US ex rel. Vanskike v. O'LEARY

• Decision Date: 16 June 1989
• Docket Number: No. 88 C 9682.,88 C 9682.
• Citation: 719 F. Supp. 659
• Parties: UNITED STATES of America ex rel. Daniel VANSKIKE, Petitioner, v. Michael O'LEARY, Michael P. Lane, and Neil F. Hartigan, Respondents.
• Court: U.S. District Court — Northern District of Illinois

719 F. Supp. 659

UNITED STATES of America ex rel. Daniel VANSKIKE, Petitioner, v. Michael O'LEARY, Michael P. Lane, and Neil F. Hartigan, Respondents.

No. 88 C 9682.

United States District Court, N.D. Illinois, E.D.

June 16, 1989.

Standish E. Willis, Federal Defender Program, Chicago, Ill., for respondents.

Michael J. Singer, Asst. Atty. Gen., Chicago, Ill., for petitioner.

MEMORANDUM OPINION AND ORDER

HART, District Judge.

Daniel Vanskike has petitioned this court for a writ of habeas corpus claiming that the Circuit Court of Randolph County, Illinois convicted him of a crime that does not exist under the laws of Illinois. The state has moved to dismiss the petition arguing (1) Vanskike has not exhausted his state court remedies, (2) his claim is not a constitutional claim cognizable in a federal habeas corpus petition, and (3) Vanskike was convicted of a crime existing under the laws of Illinois. If correct, any of these grounds would be a sufficient basis for denying relief. Although exhaustion should usually be resolved before considering the merits of a habeas petition and although the second argument might also logically — or procedurally — precede the third argument, the first two arguments can be better understood if the third argument — the question of whether Vanskike was convicted of armed violence as defined by Illinois statute — is resolved.

I. Elements of Armed Violence

On April 20, 1978, Vanskike, then incarcerated at Menard Correctional Center, stabbed another inmate in the chest with a knife made of sharpened wire. On July 12, 1978, a three-count amended information was filed charging the following offenses.

COUNT I

AGGRAVATED BATTERY in that the said defendant, in committing a Battery, in violation of Illinois Revised Statutes, Chapter 38, Section 12-3, without legal justification and while armed with a deadly weapon, a homemade knife, intentionally caused bodily harm to Donald Tharp, in that he stabbed Donald Tharp in the chest in violation of Illinois Revised Statutes, 1977, ch. 38, sec. 12-4(b)(1).

COUNT II

ARMED VIOLENCE in that the said defendant, while armed with a dangerous weapon, a homemade knife, performed acts prohibited by Illinois Revised Statutes, Chapter 38, Section 12-4(b)(1) in that he intentionally and without legal justification stabbed Donald Tharp in the chest, thereby causing bodily harm to Donald Tharp in violation of Illinois Revised Statutes, 1977, ch. 38, sec. 33 A-2.

COUNT III

ATTEMPT (MURDER) in that the said defendant, with the intent to commit the offense of Murder, in violation of Illinois Revised Statutes, Chapter 38, Section 9-1(a)(2), performed a substantial step toward the commission of that offense in that he without lawful justification stabbed Donald Tharp in the chest with a homemade knife knowing such act created a strong probability of death to Donald Tharp in violation of Illinois Revised Statutes, 1977, ch. 38, sec. 8-4(a).

R. I 11C-12C.¹

At the time the relevant Illinois statutes provided:

Ill.Rev.Stat. (1977), ch. 38, ¶ 12-3(a)(1) — Battery

(a) A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual....

Ill.Rev.Stat. (1977), ch. 38, ¶ 12-4(a) — Aggravated Battery

(a) A person, who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery.

Ill.Rev.Stat. (1977), ch. 38, ¶ 12-4(b)(1)—Aggravated Battery²

(b) A person who, in committing a battery ...:

(1) Uses a deadly weapon ... commits aggravated battery.

Ill.Rev.Stat. (1978), ch. 38, ¶ 33A-2 — Armed Violence³

A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois law.

On the state's motion, the attempt murder charge was dismissed the day of trial. With respect to armed violence and aggravated battery, the jury was instructed as follows:

A person commits armed violence when, while armed with a dangerous weapon, he intentionally commits aggravated battery.

To sustain the charge of armed violence, the State must prove the following propositions:

First: That the defendant knowingly or intentionally caused bodily harm to Donald Tharp; and

Second: That the defendant used a deadly weapon; and

Third: That the defendant was not justified in using the force he used.

* * * * * *

To sustain the charge of aggravated battery, the State must prove the following propositions:

First: That the defendant knowingly or intentionally caused bodily harm to Donald Tharp; and

Second: That the defendant used a deadly weapon; and

Third: That the defendant was not justified in using the force he used.

* * * * * *

A person commits the crime of battery who by any means knowingly or intentionally causes bodily harm to another person.

A person commits the crime of aggravated battery who, in committing a battery uses a deadly weapon.

R. I 41C-43C, 45C-46C. The jurors may also have been shown Counts I and II of the information since it is referred to in the instructions. See R. I 38C.

On August 29, 1978, the jury found Vanskike guilty of both aggravated battery and armed violence. The aggravated battery conviction was vacated on the state's motion. See Exh. B 3. On October 19, 1978, Vanskike was sentenced to twenty years' imprisonment to run consecutive to the 80-to-135-year sentence he was already serving on unrelated charges. Vanskike's conviction was affirmed on direct appeal, People v. Vanskike, 79 Ill.App.3d 1204, 38 Ill.Dec. 126, 403 N.E.2d 141 (5th Dist.1980), and leave to appeal was denied on May 29, 1980. On June 4, 1981, the Illinois Supreme Court held in another case that, under § 33A-2, use of a weapon could not result in a double enhancement by enhancing battery into aggravated battery and also enhancing aggravated battery into armed violence. People v. Haron, 85 Ill.2d 261, 52 Ill.Dec. 625, 632, 422 N.E.2d 627, 634 (1981). As is more fully set forth below, Vanskike has been unsuccessful in finding a forum in the state court for vacating his armed violence conviction.

The parties agree that Haron was decided solely on the basis of statutory construction. The state does not dispute that, given the proper forum, Haron is the law applicable to Vanskike's 1978 conviction. The state also agrees that, under Illinois law, an armed violence conviction can never be based on the predicate offense of aggravated battery with a deadly weapon in violation of § 12-4(b)(1). The state, however, cites People v. Harris, 146 Ill.App.3d 632, 100 Ill.Dec. 297, 300, 497 N.E.2d 177, 180 (2d Dist.1986), for the proposition that armed violence can be based on the predicate offense of § 12-4(a) aggravated battery. Section 12-4(a) converts battery into aggravated battery as a result of great bodily harm; use of a weapon is not a necessary element of the offense. Thus, enhancing such an offense into armed violence because a weapon was used would not be enhancement twice based on use of a weapon. Other Illinois appellate courts have reached the same conclusion as in Harris, see People v. Carrillo, 148 Ill.App.3d 11, 101 Ill.Dec. 677, 678, 499 N.E.2d 44, 45 (3d Dist.1986), leave to appeal denied, 113 Ill.2d 578, 106 Ill.Dec. 50, 505 N.E.2d 356 (1987) (collecting cases), as has the Illinois Supreme Court, but without discussion. See People v. Donaldson, 91 Ill.2d 164, 61 Ill.Dec. 780, 783, 435 N.E.2d 477, 480 (1982).

Vanskike, though, was not charged with § 12-4(a) aggravated battery based on great bodily harm; the information does not use the words "great bodily harm" nor specify the injury suffered and the jury was not instructed that it had to find great bodily harm. The state argues, however, that the evidence clearly shows great bodily harm and therefore Vanskike's armed violence conviction can be upheld based on a predicate offense of § 12-4(a) aggravated battery. Illinois law, however, is clearly to the contrary. People v. Hanson, 138 Ill. App.3d 530, 92 Ill.Dec. 901, 904-05, 485 N.E.2d 1144, 1147-48 (5th Dist.1985); People v. Bragg, 126 Ill.App.3d 826, 81 Ill.Dec. 882, 888-89, 467 N.E.2d 1004, 1010-11 (1st Dist.1984); People v. Thompson, 114 Ill. App.3d 662, 70 Ill.Dec. 285, 289, 449 N.E.2d 159, 163 (1st Dist.1983); People v. Gresham, 104 Ill.App.3d 81, 59 Ill.Dec. 868, 871-72, 432 N.E.2d 654, 657-58 (4th Dist. 1982). See also People v. Van Winkle, 88 Ill.2d 220, 58 Ill.Dec. 736, 737, 430 N.E.2d 987, 988 (1981). If an information alleges § 12-4(b)(1) aggravated battery or aggravated battery based on use of a deadly weapon, a conviction for armed violence based on that aggravated battery allegation cannot stand. This is true even if the information refers to § 12-4(b)(1) aggravated battery causing great bodily harm. See Hanson, supra. This is also true even if both § 12-4(a) and § 12-4(b)(1) aggravated battery are charged and instructed, but the jury is not required to distinguish on which of those charges it based its verdict of armed violence. See Thompson, supra; Bragg, supra. In Vanskike's case, there was no reference to § 12-4(a) nor to great bodily harm. Clearly, Vanskike's armed violence conviction is contrary to Illinois law.

This disposes of the state's argument as to whether Vanskike was convicted of a crime recognized by Illinois law. The implications of the state's argument, however, should be made clear before turning to the next issue. The state's argument principally focuses on the information. However, the defect that existed in the information also existed in the jury instructions. The jury was never instructed that it had to find great bodily harm in order to find Vanskike guilty of armed violence. Though not using this terminology, the state is essentially arguing that it was harmless error to fail to charge or instruct the jury that it had to find beyond a reasonable doubt the necessary element of great bodily harm.

II. Exhaustion

On direct appeal to the ...