People v. Taylor

2020 IL App (1st) 172838-U

Opinion

2020 IL App (1st) 172838-U Order filed: September 11, 2020

FIRST DISTRICT FIFTH DIVISION

No. 1-17-2838

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 91 CR 24986 ) ENICE TAYLOR, ) Honorable ) Mathew E. Coghlan, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE ROCHFORD delivered the judgment of the court. Presiding Justice Delort and Justice Hoffman concurred in the judgment.

ORDER

¶1 Held: Defendant’s 10-year sentence for armed violence did not violate the proportionate penalties clause of the Illinois constitution.

¶2 Defendant-appellant, Enice Taylor, appeals from an order of the circuit court denying his

pro se request for leave to file a successive postconviction petition for relief under the Post–

Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)). On appeal, defendant

argues that his 10-year sentence for armed violence violated the proportionate penalties clause of

the Illinois constitution. For the following reasons, we affirm. 1

1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order stating with specificity why no substantial question is presented. No. 1-17-2838

¶3 Defendant was convicted of aggravated criminal sexual assault, armed violence predicated

upon unlawful restraint with a knife, criminal sexual assault, aggravated criminal sexual abuse and

aggravated unlawful restraint, all with respect to an incident that occurred in October 1991. The

trial court merged a number of these convictions, and defendant was ultimately sentenced to a term

of 50 years’ imprisonment for aggravated criminal sexual assault as well as a consecutive term of

10 years’ imprisonment for armed violence. On direct appeal, defense counsel’s motion to

withdraw as counsel was granted and defendant’s convictions and sentences were affirmed. People

v. Taylor, 268 Ill. App. 3d 1115 (1995) (table) (unpublished order under Supreme Court Rule 23).

¶4 Defendant thereafter filed several previous, unsuccessful collateral challenges to his

convictions and sentences, including an initial postconviction petition filed pursuant to the Post-

Conviction Hearing Act (Act). 725 ILCS 5/122-1, et seq. (West 2016). Finally, on May 23, 2017,

defendant initiated the proceeding at issue here by filing a document below entitled “Motion for

Post Conviction Relief,” which included—inter alia—a claim that he had been “oversentenced”

under the proportionate penalties clause of the Illinois constitution (Ill. Const. 1970, Art. I, § 11)

because he would have to serve 100% of his sentence. Treating this document as a request for

leave to file a successive postconviction petition, the circuit court denied such leave in a written

order entered on September 22, 2017. Defendant thereafter filed a timely notice of appeal.

¶5 On appeal, defendant does not contend that the circuit court improperly denied leave to file

a successive petition, nor does defendant ask this court to remand for further proceedings pursuant

to the Act. Rather, defendant asks this court to find that his conviction for armed violence and his

10-year sentence for that conviction are void under the proportionate penalties clause of the Illinois

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Constitution. This is an appropriate argument to make in this appeal, despite defendant’s failure to

have raised it below, as “[v]oidness challenges stemming from the unconstitutionality of a criminal

statute under the proportionate penalties clause may be raised at any time.” People v. Ligon, 2016

IL 118023, ¶ 9.

¶6 “We begin with the presumption that all statutes are constitutional. [Citation.] As a result

of this presumption, the party challenging the constitutionality of a statute bears the burden of

demonstrating that a constitutional violation exists. [Citation.] Great deference is given to the

legislature's determination of the seriousness of various offenses and the sentences that the

legislature has deemed appropriate for those offenses. [Citation.] We review the question of

whether a statute is constitutional de novo.” People v. Guyton, 2014 IL App (1st) 110450, ¶ 55.

¶7 “The proportionate penalties clause 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.’ [Citation.] In assessing an alleged proportionate penalties violation, we must

determine whether the penalty at issue has been set by the legislature according to the seriousness

of the offense. [Citation.] There are currently two ways to determine whether a penalty will violate

the proportionate penalties clause: (1) whether the penalty is cruel, degrading, or so wholly

disproportionate to the offense committed as to shock the moral sense of the community; and (2)

whether offenses with identical elements are given different sentences.” Id. ¶ 56.

¶8 With respect to the second proportionality test, “ ‘[i]f the legislature determines that the

exact same elements merit two different penalties, then one of these penalties has not been set in

accordance with the seriousness of the offense.’ ” People v. Clemons, 2012 IL 107821, ¶ 30

(quoting People v. Sharpe, 216 Ill. 2d 481, 522 (2005)). “An expectation of identical penalties for

identical offenses comports with ‘common sense and sound logic’ (citation), and also gives effect

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to the plain language of the Illinois Constitution (citation). Thus, where identical offenses do not

yield identical penalties, [our supreme court] has held that the penalties were unconstitutionally

disproportionate and the greater penalty could not stand.” Ligon, 2016 IL 118023, ¶ 11.

¶9 Here, defendant was charged with and convicted of committing armed violence predicated

on unlawful restraint with a knife, with respect to an incident that occurred in October 1991, in

violation of Ill. Rev. Stat. 1989, ch. 38 ¶ 33A-2/I/10-3.1 (West 1991). Our analysis is thus

dependent upon the wording of the relevant statutory provisions in effect at that time.

¶ 10 A person commits armed violence when, “while armed with a dangerous weapon, he

commits any felony defined by Illinois Law.” Ill. Rev. Stat. 1988, ch. 38 ¶ 33A-2 (West 1991). A

defendant is “armed with a dangerous weapon” when he “carries on or about his person or is

otherwise armed with a Category I or Category II weapon.” Ill. Rev. Stat. 1988, ch. 38 ¶ 33A-1(a)

(West 1991). A category I weapon includes a “knife with a blade of at least 3 inches in length,

dagger, dirk, switch-blade knife, stiletto, or any other deadly or dangerous weapon or instrument

of like character.” Ill. Rev. Stat. 1989, ch. 38 ¶ 33A-1(b) (West 1991). Defendant’s conviction for

armed violence predicated on unlawful restraint while armed with a knife constituted a Class X

felony with a sentencing range of six to thirty years in prison. Ill. Rev. Stat. 1989, ch. 38 ¶ 33A-

2/I/10-3.1 (West 1991).

¶ 11 In contrast, a person commits aggravated unlawful restraint when “he commits unlawful

restraint while using a deadly weapon.” Ill. Rev. Stat. 1989, ch. 38 ¶10-3(a) (West 1991). A person

commits the offense of unlawful restraint when “he knowingly without legal authority detains

another.” Ill. Rev. Stat. 1989, ch. 38, ¶ 10-3(a) (West 1991). A “deadly weapon” is not defined in

the aggravated unlawful restraint statute, but it has generally been recognized that a deadly weapon

is an “instrument that is used or may be used for the purpose of an offense and is capable of

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producing death.” People v. Blanks, 361 Ill. App. 3d 400, 411 (2005). Some weapons, such as a “

‘gun, pistol, or dirk-knife,’ ” are deadly per se, while other instruments can be used in a manner

that makes them deadly weapons. People v. Ross, 229 Ill. 2d 255, 273 (2008) (quoting People v.

Dwyer, 324 Ill. 363, 365 (1927)). When an instrument is not deadly per se, whether it qualifies as

a deadly weapon is a question “for the fact finder to determine from a description of the weapon,

the manner of its use, and the circumstances of the case.” Blanks, 361 Ill. App. at 411-12.

Aggravated unlawful restraint is a Class 3 felony, carrying a sentencing range of two to five years

in prison. Ill. Rev. Stat. 1989, ch. 38, ¶ 10-3(a) (West 1991).

¶ 12 An examination of the elements of the armed violence and aggravated unlawful restraint

statutes at issue here reveals that the two do not share identical elements.

¶ 13 First, the armed violence statute clearly requires a defendant to carry on or about his person

or be otherwise armed with “a Category I or Category II weapon.” Ill. Rev. Stat. 1988, ch. 38 ¶

33A-1(a) (West 1991). The weapons that satisfy that requirement are specifically identified by

statute. Ill. Rev. Stat. 1989, ch. 38 ¶ 33A-1 (West 1991). In contrast the aggravated unlawful

restraint statute requires a defendant to use a “deadly weapon.” Ill. Rev. Stat. 1989, ch. 38 ¶10-

3(a) (West 1991). The weapons that satisfy that requirement are not specifically identified by

statute, but rather include weapons that are deadly per se as well as other instruments can be used

in a manner that makes them deadly weapons, with the question of whether a weapon qualifies as

a deadly weapon sometimes being one for the trier of face to determine from a description of the

weapon, the manner of its use, and the circumstances of the case. Supra, ¶11.

¶ 14 We therefore agree with the State’s assertion that “because the armed violence statute

expressly delineates which weapons are ‘dangerous weapons’ for purposes of that statute, many

objects that fall under the broader *** definition of ‘deadly weapon’ as used in the aggravated

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unlawful restraint statute would not fall under the narrower ‘dangerous weapon’ definition because

they are not Category I or Category II weapons. As such, the two offenses do not share identical

elements and therefore do not violate the identical elements test of the proportionate penalties

clause.”

¶ 15 In reaching this conclusion, we note that it is immaterial to our analysis that the actual

weapon at issue here—a knife—might qualify as both a dangerous weapon under the armed

violence statute and a deadly weapon under the aggravated unlawful restraint statute. Under the

identical elements test, it is sufficient to recognize that the general, broader class of deadly

weapons under the aggravated unlawful restraint statute is distinct from the specific, statutorily

defined list of dangerous weapons under the armed violence statute. People v. Hernandez, 2016

IL 118672, ¶ 16.

¶ 16 Second, the armed violence statute specifically requires only that a defendant be “armed”

with a dangerous weapon while committing a predicate felony (Ill. Rev. Stat. 1988, ch. 38 ¶ 33A-

2 (West 1991)); i.e., to carry on or about his person or be otherwise armed with such a weapon (Ill.

Rev. Stat. 1988, ch. 38 ¶ 33A-1(a) (West 1991)). As our supreme court has recognized “the armed-

violence statute clearly does not require that the presence of a weapon facilitate the predicate

offense. Rather, the mere fact that a person, while committing a felony, ‘carries on or about his

person or is otherwise armed with’ a dangerous weapon is sufficient to come within the language

of the statute.” People v. Haron, 85 Ill. 2d 261, 269–70 (1981). In contrast the aggravated unlawful

restraint statute specifically requires a defendant to knowingly without legal authority detain

another “while using” a deadly weapon. Ill. Rev. Stat. 1989, ch. 38, ¶ 10-3(a) (West 1991).

¶ 17 As such, because the armed violence statute at issue expressly allows for a conviction

where a defendant is merely armed with a weapon while the aggravated unlawful restraint statute

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at issue specifically requires that a weapon actually be used by a defendant, the two offenses do

not share identical elements. For this reason as well, the two offenses do not violate the identical-

elements test of the proportionate penalties clause.

¶ 18 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 19 Affirmed.

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