Appeal from the Circuit Court Cook County. Honorable John E. Morrisey, Judge Presiding.
Released for Publication June 2, 1997.
Justice Leavitt delivered the opinion of the court. Cousins, P.j., concurring in part, dissent in part. Cahill, J. concurs.
The opinion of the court was delivered by: Leavitt
Justice Leavitt delivered the opinion of the court:
Terry Beard was charged with multiple counts of armed violence, aggravated vehicular hijacking, armed robbery, aggravated kidnapping and related lesser offenses. Following a bench trial, he was convicted on all counts and sentenced to concurrent fifteen year terms on four counts: aggravated vehicular hijacking, armed violence predicated on vehicular hijacking, armed robbery and armed violence predicated on robbery. He contends that the sentences for armed violence are unconstitutionally disproportionate.
The following evidence was presented at trial. On March 28, 1995, Lanair Sullivan and Erick Sturdivant were driving home from work in Sullivan's car. When the two men got to south Houston street in Chicago, the defendant and two others approached the car. The defendant was holding a sawed-off shotgun and one of his cohorts had a nine millimeter handgun which the offenders used to force Sullivan out of the car. Sullivan ran away. Meanwhile, the defendant forced Sturdivant out of the car and hit him in the head with the shotgun, causing him to fall to the ground. The defendant then stole his cash and certain personal belongings.
The defendant and the other two offenders then forced Sturdivant back into the car. One of the defendant's two cohorts drove to a nearby steel mill and forced Sturdivant into the trunk of the car. After about 45 minutes, Sturdivant, believing the offenders had gone, opened the trunk with the automatic trunk release. He later identified the shotgun held by the defendant and, after viewing the defendant in a lineup, identified the defendant as the person who had attacked him. The trial judge found the defendant guilty on all counts.
The defendant argues that his sentences are disproportionate in violation of article I sections 2 and 11 of the Illinois Constitution. III. Const. 1970, Art. I secs. 2, 11. These sections mandate penalties that are proportionate to the offenses. Defendant contends that because armed violence predicated on aggravated vehicular hijacking is the same offense as aggravated vehicular hijacking, the sentences for the two should be the same. The same logic holds for the armed violence conviction predicated on armed robbery. In People v. Christy, 139 Ill. 2d 172, 564 N.E.2d 770, 151 Ill. Dec. 315 (1990), our supreme court held that the commission of a kidnapping while armed with a three inch knife constitutes both armed violence and aggravated kidnapping and the fact that the former is punishable as a Class X offense while the latter is punishable only as a Class one felony, creates an unconstitutional disproportionality in the sentencing scheme. Christy, 139 Ill. 2d at 181. We agree with the defendant that the same flaw is present in this case.
Count one of the charging instrument states that the defendant committed aggravated vehicular hijacking, which carries with it a minimum sentence of seven years. 720 ILCS 5/18-4(b) (West 1994). Count three charges the defendant with armed violence, based on the vehicular hijacking, which carries with it a minimum sentence of fifteen years. 720 ILCS 5/33A-3 (a) (West 1994). Similarly, count four, armed violence predicated on the robbery, carries a minimum sentence of fifteen years while the armed robbery count is punishable by a minimum of six years. 720 ILCS 5/18-2, 730 ILCS 5/5-8-1(a)(3)(West 1994).
Vehicular hijacking is defined as taking a motor vehicle from the person or the immediate presence of another by the use of force or by threatening the imminent use of force. 720 ILCS 5/18-3 (West 1994). Aggravated vehicular hijacking is defined as the commission of vehicular hijacking while armed with a dangerous weapon. 720 ILCS 5/18-4(a)(3) (West 1994). Dangerous weapons are defined in section 33A-1 of the Code and are divided into two categories. 720 ILCS 5/33A-1(a) (West 1994). A sawed off shotgun is a category one weapon. 720 ILCS 5/33A-1(b). The commission of vehicular hijacking while armed with a sawed off shotgun constitutes aggravated vehicular hijacking, a Class X felony, carrying a minimum sentence of seven years.
Armed violence is defined as the commission of any felony while armed with a dangerous weapon (720 ILCS 5/33A-2 (West 1994)), and the commission of any felony while armed with a category 1 weapon is a Class X felony. 720 ILCS 5/33A-3(a)(West 1994). Thus, one who commits a vehicular hijacking while armed with a sawed off shotgun also commits armed violence, a Class X felony which carries a mandatory minimum sentence of imprisonment of 15 years.
Robbery is defined as taking property from the person or presence of another by the use of force or threatening the imminent use of force. 720 ILCS 5/18-1 (West 1994). Armed robbery is the commission of a robbery while carrying or armed with a dangerous weapon 720 ILCS 5/18-2 (West 1994), and, as a Class X felony is punishable by a minimum of six years imprisonment.
The elements of aggravated vehicular hijacking are identical to those of the armed violence offense charged in count three. In addition, the elements of the armed robbery charge in count four are identical to those of the armed violence charge in count two. Given this, we hold that the disparities in the penalties for armed violence predicated on both the robbery and vehicular hijacking with a category one weapon are unconstitutionally disproportionate under People v. Christy. See also People v. Lewis, 1996 Ill. LEXIS 128, No. 80318 (Ill. December 19, 1996)(holding the penalties for armed violence predicated on robbery with a category 1 weapon and armed robbery unconstitutionally disproportionate). Accordingly, we vacate the defendant's armed violence convictions and sentences.
The defendant also contends that the trial judge improperly based his sentences for the armed robbery and aggravated vehicular hijacking convictions in part on the armed violence convictions we now vacate. He argues that under People v. Smith, 275 Ill. App. 3d 207, 655 N.E.2d 1129, 211 Ill. Dec. 746 (1995), we must remand for resentencing. In Smith, the judge sentenced the defendant on three convictions of home invasion despite there having been only one unauthorized entry. This court remanded the case for resentencing. Smith, 275 Ill. App. 3d at 214. The State argues that although the trial judge referred to the ...