THIRD DIVISION

										June 30, 2003

No. 1-02-2637

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

								)	Circuit Court of

	Plaintiff-Appellee,				)	Cook County.

								)

		v.						)	               

								)

MARCUS MCGEE,					  	)	Honorable

								)	James B. Linn,

	Defendant-Appellant.			)	Judge Presiding.

	JUSTICE WOLFSON delivered the opinion of the court:

	The defendant presents us with two constitutional attacks on

the aggravated unlawful use of a weapon statute.  He contends the

statute violates the proportionate penalties provision of the

Illinois Constitution and/or it violates his right to due process

of law.  We find no constitutional defects in the statute.

BACKGROUND

	The only issue raised by the defendant is the

constitutionality of the aggravated unlawful use of a weapon

statute.  720 ILCS 5/24-1.6 (West 2000).  For that reason, there

is no need to engage in any lengthy recitation of the facts of

this case.  Suffice it to say a loaded pistol was found by a

police officer under the front passenger seat of a car.  The

defendant was the passenger.  

	At his bench trial, the defendant unsuccessfully challenged

the legality of the seizure of the gun and he denied any knowledge of the gun, with a similar lack of success.  The trial

court found him guilty of the six weapons charges in the

information and, because the defendant had a felony record,

sentenced him to a mandatory Class X term of seven years'

imprisonment on one of them.1  We affirm the defendant's convictions and sentence.

DECISION

	Although the defendant did not raise the constitutional

issues in the trial court, he has the right to challenge the

statute for the first time on appeal.  People v. Christy, 139 Ill. 2d 172, 176, 564 N.E.2d 770 (1990).  We will begin with the

presumption that the statute is constitutional and that the

defendant has the burden of showing its invalidity.  People v. Davis, 177 Ill. 2d 495, 501, 687 N.E.2d 24 (1997).  Our duty is to construe a statute in a manner that upholds its validity and

constitutionality if it can reasonably be done.  People v. Malchow, 193 Ill. 2d 413, 418, 739 N.E.2d 433 (2000).  We will review those sections of the aggravated UUW statute that apply to

this defendant, not provisions that might apply to others in

different circumstances.  People v. Hill, 199 Ill. 2d 440, 445- 46, 771 N.E.2d 374 (2002).  

1. Disproportionate Penalties

	The proportionate penalties clause of the Illinois

Constitution is article 1, section 11: "[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.  

	The central question is whether the penalty at issue has

been set by the legislature "according to the seriousness of the

offense."  People v. Moss, Nos. 91012, 91013, 91044, 91045, 91046, 91047, 91048, 91049, 91050, 91051, 91052, 91328 cons.,

slip op. at 16 (Ill. June 19, 2003).  

	The Supreme Court has recognized three different forms of

proportionality review.  A statute may be deemed

unconstitutionally disproportionate if: (1) the punishment for

the offense 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 creates a less

serious threat to the public health and safety is punished more

harshly; or (3) identical offenses are given different sentences. 

People v. Miller, 202 Ill. 2d 328, 338, 781 N.E.2d 300 (2002).  The defendant contends the aggravated UUW statute violates the

third form: an offender who carries a loaded weapon could be

prosecuted under either aggravated UUW or the misdemeanor UUW, the same conduct being either a felony or a Class A misdemeanor.

	We set out the two statutes at issue in this case.  The

aggravated unlawful use of a weapon statute provides:

		"Sec. 24-1.6. Aggravated unlawful use of a weapon. 

		(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 or fixed place of business any pistol,

revolver, stun gun or taser or other firearm; or 

	* * *

		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;

or 

			(B) the firearm possessed was uncased, unloaded

and the ammunition for the weapon was immediately

accessible at the time of the offense; or  (C) the person possessing the firearm has not been

issued a currently valid Firearm Owner's

Identification Card; or  (D) the person possessing the weapon was

previously adjudicated a delinquent minor under the Juvenile Court Act of 1987 [705 ILCS 405/1-1

et seq.] for an act that if committed by an adult

would be a felony; or  (E) the person possessing the weapon was engaged

in a misdemeanor violation of the Cannabis Control

Act [720 ILCS 550/1 et seq.] or in a misdemeanor

violation of the Illinois Controlled Substances

Act [720 ILCS 570/100 et seq.]; or  (F) the person possessing the weapon is a member

of a street gang or is engaged in street gang

related activity, as defined in Section 10 of the

Illinois Streetgang Terrorism Omnibus Prevention

Act [740 ILCS 147/10]; or  (G) the person possessing the weapon had a order

of protection issued against him or her within the

previous 2 years; or 

					(H) the person possessing the weapon was engaged

in the commission or attempted commission of a

misdemeanor involving the use or threat of

violence against the person or property of

another; or  (I) the person possessing the weapon was under 21

years of age and in possession of a handgun as

defined in Section 24-3 [720 ILCS 5/24-3], unless the person under 21 is engaged in lawful

activities under the Wildlife Code [520 ILCS 5/1.1

et seq.] or described in subsection 24-2(b)(1),

(b)(3), or 24-2(f) [720 ILCS 5/24-2]. 

		* * *

		(c) This Section does not apply to or affect the

transportation or possession of weapons that: 

					(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.

		(d) Sentence. Aggravated unlawful use of a weapon is a

Class 4 felony; a second or subsequent offense is a

Class 2 felony. Aggravated unlawful use of a weapon by

a person who has been previously convicted of a felony

in this State or another jurisdiction is a Class 2

felony."  720 ILCS 5/24-1.6 (West 2000).

	The unlawful use of a weapon statute, a Class A misdemeanor, 

provides:

						"Section 24.1. Unlawful Use of Weapons. (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 or fixed place of business 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."  720 ILCS

5/24-1(a)(4) (West 2000). 

	The Illinois Supreme Court has struck down statutes that

violate the three tests for disproportionality--(1) punishment

that shocks the moral sense of the community, Miller, 202 Ill. 2d at 308-10 (natural life sentence of juvenile who acted as lookout

during murder violated Illinois Constitution); (2) similar

offenses where conduct creating a less serious public threat is

treated more harshly, Moss, et al., (Class X plus 15 years sentence for armed robbery where firearm possessed is

unconstitutional when compared to 6 to 30-year sentence for aggravated battery with a firearm; mandated 20-year add-on to

sentence for discharge of a firearm during an offense

unconstitutional when compared to 4 to 15-year sentence for

aggravated discharge of a firearm); Davis, 177 Ill. 2d at 508 (class 3 felony nonprobationable sentence for unregistered

felon's possession of a firearm unconstitutionally

disproportionate to probationable class 3 sentence for unlawful

use of a weapon by a felon); and (3) different sentences for

identical conduct, People v. Lewis, 175 Ill. 2d 412, 423, 677 N.E.2d 830 (1996) (armed violence with category I weapon minimum

sentence of 15 years unconstitutional when compared to armed

robbery that carries six year minimum); People v. Christy, 139 Ill. 2d 172, 181, 564 N.E.2d 770 (1990) (sentence for armed

violence, 6 to 30 years, unconstitutionally disproportionate to

sentence for aggravated kidnaping, 4 to 15 years).

	The controlling question is whether the aggravated UUW and

the misdemeanor UUW are the same offenses.  It is true, as the

defendant contends, that a person carrying concealed on his

person or possessing in a vehicle an uncased, loaded, readily

accessible weapon can be charged with and convicted of either

statute, felony or misdemeanor.

	But the aggravated UUW statute contains nine aggravating

factors, at least one of which must be present for the felony

charge to succeed.  Of particular interest to this defendant are factors (A) and (C).  That is, he was charged with carrying or

possessing a weapon that was "uncased, loaded and immediately

accessible," and with possessing or carrying concealed the

firearm without having been issued a valid Firearm Owner's

Identification Card.  Those factors are not required for the

misdemeanor UUW offense.  The misdemeanor does not require that

the gun be loaded.  Nor does it require that the defendant had

not been issued a valid FOIC.  Further, if the weapon is loaded

and enclosed in a case, it does not come within aggravating

factor A of the felony charge; it still may be charged as a

misdemeanor, which excepts "unloaded and enclosed in a case" firearms.  (Emphasis added.)  720 ILCS 5/24-1(a)(4)(iii) (West

2000).  

	We also note that none of the other seven aggravating

factors is a required element of the misdemeanor offense.  These

aggravating factors thus narrow the universe of persons subject

to felony penalties for UUW.  In short, the felony charge applies

to more serious conduct.  They are not the same.  

	We see no disproportionality here.  The more serious conduct

required by the aggravated UUW statute justifies the higher

sentence.  Felony UUW and misdemeanor UUW are separate offenses

and the legislature has broad power to prescribe penalties for

them.  See People v. Wade, 131 Ill. 2d 370, 379, 546 N.E.2d 553 (1989).  

2. Due Process

	The defendant contends the aggravated UUW provisions he was

convicted of violate substantive due process.  He points out that

while the statute requires the defendant to act "knowingly," it

requires no culpable mental state and potentially punishes

innocent conduct.

	This is the precise issue considered and rejected by this

court in People v. Grant, No. 1-01-1134 (Ill. App. Ct. May 22, 2003).  We held section 24-1.6(a)(1)(3)(A) did not violate

substantive due process rights.

	In Grant, as is true here, the accused relied on three Illinois Supreme Court decisions: People v. Wright, 194 Ill. 2d 1, 740 N.E.2d 755 (2000); People v. Zaremba, 158 Ill. 2d 36, 630 N.E.2d 797 (1994); and People v. Wick, 107 Ill. 2d 62, 481 N.E.2d 676 (1985).  In each case the Court held that because the statute

did not require a culpable mental state it could be read to apply

to wholly innocent conduct.  In each case the Court held the

statute did not possess a rational relationship to its intended

purpose.

	In Wright, a provision of the Vehicle Code required certain licensed individuals to maintain records for three years at their

places of business and provided that anyone who "knowingly"

failed to keep the records was guilty of a Class 2 felony.  625

ILCS 5/5-401.2(i) (West 1996).  The defendant failed to keep the records.  The design of the statute, said the Court, was to

prevent trafficking in stolen vehicles and their parts, but it

offended due process because it could punish a slight lapse in

record keeping by an individual acting with no criminal intent. 

	In Zaremba, a section of the Illinois Theft Statute made it a felony for a person to obtain or exert control over property in

the custody of any law enforcement agency where that person has

been officially informed the property was stolen.  Ill. Rev.

Stat. 1989, ch. 38, par. 16-1(a)(5).  The statute's purpose was

to enable law enforcement officers to conduct undercover

operations aimed at breaking up fencing operations.  But, held

the Court, it did not bear a reasonable relationship to its

purpose because it potentially subjected wholly innocent conduct

to punishment.

	Finally, in Wick, the Court invalidated a section of the aggravated arson statute that made it a Class X felony to

knowingly damage a building by a fire that caused injury to a

fireman or police officer at the scene.  Ill. Rev. Stat. 1981,

ch. 38, par. 20-1.1(a)(3).  The Court held the statute swept too

broadly, taking in innocent conduct, such as a farmer who burned

his deteriorated barn to clear space for a new one.

	The defendant in this case also relies on People v. Hamm, 149 Ill. 2d 201, 595 N.E.2d 540 (1992).  There, a provision of

the Fish Code of 1971 made it a class 3 felony for a commercial fisherman taking more than $300 worth of fish to be unable to

prove his net is licensed and he possesses a fishing license. 

The Court held the statute was not reasonably designed to achieve

its purpose of protecting citizens of Illinois from depletion of

the State's natural resources.

	There is a common theme running through the cases cited by

the defendant.  Each statute had the capacity to sweep in

innocent people who could reasonably believe they were engaging

in lawful activity.  That is, the acts that comprised the

offenses were not necessarily criminal in nature.  The statutes

did not accomplish their legislative purpose.  

	The statute we are concerned with in this case is far

different.  As we said in Grant, the legislature's purpose was to impose harsher penalties for conduct that poses "inherent dangers

to police officers and the general public.  This is so even if

the person carrying his weapon has no criminal objective." 

Grant, slip op. at 27-28.

	This statute is, in effect, self-defining.  Knowingly

,

pPossessing a loaded, readily accessible, uncased weapon in a car,

or carrying it concealed, is criminal conduct.  Period.  Contrary

to the defendant's contention, the goal of the aggravated UUW

statute was not merely to limit possession of weapons by members

of street gangs and organized crime figures.  Its purpose was to

make communities in this State safer and more secure for their inhabitants.  The statute is rationally related to that

legitimate goal.  Each of the aggravating factors in the statute

is a circumstance that belies innocent conduct.

	Of course, one can create scenarios that pose challenges to

the exercise of a prosecutor's discretion.  The defendant gives

us two examples of how the aggravated UUW statute could subject

innocent conduct to a felony conviction.

	In the first, a hunter receives a call that an emergency has

arisen at home.  In his haste to attend to the emergency, he

returns to his car and drives away with the loaded, uncased gun

on the seat next to him.  In the second, a "Good Samaritan" who

does not have a Firearm Owner's Identification Card finds a gun

on the street.  Not wanting the neighborhood children to find the

gun, she takes the gun to the police station.  On the way, she is

stopped for speeding, and the police recover the gun. 

	It may be the two persons in defendant's hypotheticals would

be subject to felony charges, although we would hope

prosecutorial discretion would be exercised in a more sensible

manner.  But the case we make for satisfaction of substantive due

process trumps these unlikely scenarios.  Penalizing those who

knowingly carry or transport concealed and loaded weapons is a

rational way to accomplish the legislative goal of improving

public safety.  In addition, we observe that the hunter and the

Good Samaritan could have taken an extra moment to place the weapons in the trunks of their vehicles, even if they did not

have the time or the ability to break them down into a non-

functioning state.

CONCLUSION

	We affirm the defendant's convictions and sentence.

	Affirmed.               

	sSoOUTH, P.J., and HALL, J., concur.