Court of Appeals of Illinois, First District, Fifth Division
from the Circuit Court of Cook County No. 13 CR 9003
Honorable Thomas M. Davy, Judge Presiding.
PRESIDING JUSTICE REYES delivered the judgment of the court,
with opinion. Justices Lampkin and Rochford concurred in the
judgment and opinion.
1 Following a bench trial, defendant Erick Martin was
convicted of (1) armed habitual criminal, (2) unlawful use of
a weapon by a felon, and (3) six counts of aggravated
unlawful use of a weapon. These convictions were merged into
the single offense of armed habitual criminal, and the trial
court imposed the minimum six-year term of imprisonment.
Defendant's sole contention on appeal is that the armed
habitual criminal statute is unconstitutional as applied to
him, where his underlying felony offenses were nonviolent and
more than 20 years old. For the reasons that follow, we
affirm the judgment of the circuit court.
3 Defendant was charged with multiple offenses including
armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2012)),
unlawful use of a weapon by a felon (id. §
24-1.1(a)) and six counts of aggravated unlawful use of a
weapon (id. §§ 24-1.6(a)(1), (3)(A), (C);
24-1.6(a)(2), (3)(C)) based, in part, on his possession of a
.357 blue steel revolver without a firearm owner's
identification (FOID) card. Defendant waived his right to a
jury and elected to proceed by way of a bench trial.
4 At trial, two officers, Steve Jarosz and Ryan Harty of the
Chicago Police Department, testified regarding their
interaction with defendant and their recovery of a blue steel
.357 revolver on April 24, 2013. According to Jarosz, while
on patrol they observed defendant's vehicle turn into an
alley without using a turn signal. Jarosz activated the siren
and followed the vehicle into the alley, but the vehicle did
not stop. The vehicle continued to travel through the alley,
during which time Jarosz observed the driver open the
driver's side door and drop a handgun onto the ground.
Harty also observed the driver drop an object outside of the
driver's side door, but he was unable to discern what the
object was. The vehicle later stopped at the end of the
alley, and defendant was removed from the driver's side
of the vehicle. Jarosz recovered the handgun from where he
had observed it fall. The handgun was loaded with six live
rounds of ammunition. Jarosz further testified that defendant
did not have a FOID card. A certified copy of a firearm
service bureau report was entered into evidence which
revealed that defendant did not possess a FOID card.
5 Certified copies of defendant's two prior felony
convictions-a 1989 manufacture/delivery of a controlled
substance offense and a 1992 unlawful use of a weapon by a
felon offense-were entered into the record without objection.
6 Defendant testified that he was not in possession of a
firearm that evening nor did he open his vehicle door while
driving through the alley. According to defendant, after he
was stopped by the officers he waited for 30 minutes while
one of the officers walked down the alley and returned with a
handgun and asked if it was his weapon. Defendant informed
the officers at that time that it was not his weapon.
7 After considering the evidence presented, the trial court
indicated it found the officers to be credible and thus found
defendant guilty on all counts. The counts were then merged
into a single armed habitual criminal conviction. At the
sentencing hearing, defendant presented evidence in
mitigation that he was employed, participated in church,
volunteered as a disc jockey for neighborhood events, and had
no criminal convictions since 1992. The trial court also
reviewed defendant's presentence investigation report.
This report indicated that defendant had been convicted of
five felonies between 1989 and 1992. However, after 1992
defendant earned a vending machine operator's license,
was employed at a mailing company, and then for the last 25
years worked as an independent professional disc jockey
earning $3200 a week. The presentence investigation report
further indicated that defendant had a "great"
relationship with his family and provided financial support
to his 18-year-old son. After hearing evidence offered in
aggravation and mitigation, the trial court sentenced
defendant to the minimum six years' imprisonment for the
Class X offense of armed habitual criminal. This appeal
9 Defendant's sole contention on appeal is that the
Illinois armed habitual criminal statute is unconstitutional
as applied to him because the statute's application to
him was triggered by nonviolent offenses that were more than
20 years old. Defendant asserts that the statute violates his
second amendment right to possess a firearm. U.S. Const.,
amend. II ("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."). Defendant does
not challenge the sufficiency of the evidence.
10 In response, the State maintains that defendant's
as-applied challenge fails both procedurally and
substantively. The State asserts that the challenge fails
procedurally because he did not raise the issue in the trial
court and therefore there was no evidentiary hearing and no
findings of fact regarding his as-applied challenge.
Substantively, the State maintains that defendant's
as-applied challenge fails because he has not established
that his conduct was entitled to second amendment protection
where he chose to possess a firearm knowing that his prior
felony convictions had not been vacated or otherwise set
aside. The State maintains defendant was not a "law
abiding, responsible citizen" protected by the second
11 As relevant here, an individual commits the offense of
armed habitual criminal when he or she
"receives, sells, possesses, or transfers any firearm
after having been convicted a total of 2 or more times of any
combination of the following offenses:
(2)unlawful use of a weapon by a ...