Opinion
No. 1-04-2258
April 27, 2006. OPINION WITHDRAWN BY THE COURT: July 17, 2007.
Appeal from the Circuit Court of Cook County, Kenneth J. Wadas, Judge, presiding.
Following a bench trial in the circuit court of Cook County, defendant Terrin Lee was convicted of one count of armed robbery and three counts of aggravated unlawful restraint. He was then sentenced to concurrent prison terms of 19 years for armed robbery and 10 years for each conviction of aggravated unlawful restraint. On appeal, defendant contends that the State failed to prove him guilty of armed robbery beyond a reasonable doubt and that his convictions for aggravated unlawful restraint must be vacated under the one-act, one-crime doctrine. In a supplemental brief, defendant contends that the armed robbery statute under which he was convicted is void because the penalty provision of that statute violates the proportionate penalties clause of the Illinois Constitution, thereby rendering his armed robbery conviction void.
Defendant was charged with the armed robbery of Duncan Ellington and the aggravated unlawful restraint of Duncan, his wife Claudina and their 11-year-old son Christopher. The incident occurred in the 2000 block of West 79th Street in Chicago on September 1, 2001. At trial, Duncan testified that about 12:45 on the morning in question, he entered a liquor store in that area with Claudina and Christopher to purchase some items and to withdraw money from a cash machine. They left the store with their purchases and walked northbound across 79th Street. As they approached the median, Duncan heard his wife scream, then saw her take a step back. Duncan stopped when he heard someone behind him say, "give me all your money." Without turning around, he gave $10 to this person, who then demanded the rest of his money. Duncan then turned and saw his assailant, whom he identified as defendant.
Duncan also testified that defendant was carrying a chrome or silver-colored weapon at his side, which looked like a gun. After taking the rest of Duncan's money, defendant crossed the street, entered a waiting vehicle and drove away. Duncan notified police of the incident and subsequently identified defendant in a lineup at the police station. On cross-examination, Duncan acknowledged that he did not know if the chrome weapon in defendant's hand was a gun and that he never saw defendant point anything at himself or anyone else.
Claudina Ellington testified that she was using drugs during most of 2001 and that she had since gone through rehabilitation. She further testified that as she and her family were crossing 79th Street after leaving the liquor store, she heard someone behind her say "give me your money motherfucker. I'm going to shoot you." She turned around and screamed when she saw defendant pointing a 9-millimeter, chrome-plated gun at her husband. Claudina stated that her vision was not impaired in any way during this incident.
On cross-examination, Claudina acknowledged that she free-based cocaine in the past and that she had purchased narcotics on the night in question. She denied ever meeting defendant or purchasing narcotics from him.
Christopher Ellington testified that he and his parents were crossing the street when defendant approached his dad and said, "give me your money." Christopher also testified that the man was carrying "a gun, I think," that was silver in color. Christopher ran back across the street to the sidewalk and saw defendant take his father's money and flee in a waiting car.
Detective Jenny Christoforakis testified that in the early morning hours of September 1, 2001, she was called to 75th and Honore Streets, where a car had been stopped and police had defendant in custody. She also testified that no weapon was found in this vehicle. The detective noted in her supplemental police report that Claudina heard defendant say, "I am going to shoot you in the back if you don't give me that money."
The parties stipulated that, if called to testify, Officer Demato would testify that on the date in question, he stopped the vehicle in which defendant was riding and that no handgun was found on defendant's person or inside that vehicle.
The State rested, and the defense re-called Claudina. She testified that she did not know an individual named Timothy Collins, but knew a Tim who had an eye impairment. She denied ever commenting to Tim or anyone else that she did not believe defendant had a gun in his possession during the robbery. On cross-examination, Claudina testified that she spoke to Tim prior to trial, that he identified himself as defendant's brother-in-law, and offered her $100 not to testify against defendant.
Adrian Anderson testified that he accompanied defendant to the liquor store on the day in question. Anderson stated that defendant always carried the face plate of his radio with him, that defendant had this plate in his hands during the incident, and that he never pointed it at anyone.
Timothy Collins testified that he had gotten "high" in the same room as Claudina on past occasions. He also testified that he spoke to Claudina twice prior to defendant's trial and that she told him that she did not actually see defendant with a gun. Collins also testified that defendant had told him that the only thing he had in his hands during the incident was the face plate to his radio. Collins denied offering Claudina money not to testify at defendant's trial.
The trial court found defendant guilty of one count of armed robbery and three counts of aggravated unlawful restraint. In doing so, the court specifically found that both Claudina and Christopher credibly testified that defendant was carrying a gun in his hand.
On appeal, defendant first challenges the sufficiency of the evidence to convict him of armed robbery. When reviewing a challenge to the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Cunningham, 212 Ill. 2d 274, 278 (2004). A criminal conviction will not be set aside on appeal unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt as to the defendant's guilt. People v. Cox, 195 Ill. 2d 378, 387 (2001). We do not find this to be such a case.
In order to sustain defendant's conviction for armed robbery, the State was required to prove that defendant committed robbery ( 720 ILCS 5/18-1 (West 2000)) while carrying a firearm ( 720 ILCS 5/18-2(a)(2) (West 2000)). Defendant does not dispute the sufficiency of the evidence to establish the elements of robbery, but contends that the State failed to prove beyond a reasonable doubt that he committed the robbery while carrying a firearm.
In this case, Claudina unequivocally testified that defendant was holding a chrome plated, 9 millimeter handgun while he robbed her husband. The trial court found Claudina to be a credible witness, and her testimony alone was sufficient to establish that defendant was armed during the robbery. People v. Thomas, 189 Ill. App. 3d 365, 371 (1989). In addition, Claudina's version of events was corroborated by Duncan and Christopher, who testified that defendant was carrying a silver object in his hand. Finally, defendant's threat to shoot Duncan was circumstantial evidence that he was carrying a firearm during the robbery. See People v. Garcia, 229 Ill. App. 3d 436, 439 (1992) (defendant's repeated threats to shoot the victim were circumstantial evidence that he was armed with a dangerous weapon). We thus conclude that this evidence, considered in the light most favorable to the State, was sufficient to find defendant guilty of armed robbery beyond a reasonable doubt. People v. Coleman, 345 Ill. App. 3d 1029, 1032 (2004).
Nonetheless, defendant argues that Claudina's testimony was incredible and unconvincing, and therefore insufficient to support his conviction for armed robbery. In support of his assertion, defendant cites Claudina's admitted prior drug use, Collins' testimony that Claudina told him that she did not actually see a gun, and Anderson's testimony that defendant was carrying the face plate to his radio. We note, however, that it was the responsibility of the trial court to assess the credibility of the witnesses and to resolve conflicts in their testimony. People v. Ortiz, 196 Ill. 2d 236, 259 (2001). Here, the trial court was aware of Claudina's drug use, but chose to believe her version of events over that of defendant's alibi witness, and specifically found her to be credible. We will not substitute our judgment for that of the trier of fact in these matters ( Ortiz, 196 Ill. 2d at 259), and we find that defendant's attack on the credibility of this witness does not raise a reasonable doubt of his guilt ( People v. Hall, 114 Ill. 2d 376, 410 (1986); People v. Berland, 74 Ill. 2d 286, 307 (1978)).
Defendant further argues that the evidence was insufficient to prove him guilty beyond a reasonable doubt because the victim, Duncan, did not know if defendant had a gun and he was unable to give a description of the object in defendant's hand except for its color. We disagree. A conviction for armed robbery may be sustained "`even though the weapon itself was neither seen nor accurately described by the victim.'" Coleman, 345 Ill. App. 3d at 1033, quoting People v. Elam, 50 Ill. 2d 214, 220 (1972).
Finally, defendant argues that there is insufficient circumstantial evidence that he was armed with a firearm because all three Ellingtons testified inconsistently as to the exact threat that he made to Duncan. We have already found there was sufficient direct evidence to support defendant's armed robbery conviction, and further note that the three members of the Ellington family testified consistently that defendant demanded Duncan's money, and Claudina testified that defendant threatened to shoot her husband. The trier of fact is not required to disregard the inferences that flow from the evidence in order to find guilt beyond a reasonable doubt ( Hall, 114 Ill. 2d at 409), and in this case, we find that the circumstances described by the witnesses support the inference that defendant was armed with a gun ( Coleman, 345 Ill. App. 3d at 1033). Moreover, we find that the alleged inconsistencies were minor in nature and fully explored at trial, and that they do not create a reasonable doubt of defendant's guilt. People v. Crespo, 118 Ill. App. 3d 815, 819 (1983).
In reaching this conclusion, we find People v. Fiala, 85 Ill. App. 3d 397 (1980), cited by defendant, distinguishable from the case at bar. In Fiala, the State's case was based entirely on circumstantial evidence, and none of the eyewitnesses to the robbery actually saw a gun in defendant's possession. Fiala, 85 Ill. App. 3d at 400-01. Here, on the other hand, there was direct evidence in the form of Claudina's positive and credible eyewitness testimony that defendant was carrying a firearm and threatened to shoot Duncan. Therefore, Fiala provides no basis for reversal.
Defendant next contends that his convictions for aggravated unlawful restraint must be vacated because they violate the one act, one-crime doctrine. Initially, we note that defendant waived this issue by failing to raise it at trial or in a posttrial motion ( People v. Enoch, 122 Ill. 2d 176, 186 (1988)); however, we may review this claim under the plain error doctrine ( People v. Carter, 213 Ill. 2d 295, 299-300 (2004)).
Defendant first argues that his conviction for the aggravated unlawful restraint of Duncan must be vacated because that offense was carved out of the same physical act that formed the basis of his armed robbery conviction. The State concedes that this conviction should be vacated under the one-act, one-crime principle announced in People v. King, 66 Ill. 2d 551, 566 (1977). We agree and thus vacate defendant's conviction for the aggravated unlawful restraint of Duncan (count II).
Based on our conclusion that defendant was improperly convicted of the aggravated unlawful restraint of Duncan, defendant further argues that his case should be remanded for resentencing because it is impossible to determine from the record whether the trial court would have imposed the same sentences had it entered fewer judgments of conviction. Where, as here, there is no indication in the record that the vacated conviction had any bearing on the remaining sentences, a remand for resentencing is not necessary. People v. Moreland, 292 Ill. App. 3d 616, 622 (1997).
Defendant also argues that his convictions for the aggravated unlawful restraint of Claudina and Christopher must be vacated because they are based on the same physical act as his armed robbery conviction, i.e., his detention of the Ellingtons in order to obtain money from Duncan. In making this argument, defendant again relies on King for the proposition that multiple convictions are improper if they are based on precisely the same physical act. King, 66 Ill. 2d at 566.
Although we agree with the cited principle, we find the case at bar more akin to People v. Shum, 117 Ill. 2d 317, 363 (1987), where the supreme court distinguished its holding in King and found that separate convictions based on one act are proper when there are multiple victims of that act. In this case, there were multiple victims of defendant's conduct, as the effect of his threat was not confined to Duncan but, rather, extended to Claudina and Christopher. Therefore, pursuant to Shum, we find that defendant's convictions for the aggravated unlawful restraint of Claudina and Christopher were proper. Shum, 117 Ill. 2d at 363.
Defendant responds, however, that he only intended to rob Duncan and that any restraint of Claudina and Christopher was incidental to that robbery. This argument was rejected in King, where the court abandoned the "independent motivation" test, which focused on defendant's overall criminal objective at the time the acts were committed. King, 66 Ill. 2d at 566.
Alternatively, defendant asserts that his conviction for the aggravated unlawful restraint of Christopher must be reversed because the State failed to prove that Christopher was restrained, based on his testimony that he ran back across the street when defendant approached his family.
Aggravated unlawful restraint is committed when a person "knowingly without legal authority detains another while using a deadly weapon." 720 ILCS 5/10-3.1 (West 2000). Actual or physical force is not an element of the offense, so long as the individual's freedom of movement is impaired. People v. Bowen, 241 Ill. App. 3d 608, 628 (1993). Here, Christopher and his parents were stopped in the middle of the street by defendant, who demanded his father's money at gunpoint. Christopher was thus restrained by defendant's actions with his parents, then ran back to the sidewalk and watched and waited for them. The totality of these circumstances and reasonable inferences therefrom were sufficient to find defendant guilty of the aggravated unlawful restraint of Christopher. Bowen, 241 Ill. App. 3d at 627-28.
In a supplemental brief, defendant contends that the penalty provision of the armed robbery statute under which he was convicted is void because it violates the proportionate penalties clause of the Illinois Constitution. Ill. Const. 1970, art. I, § 11. He further argues that the substantive armed robbery statute is inextricably linked to the unconstitutional penalty provision, thereby rendering that statute and his armed robbery conviction void as well. Defendant's argument is based on People v. Moss, 206 Ill. 2d 503, 531 (2003), and People v. Walden, 199 Ill. 2d 392, 397 (2002), where the court used cross-comparison analysis and declared, inter alia, 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)), and the 20-year enhancement for armed robbery when the offender discharges a firearm ( 720 ILCS 5/18-2(a)(3), (b) (West 2000)), violated the proportionate penalties clause and were unenforceable.
After defendant filed his supplemental brief, our supreme court issued its decision in People v. Sharpe, 216 Ill. 2d 481 (2005), which overruled Moss and Walden and held that a defendant could no longer use the cross-comparison analysis to challenge a penalty under the proportionate penalties clause. Sharpe, 216 Ill. 2d at 533. In reaching this conclusion, the court stated:
"After much reflection, we have concluded that cross-comparison analysis has proved to be nothing but problematic and unworkable, and that it needs to be abandoned. Those cases that used such an analysis to invalidate a penalty are overruled, and this court will no longer use the proportionate penalties clause to judge a penalty in relation to the penalty for an offense with different elements." Sharpe, 216 Ill. 2d at 519.
The State responds that, pursuant to Sharpe, the firearm enhancements are revived and constitutional and defendant's argument is without merit. We agree and reject defendant's constitutional challenge to the armed robbery statute.
Based on that conclusion, the State maintains that the statutory 15-year sentence enhancement for armed robbery with a firearm ( 720 ILCS 5/18-2(a)(2), (b) (West 2000)) applies to defendant. The State then requests this court to impose the enhancement or remand the case for resentencing with the direction that it be imposed because the current sentence does not conform to the statutory requirement and is therefore void. People v. Arna, 168 Ill. 2d 107, 113 (1995).
Defendant responds that Sharpe does not apply retroactively and that its applicability to this case is limited to precluding him from using cross-comparison analysis to challenge his sentence under the proportionate penalties clause. Defendant also argues that the State has no right to raise sentencing issues on appeal unless the sentence is void, and the claims that his sentence is not void because the trial court had jurisdiction in this case and sentenced him within the appropriate range consistent with Walden.
We initially observe that the issue of the State's right to appeal defendant's sentence is not before us because defendant appealed his armed robbery conviction, and Supreme Court Rule 615(b) specifically grants this court the authority to "modify the judgment or order from which the appeal is taken." 134 Ill. 2d R. 615(b); see also People v. Scott, 69 Ill. 2d 85, 88 (1977); People v. Dixon, 91 Ill. 2d 346, 352-54 (1982). Therefore, the issue before us is whether Sharpe applies retroactively to defendant's case, rendering his armed robbery sentence void.
The legislature enacted Public Act 91-404 in 2000, amending various felony offenses, including armed robbery, by adding sentence enhancements when a firearm is involved in the commission of the offense. See Pub. Act 91-404, § 5, eff. January 1, 2000. Defendant was indicted for an offense that he committed in 2001, and his trial and sentencing hearing were held in 2003, when Moss and Walden had invalidated the enhancement provisions. The decision in Sharpe, which overturned Moss and Walden, was issued while defendant's case was pending on direct review.
Judicial opinions announcing new constitutional rules applicable to criminal cases are retroactive to all cases pending on direct review at the time the new rule is declared. People v. Martinez, 348 Ill. App. 3d 521, 533 (2004), citing People v. Ford, 198 Ill. 2d 68, 73 (2001), citing Griffith v. Kentucky, 479 U.S. 314 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987); see also People v. Cook, 352 Ill. App. 3d 108, 123 (2004). As the Supreme Court noted in Griffith, the failure to apply a new constitutional rule to criminal cases pending on direct review, even when that rule is a "`clear break' [from] the past," violates the basic norms of constitutional adjudication. Griffith, 479 U.S. at 322, 328, 93 L. Ed. 2d at 658, 661, 107 S. Ct. at 713, 716.
Under this reasoning, we find that the rule announced in Sharpe is of constitutional dimensions (see People v. Gersch, 135 Ill. 2d 384, 393-95 (1990) (distinguishing a new rule of law that is statutory in origin from one that is constitutionally based)) and, therefore, applicable to defendant's case. It thus follows that the 15-year enhancement should have been imposed to his sentence for armed robbery. Because it was not, the sentence is void and we have the authority to correct it on appeal. See Arna, 168 Ill. 2d at 113 (sentence that does not conform to a statutory requirement is void and may be corrected at any time).
This conclusion is consistent with the supreme court's decision in People v. Guevara, 216 Ill. 2d 533 (2005). In Guevara, the trial court had dismissed a home invasion indictment against defendant based on its finding that section 12-11(a)(3) of the Criminal Code of 1961 (Code) ( 720 ILCS 5/12-11(a)(3) (West 2000)) was unconstitutional pursuant to Moss. Guevara, 216 Ill. 2d at 539. On appeal by the State, the court reversed and remanded, finding that defendant's proportionate penalties argument failed in light of Sharpe and that section 12-11(a)(3) of the Code was constitutional. Guevara, 216 Ill. 2d 544-47. Had the court intended Sharpe to be limited to prospective application only, then Moss still would have been the governing law at the time defendant was sentenced, the enhancement could not have been applied to his case, and the court would not have remanded for further proceedings.
This conclusion is also consistent with the Fourth District's recent decision in People v. James, 362 Ill. App. 3d 1202 (2006), where defendant requested that his sentence for home invasion be reduced by 15 years because the mandatory 15-year enhancement imposed on his sentence violated the proportionate penalties clause of the Illinois Constitution. James, 362 Ill. App. 3d at 1206. The court in James affirmed defendant's sentence and found that his argument was foreclosed by Guevara, even though he was sentenced prior to that decision and while Moss arguably invalidated the enhancement sentencing provisions for that offense. James, 362 Ill. App. 3d at 1207. The court also noted that its affirmation of defendant's sentence was consistent with the court's decision in Guevara. James, No. 4-04-0414, slip op. at 10-11.
Defendant relies on People v. Patton, 57 Ill. 2d 43 (1974), to argue that Sharpe cannot be applied retroactively because it made the law less favorable to him than it previously was. However, we find defendant's reliance of this case misplaced. The court in Patton cited to cases in other jurisdictions which held that decisions making the law less favorable to a defendant must be applied prospectively to support its express holding that its decision should be applied prospectively only. Patton, 57 Ill. 2d at 48-49. The decision in Sharpe, on the other hand, contains no such express statement or limiting language. Contrary to defendant's argument, we do not believe that the language employed by the court in Sharpe, including its use of the heading "The Future of Proportionate Penalties Clause Jurisprudence" ( Sharpe, 216 Ill. 2d at 521), was meant to indicate that its decision was to be applied prospectively only.
Defendant also argues that imposing the 15-year enhancement would violate his due process rights to notice and fair warning, claiming that, at trial and during sentencing, he had no notice that his conduct was subject to the enhancement. We find this argument unpersuasive because defendant has failed to explain how he relied on the unconstitutionality of the 15-year enhancement when making decisions relating to plea bargaining, whether to take a bench or jury trial, or what trial strategies to employ.
Finally, defendant claims that, even if the 15-year enhancement can be imposed on his sentence, he has the right to elect to be sentenced under the law in effect at the time of his sentencing hearing. See, e.g., People v. Hollins, 51 Ill. 2d 68, 71 (1972). However, a defendant's right to choose the law under which he is sentenced is not a constitutional right but, rather, one that must be conferred by the legislature when it amends a statute. People v. Peoples, 71 Ill. App. 3d 842, 845 (1979). In this case, the legislature did not amend the armed robbery statute between the time defendant committed the offense and when he was sentenced for it. Therefore, defendant has no statutory basis for making an election.
In sum, we affirm defendant's convictions for armed robbery and for the aggravated unlawful restraint of Claudina and Christopher; vacate his conviction for the aggravated unlawful restraint of Duncan; and, pursuant to Supreme Court Rule 615(b) (134 Ill. 2d R. 615(b)), vacate defendant's sentence for armed robbery and remand for resentencing on that conviction.
Affirmed in part and vacated in part; cause remanded for resentencing.
GREIMAN and MURPHY, JJ., concur.