People v. Lucas

865 N.E.2d 420, 372 Ill. App. 3d 279, 310 Ill. Dec. 96, 2007 Ill. App. LEXIS 312

• Court: Appellate Court of Illinois
• Decided: March 29, 2007
• Docket: 3-05-0757
• Status: Published

Opinions

PRESIDING JUSTICE LYTTON

delivered the opinion of the court:

Defendant Robert T. Lucas was found guilty of driving while his license was revoked (DWLR) (625 ILCS 5/6—303(a), (d) (West 2004)), unlawful possession of a weapon by a felon (720 ILCS 5/24—1.1(a) (West 2004)) and armed violence (720 ILCS 5/33A—2(a) (West 2004)). The trial court sentenced him to 30 years in prison. On appeal, defendant argues that his conviction for armed violence should be vacated because (1) a conviction for enhanced DWLR cannot serve as a predicate felony for armed violence and (2) if enhanced DWLR can be used as a predicate felony, it must be proven to the jury beyond a reasonable doubt. Defendant also claims that his sentence should be vacated because it is (1) unconstitutional, (2) an abuse of the court’s discretion and (3) violates one-act, one-crime principles. We affirm.

Defendant was charged by information with DWLR, unlawful use of a weapon by a felon and armed violence. The indictment provided that defendant had a previous conviction for DWLR and that the prior revocation was based on a conviction for driving under the influence (DUI) (see 625 ILCS 5/11—501 (West 2004)). The indictment further alleged that defendant, while armed with a switchblade knife, committed the offense of driving while his license was revoked.

At trial, Officer Gary Becket testified that on May 1, 2005, he was on patrol near downtown De Pue. At approximately 12:30 a.m., he observed defendant’s vehicle cross the center line two times. Becket initiated his emergency lights and attempted to stop defendant’s vehicle. Defendant continued driving and pulled into the driveway of a residence. He then exited the vehicle and started running toward the house. Becket yelled at defendant to stop. Defendant ran around the side of the house and disappeared inside.

Becket called for backup before attempting to remove defendant from the house. When other officers arrived, they entered the home and ordered defendant to come out of a locked bathroom. The officers heard a toilet flush, and then defendant emerged from the bathroom. After defendant was handcuffed, he asked for his lighter. The officers searched the bathroom and found defendant’s wallet, some cash, and a cigarette lighter in a pile on the sink. The lighter contained a spring-loaded switchblade knife. Both residents of the apartment testified that they had never seen the lighter before that night.

The State then introduced a certified record indicating that defendant’s driver’s license was revoked on the date of his arrest. Following closing arguments, the jury returned a verdict of guilty on all three counts.

At sentencing, the trial court considered the presentencing investigation report. Defendant was 41 and had been convicted of numerous offenses between 1981 and 1996, including carrying an uncased weapon, DUI, three felony convictions for possession of a controlled substance, resisting arrest, reckless driving, attempting to elude a police officer, leaving the scene of an accident, and theft. In 1997, defendant was charged with unlawful use of a weapon by a felon, aggravated battery of a peace officer, armed violence, DUI, reckless driving and aggravated fleeing from a police officer. Defendant was sentenced to a 12-year term and was released on parole in September 2002. In July of 2003, while still on parole, he was convicted of resisting a peace officer and domestic battery. He was returned to prison and was again released on parole in September of 2003. He was later found guilty of illegal transportation of alcohol and was on probation when he was arrested for this offense.

Becket testified that upon arrest, defendant was slurring his speech and appeared to be impaired. He blew 0.00 on a Breathalyzer test. He refused to take a urine test. He also had $1,279 in cash when he was arrested. Jail officer Jeremy Roush testified that after defendant’s arrest, defendant told him that if he could get close enough to State’s Attorney Patrick Herrmann, he would snap Herrmann’s neck.

Officer Smith testified regarding a 1997 incident that led to defendant’s conviction for aggravated battery of an officer. Smith had stopped defendant for a traffic violation. During the stop, defendant leaned forward. Smith saw a handgun tucked in the back of defendant’s waistband. Smith attempted to grab the gun. Defendant leaned back, trapped Smith’s arm, and proceeded to drive away with Smith attached to the car. Smith was dragged several feet and then released. Defendant was captured 24 miles later. During the chase, officers believed defendant was shooting at them. After the chase, police found a loaded handgun and several bags of drugs in defendant’s vehicle. They also found numerous bags of cocaine strewn along the chase route. Defendant was convicted of armed violence, aggravated battery of a police officer, unlawful use of a weapon by a felon, driving under the influence, aggravated fleeing and eluding, and reckless driving.

In mitigation, several letters were submitted by defendant’s friends, family and church members. Defendant had obtained his GED and had a 10-year-old son. A local employer testified that defendant had done some work for him in the past and was able to complete the job as requested.

During arguments, the State presented a certified record which indicated that defendant’s driver’s license was revoked following a DUI conviction in 1983. Defendant was convicted of DWLR in 1987. His license was reinstated. It was again revoked in 1997 and was still revoked as of May 1, 2005.

The trial judge found that defendant had committed a Class 4 felony of DWLR. He sentenced defendant to concurrent terms of 30 years for armed violence and 5 years for unlawful use of a weapon by a felon.

ANALYSIS

I. Predicate Felony

Defendant contends that his conviction for armed violence must be vacated because a DWLR conviction, which has been increased to a Class 4 felony based on a prior conviction for DWLR, cannot be used as a predicate felony for an armed violence conviction. He claims that enhancement of DWLR from a misdemeanor to a felony is for sentencing purposes only and not as a predicate felony for an armed violence charge.

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 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 2004). In addition to those felonies that have been exempted by the legislature, the Illinois Supreme Court, under certain circumstances, has limited the type of felonies contemplated by the “any felony” language of the armed violence statute. For example, the offenses of voluntary and involuntary manslaughter cannot serve as predicate felonies for an armed violence conviction because the legislature did not intend for the statute to apply to conduct that is not a deliberate or deterrable offense. People v. Alejos, 97 Ill. 2d 502 (1983); People v. Fernetti, 104 Ill. 2d 19 (1984). However, if the decision to use a weapon is not forced upon a defendant or is not the result of a spontaneous decision, then the defendant’s conduct can be deterred and the purpose of the armed violence statute is satisfied. People v. Becker, 315 Ill. App. 3d 980 (2000).

Defendant’s DWLR charge, which served as the predicate felony for the armed violence conviction, was for a violation of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/1—101 et seq. (West 2004)). The purpose of the DWLR statute is to punish those people who drive a motor vehicle at a time when their license is suspended or revoked. The statute provides that “[a]ny person who drives or is in actual physical control of a motor vehicle on any highway of this State at a time when such person’s driver’s license *** permit *** is revoked *** shall be guilty of a Class A misdemeanor.” 625 ILCS 5/6—303(a) (West 2002). The statute further states that “[a]ny person convicted of a second violation of this [sjection shall be guilty of a Class 4 felony *** if the revocation or suspension was for a violation of [sjection 11—401 or 11—501 of this Code.” 625 ILCS 5/6—303(d) (West 2004). Section 11—501 of the Code involves the offense of driving while under the influence of alcohol. See 625 ILCS 5/11—501 (West 2004).

The fundamental rule of statutory construction is to ascertain and give effect to the intention of the legislature. People v. Woodard, 175 Ill. 2d 435 (1997). Since the language used by the legislature is the best indication of legislative intent, courts look first to the words of the statute. Nottage v. Jeka, 172 Ill. 2d 386 (1996). When the language of the statute is plain and unambiguous, courts will not read in exceptions, limitations, or other conditions. People v. Daniels, 172 Ill. 2d 154 (1996).

Here, the plain language of sections 6—303(a) and (d) of the Code states that any person convicted of a second violation of DWLR, when that person has been previously convicted of DWLR and the revocation was for DUI, “shall be guilty of a Class 4 felony.” At trial, the State introduced a certified record from the Secretary of State indicating that defendant’s license was revoked. Evidence was also presented at sentencing demonstrating that defendant had a prior conviction for DWLR and that his license had been previously revoked for driving under the influence of alcohol. Thus, according to the statutory language of section 6—303(d), defendant was properly charged and convicted of a Class 4 felony for driving with a revoked license.

Defendant argues that felony DWLR should be exempt as a predicate offense for armed violence because such a felony does not further the statute’s purpose. Defendant admits that DWLR is not an undeterrable offense but claims that using felony DWLR as a predicate felony would deter the carrying of weapons “in all instances for whatever purposes people wish to carry them.” See Alejos, 97 Ill. 2d at 510. We disagree.

In Alejos, the court noted that the presence of a weapon enhances the danger that any felony that is committed will have deadly consequences should the victim offer resistence. Thus, the stiff punishment mandated by the armed violence statute “is intended not only to punish the criminal and protect society from him but also to deter his conduct — that of carrying the weapon while committing a felony.” Alejos, 97 Ill. 2d at 509. Using DWLR as a predicate felony furthers that legislative purpose. Using DWLR as a predicate felony does not deter any person from carrying a weapon while driving, an otherwise legal activity. Using DWLR as a predicate felony deters individuals from carrying a weapon while they are committing the felony of driving while their license is revoked. It is therefore a proper predicate offense for armed violence.

II. Proof of Predicate Felony at Trial

Defendant claims that the State failed to prove beyond a reasonable doubt, as elements of his crimes, that his license was revoked for the grounds set forth in section 6—303(d) (625 ILCS 5/6—303(d) (West 2004)) and section 11—501(a) (625 ILCS 5/11—501(a) (West 2004)) of the Vehicle Code. Defendant maintains that to be convicted of a Class 4 felony DWLR, the State was required to prove beyond a reasonable doubt, as an element of the crime at trial, that the “enhancing” factors were present. The State claims that it was prevented from producing such evidence at trial under section 111—3(c) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111—3(c) (West 2004)).

Section 111—3(c) of the Code provides:

“When the State seeks an enhanced sentence because of a prior conviction, the charge shall also state the intention to seek an enhanced sentence and shall state such prior conviction so as to give notice to the defendant. However, the fact of such prior conviction and the State’s intention to seek an enhanced sentence are not elements of the offense and may not be disclosed to the jury during trial ***. For the purposes of this [sjection, ‘enhanced sentence’ means a sentence which is increased by a prior conviction from one classification of offense to another higher level classification of offense set forth in Section 5—5—1 of the [Code] ***; it does not include an increase in the sentence applied within the same level of classification of offense.” 725 ILCS 5/111—3 (West 2004).

This provision of the Code applies to those situations where the State intends to enhance the charge by raising the classification of the offense due to a prior conviction. The language explicitly excludes situations where the sentence is increased because of a prior conviction but the classification of the offense remains the same. People v. Contreras, 241 Ill. App. 3d 1023 (1993).

In this case, defendant was charged with and convicted of DWLR. Due to his prior convictions for DWLR and DUI, section 6—303 (d) of the Vehicle Code mandated the elevation of the offense from a Class A misdemeanor to a higher-level classification, a Class 4 felony. See 625 ILCS 5/6—303(d) (West 2004). Because the prior conviction enhanced the “classification” of the offense, rather than just the sentence, section 111—3(c) applied. Therefore, the State was prohibited from proving the prior commissions of DWLR and DUI as an element of the Class 4 felony DWLR. People v. DiPace, 354 Ill. App. 3d 104 (2004); People v. Braman, 327 Ill. App. 3d 1091 (2002); People v. Bowman, 221 Ill. App. 3d 663 (1991). Instead, the existence of the predicate offenses was properly used after defendant’s conviction to increase the classification of his crime at sentencing. See People v. Thompson, 328 Ill. App. 3d 360 (2002); Bowman, 221 Ill. App. 3d 663 (State not required to show defendant’s prior convictions, or the grounds for those prior convictions, until sentencing). Requiring the State to prove the grounds for a prior conviction or revocation beyond a reasonable doubt at an earlier stage in the proceedings would contravene the plain language of section 111—3(c) of the Code.

Defendant claims that section 111—3(c) only applies to the prosecution of the DWLR count, not the armed violence count. However, as acknowledged by defendant, accepting this argument produces an incongruous result. To simultaneously require the State to prove the defendant’s prior conviction for purposes of the armed violence count but prohibit it from proving the same facts for purposes of the DWLR count leads to an absurd outcome and frustrates the intent of the legislature. When interpreting a statute, we must presume the legislature did not intend to produce an absurd or unjust result. Andrews v. Kowa Printing Corp., 217 Ill. 2d 101 (2005). This court will not read exceptions, conditions, or limitations into a statute which the legislature did not express if the statutory language is clear and unambiguous. Village of Chatham, Illinois v. County of Sangamon, Illinois, 216 Ill. 2d 402 (2005). The statutory language of section 111—3(c) is clear and does not impose any limitations or exceptions as to its application.

In this case, the evidence demonstrated that defendant carried a weapon while driving a vehicle illegally. When the officer attempted to stop him, defendant purposefully evaded him and attempted to hide in a nearby house. These acts were deliberate. Had the officer tried to arrest defendant for driving with a revoked license without assistance, the consequences could have been deadly. Under the facts of this case, we decline to find a legislative intent to exclude felony DWLR as a predicate felony for an armed violence charge.

We are mindful of the apparent difficulty created by the statute under the circumstances of this case. However, nothing in its language convinces us that the legislature intended to carve out an exception which would require the State to prove to the jury a prior conviction when that prior conviction is the basis for a predicate felony in an armed violence case.

III. Proportionate Penalties Clause

Defendant next claims that his sentence violated the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11). Defendant contends that his 30-year sentence for armed violence is so wholly disproportionate to the severity of his conduct that it shocks the conscience of the community.

Generally, it is within the legislature’s discretion to determine the appropriate penalties for various offenses, and courts of review are hesitant to override the legislature’s exercise of discretion. People v. Gonzales, 25 Ill. 2d 235 (1962). A statute is presumptively constitutional. People v. Sharpe, 216 Ill. 2d 481 (2005). The party challenging the statute has the burden of proving that a constitutional violation has occurred. Sharpe, 216 Ill. 2d 481. We review the question of whether a statute is constitutional de novo. Sharpe, 216 Ill. 2d 481.

The proportionate penalties clause of the Illinois Constitution provides that “[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. A statute violates the proportionate penalties clause if the punishment for a particular offense is cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community. People v. Miller, 202 Ill. 2d 328 (2002). Courts are reluctant to invalidate penalties because the legislature is more capable of measuring the seriousness of offenses. People v. Butler, 304 Ill. App. 3d 750 (1999).

It is well settled that in setting the penalty for armed violence the legislature acts within its discretion in focusing on the use of the weapon rather than the character of the underlying felony. People v. Lombardi, 184 Ill. 2d 462 (1998). Our legislature enacted the armed violence statute “ ‘to respond emphatically to the growing incidence of violent crime.’ ” Alejos, 97 Ill. 2d at 507-08, quoting People v. Graham, 25 Ill. App. 3d 853, 858 (1975). The chances that violence will ensue and cause great bodily harm because of the weapon are increased when a felony is committed. Alejos, 97 Ill. 2d 502.

Defendant was convicted of a Class 4 felony, which would generally make him eligible for a sentence of one to three years. See 730 ILCS 5/5—8—1(a)(7) (West 2004). Since defendant was carrying a switchblade knife, he was convicted of a Class X felony, which carried a sentencing range of 10 to 30 years in prison, plus enhancement to 60 years. 720 ILCS 5/33A— 3(a—5) (West 2004); 730 ILCS 5/5—8—1(a)(3), 5—8—2(a)(2) (West 2004). Even though the penalties for the offense with which defendant was charged are substantially increased by the armed violence statute, we find no constitutional violation. The presence of a weapon enhances the danger of any felony. It is well settled that the penalty provisions of the armed violence statute are reasonably designed to remedy that legislative concern. Lombardi, 184 Ill. 2d 462. Thus, defendant’s sentence for armed violence did not contravene the proportionate penalties clause simply because the predicate felony offense fell into the lowest felony classification. See Lombardi, 184 Ill. 2d 462 (rejecting defendant’s argument that armed violence for committing Class 4 felony while armed with a firearm, which required sentence of 15 to 30 years, was disproportionate); People v. Green, 301 Ill. App. 3d 767 (1998) (holding that penalty for the predicate Class 4 felony of possessing a controlled substance did not restrict legislature’s authority to impose a severe penalty upon conviction of felony while armed).

Defendant chose to drive a vehicle with a revoked license. He did so knowing that he had a prior conviction for DWLR. His conduct was then exacerbated by his decision to carry a weapon during its commission. When any police officer approaches a vehicle there exists a recognized risk. Pennsylvania v. Mimms, 434 U.S. 106, 54 L. Ed. 2d 331, 98 S. Ct. 330 (1977). When Officer Becket attempted to initiate the stop, defendant fled into a house that was occupied. The possible consequences to the officers involved or the residents of the home if defendant had decided to employ the deadly weapon are unquestionable.

Imposition of a 30-year sentence, a stringent penalty considered by the legislature as necessary to achieve the objective of discouraging persons from carrying weapons while committing a felony, reflects the seriousness of the offense. Lombardi, 184 Ill. 2d 462. There is no guarantee of the proportionality or equality between a crime and the length of a sentence. People v. Farmer, 165 Ill. 2d 194 (1995); People v. Brown, 362 Ill. App. 3d 374 (2005). Defendant’s sentence may be harsh, but it is not cruel, degrading, or so grossly disproportionate to the seriousness of the offense as to shock the moral sense of the community.

IV Excessive Sentence

Defendant alleges that his sentence was excessive in that it was manifestly disproportionate to the nature of the offense. Defendant argues that the trial court abused its discretion in sentencing him based on the reasoning in People v. Stacey, 193 Ill. 2d 203 (2000).

Armed violence is a Class X felony. 720 ILCS 5/33A—3(a—5) (West 2004). The sentencing range for a Class X felony conviction is 10 to 30 years. 720 ILCS 5/33A—3(a—5) (West 2004); 730 ILCS 5/5—8—1(a)(3) (West 2004). If the defendant has prior felony convictions, he is eligible for an extended-term sentence of up to 60 years for the offense. 730 ILCS 5/5—8—2(a)(2) (West 2004).

The trial judge’s sentencing decision is entitled to great deference because the court is in a better position than the reviewing court to determine the appropriate sentence and to balance the need to protect society with the rehabilitation of the defendant. People v. Stacey, 193 Ill. 2d 203 (2000); People v. Spencer, 303 Ill. App. 3d 861 (1999). The sentencing judge has the opportunity to weigh the defendant’s credibility, his demeanor and general character, as well as his mentality capacity, social environment, habits and age. People v. Streit, 142 Ill. 2d 13 (1991); People v. Perruquet, 68 Ill. 2d 149 (1977). A trial court’s determination will not be reversed absent an abuse of discretion. Streit, 142 Ill. 2d 13. A sentence that falls within the statutory range is not an abuse of discretion unless it is greatly at variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense. Stacey, 193 Ill. 2d 203.

Our review of the record reveals that the trial court properly considered the aggravating and mitigating evidence, the arguments of counsel, and the presentencing report. The court noted defendant’s prior and extensive criminal record, which included seven felony convictions; one for armed violence, one for aggravated battery of a police officer and three for possession of a controlled substance. The court also considered the circumstances surrounding this incident, defendant’s attempt to flee from the officer, his lack of contribution to society and the dismal possibility of his rehabilitation. The trial court sentenced defendant to 30 years of imprisonment, stating that such a term was necessary to “protect society from the defendant.”

While defendant’s sentence is severe, it is within the 10- to 60-year range he faced for armed violence. 720 ILCS 5/33A—3(a—5) (West 2004); 730 ILCS 5/5—8—1(a)(3), 5—8—2(a)(2) (West 2004). Unlike the defendant in Stacey, defendant was convicted of a violent crime for using a deadly weapon. See Stacey, 193 Ill. 2d 203 (although sexual abuse crimes were appalling and reprehensible, imposition of consecutive 25-year terms was manifestly disproportionate since there was no threat of bodily harm to victims). The crime in this case involved defendant’s possession of a switchblade knife. During the course of his arrest, defendant attempted to flee from police. At the very least, a threat of bodily harm did exist. Defendant’s sentence is neither greatly at variance with the spirit and purpose of the law, nor is it manifestly disproportionate to the nature of the offense. Stacey, 193 Ill. 2d 203; Brown, 362 Ill. App. 3d 374. Accordingly, we reject defendant’s argument that his sentence was an abuse of the court’s discretion.

V One Act, One Crime

Last, defendant claims that his conviction for unlawful possession of a weapon by a felon must be vacated based on one-act, one-crime principles because the State proved only one act of possession of the knife.

Under the one-act, one-crime rule, a court must first consider whether a defendant’s conduct consisted of separate acts or a single physical act. People v. Rodriguez, 169 Ill. 2d 183 (1996). Multiple convictions are improper if they are based on the same act. Rodriguez, 169 Ill. 2d 183. If the defendant committed multiple acts, then the court must determine whether any of the offenses are lesser included offenses. DiPace, 354 Ill. App. 3d 104. An act is any overt or outward manifestation which will support different offenses. Rodriguez, 169 Ill. 2d 183. A person can be guilty of two offenses when a common act is part of both crimes. DiPace, 354 Ill. App. 3d 104.

Defendant’s only argument on appeal is that the defendant committed a single act of possession of the switchblade knife. We disagree. In this case, both of defendant’s convictions are supported by a separate physical act. Though possessing the knife was involved in both crimes, each of his convictions was due to a separate offense based on separate conduct. See DiPace, 354 Ill. App. 3d at 116. The defendant was charged with unlawful possession of a weapon by a felon for knowingly possessing a switchblade knife. The armed violence charge alleged that he, while armed with the switchblade, committed the offense of driving while his license was revoked. The evidence at trial demonstrated that he was the only occupant of the vehicle when he attempted to elude Officer Becket. Defendant then locked himself in a bathroom of the residence where the officer discovered a lighter. During his arrest, defendant asked for the lighter. The lighter contained the switchblade knife.

Defendant was convicted of unlawful possession of a weapon by a felon for possessing the knife while in the residence. He was also convicted of armed violence for possessing the weapon in his car while he drove that vehicle with a revoked license. The evidence establishes that defendant possessed a knife at a time other than when he was driving the car. Those two separate acts' of possession support both convictions. Accordingly, defendant’s convictions and sentences for unlawful possession of a weapon by k felon and armed violence must stand.

CONCLUSION

The judgment of the circuit court of Bureau County is affirmed.

Affirmed.

SCHMIDT, J., concurs.