Appeal from the Circuit Court of Johnson County. No. 98-CF-27 Honorable James R. Williamson, Judge, presiding.
The opinion of the court was delivered by: Justice Hopkins
Robert A. Wells (defendant) appeals from a judgment of conviction entered upon a jury verdict of guilty of the offense of armed violence (720 ILCS 5/33A-2 (West 1998)). The court sentenced defendant to 11 years' imprisonment. Defendant argues that his trial counsel provided ineffective assistance when he failed to offer instructions giving the jury the option of finding defendant guilty of armed violence with a bludgeon, which is a class 2 felony, rather than with a shotgun, which is a class X felony. Defendant also argues that he is entitled to a new sentencing hearing because the statute under which he was convicted has been held unconstitutional. We affirm defendant's conviction, we reverse his sentence, and we remand for a new sentencing hearing.
The charges against defendant stem from a March 8, 1998, incident in which defendant was alleged to have used a shotgun to severely beat the victim, James K. Goodpasture. Defendant was charged with armed violence predicated upon the offense of aggravated battery causing great bodily harm, attempted armed robbery, and aggravated battery causing great bodily harm. Prior to defendant's jury trial, the State nol-prossed the attempted armed robbery charge.
The evidence presented at the trial is not disputed. Witnesses claimed that defendant used his fists and the butt end of a shotgun to severely beat Goodpasture. The State introduced photographs of the shotgun and the victim. In a statement to police, defendant admitted that he beat Goodpasture with the shotgun.
The jury was instructed that "a person commits the offense of armed violence when he commits the offense of Aggravated Battery while he carries on or about his person or is otherwise armed with a shotgun." The jury was also instructed that in order to sustain the charge of armed violence, the State would have to prove (1) that defendant committed aggravated battery and (2) that when he committed aggravated battery, he was carrying a shotgun on or about his person or was otherwise armed with a shotgun.
The jury found defendant guilty of armed violence and aggravated battery, but the trial court did not enter conviction on the aggravated battery charge, since it is a lesser-included offense of armed violence. The court noted that the armed violence count carried a minimum sentence of 10 years' imprisonment. On November 4, 1998, the court sentenced defendant to a term of 11 years' imprisonment.
Defendant first argues that his attorney was ineffective for failing to offer an instruction informing the jury that it could convict defendant of armed violence using a bludgeon rather than using a shotgun, since a conviction for armed violence with a bludgeon is a class 2 felony, but armed violence with a shotgun is a class X felony. Defendant argues that since he used the shotgun as a bludgeon, the jury should have been allowed to convict him of the lower-category offense of armed violence with a bludgeon. This argument fails because it is contrary to the plain words and the legislative intent of the armed violence statutes.
Interestingly, the State concedes a portion of this argument, although that concession is based upon a faulty interpretation of the statutes. The State agrees with defendant that after defendant's conviction and sentencing, the Illinois Supreme Court issued its decision in People v. Cervantes, 189 Ill. 2d 80 (1999), ruling that Public Act 88-680, popularly known as the "Safe Neighborhoods Law," effective January 1, 1995 (amending 720 ILCS 5/33A-1, 33A-3 (West 1998)), violated the single-subject clause of the Illinois Constitution (Ill. Const. 1970, art. IV, §8(d)). The State agrees with defendant that his conviction must be reduced to a class 2 felony and that he is entitled to a new sentencing hearing, but the basis of State's argument is the unconstitutionality of the amendment to the statutes, rather than defendant's contention that a shotgun should be categorized as a bludgeon when it is used that way. Both defendant and the State are wrong.
The effect on defendant's conviction and sentence as a result of the ruling in Cervantes is that the law in force prior to the unconstitutional amendment controls.
"The effect of enacting an unconstitutional amendment to a statute is to leave the law in force as it was before the adoption of the amendment." People v. Gersch, 135 Ill. 2d 384, 390 (1990).
When a statute is held unconstitutional, it is void ab initio, as if the unconstitutional law were never enacted. Gersch, 135 Ill. 2d at 390. Thus, when we consider the issue in the case at bar, i.e., what is the effect of the unconstitutionality of the amendment to the armed violence statutes, our first task is to ascertain the law prior to the unconstitutional amendment.
At the time of defendant's trial and sentencing, the legislature defined one element of armed violence as follows: "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 I, Category II, or Category III weapon." 720 ILCS 5/33A-1(a) (West 1998). Prior to the enactment of Public Act 88-680, the statute defined this element of armed violence in ...