Opinion
No. 1-10-1760 1-10-2034
05-20-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. BASIL POWELL, Petitioner-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.
Nos. 84 C 605510
84 C 605511
Honorable Frank Zelezinski, Judge Presiding.
JUSTICE delivered the judgment of the court.
Justice Cunningham and Delort concurred in the judgment.
ORDER
¶ 1 HELD: Petitioner's natural life sentences are affirmed, where they are not void for having violated the proportionate penalties clause of the Illinois Constitution. ¶ 2 Petitioner, Basil Powell, appeals from the summary dismissal of his successive postconviction petition, brought pursuant to the Post-Conviction Hearing Act (720 ILCS 5/122-1 et seq. (West 2008)). On appeal, petitioner contends that his convictions for armed robbery and his natural life sentences for being a habitual criminal are void because they violate the proportionate penalties clause of the Illinois Constitution. For the following reasons, we affirm.
¶ 3 I. BACKGROUND
¶ 4 The record reflects that, in case number 84 C 605511, petitioner was charged with an August 21, 1984, armed robbery while armed with a "dangerous weapon." The case was tried before a jury, and the State presented evidence at trial that, on August 21, 1984, petitioner participated in the robbery of a gas station in Chicago Heights with Mr. Richard Pitts. During the commission of the robbery, Mr. Pitts was armed with a firearm. ¶ 5 The jury was instructed that to sustain the charge of armed robbery they had to find that petitioner, or another person for whom he was legally responsible, carried a "dangerous weapon" on or about his person during the robbery. On October 2, 1986, the jury found petitioner guilty of armed robbery, defined as a Class X felony under the Criminal Code of 1961(Criminal Code). See Ill. Rev. Stat. 1985, ch. 38, ¶ 18-2(b). ¶ 6 The State, thereafter, moved to have petitioner sentenced to a term of natural life imprisonment pursuant to the Habitual Criminal Act, because the instant armed robbery conviction represented petitioner's third Class X felony conviction. At a hearing on the State's motion, the State presented evidence that petitioner had previously been convicted of armed robbery on two occasions, in 1974 and 1976. The trial court granted the State's motion on December 22, 1986, sentencing petitioner to natural life in prison as an habitual criminal. ¶ 7 In case number 84 C 605510, petitioner was charged with an August 30, 1984, armed robbery while armed with a "dangerous weapon." This case was also tried before a jury, and the State presented evidence at trial that, on August 30, 1984, petitioner participated in the robbery of a gas station in South Holland with Mr. Pitts. During the commission of the robbery, Mr. Pitts was again armed with a firearm. ¶ 8 The jury in this case was likewise instructed that to sustain the charge of armed robbery they had to find that petitioner, or another person for whom he was legally responsible, carried a "dangerous weapon" on or about his person during the robbery. At the conclusion of the trial, the jury found petitioner guilty of Class X armed robbery. The State, thereafter, again moved to have petitioner sentenced to a term of natural life imprisonment pursuant to the Habitual Criminal Act and, at a hearing on that motion, the State presented evidence of petitioner's 1974 and 1976 Class X armed robbery convictions. The trial court granted the State's motion on March 4, 1987, sentencing petitioner to another term of natural life in prison as an habitual criminal. ¶ 9 Petitioner's convictions and sentences in both cases were affirmed on direct appeal. People v. Powell, Nos. 1-86-3562 and 1-87-0808 (1987) (unpublished order pursuant to Supreme Court Rule 23). Petitioner thereafter filed a petition, pursuant to the Post-Conviction Hearing Act, challenging his convictions and sentences. The dismissal of that petition was affirmed by this court. People v. Powell, No. 1-96-0304 (1996) (unpublished order pursuant to Supreme Court Rule 23). While petitioner's postconviction petition was pending, he filed a petition for habeas corpus relief. That petition was also denied, and this court affirmed that judgment. People v. Powell, No. 1-96-2389 (1997) (unpublished order pursuant to Supreme Court Rule 23). ¶ 10 Petitioner also filed a petition to vacate his natural life sentence as a void judgment, pursuant to section 2-1401(f) of the Code of Civil Procedure. 735 ILCS 5/2-1401(f) (West 2002). The dismissal of that petition was also affirmed by this court. People v. Powell, No. 1-03-1297 (2005) (unpublished order pursuant to Supreme Court Rule 23). Throughout these various proceedings, petitioner never challenged his sentences on the basis of the proportionate penalties clause of the Illinois Constitution. ¶ 11 On September 30, 2009, petitioner initiated the instant postconviction proceedings when he filed a second postconviction petition. Petitioner did not seek leave to file that petition, and the pleading itself did not acknowledge that it was a successive postconviction petition, did not address the "cause" and "prejudice" requirements for obtaining leave to file a successive postconviction petition (see 725 ILCS 5/122-1(f) (West 2008)), and did not include any argument with respect to the proportionate penalties clause of the Illinois Constitution. The trial court dismissed petitioner's postconviction petition on November 19, 2009, after concluding that it was untimely as well as "frivolous and patently without merit." Petitioner filed a notice of appeal from that decision (appeal number 1-10-1760). ¶ 12 Petitioner also filed a "supplemental" postconviction petition "supplementing his original post-conviction petition." Therein, petitioner acknowledged that his instant petition was successive, addressed the "cause" and "prejudice" requirements, and included an argument that his sentences violated the proportionate penalties clause of the Illinois Constitution. Specifically, petitioner contended that his instant convictions and sentences for armed robbery violated the proportionate penalties clause because, while Class X armed robbery contained the same elements as armed violence, only a conviction for armed robbery would leave petitioner subject to being sentenced to a mandatory life sentence as an habitual offender. ¶ 13 While that supplemental petition was mailed on November 18, 2009, it was not file-stamped by the clerk's office until November 31, 2009. This supplemental petition was set for further proceedings on January 8, 2010, at which time the trial court order entered the following order: "Previous order to stand." Petitioner was granted leave to file a late notice of appeal, and on July 29, 2010, petitioner filed a notice of appeal from both the trial court's November 19, 2009, and January 8, 2010 orders (appeal number 1-10-2034). Petitioner's two appeals were subsequently consolidated by this court.
Under the Habitual Criminal Act (Ill. Rev. Stat. 1985, ch. 38, ¶ 33B-1), "[e]very person who has been twice convicted in any state or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class X felony or murder, and is thereafter convicted of a Class X felony or murder, committed after the 2 prior convictions, shall be adjudged an habitual criminal." Furthermore, the sentence for a person adjudged to be an habitual criminal "shall be a term of natural life imprisonment." Ill. Rev. Stat. 1985, ch. 38, ¶ 1005-8-1(a)(2).
¶ 14 II. ANALYSIS
¶ 15 On appeal, petitioner does not contend that the trial court improperly dismissed his successive postconviction petition (or his "supplemental" successive petition), nor does petitioner ask this court to remand for further proceedings pursuant to the Post-Conviction Hearing Act. Rather, contending that an attack on a void sentence can be raised at any time, petitioner asks this court to find that his instant convictions for armed robbery and his natural life sentences are void under the proportionate penalties clause of the Illinois Constitution. Petitioner, therefore, asks this court to remand for a resentencing under the armed violence statute. ¶ 16 In response, the State asks this court to "affirm the trial court's rulings below dismissing/denying leave to file petitioner's two successive post-conviction petitions." The State's arguments in support of its position are based, in part, upon responses to the merits of petitioner's proportionate penalties claim. However, the State's arguments are also based, in part, upon petitioner's purported failure to: (1) obtain leave to file a successive postconviction petition; (2) properly or timely present his proportionate penalties clause arguments in the various proceedings below; or (3) comply with the "cause" and "prejudice" requirements for bringing a proper, successive postconviction petition. ¶ 17 We find that we may proceed directly to petitioner's substantive challenge to his natural life sentences, without further considering whether or how petitioner fully complied with the requirements of raising this issue under the Post-Conviction Hearing Act. If a sentencing provision violates the proportionate penalties clause, then it is void ab initio. People v. Guevara, 216 Ill. 2d 533, 542 (2005). Furthermore, a claim that a judgment is void is not subject to waiver and can therefore be raised at any time, either directly or collaterally. People v. Thompson, 209 Ill. 2d 19, 27 (2004). Because an attack on a void judgment may be raised at any time, "[i]t does not depend on the Post-Conviction Hearing Act for its viability." People v. Brown, 225 Ill. 2d 188, 199 (2007). As such, an argument that an order or judgment is void "may be raised for the first time on appeal from the dismissal of a postconviction petition." People v. Spears, 371 Ill. App. 3d 1000, 1007 (2007). Indeed, "courts have an independent duty to vacate void orders and may sua sponte declare an order void." Thompson, 209 Ill. 2d at 27. Thus, regardless of how this issue was or was not presented below, we may now consider petitioner's contention that his instant convictions and natural life sentences are void because they violate the proportionate penalties clause. ¶ 18 Turning to that issue, we begin by noting that:
"We review the constitutionality of a statute as a matter of law, subject to de novo review. People v. Sharpe, 216 Ill. 2d 481, 486-87, 298 Ill. Dec. 169, 839 N.E.2d 492 (2005).¶ 19 Here, petitioner raises the second type of proportionality challenge. Petitioner begins by noting that, in both cases at issue here, he was convicted of armed robbery. At the time in question, the Criminal Code instructed that the offense of armed robbery occurs where a person commits robbery "while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon." Ill. Rev. Stat. 1985, ch. 38, ¶ 18-2(a). Armed robbery was defined as a Class X felony carrying a term of 6 to 30 years' imprisonment. Ill. Rev. Stat. 1985, ch. 38, ¶ 18-2(b); Ill. Rev. Stat. 1985, ch. 38, ¶ 1005-8-1(a)(3). Moreover, because of petitioner's two prior armed robbery convictions in 1974 and 1976, each of petitioner's instant Class X convictions for armed robbery subjected him to being sentenced to a mandatory term of natural life imprisonment as an habitual offender. Ill. Rev. Stat. 1985, ch. 38, ¶ 1005-8-1(a)(2). ¶ 20 However, petitioner contends that any such sentence for armed robbery is unconstitutionally disproportionate to the sentence that he would have received if he had been convicted of and sentenced for armed violence, an offense petitioner contends has identical elements and carries a lesser potential sentence. Specifically, petitioner notes that at the time in question, armed violence was defined as the commission of any felony, including robbery, while armed with a dangerous weapon. Ill. Rev. Stat. 1985, ch. 38, ¶ 33A-2; Ill. Rev. Stat. 1985, ch. 38, ¶ 18-1(b). The language of the Criminal Code in effect at the time further indicated that a person was considered armed with a dangerous weapon, for purposes of the offense of armed violence statute only, when that person was armed with certain specific types of weapons. Ill. Rev. Stat. 1985, ch. 38, ¶ 33A-1(a). ¶ 21 Thus, the armed violence statute indicated that "[a] person is considered armed with a dangerous weapon for purposes of this Article, when he carries on or about his person or is otherwise armed with a Category I or Category II weapon." Id. Category I weapons included, inter alia, "a pistol, revolver, rifle, shotgun, spring gun, or any other firearm ***." Ill. Rev. Stat. 1985, ch. 38, ¶ 33A-1(b). Category II weapons included "a bludgeon, blackjack, slingshot, sand-bag, sand-club, metal knuckles, billy or other dangerous weapon of like character." Ill. Rev. Stat. 1985, ch. 38, ¶ 33A-1(c). While committing the offense of armed violence armed with a Category I weapon was a Class X felony subject to the same penalties discussed above (Ill. Rev. Stat. 1985, ch. 38, ¶ 33A-3(a)), the commission of the same offense while armed with a Category II weapon was only a Class 2 felony carrying a term of 3 to 7 years' imprisonment (Ill. Rev. Stat. 1985, ch. 38, ¶ 33A-3(b); Ill. Rev. Stat. 1985, ch. 38, ¶ 1005-8-1(a)(5)). Additionally, conviction of such a Class 2 felony would obviously not subject a person with two prior Class X felonies-such as petitioner-to a mandatory term of natural life imprisonment as an habitual offender. ¶ 22 Petitioner acknowledges in his briefs on appeal that the evidence at each of the instant trials showed that a firearm was used during the commission of the robberies of the two gas stations, and that committing a robbery with such a weapon is a Class X felony under both the armed robbery and armed violence statutes. Nevertheless, petitioner asserts that he was not specifically charged with committing the robberies with a firearm and the juries were not specifically instructed that they had to find that the robberies were committed with a firearm. As such, petitioner contends that his Class X convictions for armed robbery and his natural life sentences are unconstitutionally disproportionate because: (1) the two juries never specifically found that the robberies were committed with a Category I weapon; (2) the two juries simply found that petitioner was generally armed with a "dangerous weapon" during the robberies; and (3) such findings were therefore identical to a finding that petitioner committed armed violence predicated on robbery with a Category II weapon, a Class 2 offense subject to lesser sentences. We disagree with this argument for a number of reasons. ¶ 23 First, we note that this court has previously rejected a proportionate penalties challenge under similar circumstances. In People v. Cummings, 375 Ill. App. 3d 513 (2007), the defendant raised a proportionate penalties challenge to the natural life sentence he received as an habitual offender following his third Class X felony conviction, a conviction for armed robbery. Id. at 514-17. This court noted that the defendant was convicted of robbing a sandwich shop while armed with a baseball bat, an act that would constitute both the Class X felony of armed robbery and the Class 2 felony of armed violence while armed with a Category III weapon. Id. ¶ 24 In rejecting the defendant's argument that his sentence was unconstitutional, raised in the context of the defendant's appeal from the dismissal of his postconviction petition, we first noted that this argument was "based on a comparison of the sentence for armed violence predicated on robbery with a category III weapon to the sentence for armed robbery, and assumes that he was sentenced for his armed robbery conviction." Id. at 521. However, we noted that "contrary to this assumption, defendant was not sentenced for his armed robbery conviction. Rather, once defendant was found guilty of his third Class X offense, in this case armed robbery, the trial court was without discretion and was required to adjudge him an habitual criminal and give him a mandatory life sentence pursuant to the Habitual Criminal Act." Id. at 521-22. We then concluded:
All statutes carry a strong presumption of constitutionality, and to overcome this presumption, the party challenging the statute must clearly establish that the statute violates the constitution. Sharpe, 216 Ill. 2d at 487, 298 Ill. Dec. 169, 839 N.E.2d 492. 'We generally defer to the legislature in the sentencing arena because the legislature is institutionally better equipped to gauge the seriousness of various offenses and to fashion sentences accordingly.' Sharpe, 216 Ill. 2d at 487, 298 Ill. Dec. 169, 839 N.E.2d 492. 'The legislature's discretion in setting criminal penalties is broad, and courts generally decline to overrule legislative determinations in this area unless the challenged penalty is clearly in excess of the general constitutional limitations on this authority.' Sharpe, 216 Ill.2d at 487, 298 Ill. Dec. 169, 839 N.E.2d 492.
The proportionate penalties clause of the Illinois Constitution declares that '[a]ll penalties shall be determined * * * according to the seriousness of the offense.' Ill. Const. 1970, art. I, § 11. In Sharpe, the Illinois Supreme Court held that a defendant may raise two types of proportionate penalties challenges: (1) a penalty violates the proportionate penalties clause if it is cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community; or (2) the proportionate penalties clause is violated where offenses with identical elements are given different sentences. Sharpe, 216 Ill. 2d at 521, 298 Ill. Dec. 169, 839 N.E.2d 492." People v. Lauderdale, 2012 IL App (1st) 100939, ¶¶ 38-39.
"[D]efendant's comparison of the sentences for armed robbery and armed violence predicated on robbery with a category III weapon is inapplicable in this case because defendant was not
given the corresponding Class X sentence for armed robbery. Moreover, a comparison of armed robbery to the identical offense of armed violence predicated on robbery with a category III weapon is inappropriate in this case because defendant was not sentenced for his armed robbery conviction, but rather, defendant was adjudged an habitual criminal and sentenced to life imprisonment based upon his convictions for three violent Class X offenses, including his current armed robbery conviction as well as his previous convictions for murder and armed robbery. Moreover, defendant has not cited any authority in which being adjudged an habitual offender was compared to an offense such as armed violence for purposes of an identical elements challenge under the proportionate penalties clause and, under the circumstances presented here, we find no basis to make such a comparison. Accordingly, we reject defendant's contention that his sentence of natural life imprisonment is unconstitutionally disproportionate." Id. at 522-23.
¶ 25 Similarly, petitioner's challenge here is fundamentally premised upon a comparison of the offenses of armed robbery and armed violence and the potential sentences applicable to those two offenses. Just as in Cummings, however, petitioner was not sentenced for his armed robbery convictions but was sentenced as an habitual criminal in light of his instant convictions for armed robbery and his two prior Class X convictions. Moreover, just as in Cummings, petitioner "has not cited any authority in which being adjudged an habitual offender was compared to an offense such as armed violence for purposes of an identical elements challenge under the proportionate penalties clause" (id.), nor is this court aware of any such authority. Thus, we find petitioner's comparison of armed robbery and armed violence to be similarly "inapplicable" and "inappropriate" in the context of this case. ¶ 26 Second, even if we were to engage in such a comparison we would find petitioner's arguments to be unfounded. As noted above, at the time petitioner committed the instant offenses both armed robbery and armed violence generally required-as an element of each offense-that a defendant be armed with a "dangerous weapon." Ill. Rev. Stat. 1985, ch. 38, ¶ 18-2(a); Ill. Rev. Stat. 1985, ch. 38, ¶ 33A-2. However, the armed robbery statute did not further define this term, while the armed violence statute contained a specific itemization of objects that qualified as a dangerous weapon for purposes of that offense. Ill. Rev. Stat. 1985, ch. 38, ¶ 33A-1. ¶ 27 As a number of courts have recognized, under this historical language of the Criminal Code, "[w]hat constitutes a dangerous weapon for armed robbery does not necessarily constitute a dangerous weapon under the armed violence statute, wherein categories of dangerous weapons are specified." People v. Lincoln, 146 Ill. App. 3d 15, 18-19 (1986); People v. Myers, 101 Ill. App. 3d 1073, 1075 (1981) (same); People v. Watkins, 94 Ill. App. 3d 749, 753 (1981) (same). Armed robbery could, therefore, be committed with a "dangerous weapon" that would not also constitute a "dangerous weapon" under the armed violence statute. As a result, these two offenses did not in fact have identical elements, and petitioner's proportionate penalties clause challenge must fail. ¶ 28 Third, petitioner's argument to the contrary is not supported by his citation to People v. Hauschild, 226 Ill. 2d 63 (2007). In that case, our supreme court addressed a defendant's contention that his conviction and sentence for a 2001 armed robbery while armed with a firearm was unconstitutionally disproportionate to the sentence applicable to the "identical" offense of armed violence. Id. at 68-71. ¶ 29 However, our supreme court's analysis in that case involved statutory language that was significantly different from the language at issue here. Specifically, by the time the defendant in Hauschild committed his acts in 2001, the armed robbery statue had been amended to read as follows:
"(a) A person commits armed robbery when he or she violates Section 18-1; and¶ 30 Similarly, the armed violence statute had also been significantly amended. Of particular note, and as we alluded to above in our discussion of Cummings, the armed violence statute had been amended to provide that "[a] person is considered armed with a dangerous weapon for purposes of this Article, when he or she carries on or about his or her person or is otherwise armed with a Category I, Category II, or Category III weapon." 720 ILCS 5/33A-1(c)(1) (West 2000). Firearms were only included in the definition of Category I and Category II weapons. 720 ILCS 5/33A-1(c)(2) (West 2000). In contrast, the weapons included in the new Category III were the exact same non-firearm weapons included among those previously defined as Category II weapons under the version of the statute at issue here. Compare 720 ILCS 5/33A-1(c)(3) (West 2000), with Ill. Rev. Stat. 1985, ch. 38, ¶ 33A-1(c). ¶ 31 In light of these legislative amendments, the court in Hauschild noted that the defendant in that case was specifically convicted of violating section 18-2(a)(2) of the armed robbery statute while armed with a firearm. Hauschild, 226 Ill. 2d at 85-86. Thus, when our supreme court conducted its proportionality review, it explicitly indicated that its analysis required a specific comparison of "section 18-2(a)(2) of the armed robbery statute with section 33A-2(a) of the armed violence statute, as they exist today, to determine whether these two offenses have identical elements but disparate sentences." Id. The court then compared only those two specific subsections before concluding that "the elements of armed robbery while armed with a firearm and armed violence predicated on robbery with a category I or category II weapon are identical." Id. at 86. After further finding that the penalties for those two offenses were improperly disproportionate, our supreme court found that the defendant's sentence for armed robbery violated the proportionate penalties clause. Id. at 87. ¶ 32 Notably, the court in Hauschild did not conclude that the elements of all instances of armed robbery were identical to the elements of all instances of armed violence. It merely found that, under the amended statutory language in effect at the time, the elements of armed robbery while armed with firearm (i.e., pursuant to section 18-2(a)(2)) were identical to the elements of armed violence while armed with a firearm (i.e., while armed with a Category I or II weapon). ¶ 33 Nevertheless, petitioner contends on appeal that the Hauschild decision stands for the general proposition that, even under the pre-amendment language, the elements of armed robbery and armed violence predicated on robbery with a Category I or Category II weapon are identical. We reject this argument. ¶ 34 First, petitioner's contention omits the fact that Hauschild specifically compared only the elements of armed robbery under the amended section 18(a)(2), which involves committing a robbery while armed with firearm, to the elements of armed violence predicated on robbery with a Category I or Category II weapon. Second, petitioner's contention does not account for the fact that when the Hauschild decision spoke of Category I and II weapons, it referred to the amended language of the armed violence statute. Under that amended statutory language, firearms were included in the definition of both Category I and Category II weapons. 720 ILCS 5/33A-1(c)(2) (West 2000). Our supreme court was not referring to the prior statutory language at issue here, pursuant to which firearms are only included among the list of Category I weapons. Ill. Rev. Stat. 1985, ch. 38, ¶ 33A-1(b). ¶ 35 Therefore, our supreme court's conclusion in Hauschild-based upon the amended statutory language-cannot be used to support a similar conclusion with respect to the pre-amendment statutory language at issue here. If anything, the Hauschild decision could only support a conclusion that the elements of a pre-amendment armed robbery committed while armed with a firearm are identical to the elements of the pre-amendment offense of armed violence predicated on robbery committed while armed with a Category I weapon. Of course, no proportionate penalties clause violation would result from comparing such arguably identical offenses, as their penalties were also identical. Ill. Rev. Stat. 1985, ch. 38, ¶ 18-2(b); Ill. Rev. Stat. 1985, ch. 38, ¶ 33A-3(a); Ill. Rev. Stat. 1985, ch. 38, ¶ 1005-8-1(a)(3). ¶ 36 Finally, we reject petitioner's argument that, because he was not specifically charged with committing the robberies with a firearm and because the juries were not specifically instructed that they had to find that the robberies were committed with a firearm, he was never specifically found to have used a Category I weapon and his convictions and sentences for armed robbery are void for having violated the proportionate penalties clause. Petitioner cites no authority in support of this position, and it is has therefore been forfeited on appeal. People v. Land, 2011 IL App (1st) 101048, ¶ 163. Moreover, we not aware of any case holding that a proportionate penalties challenge based upon the identical elements test is dependent upon exactly how a defendant is charged and how a jury is instructed. Indeed, our supreme court has indicated that the identical elements test is a "logic-based test" whereby " 'the court relies exclusively on the express legislative pronouncements under review. The court compares identical offenses, as defined by the same legislative body, with their respective penalties, again, as given by the same legislative body.' " Clemons, 2012 IL 107821, ¶ 45-46 (quoting People v. Lewis, 175 Ill. 2d 412, 421-22 (1996)). ¶ 37 Furthermore, we note that there was no need for such a specific charge or instruction here, as the type of weapon used during the instant robberies was not an element of the offense of armed robbery for which petitioner was convicted. People v. Wyatt, 23 Ill. App. 3d 587, 590 (1974). And, in any case, petitioner has conceded on appeal that the evidence at his two trials showed that a firearm was in fact used during the commission of each robbery. Our supreme court has recently concluded that the State had sufficiently proven that a defendant had been armed with a firearm during the commission of an armed robbery under the pre-amendment statute-even though the jury was only instructed that it had to find that he committed that offense " 'while armed with a dangerous weapon' "-where the evidence at trial established that the defendant committed the robbery "while armed with a dangerous weapon-a gun." People v. Washington, 2012 IL 107993, ¶ 40-41. The same is true here. ¶ 38 Lastly, this argument ultimately proves immaterial in light of our prior conclusions that petitioner's comparison of armed robbery and armed violence is "inapplicable" and "inappropriate" pursuant to the analysis in Cummings, and that the pre-amendment armed robbery and armed violence statutes did not in fact contain identical elements.
(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." 720 ILCS 5/18-2(a) (West 2000).
This reasoning built upon a similar discussion of this issue that was contained in an opinion of this court affirming, on direct appeal, the conviction and sentence of the defendant in Cummings. See Cummings, 351 Ill. App. 3d at 346-49.
By the time the defendant in Cummings committed his offense, the armed violence statute had been amended to include three separate categories of weapons. See P.A. 88-680 (eff. Jan. 1, 1995) (amending 720 ILCS 5/33A-1 (West 1994)).
This reasoning built upon a similar discussion of this issue that was contained in an opinion of this court affirming, on direct appeal, the conviction and sentence of the defendant in Cummings. See Cummings, 351 Ill. App. 3d at 346-49.
The legislature subsequently "amended the armed violence statute so that robbery cannot serve as a predicate offense for armed violence. As a result of this amendment, armed violence and armed robbery no longer have identical elements for purposes of proportionality review, precluding the type of proportionate penalties challenge mounted in Hauschild." People v. Blair, 2013 IL 114122, ¶ 21 (discussing P.A. 95-688 (eff. Oct. 23, 2007)). Nevertheless, "Hauschild remains the law as to the meaning of the armed violence statute prior to its amendment by Public Act 95-688." People v. Clemons, 2012 IL 107821, ¶ 19.
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¶ 39 III. CONCLUSION
¶ 40 For the foregoing reasons, the judgment of the circuit court is affirmed. ¶ 41 Affirmed.