v.
Matthews
2022 IL App (4th) 210752 FILED NO. 4-21-0752 December 9, 2022 Carla Bender IN THE APPELLATE COURT 4th District Appellate Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Adams County EURON MATTHEWS, ) No. 17CF74 Defendant-Appellant. ) ) Honorable ) Amy C. Lannerd, ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Steigmann and Bridges 1 concurred in the judgment and opinion. OPINION ¶1 In the instant case, defendant, Euron Matthews, was convicted of being an armed habitual criminal (AHC) and aggravated discharge of a firearm. The trial court imposed consecutive sentences of 22 years’ imprisonment for AHC and 15 years’ imprisonment for aggravated discharge of a firearm. On direct appeal, we affirmed the judgment of the trial court. People v. Matthews, 2020 IL App (4th) 170782-U, ¶ 70. Thereafter, defendant filed a pro se postconviction petition, which was summarily dismissed.
210753 past the residence, and the vehicle crashed into a parked car. Two law enforcement officers who viewed the surveillance video identified defendant as the shooter. They were familiar with defendant based on numerous prior contacts. A photograph of defendant posted on Facebook approximately 13 days after the shooting, a photograph of defendant taken at the time of his arrest, and still frames of the shooter from the surveillance video footage were admitted into evidence and published to the jury.
¶6 The State offered certified copies of defendant’s convictions for (1) UUWF in Will County case No. 13-CF-1670, (2) unlawful possession of a controlled substance with intent to deliver (a Class 1 felony) in Will County case No. 92-CF-3211, and (3) UUWF in Will
County case No. 94-CF-2443. Outside the presence of the jury, defense counsel objected to the admission of the certified copy of defendant’s conviction for unlawful possession of a controlled substance with intent to deliver in Will County case No. 92-CF-3211. Counsel stated defendant had indicated he was convicted of possession of a controlled substance rather than possession with intent to deliver in that case, but counsel did not have anything to “back it up” other than what defendant had told him. The prosecutor stated that, even if defendant was correct about his conviction in Will County case No. 92-CF-3211, the State was only required to prove two
predicate convictions for AHC and it had evidence of three. The State indicated that evidence of the other two predicate convictions would satisfy the elements of AHC even without the conviction for unlawful possession of a controlled substance with intent to deliver. Over defendant’s objection, the court admitted certified copies of all three convictions.
¶7 Defendant called Terance McKenzie and Ebony Lee as witnesses. McKenzie testified he was driving the vehicle that was shot at during the incident. While he was driving, he noticed Felicia French and some other individuals in the street. He saw flashes of gunfire and 210754 observed French with a gun in her hand. He did not see French shoot at his vehicle, but he assumed she was the shooter. On cross-examination, after viewing portions of the surveillance footage, McKenzie stated it was not French who shot at his vehicle.
¶8 Lee testified that she lived in the neighborhood where the incident occurred. She heard a gunshot on the night of the incident, looked out her bedroom window, and observed
French shooting at a car as it drove past. After viewing the surveillance footage, Lee agreed it depicted a person who was not French shooting a gun at a car. However, she maintained she had seen French shoot at the car on the night of the incident.
¶9 The jury found defendant guilty of AHC and aggravated discharge of a firearm.
¶ 10 Defendant, pro se, filed a posttrial motion arguing, inter alia, that the State did not prove him guilty of AHC because he was never convicted of unlawful possession of a controlled substance with intent to deliver in Will County case No. 92-CF-9211. Defendant attached a docket sheet from Will County case No. 92-CF-9211, which indicated he had
originally been charged with possession of a controlled substance with intent to deliver. The docket sheet showed the State later requested that this charge be amended to unlawful possession of a controlled substance, a Class 4 felony, and defendant pled guilty to unlawful possession of a controlled substance.
¶ 11 The trial court denied defendant’s posttrial motion, finding that, even if defendant was correct in stating that he was not convicted of unlawful possession of a controlled substance with intent to deliver in Will County case No. 92-CF-9211, his two prior convictions for UUWF supported his conviction for AHC.
¶ 12 The trial court imposed consecutive sentences of 22 years’ imprisonment for AHC and 15 years’ imprisonment for aggravated discharge of a firearm. In announcing its
210755 sentence, the court noted defendant had an extensive criminal history and specifically noted defendant had two prior convictions for UUW.
¶ 13 On direct appeal, we affirmed the judgment of the trial court. Matthews, 2020 IL
App (4th) 170782-U, ¶ 70. Defendant argued, inter alia, that the State failed to prove him guilty beyond a reasonable doubt of AHC because he was never convicted of unlawful possession of a controlled substance with intent to deliver and the State’s evidence indicating otherwise was incorrect. Id. ¶ 36. We held that any error in admitting defendant’s conviction for unlawful possession of a controlled substance with intent to deliver was harmless because the State presented evidence of two other qualifying predicate felony convictions for AHC, which were sufficient to satisfy the elements of the offense of AHC even without the challenged drug conviction. Id. ¶¶ 40-41.
¶ 14 On May 26, 2021, defendant filed a motion for an extension of time to file his postconviction petition. Defendant alleged he had contracted COVID-19, his prison was on
partial lockdown to slow the spread of COVID-19, and it sometimes took “a while” to get to the law library due to the lockdown. Defendant stated: “At the pace that it is going, I will not be able to finish a brief for my post-conviction the way it need[s] to be done.” Defendant also alleged he was trying to obtain legal counsel. Defendant attached to his motion a copy of test results indicating he had tested positive for COVID-19 in December 2020.
¶ 15 On June 4, 2021, the trial court entered an order indicating it was taking no action on defendant’s motion for an extension of time at that time but would further consider the matter if defendant filed a postconviction petition.
¶ 16 On September 2, 2021, defendant, pro se, filed a postconviction petition alleging two claims of ineffective assistance of counsel, including a claim that trial counsel was
210756 ineffective for failing to investigate French or call her as a witness. The petition alleged that
French told defendant she had told police officers he could not have shot the victim because he was not at the scene of the shooting. French told defendant she would testify regarding these statements at his trial. Defendant told his counsel French was willing to testify about this, and he gave counsel her address and other locations where she could be found. Counsel advised defendant that he left his card at French’s residence but that she never called him back. After defendant’s trial, French told him she had not been contacted by counsel and that no one had left a card at her residence. Defendant alleged French’s testimony would have changed the outcome of the trial because she would have been a key witness and her testimony had the potential to establish his innocence.
¶ 17 The petition stated defendant was “currently in the process of retrieving” French’s affidavit and intended to produce it before the petition was decided on its merits. Defendant also submitted an affidavit stating he was unable to obtain French’s affidavit before he filed his petition but that he was “in the process of obtaining [it]” and he intended to submit it before second-stage proceedings.
¶ 18 In the postconviction petition, defendant asserted he believed the petition was timely filed. Defendant contended that, in the event the trial court found the petition to be untimely, the court should find it was not due to defendant’s culpable negligence because he had contracted COVID-19. Defendant cited his motion for an extension of time and his COVID-19 test results from December 2020 in support of this claim, which he attached to the petition as exhibits.
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¶ 19 The trial court summarily dismissed defendant’s postconviction petition, finding
that “the Defendant raised the issue of ineffective assistance of counsel on his direct appeal” and was “now barred from advancing such a claim at this stage.” This appeal followed.
¶ 20 II. ANALYSIS
¶ 21 On appeal, defendant argues (1) his prior convictions for UUW in Will County case Nos. 90-CF-1445 and 92-CF-3211 are void ab initio and should be vacated, (2) his two prior convictions for UUWF in Will County case No. 94-CF-2443 should be vacated because they were based on one of his void UUW convictions, (3) his conviction for AHC in the instant case should be vacated because it is predicated on his void UUWF conviction in Will County case No. 94-CF-2443, (4) his sentence for aggravated discharge of a firearm should be vacated and the matter should be remanded for resentencing because the trial court erroneously considered his void UUW convictions in aggravation, and (5) the trial court erred in summarily dismissing his pro se postconviction petition because he raised an arguable claim that his trial counsel was ineffective for failing to investigate French as a potential witness and failing to call her to testify.
¶ 22 A. Prior Convictions for UUW
¶ 23 We first consider defendant’s argument that his two convictions for UUW in Will
County case Nos. 90-CF-1445 and 92-CF-3211 are void ab initio because they were based on statutes that were facially unconstitutional.
¶ 24 Initially, we note defendant did not raise this issue in his pro se postconviction
petition. Generally, where a defendant fails to raise an issue in a postconviction petition, the defendant may not raise the issue for the first time on review from a dismissal of the petition.
People v. Jones, 211 Ill. 2d 140, 148 (2004). However, “under Illinois law, there is no fixed
210758 procedural mechanism or forum, nor is there any temporal limitation governing when a void ab initio challenge may be asserted.” In re N.G., 2018 IL 121939, ¶ 57. Voidness challenges are not subject to forfeiture or any other procedural bar, and such challenges may be raised “at any time in any court.” Id. “[I]t is sufficient if a person subject to a conviction premised on a facially invalid statute raises his or her challenge through an appropriate pleading in a court possessing jurisdiction over the parties and the case.” Id. Accordingly, we may address defendant’s voidness claims concerning his UUW convictions in this appeal.
¶ 25 In Moore v. Madigan, 702 F.3d 933, 934, 942 (7th Cir. 2012), the United States
Court of Appeals for the Seventh Circuit held that portions of the Illinois statutes for UUW and aggravated unlawful use of a weapon (AUUW)—namely, sections 24-1(a)(4) and (a)(10) of the Criminal Code of 1961 (Code) (720 ILCS 5/24-1(a)(4), (10) (West 2010)) and section 24-1.6(a) of the Code (id. § 24-1.6(a))—violated the second amendment to the United States Constitution.
The Moore court found these statutes constituted a “flat ban on carrying ready-to-use guns outside the home.” Moore, 702 F.3d at 940. The Moore court noted the United States Supreme
Court had held that the second amendment included the right to bear arms for self-defense, and the Moore court found this right was “as important outside the home as inside.” Id. at 942.
¶ 26 Subsequently, in People v. Aguilar, 2013 IL 112116, ¶ 20, the Illinois Supreme
Court agreed with the analysis in Moore and its holding that the second amendment right to keep and bear arms extended beyond the home. Accordingly, the Aguilar court held that the Class 4 form of AUUW as set forth in section 24-1.6(a)(1), (a)(3)(A), (d) of the Code (720 ILCS 5/24-
1.6(a)(1), (a)(3)(A), (d) (West 2008)) was facially unconstitutional because it constituted a comprehensive ban on possessing and using firearms for self-defense outside of the home.
Aguilar, 2013 IL 112116, ¶¶ 21-22.
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¶ 27 Later, in People v. Gamez, 2017 IL App (1st) 151630, ¶ 11, the First District appellate court held that the 1996 UUW statute under which the defendant was convicted (720
ILCS 5/24-1(a)(4) (West 1996)) was facially unconstitutional because it contained the same essential elements as the 2010 UUW statute and the 2008 AUUW statute held to be unconstitutional in Moore and Aguilar. The 1996 UUW statute at issue in Gamez provided:
“(a) A person commits the offense of unlawful use of weapons when he knowingly:
***
(4) Carries or possesses in any vehicle or concealed on or about his
person except when on his land or in his own abode or fixed place of business any pistol, revolver, stun gun or taser or other firearm[.]” Id.
The Gamez court found this statute constituted an even broader ban than the statutes that had previously been found to be unconstitutional in Moore and Aguilar. Gamez, 2017 IL App (1st)
151630, ¶ 11.
¶ 28 1. UUW Conviction in Will County Case No. 90-CF-1445
¶ 29 Defendant argues his conviction for UUW in Will County case No. 90-CF-1445 is void ab initio because the UUW statute under which he was convicted was facially unconstitutional pursuant to the holding in Gamez. The State concedes this conviction is based on a facially unconstitutional statute and must be vacated.
¶ 30 We have allowed defendant’s motion to take judicial notice of the following documents filed in Will County case No. 90-CF-1445: (1) the criminal complaint filed on April
19, 1990, (2) the information filed on May 14, 1990, and (3) a certified statement of conviction.
The charging documents show defendant was charged with UUW (Ill. Rev. Stat. 1989, ch. 38, 210760
¶ 24-1) in that he knowingly carried, concealed in a motor vehicle, a gun, at a time when he was
not on his own land or in his own abode or fixed place of business. The certified statement of conviction reflects defendant pled guilty to UUW in that case and was sentenced to 12 months’ probation.
¶ 31 The version of the UUW statute under which defendant was convicted in Will
County case No. 90-CF-1445 provided, in relevant part:
“(a) A person commits the offense of unlawful use of weapons when he knowingly:
***
(4) Carries or possesses in any vehicle or concealed on or about his
person except when on his land or in his own abode or fixed place of business any pistol, revolver, stun gun or taser or other firearm[.]” Ill. Rev. Stat. 1989, ch. 38, ¶ 24-1(a)(4).
¶ 32 After reviewing the above-mentioned documentation in Will County case No. 90-
CF-1445, we accept the State’s concession that defendant’s UUW conviction in that case is void ab initio. The section of the UUW statute under which defendant was convicted (id.) contained identical language to the version that was held to be facially unconstitutional in Gamez, 2017 IL
App (1st) 151630, ¶ 11.
¶ 33 2. UUW Conviction in Will County Case No. 92-CF-3211
¶ 34 Next, defendant argues his conviction for UUW in Will County case No. 92-CF-
3211 is void ab initio because the statute under which he was convicted is facially unconstitutional based on the holding in Gamez. The State again concedes this conviction is based on a facially unconstitutional statute and must be vacated.