                                  Illinois Official Reports

                                          Appellate Court



                              People v. Neely, 2013 IL App (1st) 120043




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


District & No.               First District, Second Division
                             Docket No. 1-12-0043



Filed                        November 12, 2013



                             On appeal from defendant’s conviction for unlawful use of a weapon
Held
                             by a felon, defendant’s contentions that the statute creating the offense
(Note: This syllabus
                             was unconstitutional and that the trial court abused its discretion in
constitutes no part of the
opinion of the court but     admitting his prior convictions for murder and possession of a
has been prepared by the     controlled substance for impeachment purposes were rejected, since
Reporter of Decisions        the second amendment right to possess and use a firearm outside the
for the convenience of       home for self-defense is not unlimited and laws may prohibit felons
the reader.)                 from possessing firearms, and the record showed the trail court was
                             aware of the Montgomery rule, a conviction beyond the 10-year
                             limitation period was excluded, and there was no indication the
                             balancing test was not properly applied.


Decision Under               Appeal from the Circuit Court of Cook County, No. 11-CR-8060; the
Review                       Hon. Joseph G. Kazmierski, Jr., Judge, presiding.




Judgment                     Affirmed.


Counsel on                   Michael J. Pelletier, Alan D. Goldberg, and Lauren A. Bauser, all of
     Appeal                   State Appellate Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              Carol L. Gaines, and Jessica R. Ball, Assistant State’s Attorneys, of
                              counsel), for the People.




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


                                               OPINION


¶1          Following a bench trial, defendant Orlando Neely was convicted of unlawful use of a
       weapon by a felon (UUWF) and sentenced to three years’ imprisonment. On appeal,
       defendant contends that his conviction for UUWF must be vacated because the statute
       creating the offense violates the second amendment right to bear arms for self-defense.
       Defendant also contends that the trial court abused its discretion by admitting his prior
       convictions for impeachment purposes without determining whether the danger of unfair
       prejudice substantially outweighed their probative value. We affirm.
¶2          Defendant was charged with two counts of UUWF (counts I and II) and one count of
       aggravated unlawful use of a weapon (AUUW) (count III) stemming from an incident on
       May 8, 2011, where police stopped the vehicle defendant was riding in for a broken taillight.
       During a search of the vehicle, police recovered a gun that, according Officer Fetzer,
       defendant admitted belonged to him.
¶3          At trial, Officer Matthew Fetzer testified that at about 11:39 p.m. on May 8, 2011, he was
       in a squad car with his partners, Officers Tim Bubacz and Jimmy Sherlock, in the vicinity of
       6306 South Damen Avenue in Chicago. As they were driving, Fetzer saw a vehicle, which
       had four people inside including defendant who was in the rear passenger seat, with a broken
       taillight. The officers pulled over the vehicle, and one of Fetzer’s partners asked the driver
       for his license. The driver gave police a suspended driver’s license. The police ordered
       everyone to exit the car, and Fetzer performed a custodial search of the vehicle because it
       was about to be towed. During the search, Fetzer found a loaded handgun on the floor of the
       rear passenger seat, and the four occupants of the vehicle were arrested. Defendant was
       transported to the police station and advised of his Miranda rights. Defendant told Fetzer that
       the recovered gun belonged to him, and that he had it for protection because he had been shot
       at a few days before. After the parties stipulated that defendant had a 1992 murder
       conviction, the State rested.

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¶4          Defendant testified that after 11 p.m. on May 8, 2011, his nephew, who was driving a
       vehicle with two passengers inside, picked him up and he sat in the rear passenger seat.
       Defendant did not notice any guns in the vehicle. Shortly thereafter, the police stopped the
       vehicle and asked the occupants to get out of the car. The police then searched the vehicle,
       arrested defendant, and transported him to the police station. At the station, police asked
       defendant if he owned the gun in question, and he responded negatively. He also denied
       telling police that he had contact with a gun inside of the vehicle, that he had been shot at
       recently, and that he had the gun for protection.
¶5          In rebuttal, the State offered into evidence the previously received 1992 murder
       conviction, a 1992 conviction for possession of a controlled substance, and a 2006 conviction
       for possession of a controlled substance. Defense counsel conceded that the 2006 possession
       conviction was admissible, but noted that the 1992 conviction for possession of a controlled
       substance was over 10 years old and thus inadmissible. The State agreed and the court
       received the 2006 possession conviction and the 1992 murder conviction, for which
       defendant received a 25-year sentence. 1
¶6          Following argument, the court found defendant guilty of both counts of UUWF and the
       one count of AUUW. In doing so, the court stated that the evidence was conflicting with
       regard to possession, but noted that it made a credibility determination after assessing all of
       the evidence. In sentencing defendant to three years’ imprisonment, the court merged counts
       II (UUWF) and III (AUUW) into count I (UUWF). The court specifically stated during
       sentencing that defendant would only be sentenced on Count 1, as the mittimus also reflects.
¶7          On appeal, defendant contends that his conviction for UUWF must be vacated because
       the statute creating the offense (720 ILCS 5/24-1.1 (West 2010)) violates the constitutional
       right to bear arms for self-defense.
¶8          Our review of the constitutionality of a statute is de novo (People v. Davis, 408 Ill. App.
       3d 747, 749 (2011)), and a challenge to the constitutionality of a criminal statute may be
       raised for the first time on appeal (People v. Marin, 342 Ill. App. 3d 716, 722 (2003)).
       Because we assume that a statute is constitutional, the defendant has the burden of showing
       the constitutional violation. People v. Sole, 357 Ill. App. 3d 988, 991 (2005).
¶9          The second amendment provides that, “[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.
¶ 10        The relevant provisions in the UUWF statute state:
                “It is unlawful for a person to knowingly possess on or about his person *** any
                firearm *** if the person has been convicted of a felony ***.” 720 ILCS 5/24-1.1(a)
                (West 2010).
¶ 11        After the parties filed their briefs in this case, our supreme court held that the second
       amendment protects a person’s right to keep and bear arms for self-defense. People v.
              1
                The uncontested admission of the 1992 murder conviction was proper because the 10-year
       time period is based on the release of the witness from confinement. See infra ¶ 19.

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       Aguilar, 2013 IL 112116, ¶¶ 21-22. Accordingly, the supreme court held that the aggravated
       unlawful use of weapons statute was unconstitutional on its face where it banned the
       possession and use of a firearm for self-defense outside the home. Id.
¶ 12        However, the supreme court emphasized that it was “in no way saying that such a right is
       unlimited or is not subject to meaningful regulation” (id. ¶ 21) and expressly recognized that
       laws can prohibit felons from possessing firearms:
                        “ ‘Like most rights, the right secured by the Second Amendment is not
                    unlimited. From Blackstone through the 19th-century cases, commentators and
                    courts routinely explained that the right was not a right to keep and carry any
                    weapon whatsoever in any manner whatsoever and for whatever purpose.’
                    [Citation.]
                *** ‘[N]othing in our opinion should be taken to cast doubt on longstanding
                prohibitions on the possession of firearms by felons ***.’ ” Id. ¶ 26 (quoting District
                of Columbia v. Heller, 554 U.S. 570, 626 (2008)).
       As such, according to our supreme court ruling in Aguilar, the State has a valid interest in
       preventing felons from possessing firearms. Therefore, defendant’s arguments to the contrary
       fail, and the UUWF statute is valid.
¶ 13        In reaching this conclusion, we note that defendant also argues that his conviction for
       AUUW is unconstitutional and should be vacated. We acknowledge Aguilar held that, on its
       face, the AUUW statute (720 ILCS 5/24-1.6(a), (a)(3)(A) (West 2010)) violates the right to
       keep and bear arms, as guaranteed by the second amendment. Aguilar, 2013 IL 112116, ¶ 22.
       However, defendant’s challenge to his AUUW conviction is not properly before this court.
¶ 14        The supreme court has long held that “it is axiomatic that there is no final judgment in a
       criminal case until the imposition of sentence, and, in the absence of a final judgment, an
       appeal cannot be entertained.” People v. Flores, 128 Ill. 2d 66, 95 (1989). Nonetheless, the
       supreme court has also held that this court should entertain jurisdiction where a greater
       conviction is vacated so that a nonfinal, unsentenced conviction can be reinstated. People v.
       Dixon, 91 Ill. 2d 346, 353-54 (1982). This holding, however, is applicable in somewhat
       limited factual circumstances. See People v. Ramos, 339 Ill. App. 3d 891, 906 (2003) (“we
       believe that Dixon must be narrowly construed as not sanctioning the *** review of
       unappealed and unsentenced convictions when the greater offense has not been reversed and
       vacated”); accord Aguilar, 2013 IL 112116, ¶¶ 7, 24, 28, 30 (the AUUW conviction was
       reversed; the unsentenced conviction for unlawful possession of a firearm (UPF) was
       affirmed and the cause was remanded for imposition of sentence on the UPF conviction).
¶ 15        Here, no sentence was imposed on defendant’s AUUW conviction. Instead, the trial court
       merged that conviction into, and then imposed sentence upon, the UUWF conviction.
       Moreover, defendant’s UUWF conviction has not been reversed. As a result, no challenge to
       his unsentenced conviction for AUUW is properly before us. Therefore, we will not consider
       defendant’s challenges to his unsentenced AUUW conviction.
¶ 16        Defendant next contends that the trial court abused its discretion by admitting defendant’s
       prior convictions, i.e., a 1992 murder and a 2006 possession of a controlled substance, for
       impeachment purposes without determining whether the danger of unfair prejudice
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       substantially outweighed any probative value of the convictions. He maintains that under the
       circumstances of this case, the trial court’s omission constituted plain error under the closely
       balanced evidence prong.
¶ 17        In so arguing, defendant anticipates the State’s initial response that he has forfeited this
       issue by failing to object to the admission of these convictions at trial or raise it in his motion
       for a new trial. People v. Enoch, 122 Ill. 2d 176, 186 (1988). In addition, the State asserts that
       plain error review is unwarranted in this case because the evidence was not closely balanced.
       People v. Herron, 215 Ill. 2d 167, 186-87 (2005). To address this contention, we must first
       determine whether any error occurred, which entails a substantive look at the issue raised.
       People v. Naylor, 229 Ill. 2d 584, 593 (2008).
¶ 18        The rule adopted by our supreme court in People v. Montgomery, 47 Ill. 2d 510, 516
       (1971), provides that evidence of a witness’s prior conviction is admissible to attack his
       credibility where: (1) the prior crime was punishable by death or imprisonment in excess of
       one year, or involved dishonesty or false statement regardless of the punishment; (2) less
       than 10 years have elapsed since the date of conviction of the prior crime or release of the
       witness from confinement, whichever is later; and (3) the probative value of admitting the
       prior conviction outweighs the danger of unfair prejudice. This last factor involves a
       balancing test where the trial court determines the probative value of the convictions and
       weighs that against the danger of unfair prejudice. People v. Atkinson, 186 Ill. 2d 450, 456
       (1999). The trial court’s decision as to the admissibility of a conviction for impeachment
       purposes will not be reversed absent an abuse of discretion. People v. Dixon, 308 Ill. App. 3d
       1008, 1017 (1999).
¶ 19        Our supreme court has urged trial courts to avoid mechanically applying the Montgomery
       rule to admit all types of convictions, but it has not held that the trial court must explicitly
       discuss its consideration of the balancing test on the record. People v. Mullins, 242 Ill. 2d 1,
       16 (2011); People v. Williams, 161 Ill. 2d 1, 39 (1994). Absent an express indication that the
       trial court was unaware of its obligation to balance these factors, a reviewing court will
       assume that the trial court gave the factors appropriate consideration. People v. Watkins, 206
       Ill. App. 3d 228, 245 (1990).
¶ 20        Here, the trial court was aware of the Montgomery rule. The record shows that the trial
       court considered whether defendant’s prior convictions fell within the 10-year limitation
       period. In receiving two of defendant’s prior convictions, the court noted that it was
       excluding his 1992 possession of a controlled substance conviction because it was beyond
       the 10-year limit. Moreover, there is no indication in the record that the trial court did not
       properly perform the balancing test. The fact that the trial court here was aware of the
       Montgomery rule and properly applied it distinguishes this case from People v. Whirl, 351 Ill.
       App. 3d 464 (2004), relied on by defendant. See Whirl, 351 Ill. App. 3d at 467 (in
       announcing its decision to virtually admit the defendant’s entire criminal history, the court
       affirmatively misstated the law, preventing it from meaningfully exercising its discretion).
¶ 21        Alternatively, defendant argues that even if the court had properly considered the
       Montgomery factors, defendant’s prior convictions for possession of a controlled substance
       and murder should not have been admitted because they did not bear directly on his
                                                    -5-
       truthfulness as a witness. We disagree. Prior drug-related convictions may indeed be
       admissible and probative of a witness’s credibility in appropriate circumstances. See People
       v. Walker, 157 Ill. App. 3d 133, 136-37 (1987) (stating that “Illinois courts consistently have
       determined that a conviction for the unlawful possession or delivery of controlled substances
       would be the type of conviction which would be probative of credibility and would afford a
       basis for impeaching credibility”). In addition, this court has found prior convictions for
       crimes other than for an offense based on dishonesty as indicative of truthfulness and thus
       admissible. See People v. Williams, 230 Ill. App. 3d 761, 784-85 (1992) (admitting prior
       murder conviction in a murder case). We thus find that the trial court did not abuse its
       discretion in admitting defendant’s prior convictions.
¶ 22       For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 23      Affirmed.




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