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The People of the State of Illinois v. Montyce H

November 18, 2011

THE PEOPLE OF THE STATE OF ILLINOIS,
PETITIONER-APPELLEE,
v.
MONTYCE H,
RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 09 JD 3959 Honorable Carl Anthony Walker, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Robert Gordon

PRESIDING JUSTICE ROBERT GORDON delivered the judgment of the court with opinion.

Justices Cahill and Lampkin concurred in the judgment and opinion.

OPINION

¶ 1 The sole issue on this direct appeal is whether the aggravated unlawful use of a weapon statute, in so far as it criminalizes the possession of a loaded, uncased and accessible firearm outside the home, violates the constitutional right to bear arms. Respondent concedes that the Illinois appellate court has considered several times whether this exact same statute violates this exact same right and has held that it does not, every time. People v. Dawson, 403 Ill. App. 3d 499, 510 (2010); People v. Aguilar, 408 Ill. App. 3d 136, 142-150 (2011); People v. Mimes, __ Ill. App. 3d __, 953 N.E. 2d 55, 77 (2011) ("defendant's AUUW conviction must stand because the challenged statutory provisions do not violate either the second amendment or the Illinois Constitution"). However, he asks us to find that our precedent was wrongly decided. This we decline to do. Therefore, we affirm his adjudication of delinquency.

¶ 2 Respondent Montyce H. was 15 years old when he was arrested and charged on September 29, 2009, in a petition for adjudication of wardship. The petition contained a total of 4 counts: 3 counts of aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a) (West 2008)), and 1 count of unlawful possession of a firearm (720 ILCS 5/24-3.1 (West 2008)). After a trial on December 30, 2009, the trial court "hereby found" Respondent "to be delinquent on all 4 counts." However, the trial court then stated that it was entering judgment on only the first count and that the other counts were "merged into one." On May 13, 2010, the trial court sentenced respondent to 18 months of probation

¶ 3 The only count upon which judgment was entered was a count for aggravated unlawful use of a firearm. The statute for aggravated unlawful use of a firearm lists several different "factors," any one of which will make the use "aggravated." 720 ILCS 5/24-1.6(a)(3) (West 2008). The count supporting respondent's conviction charged the "factor[]" that the firearm "was uncased, loaded and immediately accessible." 720 ILCS 5/24-1.6(a)(3)(A) (West 2008). The statute criminalizes possession of an uncased, loaded and accessible firearm, only if it is outside the home. 720 ILCS 5/24-1.6(a)(1) (West 2008).

¶ 4 In his appellate brief, respondent raised two claims: (1) that the aggravated unlawful use of a weapon statute, which criminalizes the possession of a loaded, uncased and accessible firearm outside the home, violates both federal and state guarantees of the right to bear arms; and (2) that the unlawful possession of firearms statute, in so far as it criminalizes a 15-year old's possession of a handgun, violates both the federal and state guarantees of the right to bear arms.

¶ 5 Since respondent was found delinquent on an aggravated use count, the unlawful possession statute is not properly before us. Aguilar, 408 Ill. App. 3d at 150 ("we find that we cannot review defendant's conviction for unlawful possession of a firearm because the trial court did not impose sentence"); People v. Baldwin, 199 Ill. 2d 1, 5 (2002) ("Absent a sentence, a conviction is not a final and appealable order"). In addition, although respondent claims in the headings in his brief to be raising a state challenge as well as a federal challenge, there is no discussion of the Illinois constitutional right in his brief. His discussion of the aggravated use statute is based entirely on the second amendment right found in the United States constitution and the case law interpreting it. "Points not argued are waived." Ill. S. Ct. R. 341(h) (7); Wilson v. Cook County, 407 Ill. App. 3d 759, 768 (2011) (finding that plaintiffs had waived any argument concerning the Illinois Constitution's right to bear arms where they made a "one-sentence statement" and failed to provide any support or analysis).

¶ 6 Thus, the issue before us on this appeal is solely whether the aggravated unlawful use of a weapon statute, in so far as it criminalizes the possession of a loaded, uncased and accessible firearm outside the home, violates the federal constitutional right to bear arms.

¶ 7 BACKGROUND

¶ 8 On this direct appeal, the facts are not in dispute. Respondent in his brief to this court admits that the following facts are true:

"On September 28, 2009, around 9:43 p.m. Officer Pedraza was on patrol with another marked squad car on the 6400 block of South Peoria when officers noticed a white vehicle double parked in the middle of the road partially blocking traffic. The police cars stopped next to the white car. A male identified in court as Montycewas leaning inside the white car on the passenger's side. Once the officers pulled up, Montyce looked in their direction and ran off grabbing his waistband as he ran. A foot chase ensued, during which Montyce tossed a gun in a nearby gangway. Montyce was quickly arrested a couple [of] houses away.

Officer Pedroza recovered the loaded handgun from the gangway and kept it in his possession until he tendered it at the station to one of his partners for inventory. The gun was inventoried in Pedroza's possession."

Thus, in his brief to this court, respondent admits that "Montyce tossed a gun ...


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