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                              Appellate Court                            Date: 2017.01.04
                                                                         11:29:54 -06'00'




                  People v. Williams, 2016 IL App (3d) 120840



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



District & No.    Third District
                  Docket No. 3-12-0840



Filed             August 17, 2016



Decision Under    Appeal from the Circuit Court of Kankakee County, No. 11-CF-128;
Review            the Hon. Clark E. Erickson, Judge, presiding.



Judgment          Affirmed.



Counsel on        Michael J. Pelletier and Santiago A. Durango, of State Appellate
Appeal            Defender’s Office, of Ottawa, for appellant.

                  Jamie J. Boyd, State’s Attorney, of Kankakee (Judith Z. Kelly, of
                  State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                  People.



Panel             JUSTICE SCHMIDT delivered the judgment of the court, with
                  opinion.
                  Justices Holdridge and Carter concurred in the judgment and opinion.
                                             OPINION

¶1       Defendant, Michael L. Williams, challenges his conviction for unlawful possession of a
     weapon by a felon (UPWF) (720 ILCS 5/24-1.1(a) (West 2010)). He argues that the State
     relied on a void conviction to prove the element of a prior felony conviction, and therefore
     failed to prove defendant guilty beyond a reasonable doubt. We affirm.

¶2                                              FACTS
¶3       The State charged defendant by indictment with attempted armed robbery (720 ILCS
     5/8-4(a), 18-2(a)(2) (West 2010)) and UPWF. The UPWF count alleged that on March 7, 2011,
     defendant, being “a person who has been convicted of a felony under the law of Illinois,
     knowingly possessed on or about his person, a handgun.”
¶4       At the ensuing jury trial, the State produced evidence showing that a firearm was found
     under the passenger seat of the car in which defendant was arrested. The State also introduced
     a certified copy of defendant’s prior felony conviction. The certified documents showed that
     defendant had pled guilty in 2006 to Class 4 aggravated unlawful use of a weapon (AUUW).
     More specifically, defendant pled guilty to a violation of section 24-1.6(a)(1), (a)(3)(A) of the
     Criminal Code of 1961 (Code) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2006)).
¶5       On March 8, 2012, the jury found defendant guilty of UPWF and not guilty of attempted
     armed robbery. The trial court sentenced defendant to a term of 12 years’ imprisonment.

¶6                                            ANALYSIS
¶7        On appeal, defendant contends that his conviction must be reversed because the State
     failed to prove that he had a prior felony conviction, a necessary element of UPWF.
     Specifically, defendant points out that his 2006 AUUW conviction was based on a statute that
     was later declared facially unconstitutional by our supreme court in People v. Aguilar, 2013 IL
     112116, ¶ 22. Thus, defendant argues that because his 2006 conviction was void, the State
     failed to prove that he committed UPWF. The supreme court’s decision in People v.
     McFadden, 2016 IL 117424, mandates that we reject defendant’s argument.
¶8        In Aguilar, our supreme court held that “on its face, the Class 4 form of section
     24-1.6(a)(1), (a)(3)(A), (d)” (the section under which defendant in the present case pled guilty
     in 2006) “violates the right to keep and bear arms, as guaranteed by the second amendment to
     the United States Constitution.” Aguilar, 2013 IL 112116, ¶ 22. When the supreme court
     declares a statute to be unconstitutional on its face, that statute is void ab initio. People v.
     Davis, 2014 IL 115595, ¶ 25. “When a court declares a statute unconstitutional and void
     ab initio, the court means only that the statute was constitutionally infirm from the moment of
     its enactment and, therefore, is unenforceable.” Id. Defendant maintains that his 2006 AUUW
     conviction—sustained under the same section deemed facially unconstitutional in Aguilar—is
     a nullity and may not be subsequently used to sustain the present conviction for UPWF.
¶9        Our supreme court addressed this precise issue in McFadden. In that case, defendant had
     been convicted under section 24-1.6(a)(1), (a)(3)(A) of the Code. McFadden, 2016 IL 117424,




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       ¶¶ 3-4. That conviction was then used as a basis for a later conviction of UPWF.1 Id. ¶¶ 6-7.
       Later, the supreme court issued its decision in Aguilar. See id. ¶ 8.
¶ 10        The McFadden court held that the Aguilar ruling did not undermine the defendant’s
       conviction for UPWF. See id. ¶ 30. In so holding, the court examined the language of section
       24-1.1(a), which prohibits a person from possessing a firearm “ ‘if the person has been
       convicted of a felony under the laws of this State or any other jurisdiction.’ ” Id. ¶ 27 (quoting
       720 ILCS 5/24-1.1(a) (West 2008)). Noting that the language in the statute is in the past tense,
       a divided court concluded that “[n]othing on the face of the statute suggests any intent to limit
       the language to only those persons whose prior felony convictions are not later subject to
       vacatur.” Id. In other words, until an erroneous conviction is cleared from a defendant’s record
       via vacatur or other affirmative action to nullify the conviction, he is still subject to the
       “firearms disability” in section 24-1.1(a). Id. ¶ 24. McFadden requires that Illinois courts reject
       a literal translation of “void ab initio.”
¶ 11        Like the defendant in McFadden, defendant here was convicted of AUUW and later
       convicted of UPWF, with each conviction occurring before our supreme court decided
       Aguilar. At the time defendant possessed a firearm, his conviction for AUUW had not been
       vacated. Accordingly, notwithstanding the fact that defendant was convicted of violating a
       statute later declared void ab initio, he was still subject to the “firearms disability” imposed by
       section 24-1.1(a), and the State sufficiently proved that fact. Id.

¶ 12                                         CONCLUSION
¶ 13       For the foregoing reasons, we affirm the judgment of the circuit court of Kankakee County.

¶ 14       Affirmed.




           1
             The McFadden court referred to the offense as the “unlawful use of a weapon by a felon,” though
       it cited the same statutory section as that under which defendant was convicted here. McFadden, 2016
       IL 117424, ¶ 1. The full title of section 24-1.1 is “Unlawful Use or Possession of Weapons by Felons or
       Persons in the Custody of the Department of Corrections Facilities.” 720 ILCS 5/24-1.1 (West 2010).
       Whether labeled as unlawful use of a weapon by a felon, as in McFadden, or as unlawful possession of
       a weapon by a felon, as here, there is only one offense under this section. For the purposes of clarity, we
       will continue to refer to the offense as UPWF.

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