                                       2015 IL 117789



                                          IN THE
                                 SUPREME COURT
                                              OF
                           THE STATE OF ILLINOIS



                                     (Docket No. 117789)

          THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JAMES F.
                            SCHWEIHS, Appellee.


                               Opinion filed December 3, 2015.



        JUSTICE THEIS delivered the judgment of the court, with opinion.

        Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and
     Burke concurred in the judgment and opinion.



                                          OPINION

¶1        In this appeal, we consider whether section 24-1.6(a)(1), (a)(3)(C) of the
     Aggravated Unlawful Use of a Weapon statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(C)
     (West 2012)), violates the proportionate penalties clause of the Illinois Constitution
     (Ill. Const. 1970, art. I, § 11), and the equal protection clauses of the United States
     and Illinois Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2).
     For the following reasons, we hold that it does not. We reverse the order of the
     circuit court and remand for further proceedings.
¶2                                    BACKGROUND

¶3       In October 2012, defendant James Schweihs was charged in a five-count
     indictment in the circuit court of Kane County with two counts of aggravated
     unlawful use of a weapon (AUUW), one count of violating the Firearm Owners
     Identification Card Act (FOID Card Act), and two counts of domestic battery for
     striking Patricia Schweihs. Relevant to this appeal, count I of the indictment
     alleged that defendant committed the offense of AUUW by violating section
     24-1.6(a)(1), (a)(3)(C) (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2012)), in that
     defendant knowingly carried or concealed in a motor vehicle a .45-caliber handgun,
     at a time when he was not on his own land, and at the time he carried it he had not
     been issued a currently valid FOID card. Count II of the indictment alleged that
     defendant committed the offense of AUUW by violating section 24-1.6(a)(1),
     (a)(3)(A) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2012)) because he knowingly
     carried or concealed a handgun in a motor vehicle and the handgun was uncased,
     loaded, and immediately accessible to him at the time.

¶4        Thereafter, defendant filed a motion to dismiss the AUUW charges, asserting
     that the statute violated the second amendment of the United States Constitution.
     Following this court’s opinion in People v. Aguilar, 2013 IL 112116 (which
     invalidated section 24-1.6(a)(1), (a)(3)(A)), count II was dismissed. The circuit
     court then granted defendant’s motion to dismiss count I. The court determined that
     in light of Aguilar, the substantive elements of the AUUW offense under which he
     was indicted (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2012)), were the same as
     the substantive elements of a violation of the FOID Card Act (430 ILCS 65/2 (West
     2012)), but that the AUUW statute punished possession of a firearm without a
     FOID card as a Class 4 felony (720 ILCS 5/24-1.6(d) (West 2012)), and the FOID
     Card Act punished possession of a firearm without a FOID card as a Class A
     misdemeanor (430 ILCS 65/14(b) (West 2012)). Therefore, although not raised by
     defendant as the basis for his motion to dismiss, the circuit court sua sponte held
     that the penalties for the two offenses were unconstitutionally disproportionate.
     The court concluded that the appropriate remedy was to dismiss the charge.

¶5        Thereafter, the State filed a notice of appeal, together with a certificate of
     impairment. The matter was subsequently transferred to this court pursuant to
     Illinois Supreme Court Rules 365 and 603 (Ill. S. Ct. R. 365 (eff. Feb. 1, 1994);
     R. 603 (eff. Feb. 6, 2013)) as a matter of right. This court then granted the State’s


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     motion to remand to the circuit court for compliance with Illinois Supreme Court
     Rule 18 (eff. Sept. 1, 2006).

¶6       On remand, the circuit court issued its written order, declaring section
     24-1.6(a)(1), (a)(3)(C) unconstitutional based on a violation of the proportionate
     penalties clause. The court reasoned that after Aguilar, the triggering elements in
     section 24-1.6(a)(1) violated the constitution, and that there was no longer any legal
     significance between carrying a firearm on the street or in a vehicle versus on one’s
     own land because the possession of a loaded firearm in either location was conduct
     protected by the second amendment. Based upon that finding, the court concluded
     that the only illegal behavior constitutionally prohibited was that defendant had
     possessed a firearm without having been issued a valid FOID card under subsection
     (a)(3)(C), which was identical to the elements of a violation of the FOID Card Act,
     but imposed a harsher penalty. Additionally, without any legal analysis, the court
     declared that section 24-1.6(a)(1), (a)(3)(C) violated equal protection guarantees
     under the United States and Illinois Constitutions.



¶7                                        ANALYSIS

¶8        Initially, defendant raises an issue of this court’s jurisdiction over this appeal.
     Defendant contends that the matter is not properly before this court on the State’s
     filing of a certificate of impairment under Illinois Supreme Court Rule 604(a)(1)
     (eff. Feb. 6, 2013) because the circuit court’s ruling only impaired one count of the
     indictment, and nothing impaired the State’s ability to prosecute the remaining
     counts of the indictment. However, the State subsequently filed a motion in the
     appellate court to transfer the case to this court pursuant to Illinois Supreme Court
     Rule 603 (eff. Feb. 6, 2013).

¶9       Rule 603 provides that “[a]ppeals in criminal cases in which a statute *** of
     this State has been held invalid shall lie directly to the Supreme Court as a matter of
     right.” Ill. S. Ct. R. 603 (eff. Feb. 6, 2013). It was on that basis that the appellate
     court transferred the cause according to Illinois Supreme Court Rule 365 (eff. Feb.
     1, 1994) (authorizing courts of review to transfer cases that have been appealed to
     the wrong court). Here, there is no dispute that the circuit court’s ruling invalidated
     a statute of this state. Accordingly, our jurisdiction over the appeal is proper under
     Rule 603. See, e.g., People v. Sharpe, 216 Ill. 2d 481, 486 (2005); People v. Miller,

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       202 Ill. 2d 328, 334-35 (2002); People v. Garcia, 199 Ill. 2d 401, 402 (2002);
       People v. Espinoza, 184 Ill. 2d 252, 255 (1998).

¶ 10       With respect to the constitutionality of the statute, we begin by noting that the
       question of whether a statute is unconstitutional is a question of law, which this
       court reviews de novo. People v. Richardson, 2015 IL 118255, ¶ 8. All statutes are
       presumed constitutional, and the party challenging the constitutionality of a statute
       has the burden of clearly establishing that it violates the constitution. Id. Article I,
       section 11, of the Illinois Constitution provides that “[a]ll penalties shall be
       determined both according to the seriousness of the offense and with the objective
       of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. A
       proportionate penalties violation, under the identical elements test, occurs when
       “two offenses have identical elements but disparate sentences.” (Internal quotation
       marks omitted.) People v. Blair, 2013 IL 114122, ¶ 32. We have explained that
       applying different penalties for identical elements violates the proportionate
       penalties clause because “[i]f the legislature determines that the exact same
       elements merit two different penalties, then one of these penalties has not been set
       in accordance with the seriousness of the offense.” Sharpe, 216 Ill. 2d at 522.

¶ 11       The State contends that there is no proportionate penalties violation here
       because the offense of AUUW requires proof of different elements than those
       required to prove a violation of the FOID Card Act. Thus, we begin our analysis by
       setting forth the two statutes at issue.

¶ 12      In relevant part, section 24-1.6 provides as follows:

             “(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, or on the land or in the
              legal dwelling of another person as an invitee with that person’s permission,
              any pistol, revolver, stun gun or taser or other firearm; [and]

                  ***

                  (3) One of the following factors is present:

                                                      ***
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                      (C) the person possessing the firearm has not been issued a currently
                  valid Firearm Owner’s Identification Card[.]” 720 ILCS 5/24-1.6(a)(1),
                  (a)(3)(C) (West 2012).

¶ 13      Section 2(a)(1) of the FOID Card Act provides as follows:

              “(a)(1) No person may acquire or possess any firearm, stun gun, or taser
          within this State without having in his or her possession a Firearm Owner’s
          Identification Card previously issued in his or her name by the Department of
          State Police under the provisions of this Act.” 430 ILCS 65/2(a)(1) (West
          2012).

¶ 14       We recently considered and rejected the argument that these two statutes have
       identical elements in People v. Williams, 2015 IL 117470. There, we explained that
       to prove the offense of AUUW, the State is required to establish that defendant
       knowingly carried on his person or in any vehicle, outside the home, a firearm
       without having been issued a valid FOID card. In contrast, to prove a violation of
       the FOID Card Act, the State need only prove possession of a firearm without a
       FOID card. Id. ¶ 14. Thus, in Williams we found that the AUUW statute requires
       proof of an additional location element that is not required under the FOID Card
       Act. Id. We noted that a violation of the FOID Card Act can occur in one’s home,
       but that such conduct would not be a violation of the AUUW statute. Id. Because
       AUUW has this additional location element, we determined that the offense of
       AUUW and a violation of the FOID Card Act are not identical. Accordingly, we
       held that without identical elements, there can be no proportionate penalties
       violation. Id.

¶ 15       Additionally, as we did in Williams (id. ¶ 16), we reject defendant’s argument
       predicated on the trial court’s notion that in Aguilar this court invalidated the
       “triggering threshold elements” of section 24-1.6(a)(1) of the AUUW statute,
       including the location element. In Aguilar we held that the form of AUUW set forth
       in section 24-1.6(a)(1), (a)(3)(A) violated the second amendment right to keep and
       bear arms because it operated as an absolute ban on an individual’s otherwise legal
       right to possess a gun for self-defense outside the home. Aguilar, 2013 IL 112116,
       ¶ 21. Nevertheless, as we reiterated in Williams, we explicitly held that “ ‘[o]f
       course, in concluding that the second amendment protects the right to possess and
       use a firearm for self-defense outside the home, we are in no way saying that such a
       right is unlimited or is not subject to meaningful regulation.’ ” Williams, 2015 IL

                                              -5-
       117470, ¶ 16 (quoting Aguilar, 2013 IL 112116, ¶ 21). Notably, in Aguilar we did
       not invalidate any other section or subsection of the AUUW statute. Aguilar, 2013
       IL 112116, ¶ 22 n.3.

¶ 16       Thereafter, in People v. Mosley, 2015 IL 115872, ¶ 61, we clarified that the
       location element in section 24-1.6(a)(1) of the AUUW statute is constitutional and
       enforceable when combined with subsection (a)(3)(C), and is severable from the
       provision found unconstitutional in Aguilar. Mosley, 2015 IL 115872, ¶ 31 (“[W]e
       believe that subsections (a)(1), (a)(2), and the remaining factors in subsection (a)(3)
       can stand independently of subsection (a)(3)(A), which is only one of several
       factors that operate in conjunction with subsection (a)(1) or (a)(2) to comprise the
       substantive offense. [Citation.]” (Internal quotation marks omitted.)). Thus,
       contrary to the circuit court’s ruling, the location element in section 24-1.6(a)(1)
       remains a viable element of the AUUW statute when combined with subsection
       (a)(3)(C). Accordingly, we find no proportionate penalties violation.

¶ 17       With respect to the trial court’s separate sua sponte ruling that section
       24-1.6(a)(1), (a)(3)(C) violates equal protection, we begin by noting that the basis
       for the trial court’s finding was not articulated in the Rule 18 order. The difficult
       task of reviewing a circuit court’s decision to invalidate a statute is made that much
       more difficult when the ruling is conclusory and unsupported by any legal analysis
       or explanation. People v. Cornelius, 213 Ill. 2d 178, 189 (2004). We reiterate that
       “[w]hen a circuit court does something as serious as holding that a statute violates
       the constitution, then the circuit court must also be mindful to clearly state *** the
       legal basis for that ruling.” Id. Furthermore, defendant now concedes that our
       decision in Mosley “eliminated the viability of an Equal Protection argument.”

¶ 18       To the extent that the circuit court’s ruling appears to be intertwined with the
       proportionate penalties argument, we have previously held that when a defendant’s
       conduct violates more than one statute, each of which requires different proof, a
       defendant is not denied equal protection if he is prosecuted under the statute which
       provides the greater penalty. People v. Jamison, 197 Ill. 2d 135, 161-62 (2001);
       People v. McCollough, 57 Ill. 2d 440, 444 (1974).




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¶ 19                                      CONCLUSION

¶ 20       For the foregoing reasons, the order of the circuit court of Kane County, which
       declared unconstitutional section 24-1.6(a)(1), (a)(3)(C) of the AUUW statute, and
       which dismissed count I of the indictment, is reversed, and the cause is remanded to
       the circuit court for further proceedings.



¶ 21      Circuit court order reversed.

¶ 22      Cause remanded.




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