Opinion
No. 1-15-0814
08-22-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORBETT JOHNSON, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County,
No. 88 CR 6680
Honorable James B. Linn, Judge, presiding.
JUSTICE MASON delivered the judgment of the court.
Presiding Justice Hyman and Pierce concurred in the judgment.
ORDER
¶ 1 Held: Armed robbery conviction and sentence violated proportionate penalties clause by requiring longer sentence than identical offense of armed violence. Armed robbery conviction vacated and armed violence conviction entered instead, with maximum unextended prison sentence of seven years.
¶ 2 Following a 1989 jury trial, defendant Corbett (or Corbette) Johnson was convicted of aggravated criminal sexual assault, armed robbery, and kidnapping, and sentenced to a 60-year extended prison term, a consecutive 50-year extended term, and a concurrent 14-year term,
respectively. We affirmed on direct appeal. People v. Johnson, No. 1-90-0800 (1992) (unpublished order under Supreme Court Rule 23). Johnson's 1999 postconviction petition was summarily dismissed. He now appeals from the 2015 denial of leave to file a successive postconviction petition. He contends, and the State agrees, that his armed robbery conviction and sentence violate the proportionate penalties clause (Ill. Const.1970, art. I, § 11) by requiring a longer sentence than the identical offense of armed violence, so that an armed violence conviction must be entered instead. The parties dispute whether we should enter the seven-year maximum unextended sentence for armed violence or remand for resentencing on armed violence because Johnson qualifies for Class X sentencing. We vacate the armed robbery conviction and enter an armed violence conviction with a sentence of seven years' imprisonment.
¶ 3 Johnson was charged in relevant part with armed robbery in that "he, by use of force and by threatening the imminent use of force while armed with a dangerous weapon, took" certain property from D.P.'s "person and presence." We will not summarize the trial evidence or proceedings, as we did so on direct appeal, except to note that Johnson committed the instant offenses on January 31, 1988, and used a club. The record indicates that his prior convictions, not including a 1974 battery and a 1975 burglary for which he received probation, were in April 1977 for rape, armed robbery, and robbery with a prison term of 10 to 30 years, and in 1988 for two counts of robbery with a prison term of 14 years.
¶ 4 On direct appeal, Johnson contended that the trial court erred in admitting other-crimes evidence at trial and that his sentences were excessive due to the extended and consecutive prison terms, but he did not challenge his eligibility for extended terms or consecutive sentencing. As noted, we affirmed the convictions and sentences.
¶ 5 Johnson filed a pro se postconviction petition in February 1999, raising challenges to other-crimes evidence and his sentences. The court disposed of the petition in March 1999.
¶ 6 Johnson filed the instant petition in January 2015, challenging his extended-term sentencing. The court denied him leave to file a successive petition that same month and he timely appealed.
¶ 7 As a threshold matter, we note that Johnson is raising this proportionate penalties challenge for the first time on appeal from the disposition of his postconviction petition. As the parties correctly note, a claim that a sentence is based on a statute that violates the proportionate penalties clause is a voidness claim of facial unconstitutionality that can be raised at any time. People v. Ligon, 2016 IL 118023, ¶ 9.
¶ 8 The parties are correct on their substantive points of agreement as well. The proportionate penalties clause is violated when offenses with identical elements carry different penalties. Ligon, ¶¶ 10-11; People v. Clemons, 2012 IL 107821, ¶¶ 28-53; People v. Span, 2011 IL App (1st) 083037, ¶ 98. In Clemons, our supreme court followed earlier precedent and held that armed robbery with a firearm has identical elements to armed violence with a Category I or II dangerous weapon and a predicate felony of robbery, but the former had a higher sentencing range than the latter, so that the proportionate penalties clause was violated. Clemons, ¶¶ 12-26. In Span, this court found that attempted armed robbery with a bludgeon, and attempted armed violence with a bludgeon and a predicate felony of robbery, contain identical elements. Span, ¶ 105. Because attempted armed robbery committed with a bludgeon was a Class 1 felony while attempted armed violence with a bludgeon was a Class 3 felony, we found an unconstitutional disparity, vacated the attempted armed robbery conviction, and entered a conviction for attempted armed violence. Id., ¶¶ 106, 108-110. We also agree with the parties that Ligon and
People v. Hernandez, 2016 IL 118672, are distinguishable from Clemons, Span, and the instant case. The pellet gun in Ligon and tin snips in Hernandez were not inherently bludgeons but merely used as such, did not qualify as bludgeons or Category III dangerous weapons for purposes of the armed violence statute, and thus armed violence was not an identical offense for proportionate-penalties purposes. Ligon, ¶¶ 23-25; Hernandez, ¶¶ 13-16. By contrast, the club used in this case is inherently a bludgeon and thus a dangerous weapon for purposes of both armed violence and armed robbery.
¶ 9 Armed robbery was and is a Class X offense and consisted here of committing robbery while armed with a dangerous weapon, a club or bludgeon. 720 ILCS 5/18-2 (West 2014), (formerly Ill. Rev. Stat. 1987, ch. 38, ¶ 18-2). Armed violence consisting of committing robbery while armed with a dangerous weapon of the category including bludgeons was and is a Class 2 felony. 720 ILCS 5/33A-1 to 33A-3 (West 2014)(formerly Ill. Rev. Stat. 1987, ch. 38, ¶¶ 33A-1 to 33A-3). The two offenses have the same elements but disparate sentencing ranges. Following Clemons and Span, we vacate Johnson's armed robbery conviction and enter instead a conviction for armed violence while armed with a bludgeon. We agree with the parties that Johnson is not eligible for an extended prison term for armed violence because it is not his most serious or highest-felony-class offense. 730 ILCS 5/5-8-2(a) (West 2014)(formerly Ill. Rev. Stat. 1987, ch. 38, ¶ 1005-8-2(a)); People v. Lashley, 2016 IL App (1st) 133401, ¶ 74.
¶ 10 Turning to the issue of the sentence for armed violence, we agree with Johnson that he is not a Class X offender. The Class X offender statute provides:
"When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted in any state or federal court of an offense that contains the same elements as an offense now (the date the Class 1 or Class 2 felony was
committed) classified in Illinois as a Class 2 or greater Class felony and those charges are separately brought and tried and arise out of different series of acts, that defendant shall be sentenced as a Class X offender. This subsection does not apply unless: (1) the first felony was committed after February 1, 1978 (the effective date of Public Act 80-1099); (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second." 730 ILCS 5/5-4.5-95(b) (West 2014) (formerly Ill. Rev. Stat. 1987, ch. 38, ¶ 1005-5-3(c)(8)).
Johnson has only one prior felony conviction after 1978. We conclude that the appropriate sentence is seven years' imprisonment, the maximum unextended term for a Class 2 felony. 730 ILCS 5/5-4.5-35(a) (West 2014) (formerly Ill. Rev. Stat. 1987, ch. 38, ¶ 1005-8-1(a)(5)).
¶ 11 Accordingly, we vacate Johnson's conviction for armed robbery and enter a conviction for armed violence (with a predicate felony of robbery, committed by being armed with a bludgeon) with a sentence of seven years' imprisonment. As stated, this sentence is consecutive to his 60-year sentence for aggravated criminal sexual assault and concurrent to his 14-year sentence for kidnapping. The judgment of the circuit court is otherwise affirmed.
¶ 12 Vacated in part and affirmed as modified.