Unlawful use of a weapon by a felon is alive after Aguilar and the unlawful use of a weapon by a felon notice requirement for a a Class 2 offense does not exist pursuant to Easley.

People v. Pryor, 2014 IL App (1st) 121792-B (July).

 Defendant was convicted of one count of unlawful use or possession of a weapon (UUW) by a felon and sentenced to five years in prison. 

Charges

Defendant was charged and convicted of unlawful use of a weapon by a felon by a felon which provides, in relevant part:

It is unlawful for a person to knowingly possess on or about his person or on his land or in his own abode or fixed place of business
*** any firearm *** if the person has been convicted of a felony ***.

720 ILCS 5/24-1.1(a).

The classification and sentencing may be either for a class 3 or class 2 offense. The code provides that:

Violation of this Section by a person not confined in a penal institution shall be a Class 3 felony for which the person, if
sentenced to a term of imprisonment, shall be sentenced to no less than 2 years and no more than 10 years ***.

720 ILCS 5/24-1.1(e).

Next the Code provides that the offense is a Class 2 felony if:

[A]ny second or subsequent violation shall be a Class 2 felony for which the person shall be sentenced to a term of imprisonment of
not less than 3 years and not more than 14 years.

720 ILCS 5/24-1.1(e)

Next, subsection (e) provides a second form of a  Class 2 felony if defendant was previously convicted of another firearms violation:

Violation of this Section by a person not confined in a penal institution who has been convicted of *** a felony violation of Article 24 of this Code *** is a Class 2 felony for which the person shall be sentenced to not less than 3 years and not more than 14 years.

720 ILCS 5/24-1.1(e) 

See a list of more Illinois criminal charges.

Issue

Defendant claims that his UUW felon conviction was improperly enhanced from a Class 3 to a Class 2 offense where the State’s charging instrument failed to provide the notice required by the Code of Criminal Procedure (725 ILCS 5/111-3(c)).

See also the Illinois sentencing resource.

Ruling: The Unlawful Use of a Weapon by a Felon Notice Requirement Does Not Exist

Affirmed: Notice under section 111-3(c) was required “only when the prior conviction that would enhance the sentence is not already an element of the offense.”

The supreme court ruled in Easley that notice of enhancement is not required when a prior conviction is already an element of the offense. Defendant’s premise that he was convicted of a Class 3 offense is wrong.

As the Illinois Supreme Court explained in Easley, defendant’s sentence could not be “enhanced” to a Class 2 felony because defendant was convicted of a Class 2 felony. Thus, defendant was not entitled to notice under section 111-3(c) of the Code of Criminal Procedure of 1963. 725 ILCS 5/111-3.

“Simply stated, the defendant was consistently charged with a Class 2 offense, found guilty of a Class 2 offense, and sentenced as a Class 2 offender.”

Aguilar Comments

People v. Aguilar, declared unconstitutional certain portions of the unlawful use of a weapon statute. It is clear, however, that unlawful use of a weapon by a felon remained constitutional after Aguilar.

The provision in the present case is different from the provisions in Aguilar, and this court did not consider its constitutionality.

The right to bear arms under the second amendment is not unlimited, and that certain prohibitions, such as those prohibiting “ ‘the possession of firearms by felons,’ ” are constitutional.