Appeal from the Circuit Court of Cook County. The Honorable Gerald T. Winiecki, Judge Presiding.
The opinion of the court was delivered by: Justice Gallagher
Defendant Robert Jeffries pled guilty and was convicted of possession of cannabis and failure to register four firearms. The trial court entered an order releasing two of the firearms to defendant with the direction that he disable them. Plaintiff City of Chicago filed a motion to reconsider the trial court's order, and the court denied the motion. On appeal, plaintiff contends the trial court had no authority to release the firearms, and in doing so, the court disregarded the mandatory forfeiture provision in section 8-20-220 of the Chicago Municipal Code (Chicago Municipal Code § 8-20-220 (1999)). Although defendant did not file any response to this appeal, this court may decide the merits without the aid of an appellee's brief and will do so in the instant case. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976). We reverse and remand with directions.
The record establishes that in April 2002, defendant was arrested at his home in Chicago and charged with unlawful possession of cannabis and failure to register four firearms in violation of the Chicago Municipal Code. The police seized the following firearms: a semiautomatic pistol loaded with several live rounds; a fifty twelve gauge pump loaded with one live round; a .22-caliber pistol loaded with three magazines; and a rifle.
In June 2002, the State, plaintiff, and defendant held a Supreme Court Rule 402 (177 Ill. 2d R. 402) conference with the trial court. The conference was held off the record. Following the conference, defendant pled guilty to unlawful possession of cannabis and failure to register four firearms. The parties stipulated to the facts. The court sentenced defendant to one year of supervision and imposed a $600 fine. After the court sentenced defendant, plaintiff requested that all four weapons be confiscated and destroyed. The court noted that the rifle and a fifty twelve gauge pump had been the property of defendant's deceased grandfather. The court explained:
"Considering these were his grandfather's, I'm not ordering the confiscate [sic] and destroy [sic] on those 2. But as to the automatic pistol and the .22 caliber pistol Smith and Wesson, those will be ordered to be confiscated and destroy[ed]."
Plaintiff objected to the release of the two firearms because they were per se contraband in that defendant failed to register them. The court stated that during the conference it was mentioned that defendant's intentions were to register the two firearms in question and then retrieve them from the police department. The court entered a written order releasing the two firearms to defendant with the direction that defendant disable the firearms by destroying the firing pins shortly after release. The court also entered a written order indicating that defendant was sentenced to one year of supervision, must pay a $600 fine, and must refrain from possessing a firearm or any other dangerous weapon.
In July 2002, plaintiff filed a motion to reconsider the court's order to release the two firearms to defendant. The motion alleged that the court erred in its application of the Chicago Municipal Code, which provides that unregistered firearms that are no longer needed as evidence must be confiscated and destroyed. Plaintiff further alleged that unregistered firearms held in violation of the municipal ordinance were contraband per se and must be confiscated and destroyed.
Thereafter, defendant filed a response. However, the record on appeal does not contain defendant's response. On August 27, 2002, plaintiff filed a reply to defendant's response, alleging that the only agreement between the parties was the "[s]upervision order" entered and signed by the parties, and there was no agreement to return the rifle and fifty twelve gauge pump to defendant. Plaintiff alleged that the "[s]upervision order" provided that defendant agreed to plead guilty in exchange for a sentence of one year of supervision and a $600 fine and did not list any conditions such as the release of the two firearms to defendant. Plaintiff also alleged that even assuming it agreed to release the two firearms, such an agreement would violate section 8-20-220 of the Chicago Municipal Code. Plaintiff also argued that defendant's allegations in his response that the firearms were heirlooms and fell under an "exceptional circumstances" exception to the ordinance had no legal foundation. On that same date, the trial court held a hearing on the motion. The same judge who held the Rule 402 conference presided over the hearing.
At the hearing, defense counsel stated that during the Rule 402 conference there was an agreement entered to release the two firearms to defendant, and defendant relied upon that "condition" in pleading guilty. The trial court stated that pursuant to the ordinance in question:
"whenever any firearm or ammunition is surrendered or confiscated pursuant to terms of this chapter, the superintendent shall ascertain whether such firearm is needed as evidence in any matter. ***
*** [I]f such firearm is not required for evidence, it shall be destroyed at the direction of the superintendent.
Given the City attorney's argument, they state *** the superintendent is required to dispose of the unregistered firearms. There have been cases in the past where I seem to recall that the word shall is capable of being interpreted as being mandatory or discretionary and I find that language is somewhat ambiguous in that regard.
I think the most significant aspect of the issue is that the Defendant entered a plea after a pre-trial conference with defense attorney and corporation counsel. My recollection is that the return of the rifle and shotgun were ...