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People v. Stevens

Court of Appeals of Illinois, Fourth District

May 16, 2018

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JEREMI R. STEVENS, Defendant-Appellant.

          Appeal from Circuit Court of Champaign County No. 15CF48 Honorable Thomas J. Difanis, Judge Presiding.

          JUSTICE DeARMOND delivered the judgment of the court, with opinion. Justices Steigmann and Turner concurred in the judgment and opinion.

          OPINION

          DeARMOND JUSTICE

         ¶ 1 In January 2015, defendant, Jeremi R. Stevens, was arrested and charged with aggravated unlawful use of a weapon. In July 2015, a jury found defendant guilty. At the September 2015 sentencing hearing, the trial court sentenced defendant to 24 months of probation.

         ¶ 2 On appeal, defendant argues (1) his conviction is void due to the Firearm Concealed Carry Act (Act) (430 ILCS 66/1 to 999 (West 2014)) being facially unconstitutional, (2) he was denied effective assistance of counsel due to counsel's failure to object to the videotape of defendant's arrest in a motion in limine hearing, (3) he was denied effective assistance of counsel due to counsel's failure to object to testimonial hearsay, and (4) his fines imposed by the circuit clerk should be vacated. We affirm in part and vacate in part.

         ¶ 3 I. BACKGROUND

         ¶ 4 In January 2015, defendant was driving westbound on Interstate 74 in the right lane when he cut in front of a semitruck in the left lane and became boxed in between two semitrucks. The driver in the truck behind defendant honked at him because the driver believed there was not enough room to fit in between the two trucks. Upon hearing the honk, defendant reached into his glove compartment and pulled out a handgun and waved it inside the car, showing the semitruck driver. The driver called the police, and defendant was arrested.

         ¶ 5 The State alleged defendant committed the crime of aggravated unlawful use of a weapon when he knowingly carried in his vehicle a firearm at a time when he was not on his own land, in his own abode, or in his own fixed place of business and that firearm was uncased, loaded, and immediately accessible and defendant had not been issued a currently valid license under the Act (count 1) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2014)). The State also alleged defendant committed the crime of aggravated unlawful use of a weapon when he knowingly carried in any vehicle a firearm at a time when he was not on his own land, in his own abode, or in his own fixed place of business and he was engaged in, or attempting the commission of, a misdemeanor involving the use or threat of violence against the person or property of another, namely aggravated battery, in that he, while traveling along Interstate 74, pointed a Smith and Wesson .40-caliber handgun in the direction of a vehicle, placing the passengers of the vehicle in reasonable apprehension of receiving a battery (count II) (720 ILCS 5/24-1.6(a)(1), (a)(3)(H) (West 2014)).

         ¶ 6 The State filed a motion in limine to admit a certified document from the Illinois State Police Firearm Services Bureau, which stated defendant had a valid Firearm Owner's Identification (FOID) card but not a concealed carry license. Defense counsel did not object to the admission of the document, reserving his right to object on relevance grounds, and the document was admitted.

         ¶ 7 In July 2015, a jury trial commenced. At the conclusion of the trial, during the jury instruction conference, the trial judge dismissed count II because the State failed to present evidence defendant pointed the gun at anyone. The jury found defendant guilty on count I. In a September 2015 sentencing hearing, the judge sentenced defendant to 24 months of probation and assessed fines payable during the first 12 months of his probation.

         ¶ 8 This appeal followed. At oral arguments, the parties requested an opportunity to file supplemental briefs, and the court granted the request.

         ¶ 9 II. ANALYSIS

         ¶ 10 A. Constitutionality of the Act

         ¶ 11 Defendant argues his conviction, pursuant to sections 24-1.6(a)(1) and (a)(3)(A-5) of the Criminal Code of 2012 (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2014)), is void because the Act is facially unconstitutional. We disagree.

         ¶ 12 The second amendment of the United States Constitution states "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const., amend. II. In District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the United States Supreme Court held the second amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation." "[I]f a Bill of Rights guarantee is fundamental from an American perspective ***, that guarantee is fully binding on the States and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values." (Emphasis in original.) McDonald v. City of Chicago, 561 U.S. 742, 784-85 (2010).

         ¶ 13 When determining the level of scrutiny that should apply to second amendment cases, federal circuit courts have looked to the first amendment as a guide. See Ezell v. City of Chicago, 651 F.3d 684, 703 (7th Cir. 2011). The court must determine "how close the law comes to the core of the Second Amendment right and the severity of the law's burden on the right." Ezell, 651 F.3d at 703. "[T]he Supreme Court's First Amendment fee jurisprudence provides the appropriate foundation for addressing *** fee claims under the Second Amendment." Kwong v. Bloomberg, 723 F.3d 160, 165 (2d Cir. 2013).

         ¶ 14 In the first amendment context, the Supreme Court has held governmental entities may impose licensing fees when they are designed " 'to meet the expense incident to the administration of the [licensing statute] and to the maintenance of public order in the matter licensed.' " Cox v. New Hampshire, 312 U.S. 569, 577 (1941). "Put another way, imposing fees on the exercise of constitutional rights is permissible when the fees are designed to defray (and do not exceed) the administrative costs of regulating the protected activity." Kwong, 723 F.3d at 165. The licensing fee must serve "the legitimate purpose of defraying the expenses incident to the administration and enforcement" of the licensing statute. National Awareness Foundation v. Abrams, 50 F.3d 1159, 1166 (2d Cir. 1995).

         ¶ 15 "[A] challenge to the constitutionality of a criminal statute may be raised at any time." People v. Wright, 194 Ill.2d 1, 23, 740 N.E.2d 755, 766 (2000). "Statutes are presumed constitutional, and the party challenging a statute has the burden of establishing a clear constitutional violation." People v. One 1998 GMC, 2011 IL 110236, ¶ 20, 960 N.E.2d 1071. A reviewing court "will affirm a statute's constitutionality if the statute is reasonably capable of such an interpretation." People v. Johnson, 225 Ill.2d 573, 584, 870 N.E.2d 415, 421 (2007). "[W]e will resolve any doubt on the construction of a statute in favor of its validity." People v. Boeckmann, 238 Ill.2d 1, 6-7, 932 N.E.2d 998, 1001 (2010). "Moreover, a challenge to the facial validity of a statute is the most difficult challenge to mount successfully because an enactment is invalid on its face only if no set of circumstances exists under which it would be valid." One 1998 GMC, 2011 IL 110236, ¶ 20. This effectively means the specific facts of the case are irrelevant to a facial challenge. "[T]he specific facts related to the challenging party are irrelevant." People v. Thompson, 2015 IL 118151, ¶ 36, 43 N.E.3d 984. "The constitutionality of a statute is a question of law that we review de novo." People v. Aguilar, 2013 IL 112116, ¶ 15, 2 N.E.3d 321.

         ¶ 16 Under the aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6 (West 2014)), residents and nonresidents are required to have a currently valid license under the Act if they seek to carry a weapon in any vehicle. Defendant argues the licensing fee of the Act is unconstitutional because it is ...


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