THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FLOYD CUMMINGS, Defendant-Appellant.
No. 1-14-3948
APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
April 15, 2016
2016 IL App (1st) 143948-U
PRESIDING JUSTICE McBRIDE
FOURTH DIVISION. 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).
Justices Howse and Cobbs concurred in the judgment.
ORDER
¶ 1 Held: Defendant‘s Class X armed robbery conviction is unconstitutionally disproportionate to the identical offense of armed violence predicated on robbery while armed with a category III weapon, and the trial court erred in dismissing defendant‘s section 2-1401 petition for relief from judgment.
¶ 2 Defendant Floyd Cummings appeals the dismissal of his petition for relief from judgment pursuant to
¶ 3 In June 2002, defendant was convicted of armed robbery following a jury trial. Since the armed robbery was defendant‘s third Class X conviction, he was subsequently sentenced to natural life under the Habitual Criminal Act.
¶ 4 The evidence at trial established that in October 2000, defendant and two codefendants robbed a Subway Sandwich Shop at 5300 South Kimbark Avenue in Chicago. One of the codefendants was an employee on duty at the time of the robbery and the other codefendant was her boyfriend. The employee left the employee door open following a cigarette break, and defendant and the boyfriend entered armed with a baseball bat. The manager was taken into the back room and ordered to give them the petty cash as the employee emptied the cash register. Defendant bound the manager with duct tape. Both codefendants testified that defendant smashed the videocassette recorder surveillance, but the manager testified that the boyfriend had been armed with the baseball bat. Defendant‘s confession that he participated in the robbery was admitted at trial. A jury found defendant guilty of armed robbery.
¶ 5 At the sentencing hearing, the trial court heard evidence that defendant had previously been convicted of murder in 1967 and armed robbery in 1984. Based on these prior convictions, the trial court found defendant to be an habitual criminal and sentenced him to a term of natural life imprisonment pursuant to the Habitual Criminal Act. See
¶ 7 As he does in the instant appeal, defendant argued that although he was not charged with or convicted of armed violence, he should be sentenced to three to seven years’ imprisonment for the Class 2 offense of armed violence predicated on robbery with a category III weapon. Id. at 346. Defendant observed that armed robbery was a Class X felony punishable by 6 to 30 years’ imprisonment (see
¶ 8 In March 2005, defendant filed his first pro se postconviction petition, arguing that the Habitual Criminal Act was unconstitutional as applied to the facts of his case because the trial court improperly considered his 1967 murder conviction, the trial court had discretion to sentence him as an habitual criminal, and the Habitual Criminal Act violated ex post facto laws. The trial court dismissed defendant‘s petition as frivolous and patently without merit. People v. Cummings, 375 Ill. App. 3d 513, 515-16 (2007). Defendant filed a motion to reconsider the dismissal based on the same claims, but also asserted new claims of ineffective assistance of trial
¶ 9 On appeal, defendant again argued that his conviction for armed robbery violated the proportionate penalties clause of the Illinois Constitution. Id. “As he did on direct appeal, defendant asserts that under the identical elements test, his sentence for armed robbery is unconstitutionally disproportionate because armed robbery and armed violence predicated on armed robbery committed with a category III weapon are identical offenses that have disproportionate penalties.” Id. at 516-17. This court observed that defendant had failed to raise this claim in his postconviction petition, and our review was limited to claims raised in the petition. However, defendant asserted “the issue can be raised on appeal because an unconstitutional statute is void and may be attacked in any court at any time.” Id. at 517. This court further found that since defendant had already raised this issue on direct appeal, the claim was barred under the doctrine of res judicata. Id. at 517-18. Defendant argued that under the fundamental fairness exception, res judicata should not bar his claim because the law has developed and changed since his direct appeal and filing of his postconviction petition. Id. at 518. Defendant relied on People v. Harvey, 366 Ill. App. 3d 119 (2006), appeal allowed, 221 Ill. 2d 654 (2006), People v. Hampton, 363 Ill. App. 3d 293 (2006), vacated in part, No. 102413 (April 19, 2007), and People v. Andrews, 364 Ill. App. 3d 253 (2006). Id.
¶ 10 We declined to consider defendant‘s claim as an exception to res judicata. “The cases relied upon by defendant to invoke the fundamental fairness exception involved situations where res judicata was relaxed because our supreme court issued a decision after the defendant‘s conviction and sentence were affirmed on direct appeal which either recognized the right that the defendant relied upon or indicated that the defendant‘s direct appeal had been wrongly decided.”
¶ 11 In August 2013, defendant filed a motion for leave to file a pro se successive postconviction petition. Defendant asserted that he had an eyewitness to the Subway robbery that demonstrated his actual innocence, and that his confession was false and coerced. In his petition, defendant asserted (1) a claim of actual innocence based on an affidavit from a witness named Allen Blanch, an eyewitness to the robbery, (2) a coerced confession, (3) denial of his right to counsel during the lineup and interrogation, (4) ineffective assistance of trial counsel for failing to argue that defendant was deprived of his right to counsel and for failing to inform defendant of the State‘s offer of a plea offer of 30 years in prison, (5) ineffective assistance of appellate counsel for failing to raise trial counsel‘s ineffectiveness, and (6) that defendant‘s Class X conviction and sentence for armed robbery is disproportionate to the penalty for the identical offense of armed violence predicated on robbery with a category III weapon. The trial court denied defendant leave to file his successive postconviction petition.
¶ 12 In September 2014, defendant filed a petition pursuant to
¶ 13 This appeal followed.
¶ 14 On appeal, defendant argues that his armed robbery conviction and natural life sentence must be vacated because it violates the proportionate penalties clause of the Illinois Constitution (
¶ 15 While this appeal was pending, the Illinois Supreme Court issued its opinion in People v. Ligon, 2016 IL 118023. In Ligon, the defendant was found guilty of aggravated vehicular hijacking with a dangerous weapon other than a firearm, a Class X felony.
¶ 16 Similar to defendant‘s argument in this case, the defendant asserted in a section 2-1401 petition that his conviction for aggravated vehicular hijacking violated the proportionate penalties clause of the Illinois constitution. Ligon, 2016 IL 118023, ¶ 1. The trial court dismissed the defendant‘s petition, “finding that defendant had forfeited his constitutional challenge by failing to raise it in his direct appeal or postconviction petitions, and that, regardless of forfeiture, his legal arguments were not the proper subject of a petition for relief from judgment under section 2-1401.” Id. ¶ 7. The appellate court reversed, “finding that the Class X offense of aggravated vehicular hijacking has identical elements as the Class 1 offense of armed violence predicated on vehicular hijacking with a dangerous weapon, and thus his sentence for AVH/DW violated the proportionate penalties clause because it was punished more severely than the described offense of armed violence.” Id. (citing People v. Ligon, 2014 IL App (1st) 120913, ¶¶ 56, 11).
¶ 17 In considering the State‘s appeal, the supreme court first observed that the appellate court was correct in holding that the trial court‘s dismissal of the petition for forfeiture and it was improperly raised was correct. “Voidness challenges stemming from the unconstitutionality of a
¶ 18 “Article I, section 11, of the Illinois Constitution provides that ‘[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.’ ” Id. ¶ 10 (quoting
¶ 19 Under the identical elements test, the supreme court has consistently held that ” ’ “if the legislature determines that the exact same elements merit two different penalties, then one of these penalties has not been set in accordance with the seriousness of the offense.” ’ ” Id. ¶ 11 (quoting People v. Clemons, 2012 IL 107821, ¶ 30, quoting People v. Sharpe, 216 Ill. 2d 481, 522 (2005)). “Thus, where identical offenses do not yield identical penalties, this court has held that the penalties were unconstitutionally disproportionate and the greater penalty could not stand.” Id.
¶ 20 The supreme court then considered the State‘s argument that it is not appropriate to conduct an identical elements comparison between the offenses of aggravated vehicular hijacking while armed with a dangerous weapon and armed violence predicated on vehicular
“Therefore, where the [Habitual Criminal Act] is a solely recidivist sentencing statute that does not define any crime and thus has no elements to compare with another statute, it has no application to the identical elements test, which requires the court to compare the elements of each offense as set forth in the statute defining it. *** Additionally, because the [Habitual Criminal Act] only comes into play following a defendant‘s conviction of a third Class X felony, its sentencing provisions cannot be compared to the sentences for any of the particular Class X felonies that can trigger it.” Id. ¶ 16.
¶ 21 Since “a defendant‘s eventual adjudication and sentence as an habitual criminal has no effect on a court‘s determination of whether a qualifying offense violates the proportionate penalties clause under the identical elements test,” the Ligon court then examined whether aggravated vehicular hijacking while armed with a dangerous weapon has identical elements as armed violence while armed with a category III weapon. Id. ¶ 18. The court eventually determined that the two offenses did not have identical elements because the BB gun the defendant possessed did not fit within category III weapon for armed violence. Id. ¶ 20.
¶ 22 In light of the holding in Ligon, parties filed supplemental briefs addressing the result of Ligon on the instant case. Defendant responded that an examination of armed robbery with a
¶ 23 Based on the statutes in effect at the time of defendant‘s offense, a person commits armed robbery when he or she violates Section 18-1; and he or she carries on or about his or her person or is otherwise armed with a dangerous weapon other than a firearm.
¶ 24 In comparison, “[a] person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law,” with the exception of certain enumerated felonies, which does not include robbery.
¶ 25 In People v. Tate, 68 Ill. App. 3d 881, 882 (1979), the reviewing court quoted a Michigan decision compiling several dictionary definitions of a bludgeon.
” ’ “(A) short stout stick or club, with one end loaded or thicker and heavier than the other, used as a weapon.” The Oxford English Dictionary, 942 (1933).
“(A) short, heavy club with one end weighted, or thicker and heavier than the other.” The Random House Dictionary of the English Language, 161 (unabridged ed. 1971.)
“1. a short stick that usu. has one thick or loaded end and is used as a weapon. 2. something used to attack or bully.” Webster‘s New Collegiate Dictionary, 121 (G & C Merriam Co. ed. 1975).’ ” Id. (quoting People v. Malik, 245 N.W.2d 434, 436 (Mich. App. 1976)).
¶ 26 Defendant cites several cases which have found a baseball bat falls under the definition of a bludgeon. See People v. Dunlap, 315 Ill. App. 3d 1017, 1032 (2000) (finding that a baseball bat fell under the term bludgeon in the armed violence statute); see also People v. Workman, 368 Ill. App. 3d 778, 780-81 (2006), People v. Moore, 301 Ill. App. 3d 728, 734 (1998), People v. Jeffries, 164 Ill. 2d 104, 109-10 (1995), People v. Cruz, 162 Ill. 2d 314, 319 (1994), and People v. Fair, 159 Ill. 2d 51, 82 (1994) (all cases in which murder victims were bludgeoned by a baseball bat).
¶ 27 Defendant concludes that the offenses contain identical elements. See also People v. Hauschild, 226 Ill. 2d 63, 84 (2007) (finding armed robbery while armed with a firearm is identical to offense of armed violence predicated on a robbery while armed with a category I or II weapon); People v. Clemons, 2012 IL 107821, ¶¶ 19-26 (Hauschild remains the law as to the
¶ 28 As defendant‘s points out, armed robbery with a dangerous weapon other than a firearm is a Class X offense, punishable by 6 to 30 years in prison, while armed violence predicated on robbery while armed with a category III weapon is a Class 2 offense, punishable by 3 to 7 years in prison. Therefore, the armed robbery with a dangerous weapon other than a firearm sentence is unconstitutionally disproportionate to the sentence for the identical offense of armed violence predicated on a robbery while armed with a category III weapon. Defendant asks this court to vacate his conviction and remand for entry of judgment and sentence on the offense that is punished less severely, armed violence predicated on robbery while armed with a category III weapon, a Class 2 felony.
¶ 29 In its supplemental brief, the State concedes that a baseball bat is a category III dangerous weapon under the armed violence statute, citing People v. Denby, 102 Ill. App. 3d 1141, 1149 (1981). The State also agrees with defendant that ”Ligon compels the conclusion that the statutorily-prescribed 6-30 years penalty for his Class X armed robbery while armed with a dangerous weapon conviction is unconstitutionally disproportionate to the 3-7 year penalty prescribed for the commission of an identical Class 2 armed violence predicated on robbery while armed with a category III weapon offense.”
¶ 30 We agree with both parties. Armed robbery while armed with a dangerous weapon other than a firearm is composed of the identical elements for armed violence predicated on robbery with a category III weapon as both existed at the time of defendant‘s offense. Since armed robbery constituted a Class X conviction while armed violence was a Class 2, the Class X penalty is unconstitutionally disproportionate and defendant is entitled to relief. The supreme
¶ 31 Reversed; vacated and remanded with directions.