Pournaras v. People , 425 Ill. Dec. 916 ( 2018 )

2018 IL App (3d) 170051Opinion filed November 13, 2018
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2018
KOSTANTINO S. POURNARAS, a/k/a ) Appeal from the Circuit Court
GUS S. POURNARAS, ) of the 21st Judicial Circuit,
) Kankakee County, Illinois.
Petitioner-Appellant, )
)
v. ) Appeal No. 3-17-0051
) Circuit No. 16-MR-184
THE PEOPLE OF THE STATE OF )
ILLINOIS, )
) Honorable Thomas W. Cunnington,
Respondent-Appellee. ) Judge, Presiding.
_____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
Presiding Justice Carter specially concurred, with opinion, joined by Justice Lytton.
OPINION
¶1 Petitioner, Kostantino S. Pournaras, appeals the trial court’s denial of his petition to
obtain a Firearm Owner’s Identification Card (FOID card). Petitioner filed his petition pursuant
to the Firearm Owners Identification Card Act (FOID Act). 430 ILCS 65/10(c) (West 2016). He
asserts the trial court erred in finding he did not meet all of the qualifications required by the
FOID Act due to the trial court’s erroneous interpretation of the Federal Gun Control Act. He
argues he has had his “civil rights restored” within the meaning of the Gun Control Act so as to
allow him to regain the privilege of having a FOID card. We reverse the judgment of the trial
court and remand with instructions.
¶2 FACTS
¶3 In February 2016, petitioner filed a petition to reinstate his privilege to obtain a FOID
card. He brought his petition pursuant to the FOID Act which states in relevant part:
“Any person prohibited from *** acquiring a Firearm Owner’s
Identification Card under Section 8 of this Act may *** petition
the circuit court in the county where the petitioner resides, *** and
the Director or court may grant such relief if it is established by the
applicant to the court’s or Director’s satisfaction that: ***
(1) the applicant has not been convicted of a forcible
felony under the laws of this State or any other jurisdiction
within 20 years of the applicant’s application for a Firearm
Owner’s Identification Card, or at least 20 years have passed
since the end of any period of imprisonment imposed in
relation to that conviction;
(2) the circumstances regarding a criminal conviction,
where applicable, the applicant’s criminal history and his
reputation are such that the applicant will not be likely to act in
a manner dangerous to public safety;
(3) granting relief would not be contrary to the public
interest; and
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(4) granting relief would not be contrary to federal law.”
430 ILCS 65/10(c) (West 2016).
Petitioner conceded he had been convicted of burglary in Kankakee County case No. 94-CF-778
(720 ILCS 5/19-1(a) (West 1994)) and theft in Kankakee County case No. 95-CF-128 (720 ILCS
5/16-1(a)(4)(A) (West1994)). The Kankakee County trial court sentenced petitioner to probation
and time served on these offenses. Petitioner completed his sentence and argued he met the
conditions under the FOID Act to have his privileges restored.
¶4 The trial court held a hearing on the matter. In December 2016, the trial court entered its
decision. The trial court found more than 20 years had passed since petitioner’s prior felony
convictions and he had no felonies since then. 430 ILCS 65/10(c)(1) (West 2016). It found
petitioner was gainfully employed, volunteered as a first responder, and took an active role as a
husband and father. Petitioner testified that he was “young, dumb, and stupid” when he
committed his felony offenses and had since lived a life free of legal troubles. He wanted a FOID
card to recreationally hunt and shoot with friends and family. These facts supported the court’s
finding petitioner would not be a danger to public safety if his firearm privileges were reinstated.
Id. § 2. These facts also supported the court’s finding that granting petitioner his FOID card
privileges would not be against public interest. Id. § 3. However, the court found petitioner did
not meet the final requirement that reinstating petitioner’s firearm privileges not be contrary to
federal law. Id. § 4. The court found granting petitioner’s request to obtain a FOID card would be
against federal law, namely the Federal Gun Control ban on possession of firearms by a
convicted felon. 18 U.S.C. § 922(g)(1) (2012). This appeal followed.
¶5 ANALYSIS
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¶6 On appeal, petitioner’s only argument is that he has had his “civil rights” restored within
the meaning of the Gun Control Act. Therefore, he has no federal firearm disability, and the trial
court erred in denying his petition to obtain a FOID card. Petitioner asserts the trial court
erroneously interpreted the Federal Gun Control Act. See 18 U.S.C. § 922(g)(1) (2012); 18
U.S.C. § 921(20) (2012). Section 922 provides that it is against federal law for anyone “who has
been convicted in any court of, a crime punishable by imprisonment for a term exceeding one
year *** to *** possess *** any firearm or ammunition.” 18 U.S.C. § 922(g)(1) (2012).
Petitioner contends the statute must be read in conjunction with section 921, which provides
definitions for section 922. Section 921 sets limitations on a “crime punishable by imprisonment
for a term exceeding one year” by stating:
“Any conviction which has been expunged, or set aside or for
which a person has been pardoned or has had civil rights restored
shall not be considered a conviction for purposes of this chapter,
unless such pardon, expungement, or restoration of civil rights
expressly provides that the person may not ship, transport, possess,
or receive firearms.” 18 U.S.C. § 921(20) (2012).
Petitioner maintains probation takes away some civil rights that are restored upon completion of
his sentence.
¶ 7 The State disagrees with petitioner’s definition of “civil rights” and believes the trial
court correctly dismissed the petition. The State argues the correct question is whether
petitioner’s gun rights are civil rights. Because gun rights are not civil rights, per the State’s
interpretation of the phrase “civil rights,” petitioner has no right to restore. See People v.
Heitmann, 2017 IL App (3d) 160527, ¶ 26.
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¶8 Whether petitioner has had his civil rights restored so as not to be barred from owning a
firearm under section 922 of the Federal Gun Control Act is an issue of statutory construction.
Baumgartner v. Greene County State’s Attorney’s Office, 2016 IL App (4th) 150035 ¶ 35. Issues
of statutory construction are questions of law and subject to de novo review. Id. “The cardinal
rule of statutory construction is to give effect to the legislative intent of the enactment.” Rushton
v. O’Malley, 89 Ill. App. 3d 103, 104 (1980). “The most reliable indicator of the legislative intent
is the language of the statute itself, which must be given its plain and ordinary meaning.”
Hayashi v. Illinois Department of Financial & Professional Regulation, 2014 IL 116023, ¶ 16.
Statutes should be interpreted to avoid constructions that create doubts as to their validity. Wade
v. City of North Chicago Police Pension Board, 226 Ill. 2d 485, 510 (2007). “[T]his court
presumes that the legislature did not intend to create absurd, inconvenient, or unjust results.”
Coram v. State of Illinois, 2013 IL 113867 ¶ 57.
¶9 The Supreme Court in Logan v. United States, 552 U.S. 23, 26 (2007), construed the
phrase “civil rights restored” used elsewhere in the Gun Control Act. The Court adopted the
holding of other courts that the “civil rights” used in the Gun Control Act are “the rights to vote,
hold office, and serve on a jury.” Id. at 28.
¶ 10 In Illinois, the constitution provides “[a] person convicted of a felony, bribery, perjury or
other infamous crime shall be ineligible to hold an office created by this Constitution. Eligibility
may be restored as provided by law.” Ill. Const. 1970, art XIII, § 1. The right to hold office is
restored by statute stating “[a] person convicted of a felony shall be ineligible to hold an office
created by the Constitution of this State until the completion of his sentence.” 730 ILCS 5/5-5­
5(b) (West 2016). Illinois law requires members of a jury to be “[f]ree from all legal exception.”
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705 ILCS 305/2(a)(3) (West 2016). Plaintiff contends he could not exercise these civil rights
while on probation, which we will address in turn.
¶ 11 The State relies on the holding in Heitmann, but the case here is distinguishable. The
petitioner in Heitmann sought to obtain a FOID card but was convicted of domestic violence. Id.
¶ 3. The Gun Control Act treats domestic violence convictions differently than “crimes
punishable by imprisonment for a term exceeding one year.” See 18 U.S.C. § 922(g)(1) (2012).
In the definitions of section 921, the act, in relevant part, states:
“A person shall not be considered to have been convicted of [a
misdemeanor crime of domestic violence] if the conviction has
been expunged or set aside, or is an offense for which the person
has been pardoned or has had civil rights restored (if the law of the
applicable jurisdiction provides for the loss of civil rights under
such an offense) unless the pardon, expungement, or restoration of
civil rights expressly provides that the person may not ship,
transport, possess, or receive firearms.” (Emphasis added.) 18
U.S.C. § 921(a)(33)(B)(ii) (2012).
The applicable definition provides language not present in the definition for “crimes punishable
by imprisonment for a term exceeding one year” which we cannot ignore. See Standard Mutual
Insurance Co. v. Lay, 2013 IL 114617 ¶ 26 (“Each word, clause and sentence of a statute must be
given reasonable meaning, if possible, and should not be rendered superfluous.”).
¶ 12 Additionally, the trial court in Heitmann sentenced the petitioner to time served and
ordered him to pay a fine. Heitmann, 2017 IL App (3d) 160527 ¶ 3. The petitioner faced no
sentence postconviction. Because the proper inquiry is the status of a petitioner’s rights
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postconviction, and the petitioner never faced a sentence that took away any of his civil rights, he
could not be said to have had those rights restored. Id. ¶ 27.
¶ 13 Here, petitioner is not subject to the additional statutory language applied to domestic
violence offenders. Additionally, petitioner faced a sentence of probation postconviction.
¶ 14 Petitioner argues he could not have held office while serving his probation. The Illinois
constitution provides “[a] person convicted of a felony, bribery, perjury or other infamous crime
shall be ineligible to hold an office created by this Constitution. Eligibility may be restored as
provided by law.” Ill. Const. 1970, art XIII, § 1. That right is automatically reinstated upon
operation of a statute that says “[a] person convicted of a felony shall be ineligible to hold an
office created by the Constitution of this State until the completion of his sentence.” 730 ILCS
5/5-5-5(b) (West 2016).
“A person convicted of a felony is ineligible to hold an office
created by the Constitution of the State of Illinois until the
completion of his sentence. *** On completion of sentence of
imprisonment or upon discharge from probation, conditional
discharge, or periodic imprisonment, or at any time thereafter, all
license rights and privileges granted under the authority of Illinois
which have been revoked or suspended because of conviction of an
offense must be restored.” Ill. L. and Prac., Criminal Law, § 1079
(2018).
The Seventh Circuit interpreted the Illinois statute in the same way, finding the right to hold
office would be automatically restored upon completion of the defendant’s sentence. United
States v. Gillaum, 372 F.3d 848, 861 (7th Cir. 2004). Because petitioner would not have been
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able to hold office while on probation and that right was automatically restored upon successful
completion of his sentence, this is a civil right restored within the meaning of the Gun Control
Act. See Logan, 552 U.S. at 28.
¶ 15 Petitioner also argues that because Illinois requires a person serving on a jury to be
“[f]ree from all legal exception” this means he would have been ineligible to serve on a jury
while on probation. See 705 ILCS 305/(a)(3) (West 2016). Petitioner was under sentence until he
completed his probation and thus was not free from all legal exception. His completion of
probation removed his obstacle to serving on a jury, thus restoring his civil right. Logan, 552
U.S. at 28.
¶ 16 By virtue of completing his sentence, petitioner had his civil rights restored within the
meaning of the Gun Control Act. Id. Therefore, petitioner utilized an exception to remove
himself from disqualification under federal law. Under a proper reading of the Gun Control Act,
we hold petitioner should be allowed to obtain a FOID card because we find he has met all of the
statutory requirements. See 430 ILCS 65/10(c) (West 2014).
¶ 17 This result also avoids an absurd application of the law. See Coram, 2013 IL 113867 ¶ 57
(“In the construction of our statutes, this court presumes that the legislature did not intend to
create absurd, inconvenient, or unjust results.”). To find petitioner never had his civil rights
removed so as to prevent them from being restored would disproportionately punish a less
serious offender. The State’s argument is that if petitioner’s crimes were of a sufficient
magnitude, to require, say, a sentence of five years’ imprisonment, there would be no question
whether his civil rights were restored. The proposition fails on its face because a sentence of
probation is no less of a sentence or legal obstacle than incarceration, at least with respect to
holding office or sitting on a jury.
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¶ 18 Assuming no intervening disqualifying events, and in light of the trial courts other
findings, we remand with directions for the trial court to direct the Department of the Illinois
State Police to issue petitioner a FOID card.
¶ 19 CONCLUSION
¶ 20 For the foregoing reasons, we reverse the judgment of the circuit court of Kankakee
County and remand with instructions.
¶ 21 Reversed; cause remanded for further proceedings consistent with this opinion.
¶ 22 PRESIDING JUSTICE CARTER, specially concurring:
¶ 23 Although I concur in the majority decision of the court, I write separately to explain why
my concurrence in this case does not conflict with the decision in Heitmann, 2017 IL App (3d)
160527. Simply put, there is nothing in the court’s decision in the instant case that is contrary to
this court’s decision in Heitmann. In Heitmann, one of the findings that we made was that gun
rights were not the type of civil rights that were contemplated in the Gun Control Act’s
restoration of civil rights exemption. See Heitmann, 2017 IL App (3d) 160527, ¶ 21. The
decision in the instant case remains true to that finding. The Gun Control Act makes it unlawful
for a person who has been convicted in any court of a misdemeanor crime of domestic violence
to possess a firearm. 18 U.S.C. § 922(g)(9) (2012). In the present case, the petitioner, unlike the
applicant in Heitmann (see id. ¶ 3), was not previously convicted of a crime of domestic
violence. Thus, the facts in the instant case are in no way comparable to the facts of Heitmann
and dictate that a different result be reached. The petitioner in the instant case lost some of his
relevant civil rights and then had those rights restored. The Heitmann applicant did not lose any
of his relevant civil rights as a result of his domestic violence sentence and did not, therefore,
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have any of his relevant civil rights restored. See id. ¶¶ 16-29. For the reasons stated, I
respectfully specially concur with the majority’s decision.
¶ 24 JUSTICE LYTTON, specially concurring:
¶ 25 I join in Presiding Justice Carter’s special concurrence.
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