Court of Appeals of Illinois, First District, Third Division
from the Circuit Court of Cook County.Nos. 10 CR 13998 11 CR
02745 Honorable Timothy J. Joyce, Judge, presiding.
JUSTICE FITZGERALD SMITH delivered the judgment of the court,
with opinion. Presiding Justice Cobbs and Justice Howse
concurred in the judgment and opinion.
FITZGERALD SMITH JUSTICE
1 In this consolidated appeal, defendant Lenvert Debardelaben
appeals from the natural life sentences he received in Cook
County case numbers 10 CR 13998 and 11 CR 02745. On appeal,
defendant contends that his natural life sentences must be
vacated and the causes remanded for resentencing because he
was not subject to sentencing under the Habitual Criminal Act
(Act) (730 ILCS 5/5-4.5-95(a) (West 2010)). Specifically,
defendant contends that his conviction for armed robbery in
case number 86 CR 403 did not contain "the same elements
as an offense now classified in Illinois as a Class X
felony" and, consequently, cannot serve as one of the
prior convictions which rendered him subject to be sentenced
as a habitual criminal. Defendant reasons that armed robbery
in 1986 did not contain the same elements as armed robbery in
2010 because the legislature created new offenses based upon
the type of weapon, i.e., a firearm or dangerous
weapon other than a firearm, used during the commission of
the offense. We affirm.
2 Following a bench trial in case number 11 CR 02745,
defendant was found guilty of aggravated criminal sexual
assault, aggravated kidnapping, and aggravated unlawful
restraint. The State then filed a notice of intent to seek a
sentence of natural life in prison under the Act based upon
defendant's prior convictions for armed robbery in case
number 86 CR 403 and murder in case number 93 CR 21771.
Defendant was subsequently sentenced to life in prison for
the aggravated criminal sexual assault conviction and to a
consecutive life sentence for the aggravated kidnapping
conviction. Defendant then filed a motion to reconsider
sentence. The trial court entered and continued the motion.
3 A bench trial was then held in case number 10 CR 13998.
Defendant was ultimately found guilty of armed robbery and
attempted criminal sexual assault. The State then filed a
notice of intent to seek a sentence of natural life in prison
under the Act based upon defendant's prior convictions
for armed robbery in case number 86 CR 403 and murder in case
number 93 CR 21771.
4 At a subsequent court date, the trial court first heard
argument on the pending motion to reconsider sentence in case
number 11 CR 02745. The court denied the motion to reconsider
sentence. The court then held the sentencing hearing for case
number 10 CR 13998 and sentenced defendant to natural life in
prison for the armed robbery conviction and to a consecutive
15-year sentence for the attempted criminal sexual assault.
This sentence was to be served consecutive to the sentence
imposed in case number 11 CR 02745. That same day, defendant
filed a notice of appeal in each case.
5 Before this court, defendant challenges his sentences in
case numbers 10 CR 13998 and 11 CR 02745, and we have
consolidated his appeals for disposition. On appeal,
defendant contends that his 1986 conviction for armed robbery
cannot serve as one of the convictions rendering him subject
to a life sentence pursuant to the Act because in 1986 the
offense of armed robbery did not contain the same elements as
the offense did in 2010.
6 Defendant acknowledges that he failed to raise this
argument before the trial court. See People v.
Hillier, 237 Ill.2d 539, 544 (2010) (a defendant
forfeits a sentencing issue that he fails to raise in the
trial court through both a contemporaneous objection and a
written postsentencing motion). However, he contends that
this court may still reach his contention on appeal. He first
relies on the exception to forfeiture set out in People
v. Brown, 229 Ill.2d 374, 389-90 (2008), which held that
in those cases where the State's evidence regarding a
defendant's prior convictions "does not support the
inference of eligibility because the evidence, on its face,
demonstrates that [the] defendant's prior convictions do
not meet all of the requirements" of the Act, a
defendant is not prohibited from challenging his sentence on
appeal. He next argues that this court may review his
contention under the plain error doctrine. See People v.
Herron, 215 Ill.2d 167, 178-79 (2005) (a court may
consider an unpreserved error when (1) the evidence was so
closely balanced that the error alone tipped the scales of
justice against the defendant or (2) the error was so serious
that it affected the fairness of the defendant's trial).
Defendant finally contends that he was denied the effective
assistance of counsel when counsel did not raise this
argument before the trial court. We must first determine
whether there was error, that is, whether defendant was
properly subjected to sentencing under the Act.
7 Pursuant to the Act, a defendant is a habitual criminal,
subject to a mandatory life sentence without parole, if he is
convicted of three separate Class X offenses within 20 years,
excluding time in custody. 730 ICLS 5/5-4.5-95(a) (West
2010); People v. Fernandez, 2014 IL App (1st)
120508, ¶ 47. This finding applies to a defendant
"who has been twice convicted in any state or federal
court of an offense that contains the same elements as an
offense now *** classified in Illinois as a Class X felony,
criminal sexual assault, aggravated kidnapping, or first
degree murder, and who is thereafter convicted of a Class X
felony, criminal sexual assault, or first degree murder,
committed after the 2 prior convictions." 730 ILCS
5/5-4.5-95(a)(1) (West 2010). The provision does not apply
unless certain requirements are met, including that the
"third offense was committed within 20 years of the date
that judgment was entered on the first conviction." 730
ILCS 5/5-4.5-95(a)(4)(B) (West 2010). A defendant who is
determined to be a habitual criminal "shall be sentenced
to a term of natural life imprisonment." 730 ILCS
5/5-4.5-95(a)(5) (West 2010).
8 Here, defendant contends that one of the offenses used to
render him subject to sentencing under the Act did not have
the "same elements as an offense now *** classified in
Illinois as a Class X offense." See 730 ILCS
5/5-4.5-95(a)(1) (West 2010). He argues that in 1986 the
offense of armed robbery did not have the same elements as
the offense of armed robbery did in 2010. Specifically, he
argues that the fact that the statute was changed to
differentiate amongst the types of weapons used during the
commission of the offense changed the elements of the offense
of armed robbery and created new offenses.
9 Initially, we note that "courts have rejected a
formalistic interpretation of the Act."
Fernandez, 2014 IL App (1st) 120508, ¶ 17.
There is no requirement that a predicate offense have
precisely the same elements as an offense classified as a
Class X offense in Illinois; rather, the predicate offense
must be "equivalent" to a Class X felony in
Illinois. Id. ¶¶ 17-19; see also 81st Ill.
Gen. Assem., Senate Proceedings, June 27, 1980, at 27
(statements of Senator Sangmeister) (stating during the
discussion regarding amending the Act to include offenses
from other jurisdictions that those offenses would qualify
provided "their elements *** were *** the same or close
to the elements contained in the Illinois [s]tatutes").
10 Moreover, in the case at bar, defendant has not persuaded
us that armed robbery in 1986 contained different elements
than the offense did in 2010. The version of section 18-2(a)
of the Criminal Code of 1961 (Code) in effect in 1986 stated
that a person commits armed robbery when he commits a robbery
"while he *** carries on or about his *** person, or is
otherwise armed with a dangerous weapon." Ill. Rev.
Stat. 1985, ch. 38, ¶ 18-2.
11 Effective January 1, 2000, which was before the offenses
at issue in these cases, the armed robbery statute was
amended (1) to create separate subsections for armed robbery
"with a dangerous weapon other than a firearm" and
armed robbery "with a firearm" and (2) to add a
15-year sentencing enhancement for being "armed with a
firearm." Pub. Act 91-404, § 5 (eff. Jan. 1, 2000)
(amending 720 ILCS 5/18-2). The version of section 18-2(a) of