                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Black, 2012 IL App (1st) 110055




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    RICKEY BLACK, Defendant-Appellant.



District & No.             First District, Second Division
                           Docket No. 1-11-0055


Filed                      July 31, 2012


Held                       The armed habitual criminal statute does not violate the constitutional
(Note: This syllabus       right to bear arms or the prohibition against ex post facto laws.
constitutes no part of
the opinion of the court
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-CR-20278; the
Review                     Hon. Thomas V. Gainer, Jr., Judge, presiding.



Judgment                   Affirmed as modified.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Stephen L. Gentry, all of
Appeal                     State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Marie
                           Quinlivan Czech, and Margaret G. Lustig, Assistant State’s Attorneys, of
                           counsel), for the People.


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



                                             OPINION

¶1           Defendant, Rickey Black, appeals his conviction after a bench trial of being an armed
        habitual criminal and his sentence of seven years’ imprisonment. On appeal, he contends (1)
        the statute that makes being an armed habitual criminal a criminal offense violates his
        constitutional right to bear arms; (2) his conviction violates the ex post facto clauses of the
        Illinois and United States Constitutions because one of his qualifying offenses occurred
        before the effective date of the armed habitual criminal statute; and (3) his fines, fees, and
        costs should be reduced by $335. For the reasons that follow, we affirm Black’s conviction
        and sentence but reduce the fines, fees, and costs assessed to him by $335.

¶2                                          JURISDICTION
¶3          The trial court sentenced Black on December 2, 2010, and he filed a timely notice of
        appeal on December 2, 2010. Accordingly, this court has jurisdiction pursuant to article VI,
        section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606,
        governing appeals from a final judgment of conviction in a criminal case entered below. Ill.
        Const. 1970, art. VI, § 6; Ill. S. Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).

¶4                                        BACKGROUND
¶5          Black was charged with being an armed habitual criminal. At his bench trial, Sergeant
        Don Markham testified that on October 17, 2009, approximately 20 officers from the
        Chicago police department narcotics squad went to an apartment at 8739 S. Racine to
        execute a search warrant. Officers knocked on the door and announced “Chicago
        police–search warrant.” They heard running on the other side of the door and Officer
        Gutkowski used a ram to force entry into the apartment. Black and three other people were
        in the apartment. Upon entry, Officers Markham and Gutkowski saw Black holding a
        bluesteel handgun as he ran into a bedroom. Officer Markham yelled “gun” and he followed

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       Black into the bedroom. He then observed Black throw the gun through the window. Officer
       Gutkowski ran outside and recovered the gun near some broken glass. He also found a
       magazine containing ammunition nearby. Black was placed under arrest.
¶6         The officers proceeded to search the apartment. On a coffee table in the bedroom they
       found a clear knotted plastic baggie containing nine smaller bags of suspected crack cocaine,
       two bundles of money, and a February Comcast bill in Black’s name. The parties stipulated
       as to the chemical composition of the substance found in the baggies. The State also
       presented certified copies of Black’s prior convictions for aggravated robbery to which Black
       pled guilty on August 16, 1999, and for unlawful use of a weapon by a felon to which Black
       pled guilty on June 26, 2006.
¶7         Martin McFarland testified for the defense. He stated he and Black were watching
       television when he heard a “big boom.” Officers came into the room and ordered him and
       Black to the ground. Officers handcuffed them. McFarland testified that his daughter lived
       in the apartment with her mother, aunt, and grandmother. Black would visit but he was
       unsure whether Black stayed in the apartment. He stated that he did not see Black run or
       throw anything out of the window.
¶8         The trial court found Black guilty of one count of being an armed habitual criminal and
       two counts of unlawful use of a weapon. The trial court merged the unlawful use of a weapon
       charges into the armed habitual criminal charge and sentenced Black to seven years’
       imprisonment. The court also assessed Black $660 in fines, fees, and costs. Black filed this
       timely appeal.

¶9                                           ANALYSIS
¶ 10       Black contends that his armed habitual criminal conviction based on his possession of
       a handgun violates the second amendment right to bear arms. Section 24-1.7(a) of the
       Criminal Code of 1961 states:
               “(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 2-8 of this Code;
                   (2) unlawful use of a weapon by a felon; aggravated unlawful use of a weapon;
               aggravated discharge of a firearm; vehicular hijacking; aggravated vehicular
               hijacking; aggravated battery of a child; intimidation; aggravated intimidation;
               gunrunning; home invasion; or aggravated battery with a firearm; or
                   (3) any violation of the Illinois Controlled Substances Act or the Cannibis
               Control Act that is punishable as a Class 3 felony or higher.” 720 ILCS 5/24-1.7(a)
               (West 2006).
       Black did not raise this issue before the trial court. However, a party may challenge the
       constitutionality of a statute at any time. People v. Bryant, 128 Ill. 2d 448, 454 (1989). We
       review a constitutional challenge to a statute de novo. People v. Dinelli, 217 Ill. 2d 387, 397
       (2005).


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¶ 11        The second amendment to the United States Constitution provides: “A well regulated
       Militia, being necessary to the security of a free State, the right of the people to keep and bear
       Arms, shall not be infringed.” U.S. Const., amend. II. In Wilson v. County of Cook, 2012 IL
       112026, our supreme court discussed the right to keep and bear arms as recognized by the
       United States Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008). Heller
       reasoned that the central component of this second amendment right is “the right of law-
       abiding, responsible citizens to use arms in defense of hearth and home.” Heller, 554 U.S.
       at 635. Our supreme court noted, however, that this right “is not without limitations.” Wilson,
       2012 IL 112026, ¶ 37. Notably, Heller made clear that individuals do not have the right to
       carry any weapon in any manner for any purpose, and therefore limitations on the carrying
       of dangerous or unusual weapons may be upheld as constitutional. Id. Also, “ ‘prohibitions
       on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying
       of firearms in sensitive places such as schools and government buildings, or laws imposing
       conditions and qualifications on the commercial sale of arms’ ” are presumptively lawful.
       Id. ¶ 38 (quoting Heller, 554 U.S. at 626-27). The Court in McDonald v. City of Chicago,
       561 U.S. ___ , ___, 130 S. Ct. 3020, 3050 (2010), reaffirmed Heller’s holding “that the
       Second Amendment protects the right to possess a handgun in the home for the purpose of
       self-defense,” and held that “the Due Process Clause of the Fourteenth Amendment
       incorporates the Second Amendment right recognized in Heller.” In McDonald, the Court
       reiterated its position in Heller that “prohibitions on the possession of firearms by felons and
       the mentally ill” are lawful. (Internal quotation marks omitted.) Id. at ___, 130 S. Ct. at 3047.
¶ 12        Although the Supreme Court did not specify the standard of scrutiny courts should apply
       when addressing second amendment challenges, it did reject a rational basis standard of
       review. See Wilson, 2012 IL 112026, ¶ 42. Accordingly, our appellate courts have applied
       an intermediate scrutiny standard in determining whether a statute violates the second
       amendment right to keep and bear arms. See People v. Ross, 407 Ill. App. 3d 931, 939
       (2011); People v. Aguilar, 408 Ill. App. 3d 136, 146 (2011); People v. Mimes, 2011 IL App
       (1st) 082747, ¶ 74. Intermediate scrutiny review determines whether the challenged statute
       serves a significant, substantial, or important government interest and, if so, whether there
       is a reasonable fit between the statute and the governmental interest. Mimes, 2011 IL App
       (1st) 082747, ¶ 74. Reasonable fit does not necessarily mean perfect fit, but rather it is the
       “[fit] whose scope is ‘in proportion to the interest served.’ ” (Internal quotation marks
       omitted.) Mimes, 2011 IL App (1st) 082747, ¶ 74 (quoting Board of Trustees of the State
       University of New York v. Fox, 492 U.S. 469, 480 (1989)).
¶ 13        This court in Ross addressed the very issue before us: whether the armed habitual
       criminal statute violates the second amendment right to keep and bear arms. It applied
       intermediate scrutiny analysis and noted, as we have discussed, that Heller and McDonald
       found prohibitions on the possession of firearms by felons to be lawful regulatory measures
       used by the government to promote the health, safety, and general welfare of its citizens.
       Ross, 407 Ill. App. 3d at 942. The armed habitual criminal statute reflects the State’s
       “legitimate interest in preventing the danger associated with repeat felons having firearms.”
       People v. Davis, 405 Ill. App. 3d 585, 592 (2010). Ross concluded that the statute “serves
       a substantial governmental interest and is proportional to the interest served.” Ross, 407 Ill.

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       App. 3d at 942. We agree with the determination in Ross and find that the armed habitual
       criminal statute does not violate Black’s second amendment rights.
¶ 14       Black contends that this court should not rely on Heller’s and McDonald’s statements
       about lawfully prohibiting felons from possessing firearms because they were dicta and not
       necessary to the disposition of either case. However, judicial dicta, which involve an issue
       briefed and argued by the parties, “have the force of a determination by a reviewing court and
       should receive dispositive weight in an inferior court.” People v. Williams, 204 Ill. 2d 191,
       206 (2003). The Supreme Court stated in Heller that statutes prohibiting felons from
       possessing firearms are presumptively lawful, and it emphasized the significance of the
       statement by repeating it in McDonald. We do not agree with Black’s contention that the
       statement was nothing more than an “off-hand” reference that should not be followed. See
       also People v. Davis, 408 Ill. App. 3d 747, 750 (2011) (in reviewing a constitutional
       challenge to the armed habitual criminal statute, the court found support in the dicta in
       Heller).
¶ 15       Black also argues that his conviction violates the ex post facto clauses of the Illinois and
       United States Constitutions because one of his qualifying offenses occurred before the
       effective date of the armed habitual criminal statute. Black committed the offense of armed
       habitual criminal on October 17, 2009, by possessing a firearm. The State presented certified
       copies of his convictions for the qualifying offenses of aggravated robbery to which Black
       pled guilty on August 16, 1999, and for unlawful use of a weapon by a felon to which he pled
       guilty on June 26, 2006. Black contends that application of the armed habitual criminal
       statute to him violates the prohibition against ex post facto laws since his prior conviction
       for aggravated robbery, which occurred before the enactment of the statute, was an element
       of the armed habitual criminal offense.
¶ 16       “An ex post facto law is one that (1) makes criminal and punishable an act innocent when
       done; (2) aggravates a crime, or makes it greater than it was when committed; (3) increases
       the punishment for a crime and applies the increases to crimes committed before the
       enactment of the law; or (4) alters the rules of evidence to require less or different evidence
       than required when the crime was committed.” People v. Leonard, 391 Ill. App. 3d 926, 931
       (2009). The prohibition against ex post facto laws stems from “a person’s right to have fair
       warning of conduct giving rise to criminal penalties and punishment.” Leonard, 391 Ill. App.
       3d at 931.
¶ 17       In Leonard, the defendant was convicted of the offense of armed habitual criminal for
       possessing a firearm after having previously been convicted of three qualifying offenses
       committed between 1998 and 2004. Leonard, 391 Ill. App. 3d at 927. Like Black, he argued
       that the armed habitual criminal statute violated the provision against ex post facto laws
       because his prior convictions were used as elements of the offense even though they occurred
       before the enactment of the statute. Leonard, 391 Ill. App. 3d at 930. The court found no ex
       post facto violation, holding that the armed habitual criminal statute did not punish the
       defendant for offenses he committed before the statute was enacted, but instead punished him
       for “the new act of possessing a firearm.” Leonard, 391 Ill. App. 3d at 932. Furthermore, he
       had fair warning at the time he possessed the firearm “that, in combination with his prior
       convictions, he was committing the offense of armed habitual criminal.” Leonard, 391 Ill.

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       App. 3d at 931-32.
¶ 18        In People v. Bailey, 396 Ill. App. 3d 459, 463 (2009), the court cited approvingly to
       Leonard’s holding and analysis. The defendant was convicted under the armed habitual
       criminal statute for possessing firearms in 2006 after having previously been convicted of
       two qualifying offenses in 1997. Bailey, 396 Ill. App. 3d at 461. He contended that the armed
       habitual criminal statute violated the provision against ex post facto laws because his prior
       convictions occurred before the enactment of the statute. Bailey, 396 Ill. App. 3d at 461-62.
       Citing to Leonard, the court in Bailey held that the statute “created a substantive offense that
       punishes a defendant, not for his earlier convictions, but for the new offense created therein.”
       Bailey, 396 Ill. App. 3d at 464. Accordingly, the court held that the armed habitual criminal
       statute did not violate ex post facto prohibitions. Bailey, 396 Ill. App. 3d at 464.
¶ 19        The effective date of the armed habitual criminal statute was August 2, 2005. Black’s
       possession of a firearm occurred on October 17, 2009, after the effective date of the armed
       habitual criminal statute. Therefore, he had fair warning that, in combination with his prior
       convictions for aggravated robbery and unlawful use of a weapon by a felon, he was
       committing the offense of armed habitual criminal. We agree with the well-reasoned
       decisions in Leonard and Bailey and hold that the armed habitual criminal statute does not
       violate constitutional prohibitions against ex post facto legislation.
¶ 20        Black argues that this court should disregard Leonard and Bailey as cases decided in
       contravention of People v. Dunigan, 165 Ill. 2d 235 (1995), and People v. Levin, 157 Ill. 2d
       138 (1993). He argues that the supreme court in Dunigan and Levin upheld the
       constitutionality of a different statute, the Habitual Criminal Act (the Act) (Ill. Rev. Stat.
       1989, ch. 38, ¶ 33B-1 (repealed by Pub. Act 95-1052, § 93 (eff. July 1, 2009))), because prior
       convictions under that statute were used as sentencing factors only, and did not constitute
       elements of a new substantive offense. If the statute had considered the prior convictions as
       elements of a new offense, Black contends, the supreme court would have found an ex post
       facto violation.
¶ 21        We are not persuaded by this argument. Unlike the armed habitual criminal statute here,
       the Habitual Criminal Act at issue in Dunigan and Levin dealt only with sentencing. The Act
       “mandates the imposition of a natural-life sentence on a defendant convicted of three
       temporally separate Class X offenses *** within a 20-year period.” People v. Palmer, 218
       Ill. 2d 148, 154-55 (2006), overruled on other grounds by People v. Petrenko, 237 Ill. 2d 490
       (2010). The supreme court in Dunigan and Levin responded to the defendants’ argument that
       the Act improperly mandated a life sentence as punishment for all the felony offenses,
       including the ones for which they had already been convicted, and as such created a new
       substantive criminal offense. Dunigan, 165 Ill. 2d at 241-42; Levin, 157 Ill. 2d at 149. The
       supreme court disagreed with the defendants’ argument, stating:
            “The punishment imposed under the Act is for the most recent offense only. The penalty
            is made heavier because the person convicted is a habitual criminal. The Act does not
            punish a defendant again for his prior felony convictions, nor are those convictions
            elements of the most recent felony offense. Instead, they simply aggravate or enhance the
            penalty imposed for the third and most recent offense.” Dunigan, 165 Ill. 2d at 242.


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¶ 22       The decisions in Dunigan and Levin do not expressly prohibit the use of prior convictions
       as elements of an offense in all habitual criminal legislation. Instead, “they merely indicated
       that the statute in question in those cases was a sentencing enhancement, not a substantive
       offense. [Citations.] In contrast, the armed habitual criminal statute [at issue here] ***
       creates a substantive offense which punishes a defendant, not for his or her earlier
       convictions, but for the new offense.” Leonard, 391 Ill. App. 3d at 932. We agree with the
       reasoning of the Leonard and Bailey courts, and find Black’s argument unavailing.
¶ 23       Black’s final contention is that the trial court erroneously assessed to him fines, fees, and
       costs of $335. Specifically, Black challenges $200 for the State DNA identification system,
       $100 for the trauma fund, and a $5 court system fee. He also alleges that the trial court failed
       to credit him for time served prior to sentencing against the $30 Children’s Advocacy Center
       assessment, which is a fine subject to such credit. The State agrees with Black that his fines,
       fees, and costs should be reduced by $335.
¶ 24       For the foregoing reasons, we affirm Black’s conviction and sentence but modify the
       judgment of the circuit court to reduce the fines, fees, and costs assessed to Black by $335.

¶ 25       Affirmed as modified.




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