Illinois Armed Habitual Criminal

gunIn a recent Illinois appellate decision, the defendant was convicted for being an armed habitual criminal and sentenced to eight years in prison. He appealed, arguing that he wasn’t proven guilty beyond a reasonable doubt for the offense of armed habitual criminal, and the armed habitual criminal statute was not unconstitutional because it potentially criminalized totally innocent actions.

The case arose when two officers were patrolling. They heard a car alarm go off and found the car that was the source of the alarm. Nearby in another car, a couple was sitting in a parked car. The smell of marijuana was coming from the car. When he saw the officers come into the parking lot, the defendant left the front seat of the car and stood by it. The officer testified he’d left his own car and come up to the defendant. As he came closer, he saw that the woman driver was smoking what looked like a marijuana cigar. She put it down. A bottle of liquor was on the console.

In the interests of his own safety, the officer handcuffed the defendant. His partner came up to the driver and asked her to get out of the car. She said her identification was in the car, so the officer took the marijuana and liquor out of the car and searched for her ID. He saw her purse on the floor, and from it, a handgun was sticking out in plain view. He recovered the gun, which was a semiautomatic handgun that was loaded.

After the officer took it out of the vehicle, the defendant said the weapon was his and explained he’d put it into the woman’s purse. Both were arrested and taken to the police station. The defendant said he wanted to apologize to the woman for putting his gun in her purse.

The police gave the defendant Miranda warnings, but he waived his rights and spoke to the officers, telling them he’d bought the gun two days earlier for protection. He also told the officers that if he got charged again, he’d be done. The woman was the owner of the car where the gun, liquor, and marijuana were found.

The other officer testified that after the defendant was told his Miranda warnings, he gave details about how he’d bought the weapon and commented about his worries related to being charged as an armed habitual criminal.

The defense attorney and prosecution stipulated that the defendant didn’t possess a valid Firearm Owners Identification card on the date of the arrest. The prosecution also entered evidence of prior convictions for attempted armed robbery, robbery, and possession of a controlled substance. The defendant chose not to testify and didn’t present any evidence. The lower court determined that the prosecution had met its burden to show beyond a reasonable doubt that the defendant was guilty of the offense of armed habitual criminal. He was sentenced to eight years in prison and assessed $394 in fines. He was credited with 195 days of custody before the sentencing.

The defendant appealed, arguing that the prior conviction for attempted armed robbery hadn’t been proven to be a forcible felony enough to satisfy the elements of the offense of armed habitual criminal. The State argued that all attempted armed robberies included the possibility of physical force, such that they counted as forcible felonies.

Under Section 24-1.7 of the Illinois Criminal Code of 2012, the elements the prosecution needs to prove when charging someone with the armed habitual criminal offense are receiving, possessing, selling, or transferring any firearm after being convicted at least two times of a forcible felony. Forcible felonies cover many different charges, including any felony that involves the use of physical violence against someone.

The defendant wasn’t arguing that his conviction for robbery was a forcible felony, but he was merely challenging whether the evidence was sufficient with regard to attempted armed robbery because the State had only presented copies of convictions but not given the details about the convictions.

The appellate court disagreed, noting that if an offense wasn’t specifically set forth under the statute, it would be a forcible felony if it came under the residual clause. It explained that the defendant, in being convicted of attempted armed robbery, had shown a willingness to use force while armed. For this and other reasons, the conviction was affirmed, although the court corrected the fees and fines order.

It is important to retain an experienced attorney. John Ioakimidis is an award-winning Chicago attorney and an author with more than 24 years of experience. If you are charged with armed robbery in Illinois, contact me in Cook (312-229-5500), DuPage and Kane (630-504-2096), or Lake (847-696-6458) County for a free and confidential consultation to discuss your legal options.

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