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People v. Koppa

October 22, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT, V. ROBERT KOPPA, APPELLEE.


The opinion of the court was delivered by: Justice Bilandic

Agenda 13-May 1998.

Defendant, Robert Koppa, was charged by indictment in the circuit court of Cook County with four counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(a)(1), (a)(2) (West 1996)), two counts of aggravated kidnapping (720 ILCS 5/10-2(a)(4), (a)(5) (West 1996)), and two counts of armed violence (720 ILCS 5/33A-2 (West 1996)). The indictment alleges that on July 13, 1996, defendant, while displaying a knife with at least a three-inch blade, kidnapped and committed acts of sexual misconduct upon the victim.

On April 4, 1997, defendant filed pretrial motions to dismiss the armed violence counts. The circuit court granted defendant's motions and dismissed the two counts of armed violence. The circuit court found that the armed violence counts violated the proportionate penalties clause of the Illinois Constitution of 1970 because those counts required proof of the same elements as the other charged offenses, yet provided for a greater penalty. The court also found that the armed violence counts improperly constituted double enhancement because the factor of a weapon was used twice. The State filed a notice of appeal from the circuit court's order in the appellate court. The appellate court subsequently granted the State's motion to transfer the appeal to this court. The State's appeal from the circuit court's order is therefore before this court. 134 Ill. 2d R. 603. For the reasons that follow, we reverse the order of the circuit court.

The issues in this case are whether the armed violence charges against defendant violate the proportionate penalties clause of the Illinois Constitution of 1970 and whether they constitute impermissible double enhancement.

The State argues that the circuit court erroneously dismissed the two armed violence counts, which are herein referred to as counts VII and VIII. The State contends that the armed violence statute, as applied in the instant case, does not violate the proportionate penalties clause and that the armed violence charges are not the product of double enhancement.

Count VII states that defendant committed the offense of armed violence in that "he, while armed with a dangerous weapon, to wit: a knife with a blade of at least three inches in length, committed a felony defined by Illinois state law, to wit: aggravated criminal sexual abuse in violation of chapter 720, act 5, section 33A-2/I/12-16(a)(2)." Section 12-16(a)(2) of the Criminal Code of 1961 provides that a defendant commits aggravated criminal sexual abuse if he commits criminal sexual abuse and causes bodily harm to the victim. 720 ILCS 5/12-16(a)(2) (West 1996). The circuit court found count VII disproportionate when compared to counts I through IV, which charged defendant with aggravated criminal sexual abuse.

Count VIII states that defendant committed the offense of armed violence in that "he, while armed with a dangerous weapon, to wit: a knife with a blade of at least three inches in length, committed a felony defined by Illinois state law, to wit: aggravated kidnapping in violation of chapter 720, act 5, section 33A-2/I/10-2(a)(4)." Section 10-2(a)(4) of the Criminal Code defines aggravated kidnapping as the commission of kidnapping while concealing identity. 720 ILCS 5/10-2(a)(4) (West 1996). The circuit court found count VIII disproportionate to counts V and VI, which charged defendant with aggravated kidnapping.

We begin our analysis with the language of the statutes at issue. The armed violence statute provides, in pertinent part:

"§ 33A-1. Definitions.

(a) `Armed with a dangerous weapon'. A person is considered armed with a dangerous weapon *** when he or she carries on or about his or her person or is otherwise armed with a *** Category II *** weapon.

(b) *** A Category II weapon is any *** knife with a blade of at least 3 inches in length ***." 720 ILCS 5/33A-1 (West 1996).

"§33A-2. Armed violence-Elements of the offense. A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law." 720 ILCS 5/33A-2 (West 1996).

"§33A-3. Sentence.

***

(a-5) Violation of Section 33A-2 with a Category II weapon is a Class X felony for which the defendant shall be sentenced to a minimum term of imprisonment of 10 years." 720 ILCS 5/33A-3 (West 1996). The unextended sentence for armed violence committed with a category II weapon is a term of 10 to 30 years' imprisonment. 720 ILCS 5/33A-3(a-5) (West 1996); 730 ILCS 5/5-8-1(a)(3) (West 1996).

The aggravated criminal sexual abuse statute provides, in relevant part:

"§12-16. Aggravated Criminal Sexual Abuse.

(a) The accused commits aggravated criminal sexual abuse if he or she commits criminal sexual abuse as defined in subsection (a) of Section 12-15 of this Code and any of the following aggravating ...


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