FIRST DISTRICT AUGUST 10, 2015

No. 1-13-0203

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 11 CR 14227 ) JAVONTE RICHARDSON, ) Honorable ) Dennis J. Porter, Defendant-Appellant. ) Judge Presiding.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Harris concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial in the circuit court of Cook County, defendant-appellant Javonte

Richardson was convicted for the offense of unlawful use of a weapon by a felon (UUWF) and

sentenced to four years of imprisonment. On appeal, the defendant argues that: (1) his prior

conviction for aggravated unlawful use of a weapon (AUUW), which was premised on a

statutory provision since held unconstitutional by our supreme court, cannot stand as a predicate

offense to support his UUWF conviction; (2) the State's indictment for the charge of UUWF was

invalid and "failed to state a cause of action" because the defendant's predicate AUUW felony

was based on an unconstitutional statute; and (3) the arresting police officers violated his

constitutional rights by conducting an unreasonable search when they stopped the vehicle in

which he was a passenger and conducted a pat-down search of his person. For the following

reasons, we reverse the judgment of the circuit court of Cook County. 1-13-0203

¶2 BACKGROUND

¶3 In 2010, in a prior case, the State charged the defendant (who was known at the time as

Pierre Robinson), with a Class 4 violation of Illinois' AUUW statute. See 720 ILCS 5/24-

1.6(a)(1), (a)(3)(A) (West 2010). The defendant pleaded guilty to the AUUW violation, a

felony charge, in exchange for a sentence of two years' probation.

¶4 This subsequent case arose in August 2011, when the defendant was arrested in

possession of a handgun following a traffic stop on St. Lawrence Avenue near 74th Street in

Chicago, Illinois. The defendant was charged with one count of UUWF and nine counts of

AUUW. The UUWF charge alleged that the defendant possessed a firearm after being

adjudicated a felon, due to his guilty plea to the AUUW charge in his prior case in 2010.

¶5 Prior to trial, the defendant filed a motion to quash arrest and suppress evidence which

alleged that the arresting officers did not have a reasonable suspicion to stop the vehicle in

which the defendant was riding. On October 14, 2011, the trial court conducted a hearing on

the motion to suppress, at which it heard testimony from the arresting officers as well as the

defendant. Ayokunle Akinbusuyi, the Chicago police officer who arrested the defendant,

testified that he and his partner, Officer Mark Johnson, were on patrol in a marked police car at

10:52 p.m. on August 21, 2011 when they received a report of an auto theft at 742 East 79th

Street. The officers proceeded to drive to the address where they spoke to the victim of the

theft, Aaron Edwards. Edwards described the stolen vehicle as a green, Ford Taurus station

wagon. Edwards was unable to provide a license plate number or any other distinguishing

characteristics of the car but did tell the officers that his culinary tools were inside the vehicle.

¶6 Approximately ninety minutes after leaving Edwards, while driving in the area of 7400

South St. Lawrence Avenue, the officers identified a vehicle matching the description provided

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by Edwards. The officers stopped the vehicle and observed two individuals inside, the driver

and a passenger (the defendant). Officer Akinbusuyi approached the vehicle from the

passenger's side while Officer Johnson approached the driver's side. Officer Johnson requested

that the driver exit the vehicle after the driver was unable to produce a driver's license or

insurance information. As the driver exited the vehicle, Officer Akinbusuyi observed the

defendant, who was sitting in the front passenger seat of the vehicle, mumbling and rummaging

through the vehicle's center console. Additionally, Officer Akinbusuyi noted that the defendant

appeared to turn towards the interior of the vehicle while moving his hands near his own waist

"like he was stuffing something in his waistband." Officer Akinbusuyi requested that the

defendant show his hands. Once the defendant did not comply with that request, Officer

Akinbusuyi asked the defendant to exit the vehicle.

¶7 Officer Akinbusuyi then commenced a brief pat-down search of the defendant and

discovered an unloaded, highpoint, semi-automatic handgun in the defendant's waistband. The

defendant was then handcuffed and placed into the officers' squad car before being transported

to the police station. Officers Akinbusuyi and Johnson subsequently searched the green, Ford

Taurus station wagon and found Edwards' culinary tools inside the vehicle.

¶8 The defendant testified at the hearing on the motion to suppress that Eric Cochran, the

driver of the green Ford Taurus, had picked him up approximately ten to fifteen minutes before

the vehicle was stopped by police. The defendant also corroborated Officer Akinbusuyi’s

testimony that Cochran told the officers that he did not have a driver's license or insurance

information. However, the defendant's testimony differed from Officer Akinbusuyi's testimony

that the gun was recovered from the defendant's waistband during a pat-down search.

According to the defendant, the officers removed Cochran and himself from the vehicle before

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commencing a search of the vehicle during which the officers found both the firearm and

Edwards' culinary tools.

¶9 The trial court, in its findings of fact, adopted the testimony of Officer Akinbusuyi. The

court initially found in favor of the defendant and granted the motion to quash arrest and

suppress evidence on October 14, 2011, agreeing that the officers did not have reasonable

suspicion to stop the vehicle. The State filed a motion to reconsider the trial court's ruling,

arguing that the officers had reasonable suspicion to stop the vehicle because it fit the

description of a car that had been reported stolen in the area earlier that evening. After hearing

arguments from both sides, the trial court reversed its previous ruling and denied the defendant's

motion to quash arrest and suppress evidence on November 4, 2011. At that time, the defendant

elected a bench trial.

¶ 10 The court conducted a bench trial on January 18, 2012, during which Officer Akinbusuyi

testified to the events of August 22, 2011 consistent with his earlier testimony at the hearing on

the motion to quash arrest and suppress evidence. Also at trial, the State entered a certified

copy of conviction showing that the defendant, under the name Pierre Robinson, had pleaded

guilty to the Class 4 AUUW felony charge in 2010. No further evidence was introduced at the

bench trial. After closing arguments from both parties, the trial court made a general finding

that the defendant was guilty of count one, the UUWF violation. The trial court further ruled

that AUUW counts six, seven, and ten, merged into count one. The State declined to prosecute

the remaining counts. Thus, the defendant was convicted of a single count of violating the

UUWF statute.

¶ 11 The defendant subsequently filed a motion for a new trial, arguing that the State failed to

prove him guilty beyond a reasonable doubt because no weapon was admitted into evidence.

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The defendant further argued that the trial court erred in denying his motion to quash arrest and

suppress evidence. The trial court denied the defendant's motion for a new trial. On February

17, 2012, the trial judge sentenced the defendant to four years' imprisonment in the Illinois

Department of Corrections, to be followed by a two-year term of mandatory supervised release,

in addition to statutory fines and costs. On the same date, the defendant's trial counsel informed

the court that the defendant wished to file a notice of appeal. The trial court ordered the notice

of appeal to be filed and appointed the State appellate defender to represent the defendant.

Accordingly, we have jurisdiction pursuant to Illinois Supreme Court Rule 606(a) (eff. Jan. 1,

2013).

¶ 12 ANALYSIS

¶ 13 In this appeal, the defendant makes three arguments urging reversal of his UUWF

conviction. His first two arguments arise from our supreme court's decision in Aguilar, which

held that the statutory provision underlying his 2010 conviction for AUUW was unconstitutional.

People v. Aguilar,

. As a third argument, the defendant contends that the

police search after the August 2011 traffic stop that resulted in the recovery of a weapon violated

the United States Constitution and the Illinois Constitution.

¶ 14 We first address the defendant's argument that the court should reverse his UUWF

conviction because the State failed to prove beyond a reasonable doubt that he had a felony

conviction at the time of his 2011 arrest, a necessary element of the UUWF offense. See 720

ILCS 5/24-1.1(a) (West 2012) ("It is unlawful for a person to knowingly possess on or about his

person *** any firearm or any firearm ammunition if the person has been convicted of a felony

under the laws of this State or any other jurisdiction."). Specifically, the defendant contends that

his 2010 felony conviction for AUUW could not be a valid predicate offense to support his

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UUWF conviction because the statute under which he was convicted of AUUW was declared

unconstitutional by our supreme court in Aguilar.

¶ 15 We note that, as this argument presents a pure question of law, our standard of review is

de novo. See People v. Chapman,

(2000).

¶ 16 In Aguilar, decided in 2013, our supreme court determined that section 24-1.6(a)(1),

(a)(3)(A), (d) of the AUUW statute, in prohibiting possession of an "uncased, loaded and

immediately accessible" firearm outside the home, (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d)

(West 2008)), violated the second amendment of the United States Constitution. Aguilar,

, ¶¶ 20-21. Our supreme court in Aguilar relied upon the United States Supreme

Court’s decisions in District of Columbia v. Heller,

(2008), and McDonald v. City

of Chicago,

(2010), which recognized that the second amendment protects the right

of citizens to bear arms for self-defense outside the home. See Aguilar,

, ¶¶ 20-

21. Since section 24-1.6(a)(1), (a)(3)(A), (d), and its resulting Class 4 AUUW offense,

"categorically prohibit[ed] the possession and use of an operable firearm for self-defense outside

the home," our supreme court concluded that it “amount[ed] to a wholesale statutory ban on the

exercise of a personal right that is specifically named in and guaranteed by the United States

Constitution." Id. ¶ 21. Accordingly, our supreme court held that this section of the statute, and

its resulting Class 4 AUUW offense, were facially unconstitutional. Id.

¶ 17 The defendant contends that, pursuant to Aguilar, his AUUW offense is void ab initio

and cannot be used as a predicate offense for a UUWF charge. Several recent cases in our court

have addressed the issue of whether a Class 4 AUUW conviction can serve as a predicate offense

in light of our supreme court's holding in Aguilar. In Dunmore, the defendant had pleaded guilty

to a Class 4 AUUW conviction in exchange for a sentence of two years' probation. People v.

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Dunmore,

. The State subsequently sought to revoke his probation

after he was found to have committed another criminal offense. Id. ¶ 7. The defendant appealed

the revocation of his probation; while his appeal was pending, our supreme court decided

Aguilar. Id. In response to Aguilar, the appellate court in Dunmore found that it had "an

independent duty to vacate void orders," regardless of whether the defendant's appeal sought

review of that issue. Id. ¶ 9. Accordingly, the court reversed the Dunmore defendant's AUUW

conviction because, pursuant to Aguilar, it arose from a facially unconstitutional statute. Id. ¶

10.

¶ 18 Following Dunmore, at least two decisions of this court have vacated a defendant's

UUWF conviction (the same charge that is at issue in this appeal) on the grounds that it was

premised on an AUUW conviction held unconstitutional under Aguilar. First, in McFadden, this

court vacated the defendant's UUWF conviction because it was premised on a prior Class 4

AUUW offense. People v. McFadden,

. Although it did not involve a

probation revocation as in Dunmore, the court in McFadden found that prior decision

significantly instructive. Id. ¶ 41. In reviewing the defendant's direct appeal of his UUWF

conviction, the McFadden court held that it was "bound to apply Aguilar and vacate [the

conviction] 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

unconstitutional and void ab initio." Id. ¶ 43. The McFadden court stated further that "[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." Id.

¶ 19 More recently, our court has expressly reaffirmed McFadden and held that a void Class 4

AUUW conviction could not stand as a predicate offense for a subsequent UUWF conviction.

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See People v. Claxton,

. There, on direct appeal of his UUWF

conviction, akin to both McFadden and the facts presented in this case, the Claxton defendant

claimed that his prior AUUW conviction could not stand as a predicate offense for the

subsequent charge because it was deemed void ab initio by Aguilar. Id. ¶¶ 18-19. The court

relied on the precedent established by McFadden and reversed the defendant's UUWF

conviction, stating that his Class 4 AUUW conviction "cannot serve as an essential element of

his UUWF" charge. Id. ¶ 20.

¶ 20 Moreover, in analogous cases not directly concerning the UUWF statute, our appellate

court has also held that an AUUW conviction cannot stand as a qualifying predicate offense

post-Aguilar. In Fields, this court held that an AUUW conviction made void by Aguilar could

not be used as a predicate offense for a subsequent armed habitual criminal charge and thus

vacated the defendant's armed habitual criminal conviction. People v. Fields,

. Later, in Cowart, this court expressly reaffirmed the principles of Fields and

McFadden and reversed the defendant's armed habitual criminal charge on the same grounds.

People v. Cowart,

. In that case, this court found that, due to the

impact of Aguilar, an AUUW conviction under the invalidated statute could not serve as a

predicate offense for any subsequent criminal charge. Id. ¶ 47.

¶ 21 The State's argument on appeal concedes that the statutory provision which gave rise to

the 2010 AUUW charges against the defendant was subsequently determined to be

unconstitutional in Aguilar. The State also acknowledges this court's holdings in McFadden and

Fields, but urges that they were "wrongly decided." Instead, the State argues that the defendant's

UUWF conviction was proper because it proved beyond a reasonable doubt that the defendant

was a convicted felon at the time he possessed a weapon in 2011 and was charged with

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UUWF—regardless of the subsequent Aguilar decision invalidating the statute underlying his

prior AUUW felony.

¶ 22 Thus, the State contends that it is the status of the prior felony conviction at the time of

the firearm possession which should control the analysis of whether a defendant has a predicate

felony on which to base a UUWF charge. In the State's view, a convicted felon's "firearm

disability" remains intact and enforceable unless the relevant conviction is reversed, vacated,

pardoned, or declared void prior to the date of his subsequent arrest for UUWF, regardless of

whether the prior conviction is susceptible to a collateral attack on constitutional grounds or

altered in any way. In other words, the State's position is that "a conviction for being a felon-in-

possession remains valid even if the prior conviction on which it is based is later expunged,

vacated nunc pro tunc, or found to be unconstitutional and void ab initio." Thus, the State

contends that because the defendant's 2010 felony AUUW conviction was valid at the time of his

2011 arrest (because Aguilar had not yet been decided), that prior conviction sufficed to prove

this element of the UUWF offense beyond a reasonable doubt.

¶ 23 In support of its argument, the State cites only to cases decided by federal courts and

those of other states. Foremost among these cases is Lewis v. United States, in which the United

States Supreme Court analyzed a federal statute with provisions analogous to our own UUWF

statute and its applicability to individuals who may have grounds to attack their prior felony

convictions. Lewis v. United States,

(1980). In Lewis, the defendant claimed that he

had been convicted of a predicate felony without being provided counsel, a process which the

Supreme Court subsequently declared unconstitutional.

at 57-58 (citing Gideon v.

Wainwright,

(1963)). Consequently, the Lewis defendant argued that the

constitutional infirmity of the process by which he was convicted of the predicate felony should

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preclude that conviction from being used as a predicate offense for a subsequent criminal charge

under the federal felon-in-possession statute.

The Supreme Court disagreed, affirming his

conviction and holding that the plain meaning of the federal statute imposed a "firearm

disability" on every convicted felon "until the conviction is vacated or the felon is relieved of his

disability by some affirmative action, such as a qualifying pardon or a consent from the Secretary

of the Treasury," regardless of whether the predicate conviction was susceptible to a collateral

attack on constitutional grounds. Id. at 60-61. Notably, the Supreme Court also based its

decision, in part, on the fact that the defendant could have, but did not pursue a collateral attack

on his predicate felony during the intervening years between Gideon’s holding and his

subsequent UUWF arrest. Id. at 64.

¶ 24 We note that the State has made this argument derived from the Lewis holding before, in

other cases interpreting the effect of Aguilar. Nevertheless, as this court has repeatedly noted,

Lewis is inapplicable in that it involved a predicate felony susceptible to constitutional challenge

rather than a conviction under a facially unconstitutional statute, as is the case with Aguilar-

based appeals involving the AUUW statute. See People v. Cowart,

; People v. Claxton,

. This distinction is instructive. In a previous

case arising from Aguilar, this court has highlighted the significance of a judgment holding a

criminal statute to be facially unconstitutional and the particular impact which it may have on

subsequent cases. Id. ¶ 18. A statute is facially unconstitutional only where there are no

circumstances in which it could be validly applied. Id. (noting that it is "the most difficult

[statutory] challenge to make"); see also People v. Davis,

. As such, a

statute which is unconstitutional on its face may criminalize behavior which is beyond the State's

power to punish. Claxton,

. As this court has previously noted,

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such a holding of facial unconstitutionality should be enforced retroactively because facially

unconstitutional statutes can "produce a class of persons convicted of conduct the law does not

make criminal." (Internal quotation marks omitted.)

(noting the distinction between such

holdings and those producing new rules of procedure which "merely raise the possibility that

someone convicted with use of the invalidated procedure might have been acquitted otherwise"

(internal quotation marks omitted) (quoting Davis,

)). Because Aguilar

held that the Class 4 AUUW offense produced such a class of persons subject to criminal

liability for constitutionally protected conduct (firearm possession), its determination that those

convictions are void ab initio should be applied retroactively to cases on appeal, including this

one. See

¶ 25 Based on the foregoing precedent, our courts have already answered the question

presented here. Our court's logic in McFadden, which decided the precise issue in this case and

which our courts have expressly reaffirmed, remains persuasive. The defendant's UUWF

conviction must be reversed because the predicate felony on which it was premised is void ab

initio. See McFadden,

; Claxton,

. Aguilar

held that the statutory provision which created the Class 4 version of an AUUW charge was

facially unconstitutional. Because the defendant here pled guilty to this Class 4 AUUW offense,

his felony conviction in 2010 must now be considered void. As such, that felony conviction

cannot be used as a predicate offense for subsequent criminal charges. As we recently stated in

Cowart: "We find no reason to deviate from the holdings in Fields and McFadden. Because the

defendant's prior conviction for AUUW was based on a statute that was found to be

unconstitutional and void ab initio in Aguilar, we cannot allow it to stand as a predicate offense

*** in the instant case." Cowart,

. Thus, the State failed to prove

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an essential element of its cause of action against the defendant.

¶ 26 Furthermore, we are neither swayed by the State's arguments that Dunmore, McFadden,

and Fields are wrongly decided, nor do we agree that the decisions in other states or federal

courts warrant departing from the well-settled precedent of our courts. The State continues to

advance arguments that this court has held to be inapplicable. Indeed, in Cowart, this court

similarly rejected the State's argument that Fields and McFadden "were wrongly decided

because those cases failed to consider how the defendant's previous AUUW conviction was still

valid at the time he possessed the firearm in the [subsequent] case." Id. ¶ 48. Accordingly,

because the State could not prove beyond a reasonable doubt an element of the UUWF offense—

namely, a valid prior felony—we reverse the defendant's conviction and vacate his sentence for

the offense of unlawful use of a weapon by a felon. See id. ¶ 47 (finding the State could not

"prove beyond a reasonable doubt an element of the offense *** where the statute underlying the

AUUW conviction was found to be unconstitutional and thus, the conviction cannot serve as a

predicate offense for any charge").

¶ 27 Although we conclude that the 2010 AUUW conviction could not serve as a predicate

offense for the defendants' 2011 UUWF conviction, we emphasize, as we did in Cowart, that this

opinion does not vacate the defendant’s 2010 AUUW conviction in that prior case. See id. ¶ 49.

Likewise, we need not address whether formal proceedings for collateral relief may be available

to the defendant to vacate his conviction in that case. Id.

¶ 28 Apart from his arguments derived from Aguilar, the defendant's brief further claims that

his UUWF conviction should be overturned because both the traffic stop and the pat-down

search which led to the discovery of the handgun violated his right to be free from unreasonable

search and seizure pursuant to the fourth amendment to the United States Constitution and article

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one, section six of the Illinois Constitution. However, we have already determined that

application of Aguilar necessitates a reversal of the defendant's UUWF conviction, regardless of

whether the underlying searches that led to his arrest were constitutional. Thus, we need not

decide the merits of this additional argument for reversal.

¶ 29 For the foregoing reasons, we reverse the judgment of the circuit court of Cook County.

¶ 30 Reversed.

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