People v. Coleman ( 2010 )

NO. 4-08-0682 Filed 4/16/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Vermilion County
TA'RHON COLEMAN, ) No. 07CF249
Defendant-Appellant. )
) Honorable
) Nancy S. Fahey,
) Judge Presiding.
)
_________________________________________________________________
JUSTICE POPE delivered the opinion of the court:
In April 2007, the State charged defendant, Ta'Rhon
Coleman (born June 11, 1990), with one count of armed robbery
with a firearm (720 ILCS 5/18-2(a)(2) (West 2006)). In an
amended information filed in November 2007, the State charged
defendant with armed robbery with a firearm (720 ILCS 5/18-
2(a)(2) (West 2006)), armed robbery with a dangerous weapon (720
ILCS 5/18-2(a)(1) (West 2006)), and armed violence with a cate-
gory I weapon predicated on the offense of robbery (armed vio-
lence) (720 ILCS 5/33A-2(a) (West 2006)).
In April 2008, a jury found defendant guilty of armed
robbery with a firearm and armed violence. In September 2008,
the trial court sentenced defendant to 15 years' imprisonment on
his conviction for armed violence. Defendant appeals, arguing
(1) his trial counsel was ineffective for eliciting testimony
from defendant regarding his prior juvenile conviction, and (2)
the sentence for armed violence predicated on robbery as compared
to the sentence for armed robbery with a firearm violates the
proportionate-penalties clause of the Illinois Constitution. We
vacate defendant's sentence and remand.
I. BACKGROUND
At approximately 8 p.m. on March 13, 2006, Pizza Hut
deliveryman Kim Willis arrived at 12 South State Street in
Danville to deliver two pizzas. Two teenage boys were waiting
outside the house when Willis arrived. As Willis approached the
house with the pizzas and a soda, one of the boys walked up to
him and produced a gun. The boy demanded Willis's wallet, which
contained approximately $50. Willis handed him the wallet, and
the boy told him to get back in the car and drive away. The
pizza boxes and soda were left scattered on the sidewalk in front
of the house.
Willis returned to his car but tried to keep an eye on
the two boys as they ran away from the scene. He stopped watch-
ing them after one of the boys turned around and pointed the gun
at him. Willis called the Pizza Hut and the police as he drove
to a nearby gas station. Less than 10 minutes later, he returned
to the house to meet police.
Officer Keith Garrett was a City of Danville police
officer who interviewed Willis at the scene of the robbery.
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According to Officer Garrett, Willis described the boy with the
gun as approximately six feet two inches with an athletic build
and wearing a puffy coat. The other boy was approximately six
feet tall and was also wearing a puffy down coat. Willis could
not remember if the subject with the gun was wearing glasses.
Approximately one year after the robbery, the crime lab
notified Officer Garrett of a fingerprint match on one of the
pizza boxes at the scene of Willis's robbery. Officer Garrett
went to Willis's residence with a photo array of six pictures,
including a picture of defendant. Defendant was not wearing
glasses in the picture. Willis did not identify defendant from
the photo array. In April 2007, defendant was arrested and
charged with armed robbery with a firearm. Additional charges
were added later, as stated above.
At his April 2008 trial, defendant testified he is six
feet three inches and weighs approximately 180 pounds. He has
worn glasses since he was a child, and he is unable to drive
without them. On the night of the robbery, defendant borrowed a
friend's car and drove to 12 South State Street, the scene of the
robbery, where his old friend Michael Rettinger had previously
lived. Defendant had not seen Rettinger since 2005 and did not
know whether Rettinger still lived there. Two police officers
testified the house had been vacated by the Rettingers between
two and six months prior to the robbery and was vacant on the
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evening in question.
According to defendant, when he arrived at the house,
he saw two pizza boxes next to the front steps. He picked them
up and approached the dark house. When no one answered the door,
he set the boxes down and left. Defendant estimated he was at
the house for less than one minute.
At defendant's trial, the following exchange occurred
between defendant and defense counsel:
"[COUNSEL]: Now, Ta'Rhon, you've
been in trouble before?
[DEFENDANT]: Yes.
[COUNSEL]: Do you have a criminal re-
cord?
[DEFENDANT]: Yes.
[COUNSEL]: One of the cases that you had
was a robbery; is that correct?
[DEFENDANT]: Yes.
[COUNSEL]: That was back in '04, '05?
[DEFENDANT]: Yes.
[COUNSEL]: And you have served time in
the Department of Corrections [(DOC)]?
[DEFENDANT]: Yes.
[COUNSEL]: All right. I just want to
make sure the jury all understands that."
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The State asked the following questions on cross-
examination:
"[THE STATE]: You say you paroled in
February of '05, right?
[DEFENDANT]: Yes.
[THE STATE]: So you had been out for a
good 14 months at the time March 13th rolls
around?
[DEFENDANT]: Out of [DOC] I got incar-
cerated again from November, 2005, to the
middle of January, 2006, and I got released.
[THE STATE]: But you were out before
November of 2005 for a good several months?
[DEFENDANT]: No. I was back incarcerated
in 2005 in November. I got out in January."
On redirect, the jury learned defendant was also
incarcerated in February 2007. In closing argument, both the
State and defense counsel mentioned to the jury that defendant
had been in trouble before. The jury found defendant guilty of
armed robbery and armed violence, and defendant was sentenced as
stated.
This appeal followed.
II. ANALYSIS
A. Ineffective Assistance of Counsel
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Defendant argues his trial counsel was ineffective for
eliciting testimony from defendant regarding his prior juvenile
conviction.
To show ineffective assistance of counsel under Strick-
land v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104
S. Ct. 2052, 2064 (1984), a defendant must show
"(1) his counsel's performance was deficient
in that it fell below an objective standard
of reasonableness, and (2) the deficient
performance prejudiced the defendant in that,
but for counsel's deficient performance,
there is a reasonable probability that the
result of the proceeding would have been
different." People v. Irvine, 379 Ill. App.
3d 116, 129, 882 N.E.2d 1124, 1136 (2008).
Our supreme court provides, under the first prong of
the test, the defendant must show trial counsel's representation
"'fell below an objective standard of reasonableness.'" People
v. Harris, 206 Ill. 2d 1, 16, 794 N.E.2d 314, 325 (2002), quoting
Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. At
2064. The defendant must also satisfy the second prong by
demonstrating he was prejudiced by counsel's deficient perfor-
mance. Harris, 206 Ill. 2d at 16, 794 N.E.2d at 325. Prejudice
is established where a defendant has shown the outcome of the
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proceeding would have been different but for counsel's perfor-
mance. Harris, 206 Ill. 2d at 16, 794 N.E.2d at 325.
Here, defendant argues counsel was ineffective for
eliciting testimony from defendant regarding his prior juvenile
conviction. Citing People v. Kerns, 229 Ill. App. 3d 938, 940,
595 N.E.2d 207, 208 (1992), defendant argues Federal Rule of
Evidence 609(d) (adopted by our supreme court pursuant to People
v. Montgomery, 47 Ill. 2d 510, 519, 268 N.E.2d 695, 700 (1971)),
prohibits the admission of juvenile adjudications for impeachment
when the witness is the accused. When Montgomery was decided in
1971, Rule 609(d) provided:
"'Evidence of juvenile adjudications is
generally not admissible under this rule.
The judge may, however, allow evidence of a
juvenile adjudication of a witness other than
the accused if conviction of the offense
would be admissible to attack the credibility
of an adult and the judge is satisfied that
admission in evidence is necessary for a fair
determination of the issue of guilt or inno-
cence.'" Montgomery, 47 Ill. 2d at 517, 268
N.E.2d at 699.
In Kerns, 229 Ill. App. 3d at 941, 595 N.E.2d at 208,
this court specifically held the admissibility of a juvenile
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adjudication is governed by Federal Rule 609(d) as adopted in
Montgomery. In Kerns, the trial court admitted the defendant's
juvenile adjudication for burglary during the State's cross-
examination of the defendant. The version of section 5-150(1)(c)
of the Juvenile Court Act of 1987 then in effect (Ill. Rev. Stat.
1989, ch. 37, par. 801-10(1)(c)) provided as follows:
"'(1) Evidence and adjudications in
proceedings under this Act shall be admissi-
ble:
* * *
(c) in proceedings under this Act or in
criminal proceedings in which anyone who has
been adjudicated delinquent under [s]ection
5-3 is to be a witness, and then only for
purposes of impeachment and pursuant to the
rules of evidence for criminal trials[.]'"
Kerns, 229 Ill. App. 3d at 940, 595 N.E.2d at
208.
Thus when Kerns was decided, the statute purported to allow the
admission of adjudications of witnesses, and did not specifically
include defendants. See People v. Massie, 137 Ill. App. 3d 723,
730, 484 N.E.2d 1213, 1218 (1985); People v. Bunch, 159 Ill. App.
3d 494, 513, 512 N.E.2d 748, 761 (1987). Under the latest
version, now found in section 5-150(1)(c) of the Juvenile Court
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Act of 1987 (705 ILCS 405/5-150(1)(c) (West 2008)), a witness,
including the minor or defendant if he testifies, may be im-
peached with a juvenile adjudication. Both versions of the
statute contained the following condition: "and then only for
purposes of impeachment and pursuant to the rules of evidence for
criminal trials." Ill. Rev. Stat. 1989, ch. 37, par. 801-
10(1)(c); 705 ILCS 405/5-150(1)(c) (West 2008).
This court in Kerns disavowed a prior Fourth District
case which held a previous version of section 5-150(1)(c) sup-
planted Rule 609(d) (see People v. McClendon, 146 Ill. App. 3d
1004, 1011, 497 N.E.2d 849, 853 (1986)), and specifically found
the statute did not supplant Rule 609(d). Kerns, 229 Ill. App.
3d at 940-41, 595 N.E.2d at 208-09. In fact, the statute and the
rule, as adopted by our supreme court in Montgomery, can be
reconciled when the statutory language "pursuant to the rules of
evidence for criminal trials" is considered. In other words, the
legislature has said a defendant who chooses to testify may be
impeached with a juvenile adjudication but has conditioned the
use of such impeachment on the rules of evidence for criminal
trials.
Our supreme court has adopted Rule 609 as a rule of
evidence to be used by the trial courts. Rule 609 does not
permit impeachment of a defendant with a juvenile adjudication.
Thus, as we sit here today, a juvenile adjudication of a defen-
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dant who testifies is normally not admissible. But see People v.
Harris, 231 Ill. 2d 582, 591, 901 N.E.2d 367, 372 (2008) (allow-
ing impeachment where the defendant's testimony concerning his
prior criminal history was misleading). Thus defendant argues
his lawyer, who was retained to represent the defendant, was
ineffective for bringing defendant's prior adjudication to the
jury's attention. However, a review of the entire trial tran-
script reveals the following.
The State's evidence included the testimony showing
defendant's fingerprint was identified on the pizza box. In
order to lay the foundation for the fingerprint expert's testi-
mony, the State called a correctional officer to testify to the
known fingerprints of the defendant. These known fingerprints
were transported to the crime lab for identification. The
State's fingerprint expert testified she found latent prints on
the pizza box suitable for comparison. After determining they
did not belong to the pizza driver, she ran an automated-
fingerprint-identification-system (AFIS) search. She obtained a
"hit," indicating the prints belonged to the defendant. After
receiving known fingerprint cards of the defendant, the State's
expert made a comparison to the prints on the pizza box and
determined they in fact belonged to the defendant.
Defense counsel clearly was aware of the State's
evidence. In opening statements, defendant's lawyer admitted
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defendant was at the residence where the robbery occurred and he
admitted defendant did, in fact, touch the pizza boxes. The
defendant took the position he was at the location of the robbery
for about one minute, touched the pizza box, and left. He
claimed he was not present when the robbery happened. Often-
times, defense counsel will strategically admit facts on which
the State's evidence is conclusive in order to gain credibility
with the jury. In other words, when a forensic lab expert, with
no personal interest in the case, definitively identifies latent
prints as a defendant's fingerprints, there is no reason to argue
otherwise. Thus it was not ineffective, nor does defendant so
contend, for counsel to admit to the jury what the evidence would
clearly show--defendant touched the pizza boxes.
Moreover, defense counsel knew part of the State's
foundation for the admissibility of the fingerprint expert's
testimony would be the actual, known prints of defendant, which
were on arrest cards. Knowing this, it was not objectively
unreasonable for counsel to ask defendant whether he had a
criminal record or to note the defendant had been in trouble
before. The jury was going to surmise this from the arrest cards
anyway. By bringing it out through the defendant himself,
counsel hoped to bolster defendant's credibility with the jury
when he denied committing the robbery later in his testimony.
This is borne out by defense counsel's closing argument when he
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stated to the jury, "Mr. Coleman was right up front. He told
you, he's in trouble." From this argument, counsel was hoping
the jury would infer, since defendant was honest about his prior
troubles, he must be telling the truth about his noninvolvement
with the robbery. This was not a performance which falls below
an objective standard of reasonableness, and thus counsel was not
ineffective.
Lastly, the State's questions of defendant regarding
his release from DOC were limited and when viewed in the context
of the trial, not improper. When defendant testified, apparently
he felt it necessary to explain why he would not have known his
friend, Michael Rettinger, no longer lived at 12 South State.
Defendant stated, "[a]t the time, before I got locked up, my
friend Michael Rettinger was living at the residence that the
robbery occurred at." In other words, his going to a long-vacant
house to see his friend is explained by his absence from the
community while in DOC. Since defendant offered this testimony,
the State was allowed to cross-examine defendant about it. We
note the State's questioning on this topic was not extensive.
B. Defendant's Sentence
Defendant argues the sentence for armed violence
predicated on robbery as compared to the sentence for armed
robbery with a firearm violates the proportionate-penalties
clause of the Illinois Constitution. As such, defendant asks
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this court to vacate his conviction for armed violence and remand
for entry of judgment on his conviction for armed robbery with a
firearm, which carries a lesser penalty. Defendant did not
object at sentencing nor did he file a posttrial motion on this
issue.
We review the trial court's application of a statute de
novo. People v. Cornelius, 213 Ill. 2d 178, 188, 821 N.E.2d 288,
295 (2004). To overcome the presumption that statutes are
constitutional, the party challenging the statute must show it
violates the constitution. People v. Sharpe, 216 Ill. 2d 481,
487, 839 N.E.2d 492, 497 (2005). We defer to the legislature on
sentencing issues as it is institutionally more capable of
fashioning appropriate sentences. See People v. Hill, 199 Ill.
2d 440, 454, 771 N.E.2d 374, 383 (2002).
The Criminal Code of 1961 (Code) provides an individual
commits armed robbery when he violates section 18-1 of the Code
and "carries on or about his or her person or is otherwise armed
with a firearm." 720 ILCS 5/18-2(a)(2) (West 2006). As a Class
X felony, armed robbery with a firearm carries a sentencing range
of 6 to 30 years. 730 ILCS 5/5-8-1(a)(3) (West 2006). When an
offender uses or possesses a firearm during the commission of the
crime, as in the present case, the trial court must apply a
mandatory 15-year enhancement, bringing the sentencing range for
armed robbery with a firearm to 21 to 45 years. 720 ILCS 5/18-
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2(b) (West 2006).
The sentencing provision for armed violence is provided
in section 33A-3(a) of the Code as follows: "Violation of
[s]ection 33A-2(a) 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(a) (West 2006). A
handgun is a category I weapon. 720 ILCS 5/33A-1(c)(1) (West
2006).
Article I, section 11, of the Illinois Constitution of
1970 provides "[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. Where offenses with identical elements carry
different sentences, the proportionate-penalties clause is
violated. Sharpe, 216 Ill. 2d at 487, 839 N.E.2d at 498. An
unconstitutional statute is void ab initio, i.e., "'"[a]n invalid
law is no law at all."'" People v. Gersch, 135 Ill. 2d 384, 390,
553 N.E.2d 281, 283 (1990), quoting Van Driel Drug Store, Inc. v.
Mahin, 47 Ill. 2d 378, 381, 265 N.E.2d 659, 661 (1970), quoting
People ex rel. Barrett v. Sbarbaro, 386 Ill. 581, 590, 54 N.E.2d
559, 562 (1944). The effect of declaring a statute unconstitu-
tional is to revert to the statute as it existed before the
amendment. Gersch, 135 Ill. 2d at 390, 553 N.E.2d at 283. A
reviewing court has a duty to vacate void orders. People v.
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Brown, 225 Ill. 2d 188, 195, 866 N.E.2d 1163, 1167 (2007).
Here, defendant committed armed robbery with a firearm
and armed violence in March 2006. In 1996, our supreme court
held armed robbery with a dangerous weapon (sentencing range of 6
to 30 years' imprisonment) and armed violence with a dangerous
weapon (sentencing range of 15 to 30 years' imprisonment) were
substantively identical offenses with different penalties.
People v. Lewis, 175 Ill. 2d 412, 418, 677 N.E.2d 830, 832-33
(1996). As such, the Lewis court held the penalty for armed
violence predicated on armed robbery violated the proportionate-
penalties clause. Lewis, 175 Ill. 2d at 418, 677 N.E.2d at 833.
In 2000, the Illinois legislature enacted Public Act 91-404 "to
deter the use of firearms in the commission of a felony offense."
Pub. Act 91-404, §5, eff. January 1, 2000 (1999 Ill. Legis. Serv.
4026, 4032 (West)). The act amended the sentencing portion of
the armed-robbery statute to provide for 15/20/25 to life in-
creases in sentences for the four varieties of armed robbery.
Pub. Act 91-404, §5, eff. January 1, 2000 (1999 Ill. Legis. Serv.
4026, 4031 (West)). The effect of this amendment was to increase
the minimum sentence for armed robbery, while armed with a
firearm, to 21 years.
In People v. Hauschild, 226 Ill. 2d 63, 871 N.E.2d 1
(2007), our supreme court revisited the proportionate-penalties
issue raised by Public Act 91-404. There, the trial court
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refused to enhance the defendant's armed-robbery sentence on the
grounds it violated the proportionate-penalties clause. Hauschi-
ld, 226 Ill. 2d at 69, 871 N.E.2d at 4-5. Our supreme court
reviewed defendant's conviction for armed robbery in light of the
"lesser offense" of armed violence predicated on robbery because
the evidence would have supported that conviction. Hauschild,
226 Ill. 2d at 88, 871 N.E.2d at 15. The court determined a
charge of armed violence predicated on robbery had the same
elements as a charge of armed robbery while armed with a firearm,
but the offenses carried different penalties. Hauschild, 226 Ill.
2d at 85-86, 871 N.E.2d at 13-14. In accordance with Lewis, the
court held when an amended statute violates the proportionate-
penalties clause, the reviewing court should remand for
resentencing under the statute as it existed before the amend-
ment. Hauschild, 226 Ill. 2d at 88-89, 871 N.E.2d at 15.
The Code defines armed robbery as the taking of prop-
erty from the person or presence of another by the use of force
or the threat of imminent force while armed with a firearm. 720
ILCS 5/18-1(a), 18-2(a)(2) (West 2006). Armed violence predi-
cated on robbery is the offense of robbery (720 ILCS 5/18-1(a)
(West 2006)) while armed with a category I weapon. 720 ILCS
5/33A-1(c), 33A-2(a) (West 2006). As the elements of the two
offenses are identical, the proportionate-penalties clause
applies and their sentences should be identical as well.
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Hauschild, 226 Ill. 2d at 86, 871 N.E.2d at 14. However, armed
robbery with a firearm, with the 15-year enhancement, carries a
21- to 45-year sentence while the sentencing range for armed
violence is 15 to 30 years. Hauschild, 226 Ill. 2d at 86, 871
N.E.2d at 14. Because the penalty for armed robbery with a
firearm is more severe than the penalty for armed violence, the
15-year enhancement for armed robbery created by Public Act 91-
404 violates the proportionate-penalties clause. Hauschild, 226
Ill. 2d at 88, 871 N.E.2d at 15.
In this case, the trial court sentenced defendant to 15
years' imprisonment for armed violence and did not sentence him
on his conviction for armed robbery with a firearm. At the time
of his sentencing, Hauschild had already determined the 15-year
enhancement for armed robbery with a firearm was unconstitu-
tional. The sentencing range for armed robbery was 6 to 30
years. However, armed violence, a crime with identical elements
to armed robbery with a firearm, carries a penalty of no less
than 15 years' imprisonment. As such, the armed-violence sen-
tence violates the proportionate-penalties clause. Because the
statute was void ab initio at the time of sentencing, defendant's
sentence is void. According to Hauschild, the proper remedy
under these circumstances is to remand for sentencing on the
offense with the lesser penalty, armed robbery.
We note subsequent to defendant's commission of this
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offense, the legislature amended the armed-violence statute in an
attempt to alleviate the proportionate-penalties issue. See Pub.
Act 95-688, §4, eff. October 23, 2007 (2007 Ill. Legis. Serv.
6228, 6228-29 (West)). The language of the new statute, inter
alia, eliminated the charge of armed violence for a person who
uses a firearm to commit robbery. We also recognize the issue of
Hauschild's viability has been argued before the supreme court in
People v. Kelly, No. 107832 (March 2010). Unless and until our
supreme court modifies its decision in Hauschild, we are bound to
follow it.
III. CONCLUSION
For the reasons stated, we vacate the trial court's 15-
year sentence and remand for sentencing on defendant's armed-
robbery conviction.
Sentence vacated; cause remanded for resentencing.
MYERSCOUGH, P.J., and McCULLOUGH, J., concur.
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