People v. Brown

ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Brown, 2012 IL App (5th) 100452

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption RICHARD BROWN, Defendant-Appellant.

District & No. Fifth District

Docket No. 5-10-0452

Filed February 29, 2012

Held Although the 15-year sentencing enhancement applicable to armed

(Note: This syllabus robbery committed while armed with a firearm was held unconstitutional

constitutes no part of by the Illinois Supreme Court in Hauschild on the ground that the

the opinion of the court enhancement violated the proportionate penalties clause because armed

but has been prepared violence predicated on robbery with a category I or category II weapon

by the Reporter of contained identical elements, but carried different penalties, the

Decisions for the legislature cured the proportionate-penalties violation by eliminating the

convenience of the offense of armed violence predicated on robbery; therefore, the revived

reader.)

15-year sentencing enhancement was properly applied to defendant when

he was sentenced for armed robbery with a firearm.

Decision Under Appeal from the Circuit Court of St. Clair County, No. 09-CF-596; the

Review Hon. John Baricevic, Judge, presiding.

Judgment Affirmed.

Counsel on Michael J. Pelletier, Johannah B. Weber, and Edwin J. Anderson, all of

Appeal State Appellate Defender’s Office, of Mt. Vernon, for appellant.

Brendan F. Kelly, State’s Attorney, of Belleville (Patrick Delfino,

Stephen E. Norris, and Jennifer Camden, all of State’s Attorneys

Appellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE WELCH delivered the judgment of the court, with opinion.

Justices Goldenhersh and Chapman concurred in the judgment and

opinion.

OPINION

¶1 Following a jury trial, the defendant, Richard Brown, was found guilty of armed robbery

with a firearm in violation of section 18-2(a)(2) of the Criminal Code of 1961 (Criminal

Code) (720 ILCS 5/18-2(a)(2) (West 2008)) and not guilty of home invasion (720 ILCS 5/12-

11(a)(3) (West 2008)). The trial court sentenced him to 22 years’ imprisonment for the

armed-robbery conviction to be followed by a 3-year period of mandatory supervised release.

On appeal, the defendant argues the trial court erred by applying a 15-year sentence

enhancement to his sentence pursuant to section 18-2(b) of the Criminal Code (720 ILCS

5/18-2(b) (West 2010)) based on the use of a firearm during the commission of the robbery.

According to the defendant, the 15-year sentence enhancement set forth in section 18-2(b)

could not be applied against him because it was declared unconstitutional by the supreme

court in People v. Hauschild, 226 Ill. 2d 63, 86-87 (2007). For the reasons that follow, we

affirm.

¶2 On May 28, 2009, the defendant was charged with one count of home invasion and one

count of armed robbery while carrying a firearm for unlawfully entering Brett Worsham’s

Belleville, Illinois, residence, threatening the use of force while armed with a firearm, and

taking property belonging to Worsham. Following a two-day trial, the jury found the

defendant guilty of armed robbery with a firearm and not guilty of home invasion.

¶3 During the June 2, 2010, sentencing hearing, the State informed the trial court that the

applicable sentencing range for the defendant’s armed-robbery conviction was 21 to 45 years

pursuant to section 18-2(a)(2) of the Criminal Code (720 ILCS 5/18-2(a)(2) (West 2008))

because “[a]rmed robbery carries a fifteen-year enhancement if the offense was committed

with the use of a firearm.” Defense counsel objected to the use of the sentence enhancement

because the State failed to prove beyond a reasonable doubt that the defendant “carried [a

firearm] on or about his person.” According to defense counsel, the evidence indicated

another individual unlawfully entered Worsham’s residence with the defendant and that

individual carried the firearm. In response, the State argued as follows:

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“18-2, armed robbery statute, subsection (a), ‘A person who commits armed robbery

when he or she violates Section 18-1,’ and subparagraph (2), ‘he or she carries on or

about his or her person or is otherwise armed with a firearm.’ The ‘otherwise armed with

a firearm,’ it’s the People’s position, takes into account the accountability theory.

The jury was specifically instructed in People’s Instruction No. 20 as to the third

proposition, that the defendant or one for whose conduct he is legally responsible carried

on or about his person a firearm or was otherwise armed with a firearm at the time of the

taking.

At the time of the jury instruction conference, I indicated to the Court, and there was

no objection by defense counsel that I modified 14-06 to specifically state a firearm

rather than a dangerous weapon to encompass the enhancement and to meet the

requirements of Apprendi. Therefore, the People believe that the jury properly found the

defendant guilty of either carrying a firearm on his person or was otherwise armed

sufficient to trigger the fifteen-year enhancement under the armed robbery statute.”

¶4 Thereafter, the trial court sentenced the defendant to 22 years in prison to be followed by

a 3-year period of mandatory supervised release, a sentence that included the 15-year

sentence enhancement pursuant to section 18-2(b) of the Criminal Code (720 ILCS 5/18-2(b)

(West 2008)).

¶5 On June 30, 2010, the defendant filed a pro se motion for reduction of sentence, arguing

his sentence was excessive due to (1) his young age, (2) his ability for rehabilitation, (3) the

armed-robbery conviction being his first adult offense, and (4) no individuals being harmed

during the commission of the armed robbery. On September 2, 2010, the trial court denied

the defendant’s pro se motion for reduction of sentence, noting it previously considered the

mitigating factors mentioned in the defendant’s pro se motion during sentencing. The

defendant appeals.

¶6 The issue for this court’s review is whether the 15-year sentence enhancement for the use

of a firearm in an armed robbery was applicable to the defendant because the supreme court

in Hauschild determined the 15-year enhancement violated the proportionate-penalties clause

of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). First, we note the defendant did not

forfeit this issue by his failure to raise it in the trial court. See People v. Christy, 139 Ill. 2d

172, 176 (1990) (the constitutionality of a statutory penalty may be raised at any time).

Therefore, we will address this issue on appeal.

¶7 An issue involving the constitutionality of a statute is reviewed de novo. People v.

Sharpe, 216 Ill. 2d 481, 486-87 (2005). Additionally, the trial court’s application of a statute

is also reviewed de novo. People v. Coleman, 399 Ill. App. 3d 1150, 1157 (2010). However,

we defer to the legislature on issues of sentencing because it is more capable of fashioning

an appropriate sentence. Id.

¶8 Under section 18-2(b) of the Criminal Code (720 ILCS 5/18-2(b) (West 2008)), armed

robbery is a Class X felony “for which 15 years shall be added to the term of imprisonment

imposed by the court.” In Hauschild, 226 Ill. 2d at 86-87, the supreme court determined

armed robbery while armed with a firearm (sentencing range of 21 to 45 years’

imprisonment, which included the 15-year sentence enhancement) and armed violence

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predicated on robbery with a category I or category II weapon (sentencing range of 15 to 30

years’ imprisonment) contained identical elements but carried different penalties. Section 18-

2(a)(2) of the Criminal Code (720 ILCS 5/18-2(a)(2) (West 2000)) defined armed robbery

as follows: “A person commits armed robbery when he or she violates Section 18-1; and ***

he or she carries on or about his or her person or is otherwise armed with a firearm.” Section

18-1(a) of the Criminal Code (720 ILCS 5/18-1(a) (West 2000)) set forth the definition for

robbery and stated as follows: “A person commits robbery when he or she takes property ***

from the person or presence of another by the use of force or by threatening the imminent use

of force.” Further, section 33A-2(a) of the Criminal Code (720 ILCS 5/33A-2(a) (West

2000)) defined armed violence predicated on robbery as the offense of robbery (720 ILCS

5/18-1(a) (West 2000)) while armed with a dangerous weapon. Because the elements of

armed robbery and armed violence predicated on robbery were identical, the supreme court

determined the 15-year sentence enhancement applicable to an armed-robbery offense

violated the proportionate-penalties clause of the Illinois Constitution by making the penalty

for armed robbery more severe than the penalty for armed violence predicated on robbery.

Hauschild, 226 Ill. 2d at 86-87.

¶9 Thereafter on October 23, 2007, the legislature enacted Public Act 95-688 (Pub. Act 95-

688, § 4 (eff. Oct. 23, 2007) (2007 Ill. Legis. Serv. 6228, 6228-29 (West)); 720 ILCS 5/33A-

2(a) (West 2008)) to amend the armed-violence statute as follows:

“A person commits armed violence when, while armed with a dangerous weapon, he

commits any felony defined by Illinois Law, except first degree murder, attempted first

degree murder, intentional homicide of an unborn child, second degree murder,

involuntary manslaughter, reckless homicide, predatory criminal sexual assault of a child,

aggravated battery of a child, home invasion, or any offense that makes the possession

or use of a dangerous weapon either an element of the base offense, an aggravated or

enhanced version of the offense, or a mandatory sentencing factor that increases the

sentencing range.” (Emphasis added.)

¶ 10 Despite the enactment of Public Act 95-688, the defendant argues the 15-year sentence

enhancement in the armed-robbery statute remains unconstitutional under Hauschild because

an unconstitutional law is void ab initio. See People v. Gersch, 135 Ill. 2d 384, 390 (1990)

(a statute held unconstitutional in its entirety is void ab initio). In support of this position,

the defendant cites People v. Coleman, 399 Ill. App. 3d 1150 (2010), and People v. Blanton,

2011 IL App (4th) 080120, both Fourth District cases.

¶ 11 In Blanton, 2011 IL App (4th) 080120, ¶ 28, the Fourth District vacated the defendant’s

25-year sentence for armed robbery with a firearm, which was committed in March 2007,

because Hauschild was dispositive. Further, in Coleman, 399 Ill. App. 3d at 1159, the trial

court sentenced the defendant to 15 years’ imprisonment on his armed-violence-predicated-

on-robbery conviction pursuant to the version of the statute in effect at the time Hauschild

was decided. Because the supreme court had already determined the 15-year sentence

enhancement for armed robbery with a firearm violated the proportionate-penalties clause,

the Fourth District held the defendant’s armed-violence sentence also violated the

proportionate-penalties clause. Coleman, 399 Ill. App. 3d at 1159-60. Therefore, the court

determined the defendant’s sentence was void because the statute was “void ab initio” at the

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time of sentencing. Id. at 1160.

¶ 12 The present case is distinguishable from Blanton and Coleman because the defendant

committed the armed robbery on May 26, 2009, after the enactment of Public Act 95-688.

Public Act 95-688 fixed the proportionate-penalties violation by excluding the following

from the definition of armed violence: offenses that make the possession or use of a

dangerous weapon either (1) an element of the base offense, (2) an aggravated or enhanced

version of the offense, or (3) a mandatory sentencing factor that increases the sentencing

range. Accordingly, Public Act 95-688 effectively cured the proportionate-penalties violation

by making it impossible to generate an armed-violence conviction predicated on robbery

even though the amendment did not alter the 15-year sentence enhancement for armed

robbery committed with a firearm.

¶ 13 Additionally, the legislative history behind the implementation of the amendment

indicates the legislature intended this result when it adopted Public Act 95-688. During the

July 26, 2007, Senate proceeding where the amendment was passed, Senator Cullerton noted

a recent supreme court case held that the 15-year sentence enhancement for armed robbery

with a firearm violated the proportionate-penalties clause, and the amendment to the armed-

violence statute “avoid[ed] any further disproportionate penalty challenges to the statute that

may arise.” 95th Ill. Gen. Assem., Senate Proceedings, July 26, 2007, at 8-9 (statements of

Senator Cullerton).

¶ 14 The defendant’s argument that the armed-robbery statute is void ab initio is based on

Gersch, 135 Ill. 2d at 390, which stated that a statute declared unconstitutional in its entirety

is void ab initio. In Gersch, 135 Ill. 2d at 387-88, the trial court denied the defendant’s

request for a bench trial after the State requested a jury trial under section 115-1 of the Code

of Criminal Procedure of 1963 (Procedure Code) (Ill. Rev. Stat. 1987, ch. 38, ¶ 115-1),

which provided the State with the right to a jury in certain criminal trials. While the

defendant’s appeal was pending, the supreme court in People ex rel. Daley v. Joyce, 126 Ill.

2d 209, 222 (1988), declared section 115-1 of the Procedure Code unconstitutional because

“only a defendant has a right to a jury trial” under the Illinois Constitution. Gersch, 135 Ill.

2d at 389. Thereafter, the supreme court in Gersch, 135 Ill. 2d at 391-92, stated that the

version of section 115-1 in effect at the time of Joyce was void ab initio and would be

interpreted as if that version never existed.

¶ 15 However, the State argues that the supreme court in Hauschild did not rule that the 15-

year sentence enhancement was void ab initio. Specifically, the State notes Hauschild

involved an issue of whether a comparison of armed robbery while armed with a firearm and

armed violence predicated on robbery was permissible because the supreme court previously

determined in People v. Lewis, 175 Ill. 2d 412, 415-24 (1996), that the sentencing scheme

for armed violence predicated on armed robbery was unconstitutional as penalizing identical

conduct more severely than the armed-robbery statute. The appellate court in People v.

Hauschild, 364 Ill. App. 3d 202, 217 (2006), determined the offense of armed violence

“ceased to exist” after Lewis. Hauschild, 226 Ill. 2d at 84. The supreme court determined the

enactment of Public Act 91-404 (Pub. Act 91-404, § 5 (eff. Jan. 1, 2000) (codified at 720

ILCS 5/33A-1(b)(1) (West 2000))), which added the 15-year sentence enhancement to armed

robbery, “ ‘revived’ ” the offense of armed violence predicated on robbery held

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unconstitutional by Lewis. Hauschild, 226 Ill. 2d at 84. Accordingly, the court determined

“the holding in Lewis cannot be used as a basis to preclude comparison of the ‘revived’

armed violence offense to armed robbery while armed with a firearm for purposes of

proportionality review.” Hauschild, 226 Ill. 2d at 85.

¶ 16 Similarly, Public Act 95-688 “revived” the sentencing scheme in the armed-robbery

statute by fixing the proportionate-penalties violation. As previously stated, it is no longer

possible for armed violence to be predicated on robbery under section 33A-2(a) of the

Criminal Code (720 ILCS 5/33A-2(a) (West 2008)). The 15-year sentence enhancement

under the armed-robbery statute violated the proportionate-penalties clause because armed

robbery contained identical elements but carried a more severe penalty than the offense of

armed violence predicated on robbery. The legislature cured this proportionate-penalties

violation by removing the impediment to the sentence enhancement’s enforcement, i.e., the

offense of armed violence predicated on robbery.

¶ 17 Accordingly, we determine that the legislature revived the 15-year sentencing

enhancement in the armed-robbery statute by enacting Public Act 95-688, and therefore, the

trial court correctly applied the sentence enhancement against the defendant at sentencing.

¶ 18 Affirmed.

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