Court of Appeals of Illinois, First District, Fifth Division
Appeal fro the Circuit Court of Cook County. No. 12 CR 15882. Honorable James B. Linn, Judge Presiding.
Defendant's conviction for unlawful use of a weapon by a felon was reversed, since his only prior conviction was for the Class 4 felony form of section 24-1.6(a)(1), (a)(3)(A) or (a)(2), (a)(3)(A), and pursuant to Aguilar, that conviction is void ab initio and could not serve as an essential element of his conviction for unlawful use of a weapon by a felon.
Michael J. Pelletier, Alan D. Goldberg, and Rachel Moran, State Appellate Defender's Office, Chicago, for appellant.
Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Jeffrey Allen, and John E. Nowak, Assistant State's Attorneys, of counsel), for the People.
JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Gordon concurred in the judgment and opinion.
[¶1] Following a jury trial, defendant Nicholas Claxton was convicted of unlawful use of a weapon by a felon (UUWF) and
sentenced to 10 years' imprisonment. On appeal, defendant contends that his conviction must be reversed because his only prior felony conviction is for a version of aggravated unlawful use of a weapon (AUUW) that has been found facially unconstitutional. For the reasons stated below, we reverse.
[¶2] Defendant was charged with multiple counts of UUWF for possessing on his person a firearm and ammunition on or about July 28, 2012, and for possessing on his land, abode, or person a firearm and ammunition between July 28 and August 4, 2012. All counts alleged that he did so while having been convicted of AUUW in case No. 11 CR 16293, and all sought a Class X sentence on an allegation that he committed UUWF while possessing body armor. Defendant was also charged with cyberstalking for sending " picture texts" as described below to Herbert Brown that he knew or should have known would cause a reasonable person to fear for his safety or the safety of another and to suffer emotional distress.
[¶3] Defendant filed a motion to dismiss the UUWF charges, citing Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), finding the UUW and AUUW statutes unconstitutional. Noting that the ramifications of the federal decision were uncertain (the court of appeals had stayed its mandate to allow the legislature to amend the statutes) the court denied dismissal.
[¶4] At trial, the evidence showed that defendant " texted" to his former coworker Brown a photograph of himself wearing a bulletproof vest and holding a shotgun. A search of defendant's home with the consent of a woman with whom he was living disclosed a bag containing a loaded shotgun, loose ammunition and a vest. The woman testified to seeing the bag, shotgun, and vest in their home before the search. Testing showed that the vest contained " ballistic-grade high-strength fibers" and ceramic armor plates suitable to stop 7.62-millimeter rifle-fired ammunition. On this evidence, the jury found defendant guilty of UUWF of a firearm and ...