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People v. Mcneil

OPINION FILED JUNE 26, 1984.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

WILLIAM MCNEIL, A/K/A OTIS MCNEIL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Robert Sklodowski, Judge, presiding.

JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Following a bench trial, defendant, William McNeil, was found guilty of two counts of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2), two counts of unlawful restraint (Ill. Rev. Stat. 1979, ch. 38, par. 10-3), two counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, pars. 33A-2, 10-3), one count of home invasion (Ill. Rev. Stat. 1979, ch. 38, par. 12-11(a)(1)), and one count of felonious unlawful use of weapons (Ill. Rev. Stat. 1979, ch. 38, pars. 24-1(a)(10), (b)). A sentence of natural life imprisonment was imposed pursuant to the habitual criminal act. Ill. Rev. Stat. 1981, ch. 38, par. 33B-1.

Two grounds for reversal are presented by defendant: (1) that section 33B-1 of the Criminal Code of 1961 is violative of the United States and Illinois constitutions; and (2) that the judgment of conviction on the two armed violence counts, which was predicated on the offense of unlawful restraint, must be vacated in accordance with People v. Wisslead (1983), 94 Ill.2d 190, 446 N.E.2d 512. As the issue of reasonable doubt was not raised, only a brief summary of the evidence is necessary.

On the night of October 12, 1981, defendant and two other men forcibly entered Gilbert Midina's basement apartment, located in Chicago, after having falsely identified themselves as police officers. Midina and his brother-in-law, Ricky Cruz, were robbed at gunpoint, bound and gagged. After the three men left the apartment, Midina freed himself, went to a neighbor's house and notified the police.

Soon thereafter, Officers Kruk and Lenihan of the Chicago police department, who were on patrol in the 10th District, curbed a vehicle with three occupants for having failed to stop at a stop sign. While talking with the driver, Officer Kruk observed defendant exit the car from the passenger side, walk toward the front, crouch down and throw an object underneath the vehicle. This object, a .38-caliber handgun, was immediately recovered by the officer. Defendant was then placed under arrest for the unlawful use of a weapon, handcuffed and transported to the 10th District station. A subsequent search of defendant's person and the automobile revealed a Chicago police department badge, jewelry, cameras, telephones, a television set, and a wallet containing Midina's identification. Both Midina and Cruz later identified defendant in a lineup conducted at the 10th District station.

Defendant was thereupon charged with two counts of armed robbery, two counts of unlawful restraint, two counts of armed violence, one count of home invasion and one count of felonious unlawful use of weapons. Following a bench trial, he was found guilty as charged. Due to defendant's previous convictions in 1966 and 1979 for armed robbery, the trial court ruled that he was a habitual criminal and, accordingly, sentenced defendant to a term of natural life imprisonment.

Defendant now appeals from the judgment of conviction on the two armed violence counts, and requests that this court vacate the sentencing order and remand the cause to the circuit court for resentencing.

I

On June 29, 1982, the trial court found defendant to be a habitual criminal in light of his "tragic history of being a professional armed robber." As a result, a sentence of natural life imprisonment was imposed pursuant to the habitual criminal act which provided, in pertinent part, that:

"(a) Every person who has been twice convicted in any state or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class X felony or murder, and is thereafter convicted of a Class X felony or murder, committed after the 2 prior convictions, shall be adjudged an habitual criminal.

(e) Except when the death penalty is imposed, anyone adjudged an habitual criminal shall be sentenced to life imprisonment." Ill. Rev. Stat. 1981, ch. 38, pars. 33B-1(a), (e).

Defendant contests the constitutional validity of this legislative enactment.

A

• 1 At the outset, we note that a strong presumption of constitutionality attaches to a statute. (People v. La Pointe (1981), 88 Ill.2d 482, 499, 431 N.E.2d 344.) The burden rests upon the party attacking a particular law to show that it is clearly arbitrary, unreasonable and has no foundation in the State's police power. (People v. Copeland (1980), 92 Ill. App.3d 475, 479-80, 415 N.E.2d 1173.) The paramount consideration in construing a statute is to give effect to the legislative intent. (People v. Beam (1979), 74 Ill.2d 240, 242, 384 N.E.2d 1315.) "In determining legislative intent, a court may examine not only the language used, but also the ...


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