                                        2016 IL 118672



                                          IN THE
                                 SUPREME COURT
                                              OF
                           THE STATE OF ILLINOIS



                                     (Docket No. 118672)

                THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
                 GREGORY HERNANDEZ, a/k/a Israel Ramos, Appellee.



                                 Opinion filed May 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       Defendant, Gregory Hernandez, was found guilty following a Du Page County
     bench trial of several charges, including armed robbery, a Class X felony under
     section 18-2 of the Criminal Code of 1961 (Code) (720 ILCS 5/18-2 (West 1998)).
     Defendant was eventually sentenced, as pertinent here, to an extended term of 40
     years’ imprisonment for armed robbery. Defendant filed an amended petition
     pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 (West
     2012)). Following a 2014 evidentiary hearing on his postconviction claim that the
     40-year term imposed for armed robbery violated the proportionate penalties clause
     of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 11), the circuit court
     granted defendant a new sentencing hearing. The court’s order stated the armed
     robbery statute used to sentence defendant was “facially unconstitutional” because
     it carried a harsher penalty than the penalty for “armed violence with a Category III
     weapon (bludgeon) 720 ILCS 5/33A-1 (1998).” 1 The State filed a direct appeal to
     this court, citing the circuit court’s judgment declaring an Illinois statute
     unconstitutional. Therefore, we have jurisdiction pursuant to article VI of the
     Illinois Supreme Court Rules, “Appeals in Criminal Cases, Post-Conviction Cases,
     and Juvenile Court Proceedings,” Rule 603, which states that appeals in cases “in
     which a statute of *** this State has been held invalid shall lie directly to the
     Supreme Court as a matter of right.” Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); see also
     Ill. S. Ct. R. 302(a) (eff. Oct. 4, 2011). For the reasons that follow, we reverse the
     judgment of the circuit court and affirm defendant’s 40-year term of imprisonment
     for armed robbery.



¶2                                           BACKGROUND

¶3       In January 1999, defendant was indicted for various offenses arising out of an
     incident in which he allegedly entered a residence, inflicted bodily harm on its
     occupants, Gus and Eunice Pakosta, and took certain property. The indictment
     included counts for, inter alia, home invasion, armed robbery, and armed violence.
     All four armed robbery counts alleged that defendant had committed the offense of
     armed robbery “while armed with a dangerous weapon, a bludgeon,” citing “720
     ILCS 5/18-2(a).” Similarly, all three armed violence counts alleged that defendant
     committed an underlying felony, other than armed robbery, “while armed with a

         1
           As noted by defendant in his brief before this court, the offenses in this case occurred in 1998,
     and the circuit court and both parties below cited the 1998 version of the armed violence statute.
     However, this citation is technically incorrect, as the 1998 armed violence statute included
     amendments from the “Safe Neighborhoods Act” (SNA), Public Act 88-680, which this court held
     to be unconstitutional in People v. Cervantes, 189 Ill. 2d 80 (1999). Therefore, it is the 1994 version
     of the armed violence statute that applies here, under which bludgeons and certain like weapons
     were defined as Category II weapons. See People v. Gersch, 135 Ill. 2d 384, 390 (1990) (enacting an
     unconstitutional amendment to a statute leaves the law in force as it was before the unconstitutional
     amendment). But because the SNA did not change the sentencing provision for committing armed
     violence with a bludgeon or certain like weapons, instead merely redefining those weapons as
     Category III weapons, defendant concedes there is no practical difference between the 1994 and
     1998 statutes for our purposes, as the sentencing ranges were unchanged. Thus, to maintain
     consistency and avoid confusion, we follow the parties herein and the circuit court in citing to the
     1998 version of the armed violence statute and in describing bludgeons and certain like weapons as
     “Category III” weapons.
                                                     -2-
     dangerous weapon, a bludgeon,” citing “720 ILCS 5/33A-2.” Prior to trial, the
     State entered a nolle prosequi on each of the armed violence counts, as well as two
     of the four armed robbery counts.

¶4       A bench trial was held on the remaining counts. Relevant to the issue presented
     in this court, the Pakostas, an elderly married couple, testified that defendant
     entered their home in the early morning hours of December 7, 1998, that he struck
     each of them in the head with a metal tool, and that he forced Eunice to open a safe,
     from which he took money and jewelry before fleeing the scene. According to the
     Pakostas, the metal tool the defendant used during the incident belonged to them
     and had been stored in their basement. That specific tool was never recovered. Gus
     described the tool as a pair of “big shears.” Eunice described the tool as a pair of tin
     snips, which she stated was “very heavy” and “very big” and identified a
     demonstrative exhibit as a pair of tin snips that was “almost exactly” identical to the
     tin snips defendant had used. The trial court found defendant guilty on numerous
     counts, including the two remaining armed robbery counts, but did not expressly
     find whether defendant had been armed with a “bludgeon.”

¶5       Defendant was sentenced to an aggregate consecutive term of 90 years’
     imprisonment. On direct appeal, the appellate court vacated several convictions,
     leaving one home invasion conviction and one armed robbery conviction, and
     remanded the cause for a new sentencing hearing. People v. Hernandez, No.
     2-02-0717 (2004) (unpublished order under Supreme Court Rule 23). On remand,
     the trial court sentenced defendant to an aggregate term of 80 years’ imprisonment,
     consisting of a 40-year term for home invasion involving Gus and a consecutive
     40-year term for armed robbery involving Eunice.

¶6       Defendant filed a pro se postconviction petition while his appeal from the
     conviction was pending. The trial court appointed counsel for defendant.
     Postconviction proceedings were stayed until the appeal process had concluded and
     resumed in February 2012. In September 2013, defendant was allowed to file a new
     pro se postconviction petition. An amended petition, incorporating the claims
     raised in the pro se petition, was filed by appointed counsel in June 2014. In
     September 2014, the trial court, following a hearing, granted the State’s motion to
     dismiss all of defendant’s postconviction claims except for his claim that his
     40-year, extended-term, Class X sentence imposed on remand for armed robbery
     violated the proportionate penalties clause because it had the same elements as the
     lesser Class 2 offense of armed violence with a Category III weapon.
                                              -3-
¶7        Following a third-stage hearing in October 2014, the trial court entered an order
       on December 3, 2014, granting defendant a new sentencing hearing as relief on the
       proportionate penalties claim of his amended postconviction petition. The court’s
       order further stated: “The sentencing scheme for armed robbery set forth in 720
       ILCS 5/18-2(b) (1998) is facially unconstitutional as it provides disproportionate
       penalties to armed violence with a Category III weapon (bludgeon) 720 ILCS
       5/33A-1 (1998).” A timely direct appeal by the State followed.



¶8                                         ANALYSIS

¶9         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.” People v. Guevara, 216 Ill. 2d 533, 543 (2005); see also People v.
       Lombardi, 184 Ill. 2d 462, 473-74 (1998). In cases such as this one, where
       defendant argues his sentence violates the proportionate penalties clause because it
       is greater than the sentence for an offense with identical elements, 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)); see also
       People v. Ligon, 2016 IL 118023, ¶ 11.

¶ 10      Further, as recently stated by this court in Ligon:

          “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
                                               -4-
          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).” Ligon, 2016 IL 118023,
          ¶ 11.

¶ 11        Given these principles, we find that our decision in Ligon is dispositive of the
       main issue presented in this case, i.e., whether the Class X sentence for armed
       robbery which defendant received on remand from his direct appeal violated the
       proportionate penalties clause of the Illinois Constitution of 1970 (Ill. Const. 1970,
       art. I, § 11). In Ligon, we agreed with the State’s contention that the lower court
       erred in finding a violation of the proportionate penalties clause where the elements
       of aggravated vehicular hijacking with a dangerous weapon, other than a firearm
       (AVH/DW), a Class X felony, were not identical to the elements of armed violence
       with a Category III weapon. 2016 IL 118023, ¶¶ 10, 20. The holding in Ligon was
       based on this court’s conclusion that:

          “[M]any 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 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’).” Ligon, 2016 IL 118023, ¶ 20.

¶ 12        “Dangerous weapon” is not defined in either the armed robbery statute at issue
       here, or the AVH/DW statute at issue in Ligon, but is derived from common law. Id.
       ¶ 21. “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.” Id.
       Therefore, the definition of dangerous weapon for purposes of the armed robbery
       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 the armed robbery of Eunice Pakosta, a pair of tin snips, fits into the
       latter category. See Ligon, 2016 IL 118023, ¶ 22.



                                               -5-
¶ 13        In contrast, 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(a) (West 1998); see Ligon, 2016 IL 118023, ¶ 19.
       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) (West 1998); see Ligon, 2016 IL 118023, ¶ 19. Thus, Category III
       dangerous weapons for purposes of the armed violence statute are defined by the
       statute and are therefore limited to the weapons identified by the statute. Id. ¶ 23
       (citing 720 ILCS 5/33A-1(c) (West 2000)).

¶ 14       Accordingly, this court in Ligon (id. ¶¶ 23-24), relying upon Davis, 199 Ill. 2d
       130, held that a BB gun or pellet gun was not a bludgeon or other dangerous
       weapon of like character under the armed violence statute, where those objects
       were not specifically named in the armed violence statute. “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, cannot be
       interpreted to be ‘of like character’ to the bludgeon-type weapons included in the
       category [III] listing.” Davis, 199 Ill. 2d at 141; Ligon, 2016 IL 118023, ¶ 23 n.4.
       Therefore, as in Ligon and Davis, the tin snips with which defendant herein was
       armed cannot be considered a bludgeon “or other dangerous weapon of like
       character” under the armed violence statute.

¶ 15       However, the tin snips defendant used do qualify as a dangerous weapon under
       the common-law definition applicable to the statutory offense of armed robbery, as
       they are essentially a craftsman’s tool (Carlson v. Moline Board of Education,
       School District No. 40, Moline, 124 Ill. App. 3d 967, 973 (1984) (tin snips are a
       workman’s tool used to cut building materials), abrogated on other grounds by
       Meyer v. Caterpillar Tractor Co., 135 Ill. 2d 1, 12 (1990)) but are often heavy and
       large enough that when used in the manner they were in this case, to strike a victim,
       they become dangerous. See Ligon, 2016 IL 118023, ¶ 24 (metal BB gun used to
       threaten and strike victim was a dangerous weapon within the meaning of the
       offense of armed robbery (citing People v. Johnson, 323 Ill. App. 3d 284 (2001))).
       Further, in People v. Vue, 353 Ill. App. 3d 774, 775-76, 783 (2004), the appellate
       court affirmed the defendant’s armed robbery conviction where, similar to the facts
       herein, the defendant entered a residence, struck the victim in the head with a heavy
       metal object, a flashlight, and caused serious injuries before taking valuable
       belongings and fleeing. Although no proportionate penalties claim was made in
                                               -6-
       Vue, the panel, citing Davis, did find that the defendant’s armed violence
       conviction should be vacated, holding the metal flashlight was not a “dangerous
       weapon” within the meaning of the armed violence statute as, notwithstanding
       shared characteristics with a bludgeon and that it was used like a bludgeon, the
       flashlight was not “of like character” to a bludgeon, where it was not inherently
       dangerous and had a legitimate use. Id. at 779-81.

¶ 16       As these cases reflect and as earlier stated, the definition of dangerous weapon
       for purposes of the armed robbery statute includes not only objects that are per se
       dangerous, but objects that are used or may be used in a dangerous manner. See
       Ross, 229 Ill. 2d at 275. It is clear then that the common-law definition of
       “dangerous weapon” found in the armed robbery statute is broader than the
       definition of “dangerous weapon” in the armed violence statute. See Ligon, 2016 IL
       118023, ¶ 27. Thus, contrary to the postconviction court’s finding below, the
       elements of armed robbery, which require, inter alia, proof that defendant was
       “armed with a dangerous weapon” in violation of 720 ILCS 5/18-2(a) (West 1998),
       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 720 ILCS 5/33A-1, 33A-2 (West 1998). See Ligon, 2016 IL
       118023, ¶ 25. Consequently, we hold that the lower court erred in concluding that a
       violation of the proportionate penalties clause under the identical elements test
       occurred in this case. Id.

¶ 17       However, defendant argues before this court that the State is judicially estopped
       from asserting that, as charged herein, section 18-2 of the armed robbery statute and
       section 33A-2 of the armed violence statute do not have identical elements.
       Contrary to defendant's claim, our decision in Seymour v. Collins, 2015 IL 118432,
       does not support a finding of judicial estoppel.

¶ 18      In Seymour, this court stated:

              “Judicial estoppel is an equitable doctrine invoked by the court at its discretion.
          [Citations.] As the Supreme Court has observed, the uniformly recognized purpose of
          the doctrine is to protect the integrity of the judicial process by prohibiting parties from
          ‘deliberately changing positions’ according to the exigencies of the moment.
          [Citation.] Judicial estoppel applies in a judicial proceeding when litigants take a
          position, benefit from that position, and then seek to take a contrary position in a later
          proceeding. [Citation.]” Id. ¶ 36.


                                               -7-
       While this court has identified five prerequisites as “generally required” before a
       court may invoke the doctrine of judicial estoppel (id. ¶ 37), the core concern in
       establishing judicial estoppel is “that a party takes factually inconsistent positions,
       in separate proceedings, intending that the trier of fact accept the truth of the facts
       alleged.” (Emphasis added.) Id. ¶ 38. Here, although the position taken by the State
       at trial was clearly factual, its position before the court in postconviction
       proceedings was one of law.

¶ 19       This case began with the State securing an indictment for violating, inter alia,
       section 18-2(a) of the armed robbery statute, “in that the said defendant while
       armed with a dangerous weapon, a bludgeon, knowingly took property *** from
       the presence of Eunice Pakosta, by the use of force.” Defendant argues that where
       the State adopted the factual position at trial that defendant used “a bludgeon,” it is
       estopped from arguing that this object was anything else. However, any object,
       including tin snips, may be considered a common-law “dangerous weapon” if it can
       be used in a dangerous manner, for example, as a bludgeon.

¶ 20       Thus, at trial, in order to prove the offense of armed robbery, the State needed
       only to establish the fact that defendant committed a robbery while “armed with a
       dangerous weapon.” 720 ILCS 5/18-2(a) (West 1998); see also People v. Skelton,
       83 Ill. 2d 58, 66 (1980) (for purposes of armed robbery statute, many objects,
       including guns, can be dangerous and cause serious injury, even when used in a
       fashion for which they were not intended). Here, as we have established, the State
       did not argue at trial that the tin snips used herein were a dangerous weapon, per se,
       but instead presented evidence that the tin snips were “actually used in a dangerous
       manner.” 2 See People v. Thorne, 352 Ill. App. 3d 1062, 1070-71 (2004).
       Accordingly, the question of whether the tin snips herein could be used as a
       “dangerous weapon” to establish armed robbery under section 18-2(a) was a
       question for the trier of fact, and the trial court accepted the truth of this fact in
       convicting defendant of this charge.

¶ 21       Yet, unlike this factual position taken at trial, the State argued, in response to
       defendant’s later postconviction identical elements claim, that his Class X sentence
       imposed for armed robbery with “a dangerous weapon, a bludgeon,” did not violate

           2
                We note that while the State referred to the pair of tin snips as “a bludgeon” at times during
       trial, it never argued that the object with which defendant was armed was anything other than a pair
       of tin snips.

                                                       -8-
       the proportionate penalties clause because the tin snips at issue did not satisfy the
       “dangerous weapon” element of the Class 2 offense of armed violence. “The issue
       of whether a sentencing provision violates the proportionate penalties clause is a
       matter of law ***.” People v. Span, 2011 IL App (1st) 083037, ¶ 96; see also Davis,
       199 Ill. 2d at 141 (noting a pellet gun could be “used as a bludgeon” even as it held,
       as a matter of law, that a pellet gun was not a bludgeon). Indeed, defendant has
       conceded as much in his brief before this court, noting that whether he was armed
       with a Category III “dangerous weapon” is a “legal opinion.”

¶ 22        We therefore conclude that the core prerequisite for invoking judicial estoppel,
       i.e., that the State took factually inconsistent positions in separate proceedings, did
       not exist here. See Seymour, 2015 IL 118432, ¶ 38. Because the proportionate
       penalties argument made by the State was one of law, rather than fact, the State was
       not equitably barred from taking that position in defendant's postconviction
       proceedings nor, for that matter, before this court. Cf. Ligon, 2016 IL 118023, ¶ 28
       (a party may not “ ‘advance a theory or argument on appeal that is inconsistent with
       the position taken below’ ” (quoting People v. Denson, 2014 IL 116231, ¶ 17)).



¶ 23                                      CONCLUSION

¶ 24        We hold, based upon the foregoing, that the trial court erred in finding a
       proportionate penalties violation under the Illinois Constitution. Accordingly, the
       trial court also erred in granting defendant a new sentencing hearing as relief on the
       proportionate penalties claim of his amended postconviction petition. Therefore,
       the judgment of the circuit court is reversed and the cause is remanded to that court
       with directions to reinstate defendant’s 40-year sentence for the Class X felony of
       armed robbery (720 ILCS 5/18-2 (West 1998)).



¶ 25      Circuit court judgment reversed.

¶ 26      Cause remanded with directions.




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