from the Circuit Court of De Kalb County. No. 01-CF-229
Honorable Robbin J. Stuckert, Judge, Presiding.
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.
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
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(table) (unpublished order under Illinois Supreme Court Rule
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
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