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05/16/95 PEOPLE STATE ILLINOIS v. GREGORY ANDERSON

May 16, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
GREGORY ANDERSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Michael B. Getty, Judge Presiding.

The Honorable Justice Hartman delivered the opinion of the court: Scariano, P.j., and DiVITO, J., concur.

The opinion of the court was delivered by: Hartman

JUSTICE HARTMAN delivered the opinion of the court:

Defendant appeals his conviction for attempted vehicular invasion, questioning whether the governing statute (720 ILCS 5/12-11.1 (West 1992)) is constitutional. He also raises as an issue for review whether he was entitled to notice of the State's intention to seek an enhanced sentence pursuant to section 111-3(c) of the Code of Criminal Procedure (725 ILCS 5/111-3(c) (West 1992)) and whether the mittimus issued requires correction.

Julie Wagner testified at defendant's bench trial that on December 4, 1992, she was sitting in the passenger seat of her mother's truck parked at 7500 W. 63rd Street in Summit, Illinois. She was waiting for her mother to come out of a nearby pharmacy. The motor was running. Defendant approached and grabbed the passenger door handle. Julie punched the door lock button with her elbow. Defendant continued pulling on the door handle, banging on the window and shouting, "Bitch. Get out of the truck. Give me your money, bitch." Defendant then ran around the back of the truck, over to the driver's door, but Julie locked it before he could enter. He continued his shouting and banging.

At the approach of a shopper, defendant ran across the street to a hotdog stand. Julie and her mother telephoned the police. Defendant fled when two squad cars arrived. Two days later, Julie viewed a line-up at the Summit police station and positively identified defendant as the individual who attempted to enter her mother's vehicle.

The circuit judge found defendant guilty of attempted vehicular invasion and sentenced him to six years imprisonment as a Class X offender, based upon two prior Class 2 felony convictions. Defendant timely filed this appeal.

I.

Defendant contends that the crime of vehicular invasion and, therefore, the crime of attempted vehicular invasion, violates the due process and proportionate penalties provisions of the Illinois Constitution. (Ill. Const. 1970, art. I, §§ 2, 11.) Specifically, defendant compares vehicular invasion (720 ILCS 5/12-11.1 (West 1992)), a Class 1 felony, to robbery (720 ILCS 5/18-1 (West 1992)), a Class 2 felony, and concludes that vehicular invasion is less serious because it does not require a taking. As a result, defendant submits that the vehicular invasion statute impermissibly imposes a more severe punishment for a crime that is essentially an attempted robbery.

Article I, section 2 of the Illinois Constitution (Ill. Const. 1970, art. I, § 2) provides:

"No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws."

Article I, section 11 (Ill. Const. 1970, art. I, § 11) provides, in pertinent part:

"All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship."

The policy underlying these constitutional provisions would be violated if the penalty prescribed for an offense is not as great or greater than the penalty prescribed for a less serious offense. People v. Wisslead ...


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