                                        2017 IL App (1st) 123563
                                             No. 1-12-3563

                                                                    THIRD DIVISION
                                                                        May 17, 2017
     ______________________________________________________________________________

                                         IN THE
                             APPELLATE COURT OF ILLINOIS
                                FIRST JUDICIAL DISTRICT
     ______________________________________________________________________________


     THE PEOPLE OF THE STATE OF ILLINOIS,                )      Appeal from the Circuit Court
                                                         )      of Cook County.
            Plaintiff-Appellee,                          )
                                                         )
     v.                                                  )      No. 10 CR 13096
                                                         )
     DONALD SPIVEY,                                      )
                                                         )      The Honorable
            Defendant-Appellant.                         )      Neil J. Linehan,
                                                         )      Judge Presiding.

     ______________________________________________________________________________

            JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
            Justice Lavin concurred in the judgment and opinion.
            Justice Hyman specially concurred, with opinion.

                                                 OPINION

¶1          Following a bench trial, defendant Donald Spivey was found guilty of two counts of

     unlawful use of a weapon by a felon (UUWF) and two counts of aggravated unlawful use of a

     weapon (AUUW). The trial court merged the convictions and sentenced defendant to four years’

     imprisonment, followed by two years of mandatory supervised release (MSR), for his conviction

     on count two for UUWF. Initially on appeal, we vacated defendant’s UUWF conviction under

     count two “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
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     unconstitutional and void ab initio.’ ” People v. Spivey, 2015 IL App (1st) 123563-U, ¶¶ 21, 25

     (quoting People v. McFadden, 2014 IL App (1st) 102939, ¶ 43, aff’d and rev’d in part, 2016 IL

     117424).

¶2           On September 28, 2016, the supreme court denied the State’s petition for leave to appeal

     but entered a supervisory order directing us to vacate our judgment and to reconsider the matter

     in light of People v. McFadden, 2016 IL 117424, to determine if a different result is warranted.

     People v. Spivey, No. 119492 (Ill. Sept. 28, 2016). For the reasons that follow, we conclude that

     a different result is warranted.

¶3                                             BACKGROUND

¶4           The record shows that defendant was charged by information, under case number 10 CR

     13096, with one count of armed habitual criminal (count one), two counts of UUWF (counts two

     and three), and four counts of AUUW (counts four, five, six, and seven). The State nol-prossed 1

     counts one, five, and seven, then entered into evidence a certified statement of defendant’s prior

     conviction for AUUW in case number 04 CR 18579, and the matter proceeded to trial on the

     remaining four counts.

¶5           Specifically, count two charged defendant with committing the offense of UUWF in that

     he knowingly possessed “on or about his person any weapon prohibited by section 24-1 of this

     Code,” to wit: a firearm after having been previously convicted of AUUW under case number 04

     CR 18579 (720 ILCS 5/24-1.1(a) (West 2010)). Count three charged defendant with committing

     the offense of UUWF in that he knowingly possessed firearm ammunition after having been

     previously convicted of AUUW under case number 04 CR 18579 (720 ILCS 5/24-1.1(a) (West

     2010)). Count four charged defendant with committing the offense of AUUW in that he

     1
      The State has not requested that this cause be remanded to the trial court for reinstatement of the nol-
     prossed charges.
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     knowingly carried an uncased, loaded, and immediately accessible firearm on his person and

     outside his home (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010)). And count six charged

     defendant with committing the offense of AUUW in that he knowingly carried or possessed an

     uncased, loaded and immediately accessible firearm on his person, upon a public way (720 ILCS

     5/24-1.6(a)(2), (a)(3)(A) (West 2010)). Additionally, counts four and six indicated that “The

     State shall seek to sentence [defendant] as a class two offender in that he has been previously

     convicted of the offense of [AUUW] under case number 04CR18579.” We take judicial notice of

     the charging instrument and the circuit court clerk's docket in case number 04 CR 18579 that

     defendant included in his appendix to the brief (Ill. S. Ct. R. 342 (eff. Jan. 1, 2005)), which

     reflect that he was convicted of the Class 4 version of AUUW under count one, 2 alleging that he

     knowingly carried an uncased, loaded, and immediately accessible firearm on his person and

     outside his home (720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (d) (West 2010)). See People v. Jimerson,

     404 Ill. App. 3d 621, 634 (2010) (reviewing court may take judicial notice of public records and

     other judicial proceedings).

¶6           At trial, Chicago police officer Jason Perez testified that at 4:55 a.m., on July 3, 2010, he

     and his partner, Officer Antonio De Carlo, were on routine patrol in the area of 6836 South May

     Street, where he observed defendant standing on the sidewalk about 20 feet away, with a black

     object resembling the handle of a revolver tucked into his waistband. Officer Perez made eye

     contact with defendant, who then walked away with his arms around his waist. Officer Perez

     exited his squad car, announced his office, and pursued defendant through a nearby gangway,


     2
      The circuit court clerk’s docket in case number 04 CR 18579 reflects that defendant pleaded guilty to
     count one (AUUW), and the criminal history reports attached to the presentence investigation report in
     the common law record in this appeal reflect that the State nol-prossed the remaining three AUUW counts
     in case number 04 CR 18579, of which count two was based on defendant’s possession of a firearm
     without a valid FOID card and counts three and four were based on his possession of a firearm on a public
     way.
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     into the backyard of the abandoned house at 6836 South May Street. There, defendant threw an

     object that made a metallic sound when it struck the chain-link fence at the north side of the

     backyard. The pursuit continued through an alley, across Racine Avenue, and ended with

     defendant's arrest in a vacant lot.

¶7           Chicago police officer Andres Zepeda testified that he and other responding officers

     arrived on the scene and helped place defendant into custody. He was then directed by Officer

     Perez to search along the chain-link fence in the backyard of the abandoned house at 6836 South

     May Street. There, he recovered a loaded .357-caliber revolver along the north side of the chain-

     link fence. Officer Perez arrived in the backyard and identified the firearm as the same black

     revolver that he observed defendant holding minutes ago.

¶8           Defendant presented the testimony of Artamese Prewitt and Kathy Johnson, both of

     whom testified that defendant did not have a gun. Additionally, defendant testified that he was

     living with his cousin at 6838 South May Street when the incident at bar occurred. He testified

     that he was drinking alcohol on his front yard when police officers pulled up in a squad car,

     exited, and approached him. He explained that he ran when the officers called him because he

     had an open container of alcohol and a warrant from Wisconsin for unpaid child support.

     Defendant maintained that he threw his bottle of alcohol at the chain-link fence in the backyard,

     and he denied having a weapon.

¶9           In finding defendant guilty, the trial court stated, “So as to count 2, there will be a finding

     of guilty. Counts 3, 4, and 6 will merge with *** count 2 in the charging document,” and

     sentenced defendant to four years' imprisonment for his UUWF conviction on count two.

     Defendant timely appealed.




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¶ 10                                             ANALYSIS

¶ 11          Defendant contends in his supplemental brief that United States Supreme Court precedent

       requires that his UUWF conviction be reversed, citing Montgomery v. Louisiana, 577 U.S. ___,

       136 S. Ct. 718 (2016), and Ex Parte Siebold, 100 U.S. 371 (1879). Defendant argues that

       “nothing in McFadden stands in the way of this Court applying that controlling precedent, as it is

       bound to do” because McFadden did not address those two cases. Alternatively, defendant

       contends that if this court affirms his UUWF conviction, the felony classification of the offense

       must be reduced from a Class 2 to a Class 3 felony pursuant to Lewis v. United States, 445 U.S.

       55, 65-67 (1980), which McFadden “did address and adopt.”

¶ 12          The State responds in its supplemental brief that our supreme court was well aware of

       Montgomery and Siebold when it decided McFadden because it allowed McFadden to cite

       Montgomery as additional authority, neither the majority nor the dissent in McFadden ultimately

       cited Montgomery or Siebold because they were irrelevant, and “although McFadden in his

       petition for rehearing made the same argument defendant now makes regarding those cases, the

       supreme court denied rehearing.” The State argues that this court is obligated to follow

       McFadden and affirm defendant’s UUWF conviction because we lack the authority to overrule

       decisions of the Illinois Supreme Court, citing People v. Artis, 232 Ill. 2d 156 (2009), and

       Blumenthal v. Brewer, 2016 IL 118781, ¶ 28. The State also responds that defendant’s alternative

       argument is based on the mistaken premise that his prior AUUW conviction was used to enhance

       his sentence.

¶ 13          We observe that the same contentions defendant raises here were considered and rejected

       in People v. Smith, 2017 IL App (1st) 122370-B, and defendant offers no new grounds that


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       would warrant a different result in this case. People v. Madej, 177 Ill. 2d 116, 165 (1997). In

       Smith, 2017 IL App (1st) 122370-B, ¶¶ 27-31, the issue was whether a prior AUUW conviction

       based on a statute that has been subsequently declared facially unconstitutional may serve as

       proof of the predicate felony in prosecuting an UUWF offense. At trial, Smith stipulated that he

       had previously been convicted of a qualifying predicate felony, i.e., AUUW. Id. ¶ 27. Although

       People v. Aguilar, 2013 IL 112116, 3 declared the AUUW statute facially unconstitutional, Smith

       did not clear his felon status before obtaining the revolver that led to his conviction under the

       constitutionally valid UUWF statute. Smith, 2017 IL App (1st) 122370-B, ¶ 27. Pursuant to

       McFadden, the appellate court determined that Smith’s prior AUUW conviction properly served

       as proof of the predicate felony conviction for UUWF and affirmed his conviction therefore. Id.

       In doing so, the appellate court rejected Smith’s argument that McFadden should be disregarded,

       as it did not address the binding United States Supreme Court precedent of Montgomery, noting

       that counsel in McFadden was granted leave to cite Montgomery. Id. ¶ 28. The appellate court

       further determined that Lewis did not forbid the use of a prior felony conviction to enhance his

       sentence; rather, Smith’s prior AUUW conviction was an element of UUWF and only one class

       of felony is statutorily possible for UUWF under these circumstances, namely a Class 2 felony.

       Id. ¶¶ 31-32.

¶ 14           Here, as in Smith, we disagree with defendant that the supreme court in McFadden failed

       to address binding United States Supreme Court precedent in Montgomery and Siebold. Id. ¶ 28.

       Likewise, we disagree with defendant that if this court affirms his UUWF conviction, the felony

       classification of the offense must be reduced to a Class 3 felony pursuant to Lewis. Id. ¶¶ 31-32.

       Pursuant to McFadden, we conclude that defendant’s prior AUUW conviction satisfied the
       3
        After the original Rule 23 order in this appeal was filed, our supreme court decided People v. Burns,
       2015 IL 117387, ¶ 25, which clarified its holding in Aguilar, stating that section 24-1.6(a)(1), (a)(3)(A) of
       the AUUW statute is facially unconstitutional “without limitation.”
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       predicate felony element of UUWF because he did not clear his felon status before obtaining a

       firearm. McFadden, 2016 IL 117424, ¶ 37.

¶ 15          In addition, the author agrees with the special concurrence that the ripple effects of

       Aguilar and McFadden are best resolved by the legislature.

¶ 16                                            CONCLUSION

¶ 17          For the reasons stated, we affirm defendant’s UUWF conviction and sentence.

¶ 18          Affirmed.

¶ 19          JUSTICE HYMAN, specially concurring.

¶ 20          I agree with my colleagues that People v. McFadden controls the result. I write separately

       to discuss the practical impact of Aguilar—or rather, the lack of practical impact, which is

       exemplified by Spivey’s appeal (and many others).

¶ 21          In Aguilar, our supreme court held that portions of the AUUW statute (720 ILCS 5/24-

       1.6(a)(1), (a)(3)(A) (West 2008)), were unconstitutional. Aguilar, 2013 IL 112116, ¶ 22; see also

       720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008) (person commits aggravated unlawful use of

       weapon when he or she knowingly carries on or about his or her person any pistol, revolver, stun

       gun, taser, or other firearm, and the firearm possessed is uncased, loaded, and immediately

       accessible). McFadden acknowledges that a number of people convicted of AUUW under that

       statute should not have been convicted because that statute was void ab initio. But it also holds

       that “[t]he remedy is to challenge the judgment of conviction and have the unlawful judgment of

       conviction set aside before deciding to possess a firearm.” McFadden, 2016 IL 117424, ¶ 34. I

       recognize the legal logic of McFadden, but on a practical level, we are through the looking-glass.

       Because McFadden (and Spivey, and many others) did not use Aguilar to vacate their prior,

       unconstitutional convictions, they are still felons though those felonies no longer exist.

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¶ 22          Spivey was convicted of the predicate AUUW offense (later held void ab initio) in 2004.

       He was charged with the offenses in 2010. But Aguilar was not issued until 2013—how was

       Spivey to take advantage of Aguilar and “have the unlawful judgment of conviction set aside

       before deciding to possess a firearm” in 2010, when Aguilar did not yet exist? (The same applies

       to McFadden himself, whose predicate felony took place in 2002 before being charged again in

       2008. He could not have had the 2002 conviction vacated before his 2008 charge.) If Spivey (and

       McFadden, et al.) had not been represented by counsel for the 2010 offenses, would he ever have

       known that his 2004 offense was void ab initio?

¶ 23          This issue presents itself to us in contexts like this one—where a person has been

       convicted of AUUW and commits a subsequent crime that is aggravated due to that previous

       AUUW conviction. But Aguilar also applies to some unknown number of felons who committed

       an AUUW offense that is now void ab initio, but have not committed subsequent offenses. What

       is the likelihood that those people know that their convictions could now be vacated? How many

       of them have heard of Aguilar, or have access to attorneys who could help them pursue vacating

       their now-void convictions?

¶ 24          Declaring the statute unconstitutional is only a half-measure. We cannot realistically

       expect the public to read judicial pronouncements and seek their own justice without assistance,

       or depend on defense attorneys to hunt up their old clients who might be affected by Aguilar.

       And why should criminal defendants—often poor, struggling, jobless, dependent on public

       funding for their defenses, unsophisticated, and mostly black or brown—bear the burden to file

       the necessary paperwork for vacating their convictions, when those convictions were caused by a

       legislature passing an ultimately unconstitutional statute? The need for a solution cannot be

       ignored. As former Supreme Court Justice Sandra Day O’Connor once said, “ ‘A nation’s


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       success or failure in achieving democracy is judged in part by how well it responds to those at

       the bottom, and the margins, of the social order.’ ” The Third Annual William French Smith

       Memorial Lecture: A Conversation with Retired Justice Sandra Day O’Connor, 37 Pepp. L.

       Rev. 63, 65 (2009) (quoting Sandra Day O’Connor, The Majesty of the Law (2d ed. 2004)).

¶ 25          The legislature should consider whether it is right that these old convictions, based on an

       unconstitutional statute, may be used to create “felon status” in subsequent prosecutions. In a

       situation where the judicial branch cannot help people harmed by a statute, it is incumbent on the

       Illinois legislature, the promulgators of the unconstitutional criminal statute, to avoid

       compounding an injustice in the system by fixing it. This requires giving validity and effect to

       the supreme court’s decision that “the offense used as the predicate felony for the UUW by a

       felon charge *** ‘was constitutionally infirm’ when it was enacted and must be treated as if its

       underlying statute was never operative.” McFadden, 2016 IL 117424, ¶ 58. Otherwise, the

       doctrine of void ab initio lacks the legal effect demanded by the Illinois Constitution, and to

       which the offenders are legally entitled.

¶ 26          The legislature should consider amending the relevant statutes to indicate that if a person

       was convicted under the unconstitutional AUUW statute, that void conviction may not be used to

       enhance a later charge. This amendment would go a long way to undo the damage caused by an

       unconstitutional law.

¶ 27          A bedrock principle of our democracy is that offenders like Spivey, whose convictions

       render them highly unsympathetic, still have basic rights, freedoms, and protection under the

       law. It behooves the legislature to craft relief ensuring that there are no lingering or long-term

       adverse effects due to reliance on a conviction under an invalid statute. As the great Justice

       Holmes wrote, “it must be remembered that legislatures are ultimate guardians of the liberties


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and welfare of the people in quite as great a degree as the courts.” Missouri, Kansas & Texas Ry.

Co. of Texas v. May, 194 U.S. 267, 270 (1904).




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