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People v. Espinoza

October 22, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT, V.CARLOS ESPINOZA, APPELLEE.


The opinion of the court was delivered by: Justice McMORROW

Agenda 14-May 1998.

The defendant, Carlos Espinoza, was charged with, inter alia, two counts of armed violence and one count of aggravated battery. Prior to trial, the circuit court dismissed the aggravated battery and armed violence counts, holding that the penalties for the charged offenses violate the proportionate penalties clause of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §11). The State appealed to the appellate court. 145 Ill. 2d R. 604(a)(1). On its own motion, the appellate court transferred the cause to this court, pursuant to Supreme Court Rule 365 (155 Ill. 2d R. 365). For the reasons which follow, we reverse the judgment of the circuit court.

Background

On October 28, 1996, a five-count indictment was filed in the circuit court of Kane County charging defendant with one count of attempted first degree murder, two counts of armed violence, one count of mob action, and one count of aggravated battery. All five counts of the indictment stem from the same incident in which defendant allegedly struck an individual with a bottle while in a public bar.

Count II of the indictment, which charged defendant with armed violence, alleges that defendant committed aggravated battery (public way) (720 ILCS 5/12-4(b)(8) (West 1994)) while armed with a category II dangerous weapon, a bottle. See 720 ILCS 5/33A-1 (West 1994). Specifically, count II alleges that "defendant, while armed with a dangerous weapon, a bottle, a Category II weapon, performed acts prohibited by Illinois Compiled Statutes, Chapter 720, Act 5, Section 12-4(b)(8), Aggravated Battery (Public Way), in that in committing a battery, in violation of Illinois Compiled Statutes, Chapter 720, Act 5, Section 12-3(a)(1), without legal justification and while Carlos Espinoza was at Foxhole Pub, a public place, knowingly caused bodily harm to [the victim], in that he struck [the victim] with a bottle."

Count III of the indictment, which also charged defendant with armed violence, repeats the language of count II verbatim, except that the bottle is characterized as a category III weapon, rather than as a category II weapon. See 720 ILCS 5/33A-1 (West 1994). Count V of the indictment, which charged defendant with aggravated battery (720 ILCS 5/12-4(b) (West 1994)), alleges that defendant, while "at Foxhole Pub, a public place, caused bodily harm to [the victim], in that he struck [the victim] with a bottle."

On February 13, 1997, defendant filed a motion to dismiss counts II and III of the indictment. In his motion, defendant contended that the armed violence and aggravated battery counts of the indictment "represent substantially identical offenses, alleging that the Defendant struck [the victim] with a bottle, thereby causing him bodily harm." Defendant also noted that armed violence, whether committed with a category II or a category III weapon, is punished more severely than aggravated battery. See 720 ILCS 5/33A-3 (West 1994); 720 ILCS 5/12-4(e) (West 1994). Defendant argued that because the armed violence and aggravated battery offenses charged in the indictment are identical, yet have different punishments, the offenses "carry disproportional penalties, and are thus violative of the proportionate penalties clause" of the Illinois Constitution (Ill. Const. 1970, art. I, §11).

Following a hearing, the circuit court ordered the dismissal of the aggravated battery and armed violence counts of the indictment. The circuit court concluded that "the issues in this case fall squarely within the decision[s]" of People v. Christy, 139 Ill. 2d 172 (1990), and People v. Lewis, 175 Ill. 2d 412 (1996), and, therefore, that the penalties for the offenses charged in counts II, III and V are unconstitutionally disproportionate. The State appealed the circuit court's order to the appellate court. 145 Ill. 2d R. 604(a)(1). On March 5, 1998, the appellate court entered an order, on its own motion, transferring the cause to this court pursuant to Supreme Court Rules 365 and 603 (155 Ill. 2d R. 365; 134 Ill. 2d R. 603). Citing to Lewis, 175 Ill. 2d at 414, People v. Davis, 177 Ill. 2d 495, 497-98 (1997), and People v. Miller, 171 Ill. 2d 330, 331 (1996), the appellate court observed that "[w]here, as here, the trial court rules that statutory penalties violate the proportionate penalties provision, the appeal is taken directly to the Supreme Court under Rule 603."

Analysis

Defendant argues that the holdings in Christy and Lewis support the circuit court's decision to dismiss the aggravated and armed violence counts of the indictment. Accordingly, we begin our analysis with a brief Discussion of those decisions.

In Christy, this court considered a challenge to an armed violence conviction brought under the proportionate penalties clause of the Illinois Constitution. That clause provides:

"All penalties shall be determined *** according to the seriousness of the offense ***." Ill. Const. 1970, art. I, §11.

The defendant in Christy was convicted of armed violence predicated on kidnapping while armed with a category I weapon, specifically, a knife with a blade of at least three inches in length. See Ill. Rev. Stat. 1987, ch. 38, par. 33A-1(a). On appeal, the defendant argued that the penalties for armed violence based on kidnapping with a category I weapon and aggravated kidnapping (Ill. Rev. Stat. 1987, ch. 38, par. 10-2(a)(5)) were disproportionate because each offense consisted of the same elements, yet armed violence was punished more severely than aggravated kidnapping. Christy, 139 Ill. 2d at 176-78. This court agreed, stating:

"Upon review of the relevant statutory provisions it is apparent that the commission of kidnapping while armed with a 'knife with a blade of at least 3 inches in length' constitutes both aggravated kidnapping and armed violence. Since the elements which constitute aggravated kidnapping and armed violence are identical, common sense and sound logic would seemingly ...


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