Opinion
No. 2-03-0857
October 5, 2005. OPINION WITHDRAWN
Appeal from the Circuit Court of Kane County, No. 01-CF-2403, Honorable Donald C. Hudson, Judge, presiding.
Following a jury trial in the circuit court of Kane County, defendant, Joseph A. Hauschild, was found guilty of attempted first-degree murder, home invasion, armed robbery, aggravated battery with a firearm, and criminal damage to property. The trial court merged the aggravated-battery-with-a-firearm conviction into the attempted-first-degree-murder conviction. The court then sentenced defendant to consecutive sentences of 35 years' imprisonment for home invasion, 18 years' imprisonment for attempted first-degree murder, and 12 years' imprisonment for armed robbery. In addition, the court imposed a concurrent term of two years' imprisonment for criminal damage to property. On appeal, defendant challenges his convictions of armed robbery, home invasion, and criminal damage to property. Defendant also urges us to reduce his sentence, which he characterizes as excessive. For the reasons that follow, we affirm in part, reverse in part, vacate in part, and remand this cause for further proceedings.
I. BACKGROUND
During the early morning hours of August 14, 2001, two intruders, both of whom were carrying firearms, broke into the Wright residence in unincorporated St. Charles. The intruders entered the master bedroom of the home, where Thomas Wright and his wife Wendy were awoken. Mr. Wright initially complied with the intruders' demands. However, a struggle later ensued between Mr. Wright and one of the intruders. During the struggle, several rounds of ammunition were fired. The intruders eventually fled the scene carrying a lockbox. Mr. Wright sustained multiple gunshot wounds, requiring several surgeries as well as an extended period of hospitalization and rehabilitation. The Wrights' dog was also struck by a bullet.
Defendant and Ethan Warden were implicated in the crime. On September 14, 2001, a Kane County grand jury returned a six-count indictment against defendant. Count I of the indictment charged defendant with attempted first-degree murder ( 720 ILCS 5/8-4(a), 9-1(a)(1) (West 2000)). Count II charged defendant with armed robbery ( 720 ILCS 5/18-2(a)(4) (West 2000)). Counts III and IV charged defendant with home invasion ( 720 ILCS 5/12-11(a)(3), (a)(5) (West 2000)). Count V charged defendant with aggravated battery with a firearm ( 720 ILCS 5/12-4.2(a)(1) (West 2000)). Count VI charged defendant with criminal damage to property ( 720 ILCS 5/21-1(d) (West 2000)). Warden was charged with identical offenses. However, he entered into a plea agreement with the State. The terms of the plea agreement provided that the State would amend the armed-robbery charge and one of the home-invasion counts. Warden would then plead guilty to those two charges and serve consecutive sentences of six years' imprisonment for each conviction. The agreement further provided that, "upon full and successful completion by [Warden] of all conditions," including Warden's testimony against defendant, the State would nol-pros the remaining charges.
Prior to trial, defendant moved to dismiss the attempted-first-degree-murder, armed-robbery, and home-invasion charges. Defendant argued in his motions that the sentencing provisions for these offenses ( 720 ILCS 5/8-4(c)(1)(B) through (c)(1)(D), 18-2(b), 12-11(c) (West 2000)), which provide for a 15-year, 20-year, or 25-year-to-life sentencing enhancement based on the extent to which a firearm was involved in the commission of the offense, violate the due process, equal protection, proportionate penalties, and separation of powers clauses of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §§ 2, 11, art. II, § 1). The trial court denied defendant's motions with respect to the attempted-first-degree-murder and home-invasion charges, but granted defendant's motion with respect to the armed-robbery charge. Subsequently, defendant filed a motion to reconsider the trial court's ruling with respect to the attempted-first-degree-murder charge in light of the supreme court's decision in People v. Morgan, 203 Ill. 2d 470, 492 (2003) (finding that the sentencing ranges created by the attempted-first-degree-murder statute violate the proportionate penalties clause of the Illinois Constitution). The trial court denied the motion to reconsider, but agreed that, pursuant to Morgan, defendant should not be subject to an enhanced sentence if convicted of attempted first-degree murder. The State then moved to amend the attempted-first-degree-murder charge in light of Morgan. The trial court granted the motion. In addition, as discussed in more detail below, the trial court granted the State's motions to amend the armed-robbery charge.
At defendant's trial, Warden testified that defendant recruited him to participate in the offenses with which he was charged, that defendant supplied the weapons used, and that defendant was the individual who requested the lockbox and who struggled with Mr. Wright. Defendant gave a statement to police in which he admitted supplying the weapons, but claimed that it was Warden who requested the lockbox from and struggled with Mr. Wright. The jury was given an accountability instruction. Ultimately, the jury returned verdicts of guilty on all charges except for one count of home invasion. The trial court merged the aggravated-battery-with-a-firearm conviction into the attempted-first-degree-murder conviction. Defendant filed various posttrial motions, which the trial court denied. Following a hearing, the trial court sentenced defendant to 15 years' imprisonment for the home-invasion conviction. The court added 20 years to the sentence for the home-invasion conviction because the jury determined that defendant "personally discharged a firearm during the commission of the offense." See 720 ILCS 5/12-11(a), (c) (West 2000). Thus, defendant received a total of 35 years' imprisonment for his conviction of home invasion. The court sentenced defendant to a consecutive 12-year sentence for armed robbery and a consecutive 18-year sentence for attempted murder. In addition, the court sentenced defendant to a concurrent term of two years' imprisonment for the conviction of criminal damage to property. The trial court denied defendant's motion to reconsider sentence, and this appeal followed.
II. ANALYSIS A. Armed Robbery
Defendant first challenges his conviction of armed robbery. The offense of armed robbery is governed by section 18-2 of the Criminal Code of 1961 (Code) ( 720 ILCS 5/18-2 (West 2000)). Prior to January 1, 2000, section 18-2 provided:
"§ 18-2. Armed robbery. (a) A person commits armed robbery when he or she violates Section 18-1 [(robbery)] while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon.
(b) Sentence.
Armed robbery is a Class X felony." 720 ILCS 5/18-2 (West 1998).
Thus, prior to January 1, 2000, armed robbery was defined as a robbery ( 720 ILCS 5/18-1 (West 1998) ("tak[ing] property, except a motor vehicle * * *, from the person or presence of another by the use of force or by threatening the imminent use of force")) plus the added element of carrying or otherwise being armed with a "dangerous weapon." Under this statutory scheme, no matter the type of "dangerous weapon" used, all armed robberies were Class X felonies punishable by a prison term of 6 to 30 years. 720 ILCS 5/18-2 (West 1998); 730 ILCS 5/5-8 — 1(a)(3) (West 1998); People v. Burge, 254 Ill. App. 3d 85, 90 (1993) (defining the term "dangerous weapon" for purposes of the armed-robbery statute).
On January 1, 2000, Public Act 91-404 (Pub. Act 91-404, § 5, eff. January 1, 2000), took effect. The purpose of Public Act 91-404 is "to deter the use of firearms in the commission of a felony offense." Pub. Act 91-404, § 5, eff. January 1, 2000 (codified at 720 ILCS 5/33A-1(b)(1) (West 2000)); People v. Moss, 206 Ill. 2d 503, 514 (2003); Morgan, 203 Ill. 2d at 488. To that end, the legislation increased the penalties for committing certain felony offenses, including armed robbery, when the offender possesses or uses a firearm during the commission of the offense. These additional penalties are commonly referred to as the "15/20/25-to-life" sentencing provisions. See Moss, 206 Ill. 2d at 506. As amended by Public Act 91-404, the armed-robbery statute provided:
"§ 18-2. Armed robbery.
(a) A person commits armed robbery when he or she violates Section 18-1 [(robbery)]; and
(1) he or she carries on or about his or her person or is otherwise armed with a dangerous weapon other than a firearm; or
(2) he or she carries on or about his or her person or is otherwise armed with a firearm; or
(3) he or she, during the commission of the offense, personally discharges a firearm; or
(4) he or she, during the commission of the offense, personally discharges a firearm that proximately causes great bodily harm, permanent disability, permanent disfigurement, or death to another person.
(b) Sentence.
Armed robbery in violation of subsection (a)(1) is a Class X felony. A violation of subsection (a)(2) is a Class X felony for which 15 years shall be added to the term of imprisonment imposed by the court. A violation of subsection (a)(3) is a Class X felony for which 20 years shall be added to the term of imprisonment imposed by the court. A violation of subsection (a)(4) is a Class X felony for which 25 years or up to a term of natural life shall be added to the term of imprisonment imposed by the court." 720 ILCS 5/18-2 (West 2000).
Thus, under section 18-2 as amended by Public Act 91-404, the sentence imposed for a defendant convicted of armed robbery depends on whether a firearm is involved in the commission of the offense. If a firearm is involved, a defendant convicted of armed robbery is subject to an add-on sentence of 15 years, 20 years, or 25 years up to natural life, depending on the extent to which the firearm is used. 720 ILCS 5/18-2 (West 2000).
As noted above, defendant was charged by indictment on September 14, 2001, with armed robbery pursuant to section 18-2(a)(4) of the Code ( 720 ILCS 5/18-2(a)(4) (West 2000)). Specifically, the indictment provided:
"On or about August 14, 2001[,] Joseph A. Hauschild committed the offense of Armed Robbery, Class X Felony in violation of Chapter 720, Section 5/18-2(a)(4) of the Illinois Compiled Statutes, as amended, in that said defendant, while armed with a firearm, knowingly took property of Thomas Wright, by the use of force or by threatening the imminent use of force and during the commission of the Robbery the defendant personally discharged a firearm, that proximately caused great bodily harm to Thomas Wright."
Defendant filed a motion to declare the armed-robbery statute unconstitutional and to dismiss the indictment against him. In the motion, defendant argued, inter alia, that section 18-2(a)(4) violated the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11).
Before the trial court ruled on defendant's motion, our supreme court decided People v. Walden, 199 Ill. 2d 392 (2002). In Walden, the supreme court held that the 15-year sentencing enhancement for armed robbery while in possession of a firearm ( 720 ILCS 5/18-2(a)(2), (b) (West 2000)) violated the proportionate penalties clause of the Illinois Constitution. Walden, 199 Ill. 2d at 397; see also People v. Blanco, 199 Ill. 2d 410 (2002); People v. Garcia, 199 Ill. 2d 401 (2002); People v. Devenny, 199 Ill. 2d 398 (2002). Although defendant in this case was not charged with a violation of subsection (a)(2) of the armed-robbery statute ( 720 ILCS 5/18-2(a)(2) (West 2000)), the trial court, relying on Walden, determined that the 25-to-life sentence enhancement imposed for a violation of subsection (a)(4) (see 720 ILCS 5/18-2(b) (West 2000)) also violated the proportionate penalties clause. The court, however, did not dismiss the armed-robbery charge as defendant requested. Instead, it determined that "the regular un-enhanced sentencing provisions of the armed robbery charge would apply should the Defendant be convicted of that charge."
In Moss, 206 Ill. 2d at 532, our supreme court rejected the argument that section 18-2(a)(4) of the Code violated the proportionate penalties clause of the Illinois Constitution. Defendant asserts, and we agree, that the State cannot now rely on Moss to argue for an enhanced sentence based on subsection (a)(4) of the armed-robbery statute since the State opted to proceed on the amended charge, which did not allege the enhancement factor listed in subsection (a)(4).
Meanwhile, the trial court granted a motion filed by the State to amend the armed-robbery charge to delete the phrase "or by threatening the imminent use of force." After the trial court ruled on defendant's motion to declare the armed-robbery statute unconstitutional, the State filed another motion to amend the armed-robbery charge. Specifically, the State requested the deletion of the phrase "and during the commission of the Robbery the defendant personally discharged a firearm that proximately caused great bodily harm to Thomas Wright." The State contended that this language was surplusage due to trial court's earlier ruling that the 15/20/25-to-life sentencing provision as to armed robbery was unconstitutional. The trial court agreed, stating:
"The first issue for the court to decide, I think the answer is very evident and could not be any clearer, is that personally discharges a weapon is not an element of armed robbery. It has never been an element of armed robbery. The [S]tate does not have to prove that one discharged a weapon to prove armed robbery. We all know that. The statue was enacted again so that if the trier of fact found that the person personally discharged a firearm, a greater sentence could be imposed. So it is clear to the court that that language is superfluous and unnecessary charging the armed offense in this case.
* * *
And also the case law is clear * * * whether a statute is declared unconstitutional, the law is very clear as a matter of law by separation of law, it reverts back to the statute that existed before the enhancement provisions before the amendments were attached.
So I find the language, `during the commission of the robbery the defendant personally discharged a firearm to proximately cause great bodily harm to Thomas Wright,' to be superfluous and unnecessary to prove up the charge of armed robbery, so the [S]tate's motion to strike out that language is, as being unnecessary, is clearly within the realm of what the [S]tate has the right to do under the case law and that motion will be granted."
Thus, following the amendments to the armed-robbery count, the charge read as follows:
"On or about August 14, 2001[,] Joseph A. Hauschild committed the offense of Armed Robbery, Class X Felony in violation of Chapter 720, Section 5/18-2(a)(4) of the Illinois Compiled Statutes, as amended, in that said defendant, while armed with a firearm, knowingly took property of Thomas Wright, by the use of force."
As discussed above, the jury found defendant guilty of this charge and the trial court sentenced defendant to a term of 12 years' imprisonment.
At the outset, we note that the count charging defendant with armed robbery, as amended, included a citation to subsection (a)(4) of the armed-robbery statute ( 720 ILCS 5/18-2(a)(4) (West 2002)). However, defendant asserts, and the State does not dispute, that the amended count actually charged a violation of subsection (a)(2) of the armed-robbery statute ( 720 ILCS 5/18-2(a)(2) (West 2002)) because it alleged that defendant committed armed robbery "while armed with a firearm." We agree that, despite the reference to subsection (a)(4) of the armed-robbery statute, the amended armed-robbery charge actually alleged a violation of subsection (a)(2). Our supreme court has held that subsection (a)(2) of the armed-robbery statute violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). Walden, 199 Ill. 2d at 397; see also Blanco, 199 Ill. 2d at 412; Garcia, 199 Ill. 2d at 403; Devenny, 199 Ill. 2d at 400. Thus, we must ascertain the effect of Walden and its progeny on this case.
Defendant notes that in Walden, the supreme court, after finding subsection (a)(2) of the armed-robbery statute unconstitutional, affirmed the lower court order dismissing the charge. Defendant argues that if the substantive offense as defined by subsection (a)(2) of the armed-robbery statute had remained in effect despite the proportionate penalties violation, the Walden court would have reversed the dismissal order and remanded the cause for a trial on the subsection (a)(2) charge with instructions not to impose an enhanced sentence. Because the supreme court did not remand the cause in this manner, defendant concludes that he was convicted of a charge that did not exist at the time of his trial. Defendant urges us to supplant his conviction of armed robbery with a conviction of simple robbery. The State counters that the invalid sentencing provision is severable from the remainder of the armed-robbery statute. According to the State, the effect of Walden was to eliminate not the offense with which defendant was charged but, rather, the sentencing enhancement. Thus, the State asserts that defendant is not entitled to have his armed robbery conviction reduced.
In Moss, Blanco, Garcia, Devenny, and Walden, our supreme court was not asked to address whether the 15/20/25-to-life sentencing provisions set forth in Public Act 91-404 can be severed from the substantive offenses to which they apply. However, we recently addressed this issue in People v. Andrews, 358 Ill. App. 3d 744 (2005). In Andrews, the defendant was convicted of aggravated vehicular hijacking while carrying a firearm ( 720 ILCS 5/18-4(a)(4) (West 2000)). The aggravated-vehicular-hijacking statute, like the armed-robbery statute, had been amended by Public Act 91-404 to enhance the sentence when the offender possesses or uses a firearm during the commission of the offense. The defendant filed various posttrial motions, including one asking the trial court to dismiss his conviction as void. In support of this position, the defendant cited to Moss, 206 Ill. 2d at 531 (determining, among other things, that the 15- and 20-year enhancement provisions set forth in Public Act 91-404 violated the proportionate penalties clause with respect to the offense of aggravated vehicular hijacking). The trial court held that the sentencing enhancements were unconstitutional. The court then determined that the effect of declaring the sentencing enhancements unconstitutional was to "`revert back to the laws [ sic] as it was prior to Public Act 91-404 which makes this offense a Class X felony [for] which the sentencing range is from six to 30.'" Andrews, 358 Ill. App. 3d at 755. The defendant was ultimately sentenced to 14 years' imprisonment.
On appeal, the defendant argued, inter alia, that because the offense of aggravated vehicular hijacking while carrying a firearm was declared unconstitutional in Moss, his conviction must be reduced to the lesser-included offense of vehicular hijacking. The State countered that the invalid 15-year add-on sentence was severable from the remainder of the aggravated-vehicular-hijacking statute and that, therefore, the defendant was not entitled to have his conviction reduced.
In addressing these positions, we initially noted that although the trial court purported to apply the aggravated-vehicular-hijacking statute as it existed prior to the enactment of Public Act 91-404, the court actually severed the sentencing-enhancement provision from the statute, entered a conviction of aggravated vehicular hijacking while carrying a firearm in violation of section 18-4(a)(4) of the Code, and sentenced defendant to a term of imprisonment within the Class X felony range of 6 to 30 years. Andrews, 358 Ill. App. 3d at 755. We held, however, that the severance of the sentencing enhancement without the severance of the substantive offense was impermissible. Andrews, 358 Ill. App. 3d at 766. In reaching this decision, we noted that because Public Act 91-404 did not contain a severability provision, severability was governed by a test based on the general severability provision contained in the Statute on Statutes ( 5 ILCS 70/1.31 (West 2002)). Andrews, 358 Ill. App. 3d at 766.
That test consisted of two parts. The first part of the inquiry involved determining whether the valid and invalid portions of the statute are essentially and inseparably connected in substance. We held that the substantive offense of aggravated vehicular hijacking while carrying a firearm and the sentencing-enhancement provision pertaining to that offense were essentially and inseparably connected because "the two provisions were intended to work together as a whole to accomplish the sole purpose of punishing those who commit vehicular hijacking while carrying a firearm more severely than those who commit the offense while carrying other weapons." Andrews, 358 Ill. App. 3d at 766.
The second part of the inquiry involved determining whether the legislature would have enacted the valid portions without the invalid portions. We answered this inquiry in the negative. Prior to the enactment of Public Act 91-404, aggravated vehicular hijacking while carrying a firearm had been a species of the Class X felony offense of aggravated vehicular hijacking while "carry[ing] on or about his or her person, or [being] otherwise armed with a dangerous weapon." See 720 ILCS 5/18-4(a)(3) (West 1998). We noted that the intent of Public Act 91-404 was to "`deter the use of firearms in the commission of a felony offense [by imposing] a greater penalty * * * when a firearm is used or discharged in the commission of an offense than the penalty imposed for using other types of weapons and for the penalty to increase on more serious offenses.'" Andrews, 358 Ill. App. 3d at 767, quoting Pub. Act 91-404, § 5, eff. January 1, 2000 (codified at 720 ILCS 5/33A-1(b)(1) (West 2002)). To achieve this purpose, the legislature first removed the offense of aggravated vehicular hijacking while carrying a firearm from section 18-4(a)(3) by adding the words "other than a firearm" to that section ( 720 ILCS 5/18-4(a)(3) (West 2000)). The legislature then created three new categories of aggravated vehicular hijacking involving a firearm ( 720 ILCS 5/18-4(a)(4) through (a)(6) (West 2000)), depending on the extent to which a firearm is used in the commission of the offense. We concluded that the legislature would not have created these new categories of offenses if it did not intend to punish violators of these offenses more severely. Andrews, 358 Ill. App. 3d at 768.
The 15/20/25-to-life sentencing provision for the offense of armed robbery was enacted by Public Act 91-404 (Pub. Act 91-404, § 5, eff. January 1, 2000). Prior to the enactment of that legislation, armed robbery while carrying a firearm was part of the Class X felony offense of armed robbery while "carry[ing] on or about his or her person, or [being] otherwise armed with a dangerous weapon." 720 ILCS 5/18-2(a) (West 1998); Burge, 254 Ill. App. 3d at 90 (defining the term "dangerous weapon" for purposes of the armed-robbery statute). However, with the enactment of Public Act 91-404, what had been a single offense — armed robbery while armed with a dangerous weapon — was divided into four separate offenses depending on whether and the extent to which a firearm is used in the commission of the offense. Thus, a violation of subsection (a)(1) occurs when the offender commits a robbery while "armed with a dangerous weapon other than a firearm" ( 720 ILCS 5/18-2(a)(1) (West 2000)), a violation of subsection (a)(2) occurs when the offender commits a robbery while "armed with a firearm" ( 720 ILCS 5/18-2(a)(2) (West 2000)), a violation of subsection (a)(3) occurs when the offender, during the commission of a robbery, "personally discharges a firearm" ( 720 ILCS 5/18-2(a)(3) (West 2000)), and a violation of subsection (a)(4) occurs when the offender, during the commission of a robbery, "personally discharges a firearm that proximately causes great bodily harm, permanent disability, permanent disfigurement, or death to another person" ( 720 ILCS 5/18-2(a)(4) (West 2000)). Subsection (b) of the armed-robbery statute ( 720 ILCS 5/18-2(b) (West 2000)) added the 15/20/25-to-life sentencing provisions. Thus, while a violation of any subsection of section 18-2(a)(1) remains a Class X felony punishable by a term of imprisonment of 6 to 30 years, a violation of either subsection (a)(2), (a)(3), or (a)(4) is subject to the statutory Class X sentencing range plus a mandatory sentencing enhancement of 15 years, 20 years, or 25 years up to natural life, respectively.
Our decision in Andrews compels us to conclude that the legislature would not have enacted subsection (a)(2) of the armed-robbery statute ( 720 ILCS 5/18-2(a)(2) (West 2000)) without its accompanying sentencing-enhancement provision. The substantive offense and its sentencing enhancement are "essentially and inseparably connected" because they were intended to work together as a whole to punish those who commit armed robbery while carrying a firearm more severely than those who commit armed robbery while carrying a weapon other than a firearm. See Andrews, 358 Ill. App. 3d 767. Moreover, our finding in Andrews that the legislature would not have created the new category of aggravated vehicular hijacking while carrying a firearm if it did not intend to punish violations of that subsection with an enhanced sentence applies equally with respect to the changes imposed by Public Act 91-404 with respect to armed robbery while carrying a firearm. Accordingly, we find that the 15-year sentencing enhancement for armed robbery while carrying a firearm ( 720 ILCS 5/18-2(b) (West 2000)) is not severable from the substantive offense defined in subsection (a)(2) of the armed-robbery statute ( 720 ILCS 5/18-2(a)(2) (West 2000)). The State concedes that if the sentencing-enhancement provision cannot be severed, then subsection (a)(2) of the armed-robbery statute is also invalid.
In Andrews, we held that the effect of severing the unconstitutional amendments of Public Act 91-404 is to leave the law in force as it was prior to the adoption of the amendment. Andrews, 358 Ill. App. 3d at 767. We then held that the indictment was invalid because the prior law did not include the offense with which the defendant was charged. Andrews, 358 Ill. App. 3d at 767. We recognized that the conduct the defendant was charged with committing constituted a violation of the preamended version of the statute, i.e., aggravated vehicular hijacking while carrying a dangerous weapon ( 720 ILCS 5/18-4(a)(3) (West 1998)). Andrews, 358 Ill. App. 3d at 767-68. However, we noted that the State never moved the trial court to amend the indictment to charge a violation of that provision. Andrews, 358 Ill. App. 3d at 768. Moreover, we determined that it would be impermissible for the State to amend the indictment on appeal to charge an existing valid criminal offense in place of the charged offense that had been declared void. Andrews, 358 Ill. App. 3d at 768. Thus, we reversed the defendant's conviction of aggravated vehicular hijacking, and we vacated the sentence for that offense. Andrews, 358 Ill. App. 3d at 768. Further, at the defendant's request, we supplanted the defendant's conviction of aggravated vehicular hijacking with a conviction of vehicular hijacking and remanded the cause for resentencing. This result was appropriate, we reasoned, because the jury was instructed on the lesser-included offense of vehicular hijacking and, by returning a verdict of aggravated vehicular hijacking, the jury necessarily found that the State had proven beyond a reasonable doubt all of the elements of vehicular hijacking. Andrews, 358 Ill. App. 3d at 768.
In light of Andrews, we have no choice but to reverse defendant's conviction of armed robbery and vacate his sentence. Anticipating our holding, defendant makes a request similar to that of the defendant in Andrews. He asks us to supplant his conviction of armed robbery while carrying a firearm ( 720 ILCS 5/18-2(a)(2) (West 2000)) with a conviction of robbery ( 720 ILCS 5/18-1 (West 2000)). The jury in this case did not receive a separate instruction on the offense of robbery. Nevertheless, we note that robbery is a lesser-included offense of armed robbery. People v. Collins, 265 Ill. App. 3d 568, 583 (1994) (noting that armed robbery consists of all of the elements of robbery plus being armed with a dangerous weapon). Thus, by returning a guilty verdict of armed robbery while carrying a firearm, the jury necessarily found that the State had proven beyond a reasonable doubt all of the elements of robbery. Accordingly, pursuant to our authority under Supreme Court Rule 615(b) (134 Ill. 2d R. 615(b)), we reduce defendant's conviction of armed robbery while carrying a firearm to robbery, and we remand this cause for resentencing.
B. Home Invasion
Defendant next challenges his conviction of home invasion. Public Act 91-404 (Pub. Act 91-404, § 5, eff. January 1, 2000) added the 15/20/25-to-life sentencing provision to the home-invasion statute. Here, defendant was charged with two counts of home invasion. Count III of the indictment charged defendant with a violation of subsection (a)(3) of the home-invasion statute ( 720 ILCS 5/12-11(a)(3) (West 2000)) in that defendant:
"not [being] a peace officer acting in the line of duty, knowingly and without authority, entered a dwelling place of another, Thomas Wright, when he knew or had reason to know that one or more persons were present within such dwelling place, and the defendant, while armed with a firearm, used force upon Thomas Wright, a person within such dwelling place, by shooting him with a gun."
A defendant convicted of subsection (a)(3) is subject to a mandatory add-on sentence of 15 years. 720 ILCS 5/12-11(c) (West 2000). Count IV of the indictment charged that defendant violated subsection (a)(5) of the home-invasion statute ( 720 ILCS 5/12-11(a)(5) (West 2000)) in that defendant:
"not [being] a peace officer acting in the line of duty, knowingly and without authority, entered a dwelling place of another, Thomas Wright, when he knew or had reason to know that one or more persons were present within such dwelling place, and the defendant, personally discharged a firearm that proximately caused great bodily harm to Thomas Wright, a person within such dwelling place."
A defendant convicted of a violation of subsection (a)(5) is subject to a mandatory add-on sentence of 25 years to natural life. 720 ILCS 5/12-11(c) (West 2000). At the State's request, the jury was also given the option of finding defendant guilty of subsection (a)(4) of the home-invasion statute ( 720 ILCS 5/12-11(a)(4) (West 2000)), which requires proof that defendant used force and personally discharged a firearm. A defendant convicted of a violation of subsection (a)(4) is subject to a mandatory add-on sentence of 20 years. Ultimately, the jury found defendant guilty of violating subsection (a)(4). The trial court sentenced defendant to a total of 35 years' imprisonment on the home-invasion conviction. This sentence included a 15-year sentence plus a 20-year enhancement because the jury found that defendant personally discharged a firearm during the commission of the offense.
Defendant, citing Moss, 206 Ill. 2d 503, and People v. Dryden, 349 Ill. App. 3d 115 (2004), suggests that subsection (a)(4) of the home-invasion statute violates the proportionate penalties clause of the Illinois Constitution. The question of whether a statute is constitutional is subject to de novo review. Moss, 206 Ill. 2d at 520.
In Moss, the supreme court addressed whether the sentence-enhancement provisions added to certain offenses by Public Act 91-404 violated the proportionate penalties clause of the Illinois Constitution. The defendants in Moss argued that the 15- and 20-year sentencing enhancements imposed by Public Act 91-404 to various offenses violated the proportionate penalties clause of the Illinois Constitution because less serious offenses (armed robbery, aggravated kidnaping, and aggravated vehicular hijacking) are punished more harshly than more serious offenses (aggravated battery with a firearm and aggravated discharge of a firearm). In addressing the defendants' challenges, the Moss court used the two-step, cross-comparison analysis. First, the court addressed whether the measures being compared share a common statutory purpose. Moss, 206 Ill. 2d at 522-26. The court noted that the aggravated-battery-with-a-firearm statute targets conduct that causes injury through the knowing or intentional discharge of a firearm while the aggravated-discharge-of-a-firearm statute proscribes the intentional discharge of a firearm at or in the direction of another person. The State argued that these purposes are not similar to those of the armed-robbery, aggravated-kidnaping, and aggravated-vehicular-hijacking statutes. However, the court rejected the State's position, on the basis that the proper focus of the analysis was to examine the purpose of the amendments implemented by Public Act 91-404 rather than the purposes of the underlying offenses themselves. Moss, 206 Ill. 2d at 526. The purpose of the Public Act 91-404 amendments was to deter the use of firearms in the commission of felonies. Moss, 206 Ill. 2d at 525, citing Walden, 199 Ill. 2d at 396. Thus, the court concluded that the purposes of the Public Act 91-404 amendments, the aggravated-battery-with-a-firearm statute, and the aggravated-discharge-of-a-firearm statute were sufficiently similar. Moss, 206 Ill. 2d at 526.
The Moss court then moved to the second step of the analysis, that is, whether the less serious offense is punished more severely than the more serious offense. Moss, 206 Ill. 2d at 522, 526. The court held that aggravated battery with a firearm and aggravated discharge of a firearm are more serious offenses than the portions of the armed-robbery, aggravated-kidnaping, and aggravated-vehicular-hijacking statutes being challenged. Aggravated battery with a firearm requires injury resulting from the intentional discharge of a firearm while aggravated discharge of a firearm requires discharge of a firearm at or in the direction of an individual. In contrast, the amendments implemented by Public Act 91-404, which mandate the imposition of a 15- or 20-year sentencing enhancement, require only that the perpetrator possess a firearm (15-year enhancement) or that he personally discharge a firearm (20-year enhancement). Moss, 206 Ill. 2d at 530. The court went on to conclude that the more serious offenses are punished less harshly than the less serious offenses. Moss, 206 Ill. 2d at 531.
In Dryden, we invoked the reasoning of Moss to strike down the 15-year sentencing enhancement implemented by Public Act 91-404 as it applied to home invasion. Dryden, 349 Ill. App. 3d at 121-24. In Dryden, the defendant was convicted of home invasion while possessing a firearm ( 720 ILCS 5/12-11(a)(3) (West 2000)). The trial court sentenced him to a term of imprisonment that included the 15-year mandatory sentencing enhancement (see 720 ILCS 5/12-11(c) (West 2000)). On appeal, the defendant argued that subsection (a)(3) of the home-invasion statute and its accompanying sentencing-enhancement provision violated the proportionate penalties clause of the Illinois Constitution. Specifically, the defendant argued that aggravated battery with a firearm ( 720 ILCS 5/12-4.2(a)(1) (West 2000)), an offense that creates a more serious threat to the public health and safety than a violation of subsection (a)(3) of the home-invasion statute, is punished less severely.
In addressing the defendant's argument, we first examined whether the statutes being compared share a common purpose. Dryden, 349 Ill. App. 3d at 121-22. The State asserted that the purpose of the aggravated-battery-with-a-firearm statute was to "prevent the knowing and intentional discharge of a firearm which causes injury to the victim" while the purpose of the home-invasion statute was to "protect people in their homes from intruders carrying firearms." Thus, the State concluded that the two statutes did not share a common purpose. However, we noted that the State's approach, which focused on the purpose of the underlying home-invasion statute rather than the purpose of the amendments to the home-invasion statute, had been rejected by the supreme court in Moss. Relying on Moss, we determined that because the defendant in Dryden was challenging the amendments to the home-invasion statute, the proper focus in determining the purpose of section 12-11(a)(3) was to examine the legislation that implemented those changes, i.e., Public Act 91-404. Dryden, 349 Ill. App. 3d at 122-23. The purpose of the 15/20/25-to-life sentencing enhancement was to deter the use of firearms in the commission of a felony offense. We concluded that this purpose was "sufficiently similar" to the purpose of the aggravated-battery-with-a-firearm statute such that cross-comparison analysis was appropriate. Dryden, 349 Ill. App. 3d at 123.
The second part of our analysis addressed whether the less serious offense is punished more harshly than the more serious offense. Dryden, 349 Ill. App. 3d at 122. We concluded that the offense of aggravated battery with a firearm is a more serious offense than home invasion while carrying a firearm because the former offense requires an injury from the intentional discharge of a firearm while the latter offense requires only possession of a firearm. Dryden, 349 Ill. App. 3d at 123-24. We then compared the sentences for the two offenses, noting that home invasion while carrying a firearm carries a sentence of 21 to 45 years' imprisonment ( 720 ILCS 5/12-11(a)(3), (c) (West 2000); 730 ILCS 5/5-8 — 1(a)(3) (West 2000)) while aggravated battery with a firearm carries a sentence of only 6 to 30 years' imprisonment ( 720 ILCS 5/12-4.2(a)(1), (b) (West 2000); 730 ILCS 5/5-8 — 1(a)(3) (West 2000)). Because the less serious offense, home invasion while carrying a firearm, is punished more severely than the more serious offense, aggravated battery with a firearm, we held that subsection (a)(3) of the home-invasion statute and its accompanying sentencing enhancement violated the proportionate penalties clause of the Illinois Constitution. Dryden, 349 Ill. App. 3d at 124.
Applying Moss and Dryden to the case at hand, defendant asserts that, with regard to the offense of home invasion with personal discharge of a firearm ( 720 ILCS 5/12-11(a)(4) (West 2000)), the 20-year sentencing enhancement mandated by Public Act 91-404 violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). We agree. Moss and Dryden require a finding that the purposes of the aggravated-battery-with-a-firearm statute ( 720 ILCS 5/12-4.2(a)(1) (West 2000)) and the aggravated-discharge-of-a-firearm statute ( 720 ILCS 5/24-1.2(a)(2) (West 2000)) are similar to the purpose of the 20-year sentencing-enhancement provision made applicable to the home-invasion statute by Public Act 91-404. Moss, 206 Ill. 2d at 525-26; Dryden, 349 Ill. App. 3d at 123. Similarly, Moss requires a finding that aggravated battery with a firearm and aggravated discharge of a firearm are more serious offenses than home invasion with personal discharge of a firearm. Aggravated battery with a firearm requires injury resulting from the intentional discharge of a firearm ( 720 ILCS 5/12-4.2(a)(1) (West 2000)) while aggravated discharge of a firearm requires discharge of a firearm at or in the direction of an individual ( 720 ILCS 5/24-1.2(a)(2) (West 2000)). However, a violation of subsection (a)(4) of the home-invasion statute requires only that a firearm be discharged ( 720 ILCS 5/12-11(a)(4) (West 2000)). Finally, we note that the less serious offense is punished more severely than the more serious offenses. Aggravated battery with a firearm is a Class X felony punishable by a term of imprisonment of 6 to 30 years ( 720 ILCS 5/12-4.2(b) (West 2000); 730 ILCS 5/5-8 — 1(a)(3) (West 2000)) while aggravated discharge of a firearm is a Class 1 felony punishable by a term of imprisonment of 4 to 15 years ( 720 ILCS 5/24-1.2(b) (West 2000); 730 ILCS 5/5-8 — 1(a)(4) (West 2000)). However, home invasion with personal discharge of a firearm is punishable by a term of imprisonment of 26 to 50 years. 720 ILCS 5/12-11(a)(4), (c) (West 2000); 730 ILCS 5/5-8 — 1(a)(3) (West 2000). Thus, we find a proportionate penalty violation.
The State asks us to disregard Moss and Dryden and to follow People v. Hill, 199 Ill. 2d 440 (2002), which held that the 15-year sentencing enhancement for home invasion while in possession of a firearm ( 720 ILCS 5/12-11(a)(3), (c) (West 2000)) did not violate the proportionate penalties clause of the Illinois Constitution. The State's reliance on Hill is misplaced insofar as the Hill court was not asked to compare subsection (a)(3) of the home-invasion statute with distinct offenses set forth in other statutes. Rather, Hill involved a same-statute analysis in which the court compared subsection (a)(3) of the home-invasion statute ( 720 ILCS 5/12-11(a)(3) (West 2000)) with subsections (a)(1) (home invasion while armed with a dangerous weapon other than a firearm) and (a)(2) (home invasion that causes injury) of the same statute ( 720 ILCS 5/12-11(a)(1), (a)(2) (West 2000)). A violation of either subsection (a)(1) or (a)(2) is a Class X felony punishable by a prison term of 6 to 30 years. 720 ILCS 5/12-11(c) (West 2000); 730 ILCS 5/5-8 — 1(a)(3) (West 2000). A defendant convicted of subsection (a)(3), however, is subject to a term of 6 to 30 years' imprisonment plus an additional 15-year enhancement. 720 ILCS 5/12-11(a)(3), (c) (West 2000); 730 ILCS 5/5-8 — 1(a)(3) (West 2000). Subsection (a)(3) of the home-invasion statute and its 15-year sentencing-enhancement provision were among the several provisions added to the home-invasion statute by Public Act 91-404. The Hill court explained that in enacting Public Act 91-404 the legislature intended to break the offense of home invasion into two distinct categories: offenses committed without a firearm and offenses committed with a firearm. Hill, 199 Ill. 2d at 457. The court concluded that while the purpose of all three subsections is to protect the safety of persons in their homes, subsection (a)(3) possessed a second, more specific purpose, i.e., to deter the use of firearms during the commission of a home invasion. Hill, 199 Ill. 2d at 457-59. Because of this additional goal, the court concluded that the purpose of subsection (a)(3) is sufficiently distinct from the purpose of subsections (a)(1) and (a)(2) to make cross-comparison proportionality review inappropriate. Hill, 199 Ill. 2d at 459. Because of this holding, the Hill court never had the opportunity to move to the second step of the cross-comparison analysis.
In contrast, here, we have compared subsection (a)(4) of the home-invasion statute with two distinct offenses, aggravated battery with a firearm and aggravated discharge of a firearm. We concluded that the purposes of the three offenses were sufficiently similar to proceed to the second step of the cross-comparison analysis. The State acknowledges that because Hill involved a same-statute inquiry, it is distinguishable from the case at hand. Nevertheless, the State claims that the Hill rationale has been applied to other cross-comparison cases. The cases that the State cites in support of this proposition, however, are equally distinguishable. Those cases, People v. Zapata, 347 Ill. App. 3d 956 (2004), People v. Sawczenko-Dub, 345 Ill. App. 3d 522 (2003), and People v. Moore, 343 Ill. App. 3d 331 (2003), all involved challenges to the 15/20/25-to-life sentencing enhancement imposed for first-degree murder involving a firearm. In each case, the defendant argued that the enhancements for committing murder involving a firearm were disproportionate to the penalty for murder by other means. Zapata, 347 Ill. App. 3d at 968; Sawczenko-Dub, 345 Ill. App. 3d at 529; Moore, 343 Ill. App. 3d at 344. In each case, the court, relying on Hill, held that the 15/20/15-to-life sentencing enhancements for murder involving a firearm served a purpose more specific and distinct than that of the general murder statute. Zapata, 347 Ill. App. 3d at 971; Sawczenko-Dub, 345 Ill. App. 3d at 531-32; Moore, 343 Ill. App. 3d at 346. Accordingly, the courts concluded that proportionality review was inappropriate. Zapata, 347 Ill. App. 3d at 971; Sawczenko-Dub, 345 Ill. App. 3d at 532; Moore, 343 Ill. App. 3d at 346.
Defendant, anticipating our holding, argues that his conviction of home invasion must be reversed and his sentence vacated because he was convicted of an offense that never existed. The State again asserts that the sentencing-enhancement provision of the home-invasion statute can be severed from the remainder of the statute. In light of Andrews, 358 Ill. App. 3d 744, and our holding with respect to defendant's armed-robbery conviction, we agree with defendant. Accordingly, we reverse defendant's conviction of home invasion and vacate his sentence.
C. Criminal Damage to Property
The material in this section is nonpublishable under Supreme Court Rule 23 (166 Ill. 2d R. 23).
[Nonpublishable material under Supreme Court Rule 23 removed here]
D. Sentencing
The material in this section is nonpublishable under Supreme Court Rule 23 (166 Ill. 2d R. 23).
[Nonpublishable material under Supreme Court Rule 23 removed here] III. CONCLUSION
For the reasons set forth above, we reverse defendant's convictions of armed robbery and home invasion and we vacate the sentences imposed for those convictions. We affirm defendant's conviction of criminal damage to property. We also order the entry of a judgment of conviction of robbery ( 720 ILCS 5/18-1 (West 2000)) and remand this cause to the trial court to sentence defendant for the robbery conviction.
Affirmed in part, reversed in part, and vacated in part; cause remanded with directions.
McLAREN and GILLERAN JOHNSON, JJ., concur.