                                   Illinois Official Reports

                                             Appellate Court



                             People v. Gayfield, 2014 IL App (4th) 120216-B



Appellate Court               THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                       J.W. GAYFIELD, Defendant-Appellant.



District & No.                Fourth District
                              Docket No. 4-12-0216




Rule 23 Order filed           March 5, 2014
Modified opinion
filed upon denial
of rehearing                  July 8, 2014




Held                          Defendant’s conviction for the Class 2 form of aggravated unlawful
(Note: This syllabus          use of a weapon under section 24-1.6(a)(1), (a)(3)(A), (d) was void
constitutes no part of the    pursuant to Aguilar, notwithstanding the fact that Aguilar
opinion of the court but      “specifically limited” its holding to the Class 4 form of the offense,
has been prepared by the      since both the Class 2 and Class 4 form of the offense require proof of
Reporter of Decisions         the same elements.
for the convenience of
the reader.)


                              Appeal from the Circuit Court of Champaign County,
Decision Under
                              No. 11-CF-1816; the Hon. Thomas J. Difanis, Judge, presiding.
Review


Judgment                      Vacated.
     Counsel on               Michael J. Pelletier, Jacqueline L. Bullard, and Kelly M. Weston, all
     Appeal                   of State Appellate Defender’s Office, of Springfield, for appellant.

                              Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, David J.
                              Robinson, and David E. Mannchen, all of State’s Attorneys Appellate
                              Prosecutor’s Office, of counsel), for the People.



     Panel                    JUSTICE HARRIS delivered the judgment of the court, with opinion.
                              Justices Pope and Knecht concurred in the judgment and opinion.




                                                OPINION

¶1         On January 11, 2012, a jury convicted defendant, J.W. Gayfield, of aggravated unlawful
       use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2010)), a Class 2
       offense based on a prior felony conviction. The trial court sentenced defendant to seven years
       in prison. Defendant appealed, arguing the prosecutor made improper remarks in his closing
       argument, thereby denying defendant a fair trial. On August 19, 2013, this court issued an
       order finding the prosecutor’s closing argument was not improper and affirming the trial
       court’s judgment. People v. Gayfield, 2013 IL App (4th) 120216-U.
¶2         On August 26, 2013, defendant filed a petition for rehearing pursuant to Illinois Supreme
       Court Rule 367 (Ill. S. Ct. R. 367 (eff. Dec. 29, 2009)). For the first time, defendant asked this
       court to consider whether his conviction should be reversed, asserting the AUUW statute was
       unconstitutional. On September 9, 2013, this court denied defendant’s petition for rehearing.
¶3         On October 9, 2013, defendant filed a motion for supervisory order in the Illinois Supreme
       Court, which the supreme court granted on November 6, 2013. People v. Gayfield, Nos.
       116726, 116728 (Ill. Nov. 6, 2013) (nonprecedential supervisory order directing vacatur of
       judgment and denial of petition for rehearing and reconsideration in light of People v. Aguilar,
       2013 IL 112116, 2 N.E.3d 321, and denying leave to appeal as moot). As a result, the supreme
       court directed this court to vacate our judgment in Gayfield, and our order denying the petition
       for rehearing, and to reconsider our judgment in light of Aguilar, to determine whether a
       different result was warranted.
¶4         In accordance with the supreme court’s direction, we vacated our prior judgment and our
       order denying the petition for rehearing, and reconsidered our prior judgment in light of
       Aguilar. We again affirmed, finding that Aguilar did not change the result in this case. People
       v. Gayfield, 2014 IL App (4th) 120216-UB, ¶ 5.
¶5         On March 25, 2014, defendant filed a petition for rehearing. We now modify our decision
       upon denial of defendant’s petition for rehearing. For the reasons set forth below, we vacate
       defendant’s Class 2 conviction for AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West
       2010)).



                                                   -2-
¶6                                          I. BACKGROUND
¶7         On November 3, 2011, the State charged defendant by information as an armed habitual
       criminal (720 ILCS 5/24-1.7(a)(1) (West 2010)) (count I). On January 4, 2012, the State
       charged defendant by information with AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West
       2010)) (count II), a Class 2 offense based on a prior felony conviction. The State later
       dismissed count I.
¶8         At defendant’s January 2012 jury trial, Officer Dieter Rene Wissel of the Rantoul police
       department testified that, on November 2, 2011, at approximately 2 a.m., he was “running
       license plates” on Route 136 in Rantoul. Wissel testified he had “cause for concern” upon
       checking the license plate on a gray Honda Accord that he observed traveling approximately
       five miles per hour over the posted speed limit. Wissel initiated a traffic stop and contacted a
       sergeant regarding “officer safety concerns.” Wissel found defendant driving the vehicle and
       Walter Cunningham in the front passenger seat. According to Wissel, both defendant and
       Cunningham appeared “extremely nervous.” Upon request, defendant provided identification
       and Cunningham stated his name. Wissel returned to his squad car and ran a
       law-enforcement-agencies data system (LEADS) inquiry on both names. Wissel remained in
       his squad car until Officer Kyle Gregg and Sergeant Richard Welch, both of the Rantoul police
       department, arrived at the scene.
¶9         Welch instructed Wissel and Gregg to secure the vehicle and check the occupants for
       weapons. Wissel performed a pat-down search of defendant, revealing a fully loaded
       semiautomatic pistol in his left chest pocket and 20 rounds of ammunition in a right front pants
       pocket. Welch testified that he saw Wissel remove the gun from “an inner pocket
       somewhere[;] I believe it was the jacket pocket or the shirt pocket.”
¶ 10       Gregg testified that he was tasked with watching defendant’s passenger on November 2,
       2011. He assisted Wissel in placing handcuffs on defendant. Gregg observed the
       semiautomatic handgun after it had been removed from defendant and placed in the trunk of
       Wissel’s squad car.
¶ 11       Cunningham testified on defendant’s behalf. Defendant is his nephew. Cunningham did
       not see defendant with a gun that night and did not see a gun in the vehicle.
¶ 12       The jury found defendant guilty of AUUW. On January 24, 2012, defendant filed his
       posttrial motion arguing, in part, that the trial court erred “in overruling the Defendant’s
       objection to the State’s closing remarks.” On February 29, 2012, the trial court denied
       defendant’s posttrial motion and sentenced defendant to seven years in prison.
¶ 13       As stated, defendant appealed and this court affirmed. Gayfield, 2013 IL App (4th)
       120216-U. On September 12, 2013, our supreme court determined section 24-1.6(a)(1),
       (a)(3)(A), (d) of the AUUW statute was unconstitutional on its face. Aguilar, 2013 IL 112116,
       ¶ 22, 2 N.E.3d 321. On November 6, 2013, the supreme court issued a supervisory order
       directing this court to vacate our judgment in Gayfield, and our order denying the petition for
       rehearing, and to reconsider our judgment in light of Aguilar. People v. Gayfield, No. 116726,
       116728 (Ill. Nov. 6, 2013) (nonprecedential supervisory order on denial of leave to appeal). On
       December 19, 2013, our supreme court entered a modified opinion upon denial of the State’s



                                                  -3-
       petition for rehearing in Aguilar. Aguilar, 2013 IL 112116, 2 N.E.3d 321. In the modified
       opinion, the court noted:
                   “In response to the State’s petition for rehearing in this case, we reiterate and
               emphasize that our finding of unconstitutionality in this decision is specifically limited
               to the Class 4 form of AUUW, as set forth in section 24-1.6(a)(1), (a)(3)(A), (d) of the
               AUUW statute. We make no finding, express or implied, with respect to the
               constitutionality or unconstitutionality of any other section or subsection of the AUUW
               statute.” Aguilar, 2013 IL 112116, ¶ 22 n.3, 2 N.E.3d 321.
¶ 14       Upon reconsidering our original judgment in light of the modified decision in Aguilar, as
       directed by the supreme court, we determined Aguilar was inapplicable to the instant case,
       stating “the supreme court in Aguilar specifically limited its modified opinion to the Class 4
       form of AUUW,” whereas in this case, defendant was convicted of the Class 2 form of the
       offense. Gayfield, 2014 IL App (4th) 120216-UB, ¶ 17.
¶ 15       On March 25, 2014, defendant filed a petition for rehearing, asserting “[i]n upholding [his]
       conviction, and thus the constitutionality[ ] of the ‘Class 2 form’ of aggravated unlawful use of
       a weapon, this [c]ourt impliedly [found] that felon status is an element and not a
       sentencing-enhancement factor. This holding is not dictated by *** Aguilar *** and is
       contrary to established Illinois Supreme Court law.” For the reasons set forth below, we
       modify our decision upon denial of rehearing and vacate defendant’s conviction.

¶ 16                                          II. ANALYSIS
¶ 17                                      A. AUUW Conviction
¶ 18       We first reconsider whether our supreme court’s modified opinion in Aguilar renders his
       Class 2 conviction for AUUW void. In this case, the State charged defendant by information
       with AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2010)), a Class 2 offense based on
       a prior felony conviction. Section 24-1.6 of the AUUW statute in effect at the time of
       defendant’s November 2011 offense provides in part:
                  “(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, *** any pistol, revolver, stun gun or taser or
                  other 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, legal dwelling, or fixed place of
                  business, *** any pistol, revolver, stun gun or taser or other firearm; and
                      (3) One of the following [eight] 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 (West 2010).




                                                   -4-
       Subsection (d) of the AUUW statute then provides the sentencing scheme that applies to a
       particular offender based on additional factors. That subsection provides, in relevant part, as
       follows:
                “(d) Sentence.
                    (1) Aggravated unlawful use of a weapon is a Class 4 felony; a second or
                subsequent offense is a Class 2 felony for which the person shall be sentenced to a term
                of imprisonment of not less than 3 years and not more than 7 years.
                    ***
                    (3) Aggravated unlawful use of a weapon by a person who has been previously
                convicted of a felony in this State or another jurisdiction is a Class 2 felony for which
                the person shall be sentenced to a term of imprisonment of not less than 3 years and not
                more than 7 years.” 720 ILCS 5/24-1.6 (West 2010).
¶ 19       In Aguilar, the defendant was found guilty of the Class 4 offense of AUUW–because it was
       his first offense–and sentenced to 24 months’ probation. See Aguilar, 2013 IL 112116, ¶ 7, 2
       N.E.3d 321. Relying on Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), our supreme court
       reversed the defendant’s conviction, holding that, “as the Seventh Circuit did in Moore, we
       here hold that, on its face, *** section 24-1.6(a)(1), (a)(3)(A), (d) [of the AUUW statute]
       violates the right to keep and bear arms, as guaranteed by the second amendment to the United
       States Constitution” because it “categorically prohibits the possession and use of an operable
       firearm for self-defense outside the home” and “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.” Aguilar, 2013 IL 112116,
       ¶¶ 21-22, 2 N.E.3d 321.
¶ 20       The supreme court subsequently modified its decision in Aguilar to hold only 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.” (Emphasis added.) Id. ¶ 22, 2 N.E.3d 321. While the Aguilar court specified its
       modified decision “is specifically limited to the Class 4 form of AUUW,” it continued, “[w]e
       make no finding, express or implied, with respect to the constitutionality or unconstitutionality
       of any other section or subsection of the AUUW statute.” Id. ¶ 22 n.3, 2 N.E.3d 321. The
       supreme court otherwise left its original decision fundamentally unchanged.
¶ 21       The modified decision in Aguilar was not unanimous. In her dissenting opinion, Chief
       Justice Garman noted the issue raised by defendant on appeal was whether subsections (a)(1)
       and (a)(3)(A) of the AUUW statute–which when combined with subsection (a)(2) yield 18
       possible different offenses–were facially unconstitutional. Id. ¶¶ 34-35, 2 N.E.3d 321
       (Garman, C.J., dissenting). The State, however, in its petition for rehearing, “fundamentally
       redefined the issue” by arguing these sections were not facially unconstitutional because,
       pursuant to subsection (d) “which governs sentencing,” they could still be applied to felons.
       (Emphasis added.) Id. ¶¶ 33, 36, 2 N.E.3d 321 (Garman, C.J., dissenting).
¶ 22       In her dissenting opinion, Justice Theis expressed concern that the defendant never raised
       the sentencing issue at all and that his argument that the AUUW statute was facially
       unconstitutional was “only dependent upon the elements of the offense,” not the class of
       felony. Id. ¶ 43, 2 N.E.3d 321 (Theis, J., dissenting). According to Justice Theis, the majority
       misinterpreted Moore, which did not limit its unconstitutionality holding to the Class 4 form of
       AUUW as the majority concluded, but rather “found the statute unenforceable based upon its
       consideration of the elements of the offense.” Id. ¶ 44, 2 N.E.3d 321 (Theis, J., dissenting).

                                                   -5-
¶ 23       As Chief Justice Garman and Justice Theis noted in their respective dissents, and as the
       language of the statute makes clear, subsection (d) of the AUUW statute (720 ILCS 5/24.1(d)
       (West 2010)) is a sentencing provision. In fact, in People v. Zimmerman, 239 Ill. 2d 491,
       500-01, 942 N.E.2d 1228, 1234 (2010), our supreme court specifically held that subsection (d)
       is a sentencing provision. The issue in Zimmerman was whether a defendant’s previous
       adjudication as a delinquent minor for an act that if committed by an adult would be a felony is
       an element of the offense of AUUW or whether it is a sentencing enhancement. Id. at 496-97,
       942 N.E.2d at 1232. The defendant was charged under section 24-1.6(a)(2) of the AUUW
       statute because he was in possession of a firearm in a vehicle and had previously been
       adjudicated delinquent for an offense that, if committed by an adult, would be a felony. Id. at
       493-94, 942 N.E.2d at 1230.
¶ 24       The Zimmerman court concluded that the prior delinquency adjudication was indeed an
       element of AUUW rather than a sentence-enhancing factor. Id. at 500, 942 N.E.2d at 1234. The
       court stated, “[s]ubsection (a) sets forth the elements of the offense of [AUUW]. In order to
       convict a defendant, the State must prove beyond a reasonable doubt the elements set forth in
       subsection (a)(1) or (a)(2), in addition to one of the nine factors in subsection (a)(3).” Id. at
       499, 942 N.E.2d at 1233. (At the time of Zimmerman’s offense, subsection (a)(3) listed nine
       factors.) The factors enumerated in subsection (a)(3) “transform the crime from ‘simple’
       unlawful use of a weapon to [AUUW].” Id. “In a separate subsection entitled ‘Sentence,’
       subsection (d) provides that the offense is a Class 4 felony” and then “lists several factors
       which increase an individual’s sentence for [AUUW] from one classification to a higher
       classification.” Id. at 500, 942 N.E.2d at 1233-34.
¶ 25       After examining the statute as a whole, the Zimmerman court found “the legislature clearly
       intended subsection (a)(3)(D) to be an element of the offense of [AUUW] rather than a factor
       used to increase a defendant’s sentence.” Id. at 500, 942 N.E.2d at 1234. The court further
       noted, “it would be illogical for the General Assembly to include a sentence-enhancing factor
       in a list with eight other factors which constitute an element of the offense.” Id. Thus, the
       Zimmerman court held that the elements of AUUW are contained in subsection (a), while the
       sentences and sentencing enhancing factors are contained in subsection (d).
¶ 26       In People v. Campbell, 2013 IL App (4th) 120635, 2 N.E.3d 1249–a decision filed five
       days after Aguilar was modified, and in which we recognized our supreme court’s decision to
       limit its holding to the Class 4 form of AUUW–this court reversed the defendant’s Class 2
       felony conviction for AUUW. The State in Campbell argued that because the defendant was a
       convicted felon, his conviction under section 24-1.6(a)(1), (a)(3)(A) was constitutional. This
       court disagreed and stated:
                    “The State seems to misunderstand the nature of the supreme court’s decision in
                Aguilar. The court in Aguilar did not merely hold that section 24-1.6(1)(a), (a)(3)(A) of
                the Code was unconstitutional as applied in that case–the court held that the statute was
                unconstitutional on its face. [Citation.] ‘A statute is facially unconstitutional if there are
                no circumstances in which it could be validly applied.’ [Citation.] Because section
                24-1.6(a)(1), (a)(3)(A) of the Code is unconstitutional on its face, neither defendant’s
                status as a felon nor any other factor could render his conviction under that provision of
                the [AUUW] statute constitutional.” (Emphasis in original.) Id. ¶ 14, 2 N.E.3d 1249
                (quoting Lucien v. Briley, 213 Ill. 2d 340, 344, 821 N.E.2d 1148, 1150 (2004)).


                                                      -6-
¶ 27       As in Campbell, defendant here was convicted of the Class 2 form of AUUW. Specifically,
       because defendant had a prior felony conviction, the offense of AUUW was elevated to a Class
       2 offense, with the result being defendant would be required to serve a longer prison sentence
       upon his conviction than he would without the prior felony. Also as in Campbell, the State did
       not charge defendant with violating section 24-1.1 of the Criminal Code of 1961 (Code) (720
       ILCS 5/24-1.1 (West 2010)), which prohibits felons from possessing firearms. Rather, the
       State charged defendant with violating section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute
       (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010)), which prohibits the possession of firearms
       under certain circumstances, none of which involve having a prior felony conviction.
¶ 28       The elements of the offense for both the Class 4 and Class 2 forms of the AUUW statute at
       issue in this case are identical. Under both forms, the State must prove either (1) a defendant
       “[c]arrie[d] 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, *** any pistol, revolver, stun gun or taser or other firearm” and (2) “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). These are the only two elements the State had to
       prove to obtain a conviction for AUUW in this case. The State was not required to prove
       defendant was a felon.
¶ 29       As previously noted, defendant was charged by information with violating section
       24-1.6(a)(1), (a)(3)(A) of the AUUW statute. The State further alleged “the defendant has
       previously been convicted of a felony under the laws of the [S]tate of Illinois,” thus enhancing
       the classification of the offense from a Class 4 felony to a Class 2 felony. Pursuant to section
       111-3(c) of the Code of Criminal Procedure of 1963 (725 ILCS 5/111-3(c) (West 2010)), “the
       fact of such prior conviction and the State’s intention to seek an enhanced sentence are not
       elements of the offense and may not be disclosed to the jury during trial.” (Emphasis added.)
¶ 30       Defendant here asserts his conviction of the “Class 2 form” of AUUW cannot be upheld on
       the basis he was convicted of a different offense than the defendant in Aguilar. He argues
       “[t]he ‘Class 2 form’ of AUUW is simply a harsher punishment for the offense of AUUW, an
       offense that no longer exists” after Aguilar. We agree. Even though the Aguilar court
       “specifically limited” its holding to the Class 4 form of the offense, we cannot see how the
       Class 4 form of the AUUW statute can be unconstitutional on its face, but the Class 2 form is
       not, since both classes of the offense require the State to prove the exact same elements.
       Consistent with our prior decision in Campbell, we find defendant’s conviction for AUUW
       under section 24-1.6(a)(1), (a)(3)(A) is void. Cf. People v. Green, 2014 IL App (4th) 120454,
       ¶ 13 (noting, in dicta, that the modified Aguilar did not apply to the Class 2 form of AUUW).
¶ 31       We acknowledge our sister districts have arrived at a different conclusion. People v. Burns,
       2013 IL App (1st) 120929, 4 N.E.3d 151; People v. Soto, 2014 IL App (1st) 121937, 7 N.E.3d
       823; People v. Moore, 2014 IL App (1st) 110793-B, 8 N.E.3d 1271; People v. Charles, 2014
       IL App (1st) 112869-U; People v. Johnson, 2014 IL App (3d) 120778-U. In these cases, the
       appellate courts held that, based on the specific references to the Class 4 form of the offense in
       the modified Aguilar, the defendants’ Class 2 felony convictions under the AUUW statute
       were not void. We respectfully disagree with their analyses and believe, for the reasons
       identified, constitutional jurisprudence dictates the result we reach here.




                                                   -7-
¶ 32       We therefore vacate defendant’s conviction for AUUW (720 ILCS 5/24-1.6(a)(1),
       (a)(3)(A), (d) (West 2010)).

¶ 33                                B. Prosecutor’s Closing Argument
¶ 34      Because we vacate defendant’s conviction for AUUW, we need not consider whether he
       was denied a fair trial due to alleged improper remarks made by the prosecutor during closing
       argument.

¶ 35                                     III. CONCLUSION
¶ 36       For the foregoing reasons, we modify our decision upon denial of rehearing and vacate
       defendant’s Class 2 conviction for AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West
       2010)).

¶ 37      Vacated.




                                                 -8-
