                        Illinois Official Reports

                                Appellate Court



                  People v. Richardson, 2015 IL App (1st) 130203



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOS, Plaintiff-Appellee, v.
Caption            JAVONTE RICHARDSON, Defendant-Appellant.



District & No.     First District, First Division
                   Docket No. 1-13-0203



Filed              August 10, 2015



Decision Under     Appeal from the Circuit Court of Cook County, No. 11-CR-14227; the
Review             Hon. Dennis J. Porter, Judge, presiding.



Judgment           Reversed.



Counsel on         Abishi C. Cunningham, Jr., Public Defender, of Chicago (Jeffrey
Appeal             Walker, Assistant Public Defender, of counsel), for appellant.

                   Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                   John E. Nowak, Joan F. Frazier, and Joseph Alexander, Assistant
                   State’s Attorneys, of counsel), for the People.



Panel              JUSTICE CUNNINGHAM delivered the judgment of the court, with
                   opinion.
                   Presiding Justice Delort and Justice Harris concurred in the judgment
                   and opinion.
                                             OPINION

¶1       Following a bench trial in the circuit court of Cook County, defendant-appellant Javonte
     Richardson was convicted for the offense of unlawful use of a weapon by a felon (UUWF)
     and sentenced to four years of imprisonment. See 720 ILCS 5/24-1.1 (West 2010). On
     appeal, the defendant argues that: (1) his prior conviction for aggravated unlawful use of a
     weapon (AUUW) (720 ILCS 5/24-1.6 (West 2010)), which was premised on a statutory
     provision since held unconstitutional by our supreme court, cannot stand as a predicate
     offense to support his UUWF conviction; (2) the State’s indictment for the charge of UUWF
     was invalid and “failed to state a cause of action” because the defendant’s predicate AUUW
     felony was based on an unconstitutional statute; and (3) the arresting police officers violated
     his constitutional rights by conducting an unreasonable search when they stopped the vehicle
     in which he was a passenger and conducted a pat-down search of his person. For the
     following reasons, we reverse the judgment of the circuit court of Cook County.

¶2                                         BACKGROUND
¶3       In 2010, in a prior case, the State charged the defendant (who was known at the time as
     Pierre Robinson), with a Class 4 violation of Illinois’s AUUW statute. See 720 ILCS
     5/24-1.6(a)(1), (a)(3)(A), (d) (West 2010). The defendant pleaded guilty to the AUUW
     violation, a felony charge, in exchange for a sentence of two years’ probation.
¶4       This subsequent case arose in August 2011, when the defendant was arrested in
     possession of a handgun following a traffic stop on St. Lawrence Avenue near 74th Street in
     Chicago, Illinois. The defendant was charged with one count of UUWF and nine counts of
     AUUW. The UUWF charge alleged that the defendant possessed a firearm after being
     adjudicated a felon, due to his guilty plea to the AUUW charge in his prior case in 2010.
¶5       Prior to trial, the defendant filed a motion to quash his arrest and suppress evidence
     which alleged that the arresting officers did not have a reasonable suspicion to stop the
     vehicle in which the defendant was riding. On October 14, 2011, the trial court conducted a
     hearing on the motion to suppress, at which it heard testimony from the arresting officers as
     well as the defendant. Ayokunle Akinbusuyi, the Chicago police officer who arrested the
     defendant, testified that he and his partner, Officer Mark Johnson, were on patrol in a marked
     police car at 10:52 p.m. on August 21, 2011 when they received a report of an auto theft at
     742 East 79th Street. The officers proceeded to drive to the address where they spoke to the
     victim of the theft, Aaron Edwards. Edwards described the stolen vehicle as a green Ford
     Taurus station wagon. Edwards was unable to provide a license plate number or any other
     distinguishing characteristics of the car but did tell the officers that his culinary tools were
     inside the vehicle.
¶6       Approximately 90 minutes after leaving Edwards, while driving in the area of 7400 South
     St. Lawrence Avenue, the officers identified a vehicle matching the description provided by
     Edwards. The officers stopped the vehicle and observed two individuals inside, the driver
     and a passenger (the defendant). Officer Akinbusuyi approached the vehicle from the
     passenger’s side while Officer Johnson approached the driver’s side. Officer Johnson
     requested that the driver exit the vehicle after the driver was unable to produce a driver’s
     license or insurance information. As the driver exited the vehicle, Officer Akinbusuyi
     observed the defendant, who was sitting in the front passenger seat of the vehicle, mumbling

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       and rummaging through the vehicle’s center console. Additionally, Officer Akinbusuyi noted
       that the defendant appeared to turn toward the interior of the vehicle while moving his hands
       near his own waist “like he was stuffing something in his waistband.” Officer Akinbusuyi
       requested that the defendant show his hands. Once the defendant did not comply with that
       request, Officer Akinbusuyi asked the defendant to exit the vehicle.
¶7         Officer Akinbusuyi then commenced a brief pat-down search of the defendant and
       discovered an unloaded, highpoint, semi-automatic handgun in the defendant’s waistband.
       The defendant was then handcuffed and placed into the officers’ squad car before being
       transported to the police station. Officers Akinbusuyi and Johnson subsequently searched the
       green Ford Taurus station wagon and found Edwards’ culinary tools inside the vehicle.
¶8         The defendant testified at the hearing on the motion to suppress that Eric Cochran, the
       driver of the green Ford Taurus, had picked him up approximately 10 to 15 minutes before
       the vehicle was stopped by police. The defendant also corroborated Officer Akinbusuyi’s
       testimony that Cochran told the officers that he did not have a driver’s license or insurance
       information. However, the defendant’s testimony differed from Officer Akinbusuyi’s
       testimony that the gun was recovered from the defendant’s waistband during a pat-down
       search. According to the defendant, the officers removed Cochran and himself from the
       vehicle before commencing a search of the vehicle during which the officers found both the
       firearm and Edwards’ culinary tools.
¶9         The trial court, in its findings of fact, adopted the testimony of Officer Akinbusuyi. The
       court initially found in favor of the defendant and granted the motion to quash his arrest and
       suppress evidence on October 14, 2011, agreeing that the officers did not have reasonable
       suspicion to stop the vehicle. The State filed a motion to reconsider the trial court’s ruling,
       arguing that the officers had reasonable suspicion to stop the vehicle because it fit the
       description of a car that had been reported stolen in the area earlier that evening. After
       hearing arguments from both sides, the trial court reversed its previous ruling and denied the
       defendant’s motion to quash his arrest and suppress evidence on November 4, 2011. At that
       time, the defendant elected a bench trial.
¶ 10       The court conducted a bench trial on January 18, 2012, during which Officer Akinbusuyi
       testified to the events of August 22, 2011 consistent with his earlier testimony at the hearing
       on the motion to quash arrest and suppress evidence. Also at trial, the State entered a certified
       copy of conviction showing that the defendant, under the name Pierre Robinson, had pleaded
       guilty to the Class 4 AUUW felony charge in 2010. No further evidence was introduced at
       the bench trial. After closing arguments from both parties, the trial court made a general
       finding that the defendant was guilty of count one, the UUWF violation. The trial court
       further ruled that AUUW counts six, seven, and ten, merged into count one. The State
       declined to prosecute the remaining counts. Thus, the defendant was convicted of a single
       count of violating the UUWF statute.
¶ 11       The defendant subsequently filed a motion for a new trial, arguing that the State failed to
       prove him guilty beyond a reasonable doubt because no weapon was admitted into evidence.
       The defendant further argued that the trial court erred in denying his motion to quash his
       arrest and suppress evidence. The trial court denied the defendant’s motion for a new trial.
       On February 17, 2012, the trial judge sentenced the defendant to four years’ imprisonment in
       the Illinois Department of Corrections, to be followed by a two-year term of mandatory
       supervised release, in addition to statutory fines and costs. On the same date, the defendant’s

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       trial counsel informed the court that the defendant wished to file a notice of appeal. The trial
       court ordered the notice of appeal to be filed and appointed the State appellate defender to
       represent the defendant. Accordingly, we have jurisdiction pursuant to Illinois Supreme
       Court Rule 606(a) (eff. Jan. 1, 2013).

¶ 12                                           ANALYSIS
¶ 13       In this appeal, the defendant makes three arguments urging reversal of his UUWF
       conviction. His first two arguments arise from our supreme court’s decision in Aguilar,
       which held that the statutory provision underlying his 2010 conviction for AUUW was
       unconstitutional. People v. Aguilar, 2013 IL 112116, ¶ 20. As a third argument, the defendant
       contends that the police search after the August 2011 traffic stop that resulted in the recovery
       of a weapon violated the United States Constitution and the Illinois Constitution.
¶ 14       We first address the defendant’s argument that the court should reverse his UUWF
       conviction because the State failed to prove beyond a reasonable doubt that he had a felony
       conviction at the time of his 2011 arrest, a necessary element of the UUWF offense. See 720
       ILCS 5/24-1.1(a) (West 2012) (“It is unlawful for a person to knowingly possess on or about
       his person *** any firearm or any firearm ammunition if the person has been convicted of a
       felony under the laws of this State or any other jurisdiction.”). Specifically, the defendant
       contends that his 2010 felony conviction for AUUW could not be a valid predicate offense to
       support his UUWF conviction because the statute under which he was convicted of AUUW
       was declared unconstitutional by our supreme court in Aguilar.
¶ 15       We note that, as this argument presents a pure question of law, our standard of review is
       de novo. See People v. Chapman, 194 Ill. 2d 186, 217 (2000).
¶ 16       In Aguilar, decided in 2013, our supreme court determined that section 24-1.6(a)(1),
       (a)(3)(A), (d) of the AUUW statute, in prohibiting possession of an “uncased, loaded and
       immediately accessible” firearm outside the home, (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d)
       (West 2008)), violated the second amendment of the United States Constitution. Aguilar,
       2013 IL 112116, ¶¶ 20-21. Our supreme court in Aguilar relied upon the United States
       Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and
       McDonald v. City of Chicago, Illinois, 561 U.S. 742 (2010), which recognized that the second
       amendment protects the right of citizens to bear arms for self-defense outside the home. See
       Aguilar, 2013 IL 112116, ¶¶ 20-21. Since section 24-1.6(a)(1), (a)(3)(A), (d), and its
       resulting Class 4 AUUW offense, “categorically prohibit[ed] the possession and use of an
       operable firearm for self-defense outside the home,” our supreme court concluded that it
       “amount[ed] to a wholesale statutory ban on the exercise of a personal right that is
       specifically named in and guaranteed by the United States Constitution.” Id. ¶ 21.
       Accordingly, our supreme court held that this section of the statute, and its resulting Class 4
       AUUW offense, were facially unconstitutional. Id.
¶ 17       The defendant contends that, pursuant to Aguilar, his AUUW offense is void ab initio and
       cannot be used as a predicate offense for a UUWF charge. Several recent cases in our court
       have addressed the issue of whether a Class 4 AUUW conviction can serve as a predicate
       offense in light of our supreme court’s holding in Aguilar. In Dunmore, the defendant had
       pleaded guilty to a Class 4 AUUW conviction in exchange for a sentence of two years’
       probation. People v. Dunmore, 2013 IL App (1st) 121170. The State subsequently sought to
       revoke his probation after he was found to have committed another criminal offense. Id. ¶ 7.

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       The defendant appealed the revocation of his probation; while his appeal was pending, our
       supreme court decided Aguilar. Id. In response to Aguilar, the appellate court in Dunmore
       found that it had “an independent duty to vacate void orders,” regardless of whether the
       defendant’s appeal sought review of that issue. Id. ¶ 9. Accordingly, the court reversed the
       Dunmore defendant’s AUUW conviction because, pursuant to Aguilar, it arose from a
       facially unconstitutional statute. Id. ¶ 10.
¶ 18       Following Dunmore, at least two decisions of this court have vacated a defendant’s
       UUWF conviction (the same charge that is at issue in this appeal) on the grounds that it was
       premised on an AUUW conviction held unconstitutional under Aguilar. First, in McFadden,
       this court vacated the defendant’s UUWF conviction because it was premised on a prior
       Class 4 AUUW offense. People v. McFadden, 2014 IL App (1st) 102939. Although it did not
       involve a probation revocation as in Dunmore, the court in McFadden found that prior
       decision significantly instructive. Id. ¶ 41. In reviewing the defendant’s direct appeal of his
       UUWF conviction, the McFadden court held that it was “bound to apply Aguilar and vacate
       [the conviction] 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.” Id. ¶ 43. The McFadden court stated further
       that “[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.” Id.
¶ 19       More recently, our court has expressly reaffirmed McFadden and held that a void Class 4
       AUUW conviction could not stand as a predicate offense for a subsequent UUWF
       conviction. See People v. Claxton, 2014 IL App (1st) 132681. There, on direct appeal of his
       UUWF conviction, akin to both McFadden and the facts presented in this case, the Claxton
       defendant claimed that his prior AUUW conviction could not stand as a predicate offense for
       the subsequent charge because it was deemed void ab initio by Aguilar. Id. ¶¶ 18-19. The
       court relied on the precedent established by McFadden and reversed the defendant’s UUWF
       conviction, stating that his Class 4 AUUW conviction “cannot serve as an essential element
       of his UUWF” charge. Id. ¶ 20.
¶ 20       Moreover, in analogous cases not directly concerning the UUWF statute, our appellate
       court has also held that an AUUW conviction cannot stand as a qualifying predicate offense
       post-Aguilar. In Fields, this court held that an AUUW conviction made void by Aguilar
       could not be used as a predicate offense for a subsequent armed habitual criminal charge and
       thus vacated the defendant’s armed habitual criminal conviction. People v. Fields, 2014 IL
       App (1st) 110311, ¶ 44. Later, in Cowart, this court expressly reaffirmed the principles of
       Fields and McFadden and reversed the defendant’s armed habitual criminal charge on the
       same grounds. People v. Cowart, 2015 IL App (1st) 113085. In that case, this court found
       that, due to the impact of Aguilar, an AUUW conviction under the invalidated statute could
       not serve as a predicate offense for any subsequent criminal charge. Id. ¶ 47.
¶ 21       The State’s argument on appeal concedes that the statutory provision which gave rise to
       the 2010 AUUW charges against the defendant was subsequently determined to be
       unconstitutional in Aguilar. The State also acknowledges this court’s holdings in McFadden
       and Fields, but urges that they were “wrongly decided.” Instead, the State argues that the
       defendant’s UUWF conviction was proper because it proved beyond a reasonable doubt that
       the defendant was a convicted felon at the time he possessed a weapon in 2011 and was


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       charged with UUWF–regardless of the subsequent Aguilar decision invalidating the statute
       underlying his prior AUUW felony.
¶ 22       Thus, the State contends that it is the status of the prior felony conviction at the time of
       the firearm possession which should control the analysis of whether a defendant has a
       predicate felony on which to base a UUWF charge. In the State’s view, a convicted felon’s
       “firearm disability” remains intact and enforceable unless the relevant conviction is reversed,
       vacated, pardoned, or declared void prior to the date of his subsequent arrest for UUWF,
       regardless of whether the prior conviction is susceptible to a collateral attack on
       constitutional grounds or altered in any way. In other words, the State’s position is that “a
       conviction for being a felon-in-possession remains valid even if the prior conviction on
       which it is based is later expunged, vacated nunc pro tunc, or found to be unconstitutional
       and void ab initio.” Thus, the State contends that because the defendant’s 2010 felony
       AUUW conviction was valid at the time of his 2011 arrest (because Aguilar had not yet been
       decided), that prior conviction sufficed to prove this element of the UUWF offense beyond a
       reasonable doubt.
¶ 23       In support of its argument, the State cites only to cases decided by federal courts and
       those of other states. Foremost among these cases is Lewis v. United States, in which the
       United States Supreme Court analyzed a federal statute with provisions analogous to our own
       UUWF statute and its applicability to individuals who may have grounds to attack their prior
       felony convictions. Lewis v. United States, 445 U.S. 55 (1980). In Lewis, the defendant
       claimed that he had been convicted of a predicate felony without being provided counsel, a
       process which the Supreme Court subsequently declared unconstitutional. Id. at 57-58 (citing
       Gideon v. Wainwright, 372 U.S. 335 (1963)). Consequently, the Lewis defendant argued that
       the constitutional infirmity of the process by which he was convicted of the predicate felony
       should preclude that conviction from being used as a predicate offense for a subsequent
       criminal charge under the federal felon-in-possession statute. Id. The Supreme Court
       disagreed, affirming his conviction and holding that the plain meaning of the federal statute
       imposed a “firearm disability” on every convicted felon “until the conviction is vacated or
       the felon is relieved of his disability by some affirmative action, such as a qualifying pardon
       or a consent from the Secretary of the Treasury,” regardless of whether the predicate
       conviction was susceptible to a collateral attack on constitutional grounds. Id. at 60-61.
       Notably, the Supreme Court also based its decision, in part, on the fact that the defendant
       could have, but did not pursue a collateral attack on his predicate felony during the
       intervening years between Gideon’s holding and his subsequent UUWF arrest. Id. at 64.
¶ 24       We note that the State has made this argument derived from the Lewis holding before, in
       other cases interpreting the effect of Aguilar. Nevertheless, as this court has repeatedly noted,
       Lewis is inapplicable in that it involved a predicate felony susceptible to constitutional
       challenge rather than a conviction under a facially unconstitutional statute, as is the case with
       Aguilar-based appeals involving the AUUW statute. See People v. Cowart, 2015 IL App
       (1st) 113085, ¶ 48; People v. Claxton, 2014 IL App (1st) 132681. This distinction is
       instructive. In a previous case arising from Aguilar, this court has highlighted the
       significance of a judgment holding a criminal statute to be facially unconstitutional and the
       particular impact which it may have on subsequent cases. Id. ¶ 18. A statute is facially
       unconstitutional only where there are no circumstances in which it could be validly applied.
       Id. (noting that it is “the most difficult [statutory] challenge to make”); see also People v.


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       Davis, 2014 IL 115595, ¶ 25. As such, a statute which is unconstitutional on its face may
       criminalize behavior which is beyond the State’s power to punish. Claxton, 2014 IL App
       (1st) 132681, ¶ 18. As this court has previously noted, such a holding of facial
       unconstitutionality should be enforced retroactively because facially unconstitutional statutes
       can “produce a class of persons convicted of conduct the law does not make criminal.”
       (Internal quotation marks omitted.) Id. (noting the distinction between such holdings and
       those producing new rules of procedure which “merely raise the possibility that someone
       convicted with use of the invalidated procedure might have been acquitted otherwise”
       (internal quotation marks omitted) (quoting Davis, 2014 IL 115595, ¶ 36)). Because Aguilar
       held that the Class 4 AUUW offense produced such a class of persons subject to criminal
       liability for constitutionally protected conduct (firearm possession), its determination that
       those convictions are void ab initio should be applied retroactively to cases on appeal,
       including this one. See id.
¶ 25        Based on the foregoing precedent, our courts have already answered the question
       presented here. Our court’s logic in McFadden, which decided the precise issue in this case
       and which our courts have expressly reaffirmed, remains persuasive. The defendant’s UUWF
       conviction must be reversed because the predicate felony on which it was premised is void
       ab initio. See McFadden, 2014 IL App (1st) 102939; Claxton, 2014 IL App (1st) 132681.
       Aguilar held that the statutory provision which created the Class 4 version of an AUUW
       charge was facially unconstitutional. Because the defendant here pled guilty to this Class 4
       AUUW offense, his felony conviction in 2010 must now be considered void. As such, that
       felony conviction cannot be used as a predicate offense for subsequent criminal charges. As
       we recently stated in Cowart: “We find no reason to deviate from the holdings in Fields and
       McFadden. Because the defendant’s prior conviction for AUUW was based on a statute that
       was found to be unconstitutional and void ab initio in Aguilar, we cannot allow it to stand as
       a predicate offense *** in the instant case.” Cowart, 2015 IL App (1st) 113085, ¶ 47. Thus,
       the State failed to prove an essential element of its cause of action against the defendant.
¶ 26        Furthermore, we are neither swayed by the State’s arguments that Dunmore, McFadden,
       and Fields are wrongly decided, nor do we agree that the decisions in other states or federal
       courts warrant departing from the well-settled precedent of our courts. The State continues to
       advance arguments that this court has held to be inapplicable. Indeed, in Cowart, this court
       similarly rejected the State’s argument that Fields and McFadden “were wrongly decided
       because those cases failed to consider how the defendant’s previous AUUW conviction was
       still valid at the time he possessed the firearm in the [subsequent] case.” Id. ¶ 48.
       Accordingly, because the State could not prove beyond a reasonable doubt an element of the
       UUWF offense–namely, a valid prior felony–we reverse the defendant’s conviction and
       vacate his sentence for the offense of unlawful use of a weapon by a felon. See id. ¶ 47
       (finding the State could not “prove beyond a reasonable doubt an element of the offense ***
       where the statute underlying the AUUW conviction was found to be unconstitutional and
       thus, the conviction cannot serve as a predicate offense for any charge”).
¶ 27        Although we conclude that the 2010 AUUW conviction could not serve as a predicate
       offense for the defendant’s 2011 UUWF conviction, we emphasize, as we did in Cowart, that
       this opinion does not vacate the defendant’s 2010 AUUW conviction in that prior case. See
       id. ¶ 49. Likewise, we need not address whether formal proceedings for collateral relief may
       be available to the defendant to vacate his conviction in that case. Id.


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¶ 28       Apart from his arguments derived from Aguilar, the defendant’s brief further claims that
       his UUWF conviction should be overturned because both the traffic stop and the pat-down
       search which led to the discovery of the handgun violated his right to be free from
       unreasonable search and seizure pursuant to the fourth amendment to the United States
       Constitution and article I, section 6, of the Illinois Constitution. U.S. Const., amend. IV; Ill.
       Const. 1970, art. I, § 6. However, we have already determined that application of Aguilar
       necessitates a reversal of the defendant’s UUWF conviction, regardless of whether the
       underlying searches that led to his arrest were constitutional. Thus, we need not decide the
       merits of this additional argument for reversal.
¶ 29       For the foregoing reasons, we reverse the judgment of the circuit court of Cook County.

¶ 30      Reversed.




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