APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
At the conclusion of a bench trial in the circuit court of Cook County, defendant, Laud S. Pace, was found guilty of seven counts of theft (Ill. Rev. Stat. 1979, ch. 38, par. 16-1), one count of unlawful use of weapons (Ill. Rev. Stat. 1979, ch. 38, par. 24-1) and three counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2). Defendant was sentenced to concurrent prison terms of ten years for armed violence, four years for theft, and one year for unlawful use of weapons. On appeal, defendant contends that: (1) he was improperly convicted of armed violence because the armed violence statute is unconstitutionally vague and the evidence failed to show the use of a weapon to commit theft; and (2) the sentences of 10 years for armed violence and four years for theft are excessive and should be reduced to the respective statutory minimums of six and two years.
Defendant, a former employee of the Chicago Art Institute, personally carried out his scheme whereby three paintings by Paul Cezanne, entitled "Apples on a Table Cloth," "House on a River" and "Madame Cezanne in a Yellow Chair" were stolen. On May 21, 1979, defendant contacted E. Lawrence Chalmers, president of the Art Institute, and informed him that the "thieves" of the Cezanne paintings had contacted him. They asked him to arrange an exchange of the paintings for $250,000. After contacting law enforcement authorities, Chalmers told defendant that he should speak with William Smith, the Art Institute's insurance adjuster, who was staying at the Drake Hotel.
Later, Chalmers, Smith, and law enforcement personnel arranged to obtain the sum demanded and to have the hotel room next door to Smith's room set up with recording equipment staffed by police. When defendant, by prearrangement, met Smith in Smith's room on May 22, 1979, defendant asked to see the money to be exchanged for the paintings. Smith showed it to him. An exchange of the cash for the paintings was agreed upon for the next morning in Smith's room.
The next morning, defendant brought with him a large package which contained three paintings. Smith and Chalmers were present in Smith's room. Defendant told Smith that the "thieves" wished to make the exchange and that there were men in the corridor and in the streets armed with "45's." Defendant then opened his suit coat for three to four seconds and displayed a pistol placed under his belt. Smith did not see the gun but Chalmers did. The exchange of the money for the paintings then took place. As defendant departed from the room with the money, he was arrested. The money was retaken. Upon searching defendant, police recovered from him a loaded nine-millimeter automatic pistol and four fully loaded ammunition clips. The retrieved paintings had an aggregate value of $4.3 million.
Defendant first contends that his conviction for armed violence is legally impermissible and cannot stand because the armed violence statute is unconstitutionally vague and denies due process of law under the constitutions of both Illinois and the United States. Defendant also contends that the armed violence convictions must be reversed because the evidence presented did not prove defendant used the gun to commit the theft.
Article 33A of the Criminal Code of 1961 provides:
"§ 33A-1. Definitions. (a) `Armed with a dangerous weapon'. A person is considered armed with a dangerous weapon for purposes of this Article, when he carries on or about his person or is otherwise armed with a category I or category II weapon. (b) A category I weapon is a pistol, revolver, rifle, shotgun, spring gun, or any other firearm, sawed-off shotgun, a stun gun or taser as defined in paragraph (a) of Section 24-1 of this Code, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto, or any other deadly or dangerous weapon or instrument of like character. (c) A category II weapon is a bludgeon, blackjack, slungshot, sandbag, sandclub, metal knuckles, billy or other dangerous weapon of like character."
"§ 33A-2. Armed violence — Elements of the offense. A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law."
"§ 33A-3. Sentence. (a) Violation of Section 33A-2 with a Category I weapon is a Class X felony. (b) Violation of Section 33A-2 with a Category II weapon is a Class 2 felony or the felony classification provided for the same act while unarmed, whichever permits the greater penalty. A second or subsequent violation of Section 33A-2 with a Category II weapon is a Class 1 felony or the felony classification provided for the same act while unarmed, whichever permits the greater penalty." Ill. Rev. Stat. 1979, ch. 38, pars. 33A-1 to 33A-3.
Defendant's vagueness attack is two-fold: first, the statute fails to make clear whether the weapon must actually be used to facilitate the offense and the statute is inconsistent since it includes nonviolent felonies as acts of armed violence; and second, the penalty set forth for the offense is not determined with respect to the seriousness of the offense in violation of article 1, section 11 *fn1 of the Illinois ...