2014 IL App (4th) 120454

NO. 4-12-0454

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from 

Plaintiff-Appellee, ) Circuit Court of

v. ) Sangamon County

DION GREEN, ) No. 11CF459

Defendant-Appellant. )

) Honorable

) John Schmidt,

) Judge Presiding.

______________________________________________________________________________

JUSTICE POPE delivered the judgment of the court, with opinion.

Justices Holder White and Steigmann concurred in the judgment and opinion.

OPINION

¶ 1 In August 2011, pursuant to a fully negotiated plea agreement, defendant pleaded 

guilty to armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2010)) in exchange for the State's 

agreement to dismiss two additional charges and to recommend a 10-year prison sentence.

¶ 2 One of the two underlying felony offenses the State used to satisfy the 

requirements of the armed habitual criminal statute was a prior conviction for aggravated 

unlawful use of a weapon (720 ILCS 5/24-1.6 (West 2000)). In September 2013, our supreme 

court held section 24-1.6(a)(1), (a)(3)(A) of the aggravated unlawful use of a weapon statute 

unconstitutional in People v. Aguilar, 2013 IL 112116. In December 2013, our supreme court 

modified its earlier opinion and emphasized its unconstitutionality finding is limited to the Class 

4 form of the statute.

FILED

January 30, 2014

Carla Bender

4th District Appellate

Court, IL
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¶ 3 On appeal, defendant contends his fully negotiated guilty plea leading to a 

conviction for armed habitual criminal is void because one of the underlying offenses used to 

satisfy the armed habitual criminal statute, i.e., aggravated unlawful use of a weapon, was found 

unconstitutional by our supreme court. 

¶ 4 We affirm.

¶ 5 I. BACKGROUND

¶ 6 In June 2011, the State charged defendant, Dion Green, by information with 

armed habitual criminal, a Class X felony (count I) (720 ILCS 5/24-1.7(a), (b) (West 2010)); 

aggravated assault, a Class 4 felony (count II) (720 ILCS 5/12-2(a)(6), (b) (West 2010)); and 

aggravated unlawful use of a weapon, a Class 2 felony (count III) (720 ILCS 5/24-1.6(a)(1), 

(a)(3)(C), (d) (West 2010)).

¶ 7 In August 2011, pursuant to a fully negotiated plea agreement, defendant pleaded 

guilty to armed habitual criminal (count I) in exchange for a 10-year prison sentence and the 

State’s agreement to dismiss counts II and III. Prior to accepting the plea agreement, the trial 

court admonished defendant the offense of armed habitual criminal was a Class X felony, and 

defendant would be required to serve 85% of his sentence, followed by three years of mandatory 

supervised release (MSR). The factual basis given by the State for the offense, and stipulated to 

by defendant, was defendant was observed by police officers in possession of a silver handgun. 

Following a short foot pursuit, defendant was apprehended. Although he no longer had the 

firearm on his person, police found the handgun along the path defendant ran. The State 

informed the court defendant had previous convictions for aggravated unlawful use of a weapon, 

a Class 2 felony, and manufacture and delivery of a controlled substance, a Class 1 felony; thus 
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defendant satisfied the requirements of the armed habitual criminal statute. Pursuant to the 

agreement, the court sentenced defendant to 10 years’ imprisonment for armed habitual criminal 

(720 ILCS 5/24-1.7(a) (West 2010)). Defendant took no direct appeal. 

¶ 8 In January 2012, defendant filed a postconviction petition asserting (1) ineffective 

assistance of trial counsel because he did not have three prior Class X felony convictions 

qualifying him for sentencing under the armed habitual criminal statute (720 ILCS 5/24-1.7(a) 

(West 2010)) and, thus, was not an armed habitual criminal; and (2) the three-year MSR term 

violated double jeopardy and due process. In April 2012, the trial court dismissed defendant’s 

petition, finding it frivolous and without constitutional merit. In so concluding, the court noted 

contrary to defendant’s assertion, the armed habitual criminal statute requires only two certain 

felony convictions rather than three. According to the court, defendant’s convictions for 

aggravated unlawful use of a weapon and delivery of a controlled substance satisfied the armed 

habitual criminal statute. Further, the court found defendant’s sentence did not violate his due 

process and double jeopardy rights because defendant agreed to the sentence. Defendant 

appealed. 

¶ 9 In May 2012, the office of the State Appellate Defender (OSAD) was appointed 

to represent defendant on appeal. In June 2013, OSAD filed a motion to withdraw as counsel 

pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). Defendant filed additional points and 

authorities and the State responded. On September 16, 2013, OSAD filed a motion to withdraw 

its Finley motion following our supreme court’s decision in Aguilar, 2013 IL 112116. This court 

allowed OSAD’s motion. In October 2013, OSAD and the State both filed additional briefs. On 

December 19, 2013, after the issue in this case had been briefed by the parties, our supreme court 
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issued a modified opinion upon denial of rehearing in Aguilar that limited its prior holding. 

¶ 10 II. ANALYSIS

¶ 11 On appeal, the issue before us is whether our supreme court’s recent decision in 

Aguilar renders defendant’s conviction for armed habitual criminal void. Defendant contends 

his fully negotiated guilty plea leading to a conviction for armed habitual criminal is void 

because one of the underlying offenses used to satisfy the armed habitual criminal statute, i.e., 

aggravated unlawful use of a weapon, was found unconstitutional by our supreme court. The 

State disagrees and asserts the fully negotiated plea agreement is valid because both the State and 

defendant received the benefit of the bargain and defendant was not prejudiced by the Aguilar 

decision. We agree with the State and affirm. 

¶ 12 In Aguilar, our supreme court concluded the Class 4 form of section 24-1.6(a)(1), 

(a)(3)(A), (d) of the aggravated unlawful use of a weapon statute is unconstitutional because it 

violates the second amendment's guarantee of the right to keep and bear arms. Aguilar, 2013 IL 

112116, ¶ 22. That section provided as follows:

"(a) A person commits the offense of aggravated unlawful 

use of a weapon when he or she knowingly:

(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 
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permission, any pistol, revolver, stun gun or taser or 

other firearm; [and]

***

(3) One of the following factors is present:

(A) the firearm possessed 

was uncased, loaded and 

immediately accessible at the time of 

the offense[.]" 720 ILCS 5/24-

1.6(a)(1), (a)(3)(A) (West 2010). 

¶ 13 In this case, it is unclear from the Cook County sentencing judgment whether 

defendant was previously convicted under the now unconstitutional section of the aggravated 

unlawful use of a weapon statute because the sentencing judgment simply lists the applicable 

statute as "720 [ILCS] 5/24-1.6(A)(1)(3)". Count VIII of the 19-count indictment charged 

defendant with violating section 24-1.6(a)(1), (a)(3)(A) of the unlawful use of a weapon statute 

(720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2000))—the Class 4 form of the section of the statute 

found unconstitutional in Aguilar. However, count IX charged defendant with violating section 

24-1.6(a)(1), (a)(3)(C) of the aggravated unlawful use of a weapon statute (720 ILCS 5/24-

1.6(a)(1), (a)(3)(C) (West 2000)), which deals with the possession of a firearm without a valid 

firearm owner's identification card. Without the corresponding "A" or "C" on the sentencing 

judgment, or if "A," the class of felony, this court is unable to determine whether defendant was 

convicted under the unconstitutional section of the statute. We note the description of the 

offense, "AGG UUW/VEHICLE/PREV CONVICTION" does not assist in our determination, 
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nor are the "count" numbers associated with each offense on the mittimus correct. For example, 

the mittimus reflects count IV is the aggravated unlawful use of a weapon charge, but count IV 

charged defendant with aggravated battery with a firearm. According to the factual basis for the 

plea agreement provided by the State—and stipulated to by defense counsel—defendant's 

previous conviction for aggravated unlawful use of a weapon was a Class 2 felony. Thus, 

pursuant to the stipulated factual basis, following our supreme court's modified opinion, Aguilar

does not apply. 

¶ 14 Even if this court were to conclude defendant's conviction for aggravated 

unlawful use of a weapon fell under the Class 4 form of the section of the statute ruled 

unconstitutional in Aguilar (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010)), we would not find 

his fully negotiated plea agreement invalid or his conviction for armed habitual criminal void. 

Here, the record reflects, in addition to defendant's conviction for aggravated unlawful use of a 

weapon, he was also convicted of unlawful use of a weapon by a felon (720 ILCS 5/24-1.1 (West 

2000)) and aggravated battery with great bodily harm (720 ILCS 5/12-4 (West 2000)) in the 

same proceedings. Further, defense counsel stipulated at the plea-agreement hearing defendant 

had a prior conviction for manufacture and delivery of a controlled substance, a Class 1 felony. 

The armed habitual criminal statute provides as follows:

"(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-
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8 of this Code; 

(2) unlawful use of a weapon by a felon ***; 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." 720 

ILCS 5/24-1.7 (West 2010).

A "[f]orcible felony" includes, among other offenses, "aggravated battery resulting in great 

bodily harm or permanent disability or disfigurement and any other felony which involves the 

use or threat of physical force or violence against any individual." 720 ILCS 5/2-8 (West 2010). 

Here, defendant clearly has at least two prior felonies—other than the conviction for aggravated 

unlawful use of a weapon—that would satisfy the armed habitual criminal statute. 

¶ 15 Our supreme court has recognized the plea-bargaining process is vital to our 

criminal justice system as it encourages "prompt disposition of cases, preserves finite judicial 

and financial resources, and allows the State to focus its prosecutorial efforts where they are 

most needed." People v. Donelson, 2013 IL 113603, ¶ 18, 989 N.E.2d 1101. Plea agreements 

are enforceable contracts and, when appropriate, courts will apply contract law principles to plea 

agreements. Id. In this case, the State dropped two pending felony charges against defendant 

and agreed to a 10-year prison sentence in exchange for his guilty plea to armed habitual 

criminal. Although the Aguilar decision may have rendered defendant's conviction for 

aggravated unlawful use of a weapon unconstitutional—which is not demonstrated by the record 

before us—defendant had at least two other qualifying felony convictions that satisfied the 

armed habitual criminal statute. Defendant received the benefit of his bargain (two additional 
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charges were dropped and a sentence agreed to) and he was not prejudiced (as the prosecutor 

could have listed another qualifying felony conviction and he received the benefit of his 

bargain). His fully negotiated plea agreement is not void and we decline to remand so defendant 

may withdraw his guilty plea. 

¶ 16 III. CONCLUSION

¶ 17 For the reasons stated, we affirm. As part of our judgment, we award the State its 

$50 statutory assessment against defendant as costs of this appeal. 

¶ 18 Affirmed.