                                  Illinois Official Reports

                                          Appellate Court



                             People v. Claxton, 2014 IL App (1st) 132681



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



District & No.               First District, Fifth Division
                             Docket No. 1-13-2681



Filed                        September 30, 2014



Held                         Defendant’s conviction for unlawful use of a weapon by a felon was
(Note: This syllabus         reversed, since his only prior conviction was for the Class 4 felony
constitutes no part of the   form of section 24-1.6(a)(1), (a)(3)(A) or (a)(2), (a)(3)(A), and
opinion of the court but     pursuant to Aguilar, that conviction is void ab initio and could not
has been prepared by the     serve as an essential element of his conviction for unlawful use of a
Reporter of Decisions        weapon by a felon.
for the convenience of
the reader.)




Decision Under               Appeal from the Circuit Court of Cook County, No. 12-CR-15882; the
Review                       Hon. James B. Linn, Judge, presiding.




Judgment                     Reversed.
     Counsel on               Michael J. Pelletier, Alan D. Goldberg, and Rachel Moran, all of State
     Appeal                   Appellate Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              Jeffrey Allen, and John E. Nowak, Assistant State’s Attorneys, of
                              counsel), for the People.




     Panel                    JUSTICE McBRIDE delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Palmer and Justice Gordon concurred in the
                              judgment and opinion.




                                               OPINION

¶1          Following a jury trial, defendant Nicholas Claxton was convicted of unlawful use of a
       weapon by a felon (UUWF) and sentenced to 10 years’ imprisonment. On appeal, defendant
       contends that his conviction must be reversed because his only prior felony conviction is for a
       version of aggravated unlawful use of a weapon (AUUW) that has been found facially
       unconstitutional. For the reasons stated below, we reverse.
¶2          Defendant was charged with multiple counts of UUWF for possessing on his person a
       firearm and ammunition on or about July 28, 2012, and for possessing on his land, abode, or
       person a firearm and ammunition between July 28 and August 4, 2012. All counts alleged that
       he did so while having been convicted of AUUW in case No. 11 CR 16293, and all sought a
       Class X sentence on an allegation that he committed UUWF while possessing body armor.
       Defendant was also charged with cyberstalking for sending “picture texts” as described below
       to Herbert Brown that he knew or should have known would cause a reasonable person to fear
       for his safety or the safety of another and to suffer emotional distress.
¶3          Defendant filed a motion to dismiss the UUWF charges, citing Moore v. Madigan, 702
       F.3d 933 (7th Cir. 2012), finding the UUW and AUUW statutes unconstitutional. Noting that
       the ramifications of the federal decision were uncertain (the court of appeals had stayed its
       mandate to allow the legislature to amend the statutes), the court denied dismissal.
¶4          At trial, the evidence showed that defendant “texted” to his former coworker Brown a
       photograph of himself wearing a bulletproof vest and holding a shotgun. A search of
       defendant’s home with the consent of a woman with whom he was living disclosed a bag
       containing a loaded shotgun, loose ammunition and a vest. The woman testified to seeing the
       bag, shotgun, and vest in their home before the search. Testing showed that the vest contained
       “ballistic-grade high-strength fibers” and ceramic armor plates suitable to stop 7.62-millimeter
       rifle-fired ammunition. On this evidence, the jury found defendant guilty of UUWF of a



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       firearm and UUWF of ammunition, also finding that he possessed body armor during these
       offenses, while finding him not guilty of cyberstalking.
¶5          In his unsuccessful posttrial motion, defendant argued the unconstitutionality under Moore
       of his predicate conviction for AUUW.
¶6          In case No. 11 CR 16293, defendant was charged with and tried upon two counts of
       AUUW based on having an “uncased, loaded, and immediately accessible” firearm on his
       person outside his land or abode on a public way. 720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (a)(2),
       (a)(3)(A) (West 2010). While he was also charged with aggravated discharge, the court granted
       a directed finding on that charge. Defendant’s only prior offenses other than AUUW (with a
       sentence of 18 months’ probation) were for reckless conduct and misdemeanor theft, for which
       defendant received supervision.
¶7          Following arguments in aggravation and mitigation, the court sentenced defendant to the
       minimum sentence of 10 years’ imprisonment for the Class X offense of UUWF while wearing
       body armor. This appeal timely followed.
¶8          On appeal, defendant contends that his UUWF conviction must be reversed because his
       only prior felony conviction is for a version of AUUW found facially unconstitutional by the
       Illinois Supreme Court. The State responds that it proved beyond a reasonable doubt that
       defendant was a convicted felon when he possessed a firearm and ammunition in 2012 as
       charged, and the State challenges our jurisdiction to consider the validity of the prior AUUW
       conviction. Defendant replies that his AUUW conviction is void ab initio and cannot serve as
       the predicate for his UUWF conviction, so that we have jurisdiction to consider the validity of
       the AUUW conviction insofar as it underpins the instant UUWF conviction.
¶9          As of 2011, the time of defendant’s offense in case No. 11 CR 16293, the UUW statute
       prohibited a person from carrying or concealing on or about his person, or in any vehicle, a
       firearm except when on his land or in his abode or fixed place of business (720 ILCS
       5/24-1(a)(4) (West 2010)) while the AUUW statute prohibited the same with any of various
       additional factors, including that the firearm “was uncased, loaded and immediately
       accessible.” 720 ILCS 5/24-1.6(a)(3)(A) (West 2010). Specifically, sections 24-1.6(a)(1) and
       (a)(2) concerned when a person either:
                    “(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 *** [a] 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 on his or her own land or
                in his or her own abode or fixed place of business *** [a] firearm.” 720 ILCS
                5/24-1.6(a)(1), (a)(2) (West 2010).
¶ 10        In Moore, the United States Court of Appeals for the Seventh Circuit found the UUW and
       AUUW statutes unconstitutional. The United States Supreme Court has found that the second
       amendment creates a personal right, binding upon the states through the fourteenth amendment
       (U.S. Const., amend. XIV, § 1), “to keep and bear arms for lawful purposes, most notably for
       self-defense within the home.” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (citing
       District of Columbia v. Heller, 554 U.S. 570 (2008)). The Seventh Circuit found in Moore that


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       the “right to bear arms for self-defense *** is as important outside the home as inside,” found
       that the UUW and AUUW statutes create a “uniquely sweeping ban,” and remanded the case to
       the federal district court for declarations of unconstitutionality and injunctive relief. Moore,
       702 F.3d at 942. The Seventh Circuit noted that the right to keep and bear arms does not
       preclude “the usual prohibitions of gun ownership by children, felons, illegal aliens, lunatics,
       and in sensitive places such as public schools, the propriety of which was not questioned in
       Heller.” Moore, 702 F.3d at 940 (citing Heller, 554 U.S. at 626). However, the UUW and
       AUUW statutes create “a flat ban on carrying ready-to-use guns outside the home.” Moore,
       702 F.3d at 940. The Seventh Circuit stayed its mandate “to allow the Illinois legislature to
       craft a new gun law that will impose reasonable limitations, consistent with the public safety
       and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.”
       Moore, 702 F.3d at 942. The General Assembly has since amended the UUW and AUUW
       statutes pursuant to Moore. Pub. Act 98-63 (eff. July 9, 2013).
¶ 11       In People v. Aguilar, 2013 IL 112116, our supreme court recently decided to follow Moore
       in that “neither Heller nor McDonald expressly limits the second amendment’s protections to
       the home,” holding that “on its face, the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d)
       violates the right to keep and bear arms, as guaranteed by the second amendment to the United
       States Constitution.” Aguilar, 2013 IL 112116, ¶¶ 20, 22.
                    “Of course, in concluding that the second amendment protects the right to possess
                and use a firearm for self-defense outside the home, we are in no way saying that such
                a right is unlimited or is not subject to meaningful regulation. [Citation.] That said, we
                cannot escape the reality that, in this case, we are dealing not with a reasonable
                regulation but with a comprehensive ban. Again, in the form presently before us, the
                Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) categorically prohibits the
                possession and use of an operable firearm for self-defense outside the home. In other
                words, the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) amounts to a wholesale
                statutory ban on the exercise of a personal right that is specifically named in and
                guaranteed by the United States Constitution, as construed by the United States
                Supreme Court. In no other context would we permit this, and we will not permit it here
                either.” Id. ¶ 21.
       The Aguilar court also affirmed as constitutional a conviction for possessing a concealable
       firearm while under 18 years of age (720 ILCS 5/24-3.1(a)(1) (West 2008)), finding that the
       constitutional right to keep and bear arms does not extend to minors. Aguilar, 2013 IL 112116,
       ¶¶ 24-28.
¶ 12       Since Moore and Aguilar, this court has followed the direction therein regarding firearm
       possession by felons and upheld convictions for UUWF and for the Class 2 form of AUUW;
       that is, AUUW by a felon. People v. Moore, 2014 IL App (1st) 110793-B, ¶ 16; People v. Soto,
       2014 IL App (1st) 121937, ¶¶ 12-14; People v. Campbell, 2014 IL App (1st) 112926, ¶¶ 51-60;
       People v. Burns, 2013 IL App (1st) 120929, appeal allowed, No. 117387 (Ill. May 28, 2014);
       People v. Neely, 2013 IL App (1st) 120043, ¶¶ 7-15; People v. Garvin, 2013 IL App (1st)
       113095, ¶¶ 12-16; but see People v. Gayfield, 2014 IL App (4th) 120216-B (vacating
       conviction for Class 2 AUUW).
¶ 13       Also since Aguilar, this court has considered the issue raised here: whether a conviction for
       UUWF may stand where the defendant’s predicate felony is a version of UUW or AUUW that
       is unconstitutional under Aguilar.

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¶ 14       In People v. McFadden, 2014 IL App (1st) 102939, appeal allowed, No. 117424 (Ill. May
       28, 2014), we vacated a UUWF conviction where the predicate felony was Class 4 AUUW,
       agreeing with the defendant that “under Aguilar, the State could not rely on this now-void
       conviction to serve as a predicate offense for UUW by a felon. Therefore, it failed to prove an
       essential element of the offense.” Id. ¶ 38. Because the prior felony conviction is an element of
       UUWF that must be proven beyond a reasonable doubt by the State, we held that a void
       conviction for the Class 4 form of AUUW found unconstitutional in Aguilar cannot serve as a
       predicate offense. Id. ¶¶ 42-43 (citing People v. Walker, 211 Ill. 2d 317 (2004)). While we
       found that “because defendant’s case is pending on direct appeal in this court, *** we cannot
       ignore Aguilar’s effects on his conviction for UUW by a felon,” we refrained from “vacating
       defendant’s AUUW conviction *** pursuant to Aguilar” and “decline[d] to address whether
       formal proceedings for collateral relief may be available to defendant to vacate his conviction
       in that case.” Id. ¶¶ 41, 44.
¶ 15       In People v. Fields, 2014 IL App (1st) 110311, the defendant argued that his armed
       habitual criminal conviction must be reversed in light of Aguilar; that is, because his prior
       conviction for Class 4 AUUW is void under Aguilar, the State could not rely on it as a
       predicate offense for armed habitual criminal so that it failed to prove an element of the offense
       of armed habitual criminal. Id. ¶¶ 38-39. We held:
                “[W]e cannot allow defendant’s 2005 Class 4 AUUW conviction, which we now know
                is based on a statute that was found to be unconstitutional and void ab initio in Aguilar
                to stand as a predicate offense for defendant’s armed habitual criminal conviction,
                where the State is required to prove each element of the Class 4 AUUW beyond a
                reasonable doubt. A void conviction for the Class 4 form of AUUW found to be
                unconstitutional in Aguilar cannot now, nor can it ever, serve as a predicate offense for
                any charge. Because the issue was raised while defendant’s appeal was pending, we are
                bound to apply Aguilar and vacate defendant’s armed habitual criminal conviction
                because the State could not prove an element of the offense of armed habitual criminal
                through the use of a predicate felony conviction that is void ab initio.” Id. ¶ 44.
       As in McFadden, we “emphasize[d] that we are not vacating defendant’s AUUW conviction
       *** pursuant to Aguilar. We decline to address whether formal proceedings for collateral relief
       may be available to defendant to vacate his 2005 felony UUW conviction.” Id. ¶ 45.
¶ 16       Here, as noted above, the State has contended that we lack jurisdiction to review
       defendant’s AUUW conviction. However, defendant is timely and directly appealing his
       UUWF conviction on the contention that it cannot stand if the predicate felony, his AUUW
       conviction, is void ab initio. A statute declared unconstitutional on its face is void ab initio;
       that is, “was constitutionally infirm from the moment of its enactment and, therefore, is
       unenforceable.” People v. Davis, 2014 IL 115595, ¶ 25. We followed this principle in Fields
       and McFadden, finding that we could consider the effect of the prior or predicate conviction on
       the presently appealed conviction while refusing to grant relief upon the prior conviction itself.
       We find that the clear effect of Aguilar in light of Davis (void ab initio) and Walker (predicate
       felony as element of UUWF) is that a conviction for UUW or AUUW unconstitutional under
       Aguilar is void ab initio and cannot serve as the elemental predicate felony for UUWF so that
       this court both has jurisdiction to and must reverse the UUWF conviction for the absence of an
       element. In sum, we agree with Fields and McFadden.


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¶ 17        The State argues against this effect by citing federal cases, led by Lewis v. United States,
       445 U.S. 55 (1980), for the proposition that “the status of the prior felony conviction at the time
       he or she possesses the firearm controls, regardless of whether that prior conviction might later
       be invalidated or found to be unconstitutional.” The State also argues that if we reverse
       defendant’s UUWF conviction, we will sow uncertainty; that adhering to Fields and
       McFadden “would prevent the prosecution from proving that a defendant previously had been
       convicted of a qualifying felony at the time he possessed a firearm if, after defendant possessed
       the gun, his predicate conviction was later reversed on appeal for any reason.”
¶ 18        The latter argument is disingenuous: we have repeatedly expounded upon the difference
       between void and voidable judgments, and the State has in various cases ably argued that
       distinction. To give a relevant example, “any reason” does not render a statute void ab initio,
       only facial unconstitutionality, which is the most difficult challenge to make because a statute
       is facially unconstitutional only if there are no circumstances where it could be validly applied.
       Davis, 2014 IL 115595, ¶ 25. Notably, while cases stating a new constitutional rule are
       generally not applied retroactively to cases on collateral review (which is not the stance of this
       case but the similarity is edifying), substantive rules apply retroactively. Davis, 2014 IL
       115595, ¶ 36.
                “ ‘This includes decisions that narrow the scope of a criminal statute by interpreting its
                terms [citations], as well as constitutional determinations that place particular conduct
                or persons covered by the statute beyond the State’s power to punish [citations]. Such
                rules apply retroactively because they necessarily carry a significant risk that a
                defendant stands convicted of an act that the law does not make criminal or faces a
                punishment that the law cannot impose upon him.’ ” (Internal quotation marks
                omitted.) Id. (quoting Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004) (and cases
                cited therein)).
       By contrast, new rules of procedure generally do not apply retroactively because they “ ‘do not
       produce a class of persons convicted of conduct the law does not make criminal, but merely
       raise the possibility that someone convicted with use of the invalidated procedure might have
       been acquitted otherwise,’ ” so that only watershed rules of criminal procedure implicating the
       fundamental fairness and accuracy of proceedings are retroactive. Davis, 2014 IL 115595, ¶ 36
       (quoting Schriro, 542 U.S. at 352). There is no more apt description of what our supreme court
       did in Aguilar than that it placed particular conduct covered by the UUW and AUUW statutes
       beyond the State’s power to punish.
¶ 19        Turning to the federal cases cited by the State, we note first and foremost that federal cases
       interpreting federal statutes are not binding upon us as we interpret Illinois statutes but are
       merely persuasive authority. We do not find the State’s cases persuasive as they are based
       fundamentally on an assertion–that the “ ‘distinction between a conviction that is “invalid” and
       one that is “void from its inception” depends too much on semantics’ ” (United States v.
       Padilla, 387 F.3d 1087, 1091-92 (9th Cir. 2004) (quoting United States v. Mayfield, 810 F.2d
       943, 945 (10th Cir. 1987)))–with which we respectfully disagree. As stated above, Illinois
       courts have maintained the distinction between void and voidable judgments, and we shall not
       abandon it now.
¶ 20        In his prior case, defendant was convicted of the Class 4 felony of AUUW under sections
       24-1.6(a)(1), (a)(3)(A), and (a)(2), (a)(3)(A). We note that our supreme court in Aguilar
       professed to “make no finding, express or implied, with respect to the constitutionality or

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       unconstitutionality of any other section or subsection of the AUUW statute.” Aguilar, 2013 IL
       112116, ¶ 22 n.3. Thus, one of the two counts of AUUW underlying his AUUW conviction is
       potentially distinguishable from those reversed in Aguilar insofar as sections 24-1.6(a)(1) and
       (a)(2) are distinguishable. Practically, the point of distinction is that paragraph (a)(2) allows for
       a person to be declared an invitee on the public way or public land for purposes of displaying or
       selling firearms. However, this invitee provision does not protect the right to possess a firearm
       outside the home for self-defense but for the limited purposes of display and commerce; in this
       regard we note that the Seventh Circuit in Moore found the statutes before it unconstitutional
       despite an invitee provision. See People v. Akins, 2014 IL App (1st) 093418-B, ¶ 11 (applying
       Aguilar to AUUW under section 24-1.6(a)(2)). Pursuant to Aguilar, we find that defendant’s
       AUUW conviction for the Class 4 felony form of section 24-1.6(a)(1), (a)(3)(A) or (a)(2),
       (a)(3)(A) is void ab initio. As such, it cannot serve as an essential element of his UUWF
       conviction so that his UUWF conviction must be reversed.
¶ 21       Accordingly, the judgment of the circuit court is reversed.

¶ 22       Reversed.




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