SUPREME COURT OF ILLINOIS
546 N.E.2d 553, 131 Ill. 2d 370, 137 Ill. Dec. 608 1989.IL.1686
Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Peoria County, the Hon. Calvin R. Stone, Judge, presiding.
JUSTICE MILLER delivered the opinion of the court.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER
Following a jury trial in the circuit court of Peoria County, the defendant, Billy Wade, Jr., was found guilty of one count each of armed violence, predicated on the felony of intimidation, and attempted armed robbery. The trial Judge entered judgment on the more serious charge, armed violence, and sentenced the defendant to a term of seven years' imprisonment for that offense. The appellate court reversed the defendant's conviction and vacated the sentence, holding that intimidation could not, in the circumstances of the present case, serve as the predicate felony for the offense of armed violence. The appellate court rejected the defendant's other allegations of error and remanded the cause to the circuit court for entry of judgment and imposition of sentence on the remaining offense, attempted armed robbery. (167 Ill. App. 3d 921.) The State filed a petition for leave to appeal pursuant to Supreme Court Rule 315(a) (107 Ill. 2d R. 315(a)), which we allowed.
The offenses in the present case stem from an attempt by the defendant and a codefendant, Scottie Brown, to rob the cashier of a Peoria store. Pursuant to a plea agreement, Brown later pleaded guilty to a reduced charge of attempted robbery and received a sentence of 3 1/2 years' imprisonment; efforts to negotiate an agreement in the defendant's case proved unsuccessful. In brief, the evidence adduced at the defendant's trial established that the defendant entered the Western Meat Market in Peoria around 6:30 p.m. on January 13, 1987. Codefendant Brown was already inside the store, ostensibly to make a purchase. Wearing a nylon stocking over his face, the defendant approached the cashier and said, "Put the money in the bag." The defendant was stuttering and appeared nervous, and the cashier said, "What?" The defendant repeated his demand; as the defendant spoke, he withdrew a gun from inside his jacket, and he threw a cloth bag onto the counter. The cashier told the defendant to leave, and he then fled from the store. The police were notified, and they arrested the defendant about an hour later. In a lineup conducted the same evening, the cashier identified the defendant as the gunman.
Co-defendant Scottie Brown testified in the State's behalf as part of his plea agreement. Brown recounted the planning he and the defendant made in advance of the robbery attempt. According to Brown, they plotted an escape route to use following the robbery, and the defendant left a change of clothing at a nearby church to facilitate his escape. On the day of the robbery the defendant obtained a pistol from an acquaintance, and he and Brown then proceeded to the market. Brown's testimony regarding the sequence of events in the store corroborated that of the cashier.
At trial the State also presented the testimony of four Peoria police officers, who described the investigation following the offenses, the recovery of evidence linking the defendant to the crimes, and the arrests of Brown and the defendant.
Defense counsel raised voluntary intoxication as an affirmative defense to the charges (see Ill. Rev. Stat. 1985, ch. 38, pars. 6-3, 6-4), though counsel did not concede that the defendant was present during the commission of the offenses. The defendant testified at trial, and he asserted that he was asked to participate in a plan to rob the Western Meat Market but that he refused to do so. The defendant said that on the evening of the robbery attempt he drank a substantial amount of alcohol and ingested various narcotics and then went home and blacked out. His next memory of that day was of being awakened in a police holding cell to take part in a lineup. The defendant testified that he had no recollection of participating in the attempted robbery of the market.
To rebut the defendant's claim of intoxication, the State presented the testimony of the arresting officer, who said that the defendant did not smell of alcohol, appear intoxicated, or otherwise act inappropriately at the time of his arrest. Similar testimony was provided by the police officer who conducted the lineup the evening of the defendant's arrest.
Following deliberations, the jury found the defendant guilty of both armed violence and attempted armed robbery. The trial Judge entered judgment on the armed violence count alone and subsequently sentenced the defendant to seven years' imprisonment for that offense.
The appellate court reversed the defendant's conviction for armed violence, agreeing with the defendant that intimidation could not serve in his case as the predicate felony for that offense. (167 Ill. App. 3d 921.) The appellate court believed that, in the present circumstances, the Class 3 felonies of attempted robbery and intimidation were established by the same evidence. The appellate court noted, however, that the defendant's possession of a handgun during his commission of the crimes allowed the offense of attempted robbery to be enhanced to the Class 1 felony of attempted armed robbery and the offense of intimidation to be enhanced to the Class X felony of armed violence. Relying on People v. Wisslead (1983), 94 Ill. 2d 190, the appellate court concluded that the existence of different penalties for offenses based on the same conduct resulted in an unconstitutionally disproportionate sentencing scheme. The appellate court rejected the defendant's two remaining allegations of error, and the court therefore remanded the cause for entry of judgment and imposition of sentence on the charge of attempted armed robbery, of which the jury had also found the defendant guilty.
The primary issue presented for our review is whether intimidation may serve in the present case as the predicate felony for the offense of armed violence. The State argues, as an initial matter, that the defendant has failed to preserve the issue for review. The defendant acknowledges that the issue was not raised during trial or in his post-trial motion. The defendant insists, however, that he may challenge at any time the constitutionality of the statute under which ...