FIRST DIVISION October 26, 2015

No. 1-13-3663

) ) THE PEOPLE OF THE STATE OF ILLINOIS, ) ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) 13 CR 6437 ) HOWARD JOHNSON, ) Honorable ) James B. Linn, ) Judge Presiding. Defendant-Appellant. ) )

JUSTICE CONNORS delivered the judgment of the court, with opinion. Presiding Justice Liu and Justice Cunningham concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, defendant Howard Johnson was convicted of the offense of

armed habitual criminal and sentenced to 7 1/2 years in prison. Defendant now appeals, arguing

that his conviction should be reduced to unlawful use or possession of a weapon by a felon

(UUWF) for three reasons: (1) the trial court subjected him to an impermissible double

enhancement, (2) his conviction violates the proportionate penalties clause of the Illinois

Constitution (Ill. Const. 1990, art. I, §22), and (3) the armed habitual criminal statute violates

due process because it criminalizes innocent conduct. For the following reasons, we affirm.

¶2 BACKGROUND

¶3 Following an incident that occurred on March 2, 2013, defendant was charged with one

count of armed habitual criminal, one count of armed violence, four counts of UUWF, two No. 1-13-3663

counts of aggravated unlawful use of a weapon, and possession of a controlled substance. The

following evidence was introduced at the bench trial.

¶4 Officer Chon testified that on March 2, 2013, he was working on patrol with his partner,

Officer Zogg, when they observed what appeared to be a drug transaction on the 7600 block of

South Hermitage Avenue in Chicago. Officer Chon testified that he and his partner approached

defendant and another male and attempted to do a "field interview." Officer Chon saw

defendant, who was facing away from him, throw a "gun over the yard," and then start running.

Officer Chon and his partner chased defendant and apprehended him. They then went back to

the place where they had observed defendant throw a gun, and recovered a "standard .45" gun

and five bags of narcotics.

¶5 Officer Zogg testified that he observed defendant participate in a "hand-to-hand" drug

transaction, and that when he saw the officers approaching, he threw a gun and several small

items into a nearby backyard and then fled. Officer Zogg testified that he and his partner

pursued and eventually caught defendant.

¶6 The State then introduced into evidence a certified copy of defendant's conviction in case

No. 09 CR 17756-01, a felony conviction of residential burglary, as well as a certified copy of

defendant's conviction in case No. 10 CR 18437-01 for unlawful use of a weapon by a felon.

¶7 The trial court found the evidence presented by the officers to be compelling and

credible, and found defendant guilty on all counts except armed violence. After merging all of

the counts, with the exception of possession of a controlled substance, into the first count (armed

habitual criminal), the trial court sentenced defendant to 90 months in prison on the armed

habitual criminal count and 3 years in prison on the possession of a controlled substance count,

to be served concurrently.

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¶8 Defense counsel filed a motion for a new trial, which incorrectly stated that defendant

had been "found guilty of aggravated battery" and that the State failed to prove him guilty

beyond a reasonable doubt of that offense. During the sentencing hearing, defense counsel

argued that the motion should be allowed because the State failed to prove defendant was in

possession of a gun or drugs on the date in question. The trial court denied the motion. The trial

judge noted that defendant could file a notice of appeal within 30 days, as well as a motion to

modify his sentence, but that "[a]nything not stated in the filings would be waived for purposes

of appeal." Defendant timely filed a notice of appeal.

¶9 ANALYSIS

¶ 10 On appeal, defendant contends that his conviction for armed habitual criminal should be

reduced to unlawful use or possession of a weapon by a felon (UUWF) for three reasons: (1) the

trial court subjected him to an impermissible double enhancement, (2) his conviction violates the

proportionate penalties clause of the Illinois Constitution, and (3) the armed habitual criminal

statute violates due process because it criminalizes innocent conduct.

¶ 11 As an initial matter, however, the State argues that defendant failed to raise the issue of

reducing his conviction to UUWF in the trial court and, therefore, failed to preserve this issue for

appeal. See People v. Hillier,

(2010) (to preserve a claim of error on appeal,

a defendant must both contemporaneously object and file a written posttrial motion raising the

issue). Defendant also failed to ask us to review this issue for plain error in his opening brief on

appeal. In the absence of a plain-error argument by a defendant, "we will generally honor the

defendant's procedural default." People v. Ramsey,

(2010). However,

because defendant argued plain error in his reply brief, that “is sufficient to allow us to review

the issue for plain error."

(citing People v. Williams,

(2000)).

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¶ 12 The plain error doctrine is a narrow and limited exception to the general rule of

procedural default. Hillier,

. Plain-error review is appropriate under either of

two circumstances: (1) when "a clear or obvious error occurred and the evidence is so closely

balanced that the error alone threatened to tip the scales of justice against the defendant,

regardless of the seriousness of the error"; or (2) when "a clear or obvious error occurred and that

error is so serious that it affected the fairness of the defendant's trial and challenged the integrity

of the judicial process, regardless of the closeness of the evidence." People v. Piatkowski,

(2007). Here, defendant argues plain error under both prongs. Under both

prongs, the defendant has the burden of persuasion and, if he fails to meet his burden, his

procedural default will be honored. Hillier,

. The first step in our analysis is to

determine whether an error occurred. People v. Eppinger,

.

¶ 13 Defendant's first basis for why his armed habitual criminal conviction should be reduced

to UUWF is because he was subject to improper double enhancement. Specifically, defendant

contends that his prior conviction of residential burglary (case No. 09 CR 17756) was used to

prove both predicate felonies of the armed habitual criminal offense–once by itself, and then

again as an element of the second predicate felony of UUWF (case No. 10 CR 18437).

¶ 14 Double enhancement occurs when either: (1) a single factor is used both as an element of

an offense and as a basis for imposing a harsher sentence than might otherwise have been

imposed, or (2) the same factor is used twice to elevate the severity of the offense itself. People

v. Guevara,

(2005). We find neither situation to be present here.

¶ 15 The armed habitual criminal statute reads in pertinent part:

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"(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 ***; ***

***

(b) Sentence. Being an armed habitual criminal is a Class X felony." 720 ILCS

5/24-1.7 (West 2012).

¶ 16 Here, the trial court based defendant's armed habitual criminal conviction on defendant's

two prior offenses: (1) residential burglary, which is a forcible felony as defined in section 2-8 of

the Criminal Code of 2012 (Code) (720 ILCS 5/2-8 (West 2012)), and (2) unlawful use of a

weapon by a felon (720 ILCS 5/24-1.1 (West 2012)). Both of these offenses are clearly

enumerated above as valid offenses upon which to base an armed habitual criminal conviction.

The fact that the residential burglary conviction was the felony upon which defendant's UUWF

conviction was based does not negate the validity of the two offenses as the predicate offenses

for defendant's armed habitual criminal conviction.

¶ 17 Defendant's reliance on People v. Chaney,

(2008), and People v.

Easley,

, does not convince us otherwise. In Chaney, the trial court

impermissibly doubly enhanced the defendant's sentence when it used the same prior convictions

to both enhance the defendant's conviction to a Class 2 felony, as well as to classify defendant as

a Class X felon. Chaney,

. In Easley, the defendant argued that he was

subjected to improper double enhancement where the same prior felony conviction was used

both to prove an element of the offense, and to elevate the class of offense to a Class 2 offense

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and impose a harsher sentence. The court found that the defendant's prior conviction was used

only as an element of the offense, and not also to enhance the sentence. Easley,

.

¶ 18 In the case at bar, the residential burglary conviction was used only once–as a predicate

felony to defendant's armed habitual criminal conviction and not again to enhance defendant's

sentence. The other predicate felony to defendant's armed habitual criminal conviction was

UUWF, which was predicated on defendant's residential burglary conviction. Finding that a

UUWF conviction could not be predicated on the same conviction (here, residential burglary) as

that used for one of the predicate offenses required for an armed habitual criminal conviction,

would render the armed habitual criminal statute illogical. If defendant's construction of the

armed habitual criminal statute were to be accepted, any defendant whose armed habitual

criminal conviction consisted of the offense of UUWF would then have to have a third

conviction–one that did not serve as a predicate offense to his UUWF conviction. Defendant's

conclusion reads into the armed habitual criminal statute an element that is not there: that a court

can only use the predicate felony of UUWF if that UUWF conviction is based on a felony other

than the one used as the second predicate felony for the armed habitual criminal conviction. In

other words, when using UUWF as a predicate felony for an armed habitual criminal conviction,

the offender would have to have at least three prior felony convictions instead of two. There is

no such language in the armed habitual criminal statute, and we refuse to read it into the statute.

See People v. Christopherson,

(2008) (a court presumes the legislature did

not intend to create absurd results). Accordingly, we find that there was no improper double

enhancement in this case.

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¶ 19 Defendant's second basis upon which he argues that his armed habitual criminal

conviction should be reduced to UUWF is that his conviction violates the proportionate penalties

clause of the Illinois constitution. Specifically, defendant contends that the elements used to

establish the offense of armed habitual criminal in this case are the exact same elements used to

establish the Class 2 offense of UUWF.

¶ 20 Article I, section 11 of the Illinois constitution provides that all penalties must be

determined "according to the seriousness of the offense." Ill. Const. 1970, art. I, § 11. "In

analyzing a proportionate penalties challenge, our ultimate inquiry is whether the legislature has

set the sentence in accord with the seriousness of the offense." Guevara,

. A

penalty can violate the proportionate penalties clause if it is greater than the sentence for an

offense with identical elements.

Accordingly, we must now compare the armed habitual

criminal statute to the UUWF statute to determine whether these two offenses have identical

elements but disparate sentences. The armed habitual criminal statute, in full, 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 as described in Section 12-4.3 or subdivision (b)(1) of

Section 12-3.05; intimidation; aggravated intimidation;

gunrunning; home invasion; or aggravated battery with a firearm

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as described in Section 12-4.2 or subdivision (e)(1), (e)(2), (e)(3),

or (e)(4) of Section 12-3.05; or

(3) any violation of the Illinois Controlled Substances Act or the

Cannabis Control Act that is punishable as a Class 3 felony or

higher.

(b) Sentence. Being an armed habitual criminal is a Class X felony.” 720 ILCS 5/24-1.7

(West 2012).

¶ 21 The UUWF statute, by comparison, states:

"(a) It is unlawful for a person to knowingly possess on or about his person or on

his land or in his own abode or fixed place of business any weapon prohibited

under Section 24-1 of this Act or 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. This Section shall not apply if the person has been granted relief by

the Director of the Department of State Police under Section 10 of the Firearm

Owners Identification Card Act.

***

(e) Sentence. Violation of this Section by a person not confined in a penal

institution shall be a Class 3 felony for which the person shall be sentenced to no

less than 2 years and no more than 10 years and any second or subsequent

violation shall be a Class 2 felony for which the person shall be sentenced to a

term of imprisonment of not less than 3 years and not more than 14 years.

Violation of this Section by a person not confined in a penal institution who has

been convicted of a forcible felony *** is a Class 2 felony for which the person

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shall be sentenced to not less than 3 years and not more than 14 years." 720 ILCS

5/24-1.1(a), (e) (West 2012).

¶ 22 Based on a plain reading of both of the above offenses, it is clear that they do not have

identical elements. The offense of armed habitual criminal requires proof that the defendant had

committed at least two prior enumerated offenses, while the offense of UUWF requires proof

that defendant committed one prior felony offense of any type. Defendant nevertheless argues

that while these two offenses "[t]ypically *** do not have identical elements, *** they do in this

case." Defendant contends the enhanced version of UUWF, where the offense is elevated from a

Class 3 to a Class 2 felony, contains identical elements as the armed habitual criminal statute.

Specifically, defendant contends that the following elements would satisfy either a conviction for

armed habitual criminal or for the Class 2 form of UUWF: (1) a prior conviction for a forcible

felony, (2) a prior conviction for UUWF, and (3) possession of a firearm. Defendant admits,

however, that under the Class 2 form of UUWF, the prior conviction of a forcible felony is used

as a sentencing factor, not as an element of the offense; whereas under the armed habitual

criminal statute, the prior conviction for a forcible felony is an element of the offense.

¶ 23 This is a crucial difference because “a defendant may not challenge a penalty under the

proportionate penalties clause by comparing it with the penalty for an offense with different

elements.” Guevara,

-45 (citing People v. Sharpe,

(2005)).

Moreover, the UUWF statute states that the defendant shall be sentenced as a Class 2 offender if

it is his second UUWF conviction, or if he has committed a prior forcible felony. See 720 ILCS

5/24-1.1 (West 2012) (any second or subsequent violation of this section shall be a Class 2

felony; violation of this section by a person who has been conceited of a forcible felony is a

Class 2 felony). In our case, defendant has been convicted of both: a subsequent violation of the

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UUWF statute, as well as a prior conviction for a forcible felony. Accordingly, he was

appropriately charged and convicted of armed habitual criminal and, thus, defendant’s conviction

did not violate the proportionate penalties clause.

¶ 24 Defendant’s final basis for why his conviction for armed habitual criminal should be

reduced to UUWF is that the offense violates due process and is facially unconstitutional.

Defendant contends that the armed habitual criminal statute makes possession of a firearm a

crime regardless of whether or not the person has a Firearm Owners Identification (FOID) card,

which “potentially criminalizes innocent conduct.”

¶ 25 We first note that statutes are presumed constitutional, and we have the duty to construe

statutes so as to uphold their constitutionality if there is any reasonable way to do so. People v.

Inghram,

(1987). The party challenging the validity of a statute has the

burden of clearly establishing a constitutional violation. In re R.C.,

(2001).

Here, defendant's challenge is a facial challenge to the statute on due process grounds, not an "as

applied" challenge. "Successfully making a facial challenge to a statute's constitutionality is

extremely difficult, requiring a showing that the statute would be invalid under any imaginable

set of circumstances. The invalidity of the statute in one particular set of circumstances is

insufficient to prove its facial invalidity." (Emphasis in original.) In re M.T.,

(2006). " '[S]o long as there exists a situation in which a statute could be validly applied,

a facial challenge must fail.' " People v. Huddleston,

(2004) (quoting Hill v.

Cowan,

(2002)).

¶ 26 Defendant claims that because section 10 of the Firearm Owners Identification Card Act

(Act) (430 ILCS 65/1 et seq. (West 2012)) provides that persons with prior felony convictions

may, upon application, be awarded a FOID card where (1) the applicant has not been convicted

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of a forcible felony within 20 years of the applicant's application for a FOID card, or at least 20

years have passed since the end of any period of imprisonment imposed in relation to that

conviction, (2) the circumstances regarding a criminal conviction, the applicant's criminal

history, and his reputation are such that the applicant will not likely act in a manner dangerous to

public safety, (3) granting relief would not be contrary to the public interest, and (4) granting

relief would not be contrary to federal law (430 ILCS 65/10 (West 2012)), the possession of a

firearm by a person twice convicted of the offenses set forth in the armed habitual criminal

statute is not, by itself, a criminal act; rather, Illinois law only intends for the act to be a crime

where it is also shown that the person did not have a FOID card at the time he possessed the

firearm.

¶ 27 While it may be true that an individual could be twice-convicted of the offenses set forth

in the armed habitual criminal statute and still receive a FOID card under certain unlikely

circumstances, the invalidity of a statute in one particular set of circumstances is insufficient to

prove that a statute is facially unconstitutional. See M.T.,

. The armed

habitual criminal statute was enacted to help protect the public from the threat of violence that

arises when repeat offenders possess firearms. People v. Davis,

(2011). The Supreme Court explicitly noted in District of Columbia v. Heller,

(2008), that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions

on the possession of firearms by felons."

See Cates v. Cates,

(1993)

(judicial dicta should usually carry dispositive weight in an inferior court). Accordingly, we find

that the potential invalidity of the armed habitual criminal statute in one very unlikely set of

circumstances does not render the statute unconstitutional on its face.

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¶ 28 Defendant's reliance on Coram v. State of Illinois,

, does not convince us

otherwise. In Coram, an applicant sought a FOID card approximately 17 years after he was

convicted of misdemeanor domestic battery. The Illinois Department of State Police (IDSP)

denied the FOID card application, and the applicant petitioned for judicial review. The circuit

court entered an order directing the IDSP to issue the applicant a FOID card. The IDSP then

filed a motion to intervene and a motion to vacate the order. The IDSP’s motion to intervene

was granted, but its motion to vacate the order was denied.

¶ 29 Our supreme court indicated that the current version of the Act “was not in effect when

proceedings under section 10(c) were conducted with respect to Coram.” Accordingly, while

nothing in the Act prevented the trial court from granting the applicant in Coram relief under

section 10 at the time he applied for his FOID card, the current, amended version of the Act does

prevent the trial court from granting someone like defendant relief under section 10. Moreover,

a majority of the justices found that the 2013 amendments to the Act prevented a trial court from

overlooking the federal prohibition of certain individuals from owning a firearm. Id. ¶¶ 75

(majority opinion), 101 (Burke, J., specially concurring, joined by Freeman, J.), 124 (Theis, J.,

dissenting, joined by Garman, J.). Accordingly, Coram is not applicable to the instant case, as

the amended version of section 10 of the Act applies to this appeal, and a majority of our

supreme court justices support the interpretation of the amendments as prohibiting the IDSP

from issuing defendant a FOID card. We find that defendant's armed habitual criminal

conviction should not be reduced to a UUWF conviction.

¶ 30 CONCLUSION

¶ 31 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 32 Affirmed.

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