The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County
Honorable Daniel Weber, Judge Presiding.
Defendant, Ugo DeLuca, was charged with four counts of unlawful sale of a firearm by a liquor licensee, two counts of unlawful use of a weapon, and one count of theft. The trial court held a Supreme Court Rule 402 conference. 134 Ill. 2d R. 402. As a result of that conference, defendant entered a guilty plea and was found guilty of the crimes charged and was sentenced to two years' probation and fined $135. The State and defendant had not reached an agreement regarding Disposition of the weapons seized from defendant. After attempts to reach an agreement regarding the weapons failed, the trial court ordered the weapons destroyed. Defendant has appealed, alleging that: (1) he was denied due process because the trial court ordered destruction without a hearing; and (2) the weapons seized were improperly confiscated because they were neither contraband per se nor derivative contraband. We affirm.
On June 9, 1994, the Illinois State Police executed search warrants at defendant's home and business. The police seized 138 handguns, rifles and shotguns. The State has supplemented the record with copies of the search warrants and supporting affidavits. However, because the trial court did not rely on the affidavits to support forfeiture, we need not consider them further.
On January 24, 1995, a plea and sentencing hearing was held before Judge Daniel Weber. At the hearing, the parties stipulated that, if called, Sal Ladoce would testify he was employed as a Chicago police officer. From April through June 1994, he was engaged in an undercover investigation of defendant. On six separate occasions between April 19, 1994, and June 8, 1994, he met with defendant at his place of business, Sir Gas-A-Lot Video Mart/Knight's Antiques, in Cook County. Defendant had a license to sell alcohol at that location. During those meetings Officer Ladoce purchased handguns, rifles, ammunition and fireworks. One of the handguns, a 9 millimeter Baretta semi-automatic, was described by defendant as "hot." Officer Ladoce discovered the 9 millimeter Baretta was reported taken from the South Barrington police department, and defendant had not been given permission to possess or sell that weapon.
The parties also stipulated that, if called, Jack Nowicki would testify that he is a forensic scientist with the Illinois State Police and had examined items purchased from defendant. He had disassembled and analyzed six explosive devices commonly called M80s and two sticks of dynamite. He found each device contained over one-quarter ounce of flash powder.
The State then tendered an order for confiscation and destruction of all weapons seized. Defendant argued that a number of the weapons seized were rare, valuable antiques. Judge Weber agreed to "hold" the order and granted defendant leave to prepare a list of weapons that should be preserved. However, Judge Weber stated "any gun that would be just a regular gun, is not considered antique, I want it destroyed."
Defendant moved to have the guns turned over to a licensed dealer for auction, and on November 15, 1995, Judge Weber denied the motion, stating "the law is clear on that, the statute. I can't give [the guns] to private persons." The matter was continued several times. On May 15, 1997, the matter came before Judge Frank DeBoni, who approved an agreed order to transfer the guns to the American Police Museum for educational purposes.
On August 12, 1997, defendant filed a motion to substitute attorneys and a motion to vacate the May, 15, 1997, order alleging that his attorney had entered it without his consent. Both motions were granted. Judge DeBoni further ruled that, because the May 15, 1997, order had been vacated, there no longer existed any reason to stay destruction of the weapons, and he ordered that the weapons be destroyed based on Judge Weber's January 1995 ruling.
On September 9, 1997, the case was transferred back to Judge Weber, who entered an order for destruction of the weapons. Defendant subsequently filed a motion to modify the judgment and vacate the September 9, 1998, order. The motion was denied.
Defendant first argues that he was denied due process, because the trial court did not hold an evidentiary hearing prior to ordering the guns destroyed.
Minimum due process requires notice and a meaningful opportunity to be heard. Williams v. Illinois State Scholarship Comm'n, 139 Ill. 2d 24, 42 (1990), citing Mathews v. Eldridge, 424 U.S. 319, 333, 47 L.Ed 2d 18, 32, 96 S. Ct. 893, 902 (1976). It is not, however, a denial of due process when a party fails to avail himself of that opportunity. See Campbell v. Cook County Sheriff's Board, 215 Ill. App. 3d 868, 871 (1991).
Here, defendant chose as part of his guilty plea to stipulate to the evidence that would have been presented at trial. Defendant did not demand a hearing on return of his weapons. He instead stipulated at the guilty plea proceedings to the evidence, and he argued the law mandated return of the weapons. Defendant pursued this strategy for more than two years, during which the trial court heard several motions regarding destruction of the weapons. Prior to August 1997, defendant never requested an evidentiary hearing. Defendant has not been denied due process simply because he made the strategic choice to argue the legal merits based on stipulated facts. See People v. Lehman, 5 Ill. 2d 337, 343-44 (1955) (holding a defendant who is represented by counsel cannot complain when the court acts on a stipulation to testimony).
Defendant further argues that confiscation of the weapons deprived his wife of her interest in the weapons. Defendant's wife never appeared before the court. Further, nothing in the record suggests defendant's wife asserted a property right in the guns until defendant filed a motion to modify the judgment more than two years after his conviction. However, assuming defendant's wife has not waived her right to assert an ...