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People v. Del Percio

OPINION FILED FEBRUARY 22, 1985.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

ANTHONY DEL PERCIO, APPELLANT.



Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. John J. Bowman, CHIEF JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

The defendant, Anthony Del Percio, was charged with a seven-count indictment as follows: count I, home invasion (Ill. Rev. Stat. 1979, ch. 38, par. 12-11(a)(1)); count II, attempted armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 8-4(a)); count III, conspiracy (armed robbery) (Ill. Rev. Stat. 1979, ch. 38, par. 8-2(a)); count IV, unlawful use of weapons (Ill. Rev. Stat. 1979, ch. 38, par. 24-1(a)(7)); count V, unlawful use of weapons (Ill. Rev. Stat. 1979, ch. 38, par. 24-1(a)(7)); count VI, armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2) predicated on home invasion; and count VII, armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2) predicated on attempted armed robbery.

The State failed to allege that the defendant entered the victim's home without authority, a necessary and material element of home invasion. Therefore, count I, home invasion, was dismissed. Since count VI, armed violence, was based on count I, it too was dismissed.

A jury in the circuit court of Du Page County found the defendant guilty of armed violence predicated upon attempted armed robbery, count VII; attempted armed robbery, count II; conspiracy to commit armed robbery, count III; and unlawful use of weapons, count IV. The trial court vacated the judgment as to count II, attempted armed robbery as a lesser included offense of armed violence predicated on attempted armed robbery. The defendant was sentenced to serve concurrent terms of eight years' imprisonment for armed violence, three years' imprisonment for conspiracy, and three years' imprisonment for unlawful use of weapons. On appeal, the appellate court affirmed the circuit court. (118 Ill. App.3d 539.) The defendant then petitioned this court for leave to appeal, and we granted the defendant's petition.

There was a co-defendant in this case, Larry Gatena. Although Del Percio went to trial, Gatena accepted a plea bargain and pleaded guilty to one count of attempted armed robbery. Gatena was sentenced to eight years' imprisonment.

The evidence at trial showed that Del Percio and Gatena discussed robbing Enrique Ortiz, a jewelry salesman. Del Percio and Gatena took steps to carry out the robbery. They obtained gloves, hats, stockings, tape, a shotgun, and a car to use in the robbery. On February 26, 1981, the two went to Ortiz' apartment. Unbeknown to Del Percio and Gatena, Ortiz was in the apartment when they arrived. They first attempted to break into the apartment but were unsuccessful. The two then went to the back of the apartment building to discuss the situation. During their discussion, the defendant told Gatena that they should abandon their plan. However, they decided to wait until Ortiz arrived. Once he arrived home, they planned to knock on the door and gain entry in this manner. After a time, Ortiz' wife arrived home. A few minutes after Mrs. Ortiz arrived home, Gatena knocked on the door to the Ortiz' apartment. Because there was valuable jewelry in the apartment, Mr. Ortiz answered the door with a gun concealed behind his back. When the door opened, Del Percio pointed the shotgun at Ortiz. Ortiz opened fire and shot Del Percio. Del Percio and Gatena ran as Ortiz continued to fire his gun. Eventually Del Percio and Gatena reached the car and fled the scene. Gatena took Del Percio to a nearby hospital, where the two were later apprehended.

The defendant raises two issues in this appeal. The first is whether an armed-violence charge can be predicated on an attempted-armed-robbery charge. The second is whether his conviction for conspiracy to commit armed robbery can stand since he was also convicted of armed violence predicated on attempted armed robbery and whether his conspiracy conviction can stand, since he alleges the same act was charged as the act in furtherance of the conspiracy and as the substantial step in the armed-violence charge.

The defendant relies on People v. Haron (1981), 85 Ill.2d 261, for his contention that his conviction for armed violence based upon attempted armed robbery must be vacated on the grounds of double enhancement. In Haron, battery (a misdemeanor) was enhanced to the felony of aggravated battery based on the use of a deadly weapon. The aggravated-battery charge was then used as the predicate felony for the armed-violence charge. We held that the presence of a weapon could not serve to enhance an offense from a misdemeanor to a felony and then serve as the predicate offense for a charge of armed violence. 85 Ill.2d 261, 278.

Section 33A-2 of the Criminal Code of 1961 provides: "A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois law." Ill. Rev. Stat. 1979, ch. 38, par. 33A-2.

In Haron, we stated:

"In our opinion the requirement of section 33A-2 that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a felony without enhancement by the presence of a weapon." People v. Haron (1981), 85 Ill.2d 261, 278.

The language in Haron has been given two interpretations in the appellate court. One group of cases holds that Haron does not apply when the predicate offense was enhanced from a lesser felony to a greater felony, rather than from a misdemeanor to a felony, because of the presence of a weapon. See People v. Cartalino (1982), 111 Ill. App.3d 578 (attempted armed robbery can serve as the predicate offense for armed violence); People v. Viens (1982), 109 Ill. App.3d 1017 (aggravated kidnaping with a deadly weapon can serve as the predicate offense for armed violence); People v. Goodman (1982), 109 Ill. App.3d 203 (attempted armed robbery can serve as the predicate offense for armed violence); People v. Kavinsky (1981), 98 Ill. App.3d 579 (attempted escape and forcible detention with a deadly weapon can serve as the predicate offenses for armed violence).

Another appellate court case holds that Haron applies when the predicate offense was enhanced from a lesser felony to a greater felony because of the presence of a weapon. See People v. Lucien (1982), 109 Ill. App.3d 412 (armed robbery and intimidation by threatening physical harm to cause the writing of a check cannot serve as predicate offenses for a charge of armed violence).

We believe that Haron applies whenever a predicate felony is doubly enhanced because of the presence of a weapon.

In People v. Wisslead (1983), 94 Ill.2d 190, we interpreted the armed-violence statute and our holding in Haron and held that unlawful restraint could serve as the predicate felony for an armed-violence charge because "[t]he presence of a weapon is not an element of the felony offense of unlawful restraint * * *." (94 Ill.2d 190, 193.) Here, the presence of a weapon was an element of the felony offense, attempted armed robbery.

In this case, had the defendant not used a weapon, he could have been charged with attempted robbery, a Class 3 felony. However, the presence of the shotgun served to enhance the offense to attempted armed robbery, a Class 1 felony. The shotgun then served to enhance the offense a second time to armed violence with the use of a category I weapon, a Class X felony. We find this to be double enhancement and improper because "the requirement of section 33A-2 that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a felony without enhancement by the presence of a weapon." (People v. Haron (1981), 85 Ill.2d 261, 278.) Therefore, we hold that attempted armed robbery cannot serve as the predicate felony for a charge of armed violence.

Consequently, we reverse the defendant's conviction for armed violence predicated on attempted armed robbery and remand the cause to the trial court for sentencing on the attempted-armed-robbery conviction. Since we have reversed the defendant's armed-violence conviction we need not address the defendant's other contention on this issue, that a charge of armed violence cannot be based on the predicate offense of attempted armed robbery since it would allow the offense of attempted armed robbery to be punished as severely as armed robbery.

Hence, to the extent that our holding in this case conflicts with the holdings in People v. Cartalino (1982), 111 Ill. App.3d 578, People v. Viens (1982), 109 Ill. App.3d 1017, People v. Goodman (1982), 109 Ill. App.3d 203, People v. Kavinsky (1981), 98 Ill. App.3d 579, and any other ...


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