                                     NO. 4-04-0995            Filed: 5/22/06

                              IN THE APPELLATE COURT

                                      OF ILLINOIS

                                  FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,      )   Appeal from
     Plaintiff-Appellee,                  )   Circuit Court of
     v.                                   )   Champaign County
CHAD D. DUNN,                             )   No. 03CF1564
     Defendant-Appellant.                 )
                                          )   Honorable
                                          )   Thomas J. Difanis,
                                          )   Judge Presiding.
______________________________________________________________

             PRESIDING JUSTICE TURNER delivered the opinion of the court:

             In September 2003, a grand jury charged defendant, Chad D. Dunn, with

five counts of predatory criminal sexual assault (720 ILCS 5/12-14.1(a)(1) (West 2002))

for his actions between January 2002 and June 2003 with two minors. In July 2004,

defendant pleaded guilty to one count of predatory criminal sexual assault of a child that

related to the minor born in June 1995. In September 2003, the trial court sentenced

defendant to 30 years' imprisonment. Defendant filed a motion to reconsider his

sentence, which the court denied after a November 2004 hearing.

             Defendant appeals, asserting he is entitled to a new sentencing hearing

because the punishment applicable to predatory criminal sexual assault of a child

violates the proportionate-penalties clause. We affirm.

             A statute's constitutionality presents purely a matter of law, and

accordingly we review the trial court's conclusion de novo. People v. Sharpe, 216 Ill. 2d

481, 486-87, 839 N.E.2d 492, 497 (2005). A statute carries a strong presumption of
constitutionality, and thus the party challenging the statute must clearly establish it

violates the constitution. Moreover, we generally give deference to the legislature on

sentencing matters because "the legislature is institutionally better equipped to gauge

the seriousness of various offenses and to fashion sentences accordingly." Sharpe,

216 Ill. 2d at 487, 839 N.E.2d at 497.

              A proportionate-penalties challenge contends the penalty at issue was not

determined according to the seriousness of the offense. Sharpe, 216 Ill. 2d at 487, 839

N.E.2d at 498. Prior to our supreme court's decision in Sharpe, Illinois courts had

recognized three distinct ways a penalty could violate the proportionate-penalties

clause. See People v. Moss, 206 Ill. 2d 503, 522, 795 N.E.2d 208, 220 (2003). The

first manner was if the penalty was "cruel, degrading, or so wholly disproportionate to

the offense committed as to shock the moral sense of the community." Moss, 206 Ill. 2d

at 522, 795 N.E.2d at 220. The second was, when comparing similar offenses,

"conduct that create[d] a less serious threat to the public health and safety [was]

punished more severely." Moss, 206 Ill. 2d at 522, 795 N.E.2d at 220. The final way

was where offenses with identical elements were given different sentences. Moss, 206

Ill. 2d at 522, 795 N.E.2d at 220. In Sharpe, the supreme court abandoned the second

manner, which was known as the cross-comparison test, but noted defendants could

still raise proportionate-penalties challenges under the other two methods. Sharpe, 216

Ill. 2d at 519, 521, 839 N.E.2d at 516-17.

              Defendant asserts his proportionate-penalties challenge under the final

method, referred to as the "identical elements" test, which was established in People v.

Christy, 139 Ill. 2d 172, 564 N.E.2d 770 (1990). The Christy court concluded "common

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sense and sound logic" dictate identical penalties for offenses with the exact same

elements. Christy, 139 Ill. 2d at 181, 564 N.E.2d at 774. Thus, under the identical

elements test, if offenses with identical elements do not have identical penalties, the

penalties are unconstitutionally disproportionate and the greater penalty cannot stand.

See Christy, 139 Ill. 2d at 181, 564 N.E.2d at 774.

              Here, defendant contends the penalty for predatory criminal sexual assault

of a child (720 ILCS 5/12-14.1(a)(1) (West 2002)) is harsher than the penalties for

offenses with identical elements, namely, predatory criminal sexual assault of a child

while armed with a firearm (720 ILCS 5/12-14.1(a)(1.1) (West 2002)) and predatory

criminal sexual assault of a child involving the discharge of a firearm (720 ILCS 5/12-

14.1(a)(1.2) (West 2002)). Thus, we begin by first determining whether identical

elements exist.

              Under section 12-14.1(a)(1) of the Criminal Code of 1961 (Criminal Code)

(720 ILCS 5/12-14.1(a)(1) (West 2002)), a person commits predatory criminal sexual

assault of a child when (1) the person is 17 years of age or over, (2) the person commits

an act of sexual penetration, and (3) the victim is under 13 years of age when the act

was committed. Pursuant to section 12-14.1(a)(1.1) of the Criminal Code (720 ILCS

5/12-14.1(a)(1.1) (West 2002)), predatory criminal sexual assault of a child while armed

with a firearm occurs when (1) a person is 17 years of age or over, (2) the person is

armed with a firearm, (3) the person commits an act of sexual penetration, and (4) the

victim is under 13 years of age when the act was committed. Under section 12-

14.1(a)(1.2) of the Criminal Code (720 ILCS 5/12-14.1(a)(1.2) (West 2002)), a person

commits predatory criminal sexual assault of a child involving the discharge of a firearm

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when (1) a person is 17 years of age or over; (2) the person commits an act of sexual

penetration; (3) the victim is under 13 years of age when the act was committed; and (4)

during the commission of the offense, the person discharged a firearm.

              Predatory criminal sexual assault of a child while armed with a firearm and

predatory criminal sexual assault of a child involving the discharge of a firearm clearly

have an additional element than predatory criminal sexual assault of a child contained in

section 12-14.1(a)(1) of the Criminal Code. However, defendant asserts predatory

criminal sexual assault of a child is a lesser-included offense of both predatory criminal

sexual assault of a child while armed with a firearm and predatory criminal sexual

assault of a child involving the discharge of a firearm, and thus the predatory criminal

sexual assault of a child has identical elements with both of the firearm provisions. We

note defendant cites no authority in conjunction with that assertion.

              In the general "identical elements" cases cited by defendant, the courts

found the compared offenses had identical elements where the offenses had all of the

same elements. None of the cases addressed a pair of offenses where the offenses

had the same elements but one of the pair had an additional element, like the offenses

in this case. For example, in Christy, our supreme court noted the commission of

kidnaping while armed with a "'knife with a blade of at least 3 inches in length'" consti-

tuted both aggravated kidnaping and armed violence predicated on kidnaping with a

category I weapon. Christy, 139 Ill. 2d at 181, 564 N.E.2d at 774, quoting Ill. Rev. Stat.

1987, ch. 38, par. 33A-1(b). In People v. Lewis, 175 Ill. 2d 412, 418, 677 N.E.2d 830,

833 (1996), the Supreme Court of Illinois concluded the commission of robbery with a

handgun constituted both armed robbery and armed violence predicated on robbery

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committed with a category I weapon. In People v. Hampton, 363 Ill. App. 3d 293, 309,

842 N.E.2d 1124, 1138 (2005), the First District found the commission of criminal sexual

assault while armed with a firearm constitutes both aggravated criminal sexual assault

and armed violence predicated on criminal sexual assault with a category I weapon.

See also People v. Beard, 287 Ill. App. 3d 935, 938, 679 N.E.2d 456, 457-58 (1997)

(aggravated vehicular hijacking/armed violence based on the vehicular hijacking and

armed robbery/armed violence based on robbery); People v. Baker, 341 Ill. App. 3d

1083, 1089, 794 N.E.2d 353, 359 (2003) (aggravated kidnaping resulting from kidnaping

while armed with a firearm/armed violence predicated on the offense of kidnaping while

carrying a category I weapon).

              This case is similar to People v. Espinoza, 184 Ill. 2d 252, 259, 702

N.E.2d 1275, 1278 (1998), where our supreme court concluded the armed-violence

offenses at issue did not have identical elements with the aggravated-battery offense.

There, the armed-violence offenses had the following elements: "(1) a battery (2)

committed 'on or about a public way, public property[,] or public place of

accommodation or amusement' (3) while armed with a category II weapon" or a

category III weapon (depending on the count). Espinoza, 184 Ill. 2d at 258, 702 N.E.2d

at 1277, quoting 720 ILCS 5/12-4(b)(8) (West 1994). The aggravated-battery charge

consisted of "two principal statutory elements: (1) a battery (2) coupled with a statutory

aggravating circumstance." Espinoza, 184 Ill. 2d at 259, 702 N.E.2d at 1278. In

reaching its conclusion, the Espinoza court noted the armed-violence charges had one

more element than the aggravated-battery charge. Espinoza, 184 Ill. 2d at 259, 702

N.E.2d at 1278.

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              Accordingly, we find the elements of predatory criminal sexual assault of a

child, predatory criminal sexual assault of a child while armed with a firearm, and

predatory criminal sexual assault of a child involving the discharge of a firearm do not

have identical elements, and thus defendant has failed to prove the punishment for

predatory criminal sexual assault of a child violates the proportionate-penalties clause.

              While the penalty for predatory criminal sexual assault of a child does not

violate the proportionate-penalties clause under the identical-elements test, the failure

of section 5-5-3.2(c) of the Unified Code of Corrections (730 ILCS

5/5-5-3.2(c) (West 2002)) to also provide an extended term for

convictions of predatory criminal sexual assault of a child under

subsections (a)(1.1) and (a)(1.2) of section 12-14.1 of the

Criminal Code (720 ILCS 5/12-14.1(a)(1.1), (a)(1.2) (West 2002))

does produce some sentencing inconsistencies that the legislature

should consider addressing.

              For the reasons stated, we affirm the trial court's judgment.

              Affirmed.

              MYERSCOUGH and KNECHT, JJ., concur.




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