                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Brown, 2012 IL App (5th) 100452




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



District & No.             Fifth District
                           Docket No. 5-10-0452


Filed                      February 29, 2012


Held                       Although the 15-year sentencing enhancement applicable to armed
(Note: This syllabus       robbery committed while armed with a firearm was held unconstitutional
constitutes no part of     by the Illinois Supreme Court in Hauschild on the ground that the
the opinion of the court   enhancement violated the proportionate penalties clause because armed
but has been prepared      violence predicated on robbery with a category I or category II weapon
by the Reporter of         contained identical elements, but carried different penalties, the
Decisions for the          legislature cured the proportionate-penalties violation by eliminating the
convenience of the         offense of armed violence predicated on robbery; therefore, the revived
reader.)
                           15-year sentencing enhancement was properly applied to defendant when
                           he was sentenced for armed robbery with a firearm.


Decision Under             Appeal from the Circuit Court of St. Clair County, No. 09-CF-596; the
Review                     Hon. John Baricevic, Judge, presiding.


Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Johannah B. Weber, and Edwin J. Anderson, all of
Appeal                     State Appellate Defender’s Office, of Mt. Vernon, for appellant.

                           Brendan F. Kelly, State’s Attorney, of Belleville (Patrick Delfino,
                           Stephen E. Norris, and Jennifer Camden, all of State’s Attorneys
                           Appellate Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE WELCH delivered the judgment of the court, with opinion.
                           Justices Goldenhersh and Chapman concurred in the judgment and
                           opinion.



                                            OPINION

¶1          Following a jury trial, the defendant, Richard Brown, was found guilty of armed robbery
        with a firearm in violation of section 18-2(a)(2) of the Criminal Code of 1961 (Criminal
        Code) (720 ILCS 5/18-2(a)(2) (West 2008)) and not guilty of home invasion (720 ILCS 5/12-
        11(a)(3) (West 2008)). The trial court sentenced him to 22 years’ imprisonment for the
        armed-robbery conviction to be followed by a 3-year period of mandatory supervised release.
        On appeal, the defendant argues the trial court erred by applying a 15-year sentence
        enhancement to his sentence pursuant to section 18-2(b) of the Criminal Code (720 ILCS
        5/18-2(b) (West 2010)) based on the use of a firearm during the commission of the robbery.
        According to the defendant, the 15-year sentence enhancement set forth in section 18-2(b)
        could not be applied against him because it was declared unconstitutional by the supreme
        court in People v. Hauschild, 226 Ill. 2d 63, 86-87 (2007). For the reasons that follow, we
        affirm.
¶2          On May 28, 2009, the defendant was charged with one count of home invasion and one
        count of armed robbery while carrying a firearm for unlawfully entering Brett Worsham’s
        Belleville, Illinois, residence, threatening the use of force while armed with a firearm, and
        taking property belonging to Worsham. Following a two-day trial, the jury found the
        defendant guilty of armed robbery with a firearm and not guilty of home invasion.
¶3          During the June 2, 2010, sentencing hearing, the State informed the trial court that the
        applicable sentencing range for the defendant’s armed-robbery conviction was 21 to 45 years
        pursuant to section 18-2(a)(2) of the Criminal Code (720 ILCS 5/18-2(a)(2) (West 2008))
        because “[a]rmed robbery carries a fifteen-year enhancement if the offense was committed
        with the use of a firearm.” Defense counsel objected to the use of the sentence enhancement
        because the State failed to prove beyond a reasonable doubt that the defendant “carried [a
        firearm] on or about his person.” According to defense counsel, the evidence indicated
        another individual unlawfully entered Worsham’s residence with the defendant and that
        individual carried the firearm. In response, the State argued as follows:

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               “18-2, armed robbery statute, subsection (a), ‘A person who commits armed robbery
          when he or she violates Section 18-1,’ and subparagraph (2), ‘he or she carries on or
          about his or her person or is otherwise armed with a firearm.’ The ‘otherwise armed with
          a firearm,’ it’s the People’s position, takes into account the accountability theory.
               The jury was specifically instructed in People’s Instruction No. 20 as to the third
          proposition, that the defendant or one for whose conduct he is legally responsible carried
          on or about his person a firearm or was otherwise armed with a firearm at the time of the
          taking.
               At the time of the jury instruction conference, I indicated to the Court, and there was
          no objection by defense counsel that I modified 14-06 to specifically state a firearm
          rather than a dangerous weapon to encompass the enhancement and to meet the
          requirements of Apprendi. Therefore, the People believe that the jury properly found the
          defendant guilty of either carrying a firearm on his person or was otherwise armed
          sufficient to trigger the fifteen-year enhancement under the armed robbery statute.”
¶4        Thereafter, the trial court sentenced the defendant to 22 years in prison to be followed by
     a 3-year period of mandatory supervised release, a sentence that included the 15-year
     sentence enhancement pursuant to section 18-2(b) of the Criminal Code (720 ILCS 5/18-2(b)
     (West 2008)).
¶5        On June 30, 2010, the defendant filed a pro se motion for reduction of sentence, arguing
     his sentence was excessive due to (1) his young age, (2) his ability for rehabilitation, (3) the
     armed-robbery conviction being his first adult offense, and (4) no individuals being harmed
     during the commission of the armed robbery. On September 2, 2010, the trial court denied
     the defendant’s pro se motion for reduction of sentence, noting it previously considered the
     mitigating factors mentioned in the defendant’s pro se motion during sentencing. The
     defendant appeals.
¶6        The issue for this court’s review is whether the 15-year sentence enhancement for the use
     of a firearm in an armed robbery was applicable to the defendant because the supreme court
     in Hauschild determined the 15-year enhancement violated the proportionate-penalties clause
     of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). First, we note the defendant did not
     forfeit this issue by his failure to raise it in the trial court. See People v. Christy, 139 Ill. 2d
     172, 176 (1990) (the constitutionality of a statutory penalty may be raised at any time).
     Therefore, we will address this issue on appeal.
¶7        An issue involving the constitutionality of a statute is reviewed de novo. People v.
     Sharpe, 216 Ill. 2d 481, 486-87 (2005). Additionally, the trial court’s application of a statute
     is also reviewed de novo. People v. Coleman, 399 Ill. App. 3d 1150, 1157 (2010). However,
     we defer to the legislature on issues of sentencing because it is more capable of fashioning
     an appropriate sentence. Id.
¶8        Under section 18-2(b) of the Criminal Code (720 ILCS 5/18-2(b) (West 2008)), armed
     robbery is a Class X felony “for which 15 years shall be added to the term of imprisonment
     imposed by the court.” In Hauschild, 226 Ill. 2d at 86-87, the supreme court determined
     armed robbery while armed with a firearm (sentencing range of 21 to 45 years’
     imprisonment, which included the 15-year sentence enhancement) and armed violence

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       predicated on robbery with a category I or category II weapon (sentencing range of 15 to 30
       years’ imprisonment) contained identical elements but carried different penalties. Section 18-
       2(a)(2) of the Criminal Code (720 ILCS 5/18-2(a)(2) (West 2000)) defined armed robbery
       as follows: “A person commits armed robbery when he or she violates Section 18-1; and ***
       he or she carries on or about his or her person or is otherwise armed with a firearm.” Section
       18-1(a) of the Criminal Code (720 ILCS 5/18-1(a) (West 2000)) set forth the definition for
       robbery and stated as follows: “A person commits robbery when he or she takes property ***
       from the person or presence of another by the use of force or by threatening the imminent use
       of force.” Further, section 33A-2(a) of the Criminal Code (720 ILCS 5/33A-2(a) (West
       2000)) defined armed violence predicated on robbery as the offense of robbery (720 ILCS
       5/18-1(a) (West 2000)) while armed with a dangerous weapon. Because the elements of
       armed robbery and armed violence predicated on robbery were identical, the supreme court
       determined the 15-year sentence enhancement applicable to an armed-robbery offense
       violated the proportionate-penalties clause of the Illinois Constitution by making the penalty
       for armed robbery more severe than the penalty for armed violence predicated on robbery.
       Hauschild, 226 Ill. 2d at 86-87.
¶9         Thereafter on October 23, 2007, the legislature enacted Public Act 95-688 (Pub. Act 95-
       688, § 4 (eff. Oct. 23, 2007) (2007 Ill. Legis. Serv. 6228, 6228-29 (West)); 720 ILCS 5/33A-
       2(a) (West 2008)) to amend the armed-violence statute as follows:
           “A person commits armed violence when, while armed with a dangerous weapon, he
           commits any felony defined by Illinois Law, except first degree murder, attempted first
           degree murder, intentional homicide of an unborn child, second degree murder,
           involuntary manslaughter, reckless homicide, predatory criminal sexual assault of a child,
           aggravated battery of a child, home invasion, or 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.” (Emphasis added.)
¶ 10       Despite the enactment of Public Act 95-688, the defendant argues the 15-year sentence
       enhancement in the armed-robbery statute remains unconstitutional under Hauschild because
       an unconstitutional law is void ab initio. See People v. Gersch, 135 Ill. 2d 384, 390 (1990)
       (a statute held unconstitutional in its entirety is void ab initio). In support of this position,
       the defendant cites People v. Coleman, 399 Ill. App. 3d 1150 (2010), and People v. Blanton,
       2011 IL App (4th) 080120, both Fourth District cases.
¶ 11       In Blanton, 2011 IL App (4th) 080120, ¶ 28, the Fourth District vacated the defendant’s
       25-year sentence for armed robbery with a firearm, which was committed in March 2007,
       because Hauschild was dispositive. Further, in Coleman, 399 Ill. App. 3d at 1159, the trial
       court sentenced the defendant to 15 years’ imprisonment on his armed-violence-predicated-
       on-robbery conviction pursuant to the version of the statute in effect at the time Hauschild
       was decided. Because the supreme court had already determined the 15-year sentence
       enhancement for armed robbery with a firearm violated the proportionate-penalties clause,
       the Fourth District held the defendant’s armed-violence sentence also violated the
       proportionate-penalties clause. Coleman, 399 Ill. App. 3d at 1159-60. Therefore, the court
       determined the defendant’s sentence was void because the statute was “void ab initio” at the

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       time of sentencing. Id. at 1160.
¶ 12       The present case is distinguishable from Blanton and Coleman because the defendant
       committed the armed robbery on May 26, 2009, after the enactment of Public Act 95-688.
       Public Act 95-688 fixed the proportionate-penalties violation by excluding the following
       from the definition of armed violence: offenses that make the possession or use of a
       dangerous weapon either (1) an element of the base offense, (2) an aggravated or enhanced
       version of the offense, or (3) a mandatory sentencing factor that increases the sentencing
       range. Accordingly, Public Act 95-688 effectively cured the proportionate-penalties violation
       by making it impossible to generate an armed-violence conviction predicated on robbery
       even though the amendment did not alter the 15-year sentence enhancement for armed
       robbery committed with a firearm.
¶ 13       Additionally, the legislative history behind the implementation of the amendment
       indicates the legislature intended this result when it adopted Public Act 95-688. During the
       July 26, 2007, Senate proceeding where the amendment was passed, Senator Cullerton noted
       a recent supreme court case held that the 15-year sentence enhancement for armed robbery
       with a firearm violated the proportionate-penalties clause, and the amendment to the armed-
       violence statute “avoid[ed] any further disproportionate penalty challenges to the statute that
       may arise.” 95th Ill. Gen. Assem., Senate Proceedings, July 26, 2007, at 8-9 (statements of
       Senator Cullerton).
¶ 14       The defendant’s argument that the armed-robbery statute is void ab initio is based on
       Gersch, 135 Ill. 2d at 390, which stated that a statute declared unconstitutional in its entirety
       is void ab initio. In Gersch, 135 Ill. 2d at 387-88, the trial court denied the defendant’s
       request for a bench trial after the State requested a jury trial under section 115-1 of the Code
       of Criminal Procedure of 1963 (Procedure Code) (Ill. Rev. Stat. 1987, ch. 38, ¶ 115-1),
       which provided the State with the right to a jury in certain criminal trials. While the
       defendant’s appeal was pending, the supreme court in People ex rel. Daley v. Joyce, 126 Ill.
       2d 209, 222 (1988), declared section 115-1 of the Procedure Code unconstitutional because
       “only a defendant has a right to a jury trial” under the Illinois Constitution. Gersch, 135 Ill.
       2d at 389. Thereafter, the supreme court in Gersch, 135 Ill. 2d at 391-92, stated that the
       version of section 115-1 in effect at the time of Joyce was void ab initio and would be
       interpreted as if that version never existed.
¶ 15       However, the State argues that the supreme court in Hauschild did not rule that the 15-
       year sentence enhancement was void ab initio. Specifically, the State notes Hauschild
       involved an issue of whether a comparison of armed robbery while armed with a firearm and
       armed violence predicated on robbery was permissible because the supreme court previously
       determined in People v. Lewis, 175 Ill. 2d 412, 415-24 (1996), that the sentencing scheme
       for armed violence predicated on armed robbery was unconstitutional as penalizing identical
       conduct more severely than the armed-robbery statute. The appellate court in People v.
       Hauschild, 364 Ill. App. 3d 202, 217 (2006), determined the offense of armed violence
       “ceased to exist” after Lewis. Hauschild, 226 Ill. 2d at 84. The supreme court determined the
       enactment of Public Act 91-404 (Pub. Act 91-404, § 5 (eff. Jan. 1, 2000) (codified at 720
       ILCS 5/33A-1(b)(1) (West 2000))), which added the 15-year sentence enhancement to armed
       robbery, “ ‘revived’ ” the offense of armed violence predicated on robbery held

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       unconstitutional by Lewis. Hauschild, 226 Ill. 2d at 84. Accordingly, the court determined
       “the holding in Lewis cannot be used as a basis to preclude comparison of the ‘revived’
       armed violence offense to armed robbery while armed with a firearm for purposes of
       proportionality review.” Hauschild, 226 Ill. 2d at 85.
¶ 16        Similarly, Public Act 95-688 “revived” the sentencing scheme in the armed-robbery
       statute by fixing the proportionate-penalties violation. As previously stated, it is no longer
       possible for armed violence to be predicated on robbery under section 33A-2(a) of the
       Criminal Code (720 ILCS 5/33A-2(a) (West 2008)). The 15-year sentence enhancement
       under the armed-robbery statute violated the proportionate-penalties clause because armed
       robbery contained identical elements but carried a more severe penalty than the offense of
       armed violence predicated on robbery. The legislature cured this proportionate-penalties
       violation by removing the impediment to the sentence enhancement’s enforcement, i.e., the
       offense of armed violence predicated on robbery.
¶ 17        Accordingly, we determine that the legislature revived the 15-year sentencing
       enhancement in the armed-robbery statute by enacting Public Act 95-688, and therefore, the
       trial court correctly applied the sentence enhancement against the defendant at sentencing.

¶ 18      Affirmed.




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