No. 1-17-1437 Order filed February 14, 2020 Sixth Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 14 CR 19101 ) DARIUS LOVE, ) Honorable ) Charles P. Burns, Defendant-Appellant. ) Judge, presiding.

JUSTICE CONNORS delivered the judgment of the court. Justices Cunningham and Harris concurred in the judgment.

ORDER

¶1 Held: We affirm the summary dismissal of defendant’s postconviction petition because the armed habitual criminal statute is not facially unconstitutional.

¶2 Defendant Darius Love appeals from an order of the circuit court summarily dismissing

his pro se petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq.

(West 2016)). For the following reasons, we affirm. No. 1-17-1437

¶3 Defendant was charged in a nine-count information. Count I alleged that defendant

committed the offense of being an armed habitual criminal (AHC) (720 ILCS 5/24-1.7(a) (West

2014)), in that he knowingly or intentionally possessed a firearm after having been convicted of

unlawful use of a weapon by a felon and robbery.

¶4 On April 16, 2015, defendant requested a pretrial conference pursuant to Illinois Supreme

Court Rule 402 (eff. July 1, 2012). During the conference, the State represented that on October

15, 2014, around 11:51 p.m., Chicago police officers received information that someone on a CTA

bus had a firearm in his waistband. The officers stopped that bus on the 8200 block of King Drive

and observed defendant exit and run northwest towards 81st Street and Calumet Avenue. The

officers followed defendant until they observed him throw a firearm. That firearm was recovered

and defendant was arrested. At the time of the incident, defendant did not have a conceal carry

license and his background included convictions for unlawful use of a weapon by a felon and

robbery.

¶5 The following day, defendant accepted the trial court’s offer and pled guilty to one count

of AHC in exchange for eight years’ imprisonment. After the parties stipulated to the facts

presented in the Rule 402 conference, the trial court accepted defendant’s guilty plea and sentenced

him to eight years’ imprisonment to be served at 85% followed by three years’ mandatory

supervised release (MSR).

¶6 On February 10, 2016, defendant filed a motion to withdraw guilty plea and vacate

sentence pursuant to Illinois Supreme Court Rule 604(d) (eff. Dec. 3, 2015). The circuit court

dismissed the motion as “untimely,” “frivolous,” and “baseless.” The record does not show that

defendant filed a direct appeal.

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¶7 On March 15, 2017, defendant filed a pro se postconviction petition. In his petition,

defendant alleged (1) a one act, one crime doctrine violation in his underlying convictions; (2) the

truth-in-sentencing statute was improperly applied to him; (3) ineffective assistance of trial

counsel; (4) the three-year MSR period violated the agreed sentence of eight years’ imprisonment

at 85%; and (5) the AHC statute violates due process because it “punishes violators without giving

them fair warning on what conduct it punishes” and does not consider whether offenders can be

sentenced under the truth-in-sentencing statute.

¶8 On April 19, 2017, the circuit court entered a written order dismissing defendant’s

postconviction petition as “frivolous and patently without merit.” Relevant here, the circuit court

stated defendant’s claim regarding the constitutionality of the AHC statute was “meritless”

because “[s]everal recent appellate court panels have upheld the [AHC] statute as constitutional

and concluded that it does not violate due process nor is it facially unconstitutional.”

¶9 On appeal, defendant argues for the first time that because all Illinois citizens, including

felons, are eligible to legally possess firearms under the Firearm Owners Identification (FOID)

Card Act (430 ILCS 65/1 et seq. (West 2014)), the AHC statute (720 ILCS 5/24-1.7(a) (West

2014)), which criminalizes the lawful and unlawful possession of firearms by certain felons, is

facially unconstitutional.

¶ 10 Generally, claims not raised in a postconviction petition are forfeited. People v. Petrenko,

(2010). However, a defendant may raise a facial challenge to the statute

under which he has been convicted at any time. People v. Thompson,

.

Whether a statute is constitutional is a question of law we review de novo. People v. Davis,

.

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¶ 11 “There is a strong presumption that a statute is constitutional, and the party challenging its

constitutionality bears the burden of clearly establishing that the statute violates the constitution.”

People v. Clark,

, ¶ 9. Thus, where there is a reasonable way to do so, courts have

a duty to construe statutes to uphold their constitutionality. People v. Thurow,

(2003). Facial challenges to the constitutionality of statutes are the most difficult challenges to

mount. Davis,

. That is because a statute is facially unconstitutional only if

there are no circumstances in which the statute could be validly applied.

“A statute is not

facially invalid merely because it could be unconstitutional in some circumstances.” (Emphasis in

original.) People v. West,

. Accordingly, a facial challenge fails if

any circumstance exists where the statute could be validly applied.

¶ 12 When, as here, a statute “does not affect a fundamental constitutional right,” we determine

its constitutionality using the “highly deferential rational basis test.” People v. Madrigal,

(2011); People v. Fulton,

(applying the rational

basis test to the AHC statute). Under this test, a statute will be upheld “so long as it bears a rational

relationship to a legitimate legislative purpose and is neither arbitrary nor unreasonable.” People

v. Hollins,

. Although the legislature has “wide discretion” to determine

penalties for criminal offenses, “this discretion is limited by the constitutional guarantee of

substantive due process, which provides that a person may not be deprived of liberty without due

process of law.” Madrigal,

. A statute violates due process “if it potentially

subjects wholly innocent conduct to criminal penalty without requiring a culpable mental state

beyond mere knowledge.”

. In that situation, the statute “fails the rational basis test

because it does not represent a reasonable method of preventing the targeted conduct.”

.

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¶ 13 A person commits the offense of AHC if he “receives, sells, possesses, or transfers any

firearm after having been convicted a total of 2 or more times of any combination” of several

enumerated felonies. 720 ILCS 5/24-1.7 (

). Relevant here, these include unlawful use

of a weapon by a felon and robbery. 720 ILCS 5/24-1.7(a)(1), (2) (

); 720 ILCS 5/2-8

(

).

¶ 14 Under section 8(c) of the FOID Card Act (430 ILCS 65/8(c) (

)), a person who

is convicted of a felony may have his FOID card seized or revoked, or his application denied. Still,

section 10(c) of the FOID Card Act (430 ILCS 65/10(c) (

)) provides that a circuit court

may grant relief to a FOID card applicant prohibited from obtaining a card under section 8(c)

where he establishes certain requirements to the court’s satisfaction. Thus, a felon can acquire a

FOID card and become legally authorized to possess a firearm.

¶ 15 This court has considered and rejected facial challenges to the AHC statute on several

occasions. West,

; People v. Brown,

; Fulton,

; People v. Johnson,

.

We have held:

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

in the [AHC] 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. [Citation.] The [AHC] statute was enacted to help

protect the public from the threat of violence that arises when repeat offenders possess

firearms. [Citation.] The Supreme Court explicitly noted in District of Columbia v. Heller,

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

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longstanding prohibitions on the possession of firearms by felons.” [Citation.] ***

Accordingly, we find that the potential invalidity of the [AHC] statute in one very unlikely

set of circumstances does not render the statute unconstitutional on its face.’ ” Fulton,

(quoting Johnson,

).

¶ 16 Here, defendant has not demonstrated that the AHC statute is facially unconstitutional. The

legislature enacted the AHC statute to protect the public from the danger posed by repeat offenders

possessing firearms. Davis, 408 Ill. App. 3d at 750. The AHC statute can be validly applied in

cases such as this, where a twice-convicted felon does not possess a FOID card. While an

individual twice convicted of the offenses outlined in the AHC statute might conceivably receive

a FOID card and, thus, legally possess a firearm, that unlikely circumstance is insufficient to

establish that the statute is facially unconstitutional. Johnson,

.

¶ 17 Defendant concedes that this court’s prior holdings contradict his position on appeal.

Nevertheless, defendant argues that Coram v. State of Illinois,

, confirms a

constitutional guarantee for “individualized consideration” of whether a person may legally

possess a firearm, and thus requests that we depart from our holdings and find the AHC statute

facially unconstitutional. In Coram, the Illinois State Police denied the applicant a FOID card

because, under federal law, the applicant’s prior misdemeanor domestic battery conviction barred

him from possessing a firearm. Coram,

. The Illinois supreme court determined

that, under the version of the FOID Card Act in effect when the applicant applied for his FOID

card, nothing prevented the trial court from granting relief from the federal firearm disability. Id.

¶ 9. Consistent with the Illinois Constitution’s guarantee of “the right of the individual citizen to

keep and bear arms” (Ill. Const. 1970, art. 1, § 22), Coram found that the FOID Card Act mandated

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“individual assessment of a person’s application and circumstances” and “individualized judicial

consideration of the basis for denial of a FOID card.” (Emphasis omitted.) Coram,

.

¶ 18 As defendant notes, however, in both Fulton and Johnson this court found Coram

inapplicable because it analyzed an older version of the FOID Card Act in upholding the

individualized consideration of a person’s right to possess a firearm. Fulton,

; Johnson,

. In Fulton, we further distinguished Coram

because it did not address the constitutionality of the AHC statute. Fulton,

. We decline to depart from our prior holdings on this issue, and therefore reject

defendant’s claim that the AHC statute is facially unconstitutional.

¶ 19 For the foregoing reasons, we affirm the circuit court’s summary dismissal of defendant’s

postconviction petition.

¶ 20 Affirmed.

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