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People v. Capsel

OPINION FILED JULY 8, 1986.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ROBIN CAPSEL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of La Salle County; the Hon. Frank X. Yackley, Judge, presiding.

JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 12, 1986.

Following a bench trial, the defendant, Robin Capsel, was convicted of four counts of unlawful use of firearms by a felon (Ill. Rev. Stat. 1985, ch. 38, par. 24-1.1), and sentenced to concurrent four-year terms of imprisonment. He appeals his convictions. We affirm.

The instant charges were based upon the defendant's knowing possession of a shotgun, a sawed-off baseball-bat bludgeon, and three pool-cue sections. In 1982, the defendant was convicted of the felony of unlawful possession of a controlled substance.

The defendant first argues that his convictions should be reversed as section 24-1.1 of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1985, ch. 38, par. 24-1.1), under which he was convicted, is so unreasonable as to violate both Federal and State due process. The State argues initially that the issue is waived. We address the merits, as the issue was preserved for appeal by the post-trial motion's assertion of due process failings of section 24-1.1.

Section 24-1.1 provides, in relevant part, that one who has been convicted of a felony and not granted relief from the section, commits a Class 3 felony if he knowingly possesses on or about his person or in his fixed place of business, inter alia, any bludgeon or any firearm or firearm ammunition. Ill. Rev. Stat. 1985, ch. 38, pars. 24-1.1, 24-1(a)(1).

The defendant's first argument comprises two subarguments. First, the defendant asserts that section 24-1.1 sweeps too broadly in including all individuals who have been convicted of a felony. Second, the defendant asserts that section 24-1.1 proscribes the possession of items, many of which are not inherently evil, without requiring a culpable mental state.

The State responds that the defendant has not shown that section 24-1.1 is unconstitutional as applied to him. Alternatively, the State argues that section 24-1.1 is not unconstitutional. We agree with the State's former position.

• 1, 2 To attack a statute as unconstitutional, one must bring himself within the class as to whom it is unconstitutional. (People v. Lenhart (1980), 90 Ill. App.3d 502, 413 N.E.2d 220.) A court will examine the validity of a statute only in light of the facts of record. 90 Ill. App.3d 502, 413 N.E.2d 220.

• 3 The instant facts do not support a finding that section 24-1.1 is unconstitutional. The defendant was convicted of a felony less than three years before the instant offenses. The items which he, a recent former felon, knowingly possessed in violation of section 24-1.1 were a shotgun and four bludgeons, items useful only as weapons. Even if the statute were considered overbroad, as applied under these circumstances it is not unconstitutional. Rather, here it is a reasonable method for protecting the reasonable public interest in prohibiting at least certain convicted felons from knowingly possessing a weapon. See People v. Wick (1985), 107 Ill.2d 62, 481 N.E.2d 676.

• 4 The defendant's second argument is that he was denied equal protection and due process as his possession of a shot gun was prosecuted under section 24-1.1 rather than under section 24-3.1 of the Code. Additionally, the defendant claims that the statutory scheme comprising those two sections was an improper legislative delegation violating the doctrine of separation of powers by giving the prosecutor unlimited discretion to choose between the two sections.

Section 24-3.1, unlawful possession of firearms and firearms ammunition, provides, in relevant part, that one who has been convicted of a felony commits a Class A misdemeanor when he has any firearm or firearm ammunition in his possession. Ill. Rev. Stat. 1985, ch. 38, par. 24-3.1(3).

Proof that the defendant's firearm possession was a violation of section 24-1.1, or of section 24-3.1, required satisfaction of identical elements of proof. However, violation of section 24-1.1 was punishable as a Class 3 felony while violation of section 24-3.1 was punishable as only a Class A misdemeanor.

We choose to address the defendant's arguments raised for the first time on appeal. People v. Blackwood (1985), 131 ...


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