FIFTH DI VISI ON November 25, 2009

No. 1-07-3381

THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Co ok Co un ty. ) v. ) No. 06 CR 17755 ) MARCUS BAIL

EY, ) The Hono rable ) Thomas V. Gainer, Defend ant-App ellant. ) Judge Presi ding.

JUSTICE FIT ZGERAL D SMITH deliver

ed the opi nion of the

court: Following a bench trial, defendant Mar cus Bailey

(defendant) was convicted of one c ount of the offense of armed habitual criminal and f our counts of unlawful use of a weapon by a felon. He was sentenced to five concurre nt terms of six years' imprisonment. He appeals, contending that his conviction f

or arme d habitua

l crimina l violates ex post fa cto la ws , a nd th at , a lt er na ti ve ly, one of his convictions for unlawful use of a weapon by a felon is improper. He asks that we reverse and vacate the for mer, or that we vacate the latter. For the following reasons, we affirm in part and reverse in part, and vaca te a portion of defendant's sentence

. BACKGROUND The facts of this cause are not in dispute. On July 26, 2006, police officers Ga llegos and Culhane participated in the execution of three search warrants for

a two-flat residence on West May pole in Chicago. Defendant's nephe w and his family lived on the second f loor, defendant's mother and brother lived on the f irst floor,No. 1-07-3381

2

and defendant and his fiancée lived in the base ment. After announcing their presenc e, officers Gallegos and Culhane entered the first floor and saw defendant at the rear of the residence. They gave c hase and detaine d him in the b asement . Defen dant's n ephew a nd fianc ée wer

e also detaine d. When off

icer Culhane beg an to sea rch the b asement

pursuant to one of t

he warr ants, he recovered four firea

rms from the furnace room: a .45 semiautomatic rifle, a Rug er semiautomatic pistol, a revolver and a loaded handgun. Subsequently, defenda

nt was charged with one count of the off ense of armed habitual criminal and four counts of unlawful use of a wea pon by a felon. De fendant had two prior felony convictions of record, both from November 1997: manufacture and delivery of a controlled substance and possession of a controlled substance with intent to deliver. At trial on the instant charges, defendant' s nephew and fiancée testified on his behalf, a nd defendant himself denied putting a ny f irearms in the fur nace ro om. The tria l court fo und defe ndant g uilty on all five

counts charged

and sente nced him t

o five concurrent terms of seven y ears in prison. Following a motion to reconsider sentence filed by defenda

nt, the court reduced these to five concurr ent terms of six years in prison. ANA LYSIS Defendant's first contention on appeal is that his conviction for the of fense of armed habitual criminal violates the ex post fa cto clauses of the United States and Illinois Constitutions. He asserts that this offense is a substantive new criminal offense and not merely a

n enhancement provi sion . Cit ing People v. Levi n , 157 Ill. 2d 138 (1993), and People v. Dunigan , 165 Ill. 2d 235 (1995), he further claims that, because his two prior c onvictions constituted a necessary elementNo. 1-07-3381

3

of the of fense of armed ha bitual cr iminal and

occurr ed befor e the ef fective date of t his legislation's enactment, these could not be used to support a c onviction under this more recent felony statute and, the

refore, he was improperly punished. As a threshold matter, the State argues that defe ndant has forfeited this argument for our review by f

ailing to object at trial and include it in a posttrial motion. See, e.g. , People v. Enoch , 122 Ill. 2d 176, 186 (1988). While it is true, and defendant conc edes, that he did not preserve this issue accordingly , we note that we are dealing with a c onstitutional challenge involving the validity of a statute. Such an a rgument may

be presented at any

time, regardless of a violation of technical waiver rules. See People v. Yancy , 368 Ill. App. 3d 381, 388 (2005); accord People v. Wagener , 196 Ill. 2d 269, 279 (2001). However, turning to the merits of defenda nt's claim here, we find that it cannot stand. In addressing a

challenge to the constitutionality of a statute, we begin with the presumption that the statute is constitutional. See People v. Malchow , 193 Ill. 2d 413, 418 (2000). I f reasonably

possible, a court m

ust constr ue the sta tute so as to uphold it s constitutionality and validity . See Malchow , 193 Ill. 2d at 418. The party challenging the statute's constitutionality has the burde n of demonstrating its invalidity. See Malchow , 193 I ll. 2d at 418. Whether the statute is constitutional is reviewed under a de novo standard. See Malchow , 193 Ill. 2d at 418.

The I llinois Crim

inal Code o f 1961 (Co de) state s: "(a) A person c ommits the o ffense of being an arme d habitua

l crimina l if he or she receives, sells, possesses, or transfer s any firea

rm after having beenNo. 1-07-3381

4 convicte d a total o f 2 or mor e times of any combinat ion of the following

offense s: (1) a forcible felony

as defined in Section 2-8 of this Code; (2) unla wful use o f a wea

pon by a felon; aggr

avated u nlawful u se of a weapon; aggr

avated discharge of a f

irearm ***; or (3) any violation of the I

llinois Controlled Substances Act *** that is punisha ble as a Cl ass 3 fel ony

or highe r." 720 I LCS 5/2 4-1.7(a

) (West 2006). The effective date of this statute was Aug ust 2, 2005. See 720 IL CS 5/24-1.7(a) (West 2006). Both the United Sta

tes and I llinois Cons titutions pr

ohibit ex post fa cto laws. See U.S. Const., art. I, §9, cl. 3; §10, cl. 1; I ll. Const. 1970, art. I, §16. "An ex post fa cto law is one that: (1) makes criminal and punishable an act innocent when done ; (2) aggravates a crime, or makes it greater than it was when committed; (3) incre ases the punishment for a crime and applies the increase to crimes committed before the ena ctment of the law; or (4) alters the rules of evidenc e to require l ess or differen t evidence th an required wh en the crime was committe d." People v. Leonard , 391 Ill. App. 3d 926, 931 (2009); see People v. Morgan , 377 Ill. App. 3d 821, 823 (2007 ), cit ing Calder v. Bull , 3 U.S. (3 Dall.) 386, 390, 1 L. Ed. 648, 650 (1798). The prohibition again st ex post fa cto laws is fo unded on t

he basis o f a pers on's rig

ht to have fair warning of conduct giving rise to criminal penalties and punishment. See People v. Coleman , 111 Ill. 2d 87, 93-94 (1986). Defend ant's exact conte

ntion reg arding

the offe nse of ar med habit ual crimi nal and it s alleged violation of ex post fa cto laws was recently raised in the Third District case of People v.No. 1-07-3381

5

Leonard , 391 Ill. App. 3d 926 (2009). There, the de fendant was convicted of this offense upon possessing a firearm and having ha d been convicted previously of three qualify

ing offenses between 1998 and 2004, including a violation of the Illinois Controlled Substances Act (720 IL CS 570/100 et seq . (West 2004)) (unlawful possession with intent to deliver a look-alike subs tance) . On ap peal, the de fendan t, als o citi ng Levi n and Dunigan

as defendant does here, argued that his conviction had to be vacated be cause the offense of armed ha bitual criminal violated the prohi bition ag ainst ex post fa cto laws, since his prior convictions were used an element of the offense even though the y occurr ed before the offense was e nacted. In a well-rea soned and succinct decision, the Leonard court disagreed, finding that the statute does not constitute ex post fa cto legisla tion. I t began by n oting tha t, in I llinois, re cidivist statutes such as the instant one "have consistently been found constitutional on the basis that they punish a defendant for a new and separ ate crime, not for the earlier offe nse committed before the statute was enacted." Leonard , 391 Ill. App. 3d at 931 (rather, the de fendant's prior convictions are only a n element of the new crime). After examining the sta tute, the Leonard

court explained that it did not punish the defendant for offenses he committed before it was e nacted but, instead, punished him for the separate offense of possessing a firearm after having be en convicted of three of the statute's enumerated of fenses. See Leonard , 391 Ill. App. 3d at 931. He possessed the fire arm in Apr

il 2006, af

ter the st atute' s August

2005 eff ective d ate; thus, he had a

mple warning that, in combination with his prior convictions, he was committing the offense of armed habitual criminal. See Leonard , 391 Ill. App. 3d at 931-32. And, because his prior convictions were only a

n element of the offense, he was not being punished for those acts but for the new actNo. 1-07-3381

6

of possessing a firearm. See Leonard , 391 Ill. App. 3d at 932. Moreover, in addressing the defenda nt's claim that because the offense of armed habitual criminal is a substantive offense requiring that all the eleme nts thereof must have occurred after the law was enacted, the Leonard court concluded that his reliance on Levi n and Dunigan

was misplaced. See Leonard , 391 Ill. App. 3d at 932. The Leonard court fo und that w

hile those cases stated that the prior-conviction evidence involved in the ha bitual criminal legislation at issue there was not an element of the main charg ed offense, these cases did not hold that habitual criminal legislation in general can ne ver include prior convictions as elements of an offense . See Leonard , 391 Ill . App. 3d at 9 32, ci ting Levi n , 157 I ll. 2d at 14 9; Dunigan , 165 Ill. 2d at 242. That is, Levi

n and Dunigan

involved a habitual criminal statute that was a sentencing enhancement. See Levi

n , 157 I ll. 2d at 14 9; Dunigan , 165 Ill. 2d at 242. I n contrast, the armed habitual criminal statute under which the Leonard defendant was convicted--section 24-1.7(a ) of the Code- -crea

ted a subs tantive o ffense

that punis hes a def

endant, n ot for his e arlier c onviction s, but for the new offense create d therein. See Leonard , 3 91 Ill . A pp . 3 d a t 9 32 . U lt im at el y, because this statute only c riminalized new and additional conduct occurring afte r its enactment and did not, as in Levi

n and Dunigan , invoke sentencing enhancement conc erns, the Leonard court held that "the armed habitual criminal statute is not violative of the constitutional prohibitions aga

inst ex post fa cto laws." Leonard , 391 Ill. App. 3d at 931. We find no reason to depart from the holding of our sister cour t on this issue. It is clear to us that, contrary to def endant's contention here, the armed ha bitual criminal statute does not punish him f

or the dr ug offe nses he c ommitted in

1997 bef ore the s tatute' s effective date but,No. 1-07-3381

7

rather, properly

punishes him for, as he himself points out, the new and separate crime he committed in 2006 of possessing firearms while having alre ady bee n convicted of two prior enumerated felonies, an offense of w hich he had fair and ample warning . Accordingly , we too hold that the armed

habitual criminal statute is not violati

ve of the United Sta

tes and I llinois constituti onal proh

ibitions ag ainst ex post fa cto legislation. Having so concluded, we next turn to defendant' s alternative argument presented on review. He conte

nds that, i f his conv

iction for armed ha bitual off ender is upheld, then one of

his four felony unla

wful use of a weapon convictions must be vacated whe re he was convicted of five off enses inv olving f

irearm p ossession

based of the posse ssion of on

ly f our gun s. The Sta

te conced es this issu

e, in full a

greement with de fendant

. Defendant was convicted of one count of the offense of armed habitual criminal and four counts of unlawfu l use of a weapon by a

felon. H owever , the rec ord is cle ar that h e was in possession of only four fire arms. Therefore, one of his convictions for unlawf ul use of a weapon was, as h e asser

ts, nece ssarily

based on the same act as hi s offens e of arm ed habitu al criminal: the possession of the same firearm. According ly, one of his felony unlawful use of a weapon convictions must be vacated. See People v. Artis , 232 I ll. 2d 156, 1 65 (2009)("[m]ultipl e convictions are improper if they are based on precisely

the same physica

l act"); see also People v. Quinones , 362 Ill. App. 3d 385, 397 (2005) (where the defendant's two convictions for aggr avated u nlawful u se of a w eapon we re eac h based o n the same

act of po ssessing

the same firearm, these violated the one-act, one- crime doctrine prohibiting multiple convictions carved from same physica

l act; thus, one of these convictions necessarily required reversal).No. 1-07-3381

8 CONCLUSIO

N For all the foregoing r

easons, we affirm defendant' s conviction for the offense of armed ha bi tu al cr im in al , b ut we re ve rs e o ne of hi s f ou r c on vi ct io ns fo r u nl aw fu l u se of a w ea po n b y a felon and thereby

vacate the resulting sentence r egarding that crime only

, namely, one of the

five

concurr ent terms of six y ears'imprisonme

nt. Affirme d in part a

nd rever sed in par t; sentenc e vacat

ed in par t. TOOMIN, P.J., and TULLY, J., concur.No. 1-07-3381

9 __________________________________________________________________________________________________________________________ REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

(Front Sheet to

be Attached to Each Case)

_________________________________________________________________________________________________________________________ Please use

the follow

ing form The People of the State of Illinois, Plaintiff-Appellee,

v. Ma rc us Ba il ey, Defend ant-App ellant.

_____________________________________________________________________________________________ No. 1-07-3381 Docket No. Appellate Court of Illinois COURT First District, FIFTH Division Opinion Filed November 25, 2009 (Give month, day and year)

__________________________________________________________________________________________

JUSTICE JAMES FITZGERALD SMITH DELIVERED THE OPINION OF THE COURT: JUSTICES TOOMIN, P.J., and TULLY, J., concur. Lower Court and Trial Judge(s) in form indicated in margin: APPEAL from the Circuit Court of Cook Appeal from the Circuit Court of Cook County. County; the Hon________ Judge Presiding. The Hon. THOMAS V. GAI NER, Judge pres iding.

__________________________________________________________________________________________________________________________ Indicate i f attorne

y repre sents A

PPELLANT S or APPELL EES and include

attorney 's of c ounsel. Indic ate the w ord r FOR APP ELLANTS NONE if not represe

nted. John Do e, of Chicago For APPELLE

ES, : APPELLA NT: OFFICE OF THE ILLIN OIS STA TE APPELL

ATE D EFENDER, Chi cago, IL Michael J . Pelletier,State Appellate Defender; Patricia Unsinn, Deputy Defender; Maria A. Harrig an, Assistant Appellate Defender

_________________________________ __ Smith and Smith of Chicago , APPELLEE: OFFICE OF T HE ILL INOIS ST

ATE' S ATT ORNEY, CO UNTY O F COOK, Chi cago, IL Anita A lvarez , Sta te's Atto rne y; Jame s E. Fit zger ald , Ev e Rei lly, and Rob in M urp hy, As sis tan t St ate' s Att orn eys

__________________________________________________________________________________________________ ( Joseph Brown, of counsel ) Add attorne

ys for thirdparty a ppellants a

nd/or appellees.No. 1-07-3381

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