Opinion filed August 4, 2022 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2022

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) Appeal Nos. 3-19-0761 & 3-20-0136 v. ) Circuit Nos. 18-CF-259 & 18-CF-379 ) OMAR R. BROOKS and ) TARON R. BELL, III, ) Honorable ) Paul P. Gilfillan, Defendants-Appellants. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE HAUPTMAN delivered the judgment of the court, with opinion. Presiding Justice O’Brien and Justice Daugherity concurred in the judgment and opinion. ____________________________________________________________________________

OPINION

¶1 Defendants, Omar R. Brooks and Taron R. Bell III, were separately charged with

aggravated unlawful use of a weapon, a class 4 felony. Defendants’ cases were consolidated in

the circuit court for the purpose of challenging the constitutionality of the statute under which

they were charged. The circuit court denied defendants’ motions to declare the statute

unconstitutional, and both defendants proceeded to stipulated bench trials. Defendants were

convicted and sentenced to terms of probation. In this consolidated appeal, defendants assert that the aggravated unlawful use of a weapon statute violates the proportionate penalties clause of the

Illinois Constitution.

¶2 I. BACKGROUND

¶3 On May 22, 2018, the State charged Omar Brooks by superseding indictment with

aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1) (West 2018)), a class 4

felony, and possession of a firearm without a valid Firearm Owner’s Identification (FOID) Card

(430 ILCS 65/2(a)(1) (West 2018)), a class A misdemeanor. Regarding the AUUW charge, the

indictment alleged that on or about May 9, 2018, defendant “knowingly carried on his person

immediately accessible to him, a loaded, uncased handgun at a time when he was on the land of

another at 2403 W. Sheridan in Peoria, Illinois not as an invitee and not with the permission of

the landowner and he did not have a currently valid FOID card or currently valid license under

the Firearm Concealed Carry Act at the time of the offense.”

¶4 Similarly, on July 10, 2018, the State charged Taron Bell by superseding indictment with

AUUW (720 ILCS 5/24-1.6(a)(1) (West 2018)), a class 4 felony, and possession of a firearm

without a valid FOID card (430 ILCS 65/2(a)(1) (West 2018)), a class A misdemeanor.

Regarding the AUUW charge, the indictment alleged that on or about June 25, 2018, defendant

“knowingly carried an uncased, loaded handgun on his person that was immediately accessible to

him at a time when he was on a public street being Folkers within the corporate city limits of

Peoria, Illinois and he had not been issued a currently valid FOID card or firearm concealed

carry license.”

¶5 Separate assistant public defenders were appointed to represent defendants. On

November 1, 2018, both defendants filed a motion to declare the AUUW statute unconstitutional.

Defendants alleged that they were unlawfully deprived of their right to carry a firearm openly for

2 self-defense outside of the home under both the Illinois and United States constitutions.1 For this

reason, defendants requested that the court quash their arrests and suppress evidence obtained

from the purported illegal arrests. On February 19, 2019, defendants filed amended motions to

declare the AUUW statute unconstitutional. The amended motions added an argument that the

costs associated with procuring a concealed carry license under the Firearm Concealed Carry Act

(430 ILCS 66/1 et seq. (West 2018)) unlawfully hindered the defendants’ rights to carry a

firearm openly in self-defense.

¶6 Defendants’ motions to declare the statute unconstitutional were heard and denied

following a hearing on September 12, 2019. Defendants’ cases proceeded to separate, stipulated,

bench trials. 2 Following the stipulated evidence, the court found each defendant guilty of

AUUW. Defendants filed motions for a new trial, arguing the court erred when it denied their

motions to declare the AUUW statute unconstitutional. Defendants’ motions were denied, and

defendants were sentenced to terms of probation. Defendants appeal.

¶7 II. ANALYSIS

¶8 In this consolidated appeal, defendants persist in their argument that the AUUW statute is

unconstitutional, albeit on different grounds than those raised in the circuit court. In this court,

defendants posit that the penalty for AUUW violates the proportionate penalties clause of the

Illinois Constitution. Ill. Const. 1970, art. I, § 11. Defendants argue that a felony AUUW

conviction results in a harsher penalty for conduct identical to that proscribed by the

misdemeanor unlawful use of weapons (UUW) statute. 720 ILCS 5/24-1 (West 2018). The State

argues the AUUW statute does not violate the proportionate penalties clause because it requires

1 Counsel for defendants filed separate, but substantially identical, motions on behalf of defendants. Defendants’ cases were consolidated for purposes of arguing the motions. 2 The possession of a firearm without a valid FOID card charges were dismissed in both cases. 3 that the State prove additional aggravating elements not found in the UUW statute. In other

words, the harsher sentence ascribed to an AUUW conviction is warranted because the offense is

more serious in nature.

¶9 Initially, we reiterate that while defendants raised a challenge to the constitutionality of

the AUUW statute in the lower court, their argument at that time differed significantly from the

argument set forth in this court. However, challenges to the constitutionality of a statute may be

raised at any time, so we find defendants’ claim is properly before this court. People v. McCarty,

(2006).

¶ 10 Turning to our analysis, we begin with the presumption that the AUUW statute is

constitutional and that the party challenging the constitutionality of a statute carries the burden of

proving the statute is unconstitutional. People v. Aguilar,

, ¶ 15. If reasonable,

this court is tasked with construing the statute in a manner that upholds the statute’s validity and

constitutionality. Id. We review only those sections and/or subsections of the AUUW statute that

apply to these defendants. People v. McGee,

(2003); see People v.

Mosley,

, ¶ 10. Issues involving the constitutionality of a statute are reviewed

de novo. People v. Sharpe,

(2005).

¶ 11 The proportionate penalties clause of the Illinois Constitution provides that “[a]ll

penalties shall be determined both according to the seriousness of the offense and with the

objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. Criminal

sentences may be found unconstitutionally disproportionate where: (1) the punishment is cruel,

degrading, or so wholly disproportionate to the offense as to shock the moral sense of the

community; (2) similar offenses are compared and the conduct that results in a less serious threat

to the public health and safety is punished more severely; and (3) identical offenses are given

4 different sentences People v. Miller,

(2002). Defendants here contend the

AUUW statute violates the proportionate penalties clause under the third scenario. “[U]nlike

other constitutional violations which are based on the manner in which a single statute operates,

an identical elements proportionality violation arises out of the relationship between two statutes

— the challenged statute, and the comparison statute with which the challenged statute is out of

proportion.” People v. Blair,

. If the two compared statutes exhibit identical

elements, but result in different penalties, then one of these penalties has not been set in

accordance with the seriousness of the offense and is unconstitutionally disproportionate. People

v. Ligon,

; see People v. Clemons,

.

¶ 12 Defendants here were charged and convicted of knowingly possessing, on their persons,

and immediately accessible, a loaded, uncased handgun, at a time when defendants were on the

land of another and/or were on a public street, were not invitees, and did not currently have valid

FOID cards or licenses under the Firearm Concealed Carry Act. Accordingly, the parties agree

that defendants were properly convicted under sections 24-1.6 (a)(1), (a)(3)(A-5), and (a)(3)(C)

of the AUUW statute. 720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5), (a)(3)(C) (West 2018).

¶ 13 Defendant thus asserts that for purposes of an identical elements test, this court is tasked

with comparing sections 24-1.6(a)(1), (a)(3)(A-5) of the AUUW statute with sections 24-

1(a)(4)(i), (ii), and (iv) of the UUW statute, as well as sections 24-1.6(a)(1), (a)(3)(C) of the

AUUW statute with section 24-1(a)(4)(iii) of the UUW statute. 720 ILCS 5/24-1(a)(4) (i), (ii),

(iii), (iv) (West 2018). Accordingly, we limit our analysis to these sections and subsections.

¶ 14 The relevant portions of section 24-1.6 of the AUUW statute provide that:

“(a) A person commits the offense of aggravated unlawful use of a weapon when

he or she knowingly:

5 (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, legal

dwelling, or fixed place of business, or on the land or in the legal dwelling of another

person as an invitee with that person’s permission, any pistol, revolver, stun gun or taser

or other firearm; ***

***

and

(3) One of the following factors is present:

***

(A-5) the pistol, revolver, or handgun possessed was uncased, loaded, and

immediately accessible at the time of the offense and the person possessing the pistol,

revolver, or handgun has not been issued a currently valid license under the Firearm

Concealed Carry Act; or

***

(C) the person possessing the firearm has not been issued a currently valid

Firearm Owner’s Identification Card.” 720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5), (a)(3)(C)

(West 2018).

¶ 15 In comparison, section 24-1(a)(4) of the UUW statue provides that:

“(a) A person commits the offense of unlawful use of weapons when he

knowingly:

***

(4) Carries or possesses in any vehicle or concealed on or about his person except

when on his land or in his own abode, legal dwelling, or fixed place of business, or on the

6 land or in the legal dwelling of another person as an invitee with that person’s

permission, any pistol, revolver, stun gun or taser or other firearm, except that this

subsection (a)(4) does not apply to or affect transportation of weapons that meet one of

the following conditions:

(i) are broken down in a non-functioning state; or

(ii) are not immediately accessible; or

(iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or

other container by a person who has been issued a currently valid Firearm Owner’s

Identification Card; or

(iv) are carried or possessed in accordance with the Firearm Concealed Carry Act

by a person who has been issued a currently valid license under the Firearm Concealed

Carry Act.” 720 ILCS 5/24-1(a)(4) (i), (ii), (iii), and (iv) (West 2018). 3

¶ 16 There is no question that the AUUW and UUW statutes were enacted for the same

purpose, i.e., protecting the police and the public from dangerous weapons. People v. Pulley,

(2004), McGee,

. The question is whether

AUUW is a more serious offense, meriting a harsher punishment. We answer this inquiry in the

affirmative.

¶ 17 Our review of the relevant caselaw reveals that several courts have addressed this

identical issue. In McGee, the First District rejected the defendant’s contention that a comparison

of the AUUW and UUW statutes, as they existed at the time, revealed a violation of the

proportionate penalties clause. 4

. The McGee court acknowledged, much like the

3 The language of section 5/24-1 has been amended several times since the time of the crimes in May/June 2018. However, those subsections relevant in the instant case have remained static. 4 The McGee court analyzed the AUUW and the UUW statutes as they existed in the year 2000.

7 instant case, the defendant’s contention that a person carrying an uncased, loaded, readily

accessible weapon can be convicted under either the AUUW or the UUW statute. Id.; see People

v. Miller,

(2010) (an offense is a lesser-included offense if it is impossible to

commit the greater offense without necessarily committing the lesser offense). However, the

court reasoned that the AUUW offense required proof that the defendant possess a weapon,

while not having a FOID card, that was simultaneously uncased, loaded, and immediately

accessible.

The court found that the simultaneous existence of all these factors was not

required to sustain a UUW conviction, where one could be convicted if the gun was discovered

unloaded or if the gun was loaded but enclosed in a case.

Additionally, the court pointed out

that misdemeanor UUW did not require that the defendant had not been issued a FOID card.

For these reasons, the court held that the more serious conduct required to sustain an AUUW

conviction justified a greater sentence.

¶ 18 Similarly, in Pulley, the First District upheld the constitutionality of the AUUW statute as

it existed at the time following a proportionality challenge. Pulley,

. In so

holding, the court provided that “[u]nder the [AUUW] statute the weapon must be loaded,

uncased and easily accessible to the defendant, whereas under the UUW statute, possession of an

unloaded weapon which is accessible and uncased is sufficient to violate the statute.”

Thus,

the greater potential harm posed by the conduct comprising the AUUW offense justified a

greater sentence.

¶ 19 More recently, in People v. Wiley,

, ¶ 61, the Fourth District

analyzed the same AUUW and UUW statutes before this court and found the offenses were not

identical in violation of the proportionate penalties clause. 5 Citing McGee, the Wiley court

5 Supreme Court Rule 23(e)(1) allows this court to cite nonprecedential orders for persuasive purposes. Ill. S. Ct. R. 23(e)(1) (eff. Jan. 1, 2021). 8 reasoned that had the defendant’s guns been enclosed in a case, he could only have been charged

with UUW and not AUUW. Id. ¶ 60. The court also noted that our supreme court has held that

the factors set forth in section 24-1.6(a)(3) of the AUUW statute are additional elements that

“ ‘transform the crime from ‘simple’ unlawful use of a weapon to aggravated unlawful use of a

weapon.’ ” Id. (quoting People v. Zimmerman,

(2010)).

¶ 20 We find the analyses set forth in the above-mentioned cases persuasive. The

proportionate penalties clause of the Illinois Constitution is not violated where a person

convicted of AUUW may meet the criteria for a UUW conviction, but the opposite is not true. In

other words, the mere fact that UUW is a lesser included offense of AUUW does not render the

AUUW statute unconstitutional. See Mosley,

(generally alluding to the lesser

included nature of UUW in relation to AUUW). For example, a person convicted of aggravated

battery could also have been convicted of simple battery for the same conduct. However, the

facts giving rise to one’s conviction for simple battery are not automatically sufficient to sustain

an aggravated battery conviction where no aggravating circumstances are present. See 720 ILCS

5/12-3.05 (West 2020);

§ 12-3. The same thought exercise applies to the AUUW and UUW

statutes. Under the UUW statute, a conviction may be sustained based on possession of an

unloaded gun that is uncased and immediately accessible or on possession of a loaded gun that is

encased and immediately accessible. An AUUW conviction could not be sustained under either

of these scenarios.

¶ 21 For these reasons, we hold that the AUUW and UUW offenses are not identical.

Therefore, the higher sentence ascribed to an AUUW conviction is not constitutionally

disproportionate. Defendants’ convictions and sentences are affirmed.

9 ¶ 22 III. CONCLUSION

¶ 23 The judgment of the circuit court of Peoria County is affirmed.

¶ 24 Affirmed.

10