                                   2013 IL App (1st) 120929

                                                                           SIXTH DIVISION
                                                                           December 31, 2013

                                         No. 1-12-0929


THE PEOPLE OF THE STATE OF ILLINOIS,                         )    Appeal from the
                                                             )    Circuit Court
       Plaintiff-Appellee,                                   )    of Cook County
                                                             )
               v.                                            )    No. 09 CR 12950
                                                             )
EDWARD BURNS,                                                )    Honorable
                                                             )    Thomas M. Davy,
       Defendant-Appellant.                                  )    Judge Presiding.


       JUSTICE REYES delivered the judgment of the court, with opinion.
       Presiding Justice Rochford and Justice Hall concurred in the judgment and opinion.

                                           OPINION

¶1     Following a bench trial in the circuit court of Cook County, defendant Edward Burns

(defendant) was found guilty of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-

1.6 (a)(1),(a)(2), (a)(3)(A), (d) (West 2008) and sentenced to 10 years in prison. Defendant was

convicted of a Class 2 offense, based on a prior felony conviction, and sentenced as a Class X

offender. On appeal, defendant argues his convictions must be reversed pursuant to the Illinois

Supreme Court's decision in People v. Aguilar, 2013 IL 112116, reh'g denied, No. 112116 (Ill.

Dec. 19, 2013), which held the Class 4 form of section 24-1.6 (a)(1),(a)(3)(A), (d) of the AUUW

statute facially violates the right to keep and bear arms, as guaranteed by the second amendment

to the United States Constitution (U.S. Const., amend. II). Aguilar, 2013 IL 112116, ¶ 22. For

the following reasons, we affirm defendant's conviction.
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¶2                                       BACKGROUND

¶3     The record on appeal discloses the following facts. On October 7, 2009, defendant was

charged by indictment with violating the armed habitual criminal statute (720 ILCS 5/24-1.7(b)

(West 2008)), two counts of unlawful use of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1

(West 2008)), and eight counts of AUUW (720 ILCS 5/24-1.6 (West 2008)). The armed habitual

criminal charge was based on prior convictions for possession of a controlled substance and

AUUW. The UUWF charges were based on the prior AUUW conviction. Four of the AUUW

charges refer to the prior AUUW conviction, while the four remaining AUUW charges refer to

the prior conviction for possession of a controlled substance. On November 28, 2011,

immediately prior to the commencement of the trial, the State moved to dismiss counts V, VII,

IX, and XI by nolle prosequi. The dismissed counts charged various forms of AUUW on the

ground that defendant had not been issued a valid firearms owner identification card.

¶4     At trial, Chicago police officer Tim McDonough testified that on June 13, 2009, at

approximately 4 a.m., he and Officer Mark Sobczyk were patrolling in a marked police vehicle

and responded to a radio report of gunfire in the vicinity of 73rd Street and Blackstone Avenue.

While proceeding to that location, the police officers were flagged down by the owner of a black

sports utility vehicle, who notified the officers of gunfire and pointed down 73rd Street.

¶5     As the police officers approached the intersection of 73rd Street and Blackstone Avenue,

Officer McDonough observed three individuals entering a four-door Nissan Maxima facing

eastward on 73rd Street. Officer McDonough also noticed a female driver he had not observed




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entering the vehicle. Officer McDonough parked the police vehicle directly in front of the

Nissan.

¶6        As Officer McDonough exited his vehicle, he observed the front-seat passenger, whom he

identified in court as defendant, exit the Nissan while holding a handgun. Officer McDonough

shouted, "Get your hands up," whereupon defendant turned, tossed the handgun into the Nissan,

and fled westbound on foot. Officer McDonough chased defendant, who turned southward and

threw another object to the ground during the chase. Officer McDonough testified this object

was a semiautomatic magazine containing ammunition.

¶7        According to Officer McDonough, defendant eventually ran back toward the Nissan.

Officer McDonough transmitted this information over his radio. Officer McDonough

subsequently learned defendant was apprehended by Officer Sobczyk. When Officer

McDonough returned to the location of the Nissan, he observed Officer Hernandez recover the

handgun from the floorboard of the passenger seat of the Nissan. Officer McDonough also

testified the handgun contained one round of ammunition, but was missing the clip. Officer

McDonough further testified the magazine he recovered while chasing defendant fit the handgun

recovered from the Nissan.

¶8        Officer Sobczyk's testimony was substantially consistent with Officer McDonough's

testimony. Officer Sobczyk additionally testified he secured the Nissan and radioed for backup

when Officer McDonough pursued defendant. Officer Sobczyk received Officer McDonough's

radio call regarding defendant running back toward the Nissan, and Officer Sobczyk started




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walking toward an alley between Dante and Blackstone Avenues on 73rd Street. Shortly

thereafter, defendant emerged from the alley and Officer Sobczyk placed him in custody.

¶9     Following the police testimony, the State introduced certified copies of two convictions:

one for possession of a controlled substance and one for AUUW. The trial court admitted the

convictions without objection. Defendant then moved for a directed finding. The trial court

denied the motion.

¶ 10   Tenika Burns (Tenika), defendant's wife, testified that on June 13, 2009, she was driving

herself, defendant, Otis Burns (Otis), and Larry Lester to a nightclub. During the drive, Otis

received a telephone call, after which he directed Tenika to drive them to 73rd Street and

Blackstone Avenue. While parked, a police vehicle parked in front of her vehicle.

¶ 11   According to Tenika, defendant and Lester exited her vehicle, but she did not observe

defendant toss a handgun into her vehicle. While one police officer pursued defendant and

Lester, another officer directed her and Otis to exit her vehicle and place their hands on the trunk.

Tenika observed a police officer recover a handgun from her vehicle, which Otis identified as

belonging to him. She then observed defendant emerge from the alley and police place him into

handcuffs and escort him to a police vehicle.

¶ 12   Lester testified in a manner substantially similar to Tenika. Lester additionally testified

Otis placed a handgun under the passenger seat when the police parked their vehicle in front of

them. Lester also testified he fled the vehicle and was apprehended at the intersection of 74th

Street and Dante Avenue. Lester further testified he never heard Otis admit to being the owner of

the handgun at the scene of the police stop.


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¶ 13   Defendant testified he did not possess a handgun when the police parked in front of

Tenika's vehicle. According to defendant, he fled in the mistaken belief a protective order

Tenika had obtained remained in force. Defendant denied tossing the handgun into Tenika's

vehicle and discarding ammunition while being pursued by the police. Defendant testified he

walked back to Tenika's vehicle and surrendered to the police.

¶ 14   In rebuttal, the State called Officer Kubiak, who testified she and Officer Hernandez were

involved in arresting defendant. According to Officer Kubiak, when she arrived at the scene of

the incident, Otis and Tenika were in the Nissan. Officer Kubiak also testified Otis never

admitted he was the owner of the handgun recovered from the passenger floorboard of the

vehicle. Officer Sobczyk also testified in rebuttal that Otis never admitted he was the owner of

the handgun.

¶ 15   Following closing arguments, the trial court found defendant guilty of violating the armed

habitual criminal statute, two counts of UUWF, and eight counts of AUUW.

¶ 16   On January 3, 2012, defendant filed a motion to reconsider. In the motion, defendant first

argued the State relied on two certified copies of convictions, one of which (possession of a

controlled substance with intent to deliver) was under the name of Edward Burns, while the other

(AUUW) was under the name of Damion Smith. Defendant argued the State failed to adduce

any evidence that he is the same person as Damion Smith. Second, defendant argued the State

failed to prove he knowingly possessed a firearm.

¶ 17   On January 6, 2012, the trial court held a hearing, commencing with a pro se motion

alleging ineffective assistance of defense counsel, which the trial court denied. The trial court


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then heard argument on the motion to reconsider. The trial court denied the motion regarding the

argument the State failed to prove defendant knowingly possessed a firearm. The trial court,

however, granted the motion to reconsider in part regarding the State's failure to adduce any

evidence defendant is the same person as Damion Smith. The trial court observed this ruling

applied to the UUWF and armed habitual criminal charges, but not the remaining counts, where

the prior felony conviction is not an element of the offense.

¶ 18   On February 10, 2012, the trial court proceeded to sentence defendant on the two

remaining AAUW counts (counts VI and X). Following argument on the issue of whether

defendant should be sentenced as a Class X offender, and hearing factors in aggravation and

mitigation of the offense, including testimony from Tenika, the trial court sentenced defendant on

count 6 of the indictment to 10 years in prison for violating section 24-1.6(a)(1), (a)(3)(A) of the

AUUW statute. 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008). The sentencing order reflects

defendant, having been convicted of a Class 2 offense, was sentenced as a Class X offender. The

sentencing order does not reflect a sentence upon count X of the indictment, which addressed a

violation of section 24-1.6(a)(2), (a)(3)(A) of the AUUW statute. 720 ILCS 5/24-1.6(a)(2),

(a)(3)(A) (West 2008).

¶ 19   On March 12, 2012, defendant filed a timely notice of appeal to this court. Defendant

filed an initial brief arguing his conviction cannot stand because section 24-1.6(a)(1), (a)(3)(A) of

the AUUW statute unconstitutionally infringes upon his right to keep and bear arms, as

guaranteed by the second amendment to the United States Constitution (U.S. Const., amend. II).

On September 12, 2013, shortly before defendant filed his reply brief, our supreme court


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determined section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute was unconstitutional on its face.

Aguilar, 2013 IL 112116, ¶ 22. On September 19, 2013, defendant filed an emergency motion in

this court, seeking a summary reversal of his conviction and an immediate issuance of a mandate

to this effect. On September 23, 2013, the State filed a reply in opposition to the emergency

motion. On September 25, 2013, defendant filed a reply in support of his motion. On September

30, 2013, this court entered an order denying the emergency motion. Also on September 30,

2013, the State filed a motion for leave to file a surreply in opposition to the emergency motion,

which this court denied as moot on October 2, 2013. In addition, on October 4, 2013, this court

entered an order setting an expedited supplemental briefing schedule pursuant to Illinois Supreme

Court Rule 343(c) (eff. July 1, 2008). On December 12, 2013, this court held oral argument in

this case.

¶ 20    On December 19, 2013, our supreme court entered a modified opinion on denial of the

State's petition for rehearing in Aguilar. Aguilar, 2013 IL 112116. In the modified opinion, the

court noted:

               "In response to the State's petition for rehearing in this case, we reiterate and

        emphasize that our finding of unconstitutionality in this decision is specifically limited to

        the Class 4 form of AUUW, as set forth in section 24-1.6(a)(1), (a)(3)(A), (d) of the

        AUUW statute. We make no finding, express or implied, with respect to the

        constitutionality or unconstitutionality of any other section or subsection of the AUUW

        statute." Aguilar, 2013 IL 112116, ¶ 22 n.3.




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Chief Justice Garman dissented from the denial of rehearing, concluding the supreme court

would have benefitted from further deliberation because the State's petition for rehearing had

"fundamentally redefined" the issue in the case. See Aguilar, 2013 IL 112116, ¶¶ 33, 36

(Garman, C.J., dissenting). Justice Theis also dissented, observing in part "the implication of

the court's holding is that the so-called 'Class 2 form of the offense,' which enhances the penalty

for felons, could potentially remain enforceable." Aguilar, 2013 IL 112116, ¶ 47 (Theis, J.,

dissenting).

¶ 21                                       DISCUSSION

¶ 22   The sole issue in this case is whether the Class 2 form of section 24-1.6(a)(1), (a)(3)(A),

(d) of the AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)) violates the right

to keep and bear arms, as guaranteed by the second amendment to the United States Constitution

(U.S. Const., amend. II). Section 24-1.6 of the AUUW statute provides in part:

               "(a) A person commits the offense of aggravated unlawful use of a weapon when

       he or she knowingly:

                       (1) Carries on or about his or her person or in any vehicle or concealed on

               or about his or her person except when on his or her land or in his or her abode, or

               fixed place of business any pistol, revolver, stun gun or taser or other firearm; or

                       (2) Carries or possesses on or about his or her person, upon any public

               street, alley, or other public lands within the corporate limits of a city, village or

               incorporated town, except when an invitee thereon or therein, for the purpose of

               the display of such weapon or the lawful commerce in weapons, or except when


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               on his or her own land or in his or her own abode or fixed place of business, any

               pistol, revolver, stun gun or taser or other firearm; and

                       (3) One of the following factors is present:

                               (A) the firearm possessed was uncased, loaded, and immediately

                       accessible at the time of the offense[.]

                                                ***

               (d) Sentence. Aggravated unlawful use of a weapon is a Class 4 felony; a second

       or subsequent offense is a Class 2 felony for which the person shall be sentenced to a

       term of imprisonment of not less than 3 years and not more than 7 years. Aggravated

       unlawful use of a weapon by a person who has been previously convicted of a felony in

       this State or another jurisdiction is a Class 2 felony for which the person shall be

       sentenced to a term of imprisonment of not less than 3 years and not more than 7 years."

       720 ILCS 5/24-1.6 (West 2008).

Defendant relies on the original decision in Aguilar, in which the supreme court determined

section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute on its face 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 a statute is held facially unconstitutional, the statute is said to be void ab

initio. People v. Blair, 2013 IL 114122, ¶ 28. A statute declared void ab initio "was

constitutionally infirm from the moment of its enactment and is, therefore, unenforceable."

Blair, 2013 IL 114122, ¶ 30.




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¶ 23   The State argues that Aguilar does not apply to convicted felons such as defendant.

Aguilar was found guilty of the Class 4 form of the offense of the AAUW statute and sentenced

to 24 months' probation. See Aguilar, 2013 IL 112116, ¶ 7. The decision in Aguilar relies on the

Seventh Circuit Court of Appeals' decision in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012),

which our supreme court has interpreted as applying to the Class 4 form of the offense. Aguilar,

2013 IL 112116, ¶¶ 19-22. In contrast, the record on appeal in this case establishes defendant

was sentenced under the Class 2 form of the offense. The State, while conceding the substantive

elements of the offense in this case were identical to those in Aguilar, contends defendant here

was actually convicted of a different, albeit related, form of the offense.

¶ 24   In general, where a statute initially sets forth the elements of the offense, then separately

provides sentencing classifications based on other factors, these factors only enhance the

punishment and do not create a new offense. See People v. Van Schoyck, 232 Ill. 2d 330, 338

(2009) (driving while under the influence statute); People v. Robinson, 232 Ill. 2d 98, 112 (2008)

(involuntary manslaughter statute); People v. Green, 225 Ill. 2d 612, 619-20 (2007) (robbery

statute); People v. Smith, 2012 IL App (1st) 102354, ¶ 110 (attempt statute); see also People v.

White, 2011 IL 109616, ¶ 26 ("[F]irst degree murder is a single offense – there is no separate

offense of 'armed murder' or 'enhanced murder.' "). The modified opinion in Aguilar, however,

specifies the decision "is specifically limited to the Class 4 form of AUUW." Aguilar, 2013 IL

112116, ¶ 22 n.3; compare People v. Delvillar, 235 Ill. 2d 507, 510 (2009) (referring to a

defendant pleading guilty to "aggravated unlawful use of a weapon by a felon"). Indeed, the

modified opinion in Aguilar refers to the "Class 4 form of the offense" repeatedly. Aguilar, 2013


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IL 112116, ¶¶ 1, 7, 11, 15, 18, 19, 20, 21, 22, 24, 30. The modified ruling left open the issue of

whether any other section or subsection of the AUUW is unconstitutional. Aguilar, 2013 IL

112116, ¶ 22 n.3. Given the nature of the ruling in Aguilar, and its multiple references to the

Class 4 form of the offense, we agree "the implication of the court's holding is that the so-called

'Class 2 form of the offense,' which enhances the penalty for felons, could potentially remain

enforceable." Aguilar, 2013 IL 112116, ¶ 47 (Theis, J., dissenting). Accordingly, we turn to

consider the constitutionality of the Class 2 form of the offense in the AUUW statute.

¶ 25    In Aguilar, our supreme court observed that the right to keep and bear arms is subject to

meaningful regulation. Aguilar, 2013 IL 112116, ¶ 21. Such regulations may include, but are

not limited to, " 'longstanding prohibitions on the possession of firearms by felons and the

mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and

government buildings, or laws imposing conditions and qualifications on the commercial sale of

arms.' " (Emphasis added.) Aguilar, 2013 IL 112116, ¶ 26 (quoting District of Columbia v.

Heller, 554 U.S. 570, 626-27 (2008)). Indeed, the United States Supreme Court described such

provisions as "presumptively lawful." Heller, 554 U.S. at 627 n.26. Based on similar reasoning,

this court has rejected second amendment challenges to other statutes restricting the possession

or use of firearms by felons. E.g., People v. Neely, 2013 IL App (1st) 120043, ¶ 12 (upholding

the UUWF statute); People v. Garvin, 2013 IL App (1st) 113095, ¶¶ 26-41 (upholding the armed

habitual criminal and UUWF statutes); People v. Davis, 408 Ill. App. 3d 747, 750 (2011) (same).

¶ 26   Aguilar is further instructive on the mode of constitutional analysis to be employed. In

that case our supreme court affirmed Aguilar's other conviction for unlawful possession of a


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firearm (UPF). Aguilar, 2013 IL 112116, ¶ 30. Aguilar's age–17 years old at the time of the

offense – was the basis for his conviction under the UPF statute. Aguilar, 2013 IL 112116, ¶ 25.

Our supreme court, based on the almost 150-year history of laws banning the juvenile possession

of firearms, concluded "the possession of handguns by minors is conduct that falls outside the

scope of the second amendment's protection." Aguilar, 2013 IL 112116, ¶ 27.

¶ 27   In this case, the history of prohibitions on the possession of firearms by felons has been

expressly recognized by the United States Supreme Court and the Illinois Supreme Court.

Heller, 554 U.S. at 626; Aguilar, 2013 IL 112116, ¶ 26. Thus, we conclude the possession of

firearms by felons is conduct that falls outside the scope of the second amendment's protection.1

In this case, the Class 2 form of AUUW at issue merely regulates the possession of a firearm by a

person who has been previously convicted of a felony. Accordingly, defendant's constitutional

challenge to the Class 2 form of the offense in the AUUW statute fails.




       1
           Prior to Aguilar, this court applied intermediate scrutiny to a constitutional challenge of

the AAUW statute involving possession of a firearm by an individual convicted of a felony,

concluding the statute is a valid exercise of the important governmental interest in protecting the

health, safety and general welfare of its citizens. People v. Brisco, 2012 IL App (1st) 101612, ¶¶

51-57. Accordingly, even assuming for the sake of argument that the possession of firearms by

felons is conduct that falls inside the scope of the second amendment's protection, we would

nevertheless uphold the constitutionality of the specific statute involved in this appeal.

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¶ 28                                    CONCLUSION

¶ 29   For all of the aforementioned reasons, we affirm the judgment of the circuit court of Cook

County.

¶ 30   Affirmed.




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