FIRST DIVISION November 17, 2008
No. 1-06-1190
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 02 CR 31770 ) DEMETRIUS JOHNS, ) The Honorable ) Reginald Baker, Defendant-Appellant. ) Judge Presiding.
JUSTICE GARCIA delivered the opinion of the court.
Following a jury trial, Demetrius Johns was found
accountable for armed robbery but not for murder. He was given
an 11-year sentence with an "add-on" penalty of 15 years because
the armed robbery was committed with a handgun. On appeal, the
defendant contends (1) his trial counsel was ineffective for
failing to assert a compulsion defense, (2) the add-on portion of
his sentence violates the "prohibition against disproportionate
penalties," and (3) his nonenhanced sentence of 11 years is an
abuse of discretion because a principal codefendant was sentenced
to six years for armed robbery.
We affirm: a compulsion defense was unavailable to the
defendant as a matter of law. We therefore reject his
ineffective assistance claim. We agree, however, that imposing
an add-on penalty of 15 years violated the proportionate 1-06-1190
penalties clause of the Illinois Constitution on the authority of
People v. Hauschild, 226 Ill. 2d 63, 86-87, 871 N.E.2d 1 (2007).
Because we vacate his sentence in its entirety and remand for a
new sentencing hearing, we do not reach the third issue.
BACKGROUND
The victim, Eugene Williams, was killed on May 5, 2002, at
the Knights' Inn in Harvey. The defendant was arrested nine days
later. After his arrest, the defendant made statements
implicating himself, Larry Melvin, and Michael Powe1 in the
victim's death. The defendant was charged in a 10-count
indictment under an accountability theory. The case proceeded to
trial in March 2006 before a jury on three counts of murder
(intent to kill, strong probability of death and felony murder)
and one count of armed robbery.
At trial, the State presented the testimony of Dolores
Bibbs, a housekeeper at the Knights' Inn. On May 5, 2002, Bibbs
went to the victim's room to get her boyfriend. When she entered
the room, her boyfriend was smoking and drinking with the victim,
the defendant, Powe, and Melvin. Bibbs and her boyfriend left
the room and Bibbs began her housekeeping duties. While she was
cleaning, another housekeeper screamed for Bibbs to come to the
1 Sometimes spelled "Poe" in the trial transcripts.
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victim's room. When Bibbs got to the victim's room, the victim
was kneeling in the doorway covered in blood. Bibbs stayed with
the victim until the paramedics arrived.
Quiara Campbell testified she was at the Knights' Inn
watching television with her sister's children when she heard a
door slam. She got up to look out the window and saw three men
running out of the room next door. Campbell recognized the
defendant, Melvin, and Powe as the three men, all of whom had
blood on their white T-shirts. The men ran down a flight of
stairs to the parking lot and drove away in a car driven by the
defendant. Campbell returned to watching television. After a
few minutes, there was a knock on the door. Campbell's nephew
opened the door to reveal the victim, who was covered in blood.
Campbell jumped up, closed the door, and called the police.
Detective William Martin of the Harvey police department
first spoke to the defendant on the evening of May 14, 2002.
After indicating he understood his Miranda rights, the defendant
agreed to speak with Martin. Detective Boone joined the
interview. The defendant initially told Martin he knew nothing
about the victim's death. After Martin shared information
gathered during the investigation, the defendant admitted he was
at the Knights' Inn when the victim was killed.
Martin asked the defendant to provide a written statement
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detailing his version of what occurred, which the defendant
agreed to do. After reviewing the handwritten statement with the
defendant, Martin had the statement typed and he reviewed the
typed statement with the defendant. Then Martin, along with
Boone, and the defendant signed each page of the typed statement.
During cross-examination, Martin testified that the
defendant claimed he "wasn't with the plan to kill" the victim,
never touched the victim, and never had a gun.
After Martin's testimony, the defendant's typed statement
was read into the record. In the statement, the defendant
admitted he was driving his car on May 5, 2002, when he saw
Melvin and Powe walking and picked them up. The defendant drove
Melvin and Powe to another location "so [Melvin] could serve a
customer." When the three men were back in the car, Melvin told
the defendant about a "lick," meaning a robbery, he wanted to do
at the Knights' Inn.
Melvin told the defendant that he and Powe had planned to
commit the robbery the previous night, but could not because they
did not have a car. Melvin, who had robbed the victim before,
described the victim as "sweet," meaning he would not fight back
during the robbery. Melvin indicated he planned to kill the
victim after the robbery. The defendant said he was not going to
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the Knights' Inn if the victim was going to be killed and asked
why the victim had to be killed if he was sweet. Melvin agreed
not to kill the victim.
When the three men arrived at the Knights' Inn, they saw
people coming out of the victim's room. The defendant tried to
signal to Melvin and Powe to call off the robbery because too
many people were around.
The defendant, Melvin, and Powe proceeded to the victim's
room. After a while, Powe went to the bathroom. When he came
out of the bathroom, he had a gun. Powe pointed the gun at the
victim and told him to get on the ground. Once the victim was on
the floor, Melvin used duct tape to bind the victim's legs and
hands. Powe demanded the victim reveal where his money and drugs
were located. The victim complied.
After Powe and Melvin obtained the victim's money and drugs,
Melvin began dragging the victim toward the bathroom. At this
point, the defendant said he was leaving. Powe told the
defendant to stay. Melvin took a razor off the bureau, handed it
to Powe, and told Powe to cut the victim's throat. Powe handed
the razor back, telling Melvin to do it. Once Melvin and the
victim were in the bathroom, Powe paced between the two rooms.
The defendant heard a gunshot but could not see who fired
the gun from where he was seated. After the gunshot, the
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defendant got up and ran out of the room. Melvin and Powe
followed. The three men got into the defendant’s car and the
defendant drove away. The defendant drove Melvin and Powe to
several locations before dropping them off.
Assistant State's Attorney Shawn Concannon testified she met
the defendant at the Harvey police station. She introduced
herself as an attorney, explained she was not the defendant's
attorney, and read the defendant his Miranda rights. Concannon
testified the defendant said he understood his rights and agreed
to speak with her about the victim's death. After their
conversation, Concannon offered the defendant several ways to
memorialize his statement. The defendant chose to make a
videotaped statement.
After Concannon's testimony, the defendant's videotaped
statement, which was substantially similar to his written
statement, was played in open court. The State rested.
The trial court denied the defendant's motion for a directed
verdict.
The defendant took the stand. The defendant testified that
when he learned that Melvin wanted to kill the victim after the
robbery, the defendant said he "wasn't with that." The defendant
told Melvin " 'if you steady talking about killing this guy, I'm
not with it.' " Based on Melvin's response that he would not
6 1-06-1190
kill the victim, the defendant testified he believed the robbery
was called off as well and that the men were going to the
Knights' Inn to watch a basketball game on television.
When the three men arrived at the Knights' Inn, the victim
and several other people were on a balcony overlooking the
parking lot. The defendant looked at Melvin and Powe and "[it]
was basically like, 'Man, I'm not in this. I ain't with this.
Look at these people.' " Powe nodded his head, which the
defendant took as agreeing with him. Melvin did not respond.
The defendant, Powe, and Melvin proceeded to the victim's
room. The defendant sat in a chair against the back wall of the
room. After 45 minutes of watching television, Powe went to the
bathroom. He came out with a gun. The defendant stood up and
asked Powe twice, "Man, what is you doing?" Powe pointed the gun
at him and told him to shut up and sit down. The defendant
complied, because Powe scared him with the gun.
While seated, the defendant watched as Melvin removed cash
from the victim's pocket after Powe asked the victim where the
money was. While he remained seated, the defendant saw Powe
remove drugs from a drawer. Melvin then bound the victim with
duct tape, took a razor off the television stand, and dragged the
victim into the bathroom.
Once the victim was in the bathroom, the defendant stood up
7 1-06-1190
and said he was leaving because he "wasn't on this, and they were
doing it anyway." Powe again pointed the gun at the defendant
and told him to sit down and shut up because he was driving. The
defendant believed that if he tried to leave the victim's room,
Melvin and Powe might "shoot and kill" him.
When the defendant heard a gunshot, he got up and ran out of
the room. Powe and Melvin followed. The three men got into the
defendant's car and the defendant drove away. The victim had
been shot and had his throat slit.
After leaving the Knights' Inn, the defendant drove Melvin
and Powe to several locations before dropping them off at Powe's
mother's home. The defense rested after the defendant's
testimony.
In her closing statement, defense counsel argued that the
defendant should not be held accountable for Melvin and Powe's
actions because the defendant terminated his role in the robbery
when he arrived at the Knights' Inn and signaled to Melvin and
Powe that the robbery could not go forward with so many people
around. The jury was instructed on the defendant's claim of
withdrawal. Illinois Pattern Jury Instructions, Criminal, No.
5.04 (4th ed. 2000) (IPI Criminal 4th No. 5.04).
The jury found the defendant not guilty of murder but guilty
of armed robbery.
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After denying the defendant's motion for a new trial, the
trial court sentenced the defendant to a total of 26 years, 15 of
which constituted the add-on penalty based on the use of a
firearm. The trial court denied the defendant's motion to
reconsider the sentence. This timely appeal follows.
ANALYSIS
The defendant raises three issues on appeal. First, he
contends his trial counsel was ineffective because she failed to
raise the affirmative defense of compulsion when evidence was
presented at trial that "the defendant was forced at gunpoint to
remain with [Melvin and Powe] as they committed an armed
robbery." Next, the defendant claims his enhanced sentence for
armed robbery based on the use of a firearm during the offense
violates the Illinois Constitution's prohibition against
disproportionate penalties because armed robbery committed with a
firearm has a more severe penalty than armed violence predicated
on a robbery although the two offenses have the same statutory
elements. Finally, the defendant contends the trial court abused
its discretion when it sentenced him to 11 years for armed
robbery, without the add-on penalty, when Melvin, who the
defendant contends had a direct role, was given six years for the
same offense.
I. Ineffective Assistance of Counsel
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According to the defendant's main brief, the defendant's
ineffective assistance of counsel claim is founded on his
testimony "that he tried to stop codefendant Michael Powe from
robbing Eugene Williams and when [the defendant] tried to leave
the scene, Michael Powe, while holding a gun, told [the
defendant] to 'shut up and sit down' because he [the defendant]
was driving and that [the defendant] felt too scared to leave."
This evidence, according to the defendant, was sufficient to
"raise a compulsion defense and [defense counsel should have
requested] that the jury be instructed accordingly." If in fact
the evidence at trial was sufficient to raise the affirmative
defense of compulsion, then trial counsel's failure to recognize
the availability of that defense would constitute ineffective
assistance of counsel. See People v. Sims, 374 Ill. App. 3d 231,
869 N.E.2d 1115 (2007).
Where the State's evidence does not raise the issue of an
affirmative defense, the defendant need only "present some
evidence thereon" to enlarge the State's burden of proving beyond
a reasonable doubt the offense charged to overcoming the evidence
supporting the elements of the affirmative defense as well. 720
ILCS 5/3-2 (West 2002); People v. Pegram, 124 Ill. 2d 166, 173,
529 N.E.2d 506 (1988), quoting Ill. Rev. Stat. 1983, ch. 38,
pars. 3-2(a),(b) (testimony elicited from the defendant
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"certainly satisfied the requirement that a defendant, to raise
an affirmative defense, 'must present some evidence thereon' ");
People v. Adcock, 29 Ill. App. 3d 917, 331 N.E.2d 573 (1975)
(evidence sufficient to require instruction on compulsion, which
the State must disprove beyond a reasonable doubt).
Thus, the question before us is whether the defendant
presented some evidence to support the defense of compulsion.
See People v. Kucavik, 367 Ill. App. 3d 176, 179, 854 N.E.2d 255
(2006) ("even slight evidence" sufficient to mandate instructing
on affirmative defense). In the context of this case, we examine
the defendant's testimony as to his involvement in the armed
robbery to determine whether it "raise[s] an issue of fact for
the jury creating a reasonable doubt as to defendant's guilt."
Sims, 374 Ill. App. 3d at 268, citing People v. Redmond, 59 Ill.
2d 328, 320 N.E.2d 321 (1974) (quantum of evidence necessary to
raise an affirmative defense is sufficient evidence to raise an
issue of fact for the jury creating a reasonable doubt as to the
defendant's guilt).
On the record before us, we conclude the affirmative defense
of compulsion is foreclosed to the defendant for three reasons.
First, our examination of the record finds it devoid of any
evidence that the defendant performed any conduct under
compulsion that amounted to armed robbery. Second, the
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defendant's testimony at trial amounts to no more than a claim
that he was unaware that the robbery would take place. Finally,
the defendant had ample opportunity to withdraw from the criminal
enterprise to commit robbery but he failed to withdraw.
A. No Evidence of Compelled Conduct
The defendant claims that his trial testimony that he tried
to stop the commission of the armed robbery, for which he was
found accountable, should have alerted defense counsel of the
availability of the defense of compulsion. We take the
defendant's claim that he attempted to "stop" the armed robbery
to be founded on his testimony that when Powe exited the bathroom
with a gun in hand and announced the robbery, the defendant stood
up and stated twice, "Man, what is you doing?" According to the
defendant, Powe then pointed the gun at him and told him to shut
up and sit down, and he complied.
We find the defendant's claim that he attempted to stop the
armed robbery to be wholly at odds with his claim that it was
this same conduct that formed his accountablility for armed
robbery. We fail to understand how conduct aimed at stopping the
armed robbery can also serve as conduct amounting to the
commission of armed robbery. The defendant's generous
interpretation of his trial testimony that he attempted to stop
the armed robbery but was foiled by Powe is not "some evidence"
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of a plausible compulsion defense. While it is true that the
defendant testified that he remained seated during the armed
robbery "under the compulsion of threat or menace of imminent
infliction of death or great bodily harm" (720 ILCS 5/7-11 (West
2002)), this is not the conduct that formed the basis for his
armed robbery conviction. "The defense of compulsion is a
defense only with respect to the conduct demanded by the
compeller." People v. Scherzer, 179 Ill. App. 3d 624, 644
(1989), citing People v. Rodriguez, 30 Ill. App. 3d 118, 332
N.E.2d 194 (1975).
Clearly, if the jury believed the defendant had attempted to
stop the armed robbery but was foiled by Powe and his handgun,
the jury should have found him not guilty of armed robbery, as
his mere presence was insufficient to hold him accountable for
the actions of Powe and Melvin. See People v. Perez, 189 Ill. 2d
254, 268, 725 N.E.2d 1258 (2000) ("presence at the commission of
the crime, even when joined with flight from the crime or
knowledge of its commission, is not sufficient to establish
accountability"). Yet, the defendant makes no argument on appeal
that the jury issued its verdict against the evidence presented.
The videotape and the defendant's written statement introduced at
trial explain his failure to so argue and provide the basis for
the jury's verdict. Scherzer, 179 Ill. App. 3d at 645.
13 1-06-1190
The defendant was found accountable not based on his failed
effort to "stop" the armed robbery or his decision to follow
Powe's command that he shut up and remain seated. Rather, the
defendant was found accountable based on the aid he provided
before, during and after the three arrived at the Knights' Inn
with the shared intent to commit a robbery. Both the videotape
and his written statement made clear that the defendant joined in
the criminal purpose of going to Knights' Inn to commit a "lick."
The videotape and written statement made clear that the defendant
drove to the Knights' Inn with Powe and Melvin with the intention
of committing a robbery, proceeded with Powe and Melvin to the
victim's room, remained with them while they searched and
recovered the victim's drugs and money, only announced he was
leaving after the victim was dragged to the bathroom and a shot
was fired, and drove Powe and Melvin away from the scene of the
murder. The evidence is overwhelming that the defendant aided
Powe and Melvin in the planning and commission of the offense.
The jury's verdict is confirmed by the defendant's own testimony
that Melvin and Powe were unable to commit the robbery the day
before because they lacked transportation. The defendant
provided the missing transportation. There is no evidence that
he committed any of the acts in furtherance of the criminal
enterprise under a threat or menace of imminent death of great
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bodily harm.2 See People v. Scherzer, 179 Ill. App. 3d 624, 644,
534 N.E.2d 1043 (1989) (no error in refusal to instruct on
defense of compulsion "as to those offenses that the defendant
did not act under compulsion").
The defendant's testimony that he was compelled to shut up
and sit down was not "some evidence" that he committed armed
robbery under compulsion. The affirmative defense of compulsion
was foreclosed to the defendant because the conduct that he was
compelled to perform, according to his testimony, can in no way
be connected to the commission of the offense of armed robbery.
Scherzer, 179 Ill. App. 3d at 645-46. There is no evidence that
the defendant committed armed robbery under the threat or menace
of imminent death or great bodily harm. In fact, based on the
defendant's testimony, which is the only evidence offered in
support of a compulsion defense, he did not perform any conduct
under compulsion other than to remain seated while the armed
2 Consistent with the jury's finding of not guilty of
murder, the defendant also made clear in the videotape and
written statement that he would not take Powe and Melvin to the
Knights' Inn if, along with the robbery, Melvin intended to kill
the victim.
15 1-06-1190
robbery took place in front of him.
B. Unaware of Impending Armed Robbery
The evidence is unchallenged that the defendant played no
direct role in the removal of the cash from the victim's pockets
or the drugs from the drawers. He testified that he believed the
assurances Melvin gave while en route to the Knights' Inn that he
would not kill the victim also meant the robbery was off as well.
The defendant also testified that if he was mistaken that the
robbery was not called off in the car, the robbery was certainly
off when he remarked to Powe and Melvin upon arriving at the
Knights' Inn that there were too many individuals around.
However, once again the defendant's claims are at odds with
each other. If the robbery was called off at the same time
Melvin gave assurances that the killing would not go forward,
there would have been no reason for the defendant to express
concern upon arriving at the Knights' Inn over the number of
persons around if the three were there simply to watch television
with the victim, as the defendant contended at trial. While we
understand the defendant to say, in the end, Melvin lied to him
about both the robbery and the killing, the jury had good reason
to reject the defendant's claim that he believed that the robbery
was off either before or upon arriving at the Knights' Inn. The
incriminating evidence in the videotape and the written statement
16 1-06-1190
gave the jury ample evidence to conclude that at the time the
three defendants arrived at the Knights' Inn, the plan to commit
the robbery was very much in play. There was ample evidence that
the robbery would go forward if the opportunity arose. When the
opportunity to commit the robbery presented itself with the three
defendants being alone with the victim, Powe acted. While the
defendant, according to his trial testimony, sat through the
commission of the armed robbery, based on the evidence, the jury
had ample evidence to find the defendant accountable for that
offense.
A generous reading of the defendant's testimony is that at
most he was unaware that the robbery would take place. This is
precisely the import of the defendant's claim when he points to
his testimony that he believed the robbery had been called off,
first in the car and then at the Knights' Inn, that he twice
questioned Powe what he was doing when he exited the bathroom
with a gun in hand, and that he played no role in the removal of
the cash from the victim's pockets or the drugs from the drawers.
That the defendant was unaware that the robbery would take place
forecloses the defense of compulsion. Scherzer, 179 Ill. App. 3d
at 644 (no reversible error in refusing the defendant's
instructions on the affirmative defense of compulsion where the
defendant testified he was unaware the offenses were going to
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take place).
C. No Withdrawal
In the nature of an alternative argument, the defendant
contends he had a change of mind, amounting to withdrawal,
regarding the robbery when he observed too many individuals
around upon arriving at the Knights' Inn. Perhaps the defendant
did have a change of mind, but he did not withdraw at that point.
Nor did Powe and Melvin share, as it turns out, the defendant's
claimed change of mind.
The defendant went along with Powe and Melvin to the
victim's room. The only explanation for going to the victim's
room offered in the videotape and written statement was to commit
a robbery. In proceeding to the victim's room with Powe and
Melvin, we find no evidence that the defendant withdrew from the
original intention to commit a robbery that first brought the
three defendants to the Knights' Inn. See People v. Rucheinski,
224 Ill. App. 3d 118, 125, 586 N.E.2d 506 (1991) (no evidence in
record to entitle the defendant to instruct jury on withdrawal
exception to accountability theory).
Thus, even if we were to find "some evidence" to support the
defendant's claim of compulsion, under the facts of this case, a
compulsion defense remained unavailable to the defendant. A
compulsion defense is not available "if the defendant had ample
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opportunities to withdraw from the criminal enterprise but failed
to do so." Sims, 374 Ill. App. 3d at 267, citing Scherzer, 179
Ill. App. 3d 624, 645-46. The defendant's claim that he believed
the robbery was called off at the time they arrived at Knights'
Inn was based on too many witnesses being present, not a
withdrawal from the criminal enterprise the three had embarked
upon. While the defendant understood Powe's nod to mean that he
agreed that the robbery was off, he admitted he got no such
assurances from Melvin, and it was Melvin that brought up the
"lick" and his intention of killing the victim after the robbery.
Of course, the nod from Powe turned out to mean nothing more than
a need to wait for the victim to be alone with the three
defendants to commit the robbery. Sometime after Dolores Bibbs
and her boyfriend left the victim in the company of the
defendant, Powe and Melvin, Powe acted on the original plan to
rob the victim. The defendant had ample opportunity to withdraw
from the planned robbery but failed to do so. More to the point,
the jury was instructed on withdrawal and it was rejected.
Sims, the case the defendant heavily relies upon for his
claim that his testimony was sufficient to raise a compulsion
defense, is distinguishable on its facts. In Sims, we found
ineffective assistance of counsel based on counsel's failure to
raise the affirmative defense of compulsion and request the jury
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be instructed accordingly in light of the evidence adduced at
trial. Sims was found accountable for both the murder and the
armed robbery committed at a restaurant. Sims, 374 Ill. App. 3d
at 232. Sims was a 15-year-old, whose role in the robbery was to
serve as a lookout. A codefendant, who pled guilty and was a
witness for the State, testified on cross-examination that before
all those involved in the robbery got into the car to drive to
the restaurant, the "defendant stated that he did not want to
take part in the robbery." Sims, 374 Ill. App. 3d at 235. The
codefendant testified that the ringleader, with a gun in hand,
"told defendant that 'he was there when it started, he got to be
there when it finished.' " Sims, 374 Ill. App. 3d at 235. After
this testimony was elicited, the trial court called a recess to
inquire of defense counsel whether he "was attempting to raise an
affirmative defense of compulsion without having pled it." Sims,
374 Ill. App. 3d at 235. Defense counsel conceded that he made a
" 'mistake by not filing or asking to file a compulsion
defense.' " Sims, 374 Ill. App. 3d at 235. When testimony
resumed, the codefendant testified that none of the participants
ever saw Sims carrying out his role of being a lookout. Sims,
374 Ill. App. 3d at 236. The defendant was arrested near the
robbery site, about 30 to 40 feet away. Sims, 374 Ill. App. 3d
at 236. The jury was never instructed on a compulsion defense.
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No testimony similar to that presented in Sims was ever elicited
in this case.
The other case cited by the defendant in support of his
claim that defense counsel should have raised a compulsion
defense is also distinguishable on its facts. See People v.
Pegram, 124 Ill. 2d 166, 174, 529 N.E.2d 506 (1988). In Pegram,
the supreme court concluded that the defendant's testimony that
he was forced at gunpoint to lead the robbers to the victim,
forced to place the victim in a locked room, lie on the floor and
lead them to the victim's car, "certainly satisfied the
requirement that a defendant, to raise an affirmative defense,
'must present some evidence thereon.' " Pegram, 124 Ill. 2d at
173, quoting 720 ILCS 5/3-2(a) (West 2002). No such force was
ever exerted against the defendant here.
D. Trial Counsel Not Ineffective
We find the record devoid of any evidence to support the
defendant's claim that he aided and abetted the commission of
armed robbery under compulsion. We find the defendant's
testimony as to his involvement in the armed robbery amounts to
no more than he was unaware that the armed robbery would be
committed. The defendant's testimony fails to raise an issue of
fact for the jury creating a reasonable doubt as to the
defendant's guilt. In any event, the defendant was presented
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with ample opportunity to withdraw from the plan to commit the
robbery but he failed to do so. The evidence against compulsion
was so clear and convincing that as a matter of law we conclude
that there was no compulsion based on the defendant's testimony.
See People v. Carpentier, 20 Ill. App. 3d 1024, 1027, 314 N.E.2d
647 (1974) (if evidence against affirmative defense is clear and
convincing then, as a matter of law, jury need not be instructed
on affirmative defense); People v. Dunlap, 315 Ill. App. 3d 1017,
1025, 734 N.E.2d 973 (2000) (no evidence in the record as to any
of the necessary elements of self-defense). Consequently, the
record is barren of any evidence that might call into question
defense counsel's failure to assert a compulsion defense, which
in turn means there is no evidentiary support for his claim of
ineffective assistance of counsel. See People v. Moore, 356 Ill.
App. 3d 117, 121, 824 N.E.2d 1162 (2005). On the contrary, the
result counsel achieved for the defendant supports that she was
very effective.
II. The Defendant's Enhanced Sentence
The defendant contends his sentence with an add-on penalty
violates the proportionate penalties clause of the Illinois
Constitution because armed robbery with a firearm and armed
violence predicated on robbery have identical statutory elements,
yet armed robbery with a firearm is punished more severely. As
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controlling authority, the defendant cites People v. Hauschild,
226 Ill. 2d 63, 86-87, 871 N.E.2d 1 (2007). The defendant argues
that under the authority of Hauschild, the add-on portion of 15
years of his 26-year sentence must be vacated, leaving him with
an 11-year sentence.
The State agrees that Hauschild is controlling. However,
the State contends Hauschild requires this court to vacate the
defendant's sentence in totality and remand the case to the trial
court for a new sentencing hearing.
In Hauschild, our supreme court determined that under the
identical elements test, the "sentence for armed robbery while
armed with a firearm (720 ILCS 5/18-2(b) (West 2000)) violates
the proportionate penalties clause because the penalty for that
offense is more severe than the penalty for the identical offense
of armed violence predicated on robbery with a category I or
category II weapon (720 ILCS 5/33A-3(a), (a-5) (West 2000))."
Hauschild, 226 Ill. 2d at 86-87. In Hauschild, the defendant was
not given the corresponding " 'add-on penalty' of 15 years" for
armed robbery because the sentence was imposed "while [People v.
Walden, 199 Ill. 2d 392, 769 N.E.2d 928 (2002),] was still good
law, invalidating the enhanced penalty for armed robbery while
armed with a firearm." Hauschild, 226 Ill. 2d at 88. The
supreme court in Hauschild established a bright line that "when
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an amended sentencing statute has been found to violate the
proportionate penalties clause, the proper remedy is to remand
for resentencing in accordance with the statute as it existed
prior to the amendment." Hauschild, 226 Ill. 2d at 88-89. A
remand was ordered even though the 12-year sentence imposed was a
proper one. Hauschild, 226 Ill. 2d at 89.
Thus, we vacate the defendant's sentence for armed robbery
and remand this matter to the trial court for resentencing,
"within the range for armed robbery as it existed prior to being
amended by Public Act 91-404, eff. January 1, 2000." Hauschild,
226 Ill. 2d at 89.
III. The Defendant's Sentence
In light of our remand, we do not address the defendant's
final contention that the trial court abused its discretion when
it imposed a sentence of 11 years for the nonenhanced portion of
the defendant's sentence when Melvin was given a sentence of six
years for the same offense.3
CONCLUSION
3 In fact, on the record before us, it appears the defendant
and Melvin received identical aggregate sentences of 26 years.
Melvin was sentenced to 20 years for murder, to be followed by 6
years for armed robbery.
24 1-06-1190
For the reasons stated above, we affirm the defendant's
conviction, vacate the defendant's sentence, and remand this case
to the circuit court for resentencing.
Affirmed in part and vacated in part; cause remanded.
R. GORDON, P.J., and HALL, J., concur.
25 1-06-1190
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DEMETRIUS JOHNS, Defendant-Appellant. ________________________________________________________________
Appellate Court of Illinois First District, First Division
Filed: November 17, 2008 _________________________________________________________________
R. GORDON, P.J., and HALL, J., concur. _________________________________________________________________
Appeal from the Circuit Court of Cook County Honorable Reginald Baker, Judge Presiding _________________________________________________________________
For PLAINTIFF - James E. Fitzgerald, Assistant State's Attorney, Of Counsel, APPELLEE Manuel Magence, Assistant State's Attorney, Of Counsel, Sari London, Assistant State's Attorney, Of Counsel RICHARD A. DEVINE State's Attorney of Cook County Richard J. Daley Center–Room 309 Chicago, Illinois 60602
For DEFENDANT - Tiffany Green, Assistant Public Defender APPELLANT MICHAEL J. PELLETIER, Deputy Defender Office of the State Appellate Defender 203 N. LaSalle Street, 24th Floor
26 1-06-1190
Chicago, IL 60601