Appeal from the Circuit Court of Cook County. No. 09 CR 03878 Honorable Joseph M. Claps, Judge Presiding.
The opinion of the court was delivered by: Justice Howse
JUSTICE HOWSE delivered the judgment of the court, with opinion.
Presiding Justice Epstein and Justice Joseph Gordon concurred in the judgment and opinion.
¶ 1 Following a bench trial, defendant Bernard Robinson was convicted of unlawful use of a weapon by a felon (UUW) (720 ILCS 5/24-1.1(a) (West 2008)). He was sentenced to 5 1/2 years' imprisonment. On appeal, defendant contends the UUW statute unconstitutionally infringes on his right to bear arms, in violation of the second amendment to the United States Constitution. For the reasons that follow, we affirm defendant's conviction and sentence.
¶ 3 Defendant does not challenge the sufficiency of the evidence presented against him. The record reflects that at around 9 a.m. on January 28, 2009, several Chicago police officers executed a search warrant on the first-floor front apartment at 4818 South Hermitage. After announcing their presence and waiting 5 to 10 seconds for a response, the officers forced entry into the apartment. Chicago police officer Edmond Daly testified he saw Mickey Robinson standing near the back of the apartment. When Officer Daly ran after Robinson, Officer Daly saw Robinson drop a small object from his hand near the back bedroom. Officer Daly recovered the object an noticed it was a bag of suspect crack cocaine.
¶ 4 Chicago police officer Martinez testified he was the second officer to enter the apartment. He saw defendant standing in the front living room and detained him. After everyone in the apartment was detained, Officer Martinez called for a canine unit to search the apartment. After a police canine dog gave a positive indication for the presence of narcotics in a metal file cabinet in the living room, Officer Martinez searched the cabinet and found clothing, money and suspected cocaine inside a jacket pocket.
¶ 5 After being advised of his Miranda rights, defendant told the officers he had one gun. When asked about the items in the cabinet, defendant told the officers "That is my stuff." A search of the apartment recovered a gun from the stove in the kitchen of the apartment.
¶ 6 The parties stipulated that a .38-caliber bluesteel revolver was found by police in the stove in the kitchen of the apartment and that a box containing 50 live rounds of .32-caliber ammunition was recovered from a kitchen cabinet. It was also stipulated that if called to testify, Chicago police officer Kalafut would say he found three utility bills in the apartment that listed defendant's name with the address of the apartment on them. The final stipulation was that Penny Evans, a forensic scientist at the Illinois State Police crime lab, would testify the substance recovered from the file cabinet tested positive for 123 grams of cocaine.
¶ 7 The trial court found defendant guilty of unlawful use of a weapon by a felon for possessing a handgun, but not guilty of possession of a controlled substance and not guilty of unlawful use of a weapon by a felon for possessing ammunition. Defendant was sentenced to 5 1/2 years' imprisonment, with 324 days' credit for time served. Defendant appeals.
¶ 9 I. Constitutionality of the UUW Statute
¶ 10 Defendant contends we should declare the unlawful use of a weapon by a felon statute unconstitutional and vacate his conviction under that statute, because it violates his right to bear arms as embodied by the second amendment to the United States Constitution.
¶ 11 Although defendant recognizes we have previously found both the aggravated unlawful use of a weapon by a felon (AUUW) statute and the unlawful use of a weapon by a felon statute constitutional in contexts where a defendant has been convicted of possession of a weapon outside the confines of his home (see, e.g., People v. Davis, 408 Ill. App. 3d 747 (2011); People v. Dawson, 403 Ill. App. 3d 499 (2010)), defendant correctly notes we have not specifically addressed the constitutionality of the UUW statute in the context where a defendant is convicted of possession of a weapon recovered from inside his home.
¶ 12 Although defendant did not challenge the statute's constitutionality in the trial court, a constitutional challenge to a statute may be raised at any time. People v. Ross, 407 Ill. App. 3d 931, 938 (2011). We review a statute's constitutionality de novo. Ross, 407 Ill. App. 3d at 938 (citing People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 200 (2009)).
¶ 13 The second amendment provides:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be ...