Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County No. 10 CR 6488 (01) Honorable John Joseph Hynes, Judge Presiding.
JUSTICE MASON delivered the judgment of the court, with opinion. Justices Hyman and Pierce concurred in the judgment and opinion.
¶ 1 Defendant Willie Johnson was charged by indictment with 11 counts arising out of the armed robbery of Kevin Moyles in Evergreen Park, Illinois. After a bench trial at which the State proceeded on 5 of the 11 counts, Johnson was convicted of armed robbery while armed with a firearm, unlawful use of a weapon by a felon, and aggravated battery/great bodily harm.
¶ 2 Following a sentencing hearing, the trial court sentenced Johnson to 50 years for armed robbery while armed with a firearm after finding, sua sponte, that Johnson was eligible for extended-term sentencing pursuant to section 5-5-3.2(b)(7) of the Unified Code of Corrections (Code) (730 ILCS 5/5-5-3.2(b)(7) (West 2010)). The court sentenced Johnson to an additional 15 years as a mandatory firearm enhancement, resulting in a total of 65 years. The trial court also sentenced Johnson to two five-year terms for unlawful use of a weapon by a felon and aggravated battery/great bodily harm. These latter terms were to run concurrently with each other but consecutive to the 65 years.
¶ 3 On appeal, Johnson contends his sentence of 65 years for armed robbery while armed with a firearm should be vacated because: (1) the trial court erred in interpreting section 5-5-3.2(b)(7) of the Unified Code of Corrections to impose a harsher sentence on those with prior juvenile records than those with comparable adult convictions; (2) section 5-5-3.2(b)(7) of the Code is unconstitutional both on its face and as applied to him; or (3) the sentence was excessive in light of the mitigating factors he adduced at his sentencing hearing. For the reasons that follow, we vacate Johnson's sentence and remand for resentencing.
¶ 4 BACKGROUND
¶ 5 On December 16, 2009, Johnson robbed Kevin Moyles at gunpoint in the back of Barraco's Pizzeria & Restaurant in Evergreen Park. At the time of the robbery, Moyles, who was in the middle of his shift as a pizza deliveryman, was placing food in his car, which was parked in the alley behind Barraco's. As he moved to close the rear car door, he saw two individuals, one of whom he later identified as Johnson, approach him quickly from the front of his car. Johnson put his arm around Moyles' neck and held a gun to his head while his accomplice began rifling through Moyles' car. Johnson ordered Moyles to lie on the ground. When Moyles complied, Johnson hit him on top of the head with his gun. Johnson moved to hit him a second time, but Moyles was looking up at Johnson and was able to deflect the blow with his hands. Johnson then demanded that Moyles empty his pockets and hand over his keys. After Moyles did so, Johnson informed him that they were going for a walk. As they began to walk, Moyles "ripped" away from Johnson and ran back to Barraco's, where the police were contacted.
¶ 6 Officer John Murphy of the Evergreen Park police department, who was on patrol with his partner that evening, received a communication that two black males had committed an armed robbery of a deliveryman at Barraco's and were at large. The officers were in the vicinity of the restaurant when they saw two black men standing on the street corner. As they exited their car and approached the men, the two fled in opposite directions. Officer Murphy initially gave chase to one individual, but lost sight of him.
¶ 7 A K-9 unit was called and Evergreen Park police captain Eiseneis and another officer, began a yard-to-yard search of the area in the direction the males had fled. One man was found two blocks from Baracco's trying to secrete himself by the side of a house, and when Moyles was called to the scene, he identified the man as the one who had been going through his car. Captain Eiseneis and his fellow officer continued patrolling to look for the second suspect, whom they found hiding in a dumpster across the parking lot from Baracco's. Moyles was summoned to that location as well and made a positive identification of Johnson as the man who struck him with a gun. On his person, Johnson had a pack of cigarettes and a cell phone. Moyles was not able to identify the cell phone as his, but the cigarettes were the brand that he had in his coat pocket.
¶ 8 Officer Daniel Trujillo was called to the area near Barraco's to recover additional evidence, which included keys, a coat, a wallet, and some change. When the evidence was inventoried at the police station, Moyles identified all of it as belonging to him.
¶ 9 Two days later, a gun was recovered in the gutter of a home approximately one block away from Baracco's. The owner of the home testified she had heard a commotion near the garbage cans by her house on the night of the robbery. Although no prints were recovered from the weapon, Moyles testified that it looked like the gun he saw the night of the robbery.
¶ 10 After hearing closing arguments, the trial court took the matter under advisement and ultimately found Johnson guilty of armed robbery while armed with a firearm, a Class X felony, unlawful use of a weapon by a felon, a Class 2 felony, and aggravated battery, a Class 3 felony. The court ordered a presentence investigation, which disclosed that Johnson had been placed in foster homes from the age of five or six because of his parents' drug use. At some of these homes, he was beaten and abused. Johnson was eventually adopted at the age of 11. From that time on, Johnson regularly drank alcohol, smoked marijuana, and took ecstasy. As a juvenile, Johnson was adjudicated delinquent of the offenses of burglary in 2004 and residential burglary in 2005. Then, as an adult, he was convicted of possessing a stolen vehicle, a Class 2 felony, residential burglary, a Class 1 felony, and criminal trespass to vehicle, a misdemeanor.
¶ 11 The State sought the maximum sentence for his offenses, but did not quantify what that amounted to. The court then determined sua sponte that an extended-term sentence was authorized pursuant to section 5-5-3.2(b)(7), reasoning that because Johnson had been adjudicated delinquent of residential burglary, a Class 1 felony, in 2005, he was eligible for an extended-term Class X sentence for armed robbery of between 30 and 60 years. The court ultimately sentenced Johnson to 50 years in prison for armed robbery while armed with a firearm, with an additional 15-year firearm enhancement, ...