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.
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
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.
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
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