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People v. Russell

OPINION FILED MAY 5, 1986.

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

v.

ROBERT RUSSELL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County; the Hon. Fred Geiger, Judge, presiding.

JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

The defendant, Robert K. Russell, was charged by information in Lake County on November 16, 1984, with two counts each of attempted murder, aggravated battery (deadly weapon) and armed violence based on the aggravated-battery charge. (Ill. Rev. Stat. 1983, ch. 38, pars. 8-4(a), 9-1(a)(1), 12-4(b)(1), 33A-2.) The armed-violence counts were amended on January 25, 1985, to reflect aggravated battery causing great bodily harm as their predicate felony. (Ill. Rev. Stat. 1983, ch. 38, par. 12-4(a).) A jury found the defendant not guilty of the attempted-murder counts, but guilty of all counts of aggravated battery and armed violence. The court entered judgment only on the armed-violence counts and sentenced the defendant to two consecutive 30-year terms of imprisonment.

Defendant contends (1) the consecutive terms were improper as constituting a double enhancement of the element of great bodily harm, and (2) the sentences were excessive and an abuse of discretion.

A detailed recitation of the facts is unnecessary. In brief, the occurrence which precipitated the charges against the defendant took place at the Taco Bell restaurant in Zion. The defendant encountered the two victims as he was waiting at the counter for his previously ordered take-out food. There was evidence the two victims had consumed alcoholic beverages before arriving at the Taco Bell. The counter clerk at Taco Bell, who was acquainted with the defendant, testified the defendant was drunk, but defendant and his girlfriend testified he had not had anything to drink. The clerk testified the defendant said he would shoot her if she did not get his order right, but she felt he was "just kidding." Two other employees who overheard defendant's comment to the clerk also thought he was joking.

Testimony conflicted as to who said what to whom, but one of the witnesses testified the defendant and one of the two victims pushed each other in a manner that led the witness to believe they were "playing." The two victims then began backing away from the defendant, one in front of the other, their hands raised in the air, saying "Don't shoot." The defendant had a black handgun; three successive shots were fired in the direction of the two men. They continued to back away from the defendant, and backed out the south door of the restaurant. The defendant picked up his take-out order and exited through the south door. Testimony of the defendant and the counter clerk conflicted as to whether before leaving he said to her: "You didn't see anything," or whether she said to him: "I didn't see anything." The two victims reentered the restaurant; both were bleeding and medical assistance was summoned. A bullet was found lodged in the right shoulder of one of the victims, and the other victim underwent surgery due to bullet wounds in his abdomen. The walls of his small and large intestines had been penetrated, and there were powder burns around the entry wound. Two of the wounds to the small intestine were sutured, and a foot of small intestine was removed during a resection to repair the remaining damage to the small intestine; the large intestine wound was cleaned, trimmed, and closed.

In the defendant's testimony, he stated one of the victims had what appeared to be a buck knife with a six-inch blade. He stated he was scared because the two men were drunk and were bigger than he was. The defendant's girlfriend also testified she saw a knife, whereupon she ran out of the restaurant and across the street because she was scared. Other witnesses reported the two men were empty-handed, except one of the men was holding his food order. After he left the Taco Bell, the defendant went to his apartment and awakened a friend who was sleeping on the couch. He gave him the gun and told him to get rid of it because the police were coming. The friend threw the gun into Lake Michigan and later showed the police the area of the lake where he had thrown it.

• 1 Defendant first contends the use of great bodily harm to enhance the misdemeanor offense of battery to the felony of aggravated battery and then to impose consecutive sentences constitutes the same type of impermissible "double enhancement" which was found in People v. Haron (1981), 85 Ill.2d 261, People v. Del Percio (1985), 105 Ill.2d 372, and People v. Hobbs (1981), 86 Ill.2d 242. The State argues the court's primary reason for imposing a consecutive sentence was because the defendant was a "vicious and violent person." Further, the facts of the case show there was "a substantial change in the nature of the criminal objective" in that the defendant shot a second victim. As such, the State argues, the consecutive sentences were proper under section 5-8-4(a) of the Unified Code of Corrections (the Code) (Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-4(a)). The State further argues Haron, Del Percio, and Hobbs are inapplicable to the instant issue since it could not have been the legislative intent in enacting section 5-8-4 to exempt from the imposition of a consecutive sentence a conviction for armed violence where the predicate felony is aggravated battery based on great bodily harm.

Defendant replies the court's assessment of his character is irrelevant in determining whether it had authority to impose a consecutive sentence, and that the test for determining whether there was a substantial change in the nature of the criminal objective is not whether there was more than one victim, but whether the defendant's acts were motivated by essentially the same objective.

We find no improper enhancement of the defendant's sentence under the facts of this case.

A person commits armed violence when "while armed with a dangerous weapon, he commits any felony defined by Illinois Law." (Ill. Rev. Stat. 1983, ch. 38, par. 33A-2.) The predicate felony charged here was aggravated battery, which occurs, inter alia, when "[a] person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement." Ill. Rev. Stat. 1983, ch. 38, par. 12-4(a).

When multiple sentences of imprisonment are imposed on a defendant at the same time, the sentences are to run concurrently or consecutively as determined by the court pursuant to section 5-8-4 of the Code. In pertinent part, that section provides:

"The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, in which event the court may enter sentences to run consecutively. Sentences shall run concurrently unless otherwise specified by the court.

(b) The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record." Ill. Rev. Stat. 1983, ch. 38, pars. 1005-8-4(a), (b).

In People v. Haron (1981), 85 Ill.2d 261, the court held that a charge of aggravated battery based on the use of a deadly weapon could not serve as the predicate felony for armed violence. In so holding, the court had concluded that the General Assembly did not intend the presence of a weapon to serve to enhance an offense from misdemeanor to felony and also to serve as the basis for a charge of armed violence. The court found that section 33A-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2) contemplated the commission of a predicate offense which was a felony without enhancement by the presence of a weapon. In a subsequent case, People v. Del Percio (1985), 105 Ill.2d 372, the court determined it was improper to predicate an armed-violence charge on attempted armed robbery, stating that: "Haron applies whenever a predicate felony is doubly enhanced because of the presence of a weapon." 105 Ill.2d 372, 377.

There is no question the armed-violence charge at bar was predicated on aggravated battery causing great bodily harm and not on aggravated battery by use of a deadly weapon. As such, we find Haron and Del Percio inapplicable. Defendant argues, however, that the Hobbs case, in which that court felt its holding was "in accord with" Haron, is authority for reversal and remandment for a new sentencing hearing or modification of the sentences to be served concurrently.

In People v. Hobbs (1981), 86 Ill.2d 242, the defendant's 1978 felony conviction was used to enhance the misdemeanor charge then pending against him (theft under $150) to a felony (Ill. Rev. Stat. 1979, ch. 38, par. 16-1(e)), and the prior and current felony were then considered in tandem by the sentencing court as the basis for imposing an extended term. Section 16-1(e) of the Code provided:

"Theft of property, other than a firearm, not from the person and not exceeding $150 in value is a Class A misdemeanor. A second or subsequent offense after a conviction of any type of theft, including retail theft, other than theft of a firearm, is a Class 4 felony." (Ill. Rev. Stat. 1979, ch. 38, par. 16-1(e)(1).)

The extended-term criteria set forth in section 5-5-3.2 of the Code, "Factors in Aggravation" (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2) provided:

"The following factors may be considered by the court as reasons to impose an extended term sentence under Section 5-8-2 upon any offender who was at least 17 ...


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