from the Circuit Court of the 21st Judicial Circuit, Kankakee
County, Illinois, Appeal No. 3-12-0840 Circuit No. 11-CF-128
Honorable Clark E. Erickson, Judge, Presiding.
SCHMIDT JUSTICE delivered the judgment of the court, with
opinion. Justices Holdridge and Carter concurred in the
judgment and opinion.
1 Defendant, Michael L. Williams, challenges his conviction
for unlawful possession of a weapon by a felon (UPWF) (720
ILCS 5/24-1.1(a) (West 2010)). He argues that the State
relied on a void conviction to prove the element of a prior
felony conviction, and therefore failed to prove defendant
guilty beyond a reasonable doubt. We affirm.
3 The State charged defendant by indictment with attempted
armed robbery (720 ILCS 5/8- 4(a), 18-2(a)(2) (West 2010))
and UPWF. The UPWF count alleged that on March 7, 2011,
defendant, being "a person who has been convicted of a
felony under the law of Illinois, knowingly possessed on or
about his person, a handgun."
4 At the ensuing jury trial, the State produced evidence
showing that a firearm was found under the passenger seat of
the car in which defendant was arrested. The State also
introduced a certified copy of defendant's prior felony
conviction. The certified documents showed that defendant had
pled guilty in 2006 to Class 4 aggravated unlawful use of a
weapon (AUUW). More specifically, defendant pled guilty to a
violation of section 24-1.6(a)(1), (a)(3)(A) of the Criminal
Code of 1961 (Code) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West
5 On March 8, 2012, the jury found defendant guilty of UPWF
and not guilty of attempted armed robbery. The trial court
sentenced defendant to a term of 12 years' imprisonment.
7 On appeal, defendant contends that his conviction must be
reversed because the State failed to prove that he had a
prior felony conviction, a necessary element of UPWF.
Specifically, defendant points out that his 2006 AUUW
conviction was based on a statute that was later declared
facially unconstitutional by our supreme court in People
v. Aguilar, 2013 IL 112116, ¶ 22. Thus, defendant
argues that because his 2006 conviction was void, the State
failed to prove that he committed UPWF. The supreme
court's decision in People v. McFadden, 2016 IL
117424, mandates that we reject defendant's argument.
8 In Aguilar, our supreme court held that "on
its face, the Class 4 form of section 24-1.6(a)(1),
(a)(3)(A), (d)" (the section under which defendant in
the present case pled guilty in 2006) "violates the
right to keep and bear arms, as guaranteed by the second
amendment to the United States Constitution."
Aguilar, 2013 IL 112116, ¶ 22. When the supreme
court declares a statute to be unconstitutional on its face,
that statute is void ab initio. People v.
Davis, 2014 IL 115595, ¶ 25. "When a court
declares a statute unconstitutional and void ab
initio, the court means only that the statute was
constitutionally infirm from the moment of its enactment and,
therefore, is unenforceable." Id. Defendant
maintains that his 2006 AUUW conviction- sustained under the
same section deemed facially unconstitutional in
Aguilar-is a nullity and may not be subsequently
used to sustain the present conviction for UPWF.
9 Our supreme court addressed this precise issue in
McFadden. In that case, defendant had been convicted
under section 24-1.6(a)(1), (a)(3)(A) of the Code.
McFadden, 2016 IL 117424, ¶¶ 3-4. That
conviction was then used as a basis for a later conviction of
UPWF. Id. ¶¶ 6-7. Later, the
supreme court issued its decision in Aguilar. See
id. ¶ 8.
10 The McFadden court held that the Aguilar
ruling did not undermine the defendant's conviction for
UPWF. See id. ¶ 30. In so holding, the court
examined the language of section 24-1.1(a), which prohibits a
person from possessing a firearm " 'if the person
has been convicted of a felony under the laws of this State
or any other jurisdiction.' " Id. ¶ 27
(quoting 720 ILCS 5/24-1.1(a) (West 2008)). Noting that the
language in the statute is in the past tense, a divided court
concluded that "[n]othing on the face of the statute
suggests any intent to limit the language to only those
persons whose prior felony convictions are not later subject
to vacatur." Id. ¶ 27.
other words, until an erroneous conviction is cleared from a
defendant's record via vacatur or other affirmative
action to nullify the conviction, he is still subject to the
"firearms disability" in section 24-1.1(a).
Id. ¶ 24. McFadden requires that