                                     2016 IL 118023



                                        IN THE
                               SUPREME COURT
                                           OF
                         THE STATE OF ILLINOIS



                                   (Docket No. 118023)

          THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DENNIS
                                    LIGON, Appellee.



                             Opinion filed February 19, 2016.



        JUSTICE KARMEIER delivered the judgment of the court, with opinion.

        Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke, and
     Theis concurred in the judgment and opinion.



                                        OPINION

¶1       A Cook County jury found defendant, Dennis Ligon, guilty of aggravated
     vehicular hijacking with a dangerous weapon, other than a firearm (AVH/DW), a
     Class X felony, under section 18-4(a)(3), (b) of the Criminal Code of 1961 (Code)
     (720 ILCS 5/18-4(a)(3), (b) (West 2000)). Determining that this was defendant’s
     third Class X felony conviction, the trial court adjudged him an habitual criminal
     and sentenced him to a term of mandatory life imprisonment under section
     33B-1(a), (e) of the Code (720 ILCS 5/33B-1(a), (e) (West 2000)). Defendant
     subsequently filed a petition for relief from judgment under section 2-1401 of the
     Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)), contending that this
     sentence violated the proportionate penalties clause of the Illinois Constitution of
     1970 (Ill. Const. 1970, art. I, § 11). The trial court dismissed defendant’s petition
     sua sponte and he appealed. The appellate court reversed the trial court’s judgment,
     vacated defendant’s sentence for AVH/DW and remanded for resentencing in
     accordance with its opinion. 2014 IL App (1st) 120913, ¶ 15. The State petitioned
     this court for leave to appeal as a matter of right under Illinois Supreme Court Rule
     317 (eff. July 1, 2006) or, alternatively, as a matter of discretion under Rule 315
     (Ill. S. Ct. R. 315(a) (eff. Feb. 26, 2010)). We granted the State leave to appeal and,
     for the reasons that follow, we reverse the judgment of the appellate court and
     affirm the judgment of the circuit court.



¶2                                     BACKGROUND

¶3       On December 16, 2000, defendant, while armed with a BB gun, approached
     Ana Diaz as she was getting out of her pickup truck, and took that vehicle from her.
     Following defendant’s arrest, he was charged by indictment with AVH/DW, in that
     “he, knowingly took a motor vehicle, a 2000 Ford, from the person or immediate
     presence of [Ana] Diaz, by the use of force or by threatening the imminent use of
     force and [defendant] was armed with a dangerous weapon, to wit: a bludgeon,” in
     violation of section18-4(a)(3). At his April 2003 trial, the State presented, inter
     alia, the testimony of Diaz, who identified defendant as her attacker and described
     the crime. According to Diaz, defendant approached her after she had parked her
     red Ford F150 pickup truck and told her to leave her keys in the ignition and get out
     of the truck. Diaz gave defendant her keys after he pushed “a gun” into her side and
     threatened to kill her. When Diaz moved away from the truck, defendant drove off.
     Diaz identified People’s Exhibit 2 as “the gun that [defendant] pulled on me.”

¶4       The State also presented the testimony of Officer Eric Helson, who stated that
     early on the morning of January 3, 2001, he and his partner were on duty when they
     noticed another patrol car stopped near a red Ford truck. After Helson spoke with
     the officer who had arrived on the scene first, the truck’s occupants, Georgio
     Dawson and Tenita Barber, were questioned and asked to step out of the truck.
     Dawson and Barber stated that a man named Dennis had been driving the truck but
     had recently gotten out and walked away. A search by police of the truck revealed a
     “black hand BB gun” on the floor of the driver’s side. Officer Helson thereafter
     learned that the truck was stolen. Helson and his partner then took Dawson to locate

                                              -2-
     the driver, and Dawson soon pointed out defendant, standing near the entrance to an
     elevated train station about a block and a half from the red truck. Defendant
     identified himself to Helson as Dennis, and was arrested. Officer Helson identified
     People’s Exhibit 2 as the BB gun found in the truck. The parties stipulated that Diaz
     was the owner of the stolen truck in which Dawson and Barber were seated. The
     jury found defendant guilty of AVH/DW.

¶5       On June 11, 2003, the State petitioned the court to have defendant adjudged and
     sentenced under the Habitual Criminal Act (Act), based upon the fact that this was
     his third conviction for a Class X offense. See 720 ILCS 5/33B-1(a), (e) (West
     2000). Defendant filed a pro se motion for new trial and his trial counsel also filed a
     motion for new trial. When trial counsel was replaced by private counsel, a
     supplemental motion was filed incorporating both previous motions. That motion
     alleged that a new trial was warranted because, inter alia, defendant was not proven
     guilty beyond a reasonable doubt, and because no evidence was presented at trial
     that the BB gun was used as a bludgeon, as was averred in defendant’s indictment.
     Following an evidentiary hearing, the trial court denied the supplemental motion
     for a new trial. The court, at sentencing, found the requirements of the Act had been
     met and imposed the mandatory term of natural life in prison. See 720 ILCS
     5/33B-1(a), (e) (West 2000).

¶6       On direct appeal, the appellate court affirmed defendant’s conviction and
     sentence, rejecting, inter alia, his claim that the State failed to prove AVH/DW
     beyond a reasonable doubt because it did not prove that he committed the offense
     with a dangerous weapon other than a firearm. People v. Ligon, 365 Ill. App. 3d
     109 (2006). Defendant’s subsequent petition for leave to appeal was denied by this
     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)). In March 2007, defendant filed a pro se postconviction petition
     which was summarily dismissed by the trial court. Defendant again appealed,
     without success. People v. Ligon, 392 Ill. App. 3d 988 (2009), aff’d, 239 Ill. 2d 94
     (2010), cert. denied, 562 U.S. 1296 (2011).

¶7       Thereafter, in January 2012, defendant 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. Ill.
     Const. 1970, art. I, § 11. The trial court dismissed the petition, finding that
     defendant had forfeited his constitutional challenge by failing to raise it in his direct
                                               -3-
       appeal or postconviction petitions, and that, regardless of forfeiture, his legal
       arguments were not the proper subject of a petition for relief from judgment under
       section 2-1401. On appeal, the appellate court reversed the trial court, agreeing
       with defendant’s claim that the Class X offense of aggravated vehicular hijacking
       has identical elements as the Class 1 offense of armed violence predicated on
       vehicular hijacking with a dangerous weapon, and thus his sentence for AVH/DW
       violated the proportionate penalties clause because it was punished more severely
       than the described offense of armed violence. 2014 IL App (1st) 120913, ¶¶ 5-6,
       11; 720 ILCS 5/18-4(b), 33A-3(b) (West 2000). The appellate court therefore
       vacated defendant’s sentence for AVH/DW, and remanded for resentencing as a
       Class 1 offender under the armed violence statute. 2014 IL App (1st) 120913, ¶ 15.



¶8                                         ANALYSIS

¶9          Initially, we note our agreement with the appellate court below that the trial
       court erred in dismissing defendant’s section 2-1401 petition due to forfeiture and
       because it was improperly raised. 2014 IL App (1st) 120913, ¶ 7. Voidness
       challenges stemming from the unconstitutionality of a criminal statute under the
       proportionate penalties clause may be raised at any time. People v. Guevara, 216
       Ill. 2d 533, 542 (2005). Further, a motion to vacate a void judgment is properly
       raised in a petition for relief from judgment under section 2-1401. Sarkissian v.
       Chicago Board of Education, 201 Ill. 2d 95, 104-05 (2002); see also People v.
       Thompson, 2015 IL 118151, ¶¶ 31-32 (a type of voidness challenge to a final
       judgment under section 2-1401 involves a challenge based on a facially
       unconstitutional statute). Thus, the trial court should have reached the merits of
       defendant’s petition. 2014 IL App (1st) 120913, ¶ 7.

¶ 10       Before this court, the State argues that the appellate court erred in finding a
       violation of the proportionate penalties clause of our constitution. Article I, section
       11, 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. “In analyzing a
       proportionate penalties challenge, our ultimate inquiry is whether the legislature
       has set the sentence in accord with the seriousness of the offense.” Guevara, 216 Ill.
       2d at 543; see also People v. Lombardi, 184 Ill. 2d 462, 473-74 (1998). In Guevara,
       216 Ill. 2d at 543-44, we recognized that there are several ways in which a penalty

                                                -4-
       can violate the proportionate penalties clause: (1) if it is so cruel, degrading, or
       disproportionate to the offense that the sentence shocks the moral sense of the
       community; or (2) if it is greater than the sentence for an offense with identical
       elements.

¶ 11       In cases such as this one, where defendant argues solely that the second, or
       “identical elements,” test is at issue, this court has repeatedly observed that, “ ‘[i]f
       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)). An expectation of identical penalties
       for identical offenses comports with “common sense and sound logic” (People v.
       Christy, 139 Ill. 2d 172, 181 (1990)), and also gives effect to the plain language of
       the Illinois Constitution (Clemons, 2012 IL 107821, ¶ 30). Thus, where identical
       offenses do not yield identical penalties, this court has held that the penalties were
       unconstitutionally disproportionate and the greater penalty could not stand. Sharpe,
       216 Ill. 2d at 504 (citing Christy, 139 Ill. 2d at 181). As the constitutionality of a
       statute is purely a matter of law, we review the question de novo. People v.
       Hauschild, 226 Ill. 2d 63, 83 (2007); Sharpe, 216 Ill. 2d at 486-87. However, we
       begin with the presumption that the statute is constitutional and that, if reasonably
       possible, this court must construe the statute so as to affirm its constitutionality and
       validity. In re D.W., 214 Ill. 2d 289, 310 (2005).

¶ 12       Given these principles, we first examine the State’s contention that it is not
       appropriate to conduct an identical elements comparison between the offenses of
       AVH/DW and armed violence predicated on vehicular hijacking with a category III
       dangerous weapon, because “defendant was not sentenced under the aggravated
       vehicular hijacking statute, but rather the [Act].” While we agree that the identical
       elements test is not applicable to the Act, we reject the State’s argument, which it
       based on the holding in People v. Cummings, 375 Ill. App. 3d 513, 521-22 (2007),
       that an identical elements challenge may not be conducted where the defendant is
       ultimately adjudged an habitual criminal and sentenced under the Act.

¶ 13      Section 33B-1(a) states:

          “Every person who has been twice convicted in any state or federal court of an
          offense that contains the same elements as an offense now classified in Illinois
          as a Class X felony, criminal sexual assault, aggravated kidnapping or first

                                                -5-
          degree murder, and is thereafter convicted of a Class X felony, criminal sexual
          assault or first degree murder, committed after the 2 prior convictions, shall be
          adjudged an habitual criminal.” 720 ILCS 5/33B-1(a) (West 2000).

       “The Habitual Criminal Act mandates the imposition of a natural life sentence on a
       defendant convicted of three Class X felonies within a 20-year period.” People v.
       Levin, 157 Ill. 2d 138, 148 (1993); 720 ILCS 5/33B-1(a), (e) (West 2000); see also
       People v. Dunigan, 165 Ill. 2d 235, 243 (1995) (under the Act, the defendant
       received a mandatory sentence of life imprisonment as punishment for his third
       serious felony offense).

¶ 14       Section 33B-2 of the Act sets out the procedures that apply when the State seeks
       to have a court sentence a defendant as an habitual criminal. Section 33B-2(a)
       provides, in pertinent part:

          “After a plea or verdict or finding of guilty and before sentence is imposed, the
          prosecutor may file with the court a verified written statement signed by the
          State’s Attorney concerning any former conviction of an offense set forth in
          Section 33B–1 rendered against the defendant. The court shall then cause the
          defendant to be brought before it; shall inform him of the allegations of the
          statement so filed, and of his right to a hearing before the court on the issue of
          such former conviction and of his right to counsel at such hearing; and unless
          the defendant admits such conviction, the court shall hear and determine such
          issue, and shall make a written finding thereon.” 720 ILCS 5/33B-2(a) (West
          2000).

       Accordingly, after the State presents evidence that a defendant has been convicted
       of three qualifying Class X offenses, he “shall be adjudged an habitual criminal.”
       720 ILCS 5/33B-1(a) (West 2000). In other words, the court shall “[a]djudge” or
       make a “judicial determination” of the requisite facts and, based thereon, “decree,”
       “sentence,” or enter judgment on defendant under the Act. See Black’s Law
       Dictionary 39 (5th ed. 1979) (defining “[a]djudge”).

¶ 15       Further, the United States Supreme Court and this court have repeatedly
       acknowledged that habitual criminal statutes do not define a new or independent
       criminal offense. Dunigan, 165 Ill. 2d at 242 (citing Gryger v. Burke, 334 U.S. 728
       (1948), and People v. Williams, 36 Ill. 2d 505 (1967)). As this court stated in
       Dunigan:

                                              -6-
          “Rather, such statutes simply prescribe the circumstances under which a
          defendant found guilty of a specific crime may be more severely punished
          because that defendant has a history of prior convictions. The punishment
          imposed under the Act is for the most recent offense only. The penalty is made
          heavier because the person convicted is a habitual criminal. The Act does not
          punish a defendant again for his prior felony convictions, nor are those
          convictions elements of the most recent felony offense. Instead, they simply
          aggravate or enhance the penalty imposed for the third and most recent
          offense.” Dunigan, 165 Ill. 2d at 242.

       This court has similarly stated that “habitual-offender legislation neither creates a
       separate offense nor directly involves the prior crimes. The prior-conviction
       evidence *** is merely a matter of aggravation going solely to the punishment to be
       imposed; it is not an ingredient of the main offense charged.” Levin, 157 Ill. 2d at
       149 (citing People v. Kirkrand, 397 Ill. 588, 590 (1947)).

¶ 16       Therefore, where the Act is a solely recidivist sentencing statute that does not
       define any crime and thus has no elements to compare with another statute, it has no
       application to the identical elements test, which requires the court to compare the
       elements of each offense as set forth in the statute defining it. See, e.g., People v.
       Hauschild, 226 Ill. 2d 63, 85-86 (2007) (under the identical elements test, court
       compared statutory elements of armed robbery while armed with a firearm to the
       statutory elements of armed violence predicated on robbery while armed with a
       category I weapon); People v. Graves, 207 Ill. 2d 478, 483-84 (2003) (under
       identical elements test, court compared statutory elements of unauthorized theft to
       statutory elements of theft by deception). Additionally, because the Act only comes
       into play following a defendant’s conviction of a third Class X felony, its
       sentencing provisions cannot be compared to the sentences for any of the particular
       Class X felonies that can trigger it. See Dunigan, 165 Ill. 2d at 242.

¶ 17        Thus, we conclude that the State’s reliance on the appellate court’s decision in
       Cummings was mistaken where that court erred in rejecting an identical elements
       comparison of the offenses of armed violence and armed robbery, instead finding
       the “defendant was not sentenced for his armed robbery conviction” but was
       adjudged an habitual criminal and sentenced to life imprisonment. Cummings, 375
       Ill. App. 3d at 521-22. Accordingly, Cummings is hereby overruled. See 2014 IL
       App (1st) 120913, ¶¶ 13-14 (questioning the vitality of Cummings in light of this
       court’s “ongoing reaffirmation of the identical elements test”).
                                               -7-
¶ 18       Having established that a defendant’s eventual adjudication and sentence as an
       habitual criminal has no effect on a court’s determination of whether a qualifying
       offense violates the proportionate penalties clause under the identical elements test,
       we proceed to examine the State’s contention that AVH/DW, as charged herein
       under section 18-4(a)(3) of the Code (720 ILCS 5/18-4(a)(3) (West 2004)), and
       armed violence while armed with a category III weapon (720 ILCS 5/33A-2(a),
       33A-1(c)(3) (West 2004)), do not have identical elements. The AVH/DW statute in
       effect at the time of defendant’s offense states, in pertinent part:

               “(a) A person commits aggravated vehicular hijacking when he or she
           violates Section 18–3[1]; and

                                                     ***

                  (3) he or she carries on or about his or her person, or is otherwise armed
               with a dangerous weapon, other than a firearm; ***

                                                     ***

               (b) Sentence. *** Aggravated vehicular hijacking in violation of subsection
           (a)(3) is a Class X felony for which a term of imprisonment of not less than 7
           years shall be imposed.” 720 ILCS 5/18-4 (West 2000).

       As noted above, defendant’s indictment alleged that he violated section 18-4(a)(3)
       where, inter alia, he was “armed with a dangerous weapon, to wit: a bludgeon.”
       720 ILCS 5/18-4(a)(3), 33A-1(c)(3) (West 2000).

¶ 19       In comparison, section 33A-2(a) of the armed violence statute provides, in
       pertinent part:

               “§ 33A-2. Armed violence—Elements of the offense.

              (a) A person commits armed violence when, while armed with a dangerous
           weapon, he commits any felony defined by Illinois Law, except *** armed




           1
            “§ 18-3. Vehicular hijacking. (a) A person commits vehicular hijacking when he or she takes a
       motor vehicle from the person or the immediate presence of another by the use of force or by
       threatening the imminent use of force.” 720 ILCS 5/18-3 (West 2000).
                                                     -8-
           robbery, or aggravated vehicular hijacking.[ 2]” 720 ILCS 5/33A-2(a) (West
           2000).

       For purposes of the armed violence statute, a person is considered “armed with a
       dangerous weapon” when he or she “carries on or about his or her person or is
       otherwise armed with a Category I, Category II, or Category III weapon.” 720
       ILCS 5/33A-1(c)(1) (West 2000). Category I weapons consist of various firearms,
       while category II weapons include additional types of firearms, certain kinds of
       knives, blade-type weapons, “or other deadly or dangerous weapon or instrument
       of like character.” 720 ILCS 5/33A-1(c)(2) (West 2000). Category III weapons are
       defined as “a bludgeon, black-jack, slungshot, sand-bag, sand-club, metal
       knuckles, billy, or other dangerous weapon of like character.” 720 ILCS
       5/33A-1(c)(3) (West 2000).

¶ 20       The proportionate penalties clause may be used to judge the penalty imposed
       upon conviction for one offense in relation to another only if their elements are
       identical. See People v. Sharpe, 216 Ill. 2d 481, 523, 526 (2005). As previously
       noted, “ ‘[i]f 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.’ ” and is invalid. Clemons, 2012 IL 107821, ¶ 30
       (quoting Sharpe, 216 Ill. 2d at 522); see also Christy, 139 Ill. 2d at 181. However,
       we agree with the State that this principle has no application here because, at the
       time defendant committed his offense, the elements of AVH/DW were not identical
       to the elements of armed violence based upon vehicular hijacking with a category
       III weapon. Rather, as discussed below, we find that many objects, including the
       BB gun defendant possessed in this case, satisfy the “dangerous weapon” element
       of AVH/DW, but not the “Category III weapon” element of armed violence with a
       category III dangerous weapon. See People v. Davis, 199 Ill. 2d 130, 141 (2002)
       (holding a BB/pellet gun did not qualify as a “bludgeon” under the armed violence

           2
             As stated, among the felony exceptions to section 33A-2 is the offense of “aggravated
       vehicular hijacking.” However, we agree with the appellate court that while aggravated vehicular
       hijacking cannot serve as a predicate offense to armed violence, the statutory version applicable here
       did not specifically bar vehicular hijacking from forming the basis of that offense. Therefore,
       aggravated vehicular hijacking can properly be compared with armed violence based upon simple
       vehicular hijacking for purposes of defendant’s proportionate penalties claim. 2014 IL App (1st)
       120913, ¶ 9 n.1 (citing Clemons, 2012 IL 107821, ¶ 14); see also People v. Taylor, 2015 IL 117267,
       ¶¶ 16-17 (reaffirming the holdings in Hauschild and Clemons that offenses such as robbery and
       vehicular hijacking were eligible to serve as predicates for armed violence prior to 2007).


                                                       -9-
       statute); see also People v. Myers, 101 Ill. App. 3d 1073, 1075 (1981) (holding that
       “what constitutes a dangerous weapon for armed robbery does not necessarily
       constitute a dangerous weapon under the armed violence statute, wherein
       categories of dangerous weapons are specified”). 3

¶ 21       “Dangerous weapon” is not defined in either the AVH/DW statute or the armed
       robbery statute, but is derived from common law. Indeed, a review of the case law
       shows that the common-law definition of a dangerous weapon is in fact rooted in
       this court’s discussion of what constitutes a deadly weapon. See People v. Ross,
       229 Ill. 2d 255, 272-76 (2008) (discussing People v. Dwyer, 324 Ill. 363 (1927),
       and its progeny in analyzing the dangerous weapon element of the armed robbery
       statute). As this court concluded in People v. Skelton, 83 Ill. 2d 58, 66 (1980), what
       constitutes a dangerous weapon is a question of fact and includes any object
       sufficiently susceptible to use in a manner likely to cause serious injury.

¶ 22       This court, in Skelton, further articulated the purpose for such a broad
       definition, stating:

           “[M]any objects, including guns, can be dangerous and cause serious injury,
           even when used in a fashion for which they were not intended. Most, if not all,
           unloaded real guns and many toy guns, because of their size and weight, could
           be used in deadly fashion as bludgeons. Since the robbery victim could be quite
           badly hurt or even killed by such weapons if used in that fashion, it seems to us
           they can properly be classified as dangerous weapons although they were not in
           fact used in that manner during the commission of the particular offense. It
           suffices that the potential for such use is present; the victim need not provoke its
           actual use in such manner.” Id.

       In other words, the definition of dangerous weapon for purposes of the AVH/DW
       statute includes not only objects that are per se dangerous, but objects that are used
       or may be used in a dangerous manner. See People v. Ross, 229 Ill. 2d 255, 275
       (2008). Here, the dangerous weapon defendant was armed with during the
       commission of AVH/DW, a BB gun, fits into the latter category.

¶ 23       In contrast, the dangerous weapons categories in the armed violence statute are
       defined by the statute and therefore limited to the weapons identified by the statute.

           3
             We include armed robbery in our discussion as most of the case law dealing with the identical
       elements test involves armed robbery, and the characteristics of the armed robbery and AVH/DW
       statutes are the same for the purposes of this case.
                                                     - 10 -
       See 720 ILCS 5/33A-1(c) (West 2000) (wherein the legislature defines “armed
       with a dangerous weapon for purposes of this Article,” as being armed with a
       category I, II or III weapon, and thereafter enumerates the weapons in each
       category). Accordingly, in People v. Davis, 199 Ill. 2d 130, 141 (2002), this court
       held, inter alia, that a BB/pellet gun was not a bludgeon or other dangerous weapon
       of like character under the armed violence statute, reasoning:

           “A category II dangerous weapon is defined in the statute as ‘a bludgeon,
           blackjack, slungshot, sand-bag, sand-club, metal knuckles, billy or other
           dangerous weapon of like character.’ 720 ILCS 5/33A–1(c) (West 1992).[4] ***
           [P]ellet and BB guns are not specifically named in this listing. Furthermore,
           although a metal pellet/BB pistol might be capable of being used as a bludgeon,
           it is not typically identified as such and, under the doctrine of ejusdem
           generis,[5] cannot be interpreted to be ‘of like character’ to the bludgeon-type
           weapons included in the category II listing.” Id.

¶ 24       Therefore, as in Davis, the BB gun with which defendant herein was armed
       cannot be considered a bludgeon or other dangerous weapon of like character under
       the armed violence statute. However, defendant’s BB gun does qualify as a
       dangerous weapon other than a firearm under the common-law definition
       applicable to statutory offenses such as aggravated vehicular hijacking and armed
       robbery. See, e.g., People v. Johnson, 323 Ill. App. 3d 284 (2001) (metal BB gun
       used to threaten and strike rape victim was a dangerous weapon within the meaning
       of the offense of armed robbery); People v. Hill, 47 Ill. App. 3d 976, 977-78 (1977)
       (unloaded metal air pistol used to intimidate victim of robbery; although not a
       dangerous weapon per se, could be used as dangerous weapon and supported
       conviction for armed robbery).


           4
             In the version of the armed violence statute before this court in Davis, a bludgeon was a
       category II weapon (720 ILCS 5/33A-1(c) (West 1992)), while, as we have noted, in the version of
       the statute at issue here, a bludgeon is a category III weapon (720 ILCS 5/33A-1(c)(3) (West 2000)).
            5
             Under the doctrine of ejusdem generis, when a statutory clause specifically describes several
       classes of persons or things and then includes “ ‘other persons or things,’ ” the word “ ‘other’ ” is
       interpreted as meaning “ ‘other such like.’ ” Davis, 199 Ill. 2d at 138 (quoting Farley v. Marion
       Power Shovel Co., 60 Ill. 2d 432, 436 (1975)). See also People v. Rutledge, 104 Ill. 2d 394, 397
       (1984) (acknowledging that, pursuant to, inter alia, the doctrine of ejusdem generis, the legislature
       did not intend that firearms be included in the term “or any other dangerous or deadly weapon,” as
       used in section of unlawful use of weapons statute under which the defendant was charged (internal
       quotation marks omitted)).


                                                      - 11 -
¶ 25       Thus, contrary to the appellate court’s finding below, the elements of
       AVH/DW, which require, inter alia, proof that defendant was “armed with a
       dangerous weapon, other than a firearm” in violation of section 18-4(a)(3) of the
       Code (720 ILCS 5/18-4(a)(3) (West 2000)), are not identical to the elements of
       armed violence, which require, inter alia, proof that defendant committed a
       qualifying felony while armed with a category III weapon in violation of sections
       33A-1 and 33A-2 of the Code (720 ILCS 5/33A-1, 33A-2 (West 2000)). Under
       Davis, the BB gun with which defendant was armed, like many objects that qualify
       as a dangerous weapons for purposes of AVH/DW, cannot satisfy the category III
       weapon element of the armed violence statute. 6 Consequently, we hold that the
       appellate court erred in concluding that a violation of the proportionate penalties
       clause under the identical elements test occurred in this case. See 2014 IL App (1st)
       120913, ¶ 6.

¶ 26        In support of this holding, we note that our legislature, concerned with the
       possession of weapons during the commission of felonies (People v. Donaldson, 91
       Ill. 2d 164, 168 (1982)), adopted the armed violence statute to “discourage those
       who contemplate a felonious act beforehand from carrying a weapon when they set
       forth to perform the act.” (Emphasis added.) People v. Alejos, 97 Ill. 2d 502, 509
       (1983); Davis, 199 Ill. 2d at 139. Therefore, the specific intent of the legislature in
       creating the armed violence statute would be defeated if objects other than those
       actual weapons defined and listed therein were considered to be “dangerous
       weapons” within the statute’s three categories. Indeed, the legislature has the power
       to define the same phrase, e.g. “dangerous weapon,” differently in distinct statutes.
       As our appellate court has stated:

               “It is *** fundamental that the legislature has the power to articulate
           reasonable definitions of any terms within its enactment ***.
           (Chicago-Midwest Meat Association v. City of Evanston (1981), 96 Ill. App. 3d
           966, 969; Bohm v. State Employees’ Retirement System (1949), 404 Ill. 117, 88
           N.E.2d 29.) In addition, separate acts with separate purposes need not define
           similar terms in the same way, but, rather, the same word may mean one thing
           in one statute and something different in another, dependent upon the
           6
             We note that following the legislature’s 2007 amendment to the armed violence statute, which
       excluded as a predicate “any offense that makes the possession or use of a dangerous weapon either
       an element of the base offense, an aggravated or enhanced version of the offense, or a mandatory
       sentencing factor that increases the sentencing range,” the identical elements question raised herein
       is no longer an issue. Pub. Act 95-688 (eff. Oct. 23, 2007).

                                                      - 12 -
          connection in which the word is used, the object or purpose of the statute and
          the consequences which probably will result from the proposed construction.
          People ex rel. De Boer v. Geary (1944), 323 Ill. App. 32, 39, 54 N.E.2d 840;
          Gormley v. Uthe (1886), 116 Ill. 643, 648, 7 N.E. 73, affirmed (1890), 133 U.S.
          655, 33 L. Ed. 776, 10 S. Ct. 415.” Mack v. Seaman, 113 Ill. App. 3d 151, 154
          (1983); see also In re Marriage of Dodds, 222 Ill. App. 3d 99, 101-02 (1991).

¶ 27       Accordingly, as an examination of Skelton and Davis reveals, the common-law
       definition of “dangerous weapon” is broader than the definition of “dangerous
       weapon” in the armed violence statute. Given the foregoing, we conclude that an
       object, regardless of how it is used, cannot be considered a dangerous weapon for
       purposes of the armed violence statute unless it is included in the three categories of
       weapons set forth in that statute. Further, we agree with the State that nothing
       contained in this court’s decisions in Clemons or Hauschild precludes this
       conclusion. In sum, both Clemons and Hauschild dealt with the offense of armed
       robbery with a firearm, and firearms are included in the definition of category I and
       category II weapons under the armed violence statute (720 ILCS 5/33A-1(c)(2)
       (West 2000)). Clemons, 2012 IL 107821, ¶¶ 3, 22; Hauschild, 226 Ill. 2d at 81-82,
       85-86. Thus, the elements of the offenses therein were identical and the defendant
       could be charged with either armed robbery with a firearm or armed violence
       predicated on robbery with a category I or II weapon, yet the offenses had disparate
       sentences. Clemons, 2012 IL 107821, ¶ 22 (citing Hauschild, 226 Ill. 2d at 86). In
       contrast, as demonstrated in Davis and in this case, not every object that qualifies as
       a “dangerous weapon, other than a firearm” under section 18-4(a)(3) of the
       aggravated vehicular hijacking statute qualifies as a category III weapon under the
       armed violence statute. Thus, while proportionate penalties violations were
       properly found in Hauschild and Clemons under the identical elements test, here,
       no such finding can be made where the “dangerous weapon” element was satisfied
       solely as to the offense of AVH/DW and not as to the offense of armed violence.

¶ 28       Defendant next argues before this court that the State is equitably barred from
       asserting that, as charged herein, section 18-4(a)(3) of the aggravated vehicular
       hijacking statute and section 33A-2(a) of the armed violence statute do not have
       identical elements. We disagree. Defendant notes this court’s well-established
       holding that “a party may not request to proceed in one manner and then later
       contend on appeal that the requested course of action was in error.” People v.
       Denson, 2014 IL 116231, ¶ 17 (citing People v. Lucas, 231 Ill. 2d 169, 174 (2008)).
       Nor may a party “advance a theory or argument on appeal that is inconsistent with
                                              - 13 -
       the position taken below.” Denson, 2014 IL 116231, ¶ 17 (citing People v.
       Henderson, 2013 IL 114040, ¶ 23). Defendant thus argues that where the State’s
       position at trial, on direct appeal, and before the appellate court below was that
       defendant was armed with “a bludgeon,” and the State maintained throughout all
       these proceedings that defendant was charged with, and convicted of, being armed
       with “a bludgeon,” the State cannot now assert that the weapon involved was not “a
       bludgeon.” However, while we agree with these factual assertions, they are not
       inconsistent with either the State’s present claim, or its position taken below.

¶ 29       This case began with the State securing an indictment for violating section
       18-4(a)(3) of the aggravated vehicular hijacking statute, “in that he, knowingly
       took a motor vehicle, to wit: a 2000 Ford, from the person or immediate presence of
       [Ana] Diaz, by the use of force or by threatening the imminent use of force and
       [defendant] was armed with a dangerous weapon, to wit: a bludgeon.” Following
       defendant’s conviction of this charge by a jury, he argued on direct appeal that “the
       State failed to prove aggravated vehicular hijacking beyond a reasonable doubt
       because it did not prove that he committed the offense with a dangerous weapon
       other than a firearm.” People v. Ligon, 365 Ill. App. 3d 109, 115 (2006) (Ligon I).
       In rejecting this contention, Ligon I first quoted People v. Thorne, 352 Ill. App. 3d
       1062 (2004), wherein the court, in assessing the definition of the common-law term
       “dangerous weapon” in the context of the robbery statute, stated:

               “ ‘[O]ur courts have defined the term by dividing objects alleged to be
          “dangerous weapons” into four categories. [Citation.] The first category
          consists of objects that are dangerous per se, such as knives and loaded guns.
          [Citation.] The second category consists of objects that are never dangerous
          weapons, such as a four-inch plastic toy gun. [Citation.] The third category
          consists of objects that are not necessarily dangerous weapons but can be used
          as such, for instance, an unloaded gun or a toy gun made of heavy material,
          which are incapable of shooting bullets but can be used as a bludgeon [citation]
          or, as another example, fingernail clippers with a sharpened file [citation]. The
          fourth category consists of objects that are not necessarily dangerous but were
          actually used in a dangerous manner in the course of the robbery.’ Thorne, 352
          Ill. App. 3d at 1070-71.” Ligon I, 365 Ill. App. 3d at 116.

       The appellate court in Ligon I found that the State did not argue at trial or therein,
       on direct appeal, that the BB gun was a dangerous weapon, per se, nor was there
       evidence that the BB gun was actually used in a dangerous manner. Id. at 116-17.
                                               - 14 -
       Thus, the BB gun in the present case fell into the third category of common-law
       dangerous weapons, and “[c]ase law provides that an unloaded BB gun may be a
       dangerous weapon if it can be used in a dangerous manner, for example, as a
       bludgeon.” Id. at 117. Accordingly the question of whether the BB gun herein
       could be used as a “dangerous weapon other than a firearm” to establish AVH/DW
       under section 18-4(a)(3) was a question of fact for the jury to determine. Id. at 115.
       Having examined the BB gun, the appellate court concluded, “we cannot say that
       the jury’s finding that it could have been used as a dangerous weapon was
       erroneous.” Id. at 117. Further, as earlier noted, defendant’s petition for leave to
       appeal was denied by this court. People v. Ligon, 221 Ill. 2d 658 (2006) (table).

¶ 30        Based on our review of the record, we agree that defendant was properly
       convicted of AVH/DW while using a BB gun as a common-law dangerous weapon
       of the third type. Accordingly, it is irrelevant that the indictment used the term
       “bludgeon” instead of BB gun, as the two are interchangeable for purposes of that
       statute. See Thorne, 352 Ill. App. 3d at 1070 (an example of an object that is not
       necessarily a dangerous weapon, but can be used as such, is an unloaded gun or toy
       gun made of heavy material which can be used as a bludgeon). We conclude that
       where the State has consistently contended at trial, on direct appeal, and before both
       the appellate court and this court in defendant’s section 2-1401 proceedings that he
       committed AVH/DW while armed with an object that could be used as a bludgeon,
       it is not inconsistent for the State to also argue that the BB gun was not an actual
       “bludgeon” for purposes of the armed violence statute. See Ligon I, 365 Ill. App. 3d
       at 118-19 (rejecting defendant’s claim that there was a fatal variance between the
       indictment alleging he was armed with a bludgeon and the proof at trial showing he
       was armed with a BB gun). Thus, the State was not equitably barred from raising
       that issue herein.



¶ 31                                     CONCLUSION

¶ 32      We hold, based upon the foregoing, that the appellate court erred in finding a
       proportionate penalties violation under the Illinois Constitution and, accordingly,
       in vacating defendant’s sentence for aggravated vehicular hijacking with a
       dangerous weapon, other than a firearm, and remanding for resentencing. In other
       words, we hold that the appellate court erred in reversing the judgment of the trial
       court which denied defendant’s section 2-1401 petition for relief from judgment

                                               - 15 -
       alleging a proportionate penalties violation. While the trial court denied
       defendant’s section 2-1401 petition for other reasons, this court may affirm the trial
       court’s judgment on any basis established by the record. In re B.L.S., 202 Ill. 2d
       510, 520 (2002); see also In re Detention of Stanbridge, 2012 IL 112337, ¶ 74;
       People v. Brownlee, 186 Ill. 2d 501, 511 (1999). Therefore, defendant’s conviction
       for the Class X offense of aggravated vehicular hijacking with a dangerous weapon,
       other than a firearm (720 ILCS 5/18-4(a)(3) (West 2000)), is affirmed, as is his
       mandatory life sentence imposed as an adjudged habitual criminal under section
       33B-1 of the Code (720 ILCS 5/33B-1(a), (e) (West 2000)).



¶ 33      Appellate court judgment reversed.

¶ 34      Circuit court judgment affirmed.




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