                                                                                 FILED
                                    2014 IL App (4th) 120454                    January 30, 2014
                                                                                  Carla Bender
                                          NO. 4-12-0454                        th
                                                                              4 District Appellate
                                                                                   Court, IL
                                 IN THE APPELLATE COURT

                                          OF ILLINOIS

                                      FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,            ) Appeal from
           Plaintiff-Appellee,                  ) Circuit Court of
           v.                                   ) Sangamon County
DION GREEN,                                     ) No. 11CF459
           Defendant-Appellant.                 )
                                                ) Honorable
                                                ) John Schmidt,
                                                ) Judge Presiding.
______________________________________________________________________________

               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. 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


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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


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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:

                       "(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


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                      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,


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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:

                       "(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-


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                       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, 989 N.E.2d 1101. 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


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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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