                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Williams, 2011 IL App (1st) 091667-B




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



District & No.               First District, Fourth Division
                             Docket No. 1-09-1667


Filed                        December 15, 2011


Held                         Defendant’s conviction for aggravated unlawful use of a weapon was
(Note: This syllabus         affirmed over defendant’s claim that the statute violated the second
constitutes no part of       amendment, but the cause was remanded for modification of the mittimus
the opinion of the court     to reflect the vacation of the court system fee, the court supervision fee
but has been prepared        and the serious traffic violation fee, the application of the presentence
by the Reporter of           incarceration credit to the mental health “fee,” the youth diversion/peer
Decisions for the            court “fee,” the Children’s Advocacy Center “fee,” and the drug court
convenience of the           “fee,” which are actually fines, and the vacation of the DNA analysis fee,
reader.)
                             because defendant provided a DNA sample pursuant to a prior
                             conviction.


Decision Under               Appeal from the Circuit Court of Cook County, No. 08-CR-16364; the
Review                       Hon. Kenneth J. Wadas, Judge, presiding.


Judgment                     Affirmed in part and vacated in part; cause remanded with directions.
Counsel on                   Michael J. Pelletier, Alan D. Goldberg, and Brian A. McNeil, all of State
Appeal                       Appellate Defender’s Office, of Chicago, for appellant.

                             Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                             William Toffenetti, Mary Needham, and Tasha-Marie Kelly, Assistant
                             State’s Attorneys, of counsel), for the People.


Panel                        JUSTICE PUCINSKI delivered the opinion of the court, with opinion.*
                             Presiding Justice Lavin and Justice Salone concurred in the judgment and
                             opinion.**



                                                 OPINION

¶1          Defendant Omar Williams was convicted in a bench trial of two counts of unlawful use
        of a weapon by a felon and six counts of aggravated unlawful use of a weapon (AUUW). At
        sentencing, all counts were merged into one AUUW conviction and defendant was sentenced
        to 5 years in prison, with 308 days’ credit for the time he served awaiting trial. Defendant
        was also assessed costs totaling $715. On appeal defendant challenges the constitutionality
        of the criminal laws of which he was convicted as violative of the second amendment to the
        United States Constitution. He also challenges some of the fines and fees that the trial court
        assessed. On December 2, 2010, this court issued an opinion upholding defendant’s
        conviction and sentence but modifying the costs that he was assessed. People v. Williams,
        405 Ill. App. 3d 958 (2010). Thereafter, on September 28, 2011, the supreme court issued
        a supervisory order directing this court to vacate our decision and reconsider defendant’s
        claims in light of its recent decision in People v. Marshall, 242 Ill. 2d 285 (2011). People v.
        Williams, No. 111594 (Ill. Sept. 28, 2011). On reconsideration, we again affirm defendant’s
        conviction and sentence and modify the fees and costs that he was ordered to pay.




                *
                 Following Justice O’Mara Frossard’s retirement, Justice Pucinski delivered the judgment
        of the court, with opinion. Justice Pucinski has reviewed all relevant materials, including the court’s
        original opinion filed on December 2, 2010, and the supervisory order issued by our supreme court
        on September 28, 2011.
                **
                 Pursuant to Justice O’Brien’s retirement, Justice Salone has participated in the
        reconsideration of this case. Justice Salone has reviewed all relevant materials, including the original
        opinion filed on December 2, 2010, and the supervisory order issued by our supreme court on
        September 28, 2011.

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¶2                                      I. BACKGROUND
¶3       Defendant does not challenge the sufficiency of the evidence underlying his convictions;
     rather, he challenges the constitutionality of statutes under which he was convicted.
     Accordingly, we only include a brief recitation of the relevant facts.
¶4       The State’s evidence at trial established that on August 14, 2008, at about 5 p.m. the
     victim, Robert Brown, was walking and conversing with a friend in the area of 1324 West
     13th Street in Chicago. Defendant, whom Brown had known for about 10 years, ran up
     behind Brown and struck him in the face with a silver-gray 9-millimeter handgun. Defendant
     then took $30 from Brown’s pants pocket. Brown walked to his grandmother’s house, where
     he cleaned himself off, and then rode his bike to the hospital. Brown subsequently identified
     defendant as his assailant in a lineup and also identified him at trial. Defendant was arrested
     on the street later that same day. Police found a chrome 9-millimeter semiautomatic handgun
     loaded with nine bullets on defendant’s person. They also recovered money from defendant,
     including one $100 bill, one $10 bill, and two $1 bills. The prosecution introduced evidence
     that defendant had previously been convicted of unlawful use of a weapon by a felon.
     Because the money found on defendant did not match the $30 he allegedly took at gunpoint
     from Brown and no part of the bills that police recovered could add up to $30, the trial judge
     acquitted defendant of the offense of robbery, with which he was also charged. The trial
     court, however, did convict defendant of six counts of aggravated unlawful use of a weapon
     and two counts of unlawful use of a weapon by a felon. The trial court subsequently merged
     the charges into one count of aggravated unlawful use of a weapon conviction, sentenced
     defendant to five years in prison, and assessed a number of costs. Defendant’s timely appeal
     followed.

¶5                                         II. ANALYSIS
¶6       On appeal, defendant challenges the constitutionality of the aggravated unlawful use of
     a weapons statute and the unlawful use of a weapon by a felon statute, arguing that these
     provisions violate his constitutional right to bear arms.
¶7       The second amendment to the United States Constitution provides:
              “A well regulated Militia, being necessary to the security of a free State, the right of
         the people to keep and bear Arms, shall not be infringed.” U.S. Const., amend. II.
     We need not discuss defendant’s contention that the second amendment is incorporated in
     the due process clause of the fourteenth amendment and therefore applies to individual states,
     including Illinois. This proposition was answered affirmatively in McDonald v. City of
     Chicago, 561 U.S. ___, ___, 130 S. Ct. 3020, 3044 (2010). Nor need we reexamine the case
     of Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483 (1984), as defendant suggests we
     should in light of McDonald. Kalodimos held that a village ordinance prohibiting, with a few
     exceptions, the possession of operable handguns was a correct exercise of police power and
     was not in violation of the Illinois constitutional provision which provides: “Subject only to
     the police power, the right of the individual citizen to keep and bear arms shall not be
     infringed.” Ill. Const. 1970, art. I, § 22. Any reexamination of Kalodimos would be the task
     of the Illinois Supreme Court. Moreover, in light of the application of the second amendment

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       to the states by McDonald, there is no need to resort to constructions of the Illinois
       Constitution’s provision applicable to the right to bear arms. Nor does defendant attempt to
       explain how such an application would be helpful to his arguments, given the extraordinary
       deference to the police power which this provision grants. Kalodimos, 103 Ill. 2d at 491-92.
¶8         Defendant’s central contention is that the recent cases of District of Columbia v. Heller,
       554 U.S. 570, 635-36 (2008), and McDonald, which applied the second amendment to
       invalidate laws virtually banning any possession of loaded handguns for self-defense in the
       home, should be extended to invalidate the statutes of which defendant was convicted, which
       criminalize defendant’s possession of a loaded handgun outside of his home. This court has
       recently explored this very issue and definitively determined that the United States Supreme
       Court’s holdings in Heller and McDonald do not establish that the Illinois statute on
       aggravated unlawful use of a weapon is unconstitutional. People v. Dawson, 403 Ill. App.
       3d 499, 506, 934 N.E.2d 598, 607 (2010). We find Dawson to be persuasive, and
       accordingly, we reject defendant’s challenges to the AUUW statute as well as the statute
       criminalizing the unlawful use of a weapon by a felon, the two statutes of which he was
       convicted in eight different permutations.
¶9         This challenge to the constitutionality of a statute is subject to de novo review. Davis v.
       Brown, 221 Ill. 2d 435, 443 (2006). Moreover, as we stated in Dawson:
           “We begin review of such an argument with the presumption that the statute is
           constitutional. *** It is our duty, when it may be reasonably done, to construe a
           challenged statute in a manner that upholds its validity and constitutionality. [Citation.]”
           Dawson, 403 Ill. App. 3d at 506.
¶ 10       Upon close review of the arguments presented by defendant, it becomes clear that he
       overstates the holdings of Heller and McDonald in order to make them appear to control the
       outcome of the present challenge. For example, defendant notes that Heller found that a
       handgun, the type of firearm at issue there and in the case before us, was one contemplated
       for protection by the drafters of the second amendment, because it was commonly in use at
       the time and not particularly dangerous or unusual as a firearm. But it is clear that Heller
       found this a necessary but not sufficient quality of those weapons that were protected. Heller
       also noted that a crucial factor in permitting the criminalization of such weapons might not
       be just their type but their location, such as possessing them in schools and government
       buildings. Heller, 554 U.S. at 626-27. Thus, pursuant to the holding in Heller, a handgun that
       would be legal to possess in one’s home could be illegal to possess in a school or library.
¶ 11       Defendant attempts to turn this reasoning on its head by concluding that Heller’s citation
       of “sensitive” places where firearms could be banned outside the home necessarily meant
       that they could not be banned everywhere outside the home. There are two responses to this
       argument. One response is that the Illinois statute does permit firearms to be possessed
       outside the home under certain circumstances if they are not “uncased, loaded and
       immediately accessible.” 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008). More importantly,
       the second response is that the rulings in both Heller and McDonald made clear that the only
       type of firearms possession they were declaring to be protected under the second amendment
       was the right to possess handguns in the home for self-defense purposes. Heller, 554 U.S.


                                                 -4-
       at 622-26; McDonald, 561 U.S. at ___, 130 S. Ct. at 3050 (extending this protection, under
       the due process clause, to infringement by state statutes). It is this narrow focus which defeats
       a final argument made by defendant, that Heller defined the right to “bear arms” as the right
       to carry a weapon on one’s person or clothing in order to be armed and ready for offensive
       or defensive action. Heller, 554 U.S. at 584-86. But again, this was in the context of the right
       to bear arms for protection in one’s home, and the holdings do not extend beyond such usage.
¶ 12       Along with the narrow holdings of Heller and McDonald, we must acknowledge the
       numerous Illinois cases predating those two decisions which have found the Illinois statute
       on unlawful use of weapons to be constitutional and a rational expression of public policy
       in the face of due process challenges. People v. Sole, 357 Ill. App. 3d 988, 991 (2005);
       People v. Austin, 349 Ill. App. 3d 766, 772 (2004); People v. Pulley, 345 Ill. App. 3d 916,
       925 (2004); People v. Marin, 342 Ill. App. 3d 716, 729 (2003); People v. Grant, 339 Ill. App.
       3d 792, 802-03 (2003). As we held in Austin:
           “[T]he [AUUW] statute reflects a rational relationship to its intended purpose to impose
           greater punishment for conduct that creates ‘inherent danger to police officers and the
           general public, even if the person carrying the weapon has no criminal objective.’ ”
           Austin, 349 Ill. App. 3d at 772 (quoting Pulley, 345 Ill. App. 3d at 925, citing Grant, 339
           Ill. App. 3d at 806).
¶ 13       These courts applied a rational basis test in determining the constitutionality of the
       AUUW statute because they found that no fundamental right was at issue. Like the court in
       Dawson, we found that no fundamental right is implicated here, even in light of the holdings
       of Heller and McDonald. As we stated in Dawson:
           “[I]t is essential to the resolution of this issue to understand that the Heller Court
           ultimately limited its holding to the question presented–that the second amendment right
           to bear arms protected the right to possess a commonly used firearm, a handgun, in the
           home for self-defense purposes. Heller, 554 U.S. at 598-99, 624-25, 171 L. Ed. 2d at
           661-62, 677, 128 S. Ct. at 2801-02, 2815-16. McDonald also addressed the limited
           question of whether a ban on the possession of a handgun in the home violated the
           second amendment right to bear arms. The holding in McDonald was similarly
           constrained with a plurality of the Court concluding that the right to possess a handgun
           in the home for self-defense was fundamental and incorporated under the due process
           clause. McDonald, 561 U.S. at ___, 177 L. Ed. 2d at 929, 130 S. Ct. at 3040.” Dawson,
           403 Ill. App. 3d at 508.
       For this reason, the Heller court expressly determined not to apply any particular level of
       constitutional scrutiny, declaring that although rational basis scrutiny would be too low
       (Heller, 554 U.S. at 628 n.27) under any of the traditional heightened levels of scrutiny,
       banning the possession of handguns in the home for self-protection would be
       unconstitutional (Heller, 554 U.S. at 626-29).
¶ 14       But the AUUW statute does not implicate the fundamental right announced by Heller and
       extended to the states under the due process clause by McDonald, the right to possess a
       loaded handgun in the home for self-protection. For this reason, we adhere to the cases we
       have cited, such as Austin and Pulley, which found that there was a rational basis to the


                                                 -5-
       AUUW statute’s ban on carrying and possessing loaded firearms outside of the home, that
       is, the protection of police officers and the general public. Accordingly, we agree with and
       adopt the holding of Dawson, 403 Ill. App. 3d at 510, that this Illinois statute limiting the
       right of citizens to carry, outside of their homes and on their persons or in their vehicles,
       loaded and accessible firearms does not violate the second amendment.
¶ 15        Defendant was 19 years old when he was arrested for possession of a loaded handgun.
       He presents an alternative argument, necessarily premised on a finding by us that under the
       second amendment adults have a constitutional right to possess loaded handguns outside of
       their homes. Defendant contends that his youth should not prevent the application of such
       a holding to him and therefore the statute under which he was convicted is unconstitutional
       because it specifically prohibits the possession of handguns outside the home by anyone
       under the age of 21. 720 ILCS 5/24-1.6(a)(3)(I) (West 2008). Defendant presents a number
       of arguments for why those between the ages of 18 and 20 should be treated similarly to
       adults. But we have determined that the State may constitutionally ban the possession of
       loaded handguns by adults outside their homes. Defendant has failed to present any reason
       supporting a different result for those under the age of 21 and therefore his challenge must
       fail.
¶ 16        Defendant asserts that the holdings of Heller and McDonald also render unconstitutional
       the statute under which he was convicted for unlawful use of a weapon and possession of
       ammunition by a felon. 720 ILCS 5/24-1.1(a) (West 2008). But the courts in Heller and
       McDonald made clear that no such result was intended:
            “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on
            the possession of firearms by felons and the mentally ill ***.” Heller, 554 U.S. at 626.
       McDonald was even stronger in its defense of these traditional prohibitions:
            “We made it clear in Heller that our holding did not cast doubt on such longstanding
            regulatory measures as ‘prohibitions on the possession of firearms by felons and the
            mentally ill’ ***. We repeat those assurances here. Despite municipal respondents’
            doomsday proclamations, incorporation does not imperil every law regulating firearms.”
            McDonald, 561 U.S. at ___, 130 S. Ct. at 3047.
       Even if this language is construed as dictum, subsequent courts have determined that under
       an intermediate level of scrutiny, laws prohibiting the possession of firearms by felons or by
       repeat sexual offenders would withstand constitutional scrutiny. United States v. Williams,
       616 F.3d 685, 694 (7th Cir. 2010) (where defendant had been convicted of a violent felony,
       no merit to his claim that a statute banning possession of firearms by convicted felons
       infringed upon his constitutional right to possess a firearm); United States v. Skoien, 614
       F.3d 638, 645 (7th Cir. 2010) (statute banning possession of firearms by persons convicted
       of at least two misdemeanor crimes of domestic violence was constitutional). We agree that
       under any appropriate level of scrutiny, the second amendment was not intended to permit
       a convicted felon to possess, on his person, a loaded handgun. We also note that defendant
       was found to be in possession of this handgun and ammunition while standing on a public
       street, thus negating any possible application of the holding of Heller and McDonald
       concerning possession of handguns in the home. Because the statute applies to the situation


                                                -6-
       in which defendant found himself, being in a public place with a handgun, he cannot argue
       for relief based on the possibility that the statute might be unconstitutional as applied to a
       felon in possession of a handgun in his own home. United States v. Salerno, 481 U.S. 739,
       745 (1987).
¶ 17        On the question of costs, the defendant contends, and the State correctly concedes, that
       it was improper to assess the defendant a $5 court system fee (55 ILCS 5/5-1101(a) (West
       2008)), a $25 court supervision fee (625 ILCS 5/16-104c (West 2008)) and a $20 serious
       traffic violation fee (625 ILCS 5/16-104d (West 2008)) because all of these fees can only be
       imposed upon conviction or placement on supervision for either a violation of the Illinois
       Vehicle Code (625 ILCS 5/11- 501 (West 2008)), a municipal ordinance or a serious traffic
       violation. Defendant was not convicted of any of these offenses and therefore these fees must
       be vacated.
¶ 18        Defendant also challenges the assessment of a court services fee of $25, contending that
       the statute limits the assessment to those convicted of specific designated statutes, which do
       not include the statutes under which he was convicted. Defendant misreads the court services
       fee statute, which provides in pertinent part:
            “In criminal, local ordinance, county ordinance, traffic and conservation cases, [the court
            services fee] shall be assessed against the defendant upon a plea of guilty, stipulation of
            facts or findings of guilty, resulting in a judgment of conviction, or order of supervision,
            or sentence of probation without entry of judgment pursuant to [certain enumerated
            criminal statutes].” 55 ILCS 5/5-1103 (West 2008).
       It is clear that the statute permits assessment of this fee upon any judgment of conviction but
       also permits such assessment for orders of supervision or probation, made without entry of
       a judgment of conviction, for certain limited and enumerated criminal provisions. Judgments
       of conviction were entered for defendant, and the fact that these convictions were not among
       those enumerated by the statute for imposition of this fee without entry of conviction does
       not void the assessment.
¶ 19        We must next consider whether certain designated “fees” assessed against the defendant
       were in fact “fines” for which he is entitled to presentence incarceration credit of $5 a day.
       725 ILCS 5/110 -14(a) (West 2008). As was stated in People v. Jones, 223 Ill. 2d 569, 582
       (2006):
            “Broadly speaking, a ‘fine’ is a part of the punishment for the conviction, whereas a ‘fee’
            or ‘cost’ seeks to recoup expenses incurred by the state–to ‘compensat[e]’ the state for
            some expenditure incurred in prosecuting the defendant.”
       Thus, despite the statutory label, a “fee” that is not intended to specifically reimburse the
       State for costs it has incurred in prosecuting a defendant is actually a “fine.” Jones, 223 Ill.
       2d at 581. Here, defendant was assessed a $10 mental health “fee” to be placed in a general
       fund to finance the mental health court (55 ILCS 5/5-1101(d-5) (West 2008)); a $5 youth
       diversion/peer court “fee” to help fund the court of that name (55 ILCS 5/5-101(e) (West
       2008)); a $30 Children’s Advocacy Center “fee” to help fund that body (55 ILCS 5/5-101(f-
       5) (West 2008)); and a $5 drug court “fee” to help fund that court (55 ILCS 5/5-1101(f)
       (West 2008)). None of these charges were designed to reimburse the State for money it

                                                 -7-
       expended in prosecuting this defendant; accordingly, they are all “fines” for which
       presentence incarceration credit of $5 per day is authorized. These charges total $50 and
       defendant is entitled to that amount in credit from his presentence incarceration credit.
¶ 20        Defendant next claims that he is entitled to a similar credit for the $200 mandatory fee
       for DNA collection and testing that was imposed upon him pursuant to section 5-4-3 of the
       Unified Code of Corrections (Code of Corrections) (730 ILCS 5/5-4-3 (West 2008)).
       Defendant argues that the State had previously obtained a DNA sample from him pursuant
       to a prior conviction and that he may not be assessed the $200 DNA collection again.
       Although we upheld the imposition of this fee in our original disposition, we find that a
       different result is warranted on rehearing in light of our supreme court’s recent analysis in
       People v. Marshall, 242 Ill. 2d 285 (2011).
¶ 21        Section 5-4-3 of the Unified Code, in pertinent part, provides:
            “Any person *** convicted or found guilty of any offense classified as a felony under
            Illinois law, *** shall, regardless of the sentence or disposition imposed, be required to
            submit specimens of blood, saliva, or tissue to the Illinois Department of State Police in
            accordance with the provisions of this Section, provided such person is:
                                                  ***
                     (3.5) convicted or found guilty of any offense classified as a felony under Illinois
                 law *** on or after August 22, 2002.” 730 ILCS 5/5-4-3(a)(3.5) (West 2008).
       The provision further provides that: “Any person required by subsection (a) to submit
       specimens of blood, saliva, or tissue to the Illinois Department of State Police for analysis
       and categorization into genetic marker grouping, in addition to any other disposition, penalty,
       or fine imposed, shall pay an analysis fee of $200.” 730 ILCS 5/5-4-3(j) (West 2008). When
       our supreme court recently examined this provision in People v. Marshall, 242 Ill. 2d 285
       (2011), it concluded that section 5-4-3 of the Unified Code “authorizes a trial court to order
       the taking, analysis and indexing of a qualifying offender’s DNA, and the payment of the
       analysis fee only where that defendant is not currently registered in the DNA database.”
       (Emphasis added.) Marshall, 242 Ill. 2d at 303. Accordingly, a defendant who is convicted
       of a felony and provides a DNA sample and pays the fee need not resubmit a sample and pay
       an additional fee for every subsequent felony conviction. Marshall, 242 Ill. 2d at 297, 303.
¶ 22        Here, the record reveals that defendant had previously been convicted of felonies before
       he was convicted of the offenses in the case at bar. Namely, defendant’s criminal history
       includes a 2007 conviction for reckless discharge of a firearm under case number 07 CR
       0502701 and a 2007 unlawful use of a weapon by a felon conviction under case number 07
       CR 1939501. Although the record does not indicate whether or not the DNA assessment fee
       was imposed in those cases, we note that this statutory provision was added to the Unified
       Code by amendment in 1997 (Pub. Act 90-130, § 30 (eff. Jan. 1, 1998) (amending 730 ILCS
       5/5-4-3 (West 1996)), and thus the DNA assessment requirement was in effect when
       defendant was convicted of his prior felonies in 2007. Because section 5-4-3 of the Unified
       Code mandates that a convicted felon submit a DNA sample and pay the analysis fee, we
       presume the circuit court followed the law and assessed the fee on defendant as part of either
       of the sentences imposed on his prior felony convictions. See People v. Gaultney, 174 Ill. 2d

                                                  -8-
       410, 420 (1996) (trial court is presumed to know and follow the law unless the record
       indicates otherwise). Therefore, we vacate the imposition of the $200 DNA analysis fee.

¶ 23                                     III. CONCLUSION
¶ 24       For the reasons set forth in this opinion, we affirm defendant’s conviction and sentence
       but remand for modification of the mittimus to accord with our findings regarding the
       imposition of certain costs and the application of pretrial incarceration credit.

¶ 25      Affirmed in part and vacated in part; cause remanded with directions.




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