THE PEOPLE OF THE STATE OF ILLINOIS, appellant, v. BEN CHRISTY, Appellee.
No. 69329
Supreme Court of Illinois
November 21, 1990
139 Ill. 2d 172
Robert Agostinelli, Deputy Defender, and Catherine M. Fitzsimmons, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
Defendant, Ben Christy, was charged by information in the circuit court of Whiteside County with one count of armed violence, two counts of kidnapping and one count of aggravated criminal sexual abuse in violation of sections 33A-2, 10-1(a)(1) and 12-16(a)(1) of the Criminal Code of 1961 (Code) (
On appeal, the appellate court vacated defendant‘s conviction and sentence for armed violence and remanded the cause for sentencing on the offense of aggravated kidnapping (
The appellate court also affirmed defendant‘s conviction for kidnapping, but reduced his sentence to a non-extended maximum term of seven years in prison. The court reasoned and the State conceded that an extended-term sentence for kidnapping was improper, because kidnapping was not the most serious offense of which defendant was convicted. (188 Ill. App. 3d 330.) This court granted the State‘s petition for leave to appeal (
The issues presented for review are: (1) whether defendant waived the issue regarding the constitutionality of the statutory penalties for aggravated kidnapping and armed violence by failing to raise it in the circuit court; and, if not, (2) whether the penalties for aggra
On June 5, 1988, 14-year-old Shad Baldwin and 15-year-old Doug Hanabarger were camping in a tent near Rock Falls, Illinois. At approximately 2 a.m., defendant entered their tent, threatened them with a crowbar, overpowered them, handcuffed them and tied their feet. Defendant then took them from the tent, handcuffed them to a tree and secured their feet to two dog-chain anchors. After packing the boys’ camping equipment, defendant forced them to carry the equipment to a storage building approximately 1.7 miles from the campsite.
Shortly after daylight, defendant and the two boys arrived at the storage building and entered one of the storage units. Defendant then forced the boys to remove their clothing and threatened to kill them if they did not. During the course of the day, defendant repeatedly threatened to kill the boys, held a steak knife with a serrated blade in excess of three inches to Hanabarger‘s throat, removed his own clothes and put on a tunic, talked about sex, asked the boys if they were virgins, told the boys that he had molested children, hugged the boys, and indicated that he planned their abduction. Later that evening, defendant gagged the boys with duct tape, tied their hands behind their backs, tied their feet together and to each other, tied ropes around each of their necks and tied these ropes to opposite ends of the storage unit. He then left to get bread and water.
While defendant was gone, the boys loosened the duct tape and began yelling for help. A female passerby heard the boys and stopped her car. She sent her 15-year-old granddaughter to call the police and assured the boys that she would not leave the storage unit.
Shortly thereafter, Deputy Sheriff Larry Isaacson of the Whiteside County sheriff‘s department arrived at the
Officer Ken Carey of the Rock Falls police department saw defendant running through the storage building premises. Officer Carey exited his patrol car, ordered defendant to stop, pursued him when he did not stop and tackled defendant. Deputy Isaacson arrived immediately and assisted in handcuffing defendant. At this time, defendant handed Deputy Isaacson a key to the storage unit and said, “This is what you want.” Defendant also told the police officers that he had a knife which belonged to one of the boys in his pocket. The police officers removed a hunting knife from defendant‘s pocket and also found a set of handcuff keys. Deputy Isaacson then returned to the storage unit and opened the door using the key defendant gave him. Upon opening the door, Deputy Isaacson saw the naked, bound and partially gagged boys.
The first issue presented for review is whether defendant waived the issue regarding the constitutionality of the statutory penalties for aggravated kidnapping and armed violence by failing to raise it in the circuit court. As a general rule, “a constitutional challenge to a statute can be raised at any time.” (People v. Bryant (1989), 128 Ill. 2d 448, 454; see also People v. Zeisler (1988), 125 Ill. 2d 42, 46; People v. Sarelli (1973), 55 Ill. 2d 169, 170-71.) Accordingly, defendant did not waive the issue regarding the constitutionality of the statutory penalties for aggravated kidnapping and armed violence.
The second issue presented for review is whether the penalties for aggravated kidnapping and armed violence are proportionate penalties pursuant to article I, sections 2 and 11, of the 1970 Illinois Constitution.
“No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws” (
Ill. Const. 1970, art. I, §2 );
and:
“All penalties shall be determined *** according to the seriousness of the offense ***” (
Ill. Const. 1970, art. I, § 11 ).
These constitutional provisions mandate penalties which are proportionate to the offenses.
Kidnapping is defined as knowingly and secretly confining another against his will. (
Armed violence is defined as the commission of any felony defined by Illinois law while armed with a dangerous weapon. (
In Wisslead, the defendant argued that the penalties for armed violence predicated on unlawful restraint with a category I weapon and aggravated kidnapping were unconstitutionally disproportionate. The defendant reasoned that the underlying offenses of unlawful restraint and kidnapping are related. The defendant further reasoned that commission of the Class 4 felony of unlawful restraint with a category I weapon constitutes the Class X felony of armed violence, whereas commission of the Class 2 felony of kidnapping with a category I weapon only constitutes the Class 1 felony of aggravated kidnapping. Wisslead, 94 Ill. 2d at 194.
This court agreed with the defendant‘s reasoning and stated, “Since each offense is enhanced by the identical additional element, a gun, the lesser offense of unlawful restraint should not thereby become a graver offense than kidnaping.” (Wisslead, 94 Ill. 2d at 195.) Thus, it was concluded that the penalties for armed violence predicated on unlawful restraint with a category I weapon and aggravated kidnapping were unconstitutionally disproportionate. Wisslead, 94 Ill. 2d at 196.
The State counters and argues that the penalties for aggravated kidnapping and armed violence are constitutionally proportionate. In support of its argument, the State relies on this court‘s decision in People v. Wade (1989), 131 Ill. 2d 370, and the appellate court‘s decision in People v. Moritz (1988), 173 Ill. App. 3d 498.
In Wade, the defendant argued that the penalties for armed violence predicated on intimidation with a cate-
In response to the defendant‘s argument, this court stated that “it cannot be said that intimidation is a less serious offense than attempted robbery, or that the commission of intimidation while armed is a less serious offense than attempted armed robbery.” (Wade, 131 Ill. 2d at 379.) Thus, the defendant‘s argument was reduced to “the claim that identically classified offenses may not be enhanced by the same circumstance to offenses of different classifications.” Wade, 131 Ill. 2d at 379.
In response to this argument, this court determined that “the availability of different punishments for separate offenses based on the commission of the same acts does not offend the constitutional guarantees of equal protection or due process.” (Wade, 131 Ill. 2d at 379.) Thus, it was held that the penalties for armed violence predicated on intimidation with a category I weapon and attempted armed robbery were constitutionally proportionate. Wade, 131 Ill. 2d at 379-80.
In Moritz, the defendant argued that the penalties for aggravated kidnapping and armed violence predicated on kidnapping with a category I weapon were unconstitutionally disproportionate. (Moritz, 173 Ill. App. 3d at 502.) The defendant reasoned that aggravated kidnapping and armed violence predicated on kidnapping with a category I weapon involve the same elements, yet
The appellate court agreed that aggravated kidnapping and armed violence predicated on kidnapping with a category I weapon “contain the same elements, no more and no less.” (Moritz, 173 Ill. App. 3d at 502.) The court further determined that “[t]he only difference between the two charges is the penalty.” (Moritz, 173 Ill. App. 3d at 502Moritz, 173 Ill. App. 3d at 505-06.
Wisslead and Wade are factually distinguishable from the present case. (See Moritz, 173 Ill. App. 3d at 504-05.) Wisslead addressed the proportionality of the two different penalties for two different, but related, offenses. Similarly, Wade addressed the proportionality of the two different penalties for two different, but related, offenses. The present case, however, involves the proportionality of the two different penalties for two identical offenses.
Furthermore, Moritz does not control the present case. Generally, prosecutorial discretion is a valuable aspect of the criminal justice system. (See People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 535-40.) In the present case, however, prosecutorial discretion will effectively nullify the aggravated kidnapping statute, as skilled State‘s Attorneys will usually seek the more severe sentence and, therefore, charge defendants with armed violence rather than aggravated kidnapping. An ineffective aggravated kidnapping statute is not what the legislature intended when it enacted both the armed violence and aggravated kidnapping statutes. As such,
Having distinguished Wisslead and Wade and disposed of Moritz, we must still determine whether the penalties for aggravated kidnapping and armed violence are constitutionally proportionate. Upon review of the relevant statutory provisions it is apparent that the commission of kidnapping while armed with a “knife with a blade of at least 3 inches in length” constitutes both aggravated kidnapping and armed violence. Since the elements which constitute aggravated kidnapping and armed violence are identical, common sense and sound logic would seemingly dictate that their penalties be identical. Nevertheless, aggravated kidnapping is a Class 1 felony punishable by “not less than 4 years and not more than 15 years” in prison (
For the foregoing reasons, we affirm the judgment of the appellate court.
Judgment affirmed.
JUSTICE MILLER, dissenting:
In my view, the case at bar is indistinguishable from People v. Wade (1989), 131 Ill. 2d 370, and the principles expressed in that opinion are clearly applicable here. Consistent with Wade, I would hold that the defendant‘s conviction and sentence for the Class X felony of armed violence, based on the predicate felony of kidnapping, does not abridge the guarantee of sentencing proportion-
As a preliminary matter, the majority holds that the defendant‘s supposed failure to raise in the circuit court his constitutional challenge to the armed violence conviction was not a procedural default. While the majority cites several cases in support of the proposition that such an argument may be raised at any time, the majority ignores other decisions that suggest a contrary rule. (See People v. Fernetti (1984), 104 Ill. 2d 19, 21-23; People v. Myers (1981), 85 Ill. 2d 281, 290-91.) That question need not be resolved in this case, however, for a review of the record reveals that the constitutional issue was adequately presented in the circuit court.
During a pretrial conference, the trial judge raised sua sponte the question whether there was any constitutional infirmity in the existence of differently classified offenses proscribing the same conduct. The judge did not rule on the matter at that time. At a later hearing, the judge distinguished this court‘s decision in People v. Wisslead (1983), 94 Ill. 2d 190, on the ground that Wisslead involved predicate offenses of different, rather than identical, classes. The judge expressed the view that the present case, involving predicate offenses of the same class, was essentially a matter of prosecutorial discretion. The defendant proceeded to trial on the armed violence charge, and he was convicted of that offense.
Although the defendant did not raise in his post-trial motion the constitutional claim presented here, he did argue that the prosecutor had abused his discretion in charging him with armed violence rather than aggravated kidnapping, and he asked that his conviction for armed violence be reduced accordingly. At the hearing on the post-trial motion, the trial judge let stand the
As the record demonstrates, the constitutionality of the defendant‘s conviction for armed violence was considered and resolved in the circuit court. Acting sua sponte, the trial judge posed the precise issue that is now before us. Although the defendant‘s post-trial motion did not explicitly challenge the armed violence conviction on constitutional grounds, the defendant did assert that the prosecutor had abused his discretion in charging that offense. In denying the post-trial motion, the trial judge relied on case law that rejected the same argument made here. I would conclude that the constitutional question presented here was adequately raised in the trial court. Contrary to the majority‘s view, we have no cause in this case to determine whether such a claim may never be procedurally defaulted.
Turning to the merits of the case, I do not agree with the court‘s conclusion that, for constitutional reasons, a defendant may be convicted of only the less serious crime when two differently classified offenses proscribe the same conduct. The majority purports to distinguish last year‘s decision in Wade on the ground that the predicate felonies in Wade were ”different, but related, offenses,” while the predicate felonies in the present case are “two identical offenses” (emphasis in original) (139 Ill. 2d at 180). The distinction drawn by the court is an unwarranted one, however. That the same offense may serve as the predicate for an enhanced charge under both the armed violence and aggravated kidnapping statutes is but a variation on the established rule that crimi-
In Wade we rejected the argument that “identically classified offenses may not be enhanced by the same circumstance to offenses of different classifications.” (131 Ill. 2d at 379.) Citing the Supreme Court‘s decision in United States v. Batchelder (1979), 442 U.S. 114, and this court‘s decision in People v. McCollough (1974), 57 Ill. 2d 440, we reasoned that “the availability of different punishments for separate offenses based on the commission of the same acts does not offend the constitutional guarantees of equal protection or due process.” (131 Ill. 2d at 379.) In addition, we noted that the legislature enjoys broad power to define criminal offenses and to prescribe penalties for those violations. (131 Ill. 2d at 379, citing People v. Upton (1986), 114 Ill. 2d 362, 373.) Although the “identically classified [predicate] offenses” presented for comparison in Wade were indeed different felonies, it is clear that the same conduct was thought to underlie each one. Having determined in Wade that identically classified offenses, though based on the same conduct, may be enhanced to offenses of different classifications, we should now hold that the same offense may itself serve as the predicate for differently classified offenses, in the absence of the legislature‘s expression of a contrary design.
As Wade‘s citations to Batchelder and McCollough make clear, Wade was not the first case to consider the validity of overlapping criminal statutes that prohibited identical conduct. Batchelder involved two Federal statutes that both proscribed the receipt of a firearm by a
“Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied.” Batchelder, 442 U.S. at 123.
In addition, the Batchelder Court ruled that the discretion afforded to the prosecutor by the existence of the two provisions did not offend the constitutional guarantees of equal protection or due process. The Court noted that it had “long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants” (442 U.S. at 123-24) and rejected the view of the court of appeals in that case that a different rule should apply to overlapping statutes that require proof of the same elements. The Court explained:
“[T]here is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from
the one he faces in the latter context.” (Batchelder, 442 U.S. at 125.)
It was therefore within the prosecutor‘s discretion to decide which of the two identical provisions would form the basis for the prosecution.
In McCollough, this court similarly found no constitutional infirmity in the existence of the overlapping offenses of reckless homicide and involuntary manslaughter, which provided different penalties for the same conduct, the reckless operation of a motor vehicle causing the death of another person. The court dismissed the argument that the existence of the two provisions allowed the prosecutor undue discretion in determining which offense to charge, reasoning that prosecutors customarily exercise discretion in evaluating evidence and determining what charges to bring. Rejecting a related contention, the court observed that an accused may not normally be heard to complain of standing trial for a particular offense though the same conduct could be punished less severely under a different charge. The court considered that the legislature, in establishing the distinct offenses of reckless homicide and involuntary manslaughter, may well have believed that the overlapping provisions, with their different punishments, would enable a prosecutor to tailor the charge to the circumstances of the particular case. McCollough, 57 Ill. 2d at 444-45.
Batchelder, McCollough, and Wade found no constitutional infirmity in the legislature‘s provision of separate offenses proscribing the same conduct. Those decisions recognized that such statutory overlap simply affords the prosecutor discretion in determining which offense to charge. As the McCollough court noted, “The kind of determination committed to the discretion of the State‘s Attorney by the statute in this case is the same kind of discretion that is committed to him with respect to a
I would also reject the defendant‘s alternative contention, not addressed by the majority, that prosecution under the armed violence statute must be barred here as a matter of statutory interpretation. Invoking two familiar rules, the defendant asserts that the aggravated kidnapping statute, as the more lenient and more specific provision, must take precedence over the armed violence statute. The present case demonstrates that the provisions share kidnapping as a predicate felony and thus overlap to that degree. There is ample reason, however, to suppose that the legislature intended the two statutes to coexist, affording prosecutors greater discretion in the charging process.
It is certainly true that ambiguities in criminal statutes will be resolved in favor of lenity. (United States v. Bass (1971), 404 U.S. 336, 347; People v. Hillenbrand (1988), 121 Ill. 2d 537, 560-61.) The present statutes, however, pose no ambiguity requiring such treatment. Unambiguous language will be given effect “without resort to supplementary principles of statutory construction.” (People v. Singleton (1984), 103 Ill. 2d 339, 341.) The language used in the armed violence, aggravated kidnapping, and kidnapping statutes is clear on this point (see
To be sure, this court has previously construed the armed violence statute to bar the use of certain felonies as the predicate offense for that charge. Thus, the court has held that armed violence may not be based on a felony that is itself enhanced, because of the presence of a weapon, from another felony (People v. Del Percio (1985), 105 Ill. 2d 372) or from a misdemeanor (Haron, 85 Ill. 2d 261). In addition, the court has held that a charge of armed violence may not be predicated on either voluntary manslaughter (People v. Alejos (1983), 97 Ill. 2d 502) or involuntary manslaughter (People v. Fernetti (1984), 104 Ill. 2d 19), because application of the armed violence statute to the essentially unpremeditated conduct constituting those offenses would not advance the deterrent or retributive purposes of the armed violence statute.
The concerns animating the decisions in Del Percio, Haron, Alejos, and Fernetti are absent here. The present defendant abducted two youths from their campground and held them captive for 18 hours. The predicate offense for the defendant‘s armed violence conviction is the unenhanced felony of kidnapping, and the defendant‘s actions in threatening one of the victims with a knife during the period of confinement supply the aggravating element. Conduct of this nature surely is what the legislature intended to deter—and to punish—when it enacted the armed violence statute, and I would sustain the defendant‘s Class X conviction for that offense.
For the reasons stated, I respectfully dissent.
JUSTICE RYAN joins in this dissent.