People v. Shannon

2024 IL App (1st) 230042

No. 1-23-0042

Opinion filed November 8, 2024

FIFTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court of

Plaintiff-Appellee, ) Cook County.

)

v. ) No. 21 CR 1419701

)

ERIC SHANNON, ) Honorable

) Neera Lall Walsh,

Defendant-Appellant. ) Judge, presiding.

JUSTICE MITCHELL delivered the judgment of the court, with opinion.

Presiding Justice Mikva concurred in the judgment and opinion.

Justice Oden Johnson concurred in part and dissented in part, with opinion.

OPINION

¶1 Defendant Eric Shannon appeals his convictions for unlawful possession of a weapon by a

felon (720 ILCS 5/24-1.1 (West 2022)) and aggravated unlawful use of a weapon (720 ILCS 5/24-

1.6 (West 2022)). There are three issues on appeal. First, did the circuit court’s sentence violate

the one-act, one-crime doctrine when Shannon was convicted on three counts despite possessing

only one gun? Second, did the State present sufficient evidence to prove beyond a reasonable doubt

that Shannon was a felon? Third, is the statute prohibiting the possession of a firearm by a felon

unconstitutional as applied to Shannon? We conclude that the circuit court’s sentence violated the

one-act, one-crime doctrine; therefore, Shannon’s convictions for aggravated unlawful use of a

No. 1-23-0042

weapon must be vacated. However, the State presented sufficient evidence to support Shannon’s

conviction for unlawful possession of a weapon by a felon, and Shannon forfeited his as-applied

constitutional argument. Accordingly, we affirm Shannon’s conviction for unlawful possession of

a weapon by a felon but remand to the circuit court to amend the sentencing order.

¶2 I. BACKGROUND

¶3 Chicago Police Officers Kevin Butler and Pedro Ortiz were dispatched to patrol an area on

the far south side of Chicago after several calls had warned of a person in the area with a gun.

While patrolling, Officer Butler noticed an SUV parked at a gas station pump. The SUV had a

temporary license plate affixed to the rear license plate area and several aspects of it were

unreadable. Even after getting closer to the vehicle, the officers could not determine the state of

issuance, so they exited their patrol vehicle to investigate further.

¶4 The officers approached from either side of the SUV. Shannon was sitting alone in the

vehicle. Officer Butler, who had approached the passenger side of the SUV, noticed what he

believed to be the end of an extended magazine protruding from underneath a cardboard box on

the passenger seat, so he indicated to Officer Ortiz that Shannon should be detained. After

temporarily detaining Shannon, Officer Butler asked whether Shannon had a FOID card or

Concealed Carry License. Shannon replied that he did not have either. Officer Butler then retrieved

a firearm from beneath the cardboard box. The gun was a semi-automatic pistol with the serial

number defaced. Shannon was transported to the police station where he was read his Miranda

rights. He again informed the officers that he did not have a FOID card or CCL, and he admitted

that he was a convicted felon. Shannon denied that he owned either the handgun or the vehicle.

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No. 1-23-0042

¶5 Shannon was subsequently charged with one count of unlawful possession of a weapon by

a felon and two counts of aggravated unlawful use of a weapon. At a bench trial, the parties

stipulated that Shannon had not been issued a FOID card or a CCL by the Illinois State Police and

that he had previously been convicted of carry or possession of a firearm in a school. The circuit

court found defendant guilty on all counts and sentenced him to concurrent three-year sentences

on each count. This timely appeal followed. Ill. S. Ct. R. 606(b) (eff. Apr. 15, 2024).

¶6 II. ANALYSIS

¶7 A. One-Act, One-Crime

¶8 Shannon argues that two of his convictions violate the one-act, one-crime rule. Applying

the one-act, one-crime rule “is a question of law, which we review de novo.” People v. Johnson,

237 Ill. 2d 81, 97 (2010). The one-act, one-crime rule provides that “[m]ultiple convictions are

improper if they are based on precisely the same physical act.” People v. Rodriguez, 169 Ill. 2d

183, 186 (1996). An act is “any overt or outward manifestation which will support a different

offense.” People v. King, 66 Ill. 2d 551, 566 (1977). Our supreme court has explained that a

person’s status as a felon “is not an ‘act’ but, rather, a state of being.” People v. Coats, 2018 IL

121926, ¶ 27. Similarly, a person’s status as unlicensed to possess a firearm is also not an “act”

within the meaning of the rule. See People v. Spears, 2022 IL App (2d) 210583, ¶ 32 (determining

that convictions for possession of a firearm without a FOID card and possession of a firearm by a

felon violate the one-act, one-crime rule when the defendant possesses only one firearm). The

“act” in each case is the possession of a single firearm; therefore, as the State concedes, Shannon’s

multiple convictions in this case violate the one-act, one-crime rule.

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¶9 The parties disagree, however, regarding which conviction should stand. “[I]f a defendant

is convicted of two offenses based upon the same single physical act, the conviction for the less

serious offense must be vacated.” Johnson, 237 Ill. 2d at 97. Shannon argues that his conviction

for possession of a firearm by a felon is the less serious offense. The State contends that Shannon’s

convictions for aggravated unlawful use of a weapon are less serious. We determine the

seriousness of an offense by “the plain language of the statutes involved.” Id. “[C]ommon sense

indicates that the legislature will provide a greater punishment for the crime it deems to be more

serious.” Id. However, the length of a prison sentence is only one aspect of the seriousness of a

particular crime; courts also look to the felony classification of the crime, whether the crime is a

probationable offense, and the period of mandatory supervised release attached to the crime,

among other things. Id. at 99.

¶ 10 The Illinois Supreme Court held in Johnson that “the legislature intended for unlawful

possession of a weapon by a felon to be the less serious offense” compared to aggravated unlawful

use of a weapon. Id. The court reasoned that “aggravated unlawful use of a weapon was given a

higher felony classification by the legislature, was made a nonprobationable offense, was given a

higher minimum sentence of imprisonment, and was made subject to a longer period of mandatory

supervised release.” Id. However, importantly, the distinctions that the court drew between the two

offenses are fact dependent. Whether aggravated unlawful use of a weapon had a higher felony

classification than unlawful possession of a weapon by a felon depended on various factors, such

as whether the defendant had previously been convicted of aggravated unlawful use of a weapon

or whether the defendant was wearing or in possession of body armor when he committed the

offense. 720 ILCS 5/24-1.6. In Johnson, the charge of aggravated unlawful use of a weapon was

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treated as a class 2 felony, while the charge for unlawful possession of a weapon by a felon was a

class 3 felony. 237 Ill. 2d at 98. There, unlawful possession of a weapon by a felon was

probationable, had a lower minimum sentence, and had a shorter period of mandatory supervised

release. Id. at 98-99.

¶ 11 Here, the facts underlying Shannon’s convictions erase these distinctions between the two

offenses. Shannon was charged with two class 2 felonies, neither was probationable, and both had

the same minimum sentence and period of supervised release. However, Shannon’s conviction for

unlawful possession of a weapon by a felon had a higher maximum penalty compared to his

convictions for aggravated unlawful use of a weapon. Compare 720 ILCS 5/24-1.1(e) (14 years)

with 720 ILCS 5/24-1.6(d)(1) (7 years). Therefore, in this case, because all else is equal, the fact

that the legislature provided a greater possible punishment for unlawful possession of a weapon

by a felon demonstrates that it is the more serious offense. Accordingly, Shannon’s convictions

for aggravated unlawful use of a weapon must be vacated.

¶ 12 B. Sufficiency of the Evidence

¶ 13 Shannon’s challenge to the sufficiency of the evidence against him is narrow. He does not

contest that there was sufficient evidence that he possessed a firearm. Instead, Shannon claims that

the evidence was insufficient to prove beyond a reasonable doubt that he “has been convicted of a

felony ***.” 720 ILCS 5/24-1.1(a). When he was 15 years old, Shannon was convicted of unlawful

possession of a firearm in a school. 720 ILCS 5/24-1(a)(4), (c)(1.5) (West 2008). At the time, the

case was automatically transferred to adult criminal court. 705 ILCS 405/5-130(3)(a) (West 2008).

Today, such a case could only be transferred from juvenile court at the discretion of the judge. 705

ILCS 405/5-805(3) (West 2022). Thus, Shannon argues, because it is unlikely that his case would

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No. 1-23-0042

have resulted in a criminal conviction in 2024, his 2008 conviction cannot support a finding that

he “has been convicted of a felony ***.” 720 ILCS 5/24-1.1(a).

¶ 14 In response, the State contends that Shannon has forfeited and waived this argument.

Regarding forfeiture, it is a well-settled rule that “challenges to the sufficiency of the evidence

may be made for the first time on appeal.” People v. Carter, 2021 IL 125954, ¶ 41; see also People

v. Woods, 214 Ill.2d 455, 470 (2005); People v. Enoch, 122 Ill. 2d 176, 190 (1988). Thus, “it does

not matter that defendant did not raise this argument in the trial court ***.” Carter, 2021 IL

125954, ¶ 41.

¶ 15 As to waiver, at trial, Shannon entered into a stipulation regarding his 2008 conviction:

“[Prosecutor]: Judge, at this time the parties would proceed by way of stipulation.

The parties -- It is hereby stipulated by and between the parties that *** the defendant had

previously been convicted of carry or possession of a firearm in a school under Case No.

07C66145801 on April 17th, 2008 before a Judge Zelezinski Z-E-L-E-Z-I-N-S-K-I.

So Stipulated?

[Defense Counsel]: So Stipulated.”

A defendant who enters into a stipulation “waive[s] the necessity of proof of all or part of the case

which the People have alleged against him.” People v. Polk, 19 Ill. 2d 310, 315 (1960). This means

that “[a]fter stipulating to facts, a defendant is precluded from attacking or otherwise contradicting

those stipulated facts.” People v. Gray, 2024 IL 127815, ¶ 26. However, a stipulation “is an

agreement between parties or their attorneys with respect to an issue before the court.” Woods, 214

Ill. 2d at 468. It is conclusive only “as to all matters necessarily included in it.” Id. at 469. Thus,

to determine the breadth of a stipulation, “the court must ascertain and give effect to the intent of

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the parties.” Id. As in other contexts, the clearest evidence of the intent of the parties is the plain

language of the agreement. See Virginia Surety Co. v. Northern Insurance Co. of New York, 224

Ill. 2d 550, 556 (2007) (“The cardinal rule is to give effect to the parties’ intent, which is to be

discerned from the contract language.”); see also People v. McClure, 218 Ill. 2d 375, 382 (2006)

(“The best evidence of legislative intent is the language of the statute.”).

¶ 16 In Gray, the Illinois Supreme Court found the language of a stipulation between the parties

was dispositive. 2024 IL 127815, ¶ 27. There, Gray was convicted of being an armed habitual

criminal based, in part, on a conviction from when he was 17 years old. Id. ¶¶ 9, 14. As here,

“under the law in effect in 2016, he would have been tried and adjudicated as a juvenile for the

2002 offense, so [he argued] the 2002 conviction was not a qualifying conviction under the armed

habitual criminal statute.” Id. ¶ 18. The Illinois Supreme Court concluded that Gray had waived

this challenge because he had stipulated that he had “two prior qualifying felony convictions for

the purposes of sustaining the charge of armed habitual criminal.” Id. ¶ 27. Significantly, the court

recognized that Gray “did not merely stipulate to the admission of certified copies of his prior

convictions or that he had been convicted of specified felonies.” Id. Instead, Gray’s “stipulation

established the facts that the defendant had been convicted of two prior felonies and that those

felonies were qualifying felonies ***.” (Emphasis in original.) Id. Thus, “[t]he stipulation satisfied

the State’s obligation to prove those facts.” Id.

¶ 17 Not so here. Shannon stipulated only that he “had previously been convicted of carry or

possession of a firearm in a school.” He did not stipulate that that offense was a felony or that it

qualified to support the element of a felony conviction within the meaning of the unlawful

possession of a weapon by a felon section of the Criminal Code. These were conclusions that the

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circuit court still had to draw from the evidence presented. While Shannon waived any challenge

to the fact that he was convicted of possessing a firearm in a school, nothing in the language of or

the context surrounding the stipulation suggests that Shannon intended to waive his ability to argue

that his conviction failed to establish the element of his felon status.

¶ 18 Nevertheless, Shannon’s argument that his 2008 conviction cannot support a finding that

he “has been convicted of a felony” is foreclosed by Illinois Supreme Court precedent. The prior

conviction element of unlawful possession of a weapon by a felon requires the prosecution to prove

“only the defendant’s felon status.” People v. McFadden, 2016 IL 117424, ¶ 14 overruled on other

grounds by In re N.G., 2018 IL 121939 (quoting People v. Walker, 211 Ill. 2d 317, 337 (2004)).

The Illinois Supreme Court did not overrule McFadden in its entirety; rather, the court overruled

the opinion “to the extent that [the] result [in N.G.] and controlling United States Supreme Court

precedent conflict[ed] with McFadden.” N.G., 2018 IL 121939, ¶ 34. To that end, the requirement

that the State must prove “only the defendant’s felon status” remains undisturbed. McFadden,

2016 IL 117424, ¶ 14. Accordingly, the question before the circuit court was only whether

Shannon was a felon at the time he possessed the weapon. Accordingly, because the State proved

that Shannon had previously convicted in a criminal court of the felony offense of possession of a

weapon in a school, the State proved his “felon status.” No further analysis was necessary.

¶ 19 This result is borne out by the Illinois Supreme Court’s decision in N.G., 2018 IL 121939.

There, the defendant’s conviction was based on a statute that was facially unconstitutional. Id. ¶

32. The court determined that the defendant’s conviction under that statute could not support a

finding that he had “been criminally convicted of at least 3 felonies.” Id. ¶¶ 30, 33. The court

explained that the defendant’s conviction was “void ab initio; that is, it is as if the law had never

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been passed.” Id. ¶ 50. This conclusion is significant for three reasons. First, the nullification of a

conviction “is not self-executing.” Id. ¶ 52. Instead, it “is axiomatic that no judgment, including a

judgment of conviction, is deemed vacated until a court with reviewing authority has so declared.”

(Internal quotation marks omitted.) Id. A defendant remains bound by a judgment until a court acts

to overturn that judgment. Thus, a defendant maintains his status as a felon until a court determines

that he is not one. Second, because the defendant’s conviction was void and not voidable, the

judgment could be “impeached at any time in any proceeding whenever a right is asserted by

reason of that judgment.” (Internal quotation marks omitted.) Id. ¶ 43. Therefore, the Illinois

Supreme Court could vacate the conviction notwithstanding the procedural posture of the case. Id.

Third, because the conviction was void ab initio, “the conviction must be treated by the courts as

if it did not exist.” Id. ¶¶ 36, 50. Accordingly, because the defendant’s conduct “was not, is not,

and could never be a crime,” once the court determined that his conviction was void, it was as if

he had never been convicted. Id.

¶ 20 Here, Shannon does not allege that his past conviction is void or even voidable. Instead, he

asserts that he would not have been convicted of a felony if he had been charged with unlawful

possession of a weapon in a school as a 15-year-old today. That may be true, but it is not relevant

to whether Shannon had the status of a felon when he was arrested for possessing a firearm. At the

time of his arrest, Shannon’s felony conviction had not been vacated. Even if Shannon had

presented a meritorious argument for vacating that conviction, his conviction would not have been

void ab initio; consequently, he still would have been a felon at the time he was in possession of

the firearm. Id. ¶ 62 (“[W]here a defendant has not taken affirmative action to have a court set

aside the initial conviction and therefore still has an extant, undisturbed felony conviction on his

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record at the time he engaged in the conduct on which the subsequent UUWF prosecution was

predicated, the elements of the UUWF statute are satisfied and the UUWF conviction may stand,

regardless of whether the initial conviction might be subject to vacatur later ***.”). Therefore, the

stipulation was sufficient to show beyond a reasonable doubt that Shannon “has been convicted of

a felony” for the purposes of the unlawful possession of a weapon by a felon statute.

¶ 21 C. Bruen Challenge

¶ 22 Finally, Shannon contends for the first time on appeal that the section of the Criminal Code

that criminalizes the possession of a firearm by a felon is unconstitutional as applied to him. When

determining whether a statute is constitutional, “we must begin with the presumption of its

constitutionality.” Hope Clinic for Women, Ltd. v. Flores, 2013 IL 112673, ¶ 33. The party

challenging the validity of a statute “has the burden of clearly establishing a constitutional

violation.” People v. Jones, 223 Ill. 2d 569, 596 (2006). A defendant who claims that a statute is

unconstitutional as applied to him must show “that the statute violates the constitution as it applies

to the facts and circumstances of [the defendant’s case].” People v. Thompson, 2015 IL 118151,

¶ 36. “Therefore, it is paramount that the record be sufficiently developed in terms of those facts

and circumstances for purposes of appellate review.” Id. ¶ 37. “[A] reviewing court is not capable

of making an as-applied finding of unconstitutionality in the ‘factual vacuum’ created by the

absence of an evidentiary hearing and findings of fact by the trial court.” People v. Harris, 2018

IL 121932, ¶ 41.

¶ 23 The decisions of this court are divided on the issue of whether the exception in Holman

extends to as-applied constitutional challenges in other contexts. Compare People v. Jackson, 2024

IL App (1st) 221095-U, ¶ 27 (concluding that Holman is limited to Miller claims), People v. Ivy,

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2023 IL App (4th) 220646-U, ¶ 16, and People v. Langston, 2023 IL App (4th) 230162-U, ¶ 23,

with People v. Brooks, 2023 IL App (1st) 200435, ¶ 58 (“Contrary to the State’s position, this

principle is not limited to cases involving as-applied challenges to juvenile sentences under the

eighth amendment.”), People v. Travis, 2024 IL App (3d) 230113, ¶ 17 (considering an as-applied

challenge after concluding that the record was sufficiently developed), People v. Gross, 2024 IL

App (2d) 230017-U, ¶ 18 (same), and People v. Echols, 2024 IL App (2d) 220281-U, ¶ 145 (same);

see also Ill. S. Ct. R. 23(e)(1) (eff. Feb. 1, 2023) (providing that unpublished Rule 23 orders filed

on, or after, January 1, 2021, “may be cited for persuasive purposes”). We need not resolve this

dispute in this case, because we conclude that the record has not been sufficiently developed to

address Shannon’s claim here.

¶ 24 Defendant contends that the unlawful possession of a weapon by a felon statute is

unconstitutional when applied to individuals, such as him, whose underlying felony conviction is

non-violent in nature. The precedents of this court have uniformly rejected this contention. See

Travis, 2024 IL App (3d) 230113, ¶ 37; Baker, 2023 IL App (1st) 220328, ¶ 37; People v. Mobley,

2023 IL App (1st) 221264, ¶ 28. However, even if only “threatening individuals” may be disarmed,

the issue is not properly before this court. United States v. Rahimi, 144 S. Ct. 1889, 1901 (2024).

The facts of Shannon’s underlying felony conviction were never elicited below. Because the issue

was never raised, this court is in no position to rule on it. See People v. Harris, 2018 IL 121932, ¶

41.

¶ 25 III. CONCLUSION

¶ 26 For the foregoing reasons, we affirm Shannon’s conviction for unlawful possession of a

weapon by a felon. We vacate defendant’s convictions and sentences for aggravated unlawful use

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of a weapon and remand this case to the circuit court to amend the sentencing order to reflect that

those convictions and sentences have been vacated.

¶ 27 Affirmed in part and vacated in part; case remanded with directions.

¶ 28 Justice Sharon Oden Johnson, concurring in part, and dissenting in part:

¶ 29 I concur with the majority’s findings: (1) that the trial court’s sentence violated the one-

act, one-crime doctrine where there were three convictions for the same act of possessing the same

gun at the same moment, (2) that the stipulation entered in this case was insufficient to establish

his guilt for the charge of unlawful possession of a firearm by a felon (supra ¶ 17) and, (3) that

defendant did not forfeit his challenge to the sufficiency of the evidence. I also agree that defendant

forfeited his as-applied constitutional challenge on the facts of this case by failing to raise it in the

court below. However, while this is not an issue that we necessarily must reach, I do not agree

with the majority’s analysis of caselaw or its characterization of defendant’s claim (supra ¶¶ 23-

24). Defendant argues that his gun convictions are unconstitutional as applied to him because he

has “no history of violence” and he is a nonviolent person. In response, the State argues that, had

it “been put on notice that defendant was challenging the constitutionality” of his convictions based

on “his purportedly non-violent nature *** there is no telling what additional, compelling

evidence” the State might have found. Defendant’s presentence report does reveal two prior arrests

for resisting a peace officer, with no information proffered by either side about those incidents.

Since the record is not adequately developed to address his as-applied claim, we cannot excuse the

forfeiture. For these reasons, I agree with the majority’s finding that the issue is forfeited at this

time for our consideration.

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¶ 30 More significantly however, as I explain below, I dissent because I find that the State failed

in its burden to prove count 1.

¶ 31 I. All 3 Counts Concern the Underage Offense

¶ 32 Defendant is a 30-year-old who lives with his fiancée and three children and works as a

forklift operator. Other than the instant felony, his presentence investigation report reveals only

one other felony, committed 15 years ago when he was 15 years old. On November 19, 2021,

defendant was indicted in the instant case in a three-count indictment.

¶ 33 All three counts relied on defendant’s one prior felony conviction for possessing a firearm

in school when he was 15 years old. Specifically, count 1 charged the unlawful use or possession

of a weapon by a felon, based on the school offense, and alleged that he had “knowingly possessed

on or about his person” a firearm.

¶ 34 For counts 2 and 3, the indictment cited section 24-1.6 of the Criminal Code of 2012 (the

Code), which provides, in relevant part, that a person commits the offense of aggravated unlawful

use of a weapon, when he carries in any vehicle a firearm and one of the listed aggravating factors

is present: that the firearm was uncased, loaded and immediately accessible and the defendant had

not been issued a valid concealed carry permit (which was charged in count 2); or that the

defendant lacked a currently valid FOID card (which was charged in count 3). 720 ILCS 5/24-1.6

(a)(1), (a)(3)(A-5), and (a)(3)(C) (West 2020). In addition, section 24.1.6(d)(3) provides, regarding

his sentence, that “a person who has been previously convicted of a felony in this State or another

jurisdiction *** is a Class 2 felony.” 720 ILCS 5/24-1.6(d)(3) (West 2020).

¶ 35 Count 2 charged the aggravated unlawful use of a weapon, in that he knowingly carried in

his vehicle an uncased, loaded and immediately accessible firearm, and he had not been issued a

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concealed carry license. Count 2 also implicated the school offense, because it stated that “the

State shall seek to sentence [defendant] as a class 2 offender, in that he has been previously

convicted of a felony, to wit:” the school offense.

¶ 36 Like count 2, count 3 also charged aggravated unlawful use of a weapon, in that he

knowingly carried in his vehicle a firearm; but count 3 charged that he had not been issued a FOID

card. Count 3 had the same language as count 2 that the State would seek to sentence defendant as

a class 2 offender based on the same school offense. As such, defendant was sentenced as a class

2 offender on all three counts. 1

¶ 37 The majority finds that counts 2 and 3 must be vacated pursuant to the one-act, one-crime

doctrine. However, if the State failed to prove count 1 beyond a reasonable doubt, as defendant

argues and as I find below, that leaves counts 2 and 3, and only one of these aggravated use counts

needs to be vacated to adhere to the one-act, one-crime doctrine. To further explain, I will discuss

the failure of proof on count 1; then I will discuss the remaining aggravated use count.

¶ 38 II. Offenses are Statutory

¶ 39 The best place to start when determining whether the State proved a conviction beyond a

reasonable doubt is with the governing statutes or laws. 720 ILCS 5/1-3 (West 2020) (“No conduct

constitutes an offense unless it is described as an offense in this Code or in another statute of this

State.”).

¶ 40 For count 1, the indictment cited section 24-1.1(a) of the Criminal Code of 2012 (the Code),

1

The mittimus, entered on December 15, 2022, states that defendant was sentenced as a class 2

offender for all three counts. Both counts 2 and 3 state that his conviction in those counts was for “Agg

UUW/Veh/Prev Conviction.” Defendant argues that he was improperly classified as a Class 2 offender on

counts 2 and 3.

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which provides, in relevant part, that “[i]t is unlawful for a person to knowingly possess on or

about his person” any firearm “if the person has been convicted of a felony under the laws of this

State or any another jurisdiction.” 720 ILCS 5/24-1.1(a) (West 2022). This language was

controlling at the same at the time of the police discovery of the gun in this case, remained in effect

as of the date of this opinion.

¶ 41 What has changed is the Juvenile Court Act of 1987. 705 ILCS 405/1-1 et seq. (West 2020).

Defendant devotes ten of the 12 pages of his discussion of count 1 to this act, and yet the words

“Juvenile Court Act” do not appear at all in the majority opinion. However before I set forth the

relevant portions of this act, I will also supply the familiar rules of statutory interpretation, which

apply whenever one discusses and interprets acts and statutes.

¶ 42 III. Rules of Statutory Interpretation

¶ 43 With statutory interpretation, a court’s primary goal is to ascertain and give effect to the

intent of the statute’s drafters. VC&M, Ltd. v. Andrews, 2013 IL 114445, ¶ 30. The most reliable

indicator of the drafters’ intent is the language they chose to use in the statute itself. VC&M, Ltd.,

2013 IL 114445, ¶ 30. The drafters’ language should be given its plain and ordinary meaning

(VC&M, Ltd., 2013 IL 114445, ¶ 30).

¶ 44 The interpretation of a statute presents a question of law that we review de novo. People v.

Howard, 2016 IL App (3d) 130959, ¶ 18 (“applying the undisputed facts to the language of the

statute to determine whether the essential elements have been proven *** is a question of law that

we review de novo”).

¶ 45 IV. The Juvenile Court Act and the Offense at Issue

¶ 46 “[T]he 2014 amendments to the Juvenile Court Act redefined the exclusive jurisdiction of

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the juvenile court to apply to those defendants who commit offenses prior to their eighteenth

birthday. See Pub. Act. 98-61, § 5 (eff. Jan. 1, 2014) (amending 705 ILCS 405/5-120).” People v.

Gray, 2024 IL 127815, ¶ 24. The 2016 amendments reduced the number of offenses triggering

automatic transfers from juvenile to adult court, specifically by eliminating the school offense that

this 15-year-old defendant was charged with. See P.A. 99-258 § 5 (eff. Jan. 1, 2016). Given these

changes, defendant argues that the State failed to prove a qualifying offense beyond a reasonable

doubt. 2

¶ 47 The effective dates are clear and unequivocal and need no interpretation. It is also beyond

dispute that the offense in question, unlawful possession by a felon, occurred in 2021, long after

these changes went into effect.

¶ 48 However, what is not clear is the effect on the facts here. One could argue that that the

changes do not apply retroactively to defendant’s 2007 school offense, such that it could still serve

as a predicate for his current possession-by-a-felon charge. On the other hand, one could also

argue that the changes apply prospectively to his possession-by-a-felon charge—and to every

element of it.

¶ 49 The whole point of a possession-by-a-felon charge in the first place is to enforce a civil

disability, namely, the denial of gun possession, on adult felons who are perceived as dangerous.

By contrast, an adjudicated juvenile is not a criminal. An adjudication is never considered a

conviction, and it does not normally carry with it any of the civil disabilities ordinarily imposed

2

Defendant further argues that he would not have qualified for the restrictive provisions of a

presumptive transfer and that it is highly unlikely that he would have been subject to a discretionary transfer,

given defendant’s circumstances and that, in 2018, the last year for which such data was then available, the

State’s Attorney filed no such motions for any offense.

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on or resulting from conviction. 705 ILCS 405/1-8(A) (West 2020). For example, an adjudication

does not generally prejudice an individual “from receiving any license granted by public

authority.” 705 ILCS 405/1-8(A) (West 2020). Thus, enforcing a disability from what would now

be a juvenile adjudication would be to impose a stigma contrary to the purpose of the law. In re

Gwynne, 215 Ill. 2d 340, 358 (2005) (a court should consider whether “[t]o hold otherwise would

be inconsistent with the purpose of the law”).

¶ 50 Section 24-1.1 carries with it a present-sense component where it states, “under the laws

of this State or any other jurisdiction.” 720 ILCS 5/24-1.1 (West 2020). There is no “previously”

modifying the word “under,” so “under” means just that: “under.” We would all be troubled if

the word were interpreted to mean past felonies, such as possession of a small amount of marijuana

or sodomy, which not long ago were both felony offenses. See Lawrence v. Texas, 539 U.S. 558

(2003) (finding unconstitutional a Texas statute that criminalized consensual sodomy). The word

must connote a present sense, or it would stymie efforts for the law to evolve and advance, as it

certainly has with respect to juvenile offenders, such as the prior 15-year-old at issue here. Miller

v. Alabama, 567 U.S. 460, 471 (2012) (“children are constitutionally different”); People v.

Hilliard, 2023 IL 128186, ¶ 20 (“ ‘as our society evolves, so too do our concepts of elemental

decency and fairness which shape the “moral sense of the community” ’ ”) (quoting People v. Leon

Miller, 202 Ill. 2d 328, 339 (2002). The “dictionary defines ‘under’ as ‘subject to the authority,

control, guidance, or instruction of.’ ” State Farm Mutual Automobile Insurance Company v.

Arroyo, 2023 IL App (1st) 22057, ¶ 16 (quoting Merriam-Webster Online Dictionary,

https://www.merriam-webster.com/dictionary/under (last visited Nov. 28, 2023)). The legislature

would lose its preeminence to control and guide policy if courts interpreted this phrase in a way

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that turned back the clock to outdated or invalid statutes. Phoenix Insurance Co. v. Rosen, 242 Ill.

2d 48, 56 (2011) (“the General Assembly, which speaks through the passage of legislation,

occupies a ‘superior position’ in determining public policy”); Reed v. Farmers Insurance Group,

188 Ill. 2d 168, 175 (1999) (“ ‘when the legislature has declared by law, the public policy of the

State, the judicial department must remain silent’ ” (quoting Collins v. Metropolitan Life Insurance

Co., 232 Ill. 37, 44 (1907).

¶ 51 The verb tense reinforces the present sense of the prepositional phrase. The legislators

could have simply said “was,” but they did not. They chose the present perfect tense when they

said, “has been convicted.” As our supreme court has found, this is not a past tense, but rather it

means existing in the past and continuing into the present. In re Gwynne P., 215 Ill. 2d 340, 358

(2005). “ ‘[T]he present’ would be the time when the matter is being considered by the trial court.”

Gwynne P., 215 Ill. 2d 340, 358 (2005). The law here did not continue into the present but changed.

¶ 52 While we do not expect legislators to be sophisticated grammarians, we still must consider

the verb tense they used, particularly when they chose a more sophisticated tense, and where the

State is seeking an interpretation where the simpler tense would have done just fine. See Gwynne

P., 215 Ill. 2d at 357-58. The tense is just as much a part of the statute as the other words used and

is an element we must consider. Gwynne P., 215 Ill. 2d at 357 (the supreme court said “[c]onsider

the language the General Assembly has employed,” when discussing the present perfect tense and

stressing that the statute “does not speak in the past tense”).

¶ 53 Further, the sole object of the verb phrase is the word “felony” with the “under”

prepositional phrase. In this way, this case is different from other cases where the phrase “has been

convicted” had no object. Every word in a statute must be given meaning and not treated as

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superfluous. People v. Gutman, 2011 IL 110338, ¶ 12 (“Each word, clause, and sentence of a

statute should be given reasonable meaning, if possible, and should not be considered

superfluous.”). If the phrase “has been convicted,” as interpreted by other courts, means the same

as “has been convicted … under the law of this State,” then the “under” phrase has no meaning

and is rendered superfluous. Thus, other cases that have interpreted the phrase “has been

convicted” alone are not informative and readily distinguishable. See Hayashi v. Illinois Dept. of

Financial and Professional Regulation, 2014 IL 116023, ¶ 18 (“the Act,” before the court, “could

have included limiting language,” if it intended to indicate that only certain convictions qualified).

¶ 54 This sentence in section 24-1.1(a) could be read as either allowing an outstanding felony

to qualify as a predicate and, thereby, an element of a present offense, or that the predicate

conviction must be both outstanding and still statutorily valid. It begs the question of whether its

under the law then in effect or now in effect. Since the statute is ambiguous on this issue, I look to

the burden of proof.

¶ 55 The burden of proof in a criminal case is on the State. It is up to the State to prove beyond

a reasonable doubt that the defendant had a qualifying conviction. The burden is not on a defendant

to prove the conviction was not qualifying. “When construing criminal statutes, the rule of lenity

requires that any ambiguity must be resolved in that manner which favors the accused.” People v.

Jones, 223 Ill. 2d 569, 581 (2006). As our supreme court has admonished us repeatedly, we must

be ever “mindful of the well-established principle that the penal statutes are to be construed strictly

in favor of the defendant.” People v. Polykala, 203 Ill. 2d 198, 209 (2003); People v. Whitney, 188

Ill. 2d 91, 98 (1999) (“Any ambiguity in a penal statute should be construed and resolved in favor

of the defendant.”). Construing the words of the statute in favor of the defendant leaves no option

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but to find that the State has failed in its burden of proof on a key element of the offense in count

1.

¶ 56 V. Walker and In re N.G.

¶ 57 Instead of examining the words of the statute, the majority quotes the supreme court case

of People v. Walker, 211 Ill. 2d 217 (2004), but it cites the case out of context. The majority quotes

Walker for the proposition that, in an unlawful possession of a felon case, the State has to prove

“only the defendant’s felon status.” Walker, 211 Ill. 2d at 337. However, a reading of the whole

opinion shows that what was meant by that quote is that the State did not have to prove a “specific”

felony or type of offense. Walker, 211 Ill. 2d at 337.

¶ 58 The issue in Walker, as stated by the court, was “whether the trial court abused its discretion

by allowing the prosecution to present evidence of the name and nature of defendant’s prior

conviction when a stipulation was available.” Walker, 211 Ill. 2d at 328. The court balanced the

probative value of naming the specific offense against the risk of unfair prejudice to the defendant

and found that the risk outweighed the value, when the defendant had offered a stipulation. Walker,

211 Ill. 2d at 337-41. However, in that case, the fact of a qualifying felony was a given, by all

sides, and, hence, readily distinguishable from the case at bar where the law changed and

defendant’s prior sentence would have been a juvenile adjudication rather than an adult felony

conviction. It was simply a nonissue in that case—not so here.

¶ 59 For further support, the majority cites the supreme court case of In re N.G., 2018 IL

121939. In N.G., the appellate court had (1) found that a conviction had no legal force or effect

in the parental-rights termination hearing on review before it, and (2) then sua sponte vacated the

criminal conviction. N.G., 2018 IL 121939, ¶ 2. The supreme court agreed on both points. N.G.,

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2018 IL 121939, ¶ 52. The majority here cites the case for the proposition that “[a] defendant

remains bound by a judgment until a court acts to overturn that judgment.” Supra ¶ 19. However,

the conviction in N.G. was not entitled to legal force or effect, and “could be given none,” even

prior to its formal vacatur. N.G., 2018 IL 121939, ¶ 52; accord ¶ 93 (J. Kilbride, specially

concurring (“it is fundamentally unfair to use a void conviction based on a facially

unconstitutional statute against a defendant in a subsequent proceeding when he or she has not

taken affirmative action to vacate the void conviction”).

¶ 60 The majority seems to suggest that where a defendant has not acted to vacate a conviction,

he has no further redress. Supra ¶ 19. However, that sentiment was eloquently rebutted by Justice

Neville in his N.G. concurrence, where he stated that it would be manifestly unfair to place that

burden on defendants “who are the least equipped to undertake” it. N.G., 2018 IL 121939, ¶ 99 (J.

Neville, specially concurring).

¶ 61 The majority also cites People v. McFadden, 2016 IL 117424, but McFadden was

explicitly overruled by our supreme court in N.G., 2018 IL 121939, ¶ 84 (“McFadden is hereby

overruled”). However, the majority claims that McFadden was overruled “on other grounds.”

Supra ¶ 18. The majority argues that N.G. did not overrule McFadden’s finding that the State had

to prove only felon status and, thus, it was, up to defendant to try to vacate his conviction before

engaging in constitutionally protected conduct. McFadden, 2016 IL 117424, ¶ 27. However, N.G.

held just the opposite. N.G. found that “the rule announced in McFadden requiring vacatur ***

prior to engaging in the subsequent constitutionally protected conduct” would raise serious due

process concerns. N.G., 2018 IL 121939, ¶ 83.

¶ 62 For these reasons, I do not find these cases persuasive and find that they do not detract

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from my conclusion that the State failed in its burden of proof on count 1.

¶ 63 VI. The Remaining Counts

¶ 64 As I noted before, this conclusion still leaves standing counts 2 and 3, but one of these two

counts must be vacated under the one-act, one-crime doctrine. Since we need to remand for

resentencing, I would remand to allow the trial court to determine which count should be vacated.

In addition, the issue of whether it is appropriate to sentence defendant as a class 2 offender will

be ripe at that time. Since we should avoid issuing advisory opinions, this is not an issue that we

need address at this time.

¶ 65 In sum, I agree with the majority (1) that the trial court’s sentence violated the one-act,

one-crime doctrine; (2) that the stipulation was insufficient to establish guilt for the charge of

unlawful possession of a firearm by a felon; (3) that defendant did not forfeit his challenge to the

sufficiency of the evidence on this charge; and (4) that he did forfeit his as-applied constitutional

challenge (although for slightly different reasons than as stated by the majority). Like the majority,

I would remand for resentencing; however, I would remand for resentencing on one of the

aggravated unlawful use counts. I would permit the trial court to consider: which count to vacate;

and which class applied on the remaining count.

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No. 1-23-0042

People v. Eric Shannon, 2024 IL App (1st) 230042

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 21-CR-

1419701; the Hon. Neera Lall Walsh, Judge, presiding.

Attorneys James E. Chadd, State Appellate Defender, of Chicago (Douglas

for R. Hoff, Deputy Defender, Kelly Anne Burden, Assistant

Appellant: Appellate Defender, of counsel), for appellant.

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique

for Abraham and Jessica R. Ball, Assistant State’s Attorneys, of

Appellee: counsel), for the People.

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