People v. Lewis

• Citation: 222 Ill.Dec. 296,677 N.E.2d 830,175 Ill.2d 412
• Decision Date: 19 December 1996
• Docket Number: No. 80318,80318
• Parties: , 222 Ill.Dec. 296 The PEOPLE of the State of Illinois, Appellant, v. Kelvin LEWIS, Appellee.
• Court: Illinois Supreme Court

Page 830

677 N.E.2d 830

175 Ill.2d 412, 222 Ill.Dec. 296

The PEOPLE of the State of Illinois, Appellant, v. Kelvin LEWIS, Appellee.

No. 80318.

Supreme Court of Illinois.

Dec. 19, 1996.

Rehearing Denied March 31, 1997.

James E. Ryan, Attorney General, Springfield, and Jack O'Malley and Richard A. Devine, State's Attorneys, Chicago (Arleen C. Anderson, Assistant Attorney General, Chicago, and Renee Goldfarb, Peter D. Fischer, Susan R. Schierl, Theodore F. Burtzos, Kenneth T. McCurry and Kathryn A. Schierl, Assistant State's Attorneys, of counsel), for the People.

Rita A. Fry, Public Defender, Chicago (Lisa S. Ottenfeld, Assistant Public Defender, of counsel), for appellee.

Justice McMORROW delivered the opinion of the court:

At issue in this case is whether the statutory penalties for armed robbery (720 ILCS 5/18-2 (West 1994)) and armed violence predicated on robbery committed with a category I weapon (720 ILCS 5/33A-1 (West 1994)) are proportionate penalties pursuant to article I, section 11, of the 1970 Illinois Constitution. The circuit court, in a ruling dismissing a count of armed violence predicated on robbery committed with a category I weapon, concluded that the penalties are unconstitutionally disproportionate. The State appealed directly to this court. 134 Ill.2d R. 603. ¹ For the reasons which follow, we affirm the decision of the circuit court.

Background

Defendant, Kelvin Lewis, was charged by information in the circuit court of Cook County with one count of robbery (720 ILCS 5/18-1 (West 1994)), one count of armed violence predicated on robbery committed with a category I weapon (720 ILCS 5/33A-1 (West 1994)), and one count of armed robbery (720 ILCS 5/18-2 (West 1994)). The charging instrument alleges that on June 24, 1995, defendant displayed a handgun and took from the victim, by threat of imminent use of force, a radar detector and a compact disc player. All three counts in the information are based on this single incident.

On November 28, 1995, defendant filed a pretrial motion to dismiss the armed violence count of the information. In his motion, defendant contended that he could not be charged with armed violence predicated on robbery committed with a category I weapon, such as a handgun, because the penalty for that offense violates the proportionate penalties clause of the Illinois Constitution. That clause provides:

"All penalties shall be determined * * * according to the seriousness of the offense * * *." Ill. Const.1970, art. I, § 11.

The circuit court agreed. The circuit court noted that the substantive elements of armed violence, where predicated on robbery committed with a category I weapon, and armed robbery, are identical. Yet, armed violence committed with a category I weapon carries a mandatory minimum sentence of 15 years, while armed robbery carries only a 6-year mandatory minimum sentence. Relying on this court's decision in People v. Christy, 139 Ill.2d 172, 151 Ill.Dec. 315, 564 N.E.2d 770 (1990), the circuit court concluded that the penalties for the two offenses are unconstitutionally disproportionate and, accordingly, dismissed the armed violence count. Subsequently, the State moved to have the case removed from the call of the circuit court's docket pending the outcome of this appeal. The circuit court granted the motion and the State's appeal followed.

Analysis

We begin our analysis with the pertinent statutes. The armed violence statute provides:

" § 33A-1. Definitions.

(a) 'Armed with a dangerous weapon'. A person is considered armed with a dangerous weapon for purposes of this Article, when he or she carries on or about his or her person or is otherwise armed with a Category I, Category II, or Category III weapon.

(b) A Category I weapon is a handgun * * *." 720 ILCS 5/33A-1 (West 1994).

" § 33A-2. Armed violence--Elements of the offense. A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law." 720 ILCS 5/33A-2 (West 1994).

" § 33A-3. Sentence.

(a) Violation of Section 33A-2 with a Category I weapon is a Class X felony for which the defendant shall be sentenced to a minimum term of imprisonment of 15 years." 720 ILCS 5/33A-3 (West 1994).

The robbery statute provides:

" § 18-1. Robbery.

(a) A person commits robbery when he or she takes property, except a motor vehicle covered by Section 18-3 or 18-4, from the person or presence of another by the use of force or by threatening the imminent use of force.

(b) Sentence.

Robbery is a Class 2 felony." 720 ILCS 5/18-1 (West 1994).

The armed robbery statute provides:

" § 18-2. Armed Robbery.

(a) A person commits armed robbery when he or she violates Section 18-1 while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon.

(b) Sentence.

Armed robbery is a Class X felony." 720 ILCS 5/18-2 (West 1994).

Before this court, defendant relies upon the reasoning given by the circuit court. Defendant notes the disparity between the penalties for armed violence predicated on robbery committed with a category I weapon and armed robbery, and contends that this court's decision in Christy compels the conclusion that the penalties for the two offenses are unconstitutionally disproportionate.

In Christy, the defendant abducted two teenage boys from a campsite in the middle of the night and took them to a storage building where he held them captive for several hours. The defendant repeatedly threatened to kill his victims and, at one point, held a large steak knife to the throat of one of the boys. After trial, the defendant was convicted of one count of kidnapping and one count of armed violence predicated on kidnapping with a category I weapon, specifically, a "knife with a blade of at least 3 inches in length." Upon review, the appellate court vacated defendant's conviction and sentence for armed violence and remanded for sentencing on the offense of aggravated kidnapping.

This court affirmed the appellate court's decision. The court observed that the commission of kidnapping while armed with a "knife with a blade of at least 3 inches in length" constituted armed violence committed with a category I weapon. Under the armed violence statute as it then existed, this offense was a Class X felony, punishable by not less than 6 years and not more than 30 years in prison. However, the commission of kidnapping while armed with a "knife with a blade of at least 3 inches in length" also constituted aggravated kidnapping. This offense was only a Class 1 felony, punishable by not less that 4 years and not more than 15 years in prison. The court concluded that it was against "common sense and sound logic" for identical offenses to render two different penalties. Accordingly, the court held that the penalties for aggravated kidnapping and armed violence predicated on kidnapping with a category I weapon were unconstitutionally disproportionate. Christy, 139 Ill.2d at 181, 151 Ill.Dec. 315, 564 N.E.2d 770.

The Christy court rejected the State's argument that the penalties for the offenses at issue could be upheld on the grounds that "the ability to choose between them is a matter of 'prosecutorial discretion.' " Christy, 139 Ill.2d at 180, 151 Ill.Dec. 315, 564 N.E.2d 770. In rejecting this contention, the court noted:

"Generally, prosecutorial discretion is a valuable aspect of the criminal justice system. [Citation.] In the present case, however, prosecutorial discretion will effectively nullify the aggravated kidnapping statute, as skilled State's Attorneys will usually seek the more severe sentence and, therefore, charge defendants with armed violence rather than aggravated kidnapping. An ineffective aggravated kidnapping statute is not what the legislature intended when it enacted both the armed violence statute and aggravated kidnapping statutes." Christy, 139 Ill.2d at 180, 151 Ill.Dec. 315, 564 N.E.2d 770.

We agree with defendant that the holding of Christy governs our analysis in the case at bar. Here, we consider the relationship of three statutory offenses: robbery, armed robbery and armed violence. Robbery, a felony offense, is defined as the taking of property, except a motor vehicle, from the person or presence of another by the use of force or by threatening the imminent use of force. 720 ILCS 5/18-1 (West 1994). Armed robbery is defined as the commission of robbery while carrying or otherwise being armed with a dangerous weapon. 720 ILCS 5/18-2 (West 1994). The parties do not dispute that a handgun is a dangerous weapon for purposes of the armed robbery statute. Accordingly, the commission of robbery while armed with a handgun constitutes armed robbery, a Class X offense punishable by an unextended term sentence ranging from 6 to 30 years' imprisonment. 730 ILCS 5/5-8-1(a)(3) (West 1994).

Armed violence is defined as the commission of any felony defined by Illinois law while armed with a dangerous weapon. 720 ILCS 5/33A-2 (West 1994). Dangerous weapons are divided into three categories (720 ILCS 5/33A-1 (West 1994)) and the commission of any felony with a category I weapon, such as a handgun, is a Class X offense punishable by an unextended term sentence ranging from 15 to 30 years' imprisonment. 720 ILCS 5/33A-3(a) (West 1994). Accordingly, the commission of robbery while armed with a handgun also constitutes armed violence, an offense punishable by a mandatory minimum term of 15 years' imprisonment. Thus in this case, as in Christy, we are presented with two substantively identical offenses which, illogically, are punished with disparate penalties. Therefore, in accordance with the principles of Christy, we conclude that the circuit court was correct in finding that the penalty for armed violence predicated on robbery committed with a category I weapon violates the proportionate penalties clause.

The State does not dispute the relevance of Christy to the instant appeal but,...