People v. Ligon

2014 IL App (1st) 120913FIRST DIVISION
Filed: June 23, 2014
No. 1-12-0913
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
) Appeal from the Circuit Court
THE PEOPLE OF THE STATE OF ILLINOIS, ) of Cook County.
)
Plaintiff-Appellee, )
)
v. ) No. 01 CR 2559
)
DENNIS LIGON, ) Honorable
) James Michael Obbish,
Defendant-Appellant. ) Judge Presiding.
______________________________________________________________________________
JUSTICE HOFFMAN delivered the judgment of the court, with opinion.
Presiding Justice Connors and Justice Cunningham concurred in the judgment and opinion.
OPINION
¶1 A jury found the defendant, Dennis Ligon, guilty of aggravated vehicular hijacking with
a dangerous weapon, a Class X felony, under section 18-4(a) of the Criminal Code of 1961
(Code) (720 ILCS 5/18-4(a)(3) (West 2004)). Determining that this was the defendant's third
Class X felony conviction, the court sentenced him to a term of mandatory life imprisonment as
an habitual criminal under section 33B-1 of the Code (720 ILCS 5/33B-1(a), (e) (West 2004)).
The defendant filed a petition for relief from judgment (petition) under section 2-1401 of the
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Code of Civil Procedure (735 ILCS 5/2-1401 (West 2008)), contending that his sentence violated
the proportionate penalties clause of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §
11). The trial court dismissed his petition, and the defendant now appeals. We reverse the
judgment of the trial court, vacate the defendant's sentence, and remand for further proceedings.
¶2 The facts of this case have been recited in detail in the defendant's direct appeal (People
v. Ligon, 365 Ill. App. 3d 109 (2006)), and we therefore set forth only those facts necessary to
consider the issues raised here. In 2003, the defendant was charged with aggravated vehicular
hijacking "while armed with a dangerous weapon other than a firearm," in violation of section
18-4(a)(3) of the Code. The evidence established that, on December 16, 2000, the defendant
used a BB gun, which could have been employed as a bludgeon, to force the victim to turn over
the keys to her pickup truck. The defendant then drove the vehicle away. The jury convicted the
defendant of aggravated vehicular hijacking. On June 11, 2003, the State petitioned to have the
defendant found to be an habitual criminal under section 33B-1(a) of the Code, based upon the
fact that this was his third conviction for a Class X offense. The trial court agreed, and following
the denial of the defendant's post trial motions, adjudged the defendant an habitual offender, and
sentenced him to natural life in prison pursuant to section 33B-1(e). See 720 ILCS 5/33B-1(a),
(e) (West 2004).
¶3 The defendant appealed his conviction to this court, and we affirmed. People v. Ligon,
365 Ill. App. 3d 109. His arguments on appeal included the contention that the habitual criminal
law as applied to him deprived him of his constitutional right to a jury and to due process. Id. at
126. The defendant's subsequent petition for leave to appeal was denied by the supreme court
(People v. Ligon, 221 Ill. 2d 658 (September 27, 2006)), as was his petition for a writ of habeas
corpus. Ligon v. Jones, 2007 U.S. Dist. Lexis 59678 (August 14, 2007).
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¶4 On March 8, 2007, the defendant filed a pro se postconviction petition which was
summarily dismissed by the trial court. The defendant again appealed, and this court affirmed,
further finding that defendant did not have a constitutional right to the assistance of court-
appointed counsel in preparing that petition. People v. Ligon, 392 Ill. App. 3d 988, 1000 (2009),
aff'd, 239 Ill. 2d 94 (2010), cert. denied, Ligon v. Illinois, ___ U.S. ___, 131 S. Ct. 1698 (March
21, 2011).
¶5 The defendant then filed the section 2-1401 petition at issue in this appeal, maintaining,
for the first time, that his sentence was void as a violation of the proportionate penalties clause of
the Illinois Constitution. The defendant argued that the Class X offense of aggravated vehicular
hijacking has identical elements of proof as the Class 1 offense of armed violence predicated on
vehicular hijacking with a dangerous weapon. Accordingly, under the mandate of the
proportionate penalties clause, he should have been sentenced for the Class 1 offense. The trial
court dismissed the petition, finding that the defendant forfeited his constitutional challenge by
failing to raise it in his direct appeal or postconviction petitions, and that, despite forfeiture, his
legal arguments were not the proper subject of a petition for relief from judgment under section
2-1401. The instant appeal followed.
¶6 The defendant argues that his Class X conviction and sentence for aggravated vehicular
hijacking violate the proportionate penalties clause of the Illinois constitution, because
aggravated vehicular hijacking is punished more severely than the identical offense of armed
violence predicated on vehicular hijacking with a dangerous weapon. Accordingly, the argument
continues, as an armed violence conviction is classified only as a Class 1 or 2 offense, he should
not have been sentenced to mandatory life imprisonment under the habitual offender statute. We
agree.
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¶7 Preliminarily, we take issue with the trial court's dismissal of this case on the basis of
forfeiture. Our supreme court has upheld a defendant's right to challenge a sentencing scheme as
a violation of the proportionate penalties clause at any time in the proceedings. People v.
Guevara, 216 Ill. 2d 533, 542 (2005). Such a violation renders the scheme void ab initio and not
subject to waiver. Id. Further, a challenge alleging a void sentence is the proper subject of a
section 2-1401 petition. See People v. Harvey, 196 Ill. 2d 444, 447 (2001). We conclude,
therefore, that the court should have reached the merits of the petition.
¶8 In determining whether a proportionate penalties violation has been established, the
primary inquiry is whether the "legislature has set the sentence in accord with the seriousness of
the offense." Guevara, 216 Ill. 2d at 543. A sentence violates the proportionate penalties clause
if (1) it is cruel, degrading, or so wholly disproportionate to the offense that it shocks the moral
sense of the community, or (2) it is greater than the sentence for a different offense comprised of
identical elements. Id. In upholding the "identical elements" test, the supreme court has
consistently observed that, if the legislature " 'determines that the exact same elements merit two
different penalties, then one of these penalties has not been set in accordance with the
seriousness of the offense.' " People v. Clemons, 2012 IL 107821, ¶ 30, quoting People v.
Sharpe, 216 Ill. 2d 481, 522 (2005); People v. Christy, 139 Ill. 2d 172 (1990). An expectation of
identical penalties for identical offenses comports with "common sense and sound logic," and
also gives effect to the plain language of the Illinois Constitution. See Christy, 139 Ill. 2d at 18;
see also Clemons, 2012 IL 107821, ¶ 30. The question of whether a statute violates the
proportionate penalties clause is reviewed de novo. People v. Hauschild, 226 Ill. 2d 63 (2007).
¶9 Section 18-4(a)(3) defines aggravated hijacking as the taking of a motor vehicle from
another by the use or threat of force while "armed with a dangerous weapon" other than a
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firearm. 720 ILCS 5/18-4(a)(3) (West 2004). Correspondingly, the Code in effect at the time of
the defendant's actions defines armed violence as the commission of any felony, with several
exceptions1, while "armed with a dangerous weapon." 720 ILCS 5/33A-2(a) (West 2004).
"Dangerous weapons" are divided into three categories, with categories I and II consisting of
various firearms, and category III expressly including a bludgeon, which was the basis for the
defendant's conviction here. 720 ILCS 5/33A–1(c) (West 2004). For purposes of the identical
elements test, we conclude that the offense of aggravated vehicular hijacking with a bludgeon is
identical to armed violence based upon vehicular hijacking with a bludgeon. See People v.
Andrews, 364 Ill. App. 3d 253, 275, (2006); People v. Williams, 2012 IL App (1st) 100126(aggravated vehicular hijacking with a firearm held identical to armed violence predicated upon
simple vehicular hijacking with a firearm); see also Hauschild, 226 Ill. 2d 63 (substantive
offense of armed robbery identical to armed violence based upon robbery while armed with a
firearm).
¶ 10 The respective penalties for these offenses, however, are disparate, with aggravated
hijacking uniformly designated a Class X felony, and armed violence based upon vehicular
hijacking with a category III weapon designated as either a Class 1 or 2 felony. 720 ILCS
5/33A-3(b). Therefore, the defendant's sentence for aggravated vehicular hijacking is
1
Among the exceptions are aggravated vehicular hijacking and armed robbery.
However, although these offenses cannot serve as predicate offenses to armed violence,
the legislature did not specifically bar vehicular hijacking or robbery from forming the
basis of such an offense. Accordingly, aggravated vehicular hijacking and armed robbery
can properly be compared with armed violence based upon simple vehicular hijacking
and robbery for purposes of a proportionate penalties claim. Clemons, 2012 IL 107821, ¶
14.
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disproportionate to that for the identical offense of armed violence, and cannot stand under
longstanding precedent. People v. Span, 2011 IL App (1st) 083037; see Clemons, 2012 IL
107821; Christy, 139 Ill. 2d 172.
¶ 11 In determining the appropriate remedy in this case, there is less guidance, owing to
revisions to the armed violence statute in response to proportionate penalties challenges. See,
e.g., Williams, 2012 IL App (1st) 100126. In the majority of cases, proportionate penalties claims
were brought as the result of statutory amendments which added sentencing enhancements to the
offending statutes. In those cases, the proper remedy was to vacate the sentence, and remand for
resentencing in accordance with the statute as it was written before the amendment. Span, 2011
IL App (1st) 083037, ¶ 109; see Christy, 139 Ill. 2d 172; Andrews, 364 Ill. App. 3d at 275;
Williams, 2012 IL App (1st) 100126. This case, by contrast, is not premised upon any such
amendment, as aggravated vehicular hijacking has remained a Class X offense since its
inception. Accordingly, we follow the holding in Christy, 188 Ill. App. 3d 330, 334 (1989),
aff'd, 139 Ill. 2d 172, wherein we ruled that the defendant must be sentenced under the lesser of
the two identical offenses, even if that lesser offense was uncharged. Consequently, we agree
with the defendant that, here, his sentence for aggravated vehicular hijacking must be vacated,
and he must be sentenced as a Class I offender under the armed violence statute. 2
2
We note that, in any event, this issue has become moot. In 2007, the armed violence
statute was amended to specifically exclude vehicular hijacking from serving as a
predicate to that offense. See Pub. Act 95–688, § 4 (eff. Oct. 23, 2007) (amending 720
ILCS 5/33A–2, 33A–3). Thus, there is no longer any overlap between the offense of
armed violence and section 18-4(a)(3) (720 ILCS 5/18-4(a)(3) (West 2004)), and the
proportionate penalties infirmities at issue here no longer exist.
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¶ 12 The State argues that the effect of our decision in this case would lead prosecutors to
refrain from charging defendants under the aggravated vehicular hijacking statute and to opt
instead for prosecution under the armed violence statute, frustrating the intent of the legislature
by leading to an "ineffective" aggravated vehicular hijacking statute, as well as an ineffective
habitual criminal statute. The State further asserts, relying upon our decisions in People v.
Cummings, that this case is distinguishable from Christy, because in Christy, unlike here, the
defendant had been charged with the lesser offense, and was not subject to sentencing as an
habitual criminal.
¶ 13 In Cummings, the defendant alleged that his sentence for armed robbery with a dangerous
weapon was unconstitutionally disproportionate to the offense of armed violence predicated on
robbery with a bludgeon. As it was his third Class X offense, he was sentenced as an habitual
offender. On appeal, this court rejected the defendant's proportionality challenge, finding that he
was "not sentenced for his armed robbery conviction," but rather, as an habitual offender, and
therefore, the comparison of the sentences for armed violence and armed robbery was
inapplicable. People v. Cummings, 375 Ill. App. 3d 513, 521-22 (2007). The court further
noted, in the defendant's earlier appeal, that the prosecutor had properly exercised its discretion
to charge the defendant only with the more serious offense of armed robbery, and was not
required to proceed on a lesser charge. People v. Cummings, 351 Ill. App. 3d 343, 347-8 (2005).
¶ 14 We question the vitality of Cummings in light of the supreme court's ongoing
reaffirmation of the identical elements test, despite efforts to denounce it as unworkable,
inconsistent with our constitution, and an affront to the power of the General Assembly and to
prosecutorial discretion. See Clemons, 2012 IL 107821; People v. Lewis, 175 Ill. 2d 412, 422
(1996). While we agree that the State need not proceed on a lesser offense when there is
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sufficient evidence to convict on a greater one, this court cannot relax the prohibition against
different penalties for identical crimes merely because the State elects to proceed exclusively on
the offense carrying a greater penalty. See Lewis, 175 Ill. 2d at 422. Thus, we must reject the
State's argument.
¶ 15 For the foregoing reasons, we reverse the judgment of the circuit court, vacate the
defendant's sentence, and remand for resentencing in accordance with this opinion.
¶ 16 Reversed, sentence vacated, and cause remanded.
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