People v. Rothe , 2024 IL 129906 ( 2024 )

2024 IL 129906IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 129906)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
JOSEPH ROTHE, Appellant.
Opinion filed November 21, 2024.
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Neville, Overstreet, Holder White, Rochford,
and O’Brien concurred in the judgment and opinion.
OPINION
¶1 The defendant, Joseph Rothe, was convicted of armed robbery with a dangerous
weapon other than a firearm and sentenced to life imprisonment. Rothe
subsequently filed a pro se petition for relief from judgment pursuant to section 2-
1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2016)). In
his petition, Rothe argued that his conviction violated the proportionate penalties
clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) because the offense
of armed robbery with a weapon other than a firearm and armed violence with a
Category III weapon contain identical elements but the penalty for the armed
robbery offense is greater. The Madison County circuit court dismissed Rothe’s
petition as untimely.
¶2 The appellate court affirmed the circuit court’s dismissal of Rothe’s petition,
but on other grounds. 2023 IL App (5th) 220048-U. The appellate court first held
that the circuit court erred in ruling that the petition was untimely because Rothe’s
constitutional challenge could be raised at any time. Id. ¶ 10. The appellate court
then rejected Rothe’s claim on the merits, holding that the offenses of armed
robbery with a dangerous weapon other than a firearm and armed violence with a
Category III weapon do not contain identical elements because they have different
definitions for a “dangerous weapon.” Id. ¶ 17. For the following reasons, we affirm
the judgment of the appellate court.
¶3 BACKGROUND
¶4 On June 6, 2005, at approximately 12:40 a.m., Shawn Woodruff was leaving a
bar in Edwardsville when Rothe approached him and demanded money. Rothe then
struck Woodruff in the face with a pipe wrench, breaking his jaw.
¶5 Rothe was subsequently arrested and convicted of armed robbery with a
dangerous weapon other than a firearm, which is punishable as a Class X offense.
Because this was his third Class X conviction, the trial court sentenced Rothe to
life imprisonment as a habitual criminal pursuant to section 33B-1 of the Criminal
Code of 1961 (720 ILCS 5/33B-1 (West 2006) (now codified at 730 ILCS 5/5-4.5-
95(a))). Rothe’s conviction and sentence were affirmed on direct appeal. People v.
Rothe, 389 Ill. App. 3d 1166 (2009) (table) (unpublished order under Illinois
Supreme Court Rule 23).
¶6 In 2010, Rothe filed a pro se postconviction petition, which was ultimately
denied. That judgment was affirmed on appeal. People v. Rothe, 2014 IL App (5th)
120552-U.
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¶7 On October 31, 2016, Rothe filed a pro se petition for relief from judgment
pursuant to section 2-1401 of the Code, which is the subject of this appeal. Rothe’s
petition argued that his conviction for armed robbery with a dangerous weapon
other than a firearm violates the proportionate penalties clause of the Illinois
Constitution pursuant to the identical elements test. Specifically, Rothe argued that
the elements of armed robbery are the same elements as armed violence predicated
on a robbery with a Category III weapon. Yet, the armed violence offense is only a
Class 2 felony and therefore punishable by a lesser sentence of three to seven years’
imprisonment (730 ILCS 5/5-8-1(a)(5) (West 2006)). Rothe’s petition maintained
that, because the two offenses are identical but armed robbery carries a greater
sentence, the penalty for armed robbery is disproportionately harsh and so he should
be resentenced under the armed violence statute. The trial court dismissed Rothe’s
section 2-1401 petition as untimely.
¶8 On appeal, the appellate court first held that Rothe’s section 2-1401 petition
was timely even though it was filed more than two years after his conviction and
sentence, because “voidness challenges based on the unconstitutionality of a
criminal statute under the proportionate penalties clause may be raised at any time.”
2023 IL App (5th) 220048-U, ¶ 10. The appellate court therefore addressed the
merits of Rothe’s petition. Id.¶9 In analyzing the merits of Rothe’s argument, the appellate court was guided by
People v. Hernandez, 2016 IL 118672, ¶ 14, in which this court determined that the
elements of armed robbery with a dangerous weapon are not identical to the
elements of armed violence with a Category III weapon. The appellate court noted
that this court had so ruled because “dangerous weapons” under the armed robbery
statute are defined using the common-law definition of that term, whereas Category
III weapons under the armed violence statute are defined as one of a limited list of
per se weapons. 2023 IL App (5th) 220048-U, ¶ 14. The appellate court explained
that the weapon used in Hernandez was tin snips, 1 which qualified under the
common-law definition of dangerous weapons applicable to armed robbery but was
not one of the Category III dangerous weapons defined by the armed violence
statute. Id. ¶ 15. “Consequently, the court [in Hernandez] determined that the
common-law definition of dangerous weapon for the purposes of the armed robbery
1
Tin snips are a tool that resemble “ ‘big shears.’ ” Hernandez, 2016 IL 118672, ¶ 4.
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statute was broader than the definition of dangerous weapon in the armed violence
statute.” Id.¶ 10 Applying Hernandez to this case, the appellate court concluded that the offense
of armed robbery with a dangerous weapon other than a firearm does not violate
the proportionate penalties clause under the identical elements test because the
armed robbery statute’s broad class of dangerous weapons is distinct from the
specific list of Category III weapons identified in the armed violence statute. Id.
¶ 17. The appellate court therefore affirmed the trial court’s denial of Rothe’s
section 2-1401 petition. Id.
¶ 11 This court granted Rothe’s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff.
Oct. 1, 2020).
¶ 12 ANALYSIS
¶ 13 At issue is whether Rothe’s Class X sentence for armed robbery with a
dangerous weapon other than a firearm violates the proportionate penalties clause
of the Illinois Constitution. Ill. Const. 1970, art. I, § 11. The proportionate penalties
clause provides that “[a]ll penalties shall be determined both according to the
seriousness of the offense and with the objective of restoring the offender to useful
citizenship.” Id. The proportionate penalties clause is violated when the penalty for
one offense is greater than the penalty for another offense with identical elements.
People v. Johanson, 2024 IL 129425, ¶ 10 (citing People v. Ligon, 2016 IL 118023,
¶ 10). Under the identical elements test, if two different offenses contain identical
elements but different penalties, the penalties are deemed unconstitutionally
disproportionate, and the offense with the greater penalty cannot stand. Id. ¶ 11
(quoting People v. Williams, 2015 IL 117470, ¶ 10); see People v. Sharpe, 216 Ill.
2d 481, 504 (2005). The identical elements test “compares the elements of the two
offenses to determine if the offenses are the same.” Johanson, 2024 IL 129425,
¶ 11. It is an objective test and therefore does not consider the offenses as applied
to an individual defendant. Williams, 2015 IL 117470, ¶ 19. Whether a statute
violates the proportionate penalties clause under the identical elements test is a
question of law, which we review de novo. Id. ¶ 8.
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¶ 14 Our analysis in this case requires us to compare the elements of the offenses of
armed robbery with a dangerous weapon other than a firearm and the elements of
armed violence with a Category III weapon, to determine if they contain identical
elements. Looking first to the offense of armed robbery with a dangerous weapon
other than a firearm, a person commits that offense when he commits robbery and
carries on or about his person or is otherwise armed with a dangerous weapon other
than a firearm. 720 ILCS 5/33A-2(a) (West 2006). The armed robbery statute does
not provide a definition of “dangerous weapon,” and thus the definition is derived
from common law. Hernandez, 2016 IL 118672, ¶ 12. What constitutes a
“dangerous weapon” under the armed robbery statute is a question of fact and
includes any object sufficiently susceptible to use in a manner likely to cause
serious injury. Id.; Ligon, 2016 IL 118023, ¶ 21; see People v. Skelton, 83 Ill. 2d
58, 66 (1980) (“many objects, including guns, can be dangerous and cause serious
injury, even when used in a fashion for which they were not intended”). In other
words, the definition of “dangerous weapon” under the armed robbery statute
encompasses objects that are weapons per se as well as objects that may become
weapons when used in a dangerous manner. Hernandez, 2016 IL 118672, ¶ 12;
People v. Ross, 229 Ill. 2d 255, 275 (2008).
¶ 15 With respect to armed violence, a person commits that offense when, while
armed with a dangerous weapon, he commits any felony and carries about his
person or is otherwise armed with a Category I, Category II, or Category III
weapon. 720 ILCS 5/33A-1(a), (c)(1) (West 2006). A Category III weapon, in turn,
is defined as “a bludgeon, black-jack, slungshot, sand-bag, sand-club, metal
knuckles, billy, or other dangerous weapon of like character.” Id. § 33A-1(c)(3).
“Category III dangerous weapons for purposes of the armed violence statute are
defined by the statute and are therefore limited to the weapons identified by the
statute.” Hernandez, 2016 IL 118672, ¶ 13 (citing Ligon, 2016 IL 118023, ¶ 23).
¶ 16 In this case, Rothe asserts that, because a pipe wrench may be used to bludgeon
another person, it is “of like character” to a bludgeon and therefore it is a Category
III weapon. Thus, according to Rothe, the offenses of armed robbery with a
dangerous weapon other than a firearm and armed violence with a Category III
weapon have identical elements. We disagree.
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¶ 17 In People v. Davis, 199 Ill. 2d 130, 141 (2002), this court determined that a
BB/pellet gun is not a bludgeon or “ ‘of like character’ ” to one because it is not
specifically listed as a Category III weapon in the armed violence statute. In so
holding, we explained that, under the doctrine of ejusdem generis, “when a statutory
clause specifically describes several classes of persons or things and then includes
‘other persons or things,’ the word ‘other’ is interpreted as meaning ‘other such
like.’ ” Id. at 138. This court then observed that, although a BB/pellet gun might be
used to bludgeon another person, it is not, in fact, an actual bludgeon. Id. at 141.
Thus, a BB/pellet gun could not be “ ‘of like character’ ” to bludgeon-type weapons
for purposes of the statute. Id.¶ 18 We reiterate now that the phrase “or other dangerous weapon of like character”
in the armed violence statute does not mean any item that can be used to bludgeon
another person. Under the doctrine of ejusdem generis, the phrase “or other
dangerous weapon of like character” at the end of the list of weapons in the statute
means per se weapons that resemble the weapons listed. See West Bend Mutual
Insurance Co. v. Krishna Schaumburg Tan, Inc., 2021 IL 125978, ¶ 57 (“ ‘where
general words follow an enumeration of persons or things, by words of a particular
and specific meaning, such general words are *** to be held as applying only to
persons or things of the same general kind or class as those specifically
mentioned’ ” (quoting Black’s Law Dictionary 517 (6th ed. 1990))). The phrase “or
other dangerous weapon of like character” does not mean that courts should
conduct an item-by-item analysis to determine if the item can be used in the manner
of a bludgeon or another Category III weapon; rather, it means a per se weapon that
is akin to one of the identified Category III weapons. Stated another way,
“bludgeon” as written in the statute refers to a noun, not a verb. Simply because an
instrument can be used to bludgeon another person does not make it a “bludgeon”
for purposes of the armed violence statute.
¶ 19 Rothe cites several appellate court cases that did engage in an item-by-item
analysis and ultimately determined that everyday items that can be used to bludgeon
a person qualify as a Category III weapon: People v. Jones, 2017 IL App (1st)
161344-U, ¶¶ 21-22 (tire iron qualified as a Category III bludgeon-type weapon);
People v. Cummings, 2016 IL App (1st) 143948-U, ¶¶ 29-30 (baseball bat qualified
as a bludgeon); and People v. Gonzales, 2014 IL App (1st) 120710-U, ¶ 18 (crow
bar included in term “bludgeon”). These judgments cannot be reconciled with
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Davis and Hernandez and our analysis discussed supra. To the extent that these
cases hold that an everyday item that can be used to bludgeon a person constitutes
a Category III weapon, and therefore can be defined as a bludgeon within the
meaning of the statute, they are overruled. 2
¶ 20 We note that this reasoning aligns with the purpose of the armed violence
statute. The statute was enacted in 1967 because the General Assembly was
concerned with the possession of weapons during the commission of felonies.
Davis, 199 Ill. 2d at 139. The armed violence statute was adopted as a means to
discourage those contemplating committing a felony from carrying a dangerous
weapon during the act. Id. The armed violence statute is not directed at everyday
objects that might be used in a dangerous manner but at actual weapons, per se. If
we were to read the armed violence statute the way Rothe urges us to, every object
of moderate weight could be considered a weapon, which was not the intention of
the general assembly and is not the meaning of the statute. “[T]he specific intent of
the legislature in creating the armed violence statute would be defeated if objects
other than those actual weapons defined and listed therein were considered to be
‘dangerous weapons’ within the statute’s three categories.” Ligon, 2016 IL 118023,
¶ 26.
¶ 21 In short, the definition of “dangerous weapon” under the armed robbery statute
is broader than the defined list of Category III weapons contained in the armed
violence statute. Id. ¶ 27. For purposes of the armed robbery statute, dangerous
weapons include not only objects that are weapons per se but also objects that can
be used in a dangerous manner. In contrast, the definition of “dangerous weapon”
under Category III of the armed violence statute is limited to the enumerated list of
per se weapons provided in the statute or those of like character. See Hernandez,
2016 IL 118672, ¶ 16. Consequently, the two statutes do not contain the same
definition of “dangerous weapon.” Rothe’s claim that his armed robbery conviction
2
Additionally, Rothe’s cited cases are all unpublished Rule 23 orders from before 2021. Rule
23(e) allows the citation of unpublished Rule 23 orders “for persuasive purposes” only when filed
on or after January 1, 2021. Ill. S. Ct. R. 23(e) (eff. Feb. 1, 2023). Prior to 2021, Rule 23 provided
that nonprecedential orders under Rule 23(c) “may not be cited by any party except to support
contentions of double jeopardy, res judicata, collateral estoppel or law of the case,” and Rothe’s
citation of these cases is thus improper. See Ill. S. Ct. R. 23(e) (eff. Apr. 1, 2018).
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violates the proportionate penalties clause based on the identical elements test is
therefore without merit.
¶ 22 Rothe nonetheless cites further cases in support: People v. Lewis, 175 Ill. 2d
412 (1996), People v. Hauschild, 226 Ill. 2d 63 (2007), and People v. Clemons,
2012 IL 107821. In Lewis, this court found that the commission of a robbery while
armed with a handgun constitutes both armed robbery and armed violence
predicated on robbery committed with a Category I weapon, making them identical
offenses punished by disparate penalties. Lewis, 175 Ill. 2d at 418. As such, the
penalty for armed violence predicated on robbery committed with a Category I
weapon violates the proportionate penalties clause. Id. In Hauschild, this court held
the elements of armed robbery while armed with a firearm and armed violence
predicated on robbery with a Category I or Category II weapon are identical but
that armed robbery carries a greater penalty and accordingly violates the
proportionate penalties clause. Hauschild, 226 Ill. 2d at 86-87. And in Clemons,
this court reaffirmed that Hauschild remains good law, confirming that the elements
of armed robbery while armed with a firearm and armed violence predicated on
robbery with a Category I or Category II weapon are identical offenses, warranting
identical sentences. Clemons, 2012 IL 107821, ¶¶ 22, 26.
¶ 23 However, Rothe’s reliance on the foregoing decisions is misplaced. None of
those decisions compared the offense of armed robbery with the offense of armed
violence predicated on a robbery with a Category III weapon. Instead, these cases
all involved a firearm and considered armed robbery in relation to armed violence
predicated on robbery with a Category I or II weapon.
¶ 24 In fact, in Ligon this court explained that “nothing contained in this court’s
decisions in Clemons or Hauschild precludes” the conclusion that “an object,
regardless of how it is used, cannot be considered a dangerous weapon for purposes
of the armed violence statute unless it is included in the three categories of weapons
set forth in that statute.” Ligon, 2016 IL 118023, ¶ 27. Both cases “dealt with the
offense of armed robbery with a firearm, and firearms are included in the definition
of Category I and Category II weapons under the armed violence statute,” which is
irrelevant when analyzing armed violence predicated on a robbery with a dangerous
weapon, other than a firearm. Id. Thus, Lewis, Hauschild, and Clemons have no
relevance to the analysis of this case.
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¶ 25 Finally, Rothe argues that, had he committed the offense with a Category III
weapon, such as a bludgeon and not a pipe wrench, he would have been convicted
of armed violence and sentenced to three to seven years instead of life in prison.
Rothe asserts there is an inherent unfairness about this disparity.
¶ 26 Our analysis here requires us to apply the statutes at issue as they were written
by the legislature. “The responsibility for the justice or wisdom of legislation rests
upon the legislature.” People v. Mayfield, 2023 IL 128092, ¶ 27 (citing Henrich v.
Libertyville High School, 186 Ill. 2d 381, 394 (1998)). We cannot rewrite the
statutory language to reach Rothe’s desired result as he invites us to do.
¶ 27 Since we have determined that armed robbery and armed violence predicated
on robbery with a Category III weapon are not identical offenses and that there is
no violation of the proportionate penalties clause, we affirm the appellate court’s
judgment dismissing Rothe’s section 2-1401 petition.
¶ 28 CONCLUSION
¶ 29 For the foregoing reasons, we affirm the judgment of the appellate court, which
affirmed the dismissal of Rothe’s section 2-1401 petition.
¶ 30 Judgments affirmed.
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