                                  Illinois Official Reports

                                          Appellate Court



                              People v. Green, 2014 IL App (4th) 120454




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


District & No.               Fourth District
                             Docket No. 4-12-0454


Filed                        January 30, 2014
Rehearing denied             March 5, 2014


Held                         Even if one of defendant’s two underlying felony convictions was
(Note: This syllabus         found unconstitutional in Aguilar, his negotiated guilty plea leading to
constitutes no part of the   his conviction for being an armed habitual criminal was not rendered
opinion of the court but     void, since defendant had sufficient other felony convictions to satisfy
has been prepared by the     the requirements of the armed habitual criminal statute.
Reporter of Decisions
for the convenience of
the reader.)

Decision Under               Appeal from the Circuit Court of Sangamon County, No. 11-CF-459;
Review                       the Hon. John Schmidt, Judge, presiding.



Judgment                     Affirmed.


Counsel on                   Michael J. Pelletier, Karen Munoz, and Amber Corrigan, all of State
Appeal                       Appellate Defender’s Office, of Springfield, for appellant.

                             John Milhiser, State’s Attorney, of Springfield (Patrick Delfino,
                             David J. Robinson, and Luke McNeill, all of State’s Attorneys
                             Appellate Prosecutor’s Office, of counsel), for the People.
     Panel                    JUSTICE POPE delivered the judgment of the court, with opinion.
                              Justices Holder White and Steigmann concurred in the judgment and
                              opinion.




                                               OPINION

¶1         In August 2011, pursuant to a fully negotiated plea agreement, defendant pleaded guilty to
       armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2010)) in exchange for the State’s
       agreement to dismiss two additional charges and to recommend a 10-year prison sentence.
¶2         One of the two underlying felony offenses the State used to satisfy the requirements of the
       armed habitual criminal statute was a prior conviction for aggravated unlawful use of a weapon
       (720 ILCS 5/24-1.6 (West 2000)). In September 2013, our supreme court held section
       24-1.6(a)(1), (a)(3)(A) of the aggravated unlawful use of a weapon statute unconstitutional in
       People v. Aguilar, 2013 IL 112116. In December 2013, our supreme court modified its earlier
       opinion and emphasized its unconstitutionality finding is limited to the Class 4 form of the
       statute.
¶3         On appeal, defendant contends his fully negotiated guilty plea leading to a conviction for
       armed habitual criminal is void because one of the underlying offenses used to satisfy the
       armed habitual criminal statute, i.e., aggravated unlawful use of a weapon, was found
       unconstitutional by our supreme court.
¶4         We affirm.

¶5                                        I. BACKGROUND
¶6         In June 2011, the State charged defendant, Dion Green, by information with armed
       habitual criminal, a Class X felony (count I) (720 ILCS 5/24-1.7(a), (b) (West 2010));
       aggravated assault, a Class 4 felony (count II) (720 ILCS 5/12-2(a)(6), (b) (West 2010)); and
       aggravated unlawful use of a weapon, a Class 2 felony (count III) (720 ILCS 5/24-1.6(a)(1),
       (a)(3)(C), (d) (West 2010)).
¶7         In August 2011, pursuant to a fully negotiated plea agreement, defendant pleaded guilty to
       armed habitual criminal (count I) in exchange for a 10-year prison sentence and the State’s
       agreement to dismiss counts II and III. Prior to accepting the plea agreement, the trial court
       admonished defendant the offense of armed habitual criminal was a Class X felony, and
       defendant would be required to serve 85% of his sentence, followed by three years of
       mandatory supervised release (MSR). The factual basis given by the State for the offense, and
       stipulated to by defendant, was defendant was observed by police officers in possession of a
       silver handgun. Following a short foot pursuit, defendant was apprehended. Although he no
       longer had the firearm on his person, police found the handgun along the path defendant ran.
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       The State informed the court defendant had previous convictions for aggravated unlawful use
       of a weapon, a Class 2 felony, and manufacture and delivery of a controlled substance, a
       Class 1 felony; thus defendant satisfied the requirements of the armed habitual criminal
       statute. Pursuant to the agreement, the court sentenced defendant to 10 years’ imprisonment for
       armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2010)). Defendant took no direct appeal.
¶8         In January 2012, defendant filed a postconviction petition asserting (1) ineffective
       assistance of trial counsel because he did not have three prior Class X felony convictions
       qualifying him for sentencing under the armed habitual criminal statute (720 ILCS 5/24-1.7(a)
       (West 2010)) and, thus, was not an armed habitual criminal; and (2) the three-year MSR term
       violated double jeopardy and due process. In April 2012, the trial court dismissed defendant’s
       petition, finding it frivolous and without constitutional merit. In so concluding, the court noted
       contrary to defendant’s assertion, the armed habitual criminal statute requires only two certain
       felony convictions rather than three. According to the court, defendant’s convictions for
       aggravated unlawful use of a weapon and delivery of a controlled substance satisfied the armed
       habitual criminal statute. Further, the court found defendant’s sentence did not violate his due
       process and double jeopardy rights because defendant agreed to the sentence. Defendant
       appealed.
¶9         In May 2012, the office of the State Appellate Defender (OSAD) was appointed to
       represent defendant on appeal. In June 2013, OSAD filed a motion to withdraw as counsel
       pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). Defendant filed additional points and
       authorities and the State responded. On September 16, 2013, OSAD filed a motion to withdraw
       its Finley motion following our supreme court’s decision in Aguilar, 2013 IL 112116. This
       court allowed OSAD’s motion. In October 2013, OSAD and the State both filed additional
       briefs. On December 19, 2013, after the issue in this case had been briefed by the parties, our
       supreme court issued a modified opinion upon denial of rehearing in Aguilar that limited its
       prior holding.

¶ 10                                         II. ANALYSIS
¶ 11       On appeal, the issue before us is whether our supreme court’s recent decision in Aguilar
       renders defendant’s conviction for armed habitual criminal void. Defendant contends his fully
       negotiated guilty plea leading to a conviction for armed habitual criminal is void because one
       of the underlying offenses used to satisfy the armed habitual criminal statute, i.e., aggravated
       unlawful use of a weapon, was found unconstitutional by our supreme court. The State
       disagrees and asserts the fully negotiated plea agreement is valid because both the State and
       defendant received the benefit of the bargain and defendant was not prejudiced by the Aguilar
       decision. We agree with the State and affirm.
¶ 12       In Aguilar, our supreme court concluded the Class 4 form of section 24-1.6(a)(1),
       (a)(3)(A), (d) of the aggravated unlawful use of a weapon statute is unconstitutional because it
       violates the second amendment’s guarantee of the right to keep and bear arms. Aguilar, 2013
       IL 112116, ¶ 22. That section provided as follows:


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                   “(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).
¶ 13       In this case, it is unclear from the Cook County sentencing judgment whether defendant
       was previously convicted under the now-unconstitutional section of the aggravated unlawful
       use of a weapon statute because the sentencing judgment simply lists the applicable statute as
       “720 [ILCS] 5/24-1.6(A)(1)(3).” Count VIII of the 19-count indictment charged defendant
       with violating section 24-1.6(a)(1), (a)(3)(A) of the unlawful use of a weapon statute (720
       ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2000))–the Class 4 form of the section of the statute
       found unconstitutional in Aguilar. However, count IX charged defendant with violating
       section 24-1.6(a)(1), (a)(3)(C) of the aggravated unlawful use of a weapon statute (720 ILCS
       5/24-1.6(a)(1), (a)(3)(C) (West 2000)), which deals with the possession of a firearm without a
       valid firearm owner’s identification card. Without the corresponding “A” or “C” on the
       sentencing judgment, or if “A,” the class of felony, this court is unable to determine whether
       defendant was convicted under the unconstitutional section of the statute. We note the
       description of the offense, “AGG UUW/VEHICLE/PREV CONVICTION” does not assist in
       our determination, nor are the “count” numbers associated with each offense on the mittimus
       correct. For example, the mittimus reflects count IV is the aggravated unlawful use of a
       weapon charge, but count IV charged defendant with aggravated battery with a firearm.
       According to the factual basis for the plea agreement provided by the State–and stipulated to
       by defense counsel–defendant’s previous conviction for aggravated unlawful use of a weapon
       was a Class 2 felony. Thus, pursuant to the stipulated factual basis, following our supreme
       court’s modified opinion, Aguilar does not apply.
¶ 14       Even if this court were to conclude defendant’s conviction for aggravated unlawful use of a
       weapon fell under the Class 4 form of the section of the statute ruled unconstitutional in
       Aguilar (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010)), we would not find his fully
       negotiated plea agreement invalid or his conviction for armed habitual criminal void. Here, the
       record reflects, in addition to defendant’s conviction for aggravated unlawful use of a weapon,
       he was also convicted of unlawful use of a weapon by a felon (720 ILCS 5/24-1.1 (West 2000))
       and aggravated battery with great bodily harm (720 ILCS 5/12-4 (West 2000)) in the same
       proceedings. Further, defense counsel stipulated at the plea-agreement hearing defendant had a
       prior conviction for manufacture and delivery of a controlled substance, a Class 1 felony. The
       armed habitual criminal statute provides as follows:


                                                  -4-
                   “(a) A person commits the offense of being an armed habitual criminal if he or she
               receives, sells, possesses, or transfers any firearm after having been convicted a total of
               2 or more times of any combination of the following offenses:
                       (1) a forcible felony as defined in Section 2-8 of this Code;
                       (2) unlawful use of a weapon by a felon ***; or
                       (3) any violation of the Illinois Controlled Substances Act or the Cannabis
                   Control Act that is punishable as a Class 3 felony or higher.” 720 ILCS 5/24-1.7
                   (West 2010).
       A “[f]orcible felony” includes, among other offenses, “aggravated battery resulting in great
       bodily harm or permanent disability or disfigurement and any other felony which involves the
       use or threat of physical force or violence against any individual.” 720 ILCS 5/2-8 (West
       2010). Here, defendant clearly has at least two prior felonies–other than the conviction for
       aggravated unlawful use of a weapon–that would satisfy the armed habitual criminal statute.
¶ 15       Our supreme court has recognized the plea-bargaining process is vital to our criminal
       justice system as it encourages “prompt disposition of cases, preserves finite judicial and
       financial resources, and allows the State to focus its prosecutorial efforts where they are most
       needed.” People v. Donelson, 2013 IL 113603, ¶ 18. Plea agreements are enforceable contracts
       and, when appropriate, courts will apply contract law principles to plea agreements. Id. In this
       case, the State dropped two pending felony charges against defendant and agreed to a 10-year
       prison sentence in exchange for his guilty plea to armed habitual criminal. Although the
       Aguilar decision may have rendered defendant’s conviction for aggravated unlawful use of a
       weapon unconstitutional–which is not demonstrated by the record before us–defendant had at
       least two other qualifying felony convictions that satisfied the armed habitual criminal statute.
       Defendant received the benefit of his bargain (two additional charges were dropped and a
       sentence agreed to) and he was not prejudiced (as the prosecutor could have listed another
       qualifying felony conviction and he received the benefit of his bargain). His fully negotiated
       plea agreement is not void and we decline to remand so defendant may withdraw his guilty
       plea.

¶ 16                                     III. CONCLUSION
¶ 17       For the reasons stated, we affirm. As part of our judgment, we award the State its $50
       statutory assessment against defendant as costs of this appeal.

¶ 18      Affirmed.




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