Appeal from Circuit Court of Champaign County Nos. 01CF165 99CF2047 Honorable Thomas J. Difanis, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann
In June 2000, defendant, Mark Anthony Baker, pleaded guilty to one count of attempt (home invasion) (720 ILCS 5/8-4(a), 12-11 (West 1998)) (Champaign County case No. 99-CF-2047). The trial court later sentenced him to 36 months' probation. In October 2000, the State filed a petition to revoke defendant's probation, and following a May 2001 hearing, the court granted the State's petition.
Later in May 2001, a jury found defendant guilty of aggravated kidnaping (in that he committed the offense of kidnaping while armed with a firearm) (720 ILCS 5/10-2(a)(6) (West 2000)), two counts of armed violence (720 ILCS 5/33A-2(a) (West 2000)), and unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2000)) (Champaign County case No. 01-CF-165).
In June 2001, the trial court sentenced defendant to 40 years in prison for aggravated kidnaping (which included an automatic 15-year enhancement for being armed with a firearm (720 ILCS 5/10-2(b) (West 2000))), 30 years for one count of armed violence, and five years for unlawful possession of a weapon by a felon, with those sentences to be served concurrently. (The court determined that the two convictions for armed violence merged into one and, accordingly, imposed sentence upon only one count.) The court also resentenced defendant to 10 years in prison for attempt (home invasion), with that sentence to be served consecutively to his other sentences.
Defendant appeals, arguing that (1) the 15-year enhancement for aggravated kidnaping violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11); and (2) the trial court considered an improper factor in sentencing. We affirm in part, vacate in part, and remand for further proceedings.
In January 2001, the State charged defendant with (1) two counts of armed violence; (2) unlawful possession of a weapon by a felon; and (3) aggravated kidnaping, in that defendant, "in committing the offense of [k]idnapping, ***, knowingly and secretly confined [M.S.] against her will, while armed with a firearm, a handgun." Although aggravated kidnaping is classified generally as a Class X felony, subsection (b) of the aggravated kidnaping statute provides that when an individual commits the offense of kidnaping while armed with a firearm, "15 years shall be added to the term of imprisonment imposed by the court." 720 ILCS 5/10-2(b) (West 2000).
In May 2001, defendant moved to dismiss the aggravated kidnaping charge on the grounds that the 15-year enhancement violates (1) the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11); (2) the separation of powers clause of the Illinois Constitution (Ill. Const. 1970, art. I, §1); and (3) the equal protection and due process clauses of the federal and state constitutions. The trial court denied defendant's motion, and the case proceeded to trial.
The evidence presented at defendant's jury trial showed the following. Around 3 a.m. on January 24, 2001, defendant, who was one of M.S.'s long-time friends, showed up unannounced at her apartment. After talking for about 20 minutes, defendant asked M.S. to have sex, and she told him no because she had a serious boyfriend. Shortly thereafter, defendant walked into the kitchen and came back out wearing gloves and holding a handgun. When M.S. felt the handgun against her head, she grabbed the barrel and pointed the gun at the floor. She then tried to run, but defendant grabbed her and told her that if she yelled, he would kill her and her son, who was sleeping upstairs. Defendant taped her hands together but later untaped them so that she could use the bathroom. Defendant then took M.S. into the bedroom, put a sock in her mouth, and placed tape over her mouth. At that point, he emptied the bullets out of his gun and told M.S. that he would not hurt her. He then told her that he was sorry, she walked him to the door, and he left.
The police arrested defendant shortly thereafter and recovered a handgun on a rooftop near M.S.'s apartment. The parties stipulated that a print found on the handgun matched defendant's fingerprints.
Defendant testified and denied committing the offenses.
Based on this evidence, the jury convicted defendant of all charges. The trial court later sentenced him as stated. In sentencing defendant, the court stated, in pertinent part, as follows:
"The [c]court heard the testimony of [M.S.] [Defense counsel] has commented on that testimony, and, again, this is a situation where the defendant has decided to prey upon a young woman who he knew, *** who went to school with him. And unlike the situation in [Champaign County case No.] 99-CF-2047[,] where he was armed ...