2014 IL App (1st) 132681

FIFTH DIVISION

September 30, 2014

No. 1-13-2681

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court of

Plaintiff-Appellee, ) Cook County.

)

v. ) No. 12 CR 15882

)

NICHOLAS CLAXTON, ) Honorable

) James B. Linn,

Defendant-Appellant. ) Judge Presiding.

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

Presiding Justice Palmer and Justice Gordon concurred in the judgment and opinion.

OPINION

¶ 1 Following a jury trial, defendant Nicholas Claxton was convicted of unlawful use of a 

weapon by a felon (UUWF) and sentenced to 10 years' imprisonment. On appeal, defendant 

contends that his conviction must be reversed because his only prior felony conviction is for a 

version of aggravated unlawful use of a weapon (AUUW) that has been found facially 

unconstitutional. For the reasons stated below, we reverse.

¶ 2 Defendant was charged with multiple counts of UUWF for possessing on his person a 

firearm and ammunition on or about July 28, 2012, and for possessing on his land, abode, or 

person a firearm and ammunition between July 28 and August 4, 2012. All counts alleged that 

he did so while having been convicted of AUUW in case No. 11 CR 16293, and all sought a 

Class X sentence on an allegation that he committed UUWF while possessing body armor. 

Defendant was also charged with cyberstalking for sending "picture texts" as described below to 

Herbert Brown that he knew or should have known would cause a reasonable person to fear for 

his safety or the safety of another and to suffer emotional distress.
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¶ 3 Defendant filed a motion to dismiss the UUWF charges, citing Moore v. Madigan, 702 

F.3d 933 (7th Cir. 2012), finding the UUW and AUUW statutes unconstitutional. Noting that 

the ramifications of the federal decision were uncertain (the court of appeals had stayed its 

mandate to allow the legislature to amend the statutes) the court denied dismissal.

¶ 4 At trial, the evidence showed that defendant "texted" to his former coworker Brown a 

photograph of himself wearing a bulletproof vest and holding a shotgun. A search of defendant's 

home with the consent of a woman with whom he was living disclosed a bag containing a loaded 

shotgun, loose ammunition and a vest. The woman testified to seeing the bag, shotgun, and vest 

in their home before the search. Testing showed that the vest contained "ballistic-grade highstrength fibers" and ceramic armor plates suitable to stop 7.62-millimeter rifle-fired ammunition. 

On this evidence, the jury found defendant guilty of UUWF of a firearm and UUWF of 

ammunition, also finding that he possessed body armor during these offenses, while finding him 

not guilty of cyberstalking.

¶ 5 In his unsuccessful posttrial motion, defendant argued the unconstitutionality under 

Moore of his predicate conviction for AUUW.

¶ 6 In case No. 11 CR 16293, defendant was charged with and tried upon two counts of 

AUUW based on having an "uncased, loaded, and immediately accessible" firearm on his person 

outside his land or abode on a public way. 720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(2), (a)(3)(A) 

(West 2010). While he was also charged with aggravated discharge, the court granted a directed 

finding on that charge. Defendant's only prior offenses other than AUUW (with a sentence of 18 

months' probation) were for reckless conduct and misdemeanor theft, for which defendant 

received supervision.
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¶ 7 Following arguments in aggravation and mitigation, the court sentenced defendant to the 

minimum sentence of 10 years' imprisonment for the Class X offense of UUWF while wearing 

body armor. This appeal timely followed.

¶ 8 On appeal, defendant contends that his UUWF conviction must be reversed because his 

only prior felony conviction is for a version of AUUW found facially unconstitutional by the 

Illinois Supreme Court. The State responds that it proved beyond a reasonable doubt that 

defendant was a convicted felon when he possessed a firearm and ammunition in 2012 as 

charged, and the State challenges our jurisdiction to consider the validity of the prior AUUW 

conviction. Defendant replies that his AUUW conviction is void ab initio and cannot serve as 

the predicate for his UUWF conviction, so that we have jurisdiction to consider the validity of 

the AUUW conviction insofar as it underpins the instant UUWF conviction.

¶ 9 As of 2011, the time of defendant's offense in case No. 11 CR 16293, the UUW statute 

prohibited a person from carrying or concealing on or about his person, or in any vehicle, a 

firearm except when on his land or in his abode or fixed place of business (720 ILCS 

5/24-1(a)(4) (West 2010)) while the AUUW statute prohibited the same with any of various 

additional factors, including that the firearm "was uncased, loaded and immediately accessible." 

720 ILCS 5/24-1.6(a)(3)(A) (West 2010). Specifically, sections 24-1.6(a)(1) and (a)(2) 

concerned when a person either:

"(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 or fixed place of business *** [a] 

firearm; or
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(2) Carries or possesses on or about his or her person, upon 

any public street, alley, or other public lands within the corporate 

limits of a city, village or incorporated town, except when an 

invitee thereon or therein, for the purpose of the display of such 

weapon or the lawful commerce in weapons, or except when on his 

or her own land or in his or her own abode or fixed place of 

business *** [a] firearm." 720 ILCS 5/24-1.6(a)(1), (a)(2) (West

2010).

¶ 10 In Moore, the United States Court of Appeals for the Seventh Circuit found the UUW and 

AUUW statutes unconstitutional. The United States Supreme Court has found that the second 

amendment creates a personal right, binding upon the states through the fourteenth amendment 

(U.S. Const., amend. XIV, ' 1), "to keep and bear arms for lawful purposes, most notably for 

self-defense within the home." McDonald v. City of Chicago, 561 U.S. 742, ___, 130 S.Ct. 

3020, 3044 (2010) (citing District of Columbia v. Heller, 554 U.S. 570 (2008)). The Seventh 

Circuit found in Moore that the "right to bear arms for self-defense *** is as important outside 

the home as inside," found that the UUW and AUUW statutes create a "uniquely sweeping ban," 

and remanded the case to the federal district court for declarations of unconstitutionality and 

injunctive relief. Moore, 702 F.3d at 942. The Seventh Circuit noted that the right to keep and 

bear arms does not preclude "the usual prohibitions of gun ownership by children, felons, illegal 

aliens, lunatics, and in sensitive places such as public schools, the propriety of which was not 

questioned in Heller." Moore, 702 F.3d at 940 (citing Heller, 554 U.S. at 626). However, the 

UUW and AUUW statutes create "a flat ban on carrying ready-to-use guns outside the home." 

Moore, 702 F.3d at 940. The Seventh Circuit stayed its mandate "to allow the Illinois legislature 
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to craft a new gun law that will impose reasonable limitations, consistent with the public safety 

and the Second Amendment as interpreted in this opinion, on the carrying of guns in public." 

Moore, 702 F. 3d at 942. The General Assembly has since amended the UUW and AUUW 

statutes pursuant to Moore. Pub. Act 98-0063 (eff. July 9, 2013).

¶ 11 In People v. Aguilar, 2013 IL 112116, our supreme court recently decided to follow 

Moore in that "neither Heller nor McDonald expressly limits the second amendment's 

protections to the home," holding that "on its face, the Class 4 form of section 24-1.6(a)(1), 

(a)(3)(A), (d) violates the right to keep and bear arms, as guaranteed by the second amendment to 

the United States Constitution." Aguilar, 2013 IL 112116, ¶¶ 20, 22.

"Of course, in concluding that the second amendment 

protects the right to possess and use a firearm for self-defense 

outside the home, we are in no way saying that such a right is 

unlimited or is not subject to meaningful regulation. [Citation.] 

That said, we cannot escape the reality that, in this case, we are 

dealing not with a reasonable regulation but with a comprehensive 

ban. Again, in the form presently before us, the Class 4 form of 

section 24-1.6(a)(1), (a)(3)(A), (d) categorically prohibits the 

possession and use of an operable firearm for self-defense outside 

the home. In other words, the Class 4 form of section 24-1.6(a)(1), 

(a)(3)(A), (d) amounts to a wholesale statutory ban on the exercise 

of a personal right that is specifically named in and guaranteed by 

the United States Constitution, as construed by the United States 
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Supreme Court. In no other context would we permit this, and we 

will not permit it here either." Id. ¶ 21.

The Aguilar court also affirmed as constitutional a conviction for possessing a concealable 

firearm while under 18 years of age (720 ILCS 5/24-3.1(a)(1) (West 2008)), finding that the 

constitutional right to keep and bear arms does not extend to minors. Aguilar, 2013 IL 112116,

¶¶ 24-28.

¶ 12 Since Moore and Aguilar, this court has followed the direction therein regarding firearm 

possession by felons and upheld convictions for UUWF and for the Class 2 form of AUUW; that 

is, AUUW by a felon. People v. Moore, 2014 IL App (1st) 110793-B, ¶ 16; People v. Soto, 2014 

IL App (1st) 121937, ¶¶ 12-14; People v. Campbell, 2014 IL App (1st) 112926, ¶¶ 51-60; People 

v. Burns, 2013 IL App (1st) 120929, appeal allowed, No. 117387 (Ill. May 28, 2014); People v. 

Neely, 2013 IL App (1st) 120043, ¶¶ 7-15; People v. Garvin, 2013 IL App (1st) 113095, ¶¶ 12-

16; but see People v. Gayfield, 2014 IL App (4th) 120216-B (vacating conviction for Class 2 

AUUW).

¶ 13 Also since Aguilar, this court has considered the issue raised here: whether a conviction 

for UUWF may stand where the defendant's predicate felony is a version of UUW or AUUW 

that is unconstitutional under Aguilar.

¶ 14 In People v. McFadden, 2014 IL App (1st) 102939, appeal allowed, No. 117424 (Ill. 

May 28, 2014), we vacated a UUWF conviction where the predicate felony was Class 4 AUUW, 

agreeing with the defendant that "under Aguilar, the State could not rely on this now-void 

conviction to serve as a predicate offense for UUW by a felon. Therefore, it failed to prove an 

essential element of the offense." Id. ¶ 38. Because the prior felony conviction is an element of 

UUWF that must be proven beyond a reasonable doubt by the State, we held that a void 
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conviction for the Class 4 form of AUUW found unconstitutional in Aguilar cannot serve as a 

predicate offense. Id. ¶¶ 42-43 (citing People v. Walker, 211 Ill. 2d 317 (2004)). While we 

found that "because defendant's case is pending on direct appeal in this court, *** we cannot 

ignore Aguilar's effects on his conviction for UUW by a felon," we refrained from "vacating 

defendant's AUUW conviction *** pursuant to Aguilar" and "decline[d] to address whether 

formal proceedings for collateral relief may be available to defendant to vacate his conviction in 

that case." Id. ¶¶ 41, 44.

¶ 15 In People v. Fields, 2014 IL App (1st) 110311, the defendant argued that his armed 

habitual criminal conviction must be reversed in light of Aguilar; that is, because his prior 

conviction for Class 4 AUUW is void under Aguilar, the State could not rely on it as a predicate 

offense for armed habitual criminal so that it failed to prove an element of the offense of armed 

habitual criminal. Id. ¶¶ 38-39. We held:

"[W]e cannot allow defendant's 2005 Class 4 AUUW conviction, 

which we now know is based on a statute that was found to be 

unconstitutional and void ab initio in Aguilar to stand as a 

predicate offense for defendant's armed habitual criminal 

conviction, where the State is required to prove each element of the 

Class 4 AUUW beyond a reasonable doubt. A void conviction for 

the Class 4 form of AUUW found to be unconstitutional in Aguilar

cannot now, nor can it ever, serve as a predicate offense for any 

charge. Because the issue was raised while defendant's appeal was 

pending, we are bound to apply Aguilar and vacate defendant's 

armed habitual criminal conviction because the State could not 
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prove an element of the offense of armed habitual criminal through 

the use of a predicate felony conviction that is void ab initio." Id.

¶ 44.

As in McFadden, we "emphasize[d] that we are not vacating defendant's AUUW conviction ***

pursuant to Aguilar. We decline to address whether formal proceedings for collateral relief may 

be available to defendant to vacate his 2005 felony UUW conviction." Id. ¶ 45.

¶ 16 Here, as noted above, the State has contended that we lack jurisdiction to review 

defendant's AUUW conviction. However, defendant is timely and directly appealing his UUWF 

conviction on the contention that it cannot stand if the predicate felony, his AUUW conviction, is 

void ab initio. A statute declared unconstitutional on its face is void ab initio; that is, "was 

constitutionally infirm from the moment of its enactment and, therefore, is unenforceable." 

People v. Davis, 2014 IL 115595, ¶ 25. We followed this principle in Fields and McFadden, 

finding that we could consider the effect of the prior or predicate conviction on the presentlyappealed conviction while refusing to grant relief upon the prior conviction itself. We find that 

the clear effect of Aguilar in light of Davis (void ab initio) and Walker (predicate felony as 

element of UUWF) is that a conviction for UUW or AUUW unconstitutional under Aguilar is 

void ab initio and cannot serve as the elemental predicate felony for UUWF so that this court 

both has jurisdiction to and must reverse the UUWF conviction for the absence of an element. In 

sum, we agree with Fields and McFadden.

¶ 17 The State argues against this effect by citing federal cases, led by Lewis v. United States, 

445 U.S. 55 (1980), for the proposition that "the status of the prior felony conviction at the time 

he or she possesses the firearm controls, regardless of whether that prior conviction might later 

be invalidated or found to be unconstitutional." The State also argues that if we reverse 
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defendant's UUWF conviction, we will sow uncertainty; that adhering to Fields and McFadden

"would prevent the prosecution from proving that a defendant previously had been convicted of a 

qualifying felony at the time he possessed a firearm if, after defendant possessed the gun, his 

predicate conviction was later reversed on appeal for any reason."

¶ 18 The latter argument is disingenuous: we have repeatedly expounded upon the difference 

between void and voidable judgments, and the State has in various cases ably argued that 

distinction. To give a relevant example, "any reason" does not render a statute void ab initio, 

only facial unconstitutionality, which is the most difficult challenge to make because a statute is 

facially unconstitutional only if there are no circumstances where it could be validly applied. 

Davis, 2014 IL 115595, ¶ 25. Notably, while cases stating a new constitutional rule are generally 

not applied retroactively to cases on collateral review (which is not the stance of this case but the 

similarity is edifying), substantive rules apply retroactively. Davis, 2014 IL 115595, ¶ 36.

" 'This includes decisions that narrow the scope of a criminal 

statute by interpreting its terms [citations], as well as constitutional 

determinations that place particular conduct or persons covered by 

the statute beyond the State's power to punish [citations]. Such 

rules apply retroactively because they necessarily carry a 

significant risk that a defendant stands convicted of an act that the 

law does not make criminal or faces a punishment that the law 

cannot impose upon him.' " (Internal quotation marks omitted.) 

Id. (quoting Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004)

(and cases cited therein)).
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By contrast, new rules of procedure generally do not apply retroactively because they " 'do not 

produce a class of persons convicted of conduct the law does not make criminal, but merely raise 

the possibility that someone convicted with use of the invalidated procedure might have been 

acquitted otherwise,' " so that only watershed rules of criminal procedure implicating the 

fundamental fairness and accuracy of proceedings are retroactive. Davis, 2014 IL 115595, 

quoting Schriro, 542 U.S. at 352. There is no more apt description of what our supreme court 

did in Aguilar than that it placed particular conduct covered by the UUW and AUUW statutes

beyond the State's power to punish.

¶ 19 Turning to the federal cases cited by the State, we note first and foremost that federal 

cases interpreting federal statutes are not binding upon us as we interpret Illinois statutes but are 

merely persuasive authority. We do not find the State's cases persuasive as they are based 

fundamentally on an assertion -- that the " 'distinction between a conviction that is "invalid" and 

one that is "void from its inception" depends too much on semantics' " (United States v. Padilla, 

387 F.3d 1087, 1091-92 (9th Cir. 2004), quoting United States v. Mayfield, 810 F.2d 943, 945 

(10th Cir. 1987)) -- with which we respectfully disagree. As stated above, Illinois courts have 

maintained the distinction between void and voidable judgments, and we shall not abandon it 

now.

¶ 20 In his prior case, defendant was convicted of the Class 4 felony of AUUW under section 

24-1.6(a)(1), (a)(3)(A), and (a)(2), (a)(3)(A). We note that our supreme court in Aguilar

professed to "make no finding, express or implied, with respect to the constitutionality or 

unconstitutionality of any other section or subsection of the AUUW statute." Aguilar, 2013 IL 

112116, ¶ 22 n.3. Thus, one of the two counts of AUUW underlying his AUUW conviction is 

potentially distinguishable from those reversed in Aguilar insofar as sections 24-1.6(a)(1) and 
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(a)(2) are distinguishable. Practically, the point of distinction is that paragraph (a)(2) allows for 

a person to be declared an invitee on the public way or public land for purposes of displaying or 

selling firearms. However, this invitee provision does not protect the right to possess a firearm 

outside the home for self-defense but for the limited purposes of display and commerce; in this 

regard we note that the Seventh Circuit in Moore found the statutes before it unconstitutional 

despite an invitee provision. See People v. Akins, 2014 IL App (1st) 093418-B, ¶ 11 (applying 

Aguilar to AUUW under section 24-1.6(a)(2)). Pursuant to Aguilar, we find that defendant's 

AUUW conviction for the Class 4 felony form of section 24-1.6(a)(1), (a)(3)(A) or (a)(2),

(a)(3)(A) is void ab initio. As such, it cannot serve as an essential element of his UUWF 

conviction so that his UUWF conviction must be reversed.

¶ 21 Accordingly, the judgment of the circuit court is reversed.

¶ 22 Reversed.