People v. Lucas ( 2007 )

No. 3-05-0757
Filed March 29, 2007.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2007
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 13th Judicial Circuit,
) Bureau County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 05-CF-31
)
ROBERT T. LUCAS, ) Honorable
) Scott A. Madson,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
PRESIDING JUSTICE LYTTON delivered the Opinion of the court:
_________________________________________________________________
Defendant Robert T. Lucas was found guilty of driving while
his license was revoked (DWLR) (625 ILCS 5/6-303(a), (d) (West
2004)), unlawful possession of a weapon by a felon (720 ILCS 5/24-
1.1(a) (West 2004)) and armed violence (720 ILCS 5/33A-2(a) (West
2004)). The trial court sentenced him to 30 years in prison. On
appeal, defendant argues that his conviction for armed violence
should be vacated because (1) a conviction for enhanced DWLR cannot
serve as a predicate felony for armed violence and (2) if enhanced
DWLR can be used as a predicate felony, it must be proven to the
jury beyond a reasonable doubt. Defendant also claims that his
sentence should be vacated because it is (1) unconstitutional, (2)
an abuse of the court’s discretion and (3) violates one-act, one-
crime principles. We affirm.
Defendant was charged by information with DWLR, unlawful use
of a weapon by a felon and armed violence. The indictment provided
that defendant had a previous conviction for DWLR and that the
prior revocation was based on a conviction for driving under the
influence (DUI) (see 625 ILCS 5/11-501 (West 2004)). The
indictment further alleged that defendant, while armed with a
switchblade knife, committed the offense of driving while his
license was revoked.
At trial, Officer Gary Becket testified that on May 1, 2005,
he was on patrol near downtown De Pue. At approximately 12:30
a.m., he observed defendant’s vehicle cross the center line two
times. Becket initiated his emergency lights and attempted to stop
defendant’s vehicle. Defendant continued driving and pulled into
the driveway of a residence. He then exited the vehicle and
started running toward the house. Becket yelled at defendant to
stop. Defendant ran around the side of the house and disappeared
inside.
Becket called for backup before attempting to remove defendant
from the house. When other officers arrived, they entered the home
and ordered defendant to come out of a locked bathroom. The
officers heard a toilet flush, and then defendant emerged from the
bathroom. After defendant was handcuffed, he asked for his
2
lighter. The officers searched the bathroom and found defendant’s
wallet, some cash, and a cigarette lighter in a pile on the sink.
The lighter contained a spring-loaded switchblade knife. Both
residents of the apartment testified that they had never seen the
lighter before that night.
The State then introduced a certified record indicating that
defendant’s drivers’ license was revoked on the date of his arrest.
Following closing arguments, the jury returned a verdict of guilty
on all three counts.
At sentencing, the trial court considered the presentencing
investigation report. Defendant was forty-one and had been
convicted of numerous offenses between 1981 and 1996, including
carrying an uncased weapon, DUI, three felony convictions for
possession of a controlled substance, resisting arrest, reckless
driving, attempting to elude a police officer, leaving the scene of
an accident, and theft. In 1997, defendant was charged with
unlawful use of a weapon by a felon, aggravated battery of a peace
officer, armed violence, DUI, reckless driving and aggravated
fleeing from a police officer. Defendant was sentenced to a 12-
year term and was released on parole in September 2002. In July of
2003, while still on parole, he was convicted of resisting a peace
officer and domestic battery. He was returned to prison and was
again released on parole in September of 2003. He was later found
guilty of illegal transportation of alcohol and was on probation
3
when he was arrested for this offense.
Becket testified that upon arrest, defendant was slurring his
speech and appeared to be impaired. He blew 0.00 on a Breathalyzer
test. He refused to take a urine test. He also had $1,279 in cash
when he was arrested. Jail Officer Jeremy Roush testified that
after defendant’s arrest, defendant told him that if he could get
close enough to State’s Attorney Patrick Herrmann, he would snap
Herrmann’s neck.
Officer Smith testified regarding a 1997 incident that lead to
defendant’s conviction for aggravated battery of an officer. Smith
had stopped defendant for a traffic violation. During the stop,
defendant leaned forward. Smith saw a handgun tucked in the back
of defendant’s waistband. Smith attempted to grab the gun.
Defendant leaned back, trapped Smith’s arm, and proceeded to drive
away with Smith attached to the car. Smith was drug several feet
and then released. Defendant was captured 24 miles later. During
the chase, officers believed defendant was shooting at them. After
the chase, police found a loaded handgun and several bags of drugs
in defendant’s vehicle. They also found numerous bags of cocaine
strewn along the chase route. Defendant was convicted of armed
violence, aggravated battery of a police officer, unlawful use of
a weapon by a felon, driving under the influence, aggravated
fleeing and eluding, and reckless driving.
In mitigation, several letters were submitted by defendant’s
4
friends, family and church members. Defendant had obtained his GED
and had a ten-year-old son. A local employer testified that
defendant had done some work for him in the past and was able to
complete the job as requested.
During arguments, the State presented a certified record which
indicated that defendant’s driver’s license was revoked following
a DUI conviction in 1983. Defendant was convicted of DWLR in 1987.
His license was reinstated. It was again revoked in 1997 and was
still revoked as of May 1, 2005.
The trial judge found that defendant had committed a Class 4
felony of DWLR. He sentenced defendant to concurrent terms of 30
years for armed violence and 5 years for unlawful use of a weapon
by a felon.
ANALYSIS
I. Predicate Felony
Defendant contends that his conviction for armed violence must
be vacated because a DWLR conviction, which has been increased to
a Class 4 felony based on a prior conviction for DWLR, cannot be
used as a predicate felony for an armed violence conviction. He
claims that enhancement of DWLR from a misdemeanor to a felony is
for sentencing purposes only and not as a predicate felony for an
armed violence charge.
A person commits armed violence when, "while armed with a
dangerous weapon, he commits any felony defined by Illinois Law,
5
except first degree murder, attempted first degree murder,
intentional homicide of an unborn child, predatory criminal sexual
assault of a child, aggravated criminal sexual assault, aggravated
kidnaping, aggravated battery of a child, home invasion, armed
robbery, or aggravated vehicular hijacking." 720 ILCS 5/33A-2(a)
(West 2004). In addition to those felonies that have been exempted
by the legislature, the Illinois supreme court, under certain
circumstances, has limited the type of felonies contemplated by the
"any felony" language of the armed violence statute. For example,
the offenses of voluntary and involuntary manslaughter cannot serve
as predicate felonies for an armed violence conviction because the
legislature did not intend for the statute to apply to conduct
that is not a deliberate or deterrable offense. People v. Alejos,
97 Ill. 2d 502 (1983); People v. Fernetti, 104 Ill. 2d 19 (1984).
However, if the decision to use a weapon is not forced upon a
defendant or is not the result of a spontaneous decision, then the
defendant’s conduct can be deterred and the purpose of the armed
violence statute is satisfied. People v. Becker, 315 Ill. App. 3d
980 (2000).
Defendant’s DWLR charge, which served as the predicate felony
for the armed violence conviction, was for a violation of the
Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/1-101 et seq.
(West 2004)). The purpose of the DWLR statute is to punish those
people who drive a motor vehicle at a time when their license is
6
suspended or revoked. The statute provides that "[a]ny person who
drives or is in actual physical control of a motor vehicle on any
highway of this State at a time when such person’s driver’s license
permit *** is revoked *** shall be guilty of a Class A
misdemeanor." 625 ILCS 5/6-303(a) (West 2002). The statute
further states that "[a]ny person convicted of a second violation
of this [s]ection shall be guilty of a Class 4 felony *** if the
revocation or suspension was for a violation of [s]ection 11-401 or
11-501 of this Code." 625 ILCS 5/6-303(d) (West 2004). Section
11-501 of the Code involves the offense of driving while under the
influence of alcohol. See 625 ILCS 5/11-501 (West 2004).
The fundamental rule of statutory construction is to ascertain
and give effect to the intention of the legislature. People v.
Woodard, 175 Ill. 2d 435 (1997). Since the language used by the
legislature is the best indication of legislative intent, courts
look first to the words of the statute. Nottage v. Jeka, 172 Ill.
2d 386 (1996). When the language of the statute is plain and
unambiguous, courts will not read in exceptions, limitations, or
other conditions. People v. Daniels, 172 Ill. 2d 154 (1996).
Here, the plain language of section 6-303(a) and (d) of the
Code states that any person convicted of a second violation of
DWLR, when that person has been previously convicted of DWLR and
the revocation was for DUI, "shall be guilty of a Class 4 felony."
At trial, the State introduced a certified record from the
7
Secretary of State indicating that defendant’s license was revoked.
Evidence was also presented at sentencing demonstrating that
defendant had a prior conviction for DWLR and that his license had
been previously revoked for driving under the influence of alcohol.
Thus, according to the statutory language of section 5/6-303(d),
defendant was properly charged and convicted of a Class 4 felony
for driving with a revoked license.
Defendant argues that felony DWLR should be exempt as a
predicate offense for armed violence because such a felony does not
further the statute’s purpose. Defendant admits that DWLR is not
an undeterrable offense but claims that using felony DWLR as a
predicate felony would deter the carrying of weapons "in all
instances for whatever purposes people wish to carry them." See
Alejos, 97 Ill. 2d at 510. We disagree.
In Alejos, the court noted that the presence of a weapon
enhances the danger that any felony that is committed will have
deadly consequences should the victim offer resistence. Thus, the
stiff punishment mandated by the armed violence statute "is
intended not only to punish the criminal and protect society from
him but also to deter his conduct-that of carrying the weapon while
committing a felony." Alejos, 97 Ill. 2d at 509. Using DWLR as a
predicate felony furthers that legislative purpose. Using DWLR as
a predicate felony does not deter any person from carrying a weapon
while driving, an otherwise legal activity. Using DWLR as a
8
predicate felony deters individuals from carrying a weapon while
they are committing the felony of driving while their license is
revoked. It is therefore a proper predicate offense for armed
violence.
II. Proof of Predicate Felony at Trial
Defendant claims that the State failed to prove beyond a
reasonable doubt, as elements of his crimes, that his license was
revoked for the grounds set forth in section 6-303(d) (625 ILCS
5/6-303(d) (West 2004)) and section 11-501(a) (625 ILCS 5/11-501(a)
(West 2004)) of the Vehicle Code. Defendant maintains that to be
convicted of a Class 4 felony DWLR, the State was required to prove
beyond a reasonable doubt, as an element of the crime at trial,
that the "enhancing" factors were present. The State claims that
it was prevented from producing such evidence at trial under
section 5/111-3(c) of the Code of Criminal Procedure of 1963 (Code)
(725 ILCS 5/111-3(c) (West 2004)).
Section 5/111-3(c) of the Code provides:
"When the State seeks an enhanced sentence because of a
prior conviction, the charge shall also state the
intention to seek an enhanced sentence and shall state
such prior conviction so as to give notice to the
defendant. However, the fact of such prior conviction
and the State’s intention to seek an enhanced sentence
are not elements of the offense and may not be disclosed
9
to the jury during trial ***. For the purposes of this
section, ‘enhanced sentence’ means a sentence which is
increased by a prior conviction form one classification
of offense to another higher level classification of
offense set forth in Section 5-5-1 of the [Code] ***; it
does not include an increase in the sentence applied
within the same level of classification of offense."
This provision of the Code applies to those situations where the
State intends to enhance the charge by raising the classification
of the offense due to a prior conviction. The language explicitly
excludes situations where the sentence is increased because of a
prior conviction but the classification of the offense remains the
same. People v. Contreras, 241 Ill. App. 3d 1023 (1993).
In this case, defendant was charged with and convicted of
DWLR. Due to his prior convictions for DWLR and DUI, section 5/6-
303 (d)of the Vehicle Code mandated the elevation of the offense
from a Class A misdemeanor to a higher-level classification, a
Class 4 felony. See 625 ILCS 5/6-303(d) (West 2004). Because the
prior conviction enhanced the "classification" of the offense,
rather than just the sentence, section 5/111-3(c) applied.
Therefore, the State was prohibited from proving the prior
commissions of DWLR and DUI as an element of the Class 4 felony
DWLR. People v. DiPace, 354 Ill. App. 3d 104 (2004); People v.
Braman, 327 Ill. App. 3d 1091 (2002); People v. Bowman, 221 Ill.
10
App. 3d 663 (1991). Instead, the existence of the predicate
offenses was properly used after defendant’s conviction to increase
the classification of his crime at sentencing. See People v.
Thompson, 328 Ill. App. 3d 360 (2002); Bowman, 221 Ill. App. 3d 663
(State not required to show defendant’s prior conviction, or the
grounds for those prior convictions, until sentencing). Requiring
the State to prove the grounds for a prior conviction or revocation
beyond a reasonable doubt at an earlier stage in the proceedings
would contravene the plain language of section 111-3(c) of the
Code.
Defendant claims that section 5/111-3(c) only applies to the
prosecution of the DWLR count, not the armed violence count.
However, as acknowledged by defendant, accepting this argument
produces an incongruous result. To simultaneously require the
State to prove the defendant’s prior conviction for purposes of the
armed violence count, but prohibit it from proving the same facts
for purposes of the DWLR count leads to an absurd outcome and
frustrates the intent of the legislature. When interpreting a
statute, we must presume the legislature did not intend to produce
an absurd or unjust result. Andrews v. Kowa Printing Corp., 217
Ill. 2d 101 (2005). This court will not read exceptions,
conditions, or limitations into a statute which the legislature did
not express if the statutory language is clear and unambiguous.
Village of Chatham v. County of Sangamon, 216 Ill. 2d 402 (2005).
11
The statutory language of section 5/111-3(c) is clear and does not
impose any limitations or exceptions as to its application.
In this case, the evidence demonstrated that defendant carried
a weapon while driving a vehicle illegally. When the officer
attempted to stop him, defendant purposefully evaded him and
attempted to hide in a nearby house. These acts were deliberate.
Had the officer tried to arrest defendant for driving with a
revoked license without assistance, the consequences could have
been deadly. Under the facts of this case, we decline to find a
legislative intent to exclude felony DWLR as a predicate felony for
an armed violence charge.
We are mindful of the apparent difficulty created by the
statute under the circumstances of this case. However, nothing in
its language convinces us that the legislature intended to carve
out an exception which would require the State to prove to the jury
a prior convictions when that prior conviction is the basis for a
predicate felony in an armed violence case.
III. Proportionate Penalties Clause
Defendant next claims that his sentence violated the
proportionate penalties clause of the Illinois constitution (Ill.
Const. 1970, art. I, §11). Defendant contends that his 30-year
sentence for armed violence is so wholly disproportionate to the
severity of his conduct that it shocks the conscience of the
community.
12
Generally, it is within the legislature’s discretion to
determine the appropriate penalties for various offenses, and
courts of review are hesitant to override the legislature’s
exercise of discretion. People v. Gonzalez, 25 Ill. 2d 235 (1962).
A statute is presumptively constitutional. People v. Sharpe, 216
Ill. 2d 481 (2005). The party challenging the statute has the
burden of proving that a constitutional violation has occurred.
Sharpe, 216 Ill. 2d 481. We review the question of whether a
statute is constitutional de novo. Sharpe, 216 Ill. 2d 481.
The proportionate penalties clause of the Illinois
constitution 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." Ill.
Const. 1970, art. I, §11. A statute violates the proportionate
penalties clause if the punishment for a particular offense is
cruel, degrading, or so wholly disproportionate to the offense as
to shock the moral sense of the community. People v. Miller, 202
Ill. 2d 328 (2002). Courts are reluctant to invalidate penalties
because the legislature is more capable of measuring the
seriousness of offenses. People v. Butler, 304 Ill. App. 3d 750
(1999).
It is well settled that in setting the penalty for armed
violence the legislature acts within its discretion in focusing on
the use of the weapon rather than the character of the underlying
13
felony. People v. Lombardi, 184 Ill. 2d 462 (1998). Our
legislature enacted the armed violence statute "to respond
emphatically to the growing incidence of violent crime." Alejos,
97 Ill. 2d at 507-08. The chances that violence will ensue and
cause great bodily harm because of the weapon are increased when a
felony is committed. Alejos, 97 Ill. 2d 502.
Defendant was convicted of a Class 4 felony which would
generally make him eligible for a sentence of one to three years.
See 730 ILCS 5/5-8-1(a)(7) (West 2004). Since defendant was
carrying a switchblade knife, he was convicted of a Class X felony
which carried a sentencing range of 10 to 30 years in prison, plus
enhancement to 60 years. 720 ILCS 5/33A-3(a-5) (West 2004); 730
ILCS 5/5-8-1(a)(3), 5/5-8-2(a)(2) (West 2004). Even though the
penalties for the offense with which defendant was charged is
substantially increased by the armed violence statute, we find no
constitutional violation. The presence of a weapon enhances the
danger of any felony. It is well settled that the penalty
provisions of the armed violence statute are reasonably designed to
remedy that legislative concern. Lombardi, 184 Ill. 2d 462. Thus,
defendant’s sentence for armed violence did not contravene the
proportionate penalties clause simply because the predicate felony
offense fell into the lowest felony classification. See Lombardi,
184 Ill. 2d 462 (rejecting defendant’s argument that armed violence
for committing Class 4 felony while armed with a firearm which
14
required sentence of 15 to 30 years was disproportionate); People
v. Green, 301 Ill. App. 3d 767 (1998) (holding that penalty for the
predicate Class 4 felony of possessing a controlled substance did
not restrict legislature’s authority to impose a severe penalty
upon conviction of felony while armed.)
Defendant chose to drive a vehicle with a revoked license. He
did so knowing that he had a prior conviction for DWLR. His
conduct was then exacerbated by his decision to carry a weapon
during its commission. When any police officer approaches a
vehicle there exists a recognized risk. Pennsylvania v. Mimms, 434
U.S. 106 (1977). When officer Becket attempted to initiate the
stop, defendant fled into a house that was occupied. The possible
consequences to the officers involved or the residents of the home
if defendant had decided to employ the deadly weapon are
unquestionable.
Imposition of a 30-year sentence, a stringent penalty
considered by the legislature as necessary to achieve the objective
of discouraging persons from carrying weapons while committing a
felony, reflects the seriousness of the offense. Lombardi, 184
Ill. 2d 462. There is no guarantee of the proportionality or
equality between a crime and the length of a sentence. People v.
Farmer, 165 Ill. 2d 194 (1995); Brown, 362 Ill. App. 3d 374.
Defendant’s sentence may be harsh, but it is not cruel, degrading,
or so grossly disproportionate to the seriousness of the offense as
15
to shock the moral sense of the community.
IV. Excessive Sentence
Defendant alleges that his sentence was excessive in that it
was manifestly disproportionate to the nature of the offense.
Defendant argues that the trial court abused its discretion in
sentencing him based on the reasoning in People v Stacey, 193 Ill.
2d 203 (2000).
Armed violence is a Class X felony. 720 ILCS 5/33A-3(a-
5)(West 2004). The sentencing range for a Class X felony
conviction is 10 to 30 years. 720 ILCS 5/33A-3(a-5) (West 2004);
730 ILCS 5/5-8-1(a)(3) (West 2004). If the defendant has prior
felony convictions, he is eligible for an extended term sentence of
up to 60 years for the offense. 730 ILCS 5/5-8-2(a)(2) (West
2004).
The trial judge’s sentencing decision is entitled to great
deference because the court is in a better position than the
reviewing court to determine the appropriate sentence and to
balance the need to protect society with the rehabilitation of the
defendant. People v. Stacey, 193 Ill. 2d 203 (2000); People v.
Spencer, 303 Ill. App. 3d 861 (1999). The sentencing judge has the
opportunity to weigh the defendant’s credibility, his demeanor and
general character, as well as his mentality capacity, social
environment, habits and age. People v. Streit, 142 Ill. 2d 13
(1991); People v. Perruquet, 68 Ill. 2d 149 (1977). A trial
16
court’s determination will not be reversed absent an abuse of
discretion. Streit, 142 Ill. 2d 13. A sentence that falls within
the statutory range is not an abuse of discretion unless it is
greatly at variance with the spirit and purpose of the law or
manifestly disproportionate to the nature of the offense. Stacey,
193 Ill. 2d 203.
Our review of the record reveals that the trial court properly
considered the aggravating and mitigating evidence, the arguments
of counsel, and the presentencing report. The court noted
defendant’s prior and extensive criminal record, which included
seven felony convictions; one for armed violence, one for
aggravated battery of a police officer and three for possession of
a controlled substance. The court also considered the
circumstances surrounding this incident, defendant’s attempt to
flee the officer, his lack of contribution to society and the
dismal possibility of his rehabilitation. The trial court
sentenced defendant to 30 years of imprisonment, stating that such
a term was necessary to "protect society from the defendant."
While defendant’s sentence is severe, it is within the 10-to-
60 year range he faced for armed violence. 720 ILCS 5/33A-3(a-5)
(West 2004); 730 ILCS 5/5-8-1(a)(3) (West 2004); 730 ILCS 5/5-8-2
(a)(2) (West 2004). Unlike the defendant in Stacey, defendant was
convicted of a violent crime for using a deadly weapon. See
Stacey, 193 Ill. 2d 203 (although sexual abuse crimes were
17
appalling and reprehensible, imposition of consecutive 25-year
terms was manifestly disproportionate since there was no threat of
bodily harm to victims.) The crime in this case involved
defendant’s possession of a switchblade knife. During the course
of his arrest, defendant attempted to flee from police. At the
very least, a threat of bodily harm did exist. Defendant’s
sentence is neither greatly at variance with the spirit and purpose
of the law, nor is it manifestly disproportionate to the nature of
the offense. Stacey, 193 Ill. 2d 203; Brown, 362 Ill. App. 3d 374.
Accordingly, we reject defendant’s argument that his sentence was
an abuse of the court’s discretion.
V. One-Act, One-Crime
Last, defendant claims that his conviction for unlawful
possession of a weapon by a felon must be vacated based on one-act,
one-crime principles because the State proved only one act of
possession of the knife.
Under the one-act, one-crime rule, a court must first consider
whether a defendant’s conduct consisted of separate acts or a
single physical act. People v. Rodriguez, 169 Ill. 2d 183 (1996).
Multiple convictions are improper if they are based on the same
act. Rodriguez, 169 Ill. 2d 183. If the defendant committed
multiple acts, then the court must determine whether any of the
offenses are lesser included offenses. DiPace, 354 Ill. App. 3d
104. An act is any overt or outward manifestation which will
18
support different offenses. Rodriguez, 169 Ill. 2d 183. A person
can be guilty of two offenses when a common act is part of both
crimes. DiPace, 354 Ill. App. 3d 104.
Defendant’s only argument on appeal is that the defendant
committed a single act of possession of the switchblade knife. We
disagree. In this case, both of defendant’s convictions are
supported by a separate physical act. Though possessing the knife
was involved in both crimes, each of his convictions was due to a
separate offense based on separate conduct. See DiPace, 354 Ill.
App. 3d at 116. The defendant was charged with unlawful possession
of a weapon by a felon for knowingly possessing a switchblade
knife. The armed violence charge alleged that he, while armed with
the switchblade, committed the offense of driving while his license
was revoked. The evidence at trial demonstrated that he was the
only occupant of the vehicle when he attempted to elude Officer
Becket. Defendant then locked himself in a bathroom of the
residence where officer discovered a lighter. During his arrest,
defendant asked for the lighter. The lighter contained the
switchblade knife.
Defendant was convicted of unlawful possession of a weapon by
a felony for possessing the knife while in the residence. He was
also convicted of armed violence for possessing the weapon in his
car while he drove that vehicle with a revoked license. The
evidence establishes that defendant possessed a knife at a time
19
other than when he was driving the car. Those two separate acts of
possession support both convictions. Accordingly, defendant’s
convictions and sentences for unlawful possession of a weapon by a
felon and armed violence must stand.
CONCLUSION
The judgment of the circuit court of Bureau County is
affirmed.
Affirmed.
SCHMIDT, J., concurs.
JUSTICE McDADE, dissenting:
The majority has held that a conviction for enhanced driving
while license revoked (DWLR) can serve as the predicate felony for
a conviction for armed violence and that the State proved defendant
guilty of armed violence on that basis. I believe that decision to
be wrong and, therefore, dissent.
Although I would thus not reach defendant’s other two issues,
I will discuss them because the majority has done so. Therefore,
assuming, solely for purposes of argument and without conceding the
point, that the majority’s decision on the first two issues is
correct, I would concur with the holding that defendant’s
convictions for armed violence and for unlawful use of a weapon
would not, if properly reached, violate the one-act, one-crime rule
and would agree that the conviction for unlawful use of a weapon
should be affirmed. Subject to the same assumption, I would
20
dissent from the majority’s conclusion that defendant’s 30-year
sentence for armed violence does not violate the proportionate
penalties clause of the Illinois constitution or constitute an
abuse of discretion.
I. Predicate Felony and
II. Proof of Predicate Felony at Trial
Defendant admits that he drove while his license was revoked,
and that the State had revoked his license as a result of his
conviction for driving under the influence (DUI). DWLR is normally
a Class A misdemeanor. 625 ILCS 5/6-303(a) (West 2004). Because
defendant’s second conviction for DWLR was based on a prior
revocation for driving under the influence, however, section 6-
303(d) of the Illinois Vehicle Code required the court to sentence
defendant as if he had committed a Class 4 felony. Section 6-
303(d) reads, in pertinent part, as follows:
"Any person convicted of a second violation of
this Section shall be guilty of a Class 4
felony ***, if the revocation or suspension
was for a violation of Section 11-401 or 11-
501 of this Code, or a similar out-of-state
offense, or a similar provision of a local
ordinance, a violation of Section 9-3 of the
Criminal Code of 1961, relating to the offense
of reckless homicide, or a similar out-of-
21
state offense, or a statutory summary
suspension under Section 11-501.1 of this Code
[625 ILCS 5/11-501.1]." 625 ILCS 5/6-303(d)
(West 2004).
However, under section 5/111-3(c) of the Code of Criminal
Procedure (725 ILCS 5/111-3(c) (West 2004)), the State could not
disclose to the jury the fact of defendant’s prior conviction nor
its intention to seek an enhanced sentence. Section 111-3(c)
reads, in pertinent part, as follows:
"When the State seeks an enhanced sentence
because of a prior conviction, the charge
shall also state the intention to seek an
enhanced sentence and shall state such prior
conviction so as to give notice to the
defendant. However, the fact of such prior
conviction and the State's intention to seek
an enhanced sentence are not elements of the
offense and may not be disclosed to the jury
during trial unless otherwise permitted by
issues properly raised during such trial. For
the purposes of this Section, enhanced
sentence’ means a sentence which is increased
by a prior conviction from one classification
of offense to another higher level
22
classification of offense set forth in Section
5-5-1 of the ‘Unified Code of Corrections’,
*** it does not include an increase in the
sentence applied within the same level of
classification of offense." 725 ILCS 5/111-
3(c) (West 2004).
Defendant argues that enhanced DWLR cannot serve as a
predicate felony for armed violence because the offense is not
actually a Class 4 felony, it is a Class A misdemeanor with an
enhanced sentencing provision. For this reason, defendant also
asserts that any misdemeanors that carry enhanced sentencing
provisions may never serve as the predicate offense for armed
violence. Alternatively, defendant argues the State failed to
prove him guilty of armed violence because it failed to prove an
element of that offense. Specifically, that defendant committed a
felony. Defendant argues the State never proved he committed a
felony (enhanced DWLR--assuming it is in fact a Class 4 felony and
not merely a misdemeanor sentenced as one) because it never
submitted evidence at trial of the reason for his prior revocation-
-a fact necessary to make his offense a felony. Therefore,
defendant asserts, the State only proved him guilty of committing
a Class A misdemeanor (DWLR) while armed.
The State responds the statute clearly states that "[a]ny
person convicted of a second violation of this Section shall be
23
guilty of a Class 4 felony ***." (Emphasis added.) The State also
argues that "enhanced sentence" as used in section 111-3(c) does
not really mean an "enhanced sentence" but actually means that the
classification of the subsequent offense is higher--in this case
from a Class A misdemeanor to a Class 4 felony. Finally, the State
argues that even if section 6-303(d) contains only an enhanced
sentencing provision and does not make the subsequent offense
itself a felony, the subsequent offense may be treated as a felony
for purposes of the armed violence statute. For this proposition
the State analogizes attempt offenses and claims that "courts have
consistently held that an attempt offense that is not classified as
a felony may be treated as a felony and serve as the predicate
felony for an armed violence conviction where the attempt offense
is punishable as a felony."
Based on its claim that enhanced DWLR is a Class 4 felony and
not merely a Class A misdemeanor with a sentencing provision for
repeat offenders, the State argues it proved defendant guilty of
that offense beyond a reasonable doubt. The State argues it was
not required to prove the reason for his prior revocation to the
jury because that is not an element of the offense of enhanced
DWLR. The State points out that "[section] 5/111-3(c) specifically
states that when the People seek an enhanced sentence because of a
prior conviction, that prior conviction is not an element of the
offense. It is for this reason that the pattern jury instructions
24
do not have a separate definition or issues instruction for the
felony of driving while license revoked."1
"The offense of attempt is not classified under the Unified
Code of Corrections as either a felony or a misdemeanor." People
ex rel. Carey v. Scotillo, 84 Ill. 2d 170, 173, 417 N.E.2d 1356,
1358 (1981). The court has held that although attempt is
classified as neither a misdemeanor or a felony, "where an attempt
offense is punishable as a felony such an offense may be treated as
a felony for purposes of the armed violence statute." (Emphasis in
original.) People v. Goodman, 109 Ill. App. 3d 203, 209, 440
N.E.2d 345, 349 (1982), citing People v. Gibson, 99 Ill. App. 3d
1068, 425 N.E.2d 1208 (1981). In Gibson, the court held that an
"armed violence verdict could properly be based on the underlying
felony of attempt murder." Gibson, 99 Ill. App. 3d at 1072, 425
N.E.2d at 1212. The Gibson court also stated that attempt murder
is a Class X felony, but section 8-4 of the Criminal Code states
that "the sentence for attempt to commit first degree murder is the
sentence for a Class X felony." (Emphases added.) 720 ILCS 5/8-
4(c)(1) (West 2004).
I believe this court should find that the Goodman court
erroneously expanded the holding in Gibson and, therefore, the
rationale permitting attempt murder, which is not actually
1
It is, of course, possible that the instruction does not exist because the crime--this so-
called enhanced DWLR, a Class 4 felony--does not exist.
25
classified as a felony, to serve as the predicate felony for armed
violence, is not applicable to DWLR. First, Gibson’s explicit
statement that attempt murder is a Class X felony indicates the
court’s belief that the legislature had in fact classified the
offense of attempt murder as a felony. Therefore, the Gibson court
did not apparently address or resolve whether an offense that was
not a felony (but is sentenced as one) could serve as the predicate
offense for armed violence. Certainly, Gibson did not resolve that
issue.
Second, Gibson was concerned with whether the defendant’s
conviction for armed violence resulted from the double enhancement
the supreme court found impermissible in People v. Haron, 85 Ill.
2d 261, 422 N.E.2d 627 (1981). There, the court held that a
defendant cannot be convicted of armed violence predicated on an
offense that was not a felony before it was enhanced by the use of
a deadly weapon2. Therefore, in Gibson, the defendant's conviction
for armed violence could not stand if it was based on the
underlying felony of aggravated battery3. However, in Gibson, the
2
For its proposition that attempt may serve as the predicate felony for armed violence,
the State cites only one case from our supreme court, People v. DelPercia, 105 Ill. 2d 372, 475
N.E.2d 528 (1985). That case, however, merely resolves a conflict in the appellate court over the
interpretation of Haron. As noted, the issue in Haron is distinct from the question defendant
raises here.
3
"Battery is a Class A misdemeanor." 720 ILCS 5/12-3(b) (West 2004). "In committing
a battery, a person commits aggravated battery if he or she: (1) Uses a deadly weapon other than
by the discharge of a firearm." 720 ILCS 5/12-4(b)(1) (West 2004). "[A]ggravated battery is a
Class 3 felony." 720 ILCS 5/12-4(e)(1) (West 2004).
26
State had also charged the defendant with attempt murder. The jury
in Gibson found the defendant guilty of armed violence without
specifying the felony on which it based its finding of guilt. The
court, which apparently believed attempt murder was a Class X
felony, held the defendant’s conviction for armed violence could
stand because "a general finding of guilty is presumed to be based
upon any good count in the indictment to which the proof is
applicable." Gibson, 99 Ill. App. 3d at 1072, 425 N.E.2d at 1212.
Regardless, Gibson did not address the question of whether an
offense that is merely sentenced as a felony could serve as the
predicate felony for armed violence in reaching its decision on the
issue actually presented; and it provides no basis for Goodman’s
stated conclusion that it did.
Despite the language of section 6-303(d), which reads that
persons to whom it applies "shall be guilty of a Class 4 felony"
(emphasis added), the court has held that "[t]he existence of these
predicate offenses is used after a defendant's conviction [for DWLR
(a Class A misdemeanor)] to increase the classification of his
crime at sentencing." (Emphases added.) People v. DiPace, 354
Ill. App. 3d 104, 114, 818 N.E.2d 774, 784 (2004). Indeed, the
State need not prove at trial the fact that would make defendant
guilty of a Class 4 felony--the reason for his prior revocation--
for defendant to be sentenced for a Class 4 felony. See People v.
DiPace, 354 Ill. App. 3d at 114, 818 N.E.2d at 784 ("the State need
27
not prove prior commissions of *** driving while license revoked as
an element of Class 4 felony driving while license revoked"). See
also People v. Braman, 327 Ill. App. 3d 1091, 1094, 765 N.E.2d 500,
503 (2002) ("the aggravated DUI terminology used in the DUI statute
simply refers to an aggravated or enhanced sentence for a third or
subsequent DUI. Section 501(d)(1)(A) of the Vehicle Code is
clearly a recidivist sentencing statute for repeat DUI offenders")
. Section 501(d)(1) is an identical sentencing scheme to that
found in section 6-303(d). See, e.g., DiPace, 354 Ill. App. 3d at
114, 818 N.E.2d at 784.
If section 6-303(d) created a separate offense--felony
DWLR–its elements would be (1) driving on a revoked driver’s
license (2) having previously been revoked for, inter alia, DUI.
"[T]he State has the burden of proving every element of the crime
beyond a reasonable doubt." People v. Churchill, 80 Ill. App. 3d
405, 410, 399 N.E.2d 985, 988 (1980). The State is prohibited from
satisfying its burden by section 111-3(c). Moreover, in
Almendarez-Torres v. United States, 523 U.S. 224, 226, 140 L. Ed.
2d 350, 357, 118 S. Ct. 1219, 1222 (1998), the United States
Supreme Court addressed whether a similar sentencing provision4
4
"Subsection (a) of 8 U.S.C. § 1326 *** forbids an alien who once was deported to
return to the United States without special permission, and it authorizes a prison term of up to,
but no more than, two years. Subsection (b)(2) of the same section authorizes a prison term of up
to, but no more than, 20 years for ‘any alien described’ in subsection (a), if the initial
‘deportation was subsequent to a conviction for commission of an aggravated felony.’ §
1326(b)(2)." Almendarez-Torres, 523 U.S. at 226, 140 L. Ed. 2d at 357, 118 S. Ct. at 1222.
28
"defines a separate crime or simply authorizes an enhanced
penalty." The Court held "that the subsection is a penalty
provision, which simply authorizes a court to increase the sentence
for a recidivist. It does not define a separate crime."
Almendarez-Torres, 523 U.S. at 226, 140 L. Ed. 2d at 357, 118 S.
Ct. at 1222.
In the present case, we should hold that the State did not
prove defendant guilty of felony DWLR because section 6-303(d)
creates no such offense. Thus, it appears defendant was not found
guilty of committing a Class 4 felony but the court could,
properly, sentence him as if he committed one. Because so-called
"felony DWLR" served as the sole predicate offense for armed
violence in this case, we should also hold that the State failed to
prove an element of the offense of armed violence. That is, the
State failed to prove defendant committed a felony. Accordingly,
defendant’s conviction for armed violence should be reversed
outright. See People v. Coulson, 13 Ill. 2d 290, 298, 149 N.E.2d
96, 100 (1958) (“Since there is nothing in the record to indicate
that any *** evidence will be available to the People upon
remandment for a new trial, we reverse the judgment of conviction
without remand”). Moreover, because of the restriction section
111-3(c) places on the State, we should further find that
misdemeanors subject to enhanced felony sentencing may never serve
29
as the predicate offense for armed violence.
Because we have done none of those things, I respectfully
dissent on this issue.
III. Applicability of Proportionate Penalties Clause and Abuse of
Discretion to Defendant’s 30-year Sentence.
The majority, having found that DWLR can serve as the
predicate felony for armed violence, rejects defendant’s federal
constitutional challenge that his 30-year sentence for driving
while his license was revoked was grossly disproportionate to the
seriousness of his offense and his state constitutional challenge
to his sentence as violative of the proportionate penalties clause.
Conviction of a Class 4 felony would result in a maximum sentence
of three years. Because he had a switchblade knife in his
possession, he became eligible for a sentence between 10 and 60
years. The trial court considered defendant’s criminal history and
determined that a sentence of 30 years was appropriate for his
offense.
a) Proportionate penalties
Defendant argues that sentencing his conduct as a Class X
felony with a minimum sentence of ten years’ imprisonment violates
the proportionate penalties clause because it “is so wholly
disproportionate to the severity of the conduct as to shock the
conscience of the community.” See People v. Sharpe, 216 Ill. 2d
481, 487, 839 N.E.2d 492, 498 (2005) (“[A] penalty violates the
30
proportionate penalties clause if it is cruel, degrading, or so
wholly disproportionate to the offense committed as to shock the
moral sense of the community”). He observes that the purpose of
the armed violence statute is to “deter felons from using dangerous
weapons, thereby minimizing the deadly consequences which may
result when a felony victim resists.” People v. Smith, 191 Ill. 2d
408, 411, 732 N.E.2d 513, 514 (2000).
Defendant argues that his offense, driving a car, without a
license, while carrying a spring-loaded knife, is wholly
disproportionate to the penalties for a Class X felony. Defendant
asserts that the presence of a weapon does not make driving without
a license more likely to result in death or bodily harm.
Therefore, he argues, predicating armed violence on DWLR does not
serve the armed violence statute’s purpose. In response, the State
contends that the focus in determining the severity of the offense
should be on the use of a weapon and not the character of the
underlying felony. That is, “the penalty for the predicate felony
[does] not restrict the legislature’s authority to impose a severe
penalty ***.”
That argument ignores Smith’s statement of statutory purpose
and assumes that misdemeanor conduct somehow takes on the
threatening characteristics of felonious behavior simply because of
a repeat offense. Because the essence of his offense is a
misdemeanor enhanced to an entry level felony only because it is
31
his second such offense, and because DWLR is essentially a
victimless crime, this stated purpose of the statute is not served
by treating the defendant as a felon. The basic character of the
conduct remains a misdemeanor and a 30 year sentence is grossly
disproportionate.
In People v. Green, 301 Ill. App. 3d 767, 772, 704 N.E.2d 437,
440 (1998), cited by the State, the court “reject[ed] defendant's
argument that the penalty for the predicate felony--here, a maximum
of three years in prison with the possibility of probation--should
somehow restrict the legislature's authority to impose severe
penalties upon conviction of that same Class 4 felony when the
offender is carrying a gun.” The State’s reliance on Green
reflects its mischaracterization of defendant’s argument.
Defendant does not argue that sentencing him for a Class X felony
is disproportionate because the underlying offense is only a Class
4 felony--or even because it is a Class A misdemeanor. Defendant
argues his penalty is disproportionate to the actual underlying
conduct--merely driving an automobile without a valid license while
in possession of a knife--and that the penalty is disproportionate
because his core conduct was not made more dangerous by the
presence of a weapon--the evil the armed violence statute is meant
to address.
The penalty imposed by a statute is determined by its purpose.
See People v. Moss, 206 Ill. 2d 503, 523, 795 N.E.2d 208, 221
32
(2003) ("where statutes are enacted for different purposes, we presume that the legislature
considered different factors in establishing the respective punishments"). “The penalty contained
in the armed violence statute is *** designed to achieve the legislature's goal of deterring individuals
from arming themselves with dangerous weapons during the commission of a felony.” People v.
Lombardi, 184 Ill. 2d 462, 471-72, 705 N.E.2d 91, 96-97 (1998), overruled on other grounds, People
v. Sharpe, 216 Ill. 2d 481, 519, 839 N.E.2d 492, 515-516 (2005)). Even assuming defendant was
committing a felony when he drove his car without a license, the armed violence statute would not
cause defendant to contemplate that he “better not do so while armed.” Cf. Green, 301 Ill. App. 3d
at 772, 704 N.E.2d 440. Unlike other felonies, defendant’s crime had no victim, thus the risk of
“deadly consequences [should] a felony victim resist[]” was not present in this case. Nor would
defendant be “forced to make a spontaneous and often instantaneous decision to kill without time
to reflect on the use of such deadly force” in this situation. Thus “the deterrent purpose of the armed
violence statute” is not present in this case. See People v. Condon, 148 Ill. 2d 96, 110, 592 N.E.2d
951, 958 (1992).
If a conviction for a particular offense (in this case armed violence predicated on DWLR)
does not serve the purpose of the statute, then the penalty as determined by the purpose of the statute
is disproportionate to the offense because the penalty and the offense do not share the intended
relation. The armed violence statute is meant to address the potential for escalation to violence
during the commission of a felony that the presence of a weapon creates. That potential is simply
not present here. Despite the State’s reliance on the "long recognized *** risk to police officer[s]
approaching an individual seated in an automobile," nothing here suggests that defendant ever posed
such a threat to police or the public. The presence of a weapon in this case did not exacerbate
33
defendant’s offense of driving without a valid license.
Because I believe defendant’s sentence violates the Proportionate Penalties clause, I
respectfully dissent on this issue.
b) Abuse of discretion
Defendant argues that the trial court abused its discretion in sentencing him to the maximum
non-extended term sentence for armed violence, 30 years’ imprisonment. In response, the State
recounts defendant’s criminal history and points out that the trial court also noted that at sentencing
the defense focused on the nature and circumstances of the instant offense rather than defendant’s
history and character. The State argues defendant’s sentence was appropriate based on that history.
Defendant’s criminal history is a relevant factor in fashioning his sentence. People v. Curtis, 126
Ill. App. 3d 568, 575, 467 N.E.2d 624, 630 (1984). However, "[u]nder section 5-5-3.2(a) of the
Unified Code of Corrections (Ill. Rev. Stat.1981, ch. 38, par. 1005-5-3.2(a)) the trial court is required
to weigh the harm caused by a defendant's conduct, as well as his history of delinquency or criminal
activity, as factors in aggravation for purposes of fashioning the sentence appropriate to the cause."
Curtis, 126 Ill. App. 3d at 575, 467 N.E.2d at 630.
Defendant cites People v. Stacey, 193 Ill. 2d 203, 737 N.E.2d 626 (2000), for the proposition
that the appellate court may find an abuse of discretion and reduce a sentence where the sentence is
disproportionate to the severity of the offense. The Stacey court found that the defendant’s conduct
was "not severe enough to warrant 25-year sentence[s] *** [g]iven the nature of the crimes ***."
The court noted that it was "not reweighing any aggravating or mitigating factors" but that its holding
was based on "our constitution's mandate that penalties be determined according to the seriousness
of the offense. Ill. Const. 1970, art. I, § 11." Stacey, 193 Ill. 2d at 210, 737 N.E.2d at 630.
34
Defendant did not ask this court to reweigh sentencing factors. Instead, he asked us to
evaluate his sentence in light of the severity of his conduct. Stacey instructs that just such a review
is appropriate. Because I disagree with the majority’s evaluation, I dissent on this issue as well.
Turning to my own examination of defendant’s sentence in light of the severity of his
conduct, I would conclude that defendant’s behavior was not severe enough to warrant a 30-year
sentence. The maximum sentence permitted by the armed violence statute is 30 years’ imprison-
ment. 720 ILCS 5/33A-3(a-5) (West 2004); 730 ILCS 5/5-8-1(3) (West 2004). As previously
discussed, the armed violence statute is meant "not only to punish the criminal and protect society
from him but also to deter his conduct-that of carrying the weapon while committing a felony" due
to the "belief that the chances that violence will erupt and cause great bodily harm because of the
weapon are increased when a felony is committed." People v. Alejos, 97 Ill. 2d at 509 455 N.E.2d
at 51.
There was little chance violence would erupt from defendant’s behavior because he was
merely driving his car. Admittedly, defendant fled police, but on foot. Defendant’s flight while
possessed of a weapon posed no serious threat. Nor did his driving. Further, whatever risk of harm
defendant may have created was minimal given the weapon at issue, especially when compared with
the potential for harm created by, for example, a handgun. Cf. People v. Brown, 362 Ill. App. 3d
374, 384, 839 N.E.2d 596, 605 (2005) ("If ever there was a felony offense during which the use of
a deadly weapon should be deterred, it is a high-speed flight from or attempt to elude police. The
possible consequences to the peace officers involved, and to any citizens unlucky enough to be
nearby, if defendant decided to employ that deadly weapon, especially a firearm, are unquestion-
able") (emphases added).
35
Defendant later surrendered to police after disarming himself. At no time did the commission
of a felony, possession of a knife, and arrest by police coincide to create a danger that violence would
erupt and cause great bodily harm. In this case, excluding extended-term sentencing, it seems
defendant received the same sentence he would have had he been armed with a gun. Defendant’s
conduct did not place him in a position to make a spontaneous decision to kill or create a risk of
harm should a victim resist. Sentencing him to the maximum penalty possible under the armed
violence statute is therefore "greatly at variance with the spirit and purpose of the law." Moreover,
defendant was armed with a knife and disarmed himself before surrendering to police.
Because the maximum sentence defendant received is "manifestly disproportionate to the
nature of the offense" I respectfully dissent on this issue as well.
Accordingly, for all of the foregoing reasons, I would reverse.
36