People v. Del Percio

475 N.E.2d 528, 105 Ill. 2d 372, 86 Ill. Dec. 314, 1985 Ill. LEXIS 186
CourtIllinois Supreme Court
DecidedFebruary 22, 1985
Docket59303
StatusPublished
Cited by37 cases

This text of 475 N.E.2d 528 (People v. Del Percio) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Del Percio, 475 N.E.2d 528, 105 Ill. 2d 372, 86 Ill. Dec. 314, 1985 Ill. LEXIS 186 (Ill. 1985).

Opinions

CHIEF JUSTICE CLARK

delivered the opinion of the court:

The defendant, Anthony Del Percio, was charged with a seven-count indictment as follows: count I, home invasion (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 11(a)(1)); count II, attempted armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4(a)); count III, conspiracy (armed robbery) (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 2(a)); count IV, unlawful use of weapons (Ill. Rev. Stat. 1979, ch. 38, par. 24 — 1(a)(7)); count V, unlawful use of weapons (Ill. Rev. Stat. 1979, ch. 38, par. 24 — 1(a)(7)); count VI, armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2) predicated on home invasion; and count VII, armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2) predicated on attempted armed robbery.

The State failed to allege that the defendant entered the victim’s home without authority, a necessary and material element of home invasion. Therefore, count I, home invasion, was dismissed. Since count VI, armed violence, was based on count I, it too was dismissed.

A jury in the circuit court of Du Page County found the defendant guilty of armed violence predicated upon attempted armed robbery, count VII; attempted armed robbery, count II; conspiracy to commit armed robbery, count III; and unlawful use of weapons, count IV. The trial court vacated the judgment as to count II, attempted armed robbery as a lesser included offense of armed violence predicated on attempted armed robbery. The defendant was sentenced to serve concurrent terms of eight years’ imprisonment for armed violence, three years’ imprisonment for conspiracy, and three years’ imprisonment for unlawful use of weapons. On appeal, the appellate court affirmed the circuit court. (118 Ill. App. 3d 539.) The defendant then petitioned this court for leave to appeal, and we granted the defendant’s petition.

There was a codefendant in this case, Larry Catena. Although Del Percio went to trial, Catena accepted a plea bargain and pleaded guilty to one count of attempted armed robbery. Catena was sentenced to eight years’ imprisonment.

The evidence at trial showed that Del Percio and Catena discussed robbing Enrique Ortiz, a jewelry salesman. Del Percio and Catena took steps to carry out the robbery. They obtained gloves, hats, stockings, tape, a shotgun, and a car to use in the robbery. On February 26, 1981, the two went to Ortiz’ apartment. Unbeknown to Del Percio and Catena, Ortiz was in the apartment when they arrived. They first attempted to break- into the apartment but were unsuccessful. The two then went to the back of the apartment building to discuss the situation. During their discussion, the defendant told Catena that they should abandon their plan. However, they decided to wait until Ortiz arrived. Once he arrived home, they planned to knock on the door and gain entry in this manner. After a time, Ortiz’ wife arrived home. A few minutes after Mrs. Ortiz arrived home, Catena knocked on the door to the Ortiz’ apartment. Because there was valuable jewelry in the apartment, Mr. Ortiz answered the door with a gun concealed behind his back. When the door opened, Del Percio pointed the shotgun at Ortiz. Ortiz opened fire and shot Del Percio. Del Percio and Catena ran as Ortiz continued to fire his gun. Eventually Del Percio and Catena reached the car and fled the scene. Catena took Del Percio to a nearby hospital, where the two were later apprehended.

The defendant raises two issues in this appeal. The first is whether an armed-violence charge can be predicated on an attempted-armed-robbery charge. The second is whether his conviction for conspiracy to commit armed robbery can stand since he was also convicted of armed violence predicated on attempted armed robbery and whether his conspiracy conviction can stand, since he alleges the same act was charged as the act in furtherance of the conspiracy and as the substantial step in the armed-violence charge.

The defendant relies on People v. Haron (1981), 85 Ill. 2d 261, for his contention that his conviction for armed violence based upon attempted armed robbery must be vacated on the grounds of double enhancement. In Harón, battery (a misdemeanor) was enhanced to the felony of aggravated battery based on the use of a deadly weapon. The aggravated-battery charge was then used as the predicate felony for the armed-violence charge. We held that the presence of a weapon could not serve to enhance an offense from a misdemeanor to a felony and then serve as the predicate offense for a charge of armed violence. 85 Ill. 2d 261, 278.

Section 33A — 2 of the Criminal Code of 1961 provides: “A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois law.” Ill. Rev. Stat. 1979, ch. 38, par. 33 A — 2.

In Harón, we stated:

“In our opinion the requirement of section 33A — 2 that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a felony without enhancement by the presence of a weapon.” People v. Haron (1981), 85 Ill. 2d 261, 278.

The language in Haron has been given two interpretations in the appellate court. One group of cases holds that Harón does not apply when the predicate offense was enhanced from a lesser felony to a greater felony, rather than from a misdemeanor to a felony, because of the presence of a weapon. See People v. Cartalino (1982), 111 Ill. App. 3d 578 (attempted armed robbery can serve as the predicate offense for armed violence); People v. Viens (1982), 109 Ill. App. 3d 1017 (aggravated kidnaping with a deadly weapon can serve as the predicate . offense for armed violence); People v. Goodman (1982), 109 Ill. App. 3d 203 (attempted armed robbery can serve as the predicate offense for armed violence); People v. Kavinsky (1981), 98 Ill. App. 3d 579 (attempted escape and forcible detention with a deadly weapon can serve as the predicate offenses for armed violence).

Another appellate court case holds that Harón applies when the predicate offense was enhanced from a lesser felony to a greater felony because of the presence of a weapon. See People v. Lucien (1982), 109 Ill. App. 3d 412 (armed robbery and intimidation by threatening physical harm to cause the writing of a check cannot serve as predicate offenses for a charge of armed violence).

We believe that Haron applies whenever a predicate felony is doubly enhanced because of the presence of a weapon.

In People v. Wisslead (1983), 94 Ill. 2d 190, we interpreted the armed-violence statute and our holding in Harón and held that unlawful restraint could serve as the predicate felony for an armed-violence charge because “[t]he presence of a weapon is not an element of the felony offense of unlawful restraint ***.” (94 Ill. 2d 190, 193.) Here, the presence of a weapon was an element of the felony offense, attempted armed robbery.

In this case, had the defendant not used a weapon, he could have been charged with attempted robbery, a Class 3 felony. However, the presence of the shotgun served to enhance the offense to attempted armed robbery, a Class 1 felony. The shotgun then served to enhance the offense a second time to armed violence with the use of a category I weapon, a Class X felony.

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Cite This Page — Counsel Stack

Bluebook (online)
475 N.E.2d 528, 105 Ill. 2d 372, 86 Ill. Dec. 314, 1985 Ill. LEXIS 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-del-percio-ill-1985.