Appeal from the Circuit Court of St. Clair County. No. 09-CF-596 Honorable John Baricevic, Judge, presiding.
The opinion of the court was delivered by: Justice Welch
Decision filed 02/29/12. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
JUSTICE WELCH delivered the judgment of the court, with opinion. Justices Goldenhersh and Chapman concurred in the judgment and opinion.
¶ 1 Following a jury trial, the defendant, Richard Brown, was found guilty of armed robbery with a firearm in violation of section 18-2(a)(2) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/18-2(a)(2) (West 2008)) and not guilty of home invasion (720 ILCS 5/12-11(a)(3) (West 2008)). The trial court sentenced him to 22 years' imprisonment for the armed-robbery conviction to be followed by a 3-year period of mandatory supervised release. On appeal, the defendant argues the trial court erred by applying a 15-year sentence enhancement to his sentence pursuant to section 18-2(b) of the Criminal Code (720 ILCS 5/18-2(b) (West 2010)) based on the use of a firearm during the commission of the robbery. According to the defendant, the 15-year sentence enhancement set forth in section 18-2(b) could not be applied against him because it was declared unconstitutional by the supreme court in People v. Hauschild, 226 Ill. 2d 63, 86-87 (2007). For the reasons that follow, we affirm.
¶ 2 On May 28, 2009, the defendant was charged with one count of home invasion and one count of armed robbery while carrying a firearm for unlawfully entering Brett Worsham's Belleville, Illinois, residence, threatening the use of force while armed with a firearm, and taking property belonging to Worsham. Following a two-day trial, the jury found the defendant guilty of armed robbery with a firearm and not guilty of home invasion.
¶ 3 During the June 2, 2010, sentencing hearing, the State informed the trial court that the applicable sentencing range for the defendant's armed-robbery conviction was 21 to 45 years pursuant to section 18-2(a)(2) of the Criminal Code (720 ILCS 5/18-2(a)(2) (West 2008)) because "[a]rmed robbery carries a fifteen-year enhancement if the offense was committed with the use of a firearm." Defense counsel objected to the use of the sentence enhancement because the State failed to prove beyond a reasonable doubt that the defendant "carried [a firearm] on or about his person." According to defense counsel, the evidence indicated another individual unlawfully entered Worsham's residence with the defendant, and that individual carried the firearm. In response, the State argued as follows:
"18-2, armed robbery statute, subsection (a), 'A person who commits armed robbery when he or she violates Section 18-1,' and subparagraph (2), 'he or she carries on or about his or her person or is otherwise armed with a firearm.' The 'otherwise armed with a firearm,' it's the People's position, takes into account the accountability theory.
The jury was specifically instructed in People's Instruction No. 20 as to the third proposition, that the defendant or one for whose conduct he is legally responsible carried on or about his person a firearm or was otherwise armed with a firearm at the time of the taking.
At the time of the jury instruction conference, I indicated to the Court, and there was no objection by defense counsel that I modified 14-06 to specifically state a firearm rather than a dangerous weapon to encompass the enhancement and to meet the requirements of Apprendi. Therefore, the People believe that the jury properly found the defendant guilty of either carrying a firearm on his person or was otherwise armed sufficient to trigger the fifteen-year enhancement under the armed robbery statute."
¶ 4 Thereafter, the trial court sentenced the defendant to 22 years in prison to be followed by a 3-year period of mandatory supervised release, a sentence that included the 15-year sentence enhancement pursuant to section 18-2(b) of the Criminal Code (720 ILCS 5/18-2(b) (West 2008)).
¶ 5 On June 30, 2010, the defendant filed a pro se motion for reduction of sentence, arguing his sentence was excessive due to (1) his young age, (2) his ability for rehabilitation, (3) the armed-robbery conviction being his first adult offense, and (4) no individuals being harmed during the commission of the armed robbery. On September 2, 2010, the trial court denied the defendant's pro se motion for reduction of sentence, noting it previously considered the mitigating factors mentioned in the defendant's pro se motion during sentencing. The defendant appeals.
¶ 6 The issue for this court's review is whether the 15-year sentence enhancement for the use of a firearm in an armed robbery was applicable to the defendant because the supreme court in Hauschild determined the 15-year enhancement violated the proportionate-penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). First, we note the defendant did not forfeit this issue by his failure to raise it in the trial court. See People v. Christy, 139 Ill. 2d 172, 176 ...