Court of Appeals of Illinois, First District, Fifth Division
Appeal from the Circuit Court of Cook County 04 CR 17327 Honorable James Michael Obbish, Judge Presiding.
JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice Taylor concurred in the judgment and opinion.
¶ 1 Following the summary dismissal of his pro se postconviction petition, defendant Damen Toy argues for the first time on appeal that he has an arguable claim that his sentence violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) and asks this court to remand his petition for second stage proceedings. Specifically, defendant contends that his sentences for aggravated criminal sexual assault with a 15-year firearm enhancement violate the proportionate penalties clause because armed violence based on a sexual assault contains identical elements, but the offenses have different penalties.
¶ 2 Following a jury trial, defendant was found guilty of two counts of aggravated criminal sexual assault and two counts of attempted armed robbery for the June 2004 crimes committed against B.H. and Paul Watkins-Lash. We will discuss the facts as necessary for the issues raised on appeal. For a more detailed discussion of these facts, see People v. Toy, 407 Ill.App. 3D 272 (2011). Prior to trial, defendant informed the court that he wanted to represent himself, which the trial court permitted after questioning defendant about his decision at multiple court dates. .
¶ 3 In the early morning hours of June 27, 2004, B.H. and Watkins-Lash were sitting on the porch of B.H.'s house, located at 2415 W. Pensacola in Chicago. Watkins-Lash went to a nearby gas station to buy cigarettes and walked back to B.H.'s house. B.H. noticed a man walking behind Watkins-Lash. Watkins-Lash rejoined B.H. on the porch. The man walked by the house and then approached them. He asked for a cigarette, which Watkins-Lash gave him along with a lighter. The man left, but returned a short time later. Watkins-Lash stated that the man was "holding a gun cupped in his jacket, like the barrel of the gun. He had the gun out." When asked if there was any doubt in his mind that what the man had was a gun, Watkins-Lash stated, "That was a gun." He said the gun was in front of his face, but pointed down toward the ground. B.H. also testified that the man had a gun. The man then demanded that they give him their money and threatened to kill Watkins-Lash. When they told the man that they did not have any money, he searched through their pockets.
¶ 4 The man then told Watkins-Lash to stay on the porch or he would shoot Watkins-Lash. He took B.H. by her wrist and took her into the gangway between her house and the house next door. He turned her to face the house with her arms up. He told her to remove her pants, but then removed them himself. B.H. testified that the man's penis entered her vagina and his penis also touched her anus, but did not enter it. During the sexual assault, B.H. felt something in the back of her head. She assumed that it was the gun because the man was threatening to kill her.
¶ 5 Eventually, Watkins-Lash left the porch and came around to the gangway. When he saw that B.H. was being sexually assaulted, he yelled at the man. The man stopped and turned to run away. B.H. tried to tackle the man, but he struck her and ran away. They went into B.H.'s house and woke her parents. After being told about the sexual assault, B.H.'s father went outside with a flashlight to look for the assailant. He recovered a key chain with a key from his front yard and turned it over to the police. They called the police and B.H. was taken to Swedish Covenant Hospital.
¶ 6 A police officer testified that B.H. identified defendant from a photo array. Defendant was then arrested. At the time of the arrest, a police officer tried the key recovered from B.H.'s yard and it worked in the doors for defendant's building. Defendant was then placed in a lineup. B.H. identified defendant, but Watkins-Lash did not make an identification. B.H. also identified defendant in court as the man who sexually assaulted her.
¶ 7 The police searched the area between the scene of the crime and defendant's address. They found a Cubs hat and Bulls breakaway pants in a residential garbage can and a blue windbreaker in a dumpster behind a grocery store. These clothes matched a description given to the police by B.H. DNA was recovered from the Cubs hat and it matched defendant's DNA with a reasonable degree of scientific certainty. A cigarette recovered near the crime scene was also tested, but did not match defendant's DNA. The evidence also showed that no semen was present in B.H.'s sexual assault kit.
¶ 8 Additionally, Christopher Palacios, a neighbor of B.H., heard a scuffle outside and looked out of his window. He saw a white person arguing with a black person. He said the black person ran away in a northwest direction. Palacios never identified defendant in a lineup or photo array, but stated on cross-examination that defendant was the man he saw.
¶ 9 Defendant testified on his own behalf. He admitted that the recovered clothes belonged to him, but stated that the clothes were stolen from his gym bag a couple days before the crime. He attempted to present an alibi defense, but the trial court denied his request because he failed to notify the State prior to trial. Defendant presented one witness, Ernest Jones. Jones was defendant's roommate for six years. He stated that he never knew defendant to have a knife, gun or any weapon. He said the police searched their apartment and did not recover a handgun.
¶ 10 At the sentencing hearing, the trial court sentenced defendant to 45 years on the first count of aggravated criminal sexual assault (penis/vagina contact) and 30 years on the second count of aggravated criminal sexual assault (penis/anus contact), to be served consecutively. The sentences included a 15-year add-on because the jury found that defendant was armed with a firearm. The court also imposed two concurrent sentences of 10 years for the two counts of attempted armed robbery, both of which were also to be served concurrently with the sentences for aggravated criminal sexual assault. Defendant received an additional consecutive sentence of six months for contempt of court. Defendant received an aggregate sentence of 75 years and 6 months. Defendant filed a motion to reconsider his sentence, which the trial court denied.
¶ 11 On direct appeal, defendant argued that (1) his waiver of counsel was not valid because the trial court did not give him oral admonishments about the potential range of sentences; (2) his conviction for attempted armed robbery should be reduced to simple robbery because the State failed to prove that he was armed with a "dangerous weapon"; (3) the State failed to prove that defendant possessed a "firearm" within the meaning of the aggravated criminal sexual assault statute (720 ILCS 5/12-14(a)(8) (West 2004)); and (4) defendant was denied the right to a fair sentencing hearing and the right to counsel because the trial court refused to ...