Court of Appeals of Illinois, First District, Third Division
The extended term imposed on defendant for armed robbery was vacated and the cause was remanded for resentencing, since the difference between section 5-5-3.2(b)(1) and section 5-5-3.2(b)(7) of the Unified Code of Corrections arising from the legislature’s failure to include the language “the same or similar class felony” in section 5-5-3.2(b)(7) led to the absurd result that defendant could be subjected to an extended term based on a prior crime he committed as a juvenile, but not be subject to an extended term if his prior conviction was committed when he was an adult; therefore, the omitted language would be read into section 5-5- 3.2(b)(7) for purposes of resentencing pursuant to the purpose of imposing “harsher sentences on offenders whose repeated convictions have shown their resistance to correction.”
Appeal from the Circuit Court of Cook County, No. 10-CR-6488 (01); the Hon. John Joseph Hynes, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Benjamin Wimmer, all of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and Kathryn A. Schierl, Assistant State’s Attorneys, of counsel), for the People.
Panel 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 Barraco'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 Barraco'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 ...