APPEAL FROM THE CIRCUIT COURT COOK COUNTY. No. 94 MC1 351250. THE HONORABLE, WILLIAM O'MALLEY, JUDGE PRESIDING.
Released for Publication November 9, 1997.
Presiding Justice Cousins delivered the opinion of the court. Gordon and Leavitt, JJ., concur.
The opinion of the court was delivered by: Cousins
PRESIDING JUSTICE COUSINS delivered the opinion of the court:
The City of Chicago (City) brought an action against Edwin Roman for assaulting Anthony Pupius in violation of section 8--4--080 of the City's municipal code (Chicago Municipal Code § 8--4--080 (1990)), which prohibits the assault of a person age 60 years old or over. The trial court found Roman guilty and sentenced him to 10 days of community service and one year's probation. The City appealed the sentence, which is less than the mandatory minimum sentence provided for in the ordinance.
On August 23, 1994, Anthony Pupius saw Edwin Roman removing various white styrofoam cartons and boxes from a Ryder truck in an alley near his home on 7355 South Whipple Street, Chicago. Pupius approached Roman and told him to stop dumping garbage. Roman swore at Pupius and told him that it was none of his business and that he should leave. Pupius went back to his house and called "911" and then went back outside to the alley with a camera and took pictures of Roman. Roman saw Pupius taking the pictures. Roman picked up a stick and tried to hit Pupius. At trial, Pupius testified that Roman swore at him and called him vulgar names. Roman also told Pupius that he knew where he lived and would come back every night and "take care" of him. Violeta Valaityte, a witness to the incident, testified that, at one point while Pupius was in his house, Roman went up to the door of the house and yelled at Pupius.
Roman testified that he never threatened Pupius. Ricardo Diaz, Roman's codefendant on the dumping charge, testified that he did not see Roman with a stick or chasing Pupius.
City police officers arrested Roman for dumping garbage in violation of section 221b of the Criminal Jurisprudence Act (Health and Safety Public Nuisance) (740 ILCS 55/221 (West 1992)) and for assault against an elderly person under section 8--4--080 of the Municipal Code of Chicago. Chicago Municipal Code § 8--4--080 (1990). Section 8--4--080 provides in relevant part:
"8--4--080 Definitions--Assault defined--Mandatory sentence.
(1) Definitions. The following definitions are applicable strictly in the context of this ordinance:
(A) 'Elderly' refers to any person 60 years of age or older.
(2) There is hereby created the offense of assault against the elderly, developmentally disabled, or handicapped. A person commits assault against the elderly, developmentally disabled, or handicapped when he engages in conduct which places a person as defined above in reasonable apprehension of receiving a battery. Upon conviction of this offense, a mandatory sentence of imprisonment shall be imposed, not to be less than 90 days nor more than 180 days." Chicago Municipal Code § 8--4--080 (1990).
Following the bench trial, Roman was found guilty of the assault charge. Thereafter, Roman presented a motion to declare section 8--4--080 unconstitutional. The trial court denied the motion but questioned the City's power to set a mandatory minimum sentence for the assault offense. The court suggested sua sponte that Roman attack the City's ordinance on that basis. Roman then filed a motion to declare the ordinance unconstitutional. In his motion, Roman asserted that: (1) the mandatory minimum sentence exceeded the City's home rule powers because state law provides for a different penalty; (2) the ordinance usurps the trial judge's authority to impose a proper sentence; (3) the ordinance did not relate to a local concern; and (4) the ordinance violates the guarantees of equal protection found in the United States and Illinois ...