THIRD DIVISION August 31, 2016

No. 1-15-0889

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) v. ) 10 CR 19249 ) GREGORY PERKINS, ) Honorable ) James B. Linn, Defendant-Appellee. ) Judge Presiding.

PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Pucinski concurred in the judgment and opinion.

OPINION

¶1 On October 17, 2010, defendant Gregory Perkins was arrested while in possession of a

firearm. After a bench trial, Perkins was convicted of several offenses, including armed habitual

criminal, unlawful possession of a weapon and firearm ammunition by a felon (UUWF),

aggravated unlawful use of a weapon (AUUW), and failure to possess a valid firearm owner’s

identification (FOID) card. The trial court merged all of the counts and sentenced Perkins to

seven years’ imprisonment on the armed habitual criminal count. The predicate convictions for

these offenses included Perkins’ earlier convictions for UUWF and AUUW.

¶2 Perkins voluntarily dismissed his appeal and later failed to appeal the dismissal of a pro

se petition seeking relief from judgment. On June 6, 2014, Perkins filed a petition seeking relief

under the Post-Conviction Hearing Act. 725 ILCS 5/122-1 et seq. (West 2014). Citing our

supreme court’s decision in People v. Aguilar,

, Perkins sought to vacate his

convictions other than those premised on his failure to possess a valid FOID card, arguing that

because Aguilar held the Class 4 form of the AUUW statute unconstitutional on its face and void No. 1-15-0889

ab initio, the State could not prove the predicate offenses underlying these convictions. The trial

court agreed and, in particular, found that Perkins’ earlier AUUW and UUWF convictions could

not serve as the predicate for his armed habitual criminal, UUWF and AUUW convictions and

that, as a result, Perkins was entitled to be sentenced as a Class 2 offender.

¶3 After the State’s motion to reconsider was denied, the State appealed pursuant to Illinois

Supreme Court Rule 651(a) (eff. Feb. 6, 2013). See also People v. Andson,

(1979) (“[T]he People have the right to appeal to the appellate court from final judgments in

post-conviction cases.”).

¶4 On June 16, 2016, our supreme court decided People v. McFadden,

, a

direct appeal from a UUWF conviction predicated on defendant’s possession of a firearm at a

time when he had previously been convicted of AUUW. Like Perkins here, the defendant in

McFadden argued that Aguilar prevented the State’s use of a prior AUUW conviction to

establish the predicate for the UUWF charge, notwithstanding that the prior conviction had not

been vacated.

¶5 Reversing our decision in People v. McFadden,

, which

vacated defendant’s UUWF conviction on this basis, the supreme court concluded that

defendant’s status as a felon was not affected by Aguilar and that unless and until the prior

conviction was vacated, the prior felony conviction precluded defendant from possessing a

firearm. McFadden,

. ¶ 31 (“Although Aguilar may provide a basis for vacating

defendant’s prior 2002 AUUW conviction, Aguilar did not automatically overturn that judgment

of conviction. Thus, at the time defendant committed the UUW by a felon offense, defendant had

a judgment of conviction that had not been vacated and that made it unlawful for him to possess

firearms.”). We afforded the parties the opportunity to address McFadden’s impact on this case.

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¶6 Perkins first argues that McFadden’s reasoning was limited to the offense of UUWF,

which requires the State to prove only defendant’s status as a convicted felon. 720 ILCS

5/24-1.1(a) (West 2014) (prohibiting possession of a firearm by any person “if the person has

been convicted of a felony under the laws of this State or any other jurisdiction”); People v.

Walker,

(2004) (State need only establish “defendant’s felon status” and

statute “does not require proof of a specific felony conviction”). According to Perkins, UUWF

imposes a “status-based disability” that precludes any convicted felon from possessing a firearm.

In contrast, because the offense of armed habitual criminal requires the State to prove that the

defendant was convicted of specific enumerated offenses, Perkins contends that the offense

“imposes a conduct-based disability by allowing for harsher punishment based on a defendant’s

commission of specific acts.” See 720 ILCS 5/24-1.7(a) (West 2014) (person commits offense of

armed habitual criminal if that person possesses any firearm “after having been convicted a total

of 2 or more times” of enumerated offenses, including UUWF and AUUW). Perkins reasons that

because the conduct of which he was previously convicted—possession of a firearm—was

constitutionally protected, it cannot serve as a predicate for his armed habitual criminal

conviction.

¶7 We find this to be a distinction without a difference. In order to sustain its burden to

prove that a defendant is an armed habitual criminal, the State need only prove the fact of the

prior convictions of enumerated offenses (id.; see People v. Tolentino,

(2011) (sufficient for State to present certified copies of defendant’s prior convictions for

qualifying offenses)), just as the State need only prove the fact of a prior felony conviction to

support a UUWF conviction. Nothing in the armed habitual criminal statute requires a court to

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examine a defendant’s underlying conduct in commission of the enumerated offenses 1 in order to

find that the State has sustained its burden of proof. And because here, as in McFadden, Perkins’

prior convictions had not been vacated prior to his armed habitual criminal conviction, they

could properly serve as predicates for that conviction.

¶8 Perkins next argues that we need not follow McFadden because the United States

Supreme Court decisions in Montgomery v. Louisiana,

,

(2016), and

Ex parte Siebold,

(1879), which were not addressed in McFadden, constitute

binding authority and mandate that his armed habitual criminal conviction be vacated. In

Montgomery, the Supreme Court held that the prohibition against mandatory life sentences

without parole for juvenile offenders articulated in Miller v. Alabama,

,

(2012), was a substantive rule of constitutional law entitled to retroactive effect on

collateral review. Montgomery, 577 U.S. at ___,

. Perkins reasons that Aguilar

is entitled to the same retroactive effect and that the State’s reliance on his prior UUWF and

AUUW convictions violates Montgomery’s central premise: “There is no grandfather clause that

permits States to enforce punishments the Constitution forbids. To conclude otherwise would

undercut the Constitution’s substantive guarantees.”

at ___,

.

¶9 Perkins contends that our supreme court “ignored” the decision in Montgomery. But as

the State points out, prior to oral argument in McFadden, counsel sought and was granted leave

to cite Montgomery as additional authority. In that motion, counsel advanced the same arguments

presented here. In response, the State argued, as it does here, that Montgomery posed no

1 The exception in the statute relates to prior convictions involving unenumerated “forcible felonies,” as to which the State must demonstrate that the felony of which defendant was convicted falls into that category (see, e.g., People v. Belk,

(2003); People v. Greer,

(2002)), an issue not presented here. -4- No. 1-15-0889

constitutional impediment to affirmance of defendant’s UUWF conviction given that defendant

was not seeking to vacate his prior conviction (relief that, if sought, the State would not oppose),

but instead was challenging his status as a convicted felon at the time of his trial. The State

argued that in this context, Lewis v. United States,

(1980), which held that a

defendant’s failure to vacate a prior felony conviction on grounds that it was unconstitutional

was fatal to a challenge to a felon-in-possession conviction, controlled. We agree with the State.

¶ 10 At the time of Perkins’ armed habitual criminal conviction, he had prior UUWF and

AUUW convictions. Because those convictions had not been vacated at the time Perkins

possessed a firearm on October 17, 2010, they could properly serve as the predicates for his

armed habitual criminal conviction. Consequently, we reverse the judgment of the circuit court

of Cook County granting Perkins’ postconviction petition.

¶ 11 Reversed.

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