                                        2016 IL App (1st) 150889
                                                                                   THIRD DIVISION
                                                                                     August 31, 2016

                                              No. 1-15-0889

     THE PEOPLE OF THE STATE OF ILLINOIS,                     )             Appeal from the
                                                              )             Circuit Court of
            Plaintiff-Appellant,                              )             Cook County
                                                              )
     v.                                                       )             10 CR 19249
                                                              )
     GREGORY PERKINS,                                         )             Honorable
                                                              )             James B. Linn,
            Defendant-Appellee.                               )             Judge Presiding.

            PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion.
            Justices Fitzgerald Smith and Pucinski concurred in the judgment and opinion.

                                                OPINION

¶1          On October 17, 2010, defendant Gregory Perkins was arrested while in possession of a

     firearm. After a bench trial, Perkins was convicted of several offenses, including armed habitual

     criminal, unlawful possession of a weapon and firearm ammunition by a felon (UUWF),

     aggravated unlawful use of a weapon (AUUW), and failure to possess a valid firearm owner’s

     identification (FOID) card. The trial court merged all of the counts and sentenced Perkins to

     seven years’ imprisonment on the armed habitual criminal count. The predicate convictions for

     these offenses included Perkins’ earlier convictions for UUWF and AUUW.

¶2          Perkins voluntarily dismissed his appeal and later failed to appeal the dismissal of a pro

     se petition seeking relief from judgment. On June 6, 2014, Perkins filed a petition seeking relief

     under the Post-Conviction Hearing Act. 725 ILCS 5/122-1 et seq. (West 2014). Citing our

     supreme court’s decision in People v. Aguilar, 2013 IL 112116, Perkins sought to vacate his

     convictions other than those premised on his failure to possess a valid FOID card, arguing that

     because Aguilar held the Class 4 form of the AUUW statute unconstitutional on its face and void
     No. 1-15-0889

     ab initio, the State could not prove the predicate offenses underlying these convictions. The trial

     court agreed and, in particular, found that Perkins’ earlier AUUW and UUWF convictions could

     not serve as the predicate for his armed habitual criminal, UUWF and AUUW convictions and

     that, as a result, Perkins was entitled to be sentenced as a Class 2 offender.

¶3          After the State’s motion to reconsider was denied, the State appealed pursuant to Illinois

     Supreme Court Rule 651(a) (eff. Feb. 6, 2013). See also People v. Andson, 73 Ill. App. 3d 700,

     702 (1979) (“[T]he People have the right to appeal to the appellate court from final judgments in

     post-conviction cases.”).

¶4          On June 16, 2016, our supreme court decided People v. McFadden, 2016 IL 117424, a

     direct appeal from a UUWF conviction predicated on defendant’s possession of a firearm at a

     time when he had previously been convicted of AUUW. Like Perkins here, the defendant in

     McFadden argued that Aguilar prevented the State’s use of a prior AUUW conviction to

     establish the predicate for the UUWF charge, notwithstanding that the prior conviction had not

     been vacated.

¶5          Reversing our decision in People v. McFadden, 2014 IL App (1st) 102939, which

     vacated defendant’s UUWF conviction on this basis, the supreme court concluded that

     defendant’s status as a felon was not affected by Aguilar and that unless and until the prior

     conviction was vacated, the prior felony conviction precluded defendant from possessing a

     firearm. McFadden, 2016 IL 117424. ¶ 31 (“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.”). We afforded the parties the opportunity to address McFadden’s impact on this case.



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¶6          Perkins first argues that McFadden’s reasoning was limited to the offense of UUWF,

     which requires the State to prove only defendant’s status as a convicted felon. 720 ILCS

     5/24-1.1(a) (West 2014) (prohibiting possession of a firearm by any person “if the person has

     been convicted of a felony under the laws of this State or any other jurisdiction”); People v.

     Walker, 211 Ill. 2d 317, 337 (2004) (State need only establish “defendant’s felon status” and

     statute “does not require proof of a specific felony conviction”). According to Perkins, UUWF

     imposes a “status-based disability” that precludes any convicted felon from possessing a firearm.

     In contrast, because the offense of armed habitual criminal requires the State to prove that the

     defendant was convicted of specific enumerated offenses, Perkins contends that the offense

     “imposes a conduct-based disability by allowing for harsher punishment based on a defendant’s

     commission of specific acts.” See 720 ILCS 5/24-1.7(a) (West 2014) (person commits offense of

     armed habitual criminal if that person possesses any firearm “after having been convicted a total

     of 2 or more times” of enumerated offenses, including UUWF and AUUW). Perkins reasons that

     because the conduct of which he was previously convicted—possession of a firearm—was

     constitutionally protected, it cannot serve as a predicate for his armed habitual criminal

     conviction.

¶7          We find this to be a distinction without a difference. In order to sustain its burden to

     prove that a defendant is an armed habitual criminal, the State need only prove the fact of the

     prior convictions of enumerated offenses (id.; see People v. Tolentino, 409 Ill. App. 3d 598, 607

     (2011) (sufficient for State to present certified copies of defendant’s prior convictions for

     qualifying offenses)), just as the State need only prove the fact of a prior felony conviction to

     support a UUWF conviction. Nothing in the armed habitual criminal statute requires a court to




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     No. 1-15-0889

     examine a defendant’s underlying conduct in commission of the enumerated offenses 1 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 armed habitual criminal conviction, they

     could properly serve as predicates for that conviction.

¶8           Perkins next argues that we need not follow McFadden because the United States

     Supreme Court decisions in Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), and

     Ex parte Siebold, 100 U.S. 371 (1879), which were not addressed in McFadden, constitute

     binding authority and mandate that his armed habitual criminal conviction be vacated. In

     Montgomery, the Supreme Court held that the prohibition against mandatory life sentences

     without parole for juvenile offenders articulated in Miller v. Alabama, 567 U.S. ___, 132 S. Ct.

     2455 (2012), was a substantive rule of constitutional law entitled to retroactive effect on

     collateral review. Montgomery, 577 U.S. at ___, 136 S. Ct. at 734. Perkins reasons that Aguilar

     is entitled to the same retroactive effect and that the State’s reliance on his prior UUWF and

     AUUW convictions violates Montgomery’s central premise: “There is no grandfather clause that

     permits States to enforce punishments the Constitution forbids. To conclude otherwise would

     undercut the Constitution’s substantive guarantees.” Id. at ___, 136 S. Ct. at 731.

¶9           Perkins contends that our supreme court “ignored” the decision in Montgomery. But as

     the State points out, prior to oral argument in McFadden, counsel sought and was granted leave

     to cite Montgomery as additional authority. In that motion, counsel advanced the same arguments

     presented here. In response, the State argued, as it does here, that Montgomery posed no




             1
               The exception in the statute relates to prior convictions involving unenumerated “forcible
     felonies,” as to which the State must demonstrate that the felony of which defendant was convicted falls
     into that category (see, e.g., People v. Belk, 203 Ill. 2d 187, 196 (2003); People v. Greer, 326 Ill. App. 3d
     890, 894 (2002)), an issue not presented here.
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   No. 1-15-0889

   constitutional impediment to affirmance of defendant’s UUWF conviction given that defendant

   was not seeking to vacate his prior conviction (relief that, if sought, the State would not oppose),

   but instead was challenging his status as a convicted felon at the time of his trial. The State

   argued that in this context, Lewis v. United States, 445 U.S. 55, 60-62 (1980), which held that a

   defendant’s failure to vacate a prior felony conviction on grounds that it was unconstitutional

   was fatal to a challenge to a felon-in-possession conviction, controlled. We agree with the State.

¶ 10      At the time of Perkins’ armed habitual criminal conviction, he had prior UUWF and

   AUUW convictions. Because those convictions had not been vacated at the time Perkins

   possessed a firearm on October 17, 2010, they could properly serve as the predicates for his

   armed habitual criminal conviction. Consequently, we reverse the judgment of the circuit court

   of Cook County granting Perkins’ postconviction petition.

¶ 11      Reversed.




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