Quick takes on Friday's Illinois Supreme Court criminal opinions
Our panel of leading appellate attorneys review Friday's Illinois Supreme Court opinions in the criminal cases People v. Almond, People v. Mosley, People v. Boyce and In re the Interest of Jordan G.
People v. Almond
By Jay Wiegman, Office of the State Appellate Defender
Many people mocked Barney Fife for carrying a single bullet in his shirt pocket, but today's decision in People v. Almond, 2015 IL 113817, shows that to have been a wise policy.
Based on an anonymous tip that drugs were being dealt out of a store, police officers approached Almond (who had prior felony convictions), asked him what he was doing there and whether he was in possession of any narcotics or weapons. The officer testified that the defendant said “I just got to let you know I got a gun on me.” The defendant was frisked, and the gun was recovered. The defendant filed a motion to quash arrest and suppress evidence. At a hearing on the motion, Almond denied that he was even asked whether he had contraband and denied he ever told officers that he possessed a firearm, claiming that he would not tell a police officer that information because he knew “it’s wrong to have a gun.” The motion was denied. Following a bench trial, the defendant was convicted on all counts.
A divided appellate court (First District) affirmed in part and reversed in part. The court rejected the defendant's Fourth Amendment challenge to his arrest and the evidence, but, applying one-act/one-crime principles, found that the defendant could not receive separate convictions based on the simultaneous possession of a firearm and ammunition in a single loaded firearm.
The Supreme Court reversed in part and affirmed in part. Writing for the majority, Justice Kilbride quickly determined that the plain language of the statute unambiguously authorizes separate convictions when a felon possesses a loaded firearm: a conviction based on the firearm and a conviction based on the ammunition inside that firearm. "The language not only criminalizes the possession of any firearm or any firearm ammunition by a felon, but also clarifies that the possession of each firearm or firearm ammunition by a felon constitutes a single and separate violation." Almond, 2015 IL 113817, ¶ 36 [emphasis in original]. The Court found that this construction was supported by the legislature's amendment of the UUW statute following the Court's 2004 decision in People v. Carter, 213 Ill.2d 295 (2004), which held that the pre-amended version of 720 ILCS 5/24-1.1 was ambiguous on the issue of whether multiple convictions were permitted for the simultaneous possession of a firearm and ammunition. The Court went on to find that the State properly charged defendant's conduct as separate and multiple acts.
The Court then considered the denial of defendant's motion to quash arrest and suppress evidence, which had been raised on cross-appeal. The supreme court deferred to the trial court's findings of fact, and held that the encounter was a consensual one.
Justice Garman agreed with the majority's analysis of the issues in the defendant's cross-appeal, but dissented from the majority's holding that defendant was properly convicted of both armed habitual criminal and UUU by a felon. Justice Garman would have held that the two offenses were based upon a single physical act.
People v. Mosley
By Kerry J. Bryson, Office of the State Appellate Defender
In this much anticipated opinion, the Illinois Supreme Court resolved a multitude of questions about the constitutionality of provisions of the aggravated unlawful use of a weapon (AUUW) statute which were left open after the Court’s decision in People v. Aguilar, 2013 IL 112116. Before reaching the merits, the Court first resolved procedural questions presented in the case.
First, the Court held that a portion of the circuit court’s order constituted an impermissible advisory opinion. Specifically, the circuit court had held that all of Section 24-1.6(a) was unconstitutional. Because several of the subsections in 24-1.6(a) were not at issue in the case, the circuit court’s opinion was partially vacated as to any subsections other than those specifically involved.
Second, the Court clarified that the circuit court’s actions were not an acquittal where the court found Mosley guilty of the charges brought by the State but then vacated those charges for constitutional reasons. Thus, the State’s appeal from the circuit court’s order was proper.
On the merits, the Court first held that subsection (a)(3)(A) (carrying an uncased, loaded, immediately accessible firearm), which was found unconstitutional in Aguilar in combination with subsection (a)(1) (carrying a firearm when not on his own land or in his own abode), was equally unconstitutional when combined with subsection (a)(2) (carrying a firearm on a public way).
The Court found that the other aggravating factors in subsection (a)(3) are severable because they are capable of being executed wholly independently of the provisions previously found unconstitutional. The Court then held that (a)(3)(C) (no valid FOID card) and (a)(3)(I) (person under 21 years of age) do not run afoul of the constitution as neither imposes a burden on conduct falling within the scope of the Second Amendment.
The Court also rejected Equal Protection and Due Process challenges brought by Mosley. Specifically, the Court held that age is not a suspect class under the Second Amendment and age restrictions bear a rational relationship to the government’s legitimate interest in protecting the public and the police.
With regard to Due Process, the 19-year-old Mosley argued that he could not get a FOID card because his parents both had felony convictions, preventing them from obtaining a FOID card and thereby preventing them from signing off on Mosley’s application for a FOID card. There had not been an evidentiary hearing on this question in the circuit court, so the factual record was underdeveloped and the Court found that any constitutional due process challenge would have to show that the statute was facially unconstitutional (not just unconstitutional as applied). Because the FOID card statute provides a means for an individual between the ages of 18 and 20 to get a FOID card without a parental signature, it was not facially unconstitutional.
Finally, the Court considered the constitutionality of subsection (d)(2), which made a conviction non-probationable if both subsections (a)(3)(A) and (a)(3)(C) were present. Because of the involvement of (a)(3)(A), this subsection was unconstitutional. The Court found, however, that it was severable from the remainder of the sentencing provisions, and thus sentencing under the other subsections of 24-1.6(d) was still proper.
Given the scope of the Court’s unanimous opinion, it is difficult to provide much detail in a summary such as this. Practitioners would be well-served to read through the opinion for a detailed explanation of the reasoning behind the Court’s various holdings. Further, it is worth noting that while this opinion answers several questions which had been left open after Aguilar, questions as to the constitutionality of other subsections of section 24-1.6 remain unresolved.
In re the Interest of Jordan G.
By Kerry J. Bryson, Office of the State Appellate Defender
The Jordan G. case presented several of the same questions as were before the Court in Mosley. Jordan G. involved a 16-year old charged with AUUW violations under 24-1.6(a)(1) and (a)(3)(A), (C), and (I). The circuit court dismissed the AUUW charges under Moore v. Madigan, and refused to reconsider the dismissal after People v. Aguilar.
On appeal to the Illinois Supreme Court, the Court noted that both Moore and Aguilar specifically provided that meaningful regulation was permissible under the Second Amendment. Accordingly, the Court upheld to regulations in subsections (a)(3)(C) (no valid FOID card) and (a)(3)(I) (person under 21 years old). Following its opinion in Mosley, the Court held that (a)(3)(A) was severable and thus subsections (a)(3)(C) and
(a)(3)(I) could be given effect even without the presence of (a)(3)(A).
Further, the Court held, consistent with Mosley, that possession of a handgun by a minor falls outside of the protections of the Second Amendment. Thus subsections (a)(3)(C) and (a)(3)(I) were not facially unconstitutional.
The Court reversed the circuit court’s order dismissing the charges based on the (a)(3)(C) and (I) aggravating factors, but upheld the dismissal as to subsection (a)(3)(A) because that subsection was facially unconstitutional.
People v. Boyce
By Jay Wiegman, Office of the State Appellate Defender
In college, many of us engaged in the old philosophical debate as to whether, when a tree falls in the woods it makes a sound, if there is no one present to hear it. In People v. Boyce, 2015 IL 117108, the Supreme Court considered whether a person could be convicted of attempt solicitation of murder where the request was never received by the solicitee.
Boyce, who was serving a sentence of natural life in prison for a prior murder, mailed a series of letters that were intercepted and opened by prison officials. Based on the contents of the letters, defendant was charged with one count of solicitation of murder and one count of attempt solicitation of murder. Defendant moved to dismiss, arguing that a "command, encouragement, or request cannot be made if no one is there to receive it." The motion to dismiss was denied, and the defendant was ultimately convicted of attempt solicitation of murder.
The Appellate Court affirmed. People v. Boyce, 2013 IL App (1st) 102318-U.
In so holding, the appellate court reasoned that the lack of specific attempt language within the statutory definitions of solicitation and solicitation of murder is indicative of the legislature’s intent for the general attempt statute to apply to the offense of solicitation of murder.
A unanimous Supreme Court agreed. Writing for the Court, Justice Karmeier first noted that the governing statute provides that the offense of solicitation of murder is committed when, with the intent that the offense of first degree murder be committed, a person commands, encourages or requests another to commit that offense. The court then turned to the general intent provision, which establishes that a person commits an attempt when, with intent to commit a specific offense, he does any act that constitutes a substantial step toward the commission of that offense.
The Court recognized that, where application of the attempt provision to a principal offense creates an inherent impossibility, the offense cannot exist, and that the general attempt statute is inapplicable where the legislature intends that the more specific crime subsume an attempt, and that such legislative intent is shown by the inclusion of explicit "attempt" language in the definition of the specific offense.
The Court's review of caselaw and treatises led to the conclusion that where a letter is employed as the means of solicitation, the letter must actually reach the intended recipient for the crime of solicitation to be complete. The same legal analysis led the Court to reject defendant’s contentions that he is guilty of nothing, and that the crime of attempted solicitation does not exist in Illinois. The Court noted that the same cases that require receipt of a communication also made clear that convictions for attempted solicitation would be proper where the letters were sent by defendants, but were not received by the addressees.
Practitioners should be aware of the Court's acknowledgement that its recognition of an offense of attempted solicitation, generally, may cause sentencing uncertainty in other contexts. Because there was no sentencing uncertainty in the instant case, that question was deferred to another day.