Appeal from the Circuit Court of Cook County. Honorable Charles P. Burns, Judge Presiding.
PRESIDING JUSTICE QUINN delivered the judgment of the court, with opinion. Justice Murphy concurred in the judgment and opinion.
Justice Neville dissented, with opinion.
Following a bench trial, defendant was found guilty of one count of aggravated unlawful use of a weapon (AUUW) where defendant knowingly carried a loaded firearm at a time when he was not in his own home or place of business (720 ILCS 5/24-1.6(a)(1),(a)(3)(A) (West 2008)), and one count of unlawful possession of a firearm where defendant was under 18 years of age and possessed a loaded, concealable handgun while he was in the backyard of a friend's home (720 ILCS 5/24-3.1(a)(1) (West 2008)). Defendant was sentenced to 24 months of probation for the AUUW offense and no sentence was imposed for the offense of unlawful possession of a firearm.
On appeal, defendant argued in his brief that both the AUUW statute and the unlawful possession of a firearm statute violated federal and state guarantees of the individual right to bear arms as applied to him under the United States Supreme Court decision in District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008). In Heller, the Supreme Court held that the second amendment protects the right to keep and bear arms for the purpose of self-defense in one's home and struck down a District of Columbia law that banned the possession of handguns in the home. After the State filed its response brief but before defendant filed his reply brief, the United States Supreme Court issued its ruling in McDonald v. City of Chicago, U.S. , 130 S. Ct. 3020 (2010), which incorporated the Second Amendment right recognized in Heller against the states.
On October 5, 2010, this court sua sponte issued an order finding that: (1) defendant was convicted of AUUW (720 ILCS 5/24-1.6 (West 2008)) and unlawful possession of a firearm (720 ILCS 5/24-3.1 (West 2008)); (2) the AUUW statute was amended by Public Act 96-742, which took effect on August 29, 2009; and (3) the amended AUUW statute permits a person to carry a loaded firearm "on the land or in the legal dwelling of another person as an invitee with that person's permission" (Pub. Act 96-742 (eff. Aug. 25 2009) (amending 720 ILCS 5/24-1.6 (West 2008))). This court ordered the parties to file supplemental briefs addressing two issues:
(1) "[w]hether the amended AUUW statute (720 ILCS 5/24-1.6 (West 2008)) can be applied retroactively to the facts in this case"; and (2) "[w]hether there are any reported cases which have applied the holding in Heller [citation] or in McDonald [citation] to [a] case involving a defendant convicted of carrying a weapon outside his home."
In his supplemental brief, defendant contends that the amended AUUW statute applies retroactively to the facts of his case where the amendment merely clarified the original intent of the statute under which defendant was convicted. In its supplemental brief, the State contends that the amended AUUW statute cannot be applied retroactively to the facts of this case where the legislature specifically provided for an effective date of August 29, 2009, more than a year after the date of defendant's offense. The State notes that in People v. Dawson, 403 Ill. App. 3d 499 (2010), this court recently held that the AUUW statute does not violate the constitutional right to bear arms where the decisions in Heller and McDonald were limited to the right to possess a handgun in the home for self-defense purposes.
For the following reasons, we find that the amended AUUW statute cannot be applied retroactively to this case and even if the amended statute applied, defendant's conviction would stand under the facts of this case. We further find that the AUUW statute does not violate defendant's constitutional right to bear arms under the United States Supreme Court decisions in Heller and McDonald.
At trial, Officer Thomas Harris testified that on the evening of June 12, 2008, he was on surveillance duty near 4217 West 25th Place, in Chicago. Officer Harris observed a group of male teenagers screaming, making gestures, and throwing bottles at passing vehicles. Officer Harris identified defendant as one of the teenagers and testified that defendant was holding the right side of his waist area. Officer Harris testified that he saw defendant and three other individuals walk into an alley and radioed other officers nearby.
Officer John Dolan testified that after receiving radio communication from Officer Harris, he and Officers Wagner and Triantafillo proceeded to 4217 West 25th Place. Officer Dolan testified that he saw several individuals walk into the backyard of that address. The officers entered the backyard. Officer Dolan testified that he heard defendant yell an expletive and saw that defendant had a gun in his right hand. Officer Dolan observed defendant drop the gun to the ground. Officer Dolan took defendant into custody while another officer recovered the gun. When Officer Dolan examined the gun, he discovered that the serial number had been scratched off and there were three live rounds of ammunition loaded in the gun. Officer Dolan testified that he learned that defendant did not live at 4217 West 25th Place.
Defense witness Romero Diaz testified that he lived at 4217 West 25th Place and was friends with defendant. Diaz testified that on the evening of June 12, 2008, he was with defendant and another friend in his backyard waiting for defendant's mother to pick defendant up. Diaz testified that three or four police officers entered his backyard with flashlights and ordered him and his friends to get on the ground. Diaz testified that one of the officers tackled defendant because defendant hesitated to get down on the ground. Diaz testified that he was with defendant in the backyard for 30 to 40 minutes and defendant did not have a gun and did not drop a gun to the ground when the officers entered the backyard.
Defendant testified that on the night of June 12, 2008, he was with friends at the corner of 26th Street and Keeler Avenue, in Chicago. After about 45 minutes at that corner, defendant and another friend walked to Diaz's backyard. Defendant testified that he was waiting for his mother to pick him up when three police officers entered the yard with flashlights and guns drawn. Defendant testified that an officer yelled at him to get on the ground and when defendant moved slowly, one of the officers tackled defendant. Defendant testified that the officers searched the yard, then showed defendant a gun and accused him of dropping the gun. Defendant denied having a gun at any time that evening and denied that he dropped the gun to the ground. Upon weighing the credibility of the witnesses, the circuit court found defendant guilty of AUUW and unlawful possession of a firearm. Defendant was sentenced to 24 months' probation on the AUUW charge, but entered no sentence on the charge of unlawful possession of a firearm. Defendant now appeals.
A. Retroactive Application of Amended AUUW Statute This court must first determine which version of the AUUW statute applies in this case. At the time of defendant's conviction, the AUUW statute provided in pertinent part:
"(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode or fixed place of business any pistol, revolver, stun gun or taser or other firearm; or
(3) One of the following factors is present:
(A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense." 720 ILCS 5/24-1.6(a)(1), (a) (3)(A) (West 2008).
The AUUW statute was amended by Public Act 96-742 as follows, in pertinent part:
"(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm[.]" Pub. Act 96-742 (eff. Aug. 25, 2009) (Emphasis Added.)
Accordingly, our legislature amended the AUUW statute to expand the exceptions in subsection 24-1.6(a)(1) to include in his or her "legal dwelling" and when he or she is "on the land or in the legal dwelling of another person as an invitee with that person's permission." Pub. Act 96-742, (eff. Aug. 25, 2009).
Defendant contends that the amended AUUW statute should be treated as a clarification of the original statute, which had been misapplied by this court in People v. Price, 375 Ill. App. 3d 684 (2007). In Price, this court determined that the defendant was not in his "abode" when he possessed a weapon within the meaning of the AUUW statute, when he was spending the night as a guest at his sister's home. Price, 375 Ill. App. 3d at 695. In so holding, this court noted that equating "abode" with " 'overnight living quarters' " could result in "homeowners unwillingly and unwittingly providing safe harbor to any overnight guest who, unbeknownst to them, brings a weapon into their home." Price, 375 Ill. App. 3d at 692. Here, defendant argues that because our legislature amended the AUUW statute to provide for the exception when an individual is "on the land or in the legal dwelling of another person as an invitee with that person's permission" soon after the decision in Price, this court should conclude that the decision in Price misconstrued what the legislature originally intended in the statute. See People v. Rink, 97 Ill. 2d 533, 540-41 (1983) ("if an amendment is enacted soon after there were controversies as to the interpretation of the statute it amends, it is logical and reasonable to regard the amendment as a legislative interpretation of the original statute"). However, this court in Price correctly based its judgment on the plain meaning of the AUUW statute as written at the time. Our supreme court has explained, "We have never held that a subsequent amendment may replace the plain meaning as the best evidence of the legislature's original intent." People ex rel. Ryan v. Agpro, Inc., 214 Ill. 2d 222, 231 (2005). In addition, the amendment to the AUUW statute did not contradict this court's interpretation that "abode" did not include "overnight living quarters." Rather, the amendment to the AUUW statute expanded the statute to include a separate exception for "an invitee" with "permission" to carry a handgun .
The State argues that the amended AUUW statute cannot be applied retroactively to this case where the legislature specifically provided for an effective date that was more than a year after the date of the offense. The State further argues that even if the amendment did not expressly preclude retroactive application, the general savings clause in section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2008)) prevents retroactive application because the amendment substantively changed the crime of AUUW. We agree that the amendments to the AUUW statute may not be retroactively applied to defendant's conduct predating those amendments.
In Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27, 37-39 (2001), the Illinois Supreme Court adopted the retroactivity analysis of Landgraf v. USI Film Products, 511 U.S. 244 (1994). The court summarized the Landgraf test as follows:
"The threshold inquiry is whether the legislature has expressly prescribed the temporal reach of a statute. If it has, the expression of legislative intent must be given effect absent a constitutional prohibition. If, however, the statute contains no express provision regarding its temporal reach, the court must determine whether the new statute would have retroactive effect, keeping in mind the general principle that prospectivity is the appropriate default rule. In making this determination, a court will consider whether retroactive application of the new statute will impair rights a party possessed when acting, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed. If retrospective application of the new law has inequitable consequences, a court will presume that the statute does not govern absent clear legislative intent favoring such a result." John Doe A. v. Diocese of Dallas, 234
Following the adoption of the Landgraf approach, the Illinois Supreme Court considered the effect of section 4 of the Statute on Statutes (5 ILCS 70/4 (West 1998)) on the retroactivity analysis. Section 4, also known as the general savings clause of Illinois, provides:
"No new law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding." 5 ILCS 70/4 (West 2008).
The Illinois Supreme Court held, in Doe, "[S]section 4 is a clear legislative directive as to the temporal reach of statutory amendments and repeals when none is otherwise specified: those that are procedural may be applied ...