FIFTH DIVISION September 30, 2014

No. 1-13-2681

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 12 CR 15882 ) NICHOLAS CLAXTON, ) Honorable ) James B. Linn, Defendant-Appellant. ) Judge Presiding.

JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Gordon concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial, defendant Nicholas Claxton was convicted of unlawful use of a

weapon by a felon (UUWF) and sentenced to 10 years' imprisonment. On appeal, defendant

contends that his conviction must be reversed because his only prior felony conviction is for a

version of aggravated unlawful use of a weapon (AUUW) that has been found facially

unconstitutional. For the reasons stated below, we reverse.

¶2 Defendant was charged with multiple counts of UUWF for possessing on his person a

firearm and ammunition on or about July 28, 2012, and for possessing on his land, abode, or

person a firearm and ammunition between July 28 and August 4, 2012. All counts alleged that

he did so while having been convicted of AUUW in case No. 11 CR 16293, and all sought a

Class X sentence on an allegation that he committed UUWF while possessing body armor.

Defendant was also charged with cyberstalking for sending "picture texts" as described below to

Herbert Brown that he knew or should have known would cause a reasonable person to fear for

his safety or the safety of another and to suffer emotional distress. No. 1-13-2681

¶3 Defendant filed a motion to dismiss the UUWF charges, citing Moore v. Madigan,

(7th Cir. 2012), finding the UUW and AUUW statutes unconstitutional. Noting that

the ramifications of the federal decision were uncertain (the court of appeals had stayed its

mandate to allow the legislature to amend the statutes) the court denied dismissal.

¶4 At trial, the evidence showed that defendant "texted" to his former coworker Brown a

photograph of himself wearing a bulletproof vest and holding a shotgun. A search of defendant's

home with the consent of a woman with whom he was living disclosed a bag containing a loaded

shotgun, loose ammunition and a vest. The woman testified to seeing the bag, shotgun, and vest

in their home before the search. Testing showed that the vest contained "ballistic-grade high-

strength fibers" and ceramic armor plates suitable to stop 7.62-millimeter rifle-fired ammunition.

On this evidence, the jury found defendant guilty of UUWF of a firearm and UUWF of

ammunition, also finding that he possessed body armor during these offenses, while finding him

not guilty of cyberstalking.

¶5 In his unsuccessful posttrial motion, defendant argued the unconstitutionality under

Moore of his predicate conviction for AUUW.

¶6 In case No. 11 CR 16293, defendant was charged with and tried upon two counts of

AUUW based on having an "uncased, loaded, and immediately accessible" firearm on his person

outside his land or abode on a public way. 720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(2), (a)(3)(A)

(West 2010). While he was also charged with aggravated discharge, the court granted a directed

finding on that charge. Defendant's only prior offenses other than AUUW (with a sentence of 18

months' probation) were for reckless conduct and misdemeanor theft, for which defendant

received supervision.

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¶7 Following arguments in aggravation and mitigation, the court sentenced defendant to the

minimum sentence of 10 years' imprisonment for the Class X offense of UUWF while wearing

body armor. This appeal timely followed.

¶8 On appeal, defendant contends that his UUWF conviction must be reversed because his

only prior felony conviction is for a version of AUUW found facially unconstitutional by the

Illinois Supreme Court. The State responds that it proved beyond a reasonable doubt that

defendant was a convicted felon when he possessed a firearm and ammunition in 2012 as

charged, and the State challenges our jurisdiction to consider the validity of the prior AUUW

conviction. Defendant replies that his AUUW conviction is void ab initio and cannot serve as

the predicate for his UUWF conviction, so that we have jurisdiction to consider the validity of

the AUUW conviction insofar as it underpins the instant UUWF conviction.

¶9 As of 2011, the time of defendant's offense in case No. 11 CR 16293, the UUW statute

prohibited a person from carrying or concealing on or about his person, or in any vehicle, a

firearm except when on his land or in his abode or fixed place of business (720 ILCS

5/24-1(a)(4) (West 2010)) while the AUUW statute prohibited the same with any of various

additional factors, including that the firearm "was uncased, loaded and immediately accessible."

720 ILCS 5/24-1.6(a)(3)(A) (West 2010). Specifically, sections 24-1.6(a)(1) and (a)(2)

concerned when a person either:

"(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 or fixed place of business *** [a]

firearm; or

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(2) Carries or possesses on or about his or her person, upon

any public street, alley, or other public lands within the corporate

limits of a city, village or incorporated town, except when an

invitee thereon or therein, for the purpose of the display of such

weapon or the lawful commerce in weapons, or except when on his

or her own land or in his or her own abode or fixed place of

business *** [a] firearm." 720 ILCS 5/24-1.6(a)(1), (a)(2) (West

2010).

¶ 10 In Moore, the United States Court of Appeals for the Seventh Circuit found the UUW and

AUUW statutes unconstitutional. The United States Supreme Court has found that the second

amendment creates a personal right, binding upon the states through the fourteenth amendment

(U.S. Const., amend. XIV, ' 1), "to keep and bear arms for lawful purposes, most notably for

self-defense within the home." McDonald v. City of Chicago,

, ___,

(2010) (citing District of Columbia v. Heller,

(2008)). The Seventh

Circuit found in Moore that the "right to bear arms for self-defense *** is as important outside

the home as inside," found that the UUW and AUUW statutes create a "uniquely sweeping ban,"

and remanded the case to the federal district court for declarations of unconstitutionality and

injunctive relief. Moore,

. The Seventh Circuit noted that the right to keep and

bear arms does not preclude "the usual prohibitions of gun ownership by children, felons, illegal

aliens, lunatics, and in sensitive places such as public schools, the propriety of which was not

questioned in Heller." Moore,

(citing Heller,

). However, the

UUW and AUUW statutes create "a flat ban on carrying ready-to-use guns outside the home."

Moore,

. The Seventh Circuit stayed its mandate "to allow the Illinois legislature

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to craft a new gun law that will impose reasonable limitations, consistent with the public safety

and the Second Amendment as interpreted in this opinion, on the carrying of guns in public."

Moore,

. The General Assembly has since amended the UUW and AUUW

statutes pursuant to Moore. Pub. Act 98-0063 (eff. July 9, 2013).

¶ 11 In People v. Aguilar,

, our supreme court recently decided to follow

Moore in that "neither Heller nor McDonald expressly limits the second amendment's

protections to the home," holding that "on its face, the Class 4 form of section 24-1.6(a)(1),

(a)(3)(A), (d) violates the right to keep and bear arms, as guaranteed by the second amendment to

the United States Constitution." Aguilar,

.

"Of 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. [Citation.]

That said, we cannot escape the reality that, in this case, we are

dealing not with a reasonable regulation but with a comprehensive

ban. Again, in the form presently before us, the Class 4 form of

section 24-1.6(a)(1), (a)(3)(A), (d) categorically prohibits the

possession and use of an operable firearm for self-defense outside

the home. In other words, the Class 4 form of section 24-1.6(a)(1),

(a)(3)(A), (d) amounts to a wholesale statutory ban on the exercise

of a personal right that is specifically named in and guaranteed by

the United States Constitution, as construed by the United States

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Supreme Court. In no other context would we permit this, and we

will not permit it here either." Id. ¶ 21.

The Aguilar court also affirmed as constitutional a conviction for possessing a concealable

firearm while under 18 years of age (720 ILCS 5/24-3.1(a)(1) (West 2008)), finding that the

constitutional right to keep and bear arms does not extend to minors. Aguilar,

.

¶ 12 Since Moore and Aguilar, this court has followed the direction therein regarding firearm

possession by felons and upheld convictions for UUWF and for the Class 2 form of AUUW; that

is, AUUW by a felon. People v. Moore,

; People v. Soto,

; People v. Campbell,

; People

v. Burns,

, appeal allowed, No. 117387 (Ill. May 28, 2014); People v.

Neely,

; People v. Garvin,

, ¶¶ 12-

16; but see People v. Gayfield,

(vacating conviction for Class 2

AUUW).

¶ 13 Also since Aguilar, this court has considered the issue raised here: whether a conviction

for UUWF may stand where the defendant's predicate felony is a version of UUW or AUUW

that is unconstitutional under Aguilar.

¶ 14 In People v. McFadden,

, appeal allowed, No. 117424 (Ill.

May 28, 2014), we vacated a UUWF conviction where the predicate felony was Class 4 AUUW,

agreeing with the defendant that "under Aguilar, the State could not rely on this now-void

conviction to serve as a predicate offense for UUW by a felon. Therefore, it failed to prove an

essential element of the offense." Id. ¶ 38. Because the prior felony conviction is an element of

UUWF that must be proven beyond a reasonable doubt by the State, we held that a void

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conviction for the Class 4 form of AUUW found unconstitutional in Aguilar cannot serve as a

predicate offense. Id. ¶¶ 42-43 (citing People v. Walker,

(2004)). While we

found that "because defendant's case is pending on direct appeal in this court, *** we cannot

ignore Aguilar's effects on his conviction for UUW by a felon," we refrained from "vacating

defendant's AUUW conviction *** pursuant to Aguilar" and "decline[d] to address whether

formal proceedings for collateral relief may be available to defendant to vacate his conviction in

that case." Id. ¶¶ 41, 44.

¶ 15 In People v. Fields,

, the defendant argued that his armed

habitual criminal conviction must be reversed in light of Aguilar; that is, because his prior

conviction for Class 4 AUUW is void under Aguilar, the State could not rely on it as a predicate

offense for armed habitual criminal so that it failed to prove an element of the offense of armed

habitual criminal. Id. ¶¶ 38-39. We held:

"[W]e cannot allow defendant's 2005 Class 4 AUUW conviction,

which we now know is based on a statute that was found to be

unconstitutional and void ab initio in Aguilar to stand as a

predicate offense for defendant's armed habitual criminal

conviction, where the State is required to prove each element of the

Class 4 AUUW beyond a reasonable doubt. A void conviction for

the Class 4 form of AUUW found to be unconstitutional in Aguilar

cannot now, nor can it ever, serve as a predicate offense for any

charge. Because the issue was raised while defendant's appeal was

pending, we are bound to apply Aguilar and vacate defendant's

armed habitual criminal conviction because the State could not

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prove an element of the offense of armed habitual criminal through

the use of a predicate felony conviction that is void ab initio." Id.

¶ 44.

As in McFadden, we "emphasize[d] that we are not vacating defendant's AUUW conviction ***

pursuant to Aguilar. We decline to address whether formal proceedings for collateral relief may

be available to defendant to vacate his 2005 felony UUW conviction." Id. ¶ 45.

¶ 16 Here, as noted above, the State has contended that we lack jurisdiction to review

defendant's AUUW conviction. However, defendant is timely and directly appealing his UUWF

conviction on the contention that it cannot stand if the predicate felony, his AUUW conviction, is

void ab initio. A statute declared unconstitutional on its face is void ab initio; that is, "was

constitutionally infirm from the moment of its enactment and, therefore, is unenforceable."

People v. Davis,

. We followed this principle in Fields and McFadden,

finding that we could consider the effect of the prior or predicate conviction on the presently-

appealed conviction while refusing to grant relief upon the prior conviction itself. We find that

the clear effect of Aguilar in light of Davis (void ab initio) and Walker (predicate felony as

element of UUWF) is that a conviction for UUW or AUUW unconstitutional under Aguilar is

void ab initio and cannot serve as the elemental predicate felony for UUWF so that this court

both has jurisdiction to and must reverse the UUWF conviction for the absence of an element. In

sum, we agree with Fields and McFadden.

¶ 17 The State argues against this effect by citing federal cases, led by Lewis v. United States,

(1980), for the proposition that "the status of the prior felony conviction at the time

he or she possesses the firearm controls, regardless of whether that prior conviction might later

be invalidated or found to be unconstitutional." The State also argues that if we reverse

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defendant's UUWF conviction, we will sow uncertainty; that adhering to Fields and McFadden

"would prevent the prosecution from proving that a defendant previously had been convicted of a

qualifying felony at the time he possessed a firearm if, after defendant possessed the gun, his

predicate conviction was later reversed on appeal for any reason."

¶ 18 The latter argument is disingenuous: we have repeatedly expounded upon the difference

between void and voidable judgments, and the State has in various cases ably argued that

distinction. To give a relevant example, "any reason" does not render a statute void ab initio,

only facial unconstitutionality, which is the most difficult challenge to make because a statute is

facially unconstitutional only if there are no circumstances where it could be validly applied.

Davis,

. Notably, while cases stating a new constitutional rule are generally

not applied retroactively to cases on collateral review (which is not the stance of this case but the

similarity is edifying), substantive rules apply retroactively. Davis,

.

" 'This includes decisions that narrow the scope of a criminal

statute by interpreting its terms [citations], as well as constitutional

determinations that place particular conduct or persons covered by

the statute beyond the State's power to punish [citations]. Such

rules apply retroactively because they necessarily carry a

significant risk that a defendant stands convicted of an act that the

law does not make criminal or faces a punishment that the law

cannot impose upon him.' " (Internal quotation marks omitted.)

(quoting Schriro v. Summerlin,

(2004)

(and cases cited therein)).

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By contrast, new rules of procedure generally do not apply retroactively because they " 'do not

produce a class of persons convicted of conduct the law does not make criminal, but merely raise

the possibility that someone convicted with use of the invalidated procedure might have been

acquitted otherwise,' " so that only watershed rules of criminal procedure implicating the

fundamental fairness and accuracy of proceedings are retroactive. Davis,

,

quoting Schriro,

. There is no more apt description of what our supreme court

did in Aguilar than that it placed particular conduct covered by the UUW and AUUW statutes

beyond the State's power to punish.

¶ 19 Turning to the federal cases cited by the State, we note first and foremost that federal

cases interpreting federal statutes are not binding upon us as we interpret Illinois statutes but are

merely persuasive authority. We do not find the State's cases persuasive as they are based

fundamentally on an assertion -- that the " 'distinction between a conviction that is "invalid" and

one that is "void from its inception" depends too much on semantics' " (United States v. Padilla,

(9th Cir. 2004), quoting United States v. Mayfield,

(10th Cir. 1987)) -- with which we respectfully disagree. As stated above, Illinois courts have

maintained the distinction between void and voidable judgments, and we shall not abandon it

now.

¶ 20 In his prior case, defendant was convicted of the Class 4 felony of AUUW under section

24-1.6(a)(1), (a)(3)(A), and (a)(2), (a)(3)(A). We note that our supreme court in Aguilar

professed to "make no finding, express or implied, with respect to the constitutionality or

unconstitutionality of any other section or subsection of the AUUW statute." Aguilar,

, ¶ 22 n.3. Thus, one of the two counts of AUUW underlying his AUUW conviction is

potentially distinguishable from those reversed in Aguilar insofar as sections 24-1.6(a)(1) and

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(a)(2) are distinguishable. Practically, the point of distinction is that paragraph (a)(2) allows for

a person to be declared an invitee on the public way or public land for purposes of displaying or

selling firearms. However, this invitee provision does not protect the right to possess a firearm

outside the home for self-defense but for the limited purposes of display and commerce; in this

regard we note that the Seventh Circuit in Moore found the statutes before it unconstitutional

despite an invitee provision. See People v. Akins,

(applying

Aguilar to AUUW under section 24-1.6(a)(2)). Pursuant to Aguilar, we find that defendant's

AUUW conviction for the Class 4 felony form of section 24-1.6(a)(1), (a)(3)(A) or (a)(2),

(a)(3)(A) is void ab initio. As such, it cannot serve as an essential element of his UUWF

conviction so that his UUWF conviction must be reversed.

¶ 21 Accordingly, the judgment of the circuit court is reversed.

¶ 22 Reversed.

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