Court of Appeals of Illinois, First District, Fifth Division
Appeal from the Circuit Court of Cook County. No. 09 CR 60756. Honorable Luciano Panici, Judge Presiding.
On appeal from defendant's conviction for unlawful use of a weapon by a felon, the appellate court rejected defendant's contention that the unlawful use of a weapon by a felon statute, which forbids a person previously convicted of a forcible felony from applying for a firearm owners identification card until at least 20 years have passed since the conviction, is unconstitutional as applied, since the State has an interest in restricting the legal possession of firearms by felons and defendant did not establish that the restriction was arbitrary.
Michael J. Pelletier, Alan D. Goldberg, and Todd T. McHenry, State Appellate Defender's Office, Chicago, for appellant.
Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, William Toffenetti, and Christopher R. Sullivan, Assistant State's Attorneys, of counsel), for the People.
JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.
[¶1] Following a jury trial, defendant Cordell Rush was convicted of unlawful use of a weapon by a felon (UUWF) and possession of a firearm with defaced identification marks. The latter conviction merged with the UUWF conviction and the trial court subsequently sentenced defendant to a term of eight years in the Illinois Department of Corrections.
[¶2] Defendant appeals, arguing that: (1) the Illinois UUWF statute (720 ILCS 5/24-1.1(a) (West 2010)) is unconstitutional as applied because it forbids a person previously convicted of a forcible felony from applying for a firearm owners identification card (FOID card) until at least 20 years have passed since the conviction; (2) the State improperly used his prior felony conviction to prove an element of the UUWF charge and to elevate the classification of the offense to a Class 2 felony; and (3) the mittimus should be corrected to show that the lesser charge of possession of a firearm with defaced identification marks merged with the UUWF conviction.
[¶3] Since defendant has not challenged the sufficiency of the evidence on appeal, we will present a brief summary of the facts underlying defendant's conviction.
[¶4] In April 2009, defendant's daughter Corneshia Rush went to defendant's house with a friend to visit him. During the course of the conversation, defendant and Corneshia began to argue. Defendant yelled for someone to get his gun and told Corneshia that he was " gonna put [her] in the ground." Defendant then left the room for approximately 30 seconds and returned with a gun in his hand. Defendant sat down at the kitchen table and then unloaded and reloaded the gun. Defendant waved the gun in the air. Corneshia called her mother on the telephone. Defendant spoke to Corneshia's mother and told her that if she called the police he was going " to show them how crazy he really is." Corneshia testified at trial that defendant " was going to kill me, I guess." Corneshia's mother called back and spoke with defendant, who allowed Corneshia to leave. Corneshia left with her friend and ran down the street to meet an uncle and wait for her mother.
[¶5] Sergeant K.C. Erickson of the Calumet City police department spoke with Corneshia, her friend, her mother, and defendant's live-in girlfriend. Defendant's girlfriend gave the officer permission to enter defendant's home. While in the home, Sergeant Erickson saw a .45-caliber round on top of the dryer in the laundry room. He then recovered a .45-caliber handgun under the mattress in the master bedroom and a bulletproof vest in a closet. Sergeant Erickson observed that the serial number had been scratched or filed off of the handgun. He also found a wallet and gas and electric bills which listed defendant's name and listed the address of the home. Defendant admitted possession of the gun but denied threatening Corneshia with it. He said the gun was in his waistband during the argument, but he did not take it out.
[¶6] Following deliberations, the jury found defendant guilty of UUWF and possession of a firearm with defaced identification marks. The trial court merged the latter count into the UUWF conviction and sentenced defendant for an extended-term sentence of eight years.
[¶7] This appeal followed.
[¶8] On appeal, defendant contends that he does not challenge the State's ability to place restrictions on the possession of firearms by felons, but the statute violates
the second amendment of the United States Constitution and the right to bear arms under the Illinois Constitution because defendant was barred from applying for a FOID card for a period of 20 years based on a single felony burglary conviction from ...