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People v. Allgood

Court of Appeals of Illinois, Second District

July 10, 2019

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
TODD ALLGOOD, Defendant-Appellant.

          Appeal from the Circuit Court of De Kalb County. No. 01-CF-229 Honorable Robbin J. Stuckert, Judge, Presiding.

          James E. Chadd, Thomas A. Lilien, and Bruce Kirkham, of State Appellate Defender's Office, of Elgin, for appellant.

          Richard D. Amato, State's Attorney, of Sycamore (Patrick Delfino, David J. Robinson, and Richard S. London, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          BIRKETT PRESIDING JUSTICE delivered the judgment of the court, with opinion. Justices Hutchinson and Schostok concurred in the judgment and opinion.

          OPINION

          BIRKETT PRESIDING JUSTICE.

         ¶ 1 Defendant, Todd Allgood, appeals his convictions of aggravated criminal sexual assault while armed with a firearm (720 ILCS 5/12-14(a)(8) (West 2000)) and aggravated kidnapping while armed with a firearm (id. § 10-2(a)(6)). He contends that the 15-year sentencing enhancements for those offenses, added by Public Act 91-404, § 5 (eff. Jan. 1, 2000) (amending 720 ILCS 5/10-2, 12-14), violated the proportionate-penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) and require reversal of his convictions. We agree that the enhancements violated the proportionate-penalties clause. However, we disagree that this requires reversal of defendant's convictions. Instead, we remand for resentencing on both convictions based on the statutes as they existed before they were amended to add the unconstitutional enhancements.

         ¶ 2 I. BACKGROUND

         ¶ 3 Defendant was indicted for the April 25, 2001, abduction and sexual assault of N.K. In September 2002, a jury found him guilty of two counts of aggravated criminal sexual assault, one based on being armed with a firearm (720 ILCS 5/12-14(a) (8) (West 2000)) and the other based on acting in a manner that threatened N.K.'s life (id. § 12-14(a) (3)). The court merged those convictions and sentenced defendant on the conviction based on being armed with a firearm to 30 years' incarceration, plus a 15-year enhancement under section 12-14(d)(1) of the Criminal Code of 1961 (id. § 12-14(d)(1)). Defendant was sentenced to a consecutive 10-year term for aggravated kidnapping. Although the aggravated-kidnapping statute also included a 15- year enhancement for being armed with a firearm (id. § 10-2(b)), the court found that it could apply the enhancement only once. We affirmed. People v. Allgood, 355 Ill.App.3d 1194 (2005) (table) (unpublished order under Illinois Supreme Court Rule 23).

         ¶ 4 In September 2006, defendant filed a postconviction petition, alleging ineffective assistance of counsel. Counsel was appointed, and in September 2011 an amended petition was filed, alleging in part that the 15-year sentencing enhancement for aggravated criminal sexual assault violated the proportionate-penalties clause because it punished defendant twice for the same crime.

         ¶ 5 The State moved to dismiss, and the trial court granted the motion, finding that the allegations were barred by principles of res judicata. On appeal, we noted that the issue was raised and rejected on direct appeal. However, we held that, because the law had changed since defendant's appeal was decided, fundamental fairness dictated that he could raise the issue in a postconviction petition. People v. Allgood, 2015 IL App (2d) 130511-U, ¶ 23.

         ¶ 6 Based on People v. Hauschild, 226 Ill.2d 63, 86-87 (2007), which held that the 15-year sentencing enhancement for armed robbery while armed with a firearm violated the proportionate-penalties clause, and People v. Hampton, 406 Ill.App.3d 925, 942 (2010), which applied Hauschild to the enhancement for aggravated criminal sexual assault while armed with a firearm, we vacated defendant's sentence for aggravated criminal sexual assault and remanded for resentencing. In doing so, we rejected defendant's argument that we simply vacate the 15-year enhancement, as Hauschild held that the remedy was a remand for resentencing. Allgood, 2015 IL App (2d) 130511-U, ¶ 24.

         ¶ 7 On remand, the trial court sentenced defendant to 21 years' incarceration for aggravated criminal sexual assault, to be served consecutively to the 10-year term previously imposed for aggravated kidnapping. Defendant appeals.

         ¶ 8 II. ANALYSIS

         ¶ 9 Defendant argues for the first time that his convictions must be reversed because the 15-year enhancements violated the proportionate-penalties clause and cannot be severed from the substantive offenses. He contends that, under our decision in People v. Andrews,364 Ill.App.3d 253, 282 (2006), the unconstitutionality of the statutes renders the convictions void ab initio. As to aggravated kidnapping, he asks us to reverse the conviction outright because the State dismissed a lesser included kidnapping charge after jeopardy attached. As to aggravated criminal sexual assault, he asks us to reinstate the merged conviction based on acting in a manner that threatened N.K.'s life. The State argues that, under Hauschild, defendant is ...


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