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In re S.M.

March 31, 2004

[5] IN RE: S.M., A MINOR
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
S.M., A MINOR, RESPONDENT-APPELLANT).



[6] Appeal from the Circuit Court of Cook County. No. 00 JD 6967 Honorable LaBrenda White, Judge Presiding.

[7] The opinion of the court was delivered by: Justice O'brien

[8]  Respondent, S.M., appeals the finding of delinquency based on his unlawful possession of a firearm. Respondent contends: (1) the unlawful possession of firearms statute violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11); (2) the unlawful possession of firearms statute violates the due process clause; (3) the State failed to prove him guilty beyond a reasonable doubt of unlawful possession of a firearm; and (4) the trial court erred during sentencing. We affirm the finding of delinquency and modify S.M.'s dispositional order.

[9]  We adopt the defendant's statement of facts, verbatim:

[10]   "On December 13, 2000, Officer David Seaquist and a team of five or six officers from the Summit Police Department executed a search warrant at the address 6215 S. 75th Avenue. The name of S.M.'s father, S.M. Sr., was listed on the warrant. The search warrant was to be executed in order to search for drugs and money. Seaquist testified that he personally knew S.M., and knew that S.M. was recently released from juvenile boot camp. Officer Weyer testified that he had arrested S.M. on an earlier occasion and knew that S.M. was on parole.

[11]   The officers knocked on the rear door prior to entering the house. After knocking on the door, the officers entered the house, using a battering ram to break the door in. The officers shouted 'Summit Police' upon entering the house. Approximately 10 people were inside the house. When they entered, the officers were on the middle floor of the house. Seaquist stated that once the police entered the house, he went upstairs, following Officer Venzon. Seaquist also testified on cross-examination that the bedroom was on the middle floor of the house.

[12]   Officer Venzon entered one of the bedrooms, while Seaquist stayed outside the room, near the doorway. Several people were in the room, including S.M. S.M. was on a bed inside the bedroom.

[13]   Seaquist testified that the standard procedure was for the officers to take the individuals out of the room one at a time, conduct pat down searches, and place the individuals in handcuffs. S.M. was the second person removed from the bedroom. Seaquist stated that as S.M. was coming out of the bedroom, a gun was in 'plain view' sticking out of his pants. Seaquist testified that he conducted a pat down search of S.M. and recovered a pistol. On separate occasions during his testimony, Seaquist testified that the gun was both unloaded and loaded.

[14]   Seaquist also testified that in executing the search warrant, he found cocaine in a leather jacket hanging in the closet of the bedroom. At the probable cause hearing the day following the arrest, Officer Weyer testified that Seaquist stated that the cocaine was recovered during a custodial search of S.M.'s person. Officer Weyer confirmed this at the delinquency hearing.

[15]   Seaquist testified that after he recovered the gun, either he or Officer Weyer inventoried the gun. The inventory sheet for the gun, filled out by the officers, did not indicate that the gun was recovered from the person of S.M., and did not indicate the name of the owner of the gun.

[16]   Seaquist also testified that the gun could be concealed, and that he determined S.M. was under the age of 18."

[17]   Following the delinquency hearing, the court found S.M. delinquent on the basis of unlawful possession of a firearm, adjudged S.M. a ward of the court, and committed him to the Department of Corrections. S.M. filed this timely appeal.

[18]   First, S.M. argues that his adjudication of delinquency for unlawful possession of a firearm must be reversed because the unlawful possession of firearms statute violates the proportional penalties clause. A statute is presumed to be constitutional, and the party challenging a statute bears the burden of establishing its invalidity. In re K.C., 186 Ill. 2d 542, 550 (1999). Courts have an obligation to construe a statute in such a manner as to uphold its constitutionality if it is reasonable to do so. People v. Baker, 341 Ill. App. 3d 1083, 1087 (2003).

[19]   Article I, section 11, of the Illinois Constitution, commonly referred to as the proportionate penalties clause, provides in relevant part that: "[a]ll penalties shall be determined * * * according to the seriousness of the offense ." Ill. Const.1970, art. I, § 11. Our supreme court has held that the proportionate penalties clause can be violated in one of three instances: (1) the penalty for an offense is cruel, degrading, or so completely disproportionate to the offense for which it is imposed as to shock the moral sense of the community; (2) the penalty imposed for a given offense is harsher than the penalty for a similar but more serious offense; and (3) the penalties imposed for identical offenses differ. People v. Davis, 177 Ill. 2d 495, 503-04 (1997).

[20]   In this case, S.M. asserts a violation of the second type, namely, that the penalty for the offense of unlawful possession of a firearm is more severe than that imposed for a ...


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