People v. McFadden, 2016 IL 117424 (June). Episode 187 (Duration 5:17)

Defendant questioned the validity of his UUW Felon conviction because it was predicated on a AUUW invalidated under Aguilar.

Facts

Defendant robbed three people. He plead guilty to UUW Felon and acknowledged he had a prior AUUW conviction. People v. Aguilar came along and invalidated this form of AUUW.

Subsequently, courts have been grappling with the legal effect.

What if the conviction is not actually vacated?

Here, defendant is not seeking to vacate his 2002 conviction for AUUW. Rather, defendant contends that the State failed to prove all of the essential elements of AUUW Felon and sought to have that conviction reversed.

However, UUW Felon only requires a defendant to have a felon status. The statute does not require proof of a specific felony conviction.

Yes. Aguilar made a facially unconstitutional ruling. Thus, the statute is void ab initio meaning that the statute was constitutionally infirm from the moment of its enactment and, therefore, is unenforceable.

The Rule

However, the Illinois Supreme court followed the feds in holding that a prior UUW conviction, if not formally vacated in court, may be used as a predicate offense for other charges.

There is nothing absurd or unjust or unreasonable about requiring a person who believes he has been wrongly convicted of a felony to clear his status through the judicial process before being allowed to possess a firearm.

The Rationale

The UUW by a felon statute represents a considered and deliberate decision to require that a prior felony conviction be vacated or expunged before a firearm is possessed. Although Aguilar may provide a basis for vacating defendant’s prior AUUW conviction, Aguilar did not automatically overturn that judgment of conviction.

Holding

Thus, at the time defendant committed the UUW Felon offense, defendant had a judgment of conviction that had not been vacated and that made it unlawful for him to possess firearms. Thus, he had the required “felon status” as required by the statute he was convicted of.

Thus, defendant’s prior conviction properly served as proof of the predicate felony conviction for UUW by a felon.

Practically, the principle that the void ab initio doctrine renders a facially unconstitutional statute unenforceable only means a possible predicate felony conviction for UUW by a felon is only subject to vacatur.

Without an actual vacatur, the conviction may properly serve as a predicate felony for other charges.

But Wait…

This case was overturned.

• See Episode 524 – In re N.G., 2018 IL 121939 (August) (On Second Thought The State Should Help Root Out And Vacate Bad Gun Convictions)
• This should create less sentencing nightmares for many defendants
• Episode – People v. Shinaul, 2017 IL 120162 (February) (State Not Allowed To Re-Open Old Counts When Aguilar UUW Is Vacated)
• Episode 188 – People v. Billups, 2016 IL App (1st) 134006 (May) (this case is no good anymore).