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People v. McGee

June 30, 2003

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MARCUS MCGEE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable James B. Linn, Judge Presiding.

The opinion of the court was delivered by: Justice Wolfson

UNPUBLISHED

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. *fn1 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 ...


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