                                                                              FIFTH DIVISION
                                                                              November 25, 2009



No. 1-07-3381



THE PEOPLE OF THE STATE OF ILLINOIS,                          )       Appeal from the
                                                              )       Circuit Court of
       Plaintiff-Appellee,                                    )       Cook County.
                                                              )
v.                                                            )       No. 06 CR 17755
                                                              )
MARCUS BAILEY,                                                )       The Honorable
                                                              )       Thomas V. Gainer,
       Defendant-Appellant.                                   )       Judge Presiding.


       JUSTICE FITZGERALD SMITH delivered the opinion of the court:

       Following a bench trial, defendant Marcus Bailey (defendant) was convicted of one count

of the offense of armed habitual criminal and four counts of unlawful use of a weapon by a felon.

He was sentenced to five concurrent terms of six years' imprisonment. He appeals, contending

that his conviction for armed habitual criminal violates ex post facto laws, and that, alternatively,

one of his convictions for unlawful use of a weapon by a felon is improper. He asks that we

reverse and vacate the former, or that we vacate the latter. For the following reasons, we affirm

in part and reverse in part, and vacate a portion of defendant's sentence.

                                         BACKGROUND

       The facts of this cause are not in dispute.

       On July 26, 2006, police officers Gallegos and Culhane participated in the execution of

three search warrants for a two-flat residence on West Maypole in Chicago. Defendant's nephew

and his family lived on the second floor, defendant's mother and brother lived on the first floor,
No. 1-07-3381

and defendant and his fiancée lived in the basement. After announcing their presence, officers

Gallegos and Culhane entered the first floor and saw defendant at the rear of the residence. They

gave chase and detained him in the basement. Defendant's nephew and fiancée were also

detained. When officer Culhane began to search the basement pursuant to one of the warrants,

he recovered four firearms from the furnace room: a .45 semiautomatic rifle, a Ruger

semiautomatic pistol, a revolver and a loaded handgun.

       Subsequently, defendant was charged with one count of the offense of armed habitual

criminal and four counts of unlawful use of a weapon by a felon. Defendant had two prior felony

convictions of record, both from November 1997: manufacture and delivery of a controlled

substance and possession of a controlled substance with intent to deliver. At trial on the instant

charges, defendant's nephew and fiancée testified on his behalf, and defendant himself denied

putting any firearms in the furnace room.

       The trial court found defendant guilty on all five counts charged and sentenced him to

five concurrent terms of seven years in prison. Following a motion to reconsider sentence filed

by defendant, the court reduced these to five concurrent terms of six years in prison.

                                            ANALYSIS

       Defendant's first contention on appeal is that his conviction for the offense of armed

habitual criminal violates the ex post facto clauses of the United States and Illinois Constitutions.

He asserts that this offense is a substantive new criminal offense and not merely an enhancement

provision. Citing People v. Levin, 157 Ill. 2d 138 (1993), and People v. Dunigan, 165 Ill. 2d 235

(1995), he further claims that, because his two prior convictions constituted a necessary element


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No. 1-07-3381

of the offense of armed habitual criminal and occurred before the effective date of this

legislation's enactment, these could not be used to support a conviction under this more recent

felony statute and, therefore, he was improperly punished.

       As a threshold matter, the State argues that defendant has forfeited this argument for our

review by failing to object at trial and include it in a posttrial motion. See, e.g., People v. Enoch,

122 Ill. 2d 176, 186 (1988). While it is true, and defendant concedes, that he did not preserve

this issue accordingly, we note that we are dealing with a constitutional challenge involving the

validity of a statute. Such an argument may be presented at any time, regardless of a violation of

technical waiver rules. See People v. Yancy, 368 Ill. App. 3d 381, 388 (2005); accord People v.

Wagener, 196 Ill. 2d 269, 279 (2001).

       However, turning to the merits of defendant's claim here, we find that it cannot stand.

       In addressing a challenge to the constitutionality of a statute, we begin with the

presumption that the statute is constitutional. See People v. Malchow, 193 Ill. 2d 413, 418

(2000). If reasonably possible, a court must construe the statute so as to uphold its

constitutionality and validity. See Malchow, 193 Ill. 2d at 418. The party challenging the

statute's constitutionality has the burden of demonstrating its invalidity. See Malchow, 193 Ill.

2d at 418. Whether the statute is constitutional is reviewed under a de novo standard. See

Malchow, 193 Ill. 2d at 418.

                The Illinois Criminal Code of 1961 (Code) states:

                       "(a) A person commits the offense of being an armed habitual criminal if

                he or she receives, sells, possesses, or transfers any firearm after having been


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No. 1-07-3381

                convicted a total of 2 or more times of any combination of the following offenses:

                                 (1) a forcible felony as defined in Section 2-8 of this Code;

                                 (2) unlawful use of a weapon by a felon; aggravated unlawful use

                        of a weapon; aggravated discharge of a firearm ***; or

                                 (3) any violation of the Illinois Controlled Substances Act *** that

                        is punishable as a Class 3 felony or higher." 720 ILCS 5/24-1.7(a) (West

                        2006).

The effective date of this statute was August 2, 2005. See 720 ILCS 5/24-1.7(a) (West 2006).

        Both the United States and Illinois Constitutions prohibit ex post facto laws. See U.S.

Const., art. I, §9, cl. 3; §10, cl. 1; Ill. Const. 1970, art. I, §16. "An ex post facto law is one that:

(1) makes criminal and punishable an act innocent when done; (2) aggravates a crime, or makes

it greater than it was when committed; (3) increases the punishment for a crime and applies the

increase to crimes committed before the enactment of the law; or (4) alters the rules of evidence

to require less or different evidence than required when the crime was committed." People v.

Leonard, 391 Ill. App. 3d 926, 931 (2009); see People v. Morgan, 377 Ill. App. 3d 821, 823

(2007), citing Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L. Ed. 648, 650 (1798). The

prohibition against ex post facto laws is founded on the basis of a person's right to have fair

warning of conduct giving rise to criminal penalties and punishment. See People v. Coleman,

111 Ill. 2d 87, 93-94 (1986).

        Defendant's exact contention regarding the offense of armed habitual criminal and its

alleged violation of ex post facto laws was recently raised in the Third District case of People v.


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Leonard, 391 Ill. App. 3d 926 (2009). There, the defendant was convicted of this offense upon

possessing a firearm and having had been convicted previously of three qualifying offenses

between 1998 and 2004, including a violation of the Illinois Controlled Substances Act (720

ILCS 570/100 et seq. (West 2004)) (unlawful possession with intent to deliver a look-alike

substance). On appeal, the defendant, also citing Levin and Dunigan as defendant does here,

argued that his conviction had to be vacated because the offense of armed habitual criminal

violated the prohibition against ex post facto laws, since his prior convictions were used an

element of the offense even though they occurred before the offense was enacted.

        In a well-reasoned and succinct decision, the Leonard court disagreed, finding that the

statute does not constitute ex post facto legislation. It began by noting that, in Illinois, recidivist

statutes such as the instant one "have consistently been found constitutional on the basis that they

punish a defendant for a new and separate crime, not for the earlier offense committed before the

statute was enacted." Leonard, 391 Ill. App. 3d at 931 (rather, the defendant's prior convictions

are only an element of the new crime). After examining the statute, the Leonard court explained

that it did not punish the defendant for offenses he committed before it was enacted but, instead,

punished him for the separate offense of possessing a firearm after having been convicted of

three of the statute's enumerated offenses. See Leonard, 391 Ill. App. 3d at 931. He possessed

the firearm in April 2006, after the statute's August 2005 effective date; thus, he had ample

warning that, in combination with his prior convictions, he was committing the offense of armed

habitual criminal. See Leonard, 391 Ill. App. 3d at 931-32. And, because his prior convictions

were only an element of the offense, he was not being punished for those acts but for the new act


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No. 1-07-3381

of possessing a firearm. See Leonard, 391 Ill. App. 3d at 932.

       Moreover, in addressing the defendant's claim that because the offense of armed habitual

criminal is a substantive offense requiring that all the elements thereof must have occurred after

the law was enacted, the Leonard court concluded that his reliance on Levin and Dunigan was

misplaced. See Leonard, 391 Ill. App. 3d at 932. The Leonard court found that while those

cases stated that the prior-conviction evidence involved in the habitual criminal legislation at

issue there was not an element of the main charged offense, these cases did not hold that habitual

criminal legislation in general can never include prior convictions as elements of an offense. See

Leonard, 391 Ill. App. 3d at 932, citing Levin, 157 Ill. 2d at 149; Dunigan, 165 Ill. 2d at 242.

That is, Levin and Dunigan involved a habitual criminal statute that was a sentencing

enhancement. See Levin, 157 Ill. 2d at 149; Dunigan, 165 Ill. 2d at 242. In contrast, the armed

habitual criminal statute under which the Leonard defendant was convicted--section 24-1.7(a) of

the Code--created a substantive offense that punishes a defendant, not for his earlier convictions,

but for the new offense created therein. See Leonard, 391 Ill. App. 3d at 932. Ultimately,

because this statute only criminalized new and additional conduct occurring after its enactment

and did not, as in Levin and Dunigan, invoke sentencing enhancement concerns, the Leonard

court held that "the armed habitual criminal statute is not violative of the constitutional

prohibitions against ex post facto laws." Leonard, 391 Ill. App. 3d at 931.

       We find no reason to depart from the holding of our sister court on this issue. It is clear

to us that, contrary to defendant's contention here, the armed habitual criminal statute does not

punish him for the drug offenses he committed in 1997 before the statute's effective date but,


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No. 1-07-3381

rather, properly punishes him for, as he himself points out, the new and separate crime he

committed in 2006 of possessing firearms while having already been convicted of two prior

enumerated felonies, an offense of which he had fair and ample warning. Accordingly, we too

hold that the armed habitual criminal statute is not violative of the United States and Illinois

constitutional prohibitions against ex post facto legislation.

       Having so concluded, we next turn to defendant's alternative argument presented on

review. He contends that, if his conviction for armed habitual offender is upheld, then one of his

four felony unlawful use of a weapon convictions must be vacated where he was convicted of

five offenses involving firearm possession based of the possession of only four guns. The State

concedes this issue, in full agreement with defendant.

       Defendant was convicted of one count of the offense of armed habitual criminal and four

counts of unlawful use of a weapon by a felon. However, the record is clear that he was in

possession of only four firearms. Therefore, one of his convictions for unlawful use of a weapon

was, as he asserts, necessarily based on the same act as his offense of armed habitual criminal:

the possession of the same firearm. Accordingly, one of his felony unlawful use of a weapon

convictions must be vacated. See People v. Artis, 232 Ill. 2d 156, 165 (2009) ("[m]ultiple

convictions are improper if they are based on precisely the same physical act"); see also People v.

Quinones, 362 Ill. App. 3d 385, 397 (2005) (where the defendant's two convictions for

aggravated unlawful use of a weapon were each based on the same act of possessing the same

firearm, these violated the one-act, one-crime doctrine prohibiting multiple convictions carved

from same physical act; thus, one of these convictions necessarily required reversal).


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No. 1-07-3381

                                         CONCLUSION

       For all the foregoing reasons, we affirm defendant's conviction for the offense of armed

habitual criminal, but we reverse one of his four convictions for unlawful use of a weapon by a

felon and thereby vacate the resulting sentence regarding that crime only, namely, one of the five

concurrent terms of six years' imprisonment.

       Affirmed in part and reversed in part; sentence vacated in part.

       TOOMIN, P.J., and TULLY, J., concur.




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             No. 1-07-3381
__________________________________________________________________________________________________________________________
                                 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                                             (Front Sheet to be Attached to Each Case)
_________________________________________________________________________________________________________________________
Please use the following
form                     The People of the State of Illinois,

                                                    Plaintiff-Appellee,

                           v.

                           Marcus Bailey,

                                                    Defendant-Appellant.

_____________________________________________________________________________________________
                                            No.   1-07-3381
 Docket No.
                                          Appellate Court of Illinois
COURT                                     First District, FIFTH Division
 Opinion
  Filed                                      November 25, 2009
                                         (Give month, day and year)
 __________________________________________________________________________________________
                 JUSTICE JAMES FITZGERALD SMITH DELIVERED THE OPINION OF THE COURT:

 JUSTICES                                                  TOOMIN, P.J., and TULLY, J.,                   concur.

                                     Lower Court and Trial Judge(s) in form indicated in margin:
APPEAL from the
Circuit Court of Cook                               Appeal from the Circuit Court of Cook County.
County; the Hon________
Judge Presiding.                                      The Hon. THOMAS V. GAINER, Judge presiding.
__________________________________________________________________________________________________________________________
                         Indicate if attorney represents APPELLANTS or APPELLEES and include attorney's of counsel. Indicate the word r
FOR APPELLANTS                                                       NONE if not represented.
John Doe, of Chicago

For APPELLEES, :            APPELLANT: OFFICE OF THE ILLINOIS STATE APPELLATE DEFENDER, Chicago, IL Michael J. Pelletier, State
                            Appellate Defender; Patricia Unsinn, Deputy Defender; Maria A. Harrigan, Assistant Appellate Defender
 _________________________________                                      __
Smith and Smith of
Chicago,                    APPELLEE: OFFICE OF THE ILLINOIS STATE'S ATTORNEY, COUNTY OF COOK, Chicago, IL Anita Alvarez,
                            State's Attorney; James E. Fitzgerald, Eve Reilly, and Robin Murphy, Assistant State's Attorneys
               __________________________________________________________________________________________________
(Joseph Brown, of counsel)
Add attorneys for third-
party appellants and/or
appellees.




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No. 1-07-3381




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