FIRST DIVISION February 27, 2006
No.1-03-0067
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from ) the Circuit Court Plaintiff-Appellee, ) of Cook County ) v. ) No. 00 CR 16875 ) WILLIE HAMPTON, ) Honorable ) Preston L. Bowie, Defendant-Appellant. ) Judge Presiding.
MODIFIED ON DENIAL OF REHEARING
PRESIDING JUSTICE CAHILL delivered the modified opinion of the court:
Defendant Willie Hampton was convicted of eight counts of aggravated criminal sexual
assault and two counts of home invasion with a firearm and sentenced to 84 years in prison.
Defendant raises five arguments on appeal: (1) the admission of a codefendant's written
statement violated defendant's sixth amendment right under the United States Constitution (U.S.
Const., amend VI); (2) defendant's 21-year sentences for aggravated criminal sexual assault
violate the prohibition against double enhancement; (3) defendant's sentences for aggravated
criminal sexual assault violate the proportionate penalties clause of the Illinois Constitution (Ill.
Const. 1970, art. I, '11); (4) defendant's convictions and sentences on four counts of aggravated
criminal sexual assault and one count of home invasion violate the one-act, one-crime rule; and
(5) defendant's sentence on the remaining home invasion count violates the proportionate 1-03-0067
penalties clause of the Illinois Constitution. Our resolution of this case requires that we address
the first issue in light of Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct.
1354 (2004). Our analysis compels us to vacate defendant's convictions and remand to the trial
court with directions.
The following evidence was presented at defendant's bench trial.
Y.N. testified that on June 21, 2000, at approximately 3 a.m., she was asleep in her home
located at 2016 West 65th Street in Chicago. Y.N. was awakened by defendant, who placed a
gun to her head and told her to get out of bed and give him money and "weed." Y.N. recognized
defendant despite the fact that he wore a nylon stocking over his head. Y.N. and defendant lived
in the same neighborhood and had attended elementary school together.
Y.N. told defendant she did not have money or drugs in the house. Defendant asked Y.N.
for house keys, which Y.N. gave to him. Defendant took the keys and unlocked the back door to
the house. A man wearing a black-hooded sweater came inside. Y.N. later recognized this man
as Cory Durr, whom Y.N. also knew from the neighborhood. A third man also entered the
house. The third man wore a nylon stocking over his head, and Y.N. could not identify him.
Defendant and the unidentified man took Y.N. to her bedroom and threatened to kill her
if she did not reveal where she was hiding money and drugs. Y.N. continued to deny that she
had money or drugs in the house. The unidentified man hit Y.N. in the mouth with his gun.
Y.N. then told the men that there might be money in her brother Redrick's bedroom.
Redrick was home asleep with his girlfriend, Emma Hails, at the time. Y.N. and
defendant went to Redrick's bedroom. Redrick unlocked the door and defendant and Y.N.
entered. Defendant held a gun to Y.N.'s head and told Redrick to give him money. Redrick gave
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defendant $100. Redrick and defendant began to argue and defendant hit Redrick in the head
with his gun.
Defendant took Y.N. back into her bedroom. Defendant asked Y.N. whether she had a
telephone. Y.N. said she had a phone in the kitchen. Defendant told Y.N. to cut the cord on the
phone. As defendant and Y.N. moved toward the kitchen, Shelby, Y.N.'s other brother, emerged
from his bedroom in the basement. Defendant told Shelby to lie on the floor.
Defendant and Y.N. then went back into Y.N.'s bedroom. Y.N. told defendant to take
whatever he wanted. Defendant took some jewelry and then went into the living room with Y.N.
and the unidentified man. The unidentified man ordered Y.N. to take off her clothes, which she
did. Defendant and the unidentified man then took Y.N. into her bedroom. The unidentified
man told Y.N. to get on her knees, and he inserted his penis into Y.N.'s mouth. Defendant, who
was standing behind Y.N., put his finger, and then his penis, into Y.N.'s vagina. After a few
minutes, Y.N. was told to turn around. Defendant then inserted his penis into Y.N.'s mouth
while the unidentified man put his penis into Y.N.'s vagina. The unidentified man stopped the
assault suddenly and ran out of the bedroom. Defendant grabbed an Aldi's bag that was filled
with Y.N.'s clothes and followed him. Y.N. called the police once the men left her house.
Chicago police officer Daniel Ludwig testified he received a call at approximately 4 a.m.
on June 21, 2000, that a robbery had taken place at Y.N.'s address and three black males were
seen fleeing the scene. Ludwig and his partner were driving in the area of the alleged robbery
when they saw three black males getting out of a blue Chevy Cavalier. One of the men carried
an Aldi's grocery bag, which he threw in the car after seeing Ludwig. All three men went into a
house located at 6450 South Hoyne Avenue.
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Officer Ludwig went to Y.N.'s house and spoke with Y.N. and the other witnesses.
Based on information he received, Ludwig went back to the area where the three men were seen
leaving the blue Chevy Cavalier. Ludwig retrieved the Aldi's bag from the car and took it to
Y.N., who identified the bag as the one taken by defendant. Ludwig then went back to 6450
South Hoyne Avenue and knocked on the door. Ludwig could see the three men looking out a
second-floor window but nobody answered the door. Ludwig called the Chicago fire department
to make a forced entry into the house. On entering, Ludwig took custody of defendant, Cory
Durr and Maurice Alexander. The men were taken to Y.N.'s house for an identification. Y.N.
identified defendant and Durr as two of the men in her home earlier that morning. Y.N. had not
identified defendant and Durr in her earlier conversations with Ludwig.
The State called Cory Durr to testify. Durr was serving an eight-year prison term after
pleading guilty to charges relating to this case. Durr invoked his fifth amendment right against
self-incrimination at defendant's trial and refused to answer questions relating to the crime. The
trial court told Durr he had no fifth amendment right under the circumstances and could be held
in contempt of court if he refused to answer the State's questions. Durr still refused to talk about
the crime but admitted giving a handwritten statement to an assistant State's Attorney on June 22,
2000.
The State moved to admit Durr's statement under section 115-10.2 of the Code of
Criminal Procedure of 1963 (725 ILCS 5/115-10.2 (West 2000) (allowing, in limited
circumstances, hearsay statement of a witness who refuses to testify despite court order to do
so)). Defendant objected to the statement on the ground that it violated his right to confront the
witness. The court admitted the statement, which was then read into evidence.
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Durr said the following in his statement to the assistant State's Attorney. Durr met
defendant and Maurice Alexander in the early morning hours of June 21, 2000. Defendant told
Durr that he and Alexander were on their way to "break into a house and go steal some money."
Durr decided to go along. All three men went to defendant's house at 6450 South Hoyne Avenue
to pick up guns. They then walked to Y.N.'s house. Defendant told Durr to stand on the back
porch of Y.N.'s house and watch for police. After about two or three minutes, defendant opened
the back door to the house and let Durr inside. Durr stood in the kitchen while defendant yelled
at Y.N., demanding that she give him money. After about 10 or 15 minutes, Durr walked into
the living room. Durr saw defendant and Alexander "tearing up the room looking for money."
Alexander told Durr to go back into the kitchen and continue looking out for the police. Durr
heard someone coming upstairs from the basement. Defendant came into the kitchen, pulled his
gun out and ordered the man to lie on the floor. Durr stayed in the kitchen for another 15
minutes. He then went into Y.N.'s bedroom. Durr saw defendant and Alexander sexually
assaulting Y.N. He then went back into the kitchen. Defendant and Alexander came "charging
towards the door" approximately 5 to 10 minutes later. All three men left Y.N.'s house and ran
to defendant's house.
The State offered by way of stipulation the testimony of Officer John Kosiewicz and
forensic chemist Julie Wessel. If called as a witness, Kosiewicz would testify he recovered two
fingerprints from a bathtub located in Y.N.'s house. If called as a witness, Wessel would testify
she received the fingerprint impressions recovered by Kosiewicz. She compared the fingerprints
with fingerprints on a card marked by defendant. Wessel concluded that the fingerprints lifted
from Y.N.'s bathtub were made by defendant. It was also stipulated that semen recovered from
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Y.N.'s vagina was tested and compared to a DNA sample taken from defendant. The results
were inconclusive.
Defendant called Tamika Stewart to testify. Stewart said she went to defendant's home
between 10 and 10:30 p.m. on June 20, 2000. Defendant was asleep when she arrived. Stewart
stayed at defendant's house playing cards with friends until approximately 1 or 1:30 the
following morning. Stewart did not see defendant leave the house.
Stewart was outside later that morning when the police took defendant into custody.
Stewart said she saw the police take defendant, who was wearing only his boxer shorts, to Y.N.'s
house a short distance away. Stewart said she went to Y.N.'s and heard Y.N. tell police that
defendant was not involved in the crime.
Stewart also testified that she had attended a Father's Day barbeque at Y.N.'s house a
couple of days before the incident. Defendant was also at the barbeque. Stewart stayed outside
most of the time but went inside to use the bathroom and to get a plate.
Nina Moore testified she was outside when police drove to Y.N.'s house with defendant
in the car. Moore heard the police ask Y.N. whether defendant was one of the men who entered
her house earlier that morning. Y.N. responded that he was not.
LaShawn Nicholas testified she went to defendant's house at approximately 2 a.m. on
June 21, 2000. Defendant went to sleep shortly after Nicholas arrived. Nicholas left the house at
approximate 3:45 a.m. Nicholas was outside Y.N.'s house when the police asked Y.N. to
identify defendant. Nicholas heard Y.N. tell police that defendant was not one of her attackers.
Barbara Murray testified that she received a phone call on June 21, 2000, prompting her
to go to defendant's house. Murray saw police take defendant and Durr out of defendant's house
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in their boxer shorts and place them in a squad car. Murray followed the squad car to Y.N.'s
house. The police brought Y.N. outside and asked her to identify defendant. Murray heard Y.N.
tell the police that she knew defendant and that he was not one of her attackers.
The defense offered by way of stipulation the testimony of Tina Winters. If called as a
witness, Winters would testify that she had been "very friendly" with Y.N. for approximately 10
years. Y.N. told Winters a day or two after the incident that defendant was not one of her
attackers. Y.N. was later called as a rebuttal witness and denied saying these things to Winters.
It was also stipulated that Winters had been convicted of forgery and theft.
Following closing argument, the trial court found defendant guilty on all counts. The
court said it "particularly found persuasive the statements of Mr. Cory Durr in that his statements
were consistent with the testimony of the victim in this case." The court also found persuasive
defendant's fingerprint on the bathtub and the testimony about the Aldi's bag. The court gave
"very little weight" to the defense witnesses who testified they heard Y.N. tell police that
defendant was not involved in the crime. The court believed this testimony was inconsistent
with the fact that police arrested defendant after leaving Y.N.'s house.
Defendant was convicted of eight counts of aggravated criminal sexual assault (720 ILCS
5/12-14(a)(4), (a)(8) (West 2002)) and two counts of home invasion with a firearm (720 ILCS
5/12-11(a)(3) (West 2002)). The court sentenced defendant to 21 years on four counts of
aggravated criminal sexual assault, to run consecutively, for a total of 84 years in prison.
Defendant was sentenced to 21 years in prison for each of the home invasion counts, to run
concurrently with the other sentences. Defendant was also sentenced to six years on the
remaining four counts of aggravated criminal sexual assault, also to run concurrently with the
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other sentences.
Defendant's first argument on appeal concerns the admission of Cory Durr's statement
into evidence. Defendant maintains the admission of Durr's statement violated his sixth
amendment right under the United States Constitution to confront a witness against him. See
U.S. Const., amend VI. Defendant cites Crawford, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct.
1354. The Court in Crawford overturned its holding in Ohio v. Roberts, 448 U.S. 56, 65 L. Ed.
2d 597, 100 S. Ct. 2531 (1980), that allowed the admission of a statement by an unavailable
witness as long as the statement bore adequate indicia of reliability. The Court held a
testimonial statement is admissible only where the witness is unavailable and the accused has
had an earlier opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68, 158 L. Ed.
2d at 203, 124 S. Ct. at 1374.
The State agrees there has been a Crawford violation but argues defendant forfeited his
right to assert a confrontation clause challenge in this case. The State cites dicta in Crawford
where the Court acknowledged that an accused may forfeit his rights under the confrontation
clause where there is evidence of wrongdoing by the accused. Crawford, 541 U.S. at 62, 158 L.
Ed. 2d at 199, 124 S. Ct. at 1370, citing Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244
(1879). In Reynolds, the Court held an accused has no right to confront a witness who, through
the accused's wrongful procurement, is unavailable to testify.
"The Constitution gives the accused the right to a trial at which he should
be confronted with the witnesses against him; but if a witness is absent by [the
accused's] own wrongful procurement, he cannot complain if competent evidence
is admitted to supply the place of that which he has kept away. The Constitution
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does not guarantee an accused person against the legitimate consequences of his
own wrongful acts. It grants him the privilege of being confronted with the
witnesses against him; but if he voluntarily keeps the witnesses away, he cannot
insist on his privilege. If, therefore, when absent by his procurement, their
evidence is supplied in some lawful way, he is in no condition to assert that his
constitutional rights have been violated." Reynolds, 98 U.S. at 158, 25 L. Ed. at
247.
The State argues defendant forfeited the privilege to confront Cory Durr because he wrongfully
procured Durr's silence. The State cites a letter allegedly written by defendant to Durr. The
letter is included in the record on appeal and reads in part:
"I think the [S]tate really need[s] you to get down on me to get a conviction.
Because they are going to use you on the 16th of July. I spoke with my lawyer
about the issue[.] [H]e said the best thing for you to do is to plead the [fifth]. He
said you could tell your mother to call the [public defender] and get him to file a
motion for you to plead the [fifth] so you don't have to come back here. But I
think that [the public defender] is on their side. You can just plead the [fifth]
when you get here. He said the [S]tate is [going to] try to scare the [expletive
deleted] out of you but there[']s nothing they can do. NOTHING!!! Plus[,] I
heard this from the judge[']s mouth. He said if a person does not want to testify[,]
he or she [does not] have to. So dog, don't let them spook you. Don't get down
on me man. O.K."
At oral argument in this case, the parties disagreed over the type of conduct that would result in
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forfeiture of an accused's right to confront a witness against him and whether the letter alleged to
have been written by defendant was evidence of such conduct. We will address each issue in
turn.
Crawford expressly adopted "the rule of forfeiture by wrongdoing" that "extinguishes
confrontation claims on essentially equitable grounds." Crawford, 541 U.S. at 62, 158 L. Ed. 2d
at 199, 124 S. Ct. at 1370, citing Reynolds, 98 U.S. at 158-159, 25 L. Ed. at 247-48. The
Reynolds Court announced the general rule, developed through English common law, that an
accused cannot challenge the admission of an out-of-court statement by a witness rendered
unavailable by the accused. Reynolds, 98 U.S. at 159, 25 L. Ed. at 248. The Court cited
authority for confining application of the rule to facts where the accused's conduct is deemed
corrupt. Reynolds, 98 U.S. at 159, 25 L. Ed. at 248. Our own research reveals that courts in
other jurisdictions have limited the scope of the forfeiture rule to facts where the witness' silence
is procured by the defendant himself through chicanery, threats or actual violence. See State v.
Alvarez-Lopez, 136 N.M. 139, 98 P.3d 699 (2004); United States v. Thevis, 665 F.2d 616 (5th
Cir. 1982); United States v. Balano, 618 F.2d 624 (10th Cir. 1979); United States v. Mayes, 512
F.2d 637 (6th Cir. 1975). But, as the Reynolds Court explained, any conduct by the accused to
keep a witness from testifying against him is impliedly wrongful. Reynolds, 98 U.S. at 159, 25
L. Ed. at 248.
"[I]n the leading text-books, it is laid down that if a witness is kept away by the
adverse party, his testimony, taken on a former trial between the same parties
upon the same issues, may be given in evidence. [Citation.] Mr. Wharton
[citation] seemingly limits the rule somewhat, and confines it to cases where the
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witness has been corruptly kept away by the party against whom he is to be
called, but in reality his statement is the same as that of the others; for in all it is
implied that the witness must have been wrongfully kept away." Reynolds, 98
U.S. at 158-59, 25 L. Ed. at 247-48.
We conclude that any conduct by an accused intended to render a witness against him
unavailable to testify is wrongful and may result in forfeiture of the accused's privilege to be
confronted by that witness.
"Such being the rule, the question becomes practically one of fact" to be settled by the
trier of fact. Reynolds, 98 U.S. at 159, 25 L. Ed. at 248. The facts in this case relevant to
whether defendant forfeited his right to confront Durr by writing a letter urging Durr not to
testify against him at trial are in dispute. Most significantly, defendant has not conceded to
authoring the letter to Durr. The State asks that we act as the trier of fact and resolve conflicts in
the evidence. The State has even gone so far as to ask that we compare the handwriting in the
letter to defendant's handwriting. This is not the province of a court of review. We remand this
case to the trial court for an evidentiary hearing on the State's forfeiture by wrongdoing claim.
See People v. Bramlett, 341 Ill. App. 3d 638, 651, 793 N.E.2d 203 (2003) (remanding for a
hearing where record was insufficient for court of review to decide attenuation). If the trial court
finds defendant did not forfeit his right to confrontation, Durr's statement was inadmissible.
Although no more than cumulative of eyewitness testimony, Durr's statement was so prejudicial
a new trial is warranted.
To dispel double jeopardy concerns in case a new trial is granted, we find the evidence
was sufficient to prove defendant guilty beyond a reasonable doubt absent Durr's statement. See
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People v. Taylor, 76 Ill. 2d 289, 309, 391 N.E.2d 366 (1979) (double jeopardy forbids second
trial for the purpose of affording the State another opportunity to supply evidence that was
insufficient to prove defendant guilty beyond a reasonable doubt in the initial proceeding). Y.N.
gave a detailed account of the crime and identified defendant, whom she had known from
childhood, as her attacker. Y.N.'s testimony, alone, was sufficient to uphold defendant's
conviction. See People v. Smith, 185 Ill. 2d 532, 541, 708 N.E.2d 365 (1999) (testimony of a
single witness, if it is positive and the witness is credible, is sufficient to convict). Y.N.'s
testimony was corroborated by evidence relating to the Aldi's bag and defendant's fingerprints
found on Y.N.'s bathtub, both of which placed defendant at the crime scene. Although defendant
offered testimony from witnesses who allegedly heard Y.N. tell police that defendant was not
involved in the crime, the trial judge, who was in the best position to weigh the credibility of
these witnesses, decided to give little weight to the testimony. See People v. Wiley, 205 Ill. 2d
212, 227, 792 N.E.2d 1274 (2001) (circuit court, which heard and saw witnesses, was in better
position to judge witness credibility and decide weight to be accorded testimony).
We must now address the remaining issues raised by defendant in this appeal, in case the
trial court finds on remand that defendant forfeited his right to bring a confrontation clause
challenge.
Defendant argues his sentence violated the prohibition against double enhancement.
Defendant maintains his 21-year sentence on each of four aggravated criminal sexual assault
counts was reached by considering a single factor--that defendant was armed with a firearm--
both to elevate the crime to a Class X felony and to justify the imposition of a 10-year mandatory
add-on provision.
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A statute is presumed constitutional and the party challenging the statute bears the burden
of demonstrating its invalidity. People v. Moss, 206 Ill. 2d 503, 519-20, 795 N.E.2d 208 (2003),
rev'd on other grounds, People v. Sharpe, 216 Ill. 2d 481 (October 6, 2005). Courts must
construe a statute in a manner that upholds its validity if it reasonably can be done. Moss, 206
Ill. 2d at 520. The constitutionality of a statute is subject to de novo review. Moss, 206 Ill. 2d at
520.
Double enhancement occurs when a single factor is used both as an element of the crime
and as an aggravating factor, justifying the imposition of a harsher sentence than might
otherwise have been imposed. Moss, 206 Ill. 2d at 533. It is assumed that the legislature, in
deciding the appropriate penalty for an offense, necessarily takes into account the factors
inherent in the offense. Moss, 206 Ill. 2d at 533. " 'Thus, to use one of those same factors that
make up the offense as the basis for imposing a harsher penalty than might otherwise be imposed
constitutes a double use of a single factor.' " (Emphasis in original.) Moss, 206 Ill. 2d at 533,
quoting People v. Gonzalez, 151 Ill. 2d 79, 84, 600 N.E.2d 1189 (1992). The general
prohibition against such double enhancement is a rule of statutory construction. Moss, 206 Ill.
2d at 533.
Defendant was sentenced under section 12-14 of the Criminal Code of 1961 (Code) (720
ILCS 5/12-14 (West 2002)), which reads in part:
"(a) The accused commits aggravated criminal sexual assault if he or she
commits criminal sexual assault and any of the following aggravating
circumstances existed during *** the commission of the offense:
(1) the accused displayed, threatened to use, or used a dangerous
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weapon, other than a firearm, or any object fashioned or utilized in such a
manner as to lead the victim under the circumstances reasonably to believe
it to be a dangerous weapon; or
***
(4) the criminal sexual assault was perpetrated during the course of
the commission or attempted commission of any other felony by the
accused; or
(8) the accused was armed with a firearm; or
(9) the accused personally discharged a firearm during the
commission of the offense; or
(10) the accused, during the commission of the offense, personally
discharged a firearm that proximately caused great bodily harm,
permanent disability, permanent disfigurement, or death to another person.
(d) Sentence.
(1) Aggravated criminal sexual assault in violation of paragraph
(1), (2), (3), (4), (5), (6), or (7) of subsection (a) is a Class X felony. A
violation of subsection (a)(8) is a Class X felony for which 15 years shall
be added to the term of imprisonment imposed by the court. A violation of
subsection (a)(9) is a Class X felony for which 20 years shall be added to
the term of imprisonment imposed by the court. A violation of subsection
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(a)(10) is a Class X felony for which 25 years or up to a term of natural
life imprisonment shall be added to the term of imprisonment imposed by
the court." (Emphasis added.) 720 ILCS 5/12-14 (West 2002).
Our supreme court in Moss dealt with a similar challenge to the armed robbery statute.
That statute provides that a person commits armed robbery when he or she commits robbery and
(1) carries or is otherwise armed with a dangerous weapon other than a firearm; (2) carries or is
otherwise armed with a firearm; (3) personally discharges a firearm during the commission of
the offense; or (4) personally discharges a firearm during the commission of the offense that
proximately causes great bodily harm, permanent disability, permanent disfigurement or death.
720 ILCS 5/18-2 (West 2000). Under the sentencing provision of the statute, a robbery
(normally a Class 1 felony) committed with a dangerous weapon other than a firearm is a Class
X felony. 720 ILCS 5/18-2(b) (West 2000). A Class X felony is punishable by 6 to 30 years'
imprisonment. 730 ILCS 5/5-8-1(a)(3) (West 2002). Under the remaining three
provisions where a firearm is involved, the offense is punishable as a Class X felony with a
mandatory add-on of 15 years (where the accused is armed with a firearm), 20 years (where the
accused personally discharges a firearm) or 25 years to life (where the accused personally
discharges a weapon that proximately causes great bodily harm, permanent disability, permanent
disfigurement or death). 720 ILCS 5/18-2(b) (West 2000). This sentencing scheme is
commonly known as the "15/20/25-to-life" provision.
The defendant in Moss challenged the "15/20/25-to-life" provision of the armed robbery
statute on the ground that it violated the double enhancement rule. Moss, 206 Ill. 2d at 508-09.
The trial court agreed, finding that the provision authorized an enhancement of both the offense
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and the sentence based on the presence of a single factor--a firearm. Moss, 206 Ill. 2d at 533-34.
The supreme court disagreed, saying:
"According to the circuit court's reasoning, the firearm factors are used
first to enhance the Class 1 felony of robbery to armed robbery, a Class X offense.
They are then used a second time to justify the 15/20/25-to-life add-ons that are,
under the statute, triggered by these same firearm factors. The problem with this
reasoning is that the first enhancement from a Class 1 to a Class X felony comes
as a result of nonfirearm conduct." (Emphasis in original.) Moss, 206 Ill. 2d at
534.
The court reasoned that the mandatory add-ons are not triggered by the first form of armed
robbery--where a person commits robbery while carrying a dangerous weapon other than a
firearm--but by the remaining three, each of which is a Class X felony involving a firearm.
Moss, 206 Ill. 2d at 534. "By the terms of the statute, firearm factors have nothing to do with the
initial enhancement to a Class X felony, which, as noted, comes when robbery is committed with
a dangerous weapon 'other than a firearm.' " Moss, 206 Ill. 2d at 535, quoting 720 ILCS 5/18-
2(a)(1) (West 2000).
The State argues the court's reasoning in Moss applies equally here. The State maintains
that the initial enhancement under section 12-14 from criminal sexual assault to aggravated
criminal sexual assault, a Class X offense, results when criminal sexual assault is committed
with a dangerous weapon other than a firearm under subsection (a)(1). 720 ILCS 5/12-14(a)(1)
(West 2002). But as defendant points out, he did not use a dangerous weapon other than a
firearm in the commission of the offense. Defendant used a firearm. We agree that the State's
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argument fails on this ground. But we find Moss applicable on other grounds.
Defendant was found guilty of four counts of aggravated criminal sexual assault under
subsection (a)(4) and four counts of aggravated criminal sexual assault under subsection (a)(8) of
section 12-14 of the Code. A person commits aggravated criminal sexual assault under
subsection (a)(4) when he or she commits criminal sexual assault "during the course of the
commission or attempted commission of any other felony by the accused." 720 ILCS 5/12-
14(a)(4) (West 2002). A violation of subsection (a)(4) is a Class X felony subject to a 6- to 30-
year penalty. 720 ILCS 5/12-14(d)(1) (West 2002); 730 ILCS 5/5-8-1(a)(3) (West 2002). A
person commits aggravated criminal sexual assault under subsection (a)(8) when he or she
commits criminal sexual assault while armed with a firearm. 720 ILCS 5/12-14(a)(8) (West
2002). A violation of this subsection is a Class X felony for which 15 years shall be added to the
term of imprisonment imposed by the court. 720 ILCS 5/12-14(d)(1) (West 2002).
As the State concedes on appeal, defendant's convictions and sentences under subsection
(a)(4) must be vacated because there were only four acts of penetration. But subsection (a)(4)
served as the ground for the trial court's initial enhancement of the criminal sexual assault
offense from a Class 1 felony to a Class X felony punishable by 6 to 30 years' imprisonment.
The trial court's 15-year enhancement of defendant's sentence from 6 years to 21 years on the
remaining counts of aggravated criminal sexual assault was made under subsection (a)(8). The
firearm factor was used only once--to enhance defendant's sentence. There has been no violation
of the prohibition against double enhancement in this case.
Defendant next argues his sentences for aggravated criminal sexual assault violate the
proportionate penalties clause of the Illinois Constitution. Ill. Const. 1970, art. I, '11. Under
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this provision, "[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. Defendant maintains that the 15-year add-on provision of section 12-14(a)(8) is
unconstitutionally disproportionate to armed violence predicated on criminal sexual assault with
a category I weapon and aggravated criminal sexual assault by some other means.
The question we must answer in deciding whether a proportionate-penalties violation has
occurred is whether the penalty at issue has been set by the legislature according to the
seriousness of the offense. Moss, 206 Ill. 2d at 522. Our supreme court has in the past
recognized three ways in which a penalty will violate the proportionate penalties clause: (1) the
penalty is cruel, degrading or so wholly disproportionate to the offense committed as to shock
the moral sense of the community; (2) similar offenses are compared and conduct that creates a
less serious threat to the public health and safety is punished more severely; and (3) offenses
with identical elements are given different sentences. Moss, 206 Ill. 2d at 522.
Defendant argues that, under the third test, the penalty for aggravated criminal sexual
assault while armed with a firearm (Class X offense punishable by 21 to 45 years' imprisonment)
is disproportionate to armed violence predicated on criminal sexual assault with a category I
weapon (Class X offense punishable by 15 to 30 years' imprisonment). 720 ILCS 5/12-14(d)(1),
33A-3 (West 2002). Defendant relies on People v. Christy, 139 Ill. 2d 172, 564 N.E.2d 770
(1990), and People v. Lewis, 175 Ill. 2d 412, 677 N.E.2d 830 (1996).
The defendant in Christy was convicted of kidnaping and armed violence predicated on
kidnaping with a category I weapon. Christy, 139 Ill. 2d at 173. On appeal, the defendant
argued armed violence predicated on kidnaping with a category I weapon (Class X felony
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punishable by 6 to 30 years' imprisonment) is unconstitutionally disproportionate to aggravated
kidnaping (Class 1 felony punishable by 4 to 15 years' imprisonment). Christy, 139 Ill. 2d at
177-78, 181. The supreme court agreed. Christy, 139 Ill. 2d at 181. The court looked at both
statutes and concluded that the elements necessary to each were identical. Christy, 139 Ill. 2d at
181. "Since the elements which constitute aggravated kidnapping and armed violence are
identical, common sense and sound logic would seemingly dictate that their penalties be
identical." Christy, 139 Ill. 2d at 181. Because the elements were identical and armed violence
was punished more severely, the court vacated the defendant's conviction for armed violence and
remanded for sentencing on the offense of aggravated kidnaping. Christy, 139 Ill. 2d at 174,
181.
The court in Lewis relied on Christy to reach a similar conclusion. The defendant in that
case was charged with robbery, armed robbery (Class X felony punishable by 6 to 30 years'
imprisonment) and armed violence predicated on robbery committed with a category I weapon
(Class X offense punishable by 15 to 30 years' imprisonment). Lewis, 175 Ill. 2d at 414, 418.
The trial court dismissed the armed violence predicated on robbery count as unconstitutionally
disproportionate to armed robbery. Lewis, 175 Ill. 2d at 415. Our supreme court affirmed.
Lewis, 175 Ill. 2d at 424. The court found that armed violence predicated on robbery committed
with a category I weapon and armed robbery were identical offenses. Lewis, 175 Ill. 2d at 418.
A person could be found guilty of either offense on a showing that he committed robbery while
armed with a handgun. Lewis, 175 Ill. 2d at 418. Because the mandatory minimum sentence for
armed violence predicated on robbery committed with a category I weapon was 15 years'
imprisonment, while the mandatory minimum sentence for armed robbery was 6 years'
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imprisonment, the court concluded that the penalties were unconstitutionally disproportionate.
Lewis, 175 Ill. 2d at 418, 423. The court noted that the State was not precluded from proceeding
against the defendant on the armed robbery charge. Lewis, 175 Ill. 2d at 423.
The State argues that, under Lewis, there can be no proportionate penalties violation
because armed violence predicated on criminal sexual assault does not exist. The State
misconstrues the Lewis holding. There is nothing in the Lewis decision that would lead us to
conclude that criminal sexual assault cannot serve as a predicate offense for armed violence.
The Lewis court held armed violence predicated on robbery committed with a category I weapon
violated the disproportionate penalties clause because it carried a mandatory minimum sentence
greater than the mandatory minimum sentence for armed robbery, an identical offense. It is the
other way around in this case. Defendant argues aggravated criminal sexual assault with a
firearm carries a greater mandatory minimum sentence than armed violence predicated on
criminal sexual assault with a category I weapon. The statute defendant alleges is
unconstitutional is aggravated criminal sexual assault.
The State also cites People v. Cummings, 351 Ill. App. 3d 343, 813 N.E.2d 1004 (2004),
which distinguished Lewis and Christy on facts similar to those present here. The defendant in
Cummings was convicted of armed robbery and sentenced to an extended term of natural life
imprisonment. Cummings, 351 Ill. App. 3d at 344. On appeal, the defendant argued armed
robbery (Class X felony punishable by 6 to 30 years' imprisonment) and armed violence
predicated on robbery committed with a category III weapon (Class 2 felony punishable by three
to seven years' imprisonment) are identical offenses with disproportionate penalties. Cummings,
351 Ill. App. 3d at 346. Although the defendant was not charged with or convicted of armed
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violence, he argued he should be sentenced in accordance with the armed violence statute.
Cummings, 351 Ill. App. 3d at 346. The court disagreed. Cummings, 351 Ill. App. 3d at 353.
The court distinguished Christy and Lewis on the ground that, in those cases, the penalty for a
lesser charge was disproportionately enhanced to a penalty more severe than for a greater offense
through application of the armed violence statute. Cummings, 351 Ill. App. 3d at 347. Unlike
the defendants in Christy and Lewis, the defendant in Cummings was not charged with the lesser
offense of armed violence or robbery. Cummings, 251 Ill. App. 3d at 347. He was charged with
the greater offense of aggravated robbery. Cummings, 351 Ill. App. 3d at 347. The court held
the State was not required to proceed on the lesser offense when the State's evidence is sufficient
to support a conviction on the greater offense and affirmed the defendant's conviction for armed
robbery. Cummings, 351 Ill. App. 3d at 347-48, 353.
We agree with the holding in Cummings that the State need not proceed on a lesser
offense when there is sufficient evidence to convict on a greater offense. But we do not agree
that the constitutional prohibition against disproportionate penalties for identical crimes may be
relaxed where the State decides to proceed only with the crime carrying a greater penalty.
The court in Lewis rejected an argument by the State that the trial court, in dismissing the
armed violence charge as violating the proportionate penalties clause, usurped the State's
discretion in evaluating the evidence and deciding what offenses to charge. Lewis, 175 Ill. 2d at
422. The court cited the following language from Christy:
" 'Generally, prosecutorial discretion is a valuable aspect of the criminal justice
system. [Citation.] In the present case, however, prosecutorial discretion will
effectively nullify the aggravated kidnapping statute, as skilled State's Attorneys
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will usually seek the more severe sentence and, therefore, charge defendants with
armed violence rather than aggravated kidnapping. An ineffective aggravated
kidnapping statute is not what the legislature intended when it enacted both the
armed violence statute and aggravated kidnapping statutes.' Christy, 139 Ill. 2d at
180." Lewis, 175 Ill. 2d at 417.
The court went on to say that the State's argument misconstrues the nature of the defendant's
challenge to the armed robbery statute. Lewis, 175 Ill. 2d at 422. The defendant did not allege
improper use of prosecutorial discretion. Lewis, 175 Ill. 2d at 422. Rather, "in a more
fundamental attack," the defendant argued the State had no authority, discretionary or otherwise,
to charge the offense because the offense violated the proportionate penalties clause. Lewis, 175
Ill. 2d at 422.
We also find Cummings distinguishable on the ground that the defendant in that case was
a habitual offender. Cummings, 351 Ill. App. 3d at 348. The defendant's extended term sentence
of natural life imprisonment was imposed under the Habitual Criminal Act (720 ILCS 5/33B-
1(a) (West 2000)). Cummings, 351 Ill. App. 3d at 348. The court found the defendant's
sentence constitutionally proportionate due to his history as a violent offender. Cummings, 351
Ill. App. 3d at 349.
We believe Christy and Lewis are dispositive of defendant's proportionate penalties
challenge. A person commits aggravated criminal sexual assault when he commits criminal
sexual assault while armed with a firearm. 720 ILCS 5/12-14(a)(8) (West 2002). "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
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homicide of an unborn child, predatory criminal sexual assault of a child, aggravated criminal
sexual assault, aggravated kidnaping, aggravated battery of a child, home invasion, armed
robbery, or aggravated vehicular hijacking." 720 ILCS 5/33A-2(a) (West 2002). Dangerous
weapons include category I weapons, which in turn include handguns, sawed-off shotguns,
sawed-off rifles, any other firearm small enough to be concealed on the person, semiautomatic
firearms or machine guns. 720 ILCS 5/33A-1 (West 2002). The statutes are identical for
purposes of a proportionate penalties analysis. 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.
Since the elements of aggravated criminal sexual assault while armed with a firearm and
armed violence predicated on criminal sexual assault with a category I weapon are identical,
"common sense and sound logic would seemingly dictate that their penalties be identical."
Christy, 139 Ill. 2d at 181. But, as noted above, aggravated criminal sexual assault while armed
with a firearm is a Class X felony with a mandatory 15-year add-on, dictating a penalty range
between 21 to 45 years in prison. 720 ILCS 5/12-14(d)(1) (West 2002). Armed violence
predicated on criminal sexual assault with a category I weapon, on the other hand, carries a
sentencing range between 15 and 30 years in prison. 720 ILCS 5/33A-3 (West 2002). To
conclude: We agree with defendant that the 15-year mandatory add-on provision of section 12-
14(d)(1) of the Code violates the proportionate penalties clause because it makes aggravated
criminal sexual assault punishable more severely than the identical offense of armed violence
predicated on criminal sexual assault with a category 1 weapon.
The State, in its petition for rehearing, argues the legislature amended the armed violence
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statute in response to Christy and Lewis to exclude certain predicate offenses, including
aggravated criminal sexual assault. The State maintains that, by excluding aggravated criminal
sexual assault as a predicate offense for armed violence, the identical elements test for
proportionate penalties review fails. But the legislature excluded aggravated criminal sexual
assault as an available predicate offense, not criminal sexual assault. These are distinct offenses.
See 720 ILCS 5/12-13, 12-14 (West 2002). As written, criminal sexual assault may serve as a
predicate offense for armed violence. It is not the function of the judiciary to re-write statutes.
See People v. Burdunice, 211 Ill. 2d 264, 271, 811 N.E.2d 678 (2004).
Because we find the 15-year mandatory add-on for aggravated criminal sexual assault
unenforceable, defendant, if not entitled to a new trial based on a Crawford violation, is entitled
to a new sentencing hearing. If a new sentencing hearing is held, the trial court is directed to
sentence defendant in accordance with section 12-14(d)(1) of the Code as it existed before
amendment by Public Act 91-404 (Pub. Act 91-404, eff. January 1, 2000) (adding subsection
(a)(8) and the 15-year mandatory add-on for violation of subsection (a)(8) to subsection (d)(1)).
See People v. Pizano, 347 Ill. App. 3d 128, 136, 806 N.E.2d1100 (2004) (proper remedy where a
statutory amendment is found to have violated proportionate penalties clause is to remand the
cause for a new sentencing hearing under the statute in effect before the adoption of the
amendment). Based on our resolution of this issue, we need not reach defendant's alternative
argument that aggravated criminal sexual assault with a firearm is unconstitutionally
disproportionate to other forms of aggravated criminal sexual assault.
Defendant next argues he was improperly convicted of two counts of home invasion
where only one illegal entry occurred. The State agrees that one of the home invasion
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convictions must be vacated. As stated earlier, the State also agrees with defendant that four of
the aggravated criminal sexual assault convictions must be vacated because the evidence
supported a finding of only four acts of penetration.
Defendant's final argument concerns whether his 21-year sentence on the remaining
home invasion count violates the proportionate penalties clause. Under section 12-11(a)(3) of
the Code, a person commits home invasion when, without authority, he knowingly enters the dwelling place
of another and, while armed with a firearm, uses force or threatens the imminent use of force on a
person in such dwelling place, regardless of whether injury results. 720 ILCS 5/12-11(a)(3)
(West 2002). A violation of section 12-11(a)(3) is a Class X felony for which 15 years will be
added to the term of imprisonment imposed by the court. 720 ILCS 5/12-11(c) (West 2002).
Defendant argues section 12-11(a)(3) violates the proportionate penalties clause because its
penalty is more severe than the penalty imposed for the more serious offense of aggravated
battery with a firearm, which is punishable as a Class X felony with no mandatory add-on. See
720 ILCS 5/12-4.2(a)(1), (a)(3) (West 2002); 730 ILCS 5-8-1(a)(3) (West 2002).
As explained above, the supreme court has used three methods to identify proportionate
penalty violations. See Moss, 206 Ill. 2d at 522. Those methods include: (1) a penalty violates
the proportionate penalties clause if it is cruel, degrading or so wholly disproportionate to the
offense committed as to shock the moral sense of the community; (2) a penalty violates the
proportionate penalties clause where similar offenses are compared and conduct that creates a
less serious threat to the public health and safety is punished more severely; and (3) the
proportionate penalties clause is violated where offenses with identical elements are given
different sentences. Moss, 206 Ill. 2d at 522. Defendant's argument falls under the second
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method, also known as the cross-comparison test. Moss, 206 Ill. 2d at 522.
The cross-comparison test involves a two-step inquiry: (1) whether the measures being
compared share common statutory purposes, and (2) if the purposes are related, whether the less
serious offense is punished more harshly than the more serious offense. Moss, 206 Ill. 2d at 522.
If the statutory purposes are different, comparative proportionality review is inappropriate.
Moss, 206 Ill. 2d at 523. If the statutory purposes are not different, a violation of the
proportionate penalties clause results where the penalty prescribed for the less serious offense is
greater than the penalty prescribed for the more serious offense. Moss, 206 Ill. 2d at 523.
The supreme court recently explained that the problem with the cross-comparison test is
there is no principled, objective way to define statutory purpose. Sharpe, 216 Ill. 2d at 518.
After conducting a thorough review of cross-comparison analysis under the proportionate
penalties clause, the court said:
"[W]e have concluded that cross-comparison analysis has proved to be nothing
but problematic and unworkable, and that it needs to be abandoned. Those cases
that used such an analysis to invalidate a penalty are overruled, and this court will
no longer use the proportionate penalties clause to judge a penalty in relation to
the penalty for an offense with different elements." Sharpe, 216 Ill. 2d at 519.
The Sharpe court described the case law emanating from the cross-comparison analysis as
"absurd" and "obviously wrong." Sharpe, 216 Ill. 2d at 489, 516.. The court concluded "[a]
defendant may no longer challenge a penalty under the proportionate penalties clause by
comparing it with the penalty for an offense with different elements." Sharpe, 216 Ill. 2d at 521.
Here, defendant's only challenge to subsection (a)(3) of the home invasion statute arises
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under the former cross-comparison test. Defendant does not argue the penalty violates due
process or is cruel, degrading or so wholly disproportionate to the offense committed as to shock
the moral sense of the community. Nor does defendant challenge the home invasion statute by
comparing it to an offense with identical elements. Defendant's argument thus fails. The home
invasion statute does not violate the proportionate penalties clause. See People v. Guevara, 216
Ill. 2d 533, 544-47 (2005).
To summarize, we vacate defendant's convictions and sentences and remand the cause to
the trial court with directions that it conduct a hearing to decide whether defendant forfeited his
right under the confrontation clause to challenge the admission of Cory Durr's out-of-court
statement. Should the trial court find that defendant did not forfeit his right to bring a
confrontation clause challenge, defendant is entitled to new trial. If, on the other hand, the trial
court finds defendant has forfeited that right, we direct the trial court to reinstate defendant's
convictions on four counts of aggravated criminal sexual assault under section 12-14(a)(8) of the
Code (720 ILCS 5/12-14(a)(8) (West 2002) (criminal sexual assault while armed with a firearm))
and one count of home invasion. The trial court is to conduct a new sentencing hearing on the
aggravated criminal sexual assault convictions but reinstate defendant's 21-year sentence for
home invasion. Defendant's convictions and accompanying sentences on four counts of
aggravated criminal sexual assault under section 12-14(a)(4) of the Code (720 ILCS 5/12-
14(a)(4) (West 2002) (criminal sexual assault perpetrated during the course of the commission or
attempted commission of any other felony by the accused)) and the remaining count of home
invasion are vacated and are not to be reinstated should the trial court find that defendant
forfeited his rights under the confrontation clause.
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Judgment vacated and cause remanded with directions.
GORDON and McBRIDE, JJ., concur.