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                                    Appellate Court                           Date: 2018.07.25
                                                                              10:59:39 -05'00'




                      People v. Debardelaben, 2018 IL App (1st) 151741



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



District & No.          First District, Third Division
                        Docket Nos. 1-15-1741, 1-15-1743 cons.



Rule 23 order filed     April 18, 2018
Motion to publish
allowed                 May 10, 2018
Opinion filed           May 16, 2018



Decision Under          Appeal from the Circuit Court of Cook County, Nos. 10-CR-13998,
Review                  11-CR-02745; the Hon. Timothy J. Joyce, Judge, presiding.



Judgment                Affirmed.


Counsel on              Michael J. Pelletier, Patricia Mysza, and S. Amanda Ingram, of State
Appeal                  Appellate Defender’s Office, of Chicago, for appellant.

                        Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                        Veronica Calderon Malavia, and Annette Collins, Assistant State’s
                        Attorneys, of counsel), for the People.
     Panel                    JUSTICE FITZGERALD SMITH delivered the judgment of the court,
                              with opinion.
                              Presiding Justice Cobbs and Justice Howse concurred in the judgment
                              and opinion.


                                                OPINION

¶1          In this consolidated appeal, defendant Lenvert Debardelaben appeals from the natural life
       sentences he received in Cook County case numbers 10 CR 13998 and 11 CR 02745. On
       appeal, defendant contends that his natural life sentences must be vacated and the causes
       remanded for resentencing because he was not subject to sentencing under the Habitual
       Criminal Act (Act) (730 ILCS 5/5-4.5-95(a) (West 2010)). Specifically, defendant contends
       that his conviction for armed robbery in case number 86 CR 403 did not contain “the same
       elements as an offense now classified in Illinois as a Class X felony” and, consequently, cannot
       serve as one of the prior convictions which rendered him subject to be sentenced as a habitual
       criminal. Defendant reasons that armed robbery in 1986 did not contain the same elements as
       armed robbery in 2010 because the legislature created new offenses based upon the type of
       weapon, i.e., a firearm or dangerous weapon other than a firearm, used during the commission
       of the offense. We affirm.
¶2          Following a bench trial in case number 11 CR 02745, defendant was found guilty of
       aggravated criminal sexual assault, aggravated kidnapping, and aggravated unlawful restraint.
       The State then filed a notice of intent to seek a sentence of natural life in prison under the Act
       based upon defendant’s prior convictions for armed robbery in case number 86 CR 403 and
       murder in case number 93 CR 21771. Defendant was subsequently sentenced to life in prison
       for the aggravated criminal sexual assault conviction and to a consecutive life sentence for the
       aggravated kidnapping conviction. Defendant then filed a motion to reconsider sentence. The
       trial court entered and continued the motion.
¶3          A bench trial was then held in case number 10 CR 13998. Defendant was ultimately found
       guilty of armed robbery and attempted criminal sexual assault. The State then filed a notice of
       intent to seek a sentence of natural life in prison under the Act based upon defendant’s prior
       convictions for armed robbery in case number 86 CR 403 and murder in case number 93 CR
       21771.
¶4          At a subsequent court date, the trial court first heard argument on the pending motion to
       reconsider sentence in case number 11 CR 02745. The court denied the motion to reconsider
       sentence. The court then held the sentencing hearing for case number 10 CR 13998 and
       sentenced defendant to natural life in prison for the armed robbery conviction and to a
       consecutive 15-year sentence for the attempted criminal sexual assault. This sentence was to
       be served consecutive to the sentence imposed in case number 11 CR 02745. That same day,
       defendant filed a notice of appeal in each case.
¶5          Before this court, defendant challenges his sentences in case numbers 10 CR 13998 and 11
       CR 02745, and we have consolidated his appeals for disposition. On appeal, defendant
       contends that his 1986 conviction for armed robbery cannot serve as one of the convictions
       rendering him subject to a life sentence pursuant to the Act because in 1986 the offense of
       armed robbery did not contain the same elements as the offense did in 2010.

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¶6        Defendant acknowledges that he failed to raise this argument before the trial court. See
     People v. Hillier, 237 Ill. 2d 539, 544 (2010) (a defendant forfeits a sentencing issue that he
     fails to raise in the trial court through both a contemporaneous objection and a written
     postsentencing motion). However, he contends that this court may still reach his contention on
     appeal. He first relies on the exception to forfeiture set out in People v. Brown, 229 Ill. 2d 374,
     389-90 (2008), which held that in those cases where the State’s evidence regarding a
     defendant’s prior convictions “does not support the inference of eligibility because the
     evidence, on its face, demonstrates that [the] defendant’s prior convictions do not meet all of
     the requirements” of the Act, a defendant is not prohibited from challenging his sentence on
     appeal. He next argues that this court may review his contention under the plain error doctrine.
     See People v. Herron, 215 Ill. 2d 167, 178-79 (2005) (a court may consider an unpreserved
     error when (1) the evidence was so closely balanced that the error alone tipped the scales of
     justice against the defendant or (2) the error was so serious that it affected the fairness of the
     defendant’s trial). Defendant finally contends that he was denied the effective assistance of
     counsel when counsel did not raise this argument before the trial court. We must first
     determine whether there was error, that is, whether defendant was properly subjected to
     sentencing under the Act.
¶7        Pursuant to the Act, a defendant is a habitual criminal, subject to a mandatory life sentence
     without parole, if he is convicted of three separate Class X offenses within 20 years, excluding
     time in custody. 730 ILCS 5/5-4.5-95(a) (West 2010); People v. Fernandez, 2014 IL App (1st)
     120508, ¶ 47. This finding applies to a defendant “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 degree
     murder, and who is thereafter convicted of a Class X felony, criminal sexual assault, or first
     degree murder, committed after the 2 prior convictions.” 730 ILCS 5/5-4.5-95(a)(1) (West
     2010). The provision does not apply unless certain requirements are met, including that the
     “third offense was committed within 20 years of the date that judgment was entered on the first
     conviction.” 730 ILCS 5/5-4.5-95(a)(4)(B) (West 2010). A defendant who is determined to be
     a habitual criminal “shall be sentenced to a term of natural life imprisonment.” 730 ILCS
     5/5-4.5-95(a)(5) (West 2010).
¶8        Here, defendant contends that one of the offenses used to render him subject to sentencing
     under the Act did not have the “same elements as an offense now *** classified in Illinois as a
     Class X offense.” See 730 ILCS 5/5-4.5-95(a)(1) (West 2010). He argues that in 1986 the
     offense of armed robbery did not have the same elements as the offense of armed robbery did
     in 2010. Specifically, he argues that the fact that the statute was changed to differentiate
     amongst the types of weapons used during the commission of the offense changed the elements
     of the offense of armed robbery and created new offenses.
¶9        Initially, we note that “courts have rejected a formalistic interpretation of the Act.”
     Fernandez, 2014 IL App (1st) 120508, ¶ 17. There is no requirement that a predicate offense
     have precisely the same elements as an offense classified as a Class X offense in Illinois;
     rather, the predicate offense must be “equivalent” to a Class X felony in Illinois. Id. ¶¶ 17-19;
     see also 81st Ill. Gen. Assem., Senate Proceedings, June 27, 1980, at 27 (statements of Senator
     Sangmeister) (stating during the discussion regarding amending the Act to include offenses
     from other jurisdictions that those offenses would qualify provided “their elements *** were
     *** the same or close to the elements contained in the Illinois [s]tatutes”).

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¶ 10       Moreover, in the case at bar, defendant has not persuaded us that armed robbery in 1986
       contained different elements than the offense did in 2010. The version of section 18-2(a) of the
       Criminal Code of 1961 (Code) in effect in 1986 stated that a person commits armed robbery
       when he commits a robbery “while he *** carries on or about his *** person, or is otherwise
       armed with a dangerous weapon.” Ill. Rev. Stat. 1985, ch. 38, ¶ 18-2.
¶ 11       Effective January 1, 2000, which was before the offenses at issue in these cases, the armed
       robbery statute was amended (1) to create separate subsections for armed robbery “with a
       dangerous weapon other than a firearm” and armed robbery “with a firearm” and (2) to add a
       15-year sentencing enhancement for being “armed with a firearm.” Pub. Act 91-404, § 5 (eff.
       Jan. 1, 2000) (amending 720 ILCS 5/18-2). The version of section 18-2(a) of the Code in effect
       in 2010 states that a person commits armed robbery when he or she commits robbery and
                    “(1) he or she carries on or about his or her person or is otherwise armed with a
                dangerous weapon other than a firearm; or
                    (2) he or she carries on or about his or her person or is otherwise armed with a
                firearm; or
                    (3) he or she, during the commission of the offense, personally discharges a
                firearm; or
                    (4) he or she, during the commission of the offense, personally discharges a firearm
                that proximately causes great bodily harm, permanent disability, permanent
                disfigurement, or death to another person.” 720 ILCS 5/18-2(a) (West 2010).
¶ 12       The first element of armed robbery in both the 1986 and 2010 versions is that a person must
       commit robbery. Although the 2010 version of the statute differentiates between the types of
       weapons used, we reject defendant’s argument that the classification of armed robberies as
       those committed with a firearm and those committed with a dangerous weapon other than a
       firearm added an element to the offense. Rather, armed robbery has always contained the
       elements of robbery and the use of a dangerous weapon during the commission of the offense,
       be it a firearm or something else. See People v. Burke, 362 Ill. App. 3d 99, 104 (2005) (“Armed
       robbery had the same elements in 1978 and 1980 as it did in 2001.”). Put another way, the
       changes to the statute did not create new elements of the offense of armed robbery; rather, they
       described different ways that a person could commit the offense of armed robbery. See People
       v. Washington, 2012 IL 107993 ¶ 6 (the amended version of, inter alia, the armed robbery
       statute created types of armed robbery “based on whether the offenses were committed with a
       dangerous weapon ‘other than a firearm’ or committed with a ‘firearm’ ”).
¶ 13       We are unpersuaded by defendant’s argument that the changes to the statute changed the
       nature of the offense of armed robbery or served to change the offense of “armed robbery into
       multiple offenses” with different elements. The elements of armed robbery remain the same;
       that is, one commits a robbery with either a firearm or a dangerous weapon other than a
       firearm. We question defendant’s conclusion that the fact that a defendant is now charged with
       a type of armed robbery based upon the nature of the object used in the commission of the
       offense means that the State must now “prove” that the object is not a firearm. Rather, the State
       must prove that the object is a firearm or a dangerous weapon that is not a firearm; i.e., the
       State must still establish that the object at issue qualifies as a dangerous weapon other than a
       firearm or a firearm, just as it did in 1986 when it had to prove that the object used was a
       dangerous weapon. See Ill. Rev. Stat. 1985, ch. 38, ¶ 18-2 (a person commits armed robbery


                                                   -4-
       when he commits robbery when he carries on or about his person, or is otherwise armed with a
       dangerous weapon).
¶ 14       Accordingly, while the 1986 and 2010 versions of the armed robbery statutes are not
       verbatim copies of one another, nevertheless they are “equivalent” in content, with the “same
       elements” for purposes of the Act. See 730 ILCS 5/5-4.5-95(a) (West 2010); Fernandez, 2014
       IL App (1st) 120508, ¶ 19. Therefore, defendant’s 1986 armed robbery conviction may serve
       as one of the prior convictions rendering him subject to sentencing under the Act. See Burke,
       362 Ill. App. 3d at 104 (“Armed robbery had the same elements in 1978 and 1980 as it did in
       2001.”).
¶ 15       As there was no error, we must honor defendant’s procedural default, and his contention on
       appeal must fail. See Hillier, 237 Ill. 2d at 544 (a defendant forfeits a sentencing issue that he
       fails to raise in the trial court through both a contemporaneous objection and a written
       postsentencing motion). Moreover, defendant’s argument that he was denied the effective
       assistance of counsel must also fail because, as discussed above, the complained-of conviction
       was properly used as a predicate offense rendering defendant subject to sentencing under the
       Act. See People v. Patterson, 217 Ill. 2d 407, 438 (2005) (counsel cannot be deemed
       ineffective based upon the failure to file a futile motion).
¶ 16       For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 17      Affirmed.




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