Appeal from the Circuit Court of Cook County, Illinois. No. 04 CR 23182 (01) Honorable Stanley J. Sacks, Judge Presiding.
The opinion of the court was delivered by: Justice Joseph Gordon
JUSTICE JOSEPH GORDON delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Howse concurred in the judgment and opinion.
¶ 1 Defendant Bobby Harris appeals from an order of the circuit court of Cook County summarily dismissing his petition for relief under the Post-Conviction Hearing Act (Act). 725 ILCS 5/122--1 et seq. (West 2004). Defendant contends that his convictions are unconstitutional for violating the proportional penalties clause of the Illinois Constitution and the equal protection clause of the United States Constitution, and that his mittimus should be corrected to reflect two additional days of credit for time served in custody prior to sentencing and the correct statute under which he was convicted.
¶ 3 The record shows that defendant was arrested on September 10, 2004, and subsequently charged with armed robbery in that he, while armed with a dangerous weapon, took a gold ring, an earring, a wallet and United States currency from Ronald Whitney by the threat of force. Defendant was also charged with six counts of aggravated kidnaping, in that he knowingly by the use of force or threatened use of force carried Ronald Whitney from one place to another with the intent to secretly confine him against his will and sought to obtain ransom. Following a jury trial, defendant was convicted of armed robbery while armed with a firearm and two counts of aggravated kidnaping while armed with a firearm. Subsequently, on July 7, 2006, the trial court sentenced defendant to 20 years' imprisonment for armed robbery and 20 years for aggravated kidnaping, to run concurrently.
¶ 4 At the sentencing hearing, the State noted that defendant was convicted of two Class X offenses and was, therefore, eligible for a sentence of between 6 and 30 years for each conviction. The State further requested the trial court to apply a 15-year sentence enhancement to each sentence because defendant was armed with a firearm during the commission of the offenses. While the trial court took into account that defendant's felonies were Class X offenses, it declined to add the 15-year enhancement to either of his sentences because the State had failed to give defendant advance notice that it would be asking for an additional 15 years if defendant was found guilty.
¶ 5 On direct appeal, defendant argued that the trial court violated his right to a fair trial by tendering confusing jury instructions with regard to the charge of aggravated kidnaping, and alternatively, that all but one of his convictions for aggravated kidnaping should be vacated under the one-act, one-crime rule. This court affirmed defendant's convictions for armed robbery and for one count of aggravated kidnaping while armed with a firearm, but vacated his remaining convictions for aggravated kidnaping pursuant to the one-act, one-crime rule. People v. Harris, No. 1--06-- 098 (2008) (unpublished order under Supreme Court Rule 23). Pursuant to that order, the trial court issued a corrected mittimus on December 19, 2008.
¶ 6 Following that affirmance, defendant filed the pro se post-conviction petition at bar. Defendant argued in that petition that the aggravated kidnaping statute under which he was sentenced violated the proportionate penalties clause of the Illinois Constitution. Defendant maintained that the offense of aggravated kidnaping has the same purpose as the offense of armed violence predicated on unlawful restraint but carries with it a higher sentence, and that it has the same elements but a harsher sentence than armed robbery and aggravated kidnaping for ransom. Further, he repeated the argument made in his direct appeal that the trial court erred in tendering confusing jury instructions, for which he then raised the related claim of ineffective assistance of counsel for failing to object to those instructions. Additionally, defendant argued that his right to a trial by jury was violated when he was subjected to the truth-in-sentencing law. He contended that the truth-in-sentencing provision under which he was sentenced was triggered by the charge of aggravated kidnaping while armed with a firearm, but the jury was never asked to determine whether, in fact, a firearm was used. Lastly, defendant claimed that he was denied effective assistance of appellate counsel, who failed to challenge his sentence.
¶ 7 After a timely review of defendant's post-conviction petition, the circuit court summarily dismissed it as frivolous and patently without merit. In doing so, the court found that defendant's claim that his conviction violated the proportionate penalties clause lacked merit because such a claim cannot be established merely because two offenses have the same purpose, as is the case with aggravated kidnaping and armed violence predicated on unlawful restraint. Rather, to establish such a claim for a violation of the proportionate penalties clause, it must be demonstrated that two offenses have identical elements. Accordingly, the court found that since aggravated kidnaping and armed robbery do not have identical elements, defendant's argument that they have disproportionate sentences was meritless. Likewise, it noted that the proportionate penalties clause does not apply to a comparison between aggravated kidnaping predicated on the use of a firearm and aggravated kidnaping predicated on ransom, the elements of which are not identical. In addition, the court determined that defendant's challenge to the jury instruction and related ineffective assistance of counsel claim had been raised on direct appeal and were, therefore, barred by res judicata. Further, the court explained that defendant's right to trial by jury was not violated when he was subjected to the truth-in-sentencing law because that law is not a sentencing enhancement which must be submitted to a jury and proven beyond a reasonable doubt. It noted that this court has previously rejected the argument made by defendant because the truth-in-sentencing statute does not change the maximum underlying penalty prescribed. Accordingly, the court rejected defendant's claims of ineffective assistance of trial and appellate counsel because if defendant's trial counsel had objected to the jury instructions, or if appellate counsel had challenged the validity of the truth-in-sentencing law, those arguments would have been rejected. Defendant subsequently filed a motion to reconsider the denial of his post-conviction petition, which the circuit court denied.
¶ 8 On appeal from that order, two separate briefs were filed on behalf of defendant. On September 9, 2010, the State Appellate Defender, who was assigned to represent defendant on this appeal, filed a brief on behalf of defendant, which challenged only the amount of credit awarded toward defendant's sentence for presentencing incarceration. On November 2, 2010, this court entered an order granting defendant's motion to file a pro se supplemental brief, which he filed on November 12, 2010. In that supplemental brief, defendant contends that his convictions for aggravated kidnaping and armed robbery are unconstitutional because they violate the proportionate penalties clause of the Illinois Constitution. In addition, defendant contends that the application of the truth-in-sentencing statute with regard to his conviction for aggravated kidnaping violates both the proportionate penalties clause and his right to equal protection. He also challenges the accuracy of the statutory citation for his conviction for aggravated kidnaping as it appears in his mittimus.
¶ 10 We first address defendant's contention that each of his convictions violate the proportionate penalties clause of the Illinois Constitution. With respect to his conviction for armed robbery while armed with a firearm, defendant maintains that his conviction violates the proportionate penalties clause because it has the same elements as the offense of armed violence predicated on robbery, but carries a harsher sentence. Similarly, with regard to his conviction for aggravated kidnaping while armed with a firearm, defendant contends that his conviction violates that clause because it has identical elements as, but a greater sentence than, armed violence predicated on kidnaping. According to defendant, each of the offenses for which he was convicted carries a 15-year enhancement, which makes the sentencing range for those crimes 21 to 45 years' imprisonment, while armed violence predicated on robbery or kidnaping carries a lesser term of 15 to 30 years. Defendant maintains that the appropriate relief for these violations of the proportionate penalties clause is a reversal of both his convictions, a reduction of the offense of armed robbery while armed with a firearm to simple robbery, a reduction of the offense of aggravated kidnaping to simple kidnaping, and a remand of the cause for resentencing.
¶ 11 The State responds that defendant has forfeited those claims by failing to raise them on direct appeal. We note that defendant's claims were not, in fact, raised on direct appeal. Further, although defendant did raise a proportionate penalties contention in his post-conviction petition, that contention was based on a comparison of offenses that are different from those which serve as the basis for comparison in this appeal. Instead of being based on a comparison between aggravated kidnaping and armed violence predicated on kidnaping, which serves as the basis of his proportionate penalties contention in this appeal, defendant, in his post-conviction petition, compared aggravated kidnaping while armed with a firearm to armed violence predicated on unlawful restraint, armed robbery and aggravated kidnaping for ransom. However, regardless of whether defendant's present challenges were, in fact, raised prior to this appeal, the unconstitutionality of a statute may be raised at any time, including the appeal from the dismissal of a post-conviction petition. People v. Ford, 352 Ill. App. 3d 55, 58, 815 N.E.2d 872, 875 (2004) (citing People v. Wagener, 196 Ill. 2d 269, 279-80, 752 N.E.2d 430, 438 (2001)); see also People v. English, 334 Ill. App. 3d 156, 168-69, 778 N.E.2d 218, 229-30 (2002) (noting that while a claim that ...