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People v. Lombardi

December 17, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
DANIEL LOMBARDI, APPELLEE. THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
SHAVEZ L. EVANS, APPELLEE. THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
TIMOTHY L. WASHINGTON, APPELLEE. THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
ELIJAHTHOMAS, APPELLEE.



The opinion of the court was delivered by: Justice McMORROW:

Agenda September 9, 1998.

The issue presented in these four consolidated appeals is whether the statutory penalty for armed violence involving a Category I weapon (720 ILCS 5/33A-3 (West 1996)) is unconstitutional when the underlying felony for this offense is possession of a controlled substance or residential burglary. Prior to trial, the circuit court of Kankakee County dismissed the armed violence charges against the defendant in each case on the basis that the penalty for armed violence violates the due process and proportionate penalties provisions of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §§2, 11). The State appealed the dismissal orders directly to this court pursuant to Supreme Court Rule 603 (134 Ill. 2d R. 603). We hold that the penalty for armed violence predicated on possession of a controlled substance while armed with a Category I weapon is not unconstitutional. However, we determine that the penalty for armed violence predicated on residential burglary while armed with a Category I weapon violates the proportionate penalties clause.

BACKGROUND

Causes Nos. 83810 and 83952

In cause No. 83810, defendant Daniel Lombardi was charged by indictment with multiple offenses stemming from his alleged October 6, 1995, sale of a controlled substance to an undercover police officer while carrying a handgun in his jacket pocket. Among the charges included in the indictment was one count of armed violence predicated on possession of a controlled substance while armed with a Category I weapon (see 720 ILCS 5/33A-2; 570/402(c) (West 1994)). Prior to trial, Lombardi moved to dismiss the armed violence count on the basis that the penalty for this offense violates the proportionate penalties clause of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §11), as well as the due process provisions of both state and federal constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2).

In cause No. 83952, an indictment charged defendant Elijah Thomas with armed violence, possession of a controlled substance, and unlawful use of a weapon. According to the allegations of the indictment, on April 7, 1997, Thomas was found in possession of a controlled substance while armed with a handgun. Like Lombardi, he filed a pretrial motion to dismiss his armed violence charge, which was also predicated on possession of a controlled substance while armed with a Category I weapon (see 720 ILCS 5/33A-2; 570/402(c) (West 1996)). Thomas asserted that the penalty for this offense is unconstitutionally disproportionate.

On July 29, 1997, the circuit court granted Lombardi's and Thomas' motions and dismissed the armed violence charges against them. In its written order, the circuit court compared armed violence (possession of a controlled substance) while armed with a Category I weapon with other offenses involving the use of dangerous weapons. The court found that armed violence (possession of a controlled substance) is a less serious offense than aggravated battery of a police officer with a firearm or aggravated criminal sexual assault because these offenses are inherently violent, whereas armed violence (possession of a controlled substance) does not necessarily involve violence. After noting that the 15- to 30- year penalty for the armed violence offense (720 ILCS 5/33A-3(a) (West 1996); 730 ILCS 5/5-8-1(a)(3) (West 1996)), is greater than the penalty for aggravated battery of a police officer with a firearm (720 ILCS 5/12-4.2 (a)(2), (b) (West 1996)), or aggravated criminal sexual assault when a dangerous weapon is used (720 ILCS 5/12-14 (a)(1), (d) (West 1996); 730 ILCS 5/5-8-1(a)(3) (West 1996)),*fn1 the circuit court concluded that penalty for armed violence based on possession of a controlled substance while armed with a Category I weapon violates the due process and proportionate penalties provisions of the Illinois Constitution.

Causes Nos. 83950 and 83951

In the two other cases consolidated for review, the circuit court also dismissed the armed violence charges against defendants prior to trial. In causes Nos. 83950 and 83951, a joint indictment alleged that defendants Shavez L. Evans and Timothy L. Washington committed residential burglary on December 7, 1996, while armed with a handgun. The indictment included a charge of armed violence predicated on residential burglary while armed with a Category I weapon (720 ILCS 5/19-3 (a), 33A-2 (West 1996)). Evans and Washington moved for dismissal of the armed violence charge, arguing that the penalty for this offense violates the proportionate penalties and due process provisions of the Illinois Constitution of 1970.

On August 18, 1997, the circuit court dismissed the armed violence charges against Evans and Washington. In accordance with its decision in Lombardi's and Thomas' cases, the circuit court concluded that the penalty for armed violence (residential burglary) involving a Category I weapon is disproportionate because this offense is "nonviolent," yet it results in a greater penalty than provided for violent offenses, such as home invasion.

In each defendant's case, the State appealed the circuit court's order directly to this court. 134 Ill. 2d R. 603. We granted the State's motion to consolidate the cases for purposes of review.

ANALYSIS

Statutes are presumed constitutional, and the party bringing a constitutional challenge to a statute has the burden of clearly establishing a constitutional violation. People v. Miller, 171 Ill. 2d 330, 333 (1996). In this case, defendants*fn2 argue that the penalty for the armed violence charges alleged in their indictments violates article I, section 2, of the Illinois Constitution of 1970, which 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." Ill. Const. 1970, art. I, §2. In addition, they contend that the penalty for these charges violates article I, section 11, which is commonly known as the proportionate penalties clause. This clause provides in relevant part: "All penalties shall be determined *** according to the seriousness of the offense ***." Ill. Const. 1970, art. I, §11.

The constitution empowers the legislature to "declare and define conduct constituting a crime and to determine the nature and extent of punishment for it." People v. Steppan, 105 Ill. 2d 310, 319 (1985). The legislature is "more aware of the evils confronting our society and therefore is more capable of measuring the seriousness of various offenses." People v. Koppa, 184 Ill. 2d ___ (1998). For these reasons, courts are ...


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