People v. Benson

2026 IL 131191 IN THE SUPREME COURT OF THE STATE OF ILLINOIS (Docket No. 131191) THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES BENSON, Appellant. Opinion filed September 24, 2026. JUSTICE OVERSTREET delivered the judgment of the court, with opinion. Chief Justice Neville and Justices Holder White, Cunningham, Rochford, O’Brien, and Tailor concurred in the judgment and opinion. OPINION ¶1 Following a bench trial, the circuit court of Cook County found defendant, James Benson, guilty of reckless discharge of a firearm (720 ILCS 5/24-1.5(a) (West 2020)), unlawful possession of a weapon by a felon (UPWF) (id. § 24- 1.1(a)), and misdemeanor domestic battery (id. § 12-3.2(a)(2)). On direct appeal, defendant raised several challenges to his convictions, including a claim that his UPWF conviction is constitutionally invalid. 2024 IL App (1st) 221230-U, ¶ 2. The  appellate court rejected defendant’s argument that the UPWF statute is unconstitutional, both facially and as applied to him, under the second amendment standards (U.S. Const., amend. II) set out by the United States Supreme Court in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). 2024 IL App (1st) 221230-U, ¶ 2. In this appeal, defendant abandons his facial challenge to the UPWF statute and argues only that the statute is unconstitutional as applied to him. Therefore, we are asked to review the appellate court’s judgment with respect to defendant’s as-applied constitutional challenge under Bruen’s standards, a claim that defendant raised for the first time on direct appeal. ¶2 For the following reasons, we conclude that defendant’s as-applied challenge fails for lack of an adequate factual record due to defendant’s failure to raise the issue before the circuit court for an evidentiary hearing and that the appellate court erred in considering the issue on its merits. Thus, we vacate that part of the appellate court’s judgment that considered the merits of the issue, but we otherwise affirm the appellate court’s judgment, and we affirm defendant’s UPWF conviction. ¶3 I. BACKGROUND ¶4 The events leading to defendant’s UPWF conviction began on December 23, 2021, when defendant lived in an apartment with his girlfriend, Alisha Bradley, in Chicago. Id. ¶ 4. At that time, defendant had a 2015 felony conviction of aggravated unlawful use of a weapon (AUUW) based on his possession of a firearm when he did not have a valid Firearm Owners Identification (FOID) card. Id. ¶¶ 17, 20, 29. ¶5 The evidence leading up to defendant’s subsequent UPWF conviction included testimony of a domestic dispute at the apartment between defendant and Bradley during which defendant possessed a handgun, pointed it in Bradley’s direction, and fired the handgun, resulting in a bullet hole in the apartment’s dining room floor. See id. ¶¶ 4-16. Chicago police officer Thomas Kowal testified that he responded to the apartment and Bradley reported that defendant beat her, threatened her with a firearm, said he would kill her, and shot at her. Id. ¶ 11. Bradley directed Officer Kowal to the dining room, which had a hole in the floor near the window that Officer Kowal believed to be a bullet hole, and the officer found an expended shell casing. Id. Officer Kowal recovered a loaded semiautomatic firearm from underneath the mattress in the bedroom. Id. -2- ¶6 The evidence at trial included camera footage from Officer Kowal’s body-worn camera and evidence that, during questioning, defendant informed a police detective that he “ ‘possessed’ ” the recovered firearm for two or three weeks prior to the incident. 1 Id. ¶¶ 12-14. The circuit court found defendant guilty of reckless discharge of a firearm, UPWF, and misdemeanor domestic battery. Id. ¶¶ 26-27. The court commented that defendant “possessed the firearm but did not own it.” Id. ¶ 27. ¶7 On direct appeal, defendant raised, among other issues, a challenge to the constitutionality of his UPWF conviction, arguing that the UPWF statute is unconstitutional both facially and as applied to him under Bruen. Id. ¶ 2. The appellate court disagreed and affirmed defendant’s UPWF conviction. Id. In his appeal before this court, defendant raises only his as-applied constitutional challenge to the UPWF statute. ¶8 Before the appellate court, defendant argued that the UPWF statute is unconstitutional as applied to him in this case because his prior conviction for AUUW was for his possession of a firearm without a FOID card, which is not an inherently dangerous felony offense justifying a permanent ban on firearms possession. Id. ¶ 51. ¶9 In analyzing defendant’s constitutional challenge, the appellate court outlined the two-step framework for evaluating the constitutionality of firearm regulations as set out in Bruen: (1) the court must first determine whether the second amendment’s plain text covers an individual’s conduct; (2) if so, the second amendment presumptively protects that conduct, and the government must justify the regulation by showing that the regulation is consistent with the nation’s historical tradition of firearm regulation. Id. ¶ 47 (citing Bruen, 597 U.S. at 24). 1 The record contains more evidence including conflicting testimony relevant to defendant’s UPWF conviction than what we explain here. This additional evidence is more fully set out in the appellate court’s decision below. See 2024 IL App (1st) 221230-U, ¶¶ 4- 25. Because this appeal does not concern the sufficiency of the State’s evidence, for purposes of brevity, we have briefly set out only some of the evidence to establish the nature of the domestic dispute preceding defendant’s arrest and conviction for violating the UPWF statute. -3-  “To make this showing, the government must point to historical precedent which establishes what the founders understood the second amendment to mean.” Id. ¶ 10 The appellate court first addressed defendant’s facial challenge and held that Bruen does not apply to felons such as defendant because the Bruen Court’s holding was limited to laws affecting “law-abiding citizens.” Id. ¶ 48 (citing People v. Baker, 2023 IL App (1st) 220328, ¶ 37 (rejecting the defendant’s as-applied constitutional challenge to the unlawful use of a weapon by a felon (UUWF) statute (720 ILCS 5/24-1.1(a) (West 2018)), and People v. Burns, 2024 IL App (4th) 230428, ¶¶ 18-22 (rejecting the defendant’s facial challenge to the UPWF statute relying on the reasoning in Baker)). ¶ 11 The appellate court further held, alternatively, that sufficient historical precedent exists to ban felons from possessing firearms under the second step of the Bruen analysis. Id. ¶ 49 (citing People v. Brooks, 2023 IL App (1st) 200435, ¶¶ 100-05 (“[T]he legislature’s ability to impose status-based restrictions disqualifying certain categories of people from possessing firearms is consistent with the national historical tradition of firearm regulation.”), and People v. Travis, 2024 IL App (3d) 230113, ¶¶ 27-33 (finding that the UUWF statute is facially constitutional where it was “consistent with this nation’s history of preventing potentially dangerous individuals from exercising the right to bear arms”)). ¶ 12 With respect to defendant’s as-applied constitutional challenge, the State argued that defendant forfeited this issue because he failed to raise the issue in the circuit court and was raising the issue for the first time on appeal. Id. ¶ 50 (citing People v. Holman, 2017 IL 120655, ¶ 32 (“[A] defendant must present an as- applied constitutional challenge to the trial court in order to create a sufficiently developed record.”), overruled on other grounds by People v. Wilson, 2023 IL 127666). The defendant, however, argued that his conviction for UPWF was predicated upon a prior felony conviction for possession of a firearm without a FOID card, which is not “inherently dangerous,” to justify a permanent ban on firearm possession. Id. ¶ 51. He argued that this as-applied challenge was legal in nature and that the trial court’s record was sufficient for the appellate court to address the issue. Id. (citing People v. Gross, 2024 IL App (2d) 230017-U, ¶ 18 (question of whether it is constitutionally permissible to restrict a person from possessing a firearm if previously convicted of a felony without violent act as an -4-  element is legal in nature)). The appellate court agreed with defendant and addressed the merits of his as-applied constitutional challenge. ¶ 13 Defendant based his as-applied challenge on the contention that the founders permitted disarmament only for persons who were presently dangerous, not persons who were merely felons. Id. He emphasized that his conviction for UPWF, predicated upon a prior felony conviction for possession of a firearm without a FOID card, did not involve conduct that was “inherently dangerous” and could not justify a permanent ban on firearm possession. Id. The appellate court rejected defendant’s as-applied constitutional challenge, holding that “Bruen does not make any such distinction.” Id. ¶ 52. The appellate court again emphasized that Bruen only applies to laws that regulate the firearm possession of law-abiding citizens. Id. (citing Baker, 2023 IL App (1st) 220328, ¶ 37, and People v. Gunn, 2023 IL App (1st) 221032, ¶ 19 (noting that the Bruen Court “explicitly acknowledged that background checks, which are the cornerstone of the [Firearm Owners Identification (FOID)] Card Act, are permissible”)). ¶ 14 The appellate court, therefore, held that the UPWF statute is not unconstitutional on its face or as applied to defendant. Id. ¶ 53. We granted defendant’s petition for leave to appeal pursuant to Illinois Supreme Court Rule 315 (eff. Dec. 7, 2023) to review the appellate court’s judgment with respect to defendant’s as-applied constitutional challenge. ¶ 15 II. ANALYSIS ¶ 16 The issue presented to us by the parties is whether the UPWF statute is unconstitutional as applied to defendant under the second amendment standards established by the United States Supreme Court. However, we conclude that the appellate court erred in considering defendant’s as-applied constitutional challenge, which he raised for the first time on appeal, because the trial court record is insufficient to determine the merits of the claim, which requires consideration of the individual facts and circumstances surrounding the application of the UPWF statute to defendant. -5- ¶ 17 A. “As-Applied” Constitutional Challenges Require Evidentiary Record ¶ 18 The party challenging the constitutionality of a statute carries the burden of establishing that the statute is unconstitutional. People v. Thompson, 2025 IL 129965, ¶ 13. An as-applied constitutional challenge to a statute requires the court to consider the particular facts and circumstances relevant to the application of the statute to a particular individual. Piasa Armory, LLC v. Raoul, 2025 IL 130539, ¶ 14. We exclusively examine the facts of the case before us and not any other set of hypothetical facts under which the statute might be unconstitutional. People v. Gray, 2017 IL 120958, ¶ 58. While factual findings related to the merits of an as- applied challenge after an evidentiary hearing are reviewed under the manifest weight of the evidence standard, the ultimate finding of whether a statute is unconstitutional as applied to a defendant is a legal question that we review de novo. People ex rel. Hartrich v. 2010 Harley-Davidson, 2018 IL 121636, ¶ 13. ¶ 19 A facial constitutional challenge to a statute may be raised at any time, including for the first time on direct appeal. People v. Thompson, 2015 IL 118151, ¶ 32. However, because an as-applied constitutional challenge depends on the specific facts and circumstances of the challenging party, this court has consistently held that the party raising such a challenge must do so in the circuit court so there is a sufficiently developed record for purposes of appellate review. People v. House, 2021 IL 125124, ¶ 27. ¶ 20 A reviewing court cannot determine whether a statute is unconstitutional “as applied” where there has been no evidentiary hearing and no findings of fact. In re Parentage of John M., 212 Ill. 2d 253, 268 (2004). “Without an evidentiary record, any finding that a statute is unconstitutional ‘as applied’ is premature.” Id. “When there has been no evidentiary hearing and no findings of fact, the constitutional challenge must be facial.” People v. Mosley, 2015 IL 115872, ¶ 49; see People v. Minnis, 2016 IL 119563, ¶ 19 (“In such a factual vacuum, a court is not capable of making an ‘as applied’ determination of unconstitutionality. Without an evidentiary record, any finding that a statute is unconstitutional ‘as applied’ is premature, and the constitutional challenge must be facial.”); People v. Rizzo, 2016 IL 118599, ¶ 26; Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 228 (2010). -6- ¶ 21 In Holman, 2017 IL 120655, ¶¶ 29-32, we recognized a “very narrow exception” to the requirement that a party must first raise an as-applied constitutional challenge in the circuit court so an adequate factual record can be developed. The “very narrow exception” recognized by the Holman court concerned an as-applied constitutional challenge based on Miller v. Alabama, 567 U.S. 460 (2012), that was raised for the first time on appeal. Holman, 2017 IL 120655, ¶ 32. This court chose to address the merits of the defendant’s as-applied challenge raised for the first time on appeal under this “narrow exception,” in the interest of judicial economy, because all the facts and circumstances necessary to decide the defendant’s Miller claim were already in the record. Id.; see People v. Davis, 2014 IL 115595, ¶ 43 (juvenile sentenced to a mandatory term of natural life without parole in direct violation of Miller’s holding; we remanded for a new sentencing hearing for the circuit court to exercise discretion in considering all permissible sentences). Because those defendants’ claim that their sentences were unconstitutional based on Miller only required a showing that their life sentences were mandatory and they were juveniles when they committed the crimes for which they were sentenced, the as-applied claims in Davis and Holman did not require factual development. Holman, 2017 IL 120655, ¶ 33. ¶ 22 Here, the appellate court recognized the requirement that as-applied constitutional challenges are dependent on the specific facts and circumstances of the challenging party and that a sufficiently developed factual record is required for appellate review. 2024 IL App (1st) 221230-U, ¶ 51. However, the appellate court chose to address defendant’s as-applied challenge, which defendant raised for the first time on appeal, because it concluded that all the facts relevant to defendant’s as-applied challenge are of record. Id. We disagree. Defendant’s as-applied challenge does not fit within the narrow exception recognized in Davis and Holman because we find that application of the UPWF statute to defendant requires consideration of facts and circumstances that are not of record. To reach this conclusion, we begin with the language of the UPWF statute under which defendant was convicted. -7- ¶ 23 B. Application of the UPWF Statute Includes Consideration of Its Exception ¶ 24 The UPWF statute provides in relevant part: “It is unlawful for a person to knowingly possess on or about his person or on his land or in his own abode or fixed place of business any weapon prohibited under Section 24-1 of this Act or any firearm or any firearm ammunition if the person has been convicted of a felony under the laws of this State or any other jurisdiction.” 720 ILCS 5/24-1.1(a) (West 2020). However, it is vital to consideration of an as-applied challenge to a UPWF conviction that an exception immediately follows, contained in the same subsection, which provides that “[t]his Section shall not apply if the person has been granted relief by the Director of the Department of State Police under Section 10 of the [FOID] Card Act.” Id. Thus, to understand how this exception might impact the application of the statute to defendant, we turn to section 10 of the FOID Card Act (430 ILCS 65/10 (West 2020). ¶ 25 C. “Non-Dangerous” Felons Can Apply for FOID Card ¶ 26 Section 10(c) of the FOID Card Act states in pertinent part as follows: “Any person prohibited from possessing a firearm under Section[ ] 24-1.1 *** of the Criminal Code of 2012 or acquiring a [FOID] Card under Section 8 of this Act may apply to the Director of State Police or petition the circuit court in the county where the petitioner resides, whichever is applicable in accordance with subsection (a) of this Section, requesting relief from such prohibition 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 [FOID] Card, or at least 20 years have passed since the end of any period of imprisonment imposed in relation to that conviction; -8-  (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 (4) granting relief would not be contrary to federal law.” 430 ILCS 65/10(c) (West 2020) ¶ 27 Section 10(c) of the FOID Card Act provides the mechanism for restoring firearms rights. See Johnson v. Department of State Police, 2020 IL 124213, ¶¶ 27, 40, 47. This section focuses on facts relevant to a defendant’s dangerousness. Id. ¶ 27 (section 10(c) sets out “a process for determining, after an individualized hearing, that the individual is not likely to act in a manner dangerous to public safety and that it would not be against the public interest for the individual to possess firearms”). Thus, if a petitioner can establish that he meets the criteria of section 10(c) and the Illinois State Police grant a FOID card application on this basis, he or she is specifically exempted from application of the UPWF statute. Due to this specific exemption, set forth in the language of the UPWF statute itself, an as-applied challenge to the UPWF statute requires consideration of the application of section 10(c) in defendant’s case. With this in mind, we turn to defendant’s as- applied challenge in light of the record before us. ¶ 28 D. The Factual Record Is Insufficient to Determine the Merits of Defendant’s As-Applied Challenge Without an Evidentiary Hearing ¶ 29 After considering the facts of record in conjunction with the provisions of the UPWF statute as set forth above, defendant’s as-applied challenge requires consideration of the specific facts and circumstances surrounding the application of the UPWF statute that have not been developed in the record. -9- ¶ 30 1. Facts and Circumstances Surrounding Commission of the Underlying Felony and Defendant’s Dangerousness ¶ 31 First, defendant’s challenge is premised on his claim that, because his underlying felony, AAUW premised on possession of a weapon without a FOID card, is not “inherently dangerous,” the UPWF statute, as applied to him, is a violation of his second amendment rights. This premise assumes that a simple examination of the elements of the underlying felony, with no consideration of the facts and circumstances surrounding the commission of the felony or the dangerousness of the defendant, is sufficient to address the constitutionality of the conviction as applied to defendant. We disagree. ¶ 32 In reaching the conclusion that the circumstances surrounding the commission of the underlying felony and the general dangerousness of defendant are relevant to defendant’s as-applied challenge, we are persuaded by decisions of our appellate court that have reached the same conclusion. In People v. Boss, 2025 IL App (1st) 221855, ¶ 1, the defendant was convicted of UUWF (720 ILCS 5/24-1.1(a) (West 2018)). For the first time on appeal, the defendant raised an as-applied second amendment challenge to his UUWF conviction, arguing that the statute was unconstitutional as applied to him because “(1) there are no historical regulations that would have applied, (2) he was not serving a felony sentence or mandatory supervised release term when he possessed the firearm, and (3) the State introduced no facts showing that he was dangerous or that he was engaged in any criminal conduct when he was arrested.” Boss, 2025 IL App (1st) 221855, ¶ 38. ¶ 33 The Boss court, however, correctly recognized the requirement of an evidentiary record. Id. ¶ 39. In addition, the Boss court also correctly noted that in People v. Harris, 2018 IL 121932, ¶ 46, this court “specifically rejected the notion that the basic personal information about the defendant that was discernible from the presentence investigation report provided a basis for evaluating the defendant’s as-applied constitutional challenge.” Boss, 2025 IL App (1st) 221855, ¶ 39 (citing Harris, 2018 IL 121932, ¶ 46). Applying these principles, the Boss court noted that the trial record in that case “contain[ed] no information about the facts and - 10 -  circumstances surrounding [the defendant’s] predicate felony conviction other than the name of the offense (armed robbery).” Id. ¶ 40. The court concluded: “[B]ecause this issue was not raised in the trial court, no evidentiary hearing was held on defendant’s as-applied constitutional challenge. Thus, the trial court did not have the opportunity to hear evidence concerning the facts and circumstances surrounding defendant’s prior conviction, the matters raised during the sentencing hearing, and what impact, if any, those things had on defendant’s as-applied challenge. Nor was the court able to make any findings concerning defendant’s particular circumstances and how they related to his second amendment challenge.” Id. ¶ 41. ¶ 34 The Boss court, therefore, held that the defendant’s as-applied challenge was premature and declined to address it. ¶ 35 Likewise, the appellate court correctly applied these principles in Burns, 2024 IL App (4th) 230428, ¶ 17. In that case, a jury found the defendant guilty of UPWF. Id. ¶¶ 3, 7. Like defendant in the present case, the Burns defendant’s felony status at the time he illegally possessed a weapon was based on a prior felony conviction of AUUW that was premised on possessing a firearm without a valid FOID card. Id. ¶¶ 31-36. In addition, like defendant in the present case, the defendant in Burns, on direct appeal from his conviction of UPWF, raised an as-applied challenge to his conviction that he had not raised in the circuit court. Id. ¶ 17. The Burns court correctly held that the as-applied challenge was premature, noting as follows: “we are unable to address defendant’s as-applied challenge, which he raises for the first time on appeal, because there is not a sufficiently developed evidentiary record upon which to analyze his argument. Because as-applied constitutional challenges are, by definition, dependent on the specific facts and circumstances of the person raising the challenge, it is paramount that the record be sufficiently developed in terms of those facts and circumstances for purposes of appellate review.” Id. ¶ 36 The Burns court concluded, “[b]ecause defendant did not raise this issue in the trial court, no factual findings were made related to defendant’s prior conviction or how it pertained to his present claim relating to Bruen. Accordingly, any finding that section 24-1.1(a) is unconstitutional as applied to defendant would be - 11 -  premature.” Id.; see People v. Johnson, 2024 IL App (1st) 231155, ¶¶ 27-28 (the circumstances of the defendant’s prior felony conviction are crucial to determining what danger he may pose, and without knowing those circumstances, the court is in no position to rule on a second amendment as-applied challenge). ¶ 37 As in Burns, in the present case, because defendant did not raise his as-applied challenge in the circuit court, there is no factual record of the circumstances surrounding defendant’s AUUW conviction, nor how the facts of that conviction relate to his as-applied challenge under Bruen. At defendant’s trial, the State introduced a certified copy of defendant’s 2015 AUUW conviction, and during his testimony, defendant admitted to the 2015 AUUW conviction as well as an attempt to unlawfully possess a weapon in 2018. However, the record does not include individualized evidence relevant to the facts and circumstances surrounding defendant’s prior convictions and what impact, if any, those facts and circumstances have on the constitutionality of the application of the UPWF statute to defendant. Without such record development, review would be speculative and contrary to Harris’s insistence on a concrete factual record for as-applied claims. Harris, 2018 IL 121932, ¶¶ 39-40. ¶ 38 We agree with Boss, Burns, and Johnson that the record-development requirement is particularly relevant to as-applied second amendment claims, which are inherently fact-dependent. We decline to broaden Holman’s narrow exception, for Miller claims of juveniles sentenced to mandatory life in prison, to include as- applied challenges to UPWF convictions on the basis of a claim that the underlying felony is not dangerous. Judicial economy is not served by considering such challenges with no factual record developed in the circuit court regarding the circumstances surrounding the commission of the underlying felony and the defendant’s level of dangerousness. ¶ 39 2. Factual Record Concerning Whether the UPWF Statute Subjects Defendant to Permanent Disarmament ¶ 40 Defendant’s as-applied challenge is also based on the assertion that the UPWF statute permanently disarmed him. Defendant writes in his brief that the UPWF statute (720 ILCS 5/24-1.1(a) (West 2020)) “prohibited and criminalized” his - 12 -  ability to own or possess a firearm “for the rest of his life.” The problem with defendant’s argument, raised for the first time on appeal, is that he did not create a factual record to establish that the UPWF statute subjected him to lifetime disarmament. ¶ 41 3. Facts and Circumstances Related to Whether Defendant Applied for a FOID Card Under Section 10(c) of the FOID Card Act ¶ 42 Because the UPWF statute, which defendant is challenging as unconstitutional as applied to him, specifically excepts those who have obtained a FOID card under section 10(c) of the Act from criminal liability, an evidentiary record is required to determine any potential application of section 10(c) in defendant’s case. The plain language of section 10(c) contemplates a situation in which a convicted felon may obtain a FOID card and thus avoid liability for UPWF, and the criteria focus on the nonviolent nature of a defendant’s criminal history and the absence of other indications of a defendant’s violent nature. However, because defendant’s challenge was raised for the first time on appeal, there is no evidence in the record concerning whether defendant applied for his FOID card pursuant to section 10(c) or the result of any such application. Considering the express exception for successful applicants set forth in the UPWF statute, these facts and circumstances are integral to a consideration of whether the application of that statute to convict defendant of UPWF is constitutional. ¶ 43 4. The State’s Forfeiture of the Evidentiary Issue Before This Court ¶ 44 For the foregoing reasons, we find the appellate court erred in considering defendant’s as-applied challenge to his UPWF conviction for the first time on appeal. In so doing, we recognize the State raised defendant’s forfeiture and the need for an evidentiary hearing on defendant’s as-applied challenge before the appellate court but did not raise the issue again in this court. Of course, forfeiture is a limitation on the parties, and this court may override forfeiture considerations in the interests of achieving a just result and maintaining a sound and uniform body of precedent. People v. Dobbins, 2026 IL 131187, ¶ 41. In addition, we may affirm - 13 -  a circuit court’s judgment on any grounds that the record supports. In re Detention of Stanbridge, 2012 IL 112337, ¶ 74. Accordingly, we affirm defendant’s UPWF conviction because any finding that the UPWF statute is unconstitutional as applied to defendant in this case would be premature and is more appropriately raised in another proceeding. See Harris, 2018 IL 121932, ¶ 48. Moreover, we vacate that portion of the appellate court’s judgment that considered the merits of defendant’s as-applied constitutional claim. ¶ 45 III. CONCLUSION ¶ 46 For the foregoing reasons, we vacate that part of the appellate court’s judgment that considered the merits of defendant’s as-applied constitutional claim. We otherwise affirm the appellate court judgment and affirm defendant’s conviction for UPWF. ¶ 47 Appellate court judgment affirmed in part and vacated in part. ¶ 48 Circuit court judgment affirmed. - 14 -