                                                                         Digitally signed by
                       Illinois Official Reports                         Reporter of Decisions
                                                                         Reason: I attest to the
                                                                         accuracy and integrity
                                                                         of this document
                               Appellate Court                           Date: 2016.11.21
                                                                         09:34:36 -06'00'




                  People v. Perkins, 2016 IL App (1st) 150889



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



District & No.    First District, Third Division
                  Docket No. 1-15-0889



Filed             August 31, 2016



Decision Under    Appeal from the Circuit Court of Cook County, No. 10-CR-19249; the
Review            Hon. James B. Linn, Judge, presiding.



Judgment          Reversed.



Counsel on        Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Appeal            John E. Nowak, and Sara McGann, Assistant State’s Attorneys, of
                  counsel), for the People.

                  Michael J. Pelletier, Patricia Mysza, and Michael Gomez, all of State
                  Appellate Defender’s Office, of Chicago, for appellee.



Panel             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 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.
¶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.

                                                 -2-
     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
     examine a defendant’s underlying conduct in commission of the enumerated offenses1 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
     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

         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.

                                                     -3-
       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.




                                                   -4-
