguilar

       cannot now, nor can it ever, serve as a predicate offense for any charge. Because the issue

       was raised while defendant's appeal was pending, we are bound to apply Aguilar and

       vacate defendant's armed habitual criminal conviction because the State could not prove

       an element of the offense of armed habitual criminal through the use of a predicate felony

       conviction that is void ab initio." Id. ¶ 44.




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¶ 18   In Fields and McFadden, we specifically found that we would consider the validity of the

predicate felony in deciding the case on appeal, however, we would not issue collateral findings

as they relate to the predicate offense. Id. ¶ 45 ("we are not vacating defendant's [predicate]

AUUW conviction *** pursuant to Aguilar. We decline to address whether formal proceedings

for collateral relief may be available to defendant to vacate his 2005 felony UUW conviction.");

see also McFadden, 2014 IL App (1st) 102939, ¶ 44.

¶ 19   We note that McFadden and Fields were decided prior to Burns and therefore this court

only considered the effect that the "Class 4" version of the AUUW statute found to be

unconstitutional in Aguilar had on McFadden’s and Fields’ convictions. We now know from

Burns that any conviction under section 24-1.6(a)(1), (a)(3)(A) is unconstitutional and therefore

void ab initio. Burns, 2015 IL 117387, ¶ 25.

¶ 20   A statute declared unconstitutional on its face is void ab initio. People v. Mosley, 2015 IL

115872, ¶ 55. We followed this principle in Fields and McFadden, finding that we would

consider the effect of the validity of the predicate conviction on the conviction under review

while declining to grant relief upon the prior conviction itself. We find that the clear effect of

Aguilar and Burns in conjunction with the rulings in Mosley (void ab initio) and Walker

(predicate felony as element of UUWF) is that an AUUW conviction unconstitutional under

Aguilar and Burns is void ab initio, irrespective of the sentencing classification assigned to that

conviction, and cannot serve as the elemental predicate felony for AHC or UUWF. The result is

that this court must find an element of the offense unproven. "In sum, we agree with Fields and

McFadden." People v. Claxton, 2014 IL App (1st) 132681, ¶ 16; see also People v. Richardson,

2015 IL App (1st) 130203, ¶ 24 (distinguishing a conviction under a facially unconstitutional


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statute from convictions suffering other constitutional infirmities); People v. Cowart, 2015 IL

App (1st) 113085, ¶¶ 17, 45, 49 (following Fields to reverse AHC conviction where one of two

predicate convictions was facially unconstitutional).

¶ 21   In view of the foregoing, we review defendant's convictions. In count one 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 number 07 CR 5014 and

case number 08 CR 13500.

¶ 22   The felony conviction defendant obtained in case number 07 CR 5014, that the State used

as an element of the offense AHC, is void ab initio under Aguilar and Burns. In case number 07

CR 5014, defendant was convicted of felony AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West

2008)) because he possessed an uncased, loaded, and immediately accessible firearm while not

on his own land or fixed place of business after being convicted of felony possession of a

controlled substance in case number 01 CR 790. Aguilar and subsequently Burns, make clear

that any conviction under section 24-1.6(a)(1), (a)(3)(A) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A)

(West 2012)) is unconstitutional regardless of defendant's status as a felon or the resulting

sentence classification. Burns, 2015 IL 117387, ¶ 22. A prior felony conviction is not an element

of the offense of AUUW, but merely a factor to be used in enhancing the sentence. Id. Hence, the

predicate felony drug conviction (case number 01 CR 790) was not a valid constitutional basis to

criminalize defendant's firearm possession under section 24-1.6(a)(1), (3)(A) (720 ILCS 5/24-

1.6(a)(1), (a)(3)(A) (West 2006)) in case number 07 CR 5014. Following the rationale and

precedent of Mosley, Walker, Fields and McFadden, because the conviction in case number 07


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CR 5014 is void ab initio it cannot 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 one. Thus,

because the State alleged only two prior felony convictions, and one of those convictions is

fatally defective, the State failed to prove an essential element of the offense of AHC. We vacate

defendant's conviction on count one.

¶ 23   Turning to count two, the defendant was charged with UUWF (720 ILCS 5/24-1.1(a)

(West 2012)) in that he possessed a firearm "after having been previously convicted of the felony

offense of [UUWF], under case number 08 CR 13500." Defendant claims this UUWF conviction

is also invalid because the predicate felony conviction (No. 07 CR 5014) in case number 08 CR

13500 is also constitutionally invalid under Aguilar and Burns. However, an examination of

defendant's conviction under case number 08 CR 13500, the UUWF statute and the evidence

submitted to the jury does not support defendant's argument.

¶ 24   First, as previously noted, under the UUWF statute it is unlawful for a felon to possess a

firearm. 720 ILCS 5/24-1.1(a) (West 2012). Unlike the AHC offense, which proscribes firearm

possession by persons convicted of certain enumerated and specified felonies, the UUWF statute

proscribes firearm possession by any felon without regard to the nature or type of felony

conviction. 720 ILCS 5/24-1.1(a) (West 2012). "[This] statute *** does not require proof of a

specific felony conviction. Thus, to prove a violation of section 24-1.1, the prosecutor must

establish only the defendant's felon status." People v. Walker, 211 Ill. 2d 317, 337 (2004).

¶ 25   Because the State is merely required to prove defendant's status as a felon, we find the

language in count two that describes the elemental predicate felony as "[UUWF], under case

number 08 CR 13500" to be surplusage. We find that the defendant was not prejudiced from the


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allegation that the type of predicate felony alleged in the instant charge was "UUWF" or that a

specific case number was used. People v. Espinoza, 2015 IL 118218, ¶ 38 (due process requires

that charging instrument adequately notify a defendant of the offense charged with sufficient

specificity to enable a proper defense); People v. Reese, 2015 IL App (1st) 120654, ¶ 94

(variance between allegations and proof at trial is fatal only if it is material and either exposes

defendant to double jeopardy or may mislead him in making his defense; where charge includes

all essential elements of offense, other matters unnecessarily added may be deemed surplusage).

¶ 26   Removing this surplusage, count two charged the defendant with 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 number 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. In case number 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. Thus, the defendant had a constitutionally valid qualifying felony

conviction in case number 08 CR 13500 that proscribed his possession of a rifle on September

11, 2012. Accordingly, we find that the State proved all the elements of the merged conviction

for UUWF so that the jury's guilty verdict for that offense stands. People v. Reese, 2015 IL App


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(1st) 120654, ¶ 94 (where charge includes all essential elements of offense, other matters

unnecessarily added may be deemed surplusage).

¶ 27   We affirm defendant’s conviction for UUWF. Because the trial court did not impose

sentence on the UUWF verdict due to merger, we remand for sentencing on count two.

¶ 28                               CONCLUSION

¶ 29   For the foregoing reasons, we vacate defendant's conviction for AHC, affirm his

conviction for UUWF, and remand this cause for sentencing on that conviction.

¶ 30   Affirmed in part; vacated in part; cause remanded.




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