Court of Appeals of Illinois, First District, Fifth Division
Pursuant to its supervisory authority under Supreme Court Rule 615(b)(2), rather than remanding defendant’s case for second-stage postconviction proceedings, the appellate court reversed the dismissal of his postconviction petition claiming that his enhanced sentences for aggravated criminal sexual assault with a firearm violated the proportionate penalties clause because that offense contained the same elements as armed violence predicated on criminal sexual assault, but the armed violence offense had a lesser sentence, and the appellate court then granted the petition, vacated his sentences, and remanded the case for resentencing.
Appeal from the Circuit Court of Cook County, No. 04-CR-17327; the Hon. James Michael Obbish, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Karl H. Mundt, all of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and Sheilah O’Grady-Krajniak, Assistant State’s Attorneys, of counsel), for the People.
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 ...