People v. Lucas

Opinion

No. 3-05-0757 Filed March 29, 2007. _________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2007

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of the 13th Judicial Circuit, ) Bureau County, Illinois, Plaintiff-Appellee, ) ) v. ) No. 05-CF-31 ) ROBERT T. LUCAS, ) Honorable ) Scott A. Madson, Defendant-Appellant. ) Judge, Presiding. _________________________________________________________________

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his license was revoked (DWLR) (625 ILCS 5/6-303(a), (d) (West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license was revoked.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

2 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 drivers’ 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 forty-one 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

3 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 lead 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 drug 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

4 friends, family and church members. Defendant had obtained his GED

and had a ten-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,

5 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

6 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 [s]ection shall be guilty of a Class 4 felony *** if the

revocation or suspension was for a violation of [s]ection 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 section 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

7 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 5/6-303(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

8 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 5/111-3(c) of the Code of Criminal Procedure of 1963 (Code)

(725 ILCS 5/111-3(c) (West 2004)).

Section 5/111-3(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

9 to the jury during trial ***. For the purposes of this

section, ‘enhanced sentence’ means a sentence which is

increased by a prior conviction form 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."

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 5/6-

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 5/111-3(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.

10 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 conviction, 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 5/111-3(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 v. County of Sangamon, 216 Ill.2d 402 (2005).

11 The statutory language of section 5/111-3(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 convictions 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.

12 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. Gonzalez, 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

13 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. 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), 5/5-8-2(a)(2) (West 2004). Even though the

penalties for the offense with which defendant was charged is

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

14 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 (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); Brown, 362 Ill. App. 3d 374.

Defendant’s sentence may be harsh, but it is not cruel, degrading,

or so grossly disproportionate to the seriousness of the offense as

15 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

16 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 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) (West 2004); 730 ILCS 5/5-8-2

(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

17 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

18 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 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 felony 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

19 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 a

felon and armed violence must stand.

CONCLUSION

The judgment of the circuit court of Bureau County is

affirmed.

SCHMIDT, J., concurs.

JUSTICE McDADE, dissenting:

The majority has held that a conviction for enhanced driving

while license revoked (DWLR) can serve as the predicate felony for

a conviction for armed violence and that the State proved defendant

guilty of armed violence on that basis. I believe that decision to

be wrong and, therefore, dissent.

Although I would thus not reach defendant’s other two issues,

I will discuss them because the majority has done so. Therefore,

assuming, solely for purposes of argument and without conceding the

point, that the majority’s decision on the first two issues is

correct, I would concur with the holding that defendant’s

convictions for armed violence and for unlawful use of a weapon

would not, if properly reached, violate the one-act, one-crime rule

and would agree that the conviction for unlawful use of a weapon

should be affirmed. Subject to the same assumption, I would

20 dissent from the majority’s conclusion that defendant’s 30-year

sentence for armed violence does not violate the proportionate

penalties clause of the Illinois constitution or constitute an

abuse of discretion.

I. Predicate Felony and

Defendant admits that he drove while his license was revoked,

and that the State had revoked his license as a result of his

conviction for driving under the influence (DUI). DWLR is normally

a Class A misdemeanor. 625 ILCS 5/6-303(a) (West 2004). Because

defendant’s second conviction for DWLR was based on a prior

revocation for driving under the influence, however, section 6-

303(d) of the Illinois Vehicle Code required the court to sentence

defendant as if he had committed a Class 4 felony. Section 6-

303(d) reads, in pertinent part, as follows:

"Any person convicted of a second violation of

this Section shall be guilty of a Class 4

felony ***, if the revocation or suspension

was for a violation of Section 11-401 or 11-

501 of this Code, or a similar out-of-state

offense, or a similar provision of a local

ordinance, a violation of Section 9-3 of the

Criminal Code of 1961, relating to the offense

of reckless homicide, or a similar out-of-

21 state offense, or a statutory summary

suspension under Section 11-501.1 of this Code

[625 ILCS 5/11-501.1]." 625 ILCS 5/6-303(d)

(West 2004).

However, under section 5/111-3(c) of the Code of Criminal

Procedure (725 ILCS 5/111-3(c) (West 2004)), the State could not

disclose to the jury the fact of defendant’s prior conviction nor

its intention to seek an enhanced sentence. Section 111-3(c)

reads, in pertinent part, as follows:

"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 unless otherwise permitted by

issues properly raised during such trial. For

the purposes of this Section, enhanced

sentence’ means a sentence which is increased

by a prior conviction from one classification

of offense to another higher level

22 classification of offense set forth in Section

5-5-1 of the ‘Unified Code of Corrections’,

*** it does not include an increase in the

sentence applied within the same level of

classification of offense." 725 ILCS 5/111-

3(c) (West 2004).

Defendant argues that enhanced DWLR cannot serve as a

predicate felony for armed violence because the offense is not

actually a Class 4 felony, it is a Class A misdemeanor with an

enhanced sentencing provision. For this reason, defendant also

asserts that any misdemeanors that carry enhanced sentencing

provisions may never serve as the predicate offense for armed

violence. Alternatively, defendant argues the State failed to

prove him guilty of armed violence because it failed to prove an

element of that offense. Specifically, that defendant committed a

felony. Defendant argues the State never proved he committed a

felony (enhanced DWLR--assuming it is in fact a Class 4 felony and

not merely a misdemeanor sentenced as one) because it never

submitted evidence at trial of the reason for his prior revocation-

-a fact necessary to make his offense a felony. Therefore,

defendant asserts, the State only proved him guilty of committing

a Class A misdemeanor (DWLR) while armed.

The State responds the statute clearly states that "[a]ny

person convicted of a second violation of this Section shall be

23 guilty of a Class 4 felony ***." (Emphasis added.) The State also

argues that "enhanced sentence" as used in section 111-3(c) does

not really mean an "enhanced sentence" but actually means that the

classification of the subsequent offense is higher--in this case

from a Class A misdemeanor to a Class 4 felony. Finally, the State

argues that even if section 6-303(d) contains only an enhanced

sentencing provision and does not make the subsequent offense

itself a felony, the subsequent offense may be treated as a felony

for purposes of the armed violence statute. For this proposition

the State analogizes attempt offenses and claims that "courts have

consistently held that an attempt offense that is not classified as

a felony may be treated as a felony and serve as the predicate

felony for an armed violence conviction where the attempt offense

is punishable as a felony."

Based on its claim that enhanced DWLR is a Class 4 felony and

not merely a Class A misdemeanor with a sentencing provision for

repeat offenders, the State argues it proved defendant guilty of

that offense beyond a reasonable doubt. The State argues it was

not required to prove the reason for his prior revocation to the

jury because that is not an element of the offense of enhanced

DWLR. The State points out that "[section] 5/111-3(c) specifically

states that when the People seek an enhanced sentence because of a

prior conviction, that prior conviction is not an element of the

offense. It is for this reason that the pattern jury instructions

24 do not have a separate definition or issues instruction for the

felony of driving while license revoked."1

"The offense of attempt is not classified under the Unified

Code of Corrections as either a felony or a misdemeanor." People

ex rel. Carey v. Scotillo, 84 Ill. 2d 170, 173, 417 N.E.2d 1356,

1358 (1981). The court has held that although attempt is

classified as neither a misdemeanor or a felony, "where an attempt

offense is punishable as a felony such an offense may be treated as

a felony for purposes of the armed violence statute." (Emphasis in

original.) People v. Goodman, 109 Ill. App. 3d 203, 209, 440

N.E.2d 345, 349 (1982), citing People v. Gibson, 99 Ill. App. 3d

1068, 425 N.E.2d 1208 (1981). In Gibson, the court held that an

"armed violence verdict could properly be based on the underlying

felony of attempt murder." Gibson, 99 Ill. App. 3d at 1072, 425

N.E.2d at 1212. The Gibson court also stated that attempt murder

is a Class X felony, but section 8-4 of the Criminal Code states

that "the sentence for attempt to commit first degree murder is the

sentence for a Class X felony." (Emphases added.) 720 ILCS 5/8-

4(c)(1) (West 2004).

I believe this court should find that the Goodman court

erroneously expanded the holding in Gibson and, therefore, the

rationale permitting attempt murder, which is not actually

1 It is, of course, possible that the instruction does not exist because the crime--this so- called enhanced DWLR, a Class 4 felony--does not exist.

25 classified as a felony, to serve as the predicate felony for armed

violence, is not applicable to DWLR. First, Gibson’s explicit

statement that attempt murder is a Class X felony indicates the

court’s belief that the legislature had in fact classified the

offense of attempt murder as a felony. Therefore, the Gibson court

did not apparently address or resolve whether an offense that was

not a felony (but is sentenced as one) could serve as the predicate

offense for armed violence. Certainly, Gibson did not resolve that

issue.

Second, Gibson was concerned with whether the defendant’s

conviction for armed violence resulted from the double enhancement

the supreme court found impermissible in People v. Haron, 85 Ill.

2d 261, 422 N.E.2d 627 (1981). There, the court held that a

defendant cannot be convicted of armed violence predicated on an

offense that was not a felony before it was enhanced by the use of

a deadly weapon2. Therefore, in Gibson, the defendant's conviction

for armed violence could not stand if it was based on the

underlying felony of aggravated battery3. However, in Gibson, the

2 For its proposition that attempt may serve as the predicate felony for armed violence, the State cites only one case from our supreme court, People v. DelPercia, 105 Ill. 2d 372, 475 N.E.2d 528 (1985). That case, however, merely resolves a conflict in the appellate court over the interpretation of Haron. As noted, the issue in Haron is distinct from the question defendant raises here. 3 "Battery is a Class A misdemeanor." 720 ILCS 5/12-3(b) (West 2004). "In committing a battery, a person commits aggravated battery if he or she: (1) Uses a deadly weapon other than by the discharge of a firearm." 720 ILCS 5/12-4(b)(1) (West 2004). "[A]ggravated battery is a Class 3 felony." 720 ILCS 5/12-4(e)(1) (West 2004).

26 State had also charged the defendant with attempt murder. The jury

in Gibson found the defendant guilty of armed violence without

specifying the felony on which it based its finding of guilt. The

court, which apparently believed attempt murder was a Class X

felony, held the defendant’s conviction for armed violence could

stand because "a general finding of guilty is presumed to be based

upon any good count in the indictment to which the proof is

applicable." Gibson, 99 Ill. App. 3d at 1072, 425 N.E.2d at 1212.

Regardless, Gibson did not address the question of whether an

offense that is merely sentenced as a felony could serve as the

predicate felony for armed violence in reaching its decision on the

issue actually presented; and it provides no basis for Goodman’s

stated conclusion that it did.

Despite the language of section 6-303(d), which reads that

persons to whom it applies "shall be guilty of a Class 4 felony"

(emphasis added), the court has held that "[t]he existence of these

predicate offenses is used after a defendant's conviction [for DWLR

(a Class A misdemeanor)] to increase the classification of his

crime at sentencing." (Emphases added.) People v. DiPace, 354

Ill. App. 3d 104, 114, 818 N.E.2d 774, 784 (2004). Indeed, the

State need not prove at trial the fact that would make defendant

guilty of a Class 4 felony--the reason for his prior revocation--

for defendant to be sentenced for a Class 4 felony. See People v.

DiPace, 354 Ill. App. 3d at 114, 818 N.E.2d at 784 ("the State need

27 not prove prior commissions of *** driving while license revoked as

an element of Class 4 felony driving while license revoked"). See

also People v. Braman, 327 Ill. App. 3d 1091, 1094, 765 N.E.2d 500,

503 (2002) ("the aggravated DUI terminology used in the DUI statute

simply refers to an aggravated or enhanced sentence for a third or

subsequent DUI. Section 501(d)(1)(A) of the Vehicle Code is

clearly a recidivist sentencing statute for repeat DUI offenders")

. Section 501(d)(1) is an identical sentencing scheme to that

found in section 6-303(d). See, e.g., DiPace, 354 Ill. App. 3d at

114, 818 N.E.2d at 784.

If section 6-303(d) created a separate offense--felony

DWLR–its elements would be (1) driving on a revoked driver’s

license (2) having previously been revoked for, inter alia, DUI.

"[T]he State has the burden of proving every element of the crime

beyond a reasonable doubt." People v. Churchill, 80 Ill. App. 3d

405, 410, 399 N.E.2d 985, 988 (1980). The State is prohibited from

satisfying its burden by section 111-3(c). Moreover, in

Almendarez-Torres v. United States, 523 U.S. 224, 226, 140 L. Ed.

2d 350, 357, 118 S. Ct. 1219, 1222 (1998), the United States

Supreme Court addressed whether a similar sentencing provision4

4 "Subsection (a) of 8 U.S.C. § 1326 *** forbids an alien who once was deported to return to the United States without special permission, and it authorizes a prison term of up to, but no more than, two years. Subsection (b)(2) of the same section authorizes a prison term of up to, but no more than, 20 years for ‘any alien described’ in subsection (a), if the initial ‘deportation was subsequent to a conviction for commission of an aggravated felony.’ § 1326(b)(2)." Almendarez-Torres, 523 U.S. at 226, 140 L. Ed. 2d at 357, 118 S. Ct. at 1222.

28 "defines a separate crime or simply authorizes an enhanced

penalty." The Court held "that the subsection is a penalty

provision, which simply authorizes a court to increase the sentence

for a recidivist. It does not define a separate crime."

Almendarez-Torres, 523 U.S. at 226, 140 L. Ed. 2d at 357, 118 S.

Ct. at 1222.

In the present case, we should hold that the State did not

prove defendant guilty of felony DWLR because section 6-303(d)

creates no such offense. Thus, it appears defendant was not found

guilty of committing a Class 4 felony but the court could,

properly, sentence him as if he committed one. Because so-called

"felony DWLR" served as the sole predicate offense for armed

violence in this case, we should also hold that the State failed to

prove an element of the offense of armed violence. That is, the

State failed to prove defendant committed a felony. Accordingly,

defendant’s conviction for armed violence should be reversed

outright. See People v. Coulson, 13 Ill. 2d 290, 298, 149 N.E.2d

96, 100 (1958) (“Since there is nothing in the record to indicate

that any *** evidence will be available to the People upon

remandment for a new trial, we reverse the judgment of conviction

without remand”). Moreover, because of the restriction section

111-3(c) places on the State, we should further find that

misdemeanors subject to enhanced felony sentencing may never serve

29 as the predicate offense for armed violence.

Because we have done none of those things, I respectfully

dissent on this issue.

III. Applicability of Proportionate Penalties Clause and Abuse of

Discretion to Defendant’s 30-year Sentence.

The majority, having found that DWLR can serve as the

predicate felony for armed violence, rejects defendant’s federal

constitutional challenge that his 30-year sentence for driving

while his license was revoked was grossly disproportionate to the

seriousness of his offense and his state constitutional challenge

to his sentence as violative of the proportionate penalties clause.

Conviction of a Class 4 felony would result in a maximum sentence

of three years. Because he had a switchblade knife in his

possession, he became eligible for a sentence between 10 and 60

years. The trial court considered defendant’s criminal history and

determined that a sentence of 30 years was appropriate for his

offense.

a) Proportionate penalties

Defendant argues that sentencing his conduct as a Class X

felony with a minimum sentence of ten years’ imprisonment violates

the proportionate penalties clause because it “is so wholly

disproportionate to the severity of the conduct as to shock the

conscience of the community.” See People v. Sharpe, 216 Ill. 2d

481, 487, 839 N.E.2d 492, 498 (2005) (“[A] penalty violates the

30 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”). He observes that the purpose of

the armed violence statute is to “deter felons from using dangerous

weapons, thereby minimizing the deadly consequences which may

result when a felony victim resists.” People v. Smith, 191 Ill. 2d

408, 411, 732 N.E.2d 513, 514 (2000).

Defendant argues that his offense, driving a car, without a

license, while carrying a spring-loaded knife, is wholly

disproportionate to the penalties for a Class X felony. Defendant

asserts that the presence of a weapon does not make driving without

a license more likely to result in death or bodily harm.

Therefore, he argues, predicating armed violence on DWLR does not

serve the armed violence statute’s purpose. In response, the State

contends that the focus in determining the severity of the offense

should be on the use of a weapon and not the character of the

underlying felony. That is, “the penalty for the predicate felony

[does] not restrict the legislature’s authority to impose a severe

penalty ***.”

That argument ignores Smith’s statement of statutory purpose

and assumes that misdemeanor conduct somehow takes on the

threatening characteristics of felonious behavior simply because of

a repeat offense. Because the essence of his offense is a

misdemeanor enhanced to an entry level felony only because it is

31 his second such offense, and because DWLR is essentially a

victimless crime, this stated purpose of the statute is not served

by treating the defendant as a felon. The basic character of the

conduct remains a misdemeanor and a 30 year sentence is grossly

disproportionate.

In People v. Green, 301 Ill. App. 3d 767, 772, 704 N.E.2d 437,

440 (1998), cited by the State, the court “reject[ed] defendant's

argument that the penalty for the predicate felony--here, a maximum

of three years in prison with the possibility of probation--should

somehow restrict the legislature's authority to impose severe

penalties upon conviction of that same Class 4 felony when the

offender is carrying a gun.” The State’s reliance on Green

reflects its mischaracterization of defendant’s argument.

Defendant does not argue that sentencing him for a Class X felony

is disproportionate because the underlying offense is only a Class

4 felony--or even because it is a Class A misdemeanor. Defendant

argues his penalty is disproportionate to the actual underlying

conduct--merely driving an automobile without a valid license while

in possession of a knife--and that the penalty is disproportionate

because his core conduct was not made more dangerous by the

presence of a weapon--the evil the armed violence statute is meant

to address.

The penalty imposed by a statute is determined by its purpose.

See People v. Moss, 206 Ill. 2d 503, 523, 795 N.E.2d 208, 221

32 (2003) ("where statutes are enacted for different purposes, we presume that the legislature

considered different factors in establishing the respective punishments"). “The penalty contained

in the armed violence statute is *** designed to achieve the legislature's goal of deterring individuals

from arming themselves with dangerous weapons during the commission of a felony.” People v.

Lombardi, 184 Ill. 2d 462, 471-72, 705 N.E.2d 91, 96-97 (1998), overruled on other grounds, People

v. Sharpe, 216 Ill. 2d 481, 519, 839 N.E.2d 492, 515-516 (2005)). Even assuming defendant was

committing a felony when he drove his car without a license, the armed violence statute would not

cause defendant to contemplate that he “better not do so while armed.” Cf. Green, 301 Ill. App. 3d

at 772, 704 N.E.2d 440. Unlike other felonies, defendant’s crime had no victim, thus the risk of

“deadly consequences [should] a felony victim resist[]” was not present in this case. Nor would

defendant be “forced to make a spontaneous and often instantaneous decision to kill without time

to reflect on the use of such deadly force” in this situation. Thus “the deterrent purpose of the armed

violence statute” is not present in this case. See People v. Condon, 148 Ill. 2d 96, 110, 592 N.E.2d

951, 958 (1992).

If a conviction for a particular offense (in this case armed violence predicated on DWLR)

does not serve the purpose of the statute, then the penalty as determined by the purpose of the statute

is disproportionate to the offense because the penalty and the offense do not share the intended

relation. The armed violence statute is meant to address the potential for escalation to violence

during the commission of a felony that the presence of a weapon creates. That potential is simply

not present here. Despite the State’s reliance on the "long recognized *** risk to police officer[s]

approaching an individual seated in an automobile," nothing here suggests that defendant ever posed

such a threat to police or the public. The presence of a weapon in this case did not exacerbate

33 defendant’s offense of driving without a valid license.

Because I believe defendant’s sentence violates the Proportionate Penalties clause, I

respectfully dissent on this issue.

b) Abuse of discretion

Defendant argues that the trial court abused its discretion in sentencing him to the maximum

non-extended term sentence for armed violence, 30 years’ imprisonment. In response, the State

recounts defendant’s criminal history and points out that the trial court also noted that at sentencing

the defense focused on the nature and circumstances of the instant offense rather than defendant’s

history and character. The State argues defendant’s sentence was appropriate based on that history.

Defendant’s criminal history is a relevant factor in fashioning his sentence. People v. Curtis, 126

Ill. App. 3d 568, 575, 467 N.E.2d 624, 630 (1984). However, "[u]nder section 5-5-3.2(a) of the

Unified Code of Corrections (Ill. Rev. Stat.1981, ch. 38, par. 1005-5-3.2(a)) the trial court is required

to weigh the harm caused by a defendant's conduct, as well as his history of delinquency or criminal

activity, as factors in aggravation for purposes of fashioning the sentence appropriate to the cause."

Curtis, 126 Ill. App. 3d at 575, 467 N.E.2d at 630.

Defendant cites People v. Stacey, 193 Ill. 2d 203, 737 N.E.2d 626 (2000), for the proposition

that the appellate court may find an abuse of discretion and reduce a sentence where the sentence is

disproportionate to the severity of the offense. The Stacey court found that the defendant’s conduct

was "not severe enough to warrant 25-year sentence[s] *** [g]iven the nature of the crimes ***."

The court noted that it was "not reweighing any aggravating or mitigating factors" but that its holding

was based on "our constitution's mandate that penalties be determined according to the seriousness

of the offense. Ill. Const. 1970, art. I, § 11." Stacey, 193 Ill. 2d at 210, 737 N.E.2d at 630.

34 Defendant did not ask this court to reweigh sentencing factors. Instead, he asked us to

evaluate his sentence in light of the severity of his conduct. Stacey instructs that just such a review

is appropriate. Because I disagree with the majority’s evaluation, I dissent on this issue as well.

Turning to my own examination of defendant’s sentence in light of the severity of his

conduct, I would conclude that defendant’s behavior was not severe enough to warrant a 30-year

sentence. The maximum sentence permitted by the armed violence statute is 30 years’ imprison-

ment. 720 ILCS 5/33A-3(a-5) (West 2004); 730 ILCS 5/5-8-1(3) (West 2004). As previously

discussed, the armed violence statute is meant "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" due

to the "belief that the chances that violence will erupt and cause great bodily harm because of the

weapon are increased when a felony is committed." People v. Alejos, 97 Ill. 2d at 509 455 N.E.2d

at 51.

There was little chance violence would erupt from defendant’s behavior because he was

merely driving his car. Admittedly, defendant fled police, but on foot. Defendant’s flight while

possessed of a weapon posed no serious threat. Nor did his driving. Further, whatever risk of harm

defendant may have created was minimal given the weapon at issue, especially when compared with

the potential for harm created by, for example, a handgun. Cf. People v. Brown, 362 Ill. App. 3d

374, 384, 839 N.E.2d 596, 605 (2005) ("If ever there was a felony offense during which the use of

a deadly weapon should be deterred, it is a high-speed flight from or attempt to elude police. The

possible consequences to the peace officers involved, and to any citizens unlucky enough to be

nearby, if defendant decided to employ that deadly weapon, especially a firearm, are unquestion-

able") (emphases added).

35 Defendant later surrendered to police after disarming himself. At no time did the commission

of a felony, possession of a knife, and arrest by police coincide to create a danger that violence would

erupt and cause great bodily harm. In this case, excluding extended-term sentencing, it seems

defendant received the same sentence he would have had he been armed with a gun. Defendant’s

conduct did not place him in a position to make a spontaneous decision to kill or create a risk of

harm should a victim resist. Sentencing him to the maximum penalty possible under the armed

violence statute is therefore "greatly at variance with the spirit and purpose of the law." Moreover,

defendant was armed with a knife and disarmed himself before surrendering to police.

Because the maximum sentence defendant received is "manifestly disproportionate to the

nature of the offense" I respectfully dissent on this issue as well.

Accordingly, for all of the foregoing reasons, I would reverse.