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People v. Burns

Court of Appeals of Illinois, First District, Sixth Division

December 31, 2013

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
EDWARD BURNS, Defendant-Appellant.

Held: [*]

Despite the decision of the Illinois Supreme Court in Aguilar, defendant’s conviction for aggravated unlawful use of a weapon based on a prior felony conviction was affirmed, since the prohibition on the possession of firearms by a felon has been recognized for many years as conduct that falls outside the protection of the second amendment, and in defendant’s case, the aggravated unlawful use of a weapon statute merely regulates the possession of a firearm by a person with a prior felony conviction.

Appeal from the Circuit Court of Cook County, No. 09-CR-12950; the Hon. Thomas M. Davy, Judge, presiding.

Michael J. Pelletier, Alan D. Goldberg, and Adrienne N. River, all of State Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Assistant State’s Attorney, of counsel), for the People.

Presiding Justice Rochford and Justice Hall concurred in the judgment and opinion.

OPINION

REYES, JUSTICE

¶ 1 Following a bench trial in the circuit court of Cook County, defendant Edward Burns (defendant) was found guilty of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6 (a)(1), (a)(2), (a)(3)(A), (d) (West 2008)) and sentenced to 10 years in prison. Defendant was convicted of a Class 2 offense, based on a prior felony conviction, and sentenced as a Class X offender. On appeal, defendant argues his convictions must be reversed pursuant to the Illinois Supreme Court's decision in People v. Aguilar, 2013 IL 112116, reh'g denied, No. 112116 (Ill.Dec. 19, 2013), which held the Class 4 form of section 24-1.6 (a)(1), (a)(3)(A), (d) of the AUUW statute facially violates the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution (U.S. Const., amend. II). Aguilar, 2013 IL 112116, ¶ 22. For the following reasons, we affirm defendant's conviction.

¶ 2 BACKGROUND

¶ 3 The record on appeal discloses the following facts. On October 7, 2009, defendant was charged by indictment with violating the armed habitual criminal statute (720 ILCS 5/24-1.7(b) (West 2008)), two counts of unlawful use of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1 (West 2008)), and eight counts of AUUW (720 ILCS 5/24-1.6 (West 2008)). The armed habitual criminal charge was based on prior convictions for possession of a controlled substance and AUUW. The UUWF charges were based on the prior AUUW conviction. Four of the AUUW charges refer to the prior AUUW conviction, while the four remaining AUUW charges refer to the prior conviction for possession of a controlled substance. On November 28, 2011, immediately prior to the commencement of the trial, the State moved to dismiss counts V, VII, IX, and XI by nolle prosequi. The dismissed counts charged various forms of AUUW on the ground that defendant had not been issued a valid firearms owner identification card.

¶ 4 At trial, Chicago police officer Tim McDonough testified that on June 13, 2009, at approximately 4 a.m., he and Officer Mark Sobczyk were patrolling in a marked police vehicle and responded to a radio report of gunfire in the vicinity of 73rd Street and Blackstone Avenue. While proceeding to that location, the police officers were flagged down by the owner of a black sports utility vehicle, who notified the officers of gunfire and pointed down 73rd Street.

¶ 5 As the police officers approached the intersection of 73rd Street and Blackstone Avenue, Officer McDonough observed three individuals entering a four-door Nissan Maxima facing eastward on 73rd Street. Officer McDonough also noticed a female driver he had not observed entering the vehicle. Officer McDonough parked the police vehicle directly in front of the Nissan.

¶ 6 As Officer McDonough exited his vehicle, he observed the front-seat passenger, whom he identified in court as defendant, exit the Nissan while holding a handgun. Officer McDonough shouted, "Get your hands up, " whereupon defendant turned, tossed the handgun into the Nissan, and fled westbound on foot. Officer McDonough chased defendant, who turned southward and threw another object to the ground during the chase. Officer McDonough testified this object was a semiautomatic magazine containing ammunition.

ΒΆ 7 According to Officer McDonough, defendant eventually ran back toward the Nissan. Officer McDonough transmitted this information over his radio. Officer McDonough subsequently learned defendant was apprehended by Officer Sobczyk. When Officer McDonough returned to the location of the Nissan, he observed Officer Hernandez recover the handgun from the floorboard of the passenger seat of the Nissan. Officer McDonough also testified the handgun contained one round of ammunition, but was missing the ...


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