                                  Illinois Official Reports

                                          Appellate Court



                             People v. Campbell, 2013 IL App (4th) 120635




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



District & No.               Fourth District
                             Docket No. 4-12-0635


Filed                        December 24, 2013


Held                         On appeal from defendant’s convictions for aggravated battery and
(Note: This syllabus         aggravated unlawful use of a weapon under section 24-1.6(a)(1),
constitutes no part of the   (a)(3)(A) of the Criminal Code, his conviction for aggravated battery
opinion of the court but     was affirmed in the absence of any challenge on appeal, his conviction
has been prepared by the     for aggravated unlawful use of a weapon under section 24-1.6(a)(1),
Reporter of Decisions        (a)(1)(A) was reversed on the ground it was void based on the decision
for the convenience of       of the Illinois Supreme Court in Aguilar holding that the statute was
the reader.)                 unconstitutional on its face, the order requiring defendant to pay for
                             his court-appointed counsel was vacated due to the trial court’s failure
                             to hold a hearing on defendant’s ability to pay, and the cause was
                             remanded for such a hearing; further, the cause was remanded with
                             directions that the trial court enter a judgment of conviction under
                             section 24-1.6(a)(1), (a)(3)(C) of the Code and impose a sentence
                             therefor.



Decision Under               Appeal from the Circuit Court of Sangamon County, No. 10-CF-268;
Review                       the Hon. Leo J. Zappa, Judge, presiding.

Judgment                     Affirmed in part as modified, reversed in part, and vacated in part;
                             cause remanded with directions.
     Counsel on               Michael J. Pelletier, Karen Munoz, and Janieen R. Tarrance, all of
     Appeal                   State Appellate Defender’s Office, of Springfield, for appellant.

                              John Milhiser, State’s Attorney, of Springfield (Patrick Delfino,
                              Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys
                              Appellate Prosecutor’s Office, of counsel), for the People.


     Panel                    JUSTICE STEIGMANN delivered the judgment of the court, with
                              opinion.
                              Justices Knecht and Turner concurred in the judgment and opinion.


                                             OPINION




¶1         In April 2012, a jury found defendant, Johnathan Campbell, guilty of aggravated battery
       (720 ILCS 5/12-4(b) (West 2010)) and aggravated unlawful use of a weapon (720 ILCS
       5/24-1.6(a)(1), (a)(3)(A) (West 2010)). In August 2012, the trial court sentenced defendant to
       concurrent terms of five years in prison.
¶2         Defendant appeals, arguing that (1) his conviction for aggravated unlawful use of a
       weapon is void because the supreme court has declared the provision of the statute at issue in
       this case unconstitutional on its face, and (2) the trial court erred by ordering him to pay for
       the services of court-appointed counsel without first holding a hearing on his ability to pay.
       We affirm in part, reverse in part, vacate in part, and remand with directions.

¶3                                        I. BACKGROUND
¶4         The facts are not in dispute. On April 27, 2010, defendant and another man attacked Zack
       Koehler outside of a Western Union in Springfield, Illinois, by hitting him over the head with
       handguns. Officer Michael Brown, who was on patrol in his police cruiser at the time,
       noticed the altercation. Defendant and the other man got into a vehicle, and Brown followed
       in pursuit. During a short chase that ended when defendant crashed into a light pole, Brown
       saw two handguns thrown out of the vehicle. After retrieving the handguns, investigators
       identified defendant’s fingerprints on the magazine of one of the guns.
¶5         In May 2010, the State charged defendant with (1) attempt (armed robbery) (720 ILCS
       5/8-4(a), 18-2 (West 2010)), (2) two counts of aggravated battery, and (3) two counts of
       aggravated unlawful use of a weapon.
¶6         In April 2012, a jury found defendant guilty of both counts of aggravated battery and
       both counts of aggravated unlawful use of a weapon but acquitted him of attempt (armed
       robbery). In August 2012, the trial court entered judgment against defendant on one count of
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       aggravated battery and one count of aggravated unlawful use of a weapon and sentenced
       defendant to concurrent terms of five years in prison for each count.
¶7         This appeal followed.

¶8                                           II. ANALYSIS
¶9                             A. Aggravated Unlawful Use of a Weapon
¶ 10       Defendant argues that his conviction for aggravated unlawful use of a weapon is void
       because the supreme court has declared the provision of the statute at issue in this case
       unconstitutional on its face. We agree.
¶ 11       The jury convicted defendant of aggravated unlawful use of a weapon under section
       24-1.6(a)(1), (a)(3)(A) of the Criminal Code of 1961 (Code), which provides as follows:
                   “(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, legal
                   dwelling, or fixed place of business, or on the land or in the legal dwelling of
                   another person as an invitee with that person’s permission, 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[.]” 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010).
       (We note that although the jury also found defendant guilty of aggravated unlawful use of a
       weapon under section 24-1.6(a)(1), (a)(3)(C) of the Code (possession without a currently
       valid firearm owner’s identification (FOID) card, the trial court did not enter judgment of
       conviction against defendant under that section. Instead, the court entered judgment of
       conviction under section 24-1.6(a)(1), (a)(3)(A) of the Code. See People v. Lashmett, 126 Ill.
       App. 3d 340, 345-46, 467 N.E.2d 356, 361 (1984) (“The judge, not the jury, renders
       judgment in a case. *** A conviction contemplates more than a mere finding of guilt.”).
¶ 12       In the recent case of People v. Aguilar, 2013 IL 112116, ¶ 22, the supreme court held
       that, “on its face, the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) [of the Code]
       violates the right to keep and bear arms, as guaranteed by the second amendment to the
       United States Constitution.” Citing the United States Supreme Court’s decisions in District of
       Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. ___,
       130 S. Ct. 3020 (2010), as well as the Seventh Circuit Court of Appeals’ decision in Moore v.
       Madigan, 702 F.3d 933 (7th Cir. 2012), the supreme court held that “the second amendment
       protects the right to possess and use a firearm for self-defense outside the home.” Aguilar,
       2013 IL 112116, ¶ 21. Because section 24-1.6(a)(1), (a)(3)(A) of the Code “categorically
       prohibits the possession and use of an operable firearm for self-defense outside the home,”
       the court concluded that it “amounts to a wholesale statutory ban on the exercise of a


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       personal right that is specifically named in and guaranteed by the United States Constitution,
       as construed by the United States Supreme Court.” Id.
¶ 13        In this case, the State argues that because defendant is a convicted felon, his conviction
       under section 24-1.6(a)(1), (a)(3)(A) of the Code is constitutional. In support of its position,
       the State relies upon Heller and McDonald, in which the Supreme Court clarified that its
       holdings should not be taken to cast doubt upon the long-standing prohibitions of the
       possession of firearms by felons. See Heller, 554 U.S. at 626; McDonald, 561 U.S. at ___,
       130 S. Ct. at 3047. The State asserts that, based upon these clarifications in Heller and
       McDonald, “[d]efendant’s claim that [section 24-1.6(a)(1), (a)(3)(A) of the Code] was
       unconstitutional on its face should therefore be rejected.”
¶ 14        The State seems to misunderstand the nature of the supreme court’s decision in Aguilar.
       The court in Aguilar did not merely hold that section 24-1.6(a)(1), (a)(3)(A) of the Code was
       unconstitutional as applied in that case–the court held that the statute was unconstitutional on
       its face. Aguilar, 2013 IL 112116, ¶ 22. “A statute is facially unconstitutional if there are no
       circumstances in which it could be validly applied.” Lucien v. Briley, 213 Ill. 2d 340, 344,
       821 N.E.2d 1148, 1150 (2004). Because section 24-1.6(a)(1), (a)(3)(A) of the Code is
       unconstitutional on its face, neither defendant’s status as a felon nor any other factor could
       render his conviction under that provision of the aggravated unlawful use of a weapon statute
       constitutional.
¶ 15        Further, by arguing that defendant’s conviction was constitutional because he was a
       convicted felon, the State is attempting to meld together two separate criminal offenses.
       Section 24-1.1 of the Code, which the supreme court has not declared unconstitutional,
       generally prohibits felons from possessing firearms anywhere. 720 ILCS 5/24-1.1 (West
       2010). The State did not charge defendant with violating section 24-1.1 of the Code. Instead,
       the State charged defendant with violating section 24-1.6(a)(1), (a)(3)(A) of the Code, which
       contains no specific provision pertaining to felons. Moreover, the jury in this case was not
       instructed to make a finding that defendant was a felon, nor did its verdict reflect such a
       finding.
¶ 16        Because defendant was convicted of violating a statute that the supreme court has
       declared unconstitutional on its face, his conviction for aggravated unlawful use of a weapon
       under section 24-1.6(a)(1), (a)(3)(A) of the Code is void, and we reverse. We earlier noted
       that the jury also found defendant guilty of aggravated unlawful use of a weapon under
       section 24-1.6(a)(1), (a)(3)(C) of the Code (possession without a currently valid FOID card)
       and that the trial court did not enter a judgment of conviction against defendant under that
       section. Given our reversal of his conviction for aggravated unlawful use of a weapon under
       section 24-1.6(a)(1), (a)(3)(A) of the Code, we remand with directions that the trial court
       enter a judgment of conviction against defendant under section 24-1.6(a)(1), (a)(3)(C) of the
       Code and impose a sentence upon that conviction. See People v. Dixon, 91 Ill. 2d 346,
       352-53, 438 N.E.2d 180, 184 (1982).




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¶ 17                        B. The Trial Court’s Imposition of Costs for
                                      Court-Appointed Counsel
¶ 18       Defendant also argues that the trial court erred by ordering him to pay for the services of
       court-appointed counsel without first holding a hearing on his ability to pay. The State
       concedes that the court erred by ordering defendant to pay $4,300 for the services of
       court-appointed counsel without holding a hearing. We accept the State’s concession.
¶ 19       Section 113-3.1(a) of the Code of Criminal Procedure of 1963 allows the trial court to
       order a defendant to pay a reasonable sum to compensate the county or State for the services
       of court-appointed counsel. 725 ILCS 5/113-3.1(a) (West 2010). Due process requires that
       before the court orders such payment, “the court must give the defendant notice that it is
       considering imposing the fee, and the defendant must be given the opportunity to present
       evidence regarding his or her ability to pay and any other relevant circumstances.” People v.
       Somers, 2013 IL 114054, ¶ 14, 984 N.E.2d 471. “The hearing must focus on the costs of
       representation, the defendant’s financial circumstances, and the foreseeable ability of the
       defendant to pay.” Id. (citing People v. Love, 177 Ill. 2d 550, 563, 687 N.E.2d 32, 38 (1997)).
¶ 20       Because the trial court did not hold a hearing on defendant’s ability to pay the costs of
       court-appointed counsel, we vacate the court’s payment order and remand for a hearing.

¶ 21                                   III. CONCLUSION
¶ 22       We affirm defendant’s conviction for aggravated battery, which he did not challenge in
       this appeal. Because section 24-1.6(a)(1), (a)(3)(A) of the Code is unconstitutional on its
       face, defendant’s conviction under that statute is void. Accordingly, we reverse defendant’s
       conviction for aggravated unlawful use of a weapon. We remand with directions that the trial
       court enter a judgment of conviction against defendant under section 24-1.6(a)(1), (a)(3)(C)
       of the Code and then impose a sentence upon defendant for that conviction. We also vacate
       the trial court’s payment order for court-appointed counsel and remand for a hearing on
       defendant’s ability to pay.

¶ 23       Affirmed in part as modified, reversed in part, and vacated in part; cause remanded with
       directions.




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