                                                               Third Division
                                                               March 31, 2011




1-09-1973




THE PEOPLE OF THE STATE OF ILLINOIS,                           )       Appeal from the
                                                               )       Circuit Court of
                       Plaintiff-Appellee,                     )       Cook County.
                                                               )
v.                                                             )       09 CR 3042
                                                               )
FRED DAVIS,                                                    )       Honorable
                                                               )       Michael J. Howlett, Jr.,
                       Defendant-Appellant.                    )       Judge Presiding.


       JUSTICE NEVILLE delivered the judgment of the court, with opinion.
       Presiding Justice Quinn and Justice Steele concurred in the judgment and opinion.


                                              OPINION

       The trial court found the defendant, Fred Davis, guilty on seven counts of unlawful use of a

weapon by a felon (UUWF) (720 ILCS 5/24-1.1(a) (West 2008)) and on four counts of violations

of section 24-1.7(a) of the Criminal Code of 1961, the armed habitual criminal statute (720 ILCS

5/24-1.7(a) (West 2008)). On appeal, Davis argues that (1) both statutes unconstitutionally infringe

on his right to bear arms; (2) application of the armed habitual criminal statute to him violates the ex

post facto clauses of the state and federal constitutions; and (3) the court should not have found him

guilty of four separate counts for violating the armed habitual criminal statute based on his

simultaneous possession of four guns. We find that the constitution permits the state to ban felons
1-09-1973


from possessing firearms and the armed habitual criminal statute does not violate ex post facto

principles, but simultaneous possession of four weapons can support only one conviction for violation

of the armed habitual criminal statute. We vacate three of the convictions for violating the armed

habitual criminal statute, and in all other respects we affirm the trial court’s judgment.

                                          BACKGROUND

       On January 21, 2009, a police officer on the south side of Chicago saw Davis put a backpack

into a car’s trunk. Davis tried to shut the trunk as the officer walked up to him, but the trunk popped

open. The officer saw a gun in the backpack. Police officers arrested Davis. When they searched

the car, they found that the backpack held four guns, and three of them were loaded. After an officer

reminded Davis of his rights, Davis said that the guns belonged to his nephew.

       A grand jury indicted Davis for four counts of violations of the armed habitual criminal statute

and for seven counts of UUWF.

       At the bench trial, the officer who first saw the gun testified about the guns. The parties

stipulated that Davis had prior convictions for aggravated discharge of a firearm, a Class 1 felony,

and a Class 2 felony conviction for delivery of a controlled substance. The defense presented no

evidence. The trial court found Davis guilty on all counts. The court sentenced Davis to seven years

in prison on each of the armed habitual criminal statute charges, and to six years on each count of

UUWF, with all of the sentences to run concurrently. Davis now appeals.

                                             ANALYSIS

       On appeal, Davis does not challenge the sufficiency of the evidence showing that he possessed

firearms and that he had prior felony convictions. He argues that we must reverse his convictions

                                                  2
1-09-1973


because both the armed habitual criminal statute and the UUWF statute violate his constitutional right

to bear arms. See U.S. Const., amend. II. He challenges the statutes both as facially unconstitutional

and as unconstitutional as applied to him. We review the constitutionality of a statute de novo.

People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 200 (2009).

        The State suggests that the statutes at issue do not impose any burden on conduct falling

within the scope of the second amendment because it applies only to felons. In support, the State

cites Wilson v. Cook County, No. 1-08-1202 (Ill. App. Feb. 9, 2011) and People v. Ross, No. 1-09-

1463 (Ill. App. Mar. 11, 2011). Both the Wilson court and the Ross court cite with approval United

States v. Williams, 616 F.3d 685 (7th Cir. 2010), in which the court found the need to apply

intermediate scrutiny to a statute that barred felons from possessing firearms. If the statute did not

impose any burden on conduct falling within the scope of the second amendment, the court should

have applied, at most, a rational basis test for deciding the statute’s constitutionality. The second

amendment expressly protects “the right of the people to keep and bear arms.” U.S. Const., amend.

II. Although a felon, Davis still counts as one of the people whose rights the Constitution protects.

Therefore, like the Williams court, we apply intermediate scrutiny to determine whether the statutes

at issue here violate the second amendment. People v. Aguilar, No. 1-09-0840, slip op. at 16 (Ill.

App. Feb. 23, 2011).

        Under this standard of review, “[t]he State must assert a substantial interest to be achieved

by restrictions” on the constitutional right, and “the regulatory technique must be in proportion to that

interest.” Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 564

(1980). Supreme Court decisions “require *** a fit that is not necessarily perfect, but reasonable;

                                                   3
1-09-1973


that represents not necessarily the single best disposition but one whose scope is ‘in proportion to the

interest served,’ ” Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 480

(1989)(quoting In re R. M. J., 455 U.S. 191, 203 (1982)).

                                         Second Amendment

        The UUWF statute prohibits the possession of firearms by any person previously convicted

of any felony. 720 ILCS 5/24-1.1(a) (West 2008). The armed habitual criminal statute establishes

harsher penalties for possession of a firearm if the possessor has two or more convictions for any of

the felonies listed in the statute, including aggravated discharge of a firearm and delivery of a

controlled substance, if the controlled substance offense is a Class 3 or higher level of offense. 720

ILCS 5/24-1.7(a) (West 2008). Davis admits that both statutes applied to him.

        The UUWF statute serves to protect the public from the danger posed when convicted felons

possess firearms. People v. Crawford, 145 Ill. App. 3d 318, 321 (1986). The legislature similarly

intended the armed habitual criminal statute to help protect the public from the threat of violence that

arises when repeat offenders possess firearms. See People v. Davis, No. 405 Ill. App. 3d 585, 592

(2010). The State has a legitimate interest in protecting the public from the dangers posed by felons

in possession of firearms. Crawford, 145 Ill. App. 3d at 321. The statutes at issue in this case forbid

possession of firearms only by persons proven to have committed felonies. Before the State imposes

the more serious penalties established in the armed habitual criminal statute (720 ILCS 5/24-1.7(b)

(West 2008)), the State must prove that the defendant twice committed the specific kinds of felonies

peculiarly related to the use of firearms. 720 ILCS 5/24-1.7(a) (West 2008). Thus, the restrictions

fit proportionally with the interests the statutes serve.

                                                   4
1-09-1973


       Dicta in District of Columbia v. Heller, 554 U.S. 570 (2008), supports our finding that the

UUWF statute and the armed habitual criminal statute comport with the second amendment. The

Supreme Court, in Heller, explained the reach of the right to bear arms, and specifically added:

“[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the

possession of firearms by felons ***.” Heller, 554 U.S. at 626-27. Davis argues that we should not

follow this dicta. But, as our supreme court explained in Cates v. Cates, 156 Ill. 2d 76, 80 (1993),

judicial dicta should usually carry dispositive weight in an inferior court.      See also People v.

Williams, 204 Ill. 2d 191, 206 (2003). Accordingly, we hold that the armed habitual criminal statute

and the UUWF statute do not, on their faces, violate the second amendment.

       Davis separately challenges the statutes as applied to him, as he now claims that the State did

not prove that he intended to use the arms for any improper purpose. The evidence suggests that

Davis’s nephew intended to retain ownership of the four guns while Davis carried them. Neither

statute requires a showing of any improper purpose for the felon’s possession of the firearms. 720

ILCS 5/24-1.1(a), 24-1.7(a)(West 2008). Convicted felons present special dangers when they

possess firearms, even if they hold those firearms only temporarily for other owners. United States

v. Johnson, 459 F.3d 990, 998 (9th Cir. 2006). The evidence at trial shows that Davis was not, at

the time police approached him, using the weapons for self-defense, as he had them stored in a

backpack in the trunk of a car. We find that the State did not violate the United States constitution

when it enforced its statutes and applied them to Davis’s acts in this case.

                                           Ex Post Facto

       Next, Davis contends that the armed habitual criminal statute violates the ex post facto clauses

                                                  5
1-09-1973


of the United States and Illinois Constitutions because both of his prior felony convictions occurred

before the legislature adopted the armed habitual criminal statute. We also review this constitutional

issue de novo. People v. Leonard, 391 Ill. App. 3d 926, 931 (2009).

        The First and Third District Appellate Courts of this state have considered the same issue

advanced by defendant and decided it adversely to him. See, e.g., Leonard, 391 Ill. App. 3d at 926;

People v. Adams, 404 Ill. App. 3d 405 (2010); People v. Bailey, 396 Ill. App. 3d 459 (2009). In

Leonard, 391 Ill. App. 3d at 931, the reviewing court observed that recidivist statutes in this state

have consistently withstood challenges to their validity for the reason that they punish defendant for

a new and separate crime, not for the offenses committed before the statute was enacted. In such

statutes, as here, defendant's prior convictions are only an element of the new crime. Leonard, 391

Ill. App. 3d at 931.

        This court applied the same rationale in Bailey, 396 Ill. App. 3d at 463-64, and Adams, 404

Ill. App. 3d at 413, and likewise concluded that the armed habitual criminal statute does not punish

a defendant for his prior convictions, but rather for a new and separate subsequent crime. Thus, this

court found that the armed habitual criminal statute did not violate the constitutional prohibitions

against ex post facto laws.

        Thomas argues that we should reject Leonard, Bailey and Adams because those decisions

conflict with People v. Dunigan, 165 Ill. 2d 235 (1995). The Dunigan court held that the Habitual

Criminal Act did not violate ex post facto principles because it only enhanced the sentence for a new

crime. Dunigan, 165 Ill. 2d at 240-44. In Leonard, 391 Ill. App. 3d at 932, the court specifically

addressed this point, explaining that the court in Dunigan did not find that habitual criminal legislation

                                                    6
1-09-1973


must not include previous convictions as an element of the offense. A defendant’s prior crimes count

as elements of a violation of the armed habitual criminal statute, as the prior offenses establish that

the defendant fits in the class of persons who must not possess firearms. The defendant’s act that

violates the statute, possession of a firearm by a twice-convicted felon, must take place entirely after

the enactment of the armed habitual criminal statute. Thus, the armed habitual criminal statute does

not violate the prohibition against ex post facto laws. Leonard, 391 Ill. App. 3d at 932.

            Multiple Convictions for Violations of the Armed Habitual Criminal Statute

        Finally, Davis argues that the trial court improperly sentenced him for four separate counts

of violating the armed habitual criminal statute. Davis maintains that the armed habitual criminal

statute does not permit multiple convictions for the simultaneous possession of multiple firearms. The

State agrees. See People v. Carter, 213 Ill. 2d 295, 302 (2004). Accordingly, we correct the

mittimus to show only one conviction for violation of the armed habitual criminal statute.

                                           CONCLUSION

        The armed habitual criminal statute and the UUWF statute both comport with the second

amendment. Application of the armed habitual criminal statute to Davis did not violate ex post facto

principles because Davis possessed the guns at issue some years after the legislature adopted the

armed habitual criminal statute. We correct the mittimus to reflect only one conviction for violation

of the armed habitual criminal statute. In all other respects, we affirm the judgment of the trial court.

        Affirmed as modified.




                                                   7
