                                  Illinois Official Reports

                                          Appellate Court



                              People v. Ligon, 2014 IL App (1st) 120913



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      DENNIS LIGON, Defendant-Appellant.


District & No.               First District, First Division
                             Docket No. 1-12-0913


Filed                        June 23, 2014


Held                         Defendant’s sentence to mandatory life imprisonment as an habitual
(Note: This syllabus         criminal following his conviction for aggravated vehicular hijacking
constitutes no part of the   with a dangerous weapon, a bludgeon, his third Class X felony
opinion of the court but     conviction, was vacated pursuant to his petition under section 2-1401
has been prepared by the     of the Code of Civil Procedure, alleging, for the first time, that his
Reporter of Decisions        sentence violated the proportionate penalties clause because the
for the convenience of       charged offense had the same elements as the Class 1 offense of armed
the reader.)                 violence predicated on vehicular hijacking with a dangerous weapon
                             but was punished more severely, since the allegation was not forfeited
                             but, rather, raised a claim that was not subject to waiver, namely, that
                             the sentence was void, and based on the disparate nature of the
                             sentences for the identical offenses, the cause was remanded to allow
                             defendant to be sentenced as a Class 1 offender pursuant to the armed
                             violence statute, regardless of the State’s claim that the decision would
                             frustrate the legislature’s intent and render both the aggravated
                             vehicular hijacking statute and the habitual criminal statute
                             “ineffective.”



                             Appeal from the Circuit Court of Cook County, No. 01-CR-2559; the
Decision Under
                             Hon. James Michael Obbish, Judge, presiding.
Review


Judgment                     Reversed, sentence vacated, and cause remanded.
     Counsel on               Michael J. Pelletier, Alan D. Goldberg, and Patrick F. Cassidy, all of
     Appeal                   State Appellate Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              John E. Nowak, Veronica Calderon Malavia, and Kathryn A. Schierl,
                              Assistant State’s Attorneys, of counsel), for the People.




     Panel                    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 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 posttrial 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).



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¶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 (2006) (table)), as was his petition for a writ
     of habeas corpus (Ligon v. Jones, No. 06 C 5862, 2007 WL 2351228 (N.D. Ill. Aug. 14,
     2007)).
¶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, ___ U.S. ___, 131 S. Ct. 1698 (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.
¶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


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       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 181; 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
       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 exceptions,1 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) (West 2004). Therefore, the defendant’s sentence for aggravated vehicular
       hijacking is 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

           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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       remained a Class X offense since its inception. Accordingly, we follow the holding in People
       v. 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 1
       offender under the armed violence statute.2
¶ 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, 347-48 (2004).
¶ 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
       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.

           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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