Court of Appeals of Illinois, First District, Third Division
from the Circuit Court of Cook County. No. 10 CR 13096 The
Honorable Neil J. Linehan, Judge Presiding.
JUSTICE PUCINSKI delivered the judgment of the court, with
opinion. Justice Lavin concurred in the judgment and opinion.
Justice Hyman specially concurred, with opinion.
1 Following a bench trial, defendant Donald Spivey was found
guilty of two counts of unlawful use of a weapon by a felon
(UUWF) and two counts of aggravated unlawful use of a weapon
(AUUW). The trial court merged the convictions and sentenced
defendant to four years' imprisonment, followed by two
years of mandatory supervised release (MSR), for his
conviction on count two for UUWF. Initially on appeal, we
vacated defendant's UUWF conviction under count two
"because 'the State did not prove an essential
element of the offense where it alleged in the charging
instrument and proved at trial a predicate offense that has
been declared unconstitutional and void ab
initio.' " People v. Spivey, 2015 IL
App (1st) 123563-U, ¶¶ 21, 25 (quoting People
v. McFadden, 2014 IL App (1st) 102939, ¶ 43,
aff'd and rev'd in part, 2016 IL 117424).
2 On September 28, 2016, the supreme court denied the
State's petition for leave to appeal but entered a
supervisory order directing us to vacate our judgment and to
reconsider the matter in light of People v.
McFadden, 2016 IL 117424, to determine if a different
result is warranted. People v. Spivey, No. 119492
(Ill. Sept. 28, 2016). For the reasons that follow, we
conclude that a different result is warranted.
4 The record shows that defendant was charged by information,
under case number 10 CR 13096, with one count of armed
habitual criminal (count one), two counts of UUWF (counts two
and three), and four counts of AUUW (counts four, five, six,
and seven). The State nol-prossedcounts one, five, and seven,
then entered into evidence a certified statement of
defendant's prior conviction for AUUW in case number 04
CR 18579, and the matter proceeded to trial on the remaining
5 Specifically, count two charged defendant with committing
the offense of UUWF in that he knowingly possessed "on
or about his person any weapon prohibited by section 24-1 of
this Code, " to wit: a firearm after having been
previously convicted of AUUW under case number 04 CR 18579
(720 ILCS 5/24-1.1(a) (West 2010)). Count three charged
defendant with committing the offense of UUWF in that he
knowingly possessed firearm ammunition after having been
previously convicted of AUUW under case number 04 CR 18579
(720 ILCS 5/24-1.1(a) (West 2010)). Count four charged
defendant with committing the offense of AUUW in that he
knowingly carried an uncased, loaded, and immediately
accessible firearm on his person and outside his home (720
ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010)). And count six
charged defendant with committing the offense of AUUW in that
he knowingly carried or possessed an uncased, loaded and
immediately accessible firearm on his person, upon a public
way (720 ILCS 5/24-1.6(a)(2), (a)(3)(A) (West 2010)).
Additionally, counts four and six indicated that "The
State shall seek to sentence [defendant] as a class two
offender in that he has been previously convicted of the
offense of [AUUW] under case number 04CR18579." We take
judicial notice of the charging instrument and the circuit
court clerk's docket in case number 04 CR 18579 that
defendant included in his appendix to the brief (Ill. S.Ct.
R. 342 (eff. Jan. 1, 2005)), which reflect that he was
convicted of the Class 4 version of AUUW under count one,
alleging that he knowingly carried an uncased, loaded, and
immediately accessible firearm on his person and outside his
home (720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (d) (West 2010)).
See People v. Jimerson, 404 Ill.App.3d 621, 634
(2010) (reviewing court may take judicial notice of public
records and other judicial proceedings).
6 At trial, Chicago police officer Jason Perez testified that
at 4:55 a.m., on July 3, 2010, he and his partner, Officer
Antonio De Carlo, were on routine patrol in the area of 6836
South May Street, where he observed defendant standing on the
sidewalk about 20 feet away, with a black object resembling
the handle of a revolver tucked into his waistband. Officer
Perez made eye contact with defendant, who then walked away
with his arms around his waist. Officer Perez exited his
squad car, announced his office, and pursued defendant
through a nearby gangway, into the backyard of the abandoned
house at 6836 South May Street. There, defendant threw an
object that made a metallic sound when it struck the
chain-link fence at the north side of the backyard. The
pursuit continued through an alley, across Racine Avenue, and
ended with defendant's arrest in a vacant lot.
7 Chicago police officer Andres Zepeda testified that he and
other responding officers arrived on the scene and helped
place defendant into custody. He was then directed by Officer
Perez to search along the chain-link fence in the backyard of
the abandoned house at 6836 South May Street. There, he
recovered a loaded .357-caliber revolver along the north side
of the chain-link fence. Officer Perez arrived in the
backyard and identified the firearm as the same black
revolver that he observed defendant holding minutes ago.
8 Defendant presented the testimony of Artamese Prewitt and
Kathy Johnson, both of whom testified that defendant did not
have a gun. Additionally, defendant testified that he was
living with his cousin at 6838 South May Street when the
incident at bar occurred. He testified that he was drinking
alcohol on his front yard when police officers pulled up in a
squad car, exited, and approached him. He explained that he
ran when the officers called him because he had an open
container of alcohol and a warrant from Wisconsin for unpaid
child support. Defendant maintained that he threw his bottle
of alcohol at the chain-link fence in the backyard, and he
denied having a weapon.
9 In finding defendant guilty, the trial court stated,
"So as to count 2, there will be a finding of guilty.
Counts 3, 4, and 6 will merge with *** count 2 in the
charging document, " and sentenced defendant to four
years' imprisonment for his UUWF conviction on count two.
Defendant timely appealed.
11 Defendant contends in his supplemental brief that United
States Supreme Court precedent requires that his UUWF
conviction be reversed, citing Montgomery v.
Louisiana, 577 U.S.___, 136 S.Ct. 718 (2016), and Ex
Parte Siebold, 100 U.S. 371 (1879). Defendant argues
that "nothing in McFadden stands in the way of
this Court applying that controlling precedent, as it is
bound to do" because McFadden did not address
those two cases. Alternatively, defendant contends that if
this court affirms his UUWF conviction, the felony
classification of the offense must be reduced ...