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                               Appellate Court                          Date: 2017.10.02
                                                                        11:44:53 -05'00'




                   People v. Spivey, 2017 IL App (1st) 123563



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



District & No.    First District. Third Division
                  Docket No. 1-12-3563



Filed             May 17, 2017



Decision Under    Appeal from the Circuit Court of Cook County, No. 10-CR-13096; the
Review            Hon. Neil J. Linehan, Judge, presiding.



Judgment          Affirmed.


Counsel on        Michael J. Pelletier, Patricia Mysza, and Shawn O’Toole, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

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



Panel             JUSTICE PUCINSKI delivered the judgment of the court, with
                  opinion.
                  Justice Lavin concurred in the judgment and opinion.
                  Justice Hyman specially concurred, with opinion.
                                                OPINION

¶1        Following a bench trial, defendant Donald Spivey was found guilty of two counts of
     unlawful use of a weapon by a felon (UUWF) and two counts of aggravated unlawful use of a
     weapon (AUUW). The trial court merged the convictions and sentenced defendant to four
     years’ imprisonment, followed by two years of mandatory supervised release (MSR), for his
     conviction on count two for UUWF. Initially on appeal, we vacated defendant’s UUWF
     conviction under count two “because ‘the State did not prove an essential element of the
     offense where it alleged in the charging instrument and proved at trial a predicate offense that
     has been declared unconstitutional and void ab initio.’ ” People v. Spivey, 2015 IL App (1st)
     123563-U, ¶¶ 21, 25 (quoting People v. McFadden, 2014 IL App (1st) 102939, ¶ 43, aff’d and
     rev’d in part, 2016 IL 117424).
¶2        On September 28, 2016, the supreme court denied the State’s petition for leave to appeal
     but entered a supervisory order directing us to vacate our judgment and to reconsider the matter
     in light of People v. McFadden, 2016 IL 117424, to determine if a different result is warranted.
     People v. Spivey, No. 119492 (Ill. Sept. 28, 2016). For the reasons that follow, we conclude
     that a different result is warranted.

¶3                                        BACKGROUND
¶4       The record shows that defendant was charged by information, under case number 10 CR
     13096, with one count of armed habitual criminal (count one), two counts of UUWF (counts II
     and III), and four counts of AUUW (counts IV, V, VI, and VII). The State nol-prossed1 counts
     I, V, and VII, then entered into evidence a certified statement of defendant’s prior conviction
     for AUUW in case number 04 CR 18579, and the matter proceeded to trial on the remaining
     four counts.
¶5       Specifically, count II charged defendant with committing the offense of UUWF in that he
     knowingly possessed “on or about his person any weapon prohibited by section 24-1 of this
     Code,” to wit: a firearm after having been previously convicted of AUUW under case number
     04 CR 18579 (720 ILCS 5/24-1.1(a) (West 2010)). Count III charged defendant with
     committing the offense of UUWF in that he knowingly possessed firearm ammunition after
     having been previously convicted of AUUW under case number 04 CR 18579 (720 ILCS
     5/24-1.1(a) (West 2010)). Count IV charged defendant with committing the offense of AUUW
     in that he knowingly carried an uncased, loaded, and immediately accessible firearm on his
     person and outside his home (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010)). And count VI
     charged defendant with committing the offense of AUUW in that he knowingly carried or
     possessed an uncased, loaded, and immediately accessible firearm on his person, upon a public
     way (720 ILCS 5/24-1.6(a)(2), (a)(3)(A) (West 2010)). Additionally, counts IV and VI
     indicated that “The State shall seek to sentence [defendant] as a class two offender in that he
     has been previously convicted of the offense of [AUUW] under case number 04CR18579.”
     We take judicial notice of the charging instrument and the circuit court clerk’s docket in case
     number 04 CR 18579 that defendant included in his appendix to the brief (Ill. S. Ct. R. 342 (eff.
     Jan. 1, 2005)), which reflect that he was convicted of the Class 4 version of AUUW under

         1
          The State has not requested that this cause be remanded to the trial court for reinstatement of the
     nol-prossed charges.

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       count one,2 alleging that he knowingly carried an uncased, loaded, and immediately accessible
       firearm on his person and outside his home (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West
       2010)). See People v. Jimerson, 404 Ill. App. 3d 621, 634 (2010) (reviewing court may take
       judicial notice of public records and other judicial proceedings).
¶6         At trial, Chicago police officer Jason Perez testified that at 4:55 a.m. on July 3, 2010, he
       and his partner, Officer Antonio De Carlo, were on routine patrol in the area of 6836 South
       May Street, where he observed defendant standing on the sidewalk about 20 feet away with a
       black object resembling the handle of a revolver tucked into his waistband. Officer Perez made
       eye contact with defendant, who then walked away with his arms around his waist. Officer
       Perez exited his squad car, announced his office, and pursued defendant through a nearby
       gangway, into the backyard of the abandoned house at 6836 South May Street. There,
       defendant threw an object that made a metallic sound when it struck the chain-link fence at the
       north side of the backyard. The pursuit continued through an alley, across Racine Avenue, and
       ended with defendant's arrest in a vacant lot.
¶7         Chicago police officer Andres Zepeda testified that he and other responding officers
       arrived on the scene and helped place defendant into custody. He was then directed by Officer
       Perez to search along the chain-link fence in the backyard of the abandoned house at 6836
       South May Street. There, he recovered a loaded .357-caliber revolver along the north side of
       the chain-link fence. Officer Perez arrived in the backyard and identified the firearm as the
       same black revolver that he observed defendant holding minutes ago.
¶8         Defendant presented the testimony of Artamese Prewitt and Kathy Johnson, both of whom
       testified that defendant did not have a gun. Additionally, defendant testified that he was living
       with his cousin at 6838 South May Street when the incident at bar occurred. He testified that he
       was drinking alcohol on his front yard when police officers pulled up in a squad car, exited,
       and approached him. He explained that he ran when the officers called him because he had an
       open container of alcohol and a warrant from Wisconsin for unpaid child support. Defendant
       maintained that he threw his bottle of alcohol at the chain-link fence in the backyard, and he
       denied having a weapon.
¶9         In finding defendant guilty, the trial court stated, “So as to count 2, there will be a finding
       of guilty. Counts 3, 4, and 6 will merge with *** count 2 in the charging document,” and
       sentenced defendant to four years' imprisonment for his UUWF conviction on count II.
       Defendant timely appealed.

¶ 10                                         ANALYSIS
¶ 11      Defendant contends in his supplemental brief that United States Supreme Court precedent
       requires that his UUWF conviction be reversed, citing Montgomery v. Louisiana, 577 U.S.
       ___, 136 S. Ct. 718 (2016), and Ex Parte Siebold, 100 U.S. 371 (1879). Defendant argues that
       “nothing in McFadden stands in the way of this Court applying that controlling precedent, as it

           2
            The circuit court clerk’s docket in case number 04 CR 18579 reflects that defendant pleaded guilty
       to count I (AUUW), and the criminal history reports attached to the presentence investigation report in
       the common law record in this appeal reflect that the State nol-prossed the remaining three AUUW
       counts in case number 04 CR 18579, of which count II was based on defendant’s possession of a
       firearm without a valid FOID card and counts III and IV were based on his possession of a firearm on a
       public way.

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       is bound to do” because McFadden did not address those two cases. Alternatively, defendant
       contends that if this court affirms his UUWF conviction, the felony classification of the offense
       must be reduced from a Class 2 to a Class 3 felony pursuant to Lewis v. United States, 445 U.S.
       55, 65-67 (1980), which McFadden “did address and adopt.”
¶ 12       The State responds in its supplemental brief that our supreme court was well aware of
       Montgomery and Siebold when it decided McFadden because it allowed McFadden to cite
       Montgomery as additional authority, neither the majority nor the dissent in McFadden
       ultimately cited Montgomery or Siebold because they were irrelevant, and “although
       McFadden in his petition for rehearing made the same argument defendant now makes
       regarding those cases, the supreme court denied rehearing.” The State argues that this court is
       obligated to follow McFadden and affirm defendant’s UUWF conviction because we lack the
       authority to overrule decisions of the Illinois Supreme Court, citing People v. Artis, 232 Ill. 2d
       156 (2009), and Blumenthal v. Brewer, 2016 IL 118781, ¶ 28. The State also responds that
       defendant’s alternative argument is based on the mistaken premise that his prior AUUW
       conviction was used to enhance his sentence.
¶ 13       We observe that the same contentions defendant raises here were considered and rejected
       in People v. Smith, 2017 IL App (1st) 122370-B, and defendant offers no new grounds that
       would warrant a different result in this case. People v. Madej, 177 Ill. 2d 116, 165 (1997). In
       Smith, 2017 IL App (1st) 122370-B, ¶¶ 27-31, the issue was whether a prior AUUW
       conviction based on a statute that has been subsequently declared facially unconstitutional may
       serve as proof of the predicate felony in prosecuting an UUWF offense. At trial, Smith
       stipulated that he had previously been convicted of a qualifying predicate felony, i.e., AUUW.
       Id. ¶ 27. Although People v. Aguilar, 2013 IL 112116,3 declared the AUUW statute facially
       unconstitutional, Smith did not clear his felon status before obtaining the revolver that led to
       his conviction under the constitutionally valid UUWF statute. Smith, 2017 IL App (1st)
       122370-B, ¶ 27. Pursuant to McFadden, the appellate court determined that Smith’s prior
       AUUW conviction properly served as proof of the predicate felony conviction for UUWF and
       affirmed his conviction therefore. Id. In doing so, the appellate court rejected Smith’s
       argument that McFadden should be disregarded, as it did not address the binding United States
       Supreme Court precedent of Montgomery, noting that counsel in McFadden was granted leave
       to cite Montgomery. Id. ¶ 28. The appellate court further determined that Lewis did not forbid
       the use of a prior felony conviction to enhance his sentence; rather, Smith’s prior AUUW
       conviction was an element of UUWF and only one class of felony is statutorily possible for
       UUWF under these circumstances, namely a Class 2 felony. Id. ¶¶ 31-32.
¶ 14       Here, as in Smith, we disagree with defendant that the supreme court in McFadden failed to
       address binding United States Supreme Court precedent in Montgomery and Siebold. Id. ¶ 28.
       Likewise, we disagree with defendant that if this court affirms his UUWF conviction, the
       felony classification of the offense must be reduced to a Class 3 felony pursuant to Lewis. Id.
       ¶¶ 31-32. Pursuant to McFadden, we conclude that defendant’s prior AUUW conviction
       satisfied the predicate felony element of UUWF because he did not clear his felon status before
       obtaining a firearm. McFadden, 2016 IL 117424, ¶ 37.

           3
            After the original Rule 23 order in this appeal was filed, our supreme court decided People v.
       Burns, 2015 IL 117387, ¶ 25, which clarified its holding in Aguilar, stating that section 24-1.6(a)(1),
       (a)(3)(A) of the AUUW statute is facially unconstitutional “without limitation.”

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¶ 15      In addition, the author agrees with the special concurrence that the ripple effects of Aguilar
       and McFadden are best resolved by the legislature.

¶ 16                                        CONCLUSION
¶ 17      For the reasons stated, we affirm defendant’s UUWF conviction and sentence.

¶ 18      Affirmed.

¶ 19        JUSTICE HYMAN, specially concurring.
¶ 20        I agree with my colleagues that People v. McFadden controls the result. I write separately
       to discuss the practical impact of Aguilar—or rather, the lack of practical impact, which is
       exemplified by Spivey’s appeal (and many others).
¶ 21        In Aguilar, our supreme court held that portions of the AUUW statute (720 ILCS
       5/24-1.6(a)(1), (a)(3)(A) (West 2008)) were unconstitutional. Aguilar, 2013 IL 112116, ¶ 22;
       see also 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008) (person commits aggravated unlawful
       use of weapon when he or she knowingly carries on or about his or her person any pistol,
       revolver, stun gun, Taser, or other firearm and the firearm possessed is uncased, loaded, and
       immediately accessible). McFadden acknowledges that a number of people convicted of
       AUUW under that statute should not have been convicted because that statute was void ab
       initio. But it also holds that “[t]he remedy is to challenge the judgment of conviction and have
       the unlawful judgment of conviction set aside before deciding to possess a firearm.”
       McFadden, 2016 IL 117424, ¶ 34. I recognize the legal logic of McFadden, but on a practical
       level, we are through the looking-glass. Because McFadden (and Spivey, and many others) did
       not use Aguilar to vacate their prior, unconstitutional convictions, they are still felons though
       those felonies no longer exist.
¶ 22        Spivey was convicted of the predicate AUUW offense (later held void ab initio) in 2004.
       He was charged with the offenses in 2010. But Aguilar was not issued until 2013—how was
       Spivey to take advantage of Aguilar and “have the unlawful judgment of conviction set aside
       before deciding to possess a firearm” in 2010, when Aguilar did not yet exist? (The same
       applies to McFadden himself, whose predicate felony took place in 2002 before being charged
       again in 2008. He could not have had the 2002 conviction vacated before his 2008 charge.) If
       Spivey (and McFadden et al.) had not been represented by counsel for the 2010 offenses,
       would he ever have known that his 2004 offense was void ab initio?
¶ 23        This issue presents itself to us in contexts like this one—where a person has been convicted
       of AUUW and commits a subsequent crime that is aggravated due to that previous AUUW
       conviction. But Aguilar also applies to some unknown number of felons who committed an
       AUUW offense that is now void ab initio but have not committed subsequent offenses. What is
       the likelihood that those people know that their convictions could now be vacated? How many
       of them have heard of Aguilar or have access to attorneys who could help them pursue vacating
       their now-void convictions?
¶ 24        Declaring the statute unconstitutional is only a half-measure. We cannot realistically
       expect the public to read judicial pronouncements and seek their own justice without assistance
       or depend on defense attorneys to hunt up their old clients who might be affected by Aguilar.
       And why should criminal defendants—often poor, struggling, jobless, dependent on public


                                                   -5-
       funding for their defenses, unsophisticated, and mostly black or brown—bear the burden to file
       the necessary paperwork for vacating their convictions, when those convictions were caused
       by a legislature passing an ultimately unconstitutional statute? The need for a solution cannot
       be ignored. As former Supreme Court Justice Sandra Day O’Connor once said, “ ‘A nation’s
       success or failure in achieving democracy is judged in part by how well it responds to those at
       the bottom, and the margins, of the social order.’ ” The Third Annual William French Smith
       Memorial Lecture: A Conversation With Retired Justice Sandra Day O’Connor, 37 Pepp. L.
       Rev. 63, 65 (2009) (quoting Sandra Day O’Connor, The Majesty of the Law (2d ed. 2004)).
¶ 25       The legislature should consider whether it is right that these old convictions, based on an
       unconstitutional statute, may be used to create “felon status” in subsequent prosecutions. In a
       situation where the judicial branch cannot help people harmed by a statute, it is incumbent on
       the Illinois legislature, the promulgators of the unconstitutional criminal statute, to avoid
       compounding an injustice in the system by fixing it. This requires giving validity and effect to
       the supreme court’s decision that “the offense used as the predicate felony for the UUW by a
       felon charge *** ‘was constitutionally infirm’ when it was enacted and must be treated as if its
       underlying statute was never operative.” McFadden, 2016 IL 117424, ¶ 58. Otherwise, the
       doctrine of void ab initio lacks the legal effect demanded by the Illinois Constitution and to
       which the offenders are legally entitled.
¶ 26       The legislature should consider amending the relevant statutes to indicate that if a person
       was convicted under the unconstitutional AUUW statute, that void conviction may not be used
       to enhance a later charge. This amendment would go a long way to undo the damage caused by
       an unconstitutional law.
¶ 27       A bedrock principle of our democracy is that offenders like Spivey, whose convictions
       render them highly unsympathetic, still have basic rights, freedoms, and protection under the
       law. It behooves the legislature to craft relief ensuring that there are no lingering or long-term
       adverse effects due to reliance on a conviction under an invalid statute. As the great Justice
       Holmes wrote, “it must be remembered that legislatures are ultimate guardians of the liberties
       and welfare of the people in quite as great a degree as the courts.” Missouri, Kansas & Texas
       Ry. Co. of Texas v. May, 194 U.S. 267, 270 (1904).




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