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People v. Gamez

Court of Appeals of Illinois, First District, Second Division

September 19, 2017

THE PEOPLE OF THE STATE OF ILLINOIS Plaintiff-Appellee,
v.
JOSE GAMEZ, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 96 CR 16520 The Honorable Mary Margaret Brosnahan, Judge Presiding.

          JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justices Lavin and Cobbs concurred in the judgment and opinion.

          OPINION

          PUCINSKI JUSTICE

         ¶ 1 The defendant, Jose Gamez, appeals from the trial court's denial of his petition for relief from judgment brought pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2014)). In his section 2-1401 petition, the defendant sought to have his 1996 conviction for unlawful use of a weapon (720 ILCS 5/24-1(a)(4) (West 1996)) vacated on the basis that the statute under which he was convicted (1996 UUW statute) was unconstitutional. On appeal, the State concedes that the 1996 UUW statute was, in fact, unconstitutional, and we agree.

         ¶ 2 BACKGROUND

         ¶ 3 In October 1996, the defendant pleaded guilty to unlawful use of a weapon for the knowing possession of a firearm in a vehicle at a time when he was not on his own land or in his own abode or fixed place of business, in violation of 1996 UUW statute. He was sentenced to 15 months' conditional discharge.

         ¶ 4 In March 2014, the defendant filed his section 2-1401 petition, in which he sought to have his conviction vacated based on the holdings of Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), and People v. Aguilar, 2013 IL 112116, which had respectively held the 2010 version of the unlawful use of a weapon statute (720 ILCS 5/24-1(a)(4) (West 2010)) (2010 UUW statute) and the 2008 version of the aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)) (2008 AUUW statute) unconstitutional. The State moved to dismiss the defendant's section 2-1401 petition on the basis that the holding in Aguilar was limited to "the specific Class 4 version" of the 2008 AUUW statute. Following arguments by the parties, the trial court denied the defendant's section 2-1401 petition, finding that the 1996 UUW statute did not constitute a comprehensive ban on weapons outside the home, as was involved in Moore, and that Aguilar did not apply because the defendant was not convicted of aggravated unlawful use of a weapon.

         ¶ 5 The defendant then filed this timely appeal.

         ¶ 6 ANALYSIS

         ¶ 7 On appeal, the defendant argues that the trial court erred in denying his section 2-1401 petition, because, under the reasoning of Moore and Aguilar, the 1996 UUW statute was unconstitutional. More specifically, the defendant argues that the elements of the offense for which he was convicted were nearly identical to those in Moore and Aguilar. Therefore, because the courts in Moore and Aguilar found the statutes at issue in those cases to represent unconstitutional bans on the possession of firearms outside of the home, the 1996 UUW statute was also unconstitutional. The State concedes on appeal that the holdings of Moore and Aguilar dictate the conclusion that the 1996 UUW statute was unconstitutional and, thus, the defendant's conviction must be vacated.

         ¶ 8 The purpose of a section 2-1401 petition is to present to the court facts outside the record that, if known at the time that the judgment was entered, would have prevented the entry of judgment. In re Detention of Morris, 362 Ill.App.3d 321, 322 (2005). Section 2-1401 also provides litigants with a vehicle to attack a judgment on voidness grounds. Sarkissian v. Chicago Board of Education, 201 Ill.2d 95, 104 (2002). Despite typically being characterized as a civil remedy, section 2-1401 petitions may also be utilized in the criminal context. Morris, 362 Ill.App.3d at 323. Where a section 2-1401 petition is disposed of other than after an evidentiary hearing, our review is de novo. People v. Morfin, 2012 IL App (1st) 103568, ¶ 30.

         ¶ 9 In Moore, 702 F.3d 933, the Seventh Circuit addressed, among other things, a constitutional challenge to the 2010 UUW statute under which the defendant was convicted. The 2010 UUW statute provided in relevant part as follows:

"(a) A person commits the offense of unlawful use of weapons when he ...

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