People v. Coleman

NO. 4-08-0682 Filed 4/16/10

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Vermilion County
TA'RHON COLEMAN, ) No. 07CF249
Defendant-Appellant. )
) Honorable
) Nancy S. Fahey,
) Judge Presiding.
)
_________________________________________________________________

JUSTICE POPE delivered the opinion of the court:

In April 2007, the State charged defendant, Ta'Rhon

Coleman (born June 11, 1990), with one count of armed robbery

with a firearm (720 ILCS 5/18-2(a)(2) (West 2006)). In an

amended information filed in November 2007, the State charged

defendant with armed robbery with a firearm (720 ILCS 5/18-

2(a)(2) (West 2006)), armed robbery with a dangerous weapon (720

ILCS 5/18-2(a)(1) (West 2006)), and armed violence with a cate-

gory I weapon predicated on the offense of robbery (armed vio-

lence) (720 ILCS 5/33A-2(a) (West 2006)).

In April 2008, a jury found defendant guilty of armed

robbery with a firearm and armed violence. In September 2008,

the trial court sentenced defendant to 15 years' imprisonment on

his conviction for armed violence. Defendant appeals, arguing

(1) his trial counsel was ineffective for eliciting testimony
from defendant regarding his prior juvenile conviction, and (2)

the sentence for armed violence predicated on robbery as compared

to the sentence for armed robbery with a firearm violates the

proportionate-penalties clause of the Illinois Constitution. We

vacate defendant's sentence and remand.

I. BACKGROUND

At approximately 8 p.m. on March 13, 2006, Pizza Hut

deliveryman Kim Willis arrived at 12 South State Street in

Danville to deliver two pizzas. Two teenage boys were waiting

outside the house when Willis arrived. As Willis approached the

house with the pizzas and a soda, one of the boys walked up to

him and produced a gun. The boy demanded Willis's wallet, which

contained approximately $50. Willis handed him the wallet, and

the boy told him to get back in the car and drive away. The

pizza boxes and soda were left scattered on the sidewalk in front

of the house.

Willis returned to his car but tried to keep an eye on

the two boys as they ran away from the scene. He stopped watch-

ing them after one of the boys turned around and pointed the gun

at him. Willis called the Pizza Hut and the police as he drove

to a nearby gas station. Less than 10 minutes later, he returned

to the house to meet police.

Officer Keith Garrett was a City of Danville police

officer who interviewed Willis at the scene of the robbery.

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According to Officer Garrett, Willis described the boy with the

gun as approximately six feet two inches with an athletic build

and wearing a puffy coat. The other boy was approximately six

feet tall and was also wearing a puffy down coat. Willis could

not remember if the subject with the gun was wearing glasses.

Approximately one year after the robbery, the crime lab

notified Officer Garrett of a fingerprint match on one of the

pizza boxes at the scene of Willis's robbery. Officer Garrett

went to Willis's residence with a photo array of six pictures,

including a picture of defendant. Defendant was not wearing

glasses in the picture. Willis did not identify defendant from

the photo array. In April 2007, defendant was arrested and

charged with armed robbery with a firearm. Additional charges

were added later, as stated above.

At his April 2008 trial, defendant testified he is six

feet three inches and weighs approximately 180 pounds. He has

worn glasses since he was a child, and he is unable to drive

without them. On the night of the robbery, defendant borrowed a

friend's car and drove to 12 South State Street, the scene of the

robbery, where his old friend Michael Rettinger had previously

lived. Defendant had not seen Rettinger since 2005 and did not

know whether Rettinger still lived there. Two police officers

testified the house had been vacated by the Rettingers between

two and six months prior to the robbery and was vacant on the

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evening in question.

According to defendant, when he arrived at the house,

he saw two pizza boxes next to the front steps. He picked them

up and approached the dark house. When no one answered the door,

he set the boxes down and left. Defendant estimated he was at

the house for less than one minute.

At defendant's trial, the following exchange occurred

between defendant and defense counsel:

"[COUNSEL]: Now, Ta'Rhon, you've

been in trouble before?

[DEFENDANT]: Yes.

[COUNSEL]: Do you have a criminal re-

cord?

[DEFENDANT]: Yes.

[COUNSEL]: One of the cases that you had

was a robbery; is that correct?

[DEFENDANT]: Yes.

[COUNSEL]: That was back in '04, '05?

[DEFENDANT]: Yes.

[COUNSEL]: And you have served time in

the Department of Corrections [(DOC)]?

[DEFENDANT]: Yes.

[COUNSEL]: All right. I just want to

make sure the jury all understands that."

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 The State asked the following questions on cross-

examination:

"[THE STATE]: You say you paroled in

February of '05, right?

[DEFENDANT]: Yes.

[THE STATE]: So you had been out for a

good 14 months at the time March 13th rolls

around?

[DEFENDANT]: Out of [DOC] I got incar-

cerated again from November, 2005, to the

middle of January, 2006, and I got released.

[THE STATE]: But you were out before

November of 2005 for a good several months?

[DEFENDANT]: No. I was back incarcerated

in 2005 in November. I got out in January."

On redirect, the jury learned defendant was also

incarcerated in February 2007. In closing argument, both the

State and defense counsel mentioned to the jury that defendant

had been in trouble before. The jury found defendant guilty of

armed robbery and armed violence, and defendant was sentenced as

stated.

This appeal followed.

II. ANALYSIS

A. Ineffective Assistance of Counsel

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 Defendant argues his trial counsel was ineffective for

eliciting testimony from defendant regarding his prior juvenile

conviction.

To show ineffective assistance of counsel under Strick-

land v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104

S. Ct. 2052, 2064 (1984), a defendant must show

"(1) his counsel's performance was deficient

in that it fell below an objective standard

of reasonableness, and (2) the deficient

performance prejudiced the defendant in that,

but for counsel's deficient performance,

there is a reasonable probability that the

result of the proceeding would have been

different." People v. Irvine, 379 Ill. App.

3d 116, 129, 882 N.E.2d 1124, 1136 (2008).

Our supreme court provides, under the first prong of

the test, the defendant must show trial counsel's representation

"'fell below an objective standard of reasonableness.'" People

v. Harris, 206 Ill. 2d 1, 16, 794 N.E.2d 314, 325 (2002), quoting

Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. At

2064. The defendant must also satisfy the second prong by

demonstrating he was prejudiced by counsel's deficient perfor-

mance. Harris, 206 Ill. 2d at 16, 794 N.E.2d at 325. Prejudice

is established where a defendant has shown the outcome of the

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proceeding would have been different but for counsel's perfor-

mance. Harris, 206 Ill. 2d at 16, 794 N.E.2d at 325.

Here, defendant argues counsel was ineffective for

eliciting testimony from defendant regarding his prior juvenile

conviction. Citing People v. Kerns, 229 Ill. App. 3d 938, 940,

595 N.E.2d 207, 208 (1992), defendant argues Federal Rule of

Evidence 609(d) (adopted by our supreme court pursuant to People

v. Montgomery, 47 Ill. 2d 510, 519, 268 N.E.2d 695, 700 (1971)),

prohibits the admission of juvenile adjudications for impeachment

when the witness is the accused. When Montgomery was decided in

1971, Rule 609(d) provided:

"'Evidence of juvenile adjudications is

generally not admissible under this rule.

The judge may, however, allow evidence of a

juvenile adjudication of a witness other than

the accused if conviction of the offense

would be admissible to attack the credibility

of an adult and the judge is satisfied that

admission in evidence is necessary for a fair

determination of the issue of guilt or inno-

cence.'" Montgomery, 47 Ill. 2d at 517, 268

N.E.2d at 699.

In Kerns, 229 Ill. App. 3d at 941, 595 N.E.2d at 208,

this court specifically held the admissibility of a juvenile

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adjudication is governed by Federal Rule 609(d) as adopted in

Montgomery. In Kerns, the trial court admitted the defendant's

juvenile adjudication for burglary during the State's cross-

examination of the defendant. The version of section 5-150(1)(c)

of the Juvenile Court Act of 1987 then in effect (Ill. Rev. Stat.

1989, ch. 37, par. 801-10(1)(c)) provided as follows:

"'(1) Evidence and adjudications in

proceedings under this Act shall be admissi-

ble:

* * *

(c) in proceedings under this Act or in

criminal proceedings in which anyone who has

been adjudicated delinquent under [s]ection

5-3 is to be a witness, and then only for

purposes of impeachment and pursuant to the

rules of evidence for criminal trials[.]'"

Kerns, 229 Ill. App. 3d at 940, 595 N.E.2d at

208.

Thus when Kerns was decided, the statute purported to allow the

admission of adjudications of witnesses, and did not specifically

include defendants. See People v. Massie, 137 Ill. App. 3d 723,

730, 484 N.E.2d 1213, 1218 (1985); People v. Bunch, 159 Ill. App.

3d 494, 513, 512 N.E.2d 748, 761 (1987). Under the latest

version, now found in section 5-150(1)(c) of the Juvenile Court

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Act of 1987 (705 ILCS 405/5-150(1)(c) (West 2008)), a witness,

including the minor or defendant if he testifies, may be im-

peached with a juvenile adjudication. Both versions of the

statute contained the following condition: "and then only for

purposes of impeachment and pursuant to the rules of evidence for

criminal trials." Ill. Rev. Stat. 1989, ch. 37, par. 801-

10(1)(c); 705 ILCS 405/5-150(1)(c) (West 2008).

This court in Kerns disavowed a prior Fourth District

case which held a previous version of section 5-150(1)(c) sup-

planted Rule 609(d) (see People v. McClendon, 146 Ill. App. 3d

1004, 1011, 497 N.E.2d 849, 853 (1986)), and specifically found

the statute did not supplant Rule 609(d). Kerns, 229 Ill. App.

3d at 940-41, 595 N.E.2d at 208-09. In fact, the statute and the

rule, as adopted by our supreme court in Montgomery, can be

reconciled when the statutory language "pursuant to the rules of

evidence for criminal trials" is considered. In other words, the

legislature has said a defendant who chooses to testify may be

impeached with a juvenile adjudication but has conditioned the

use of such impeachment on the rules of evidence for criminal

trials.

Our supreme court has adopted Rule 609 as a rule of

evidence to be used by the trial courts. Rule 609 does not

permit impeachment of a defendant with a juvenile adjudication.

Thus, as we sit here today, a juvenile adjudication of a defen-

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dant who testifies is normally not admissible. But see People v.

Harris, 231 Ill. 2d 582, 591, 901 N.E.2d 367, 372 (2008) (allow-

ing impeachment where the defendant's testimony concerning his

prior criminal history was misleading). Thus defendant argues

his lawyer, who was retained to represent the defendant, was

ineffective for bringing defendant's prior adjudication to the

jury's attention. However, a review of the entire trial tran-

script reveals the following.

The State's evidence included the testimony showing

defendant's fingerprint was identified on the pizza box. In

order to lay the foundation for the fingerprint expert's testi-

mony, the State called a correctional officer to testify to the

known fingerprints of the defendant. These known fingerprints

were transported to the crime lab for identification. The

State's fingerprint expert testified she found latent prints on

the pizza box suitable for comparison. After determining they

did not belong to the pizza driver, she ran an automated-

fingerprint-identification-system (AFIS) search. She obtained a

"hit," indicating the prints belonged to the defendant. After

receiving known fingerprint cards of the defendant, the State's

expert made a comparison to the prints on the pizza box and

determined they in fact belonged to the defendant.

Defense counsel clearly was aware of the State's

evidence. In opening statements, defendant's lawyer admitted

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defendant was at the residence where the robbery occurred and he

admitted defendant did, in fact, touch the pizza boxes. The

defendant took the position he was at the location of the robbery

for about one minute, touched the pizza box, and left. He

claimed he was not present when the robbery happened. Often-

times, defense counsel will strategically admit facts on which

the State's evidence is conclusive in order to gain credibility

with the jury. In other words, when a forensic lab expert, with

no personal interest in the case, definitively identifies latent

prints as a defendant's fingerprints, there is no reason to argue

otherwise. Thus it was not ineffective, nor does defendant so

contend, for counsel to admit to the jury what the evidence would

clearly show--defendant touched the pizza boxes.

Moreover, defense counsel knew part of the State's

foundation for the admissibility of the fingerprint expert's

testimony would be the actual, known prints of defendant, which

were on arrest cards. Knowing this, it was not objectively

unreasonable for counsel to ask defendant whether he had a

criminal record or to note the defendant had been in trouble

before. The jury was going to surmise this from the arrest cards

anyway. By bringing it out through the defendant himself,

counsel hoped to bolster defendant's credibility with the jury

when he denied committing the robbery later in his testimony.

This is borne out by defense counsel's closing argument when he

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stated to the jury, "Mr. Coleman was right up front. He told

you, he's in trouble." From this argument, counsel was hoping

the jury would infer, since defendant was honest about his prior

troubles, he must be telling the truth about his noninvolvement

with the robbery. This was not a performance which falls below

an objective standard of reasonableness, and thus counsel was not

ineffective.

Lastly, the State's questions of defendant regarding

his release from DOC were limited and when viewed in the context

of the trial, not improper. When defendant testified, apparently

he felt it necessary to explain why he would not have known his

friend, Michael Rettinger, no longer lived at 12 South State.

Defendant stated, "[a]t the time, before I got locked up, my

friend Michael Rettinger was living at the residence that the

robbery occurred at." In other words, his going to a long-vacant

house to see his friend is explained by his absence from the

community while in DOC. Since defendant offered this testimony,

the State was allowed to cross-examine defendant about it. We

note the State's questioning on this topic was not extensive.

B. Defendant's Sentence

Defendant argues the sentence for armed violence

predicated on robbery as compared to the sentence for armed

robbery with a firearm violates the proportionate-penalties

clause of the Illinois Constitution. As such, defendant asks

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this court to vacate his conviction for armed violence and remand

for entry of judgment on his conviction for armed robbery with a

firearm, which carries a lesser penalty. Defendant did not

object at sentencing nor did he file a posttrial motion on this

issue.

We review the trial court's application of a statute de

novo. People v. Cornelius, 213 Ill. 2d 178, 188, 821 N.E.2d 288,

295 (2004). To overcome the presumption that statutes are

constitutional, the party challenging the statute must show it

violates the constitution. People v. Sharpe, 216 Ill. 2d 481,

487, 839 N.E.2d 492, 497 (2005). We defer to the legislature on

sentencing issues as it is institutionally more capable of

fashioning appropriate sentences. See People v. Hill, 199 Ill.

2d 440, 454, 771 N.E.2d 374, 383 (2002).

The Criminal Code of 1961 (Code) provides an individual

commits armed robbery when he violates section 18-1 of the Code

and "carries on or about his or her person or is otherwise armed

with a firearm." 720 ILCS 5/18-2(a)(2) (West 2006). As a Class

X felony, armed robbery with a firearm carries a sentencing range

of 6 to 30 years. 730 ILCS 5/5-8-1(a)(3) (West 2006). When an

offender uses or possesses a firearm during the commission of the

crime, as in the present case, the trial court must apply a

mandatory 15-year enhancement, bringing the sentencing range for

armed robbery with a firearm to 21 to 45 years. 720 ILCS 5/18-

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2(b) (West 2006).

The sentencing provision for armed violence is provided

in section 33A-3(a) of the Code as follows: "Violation of

[s]ection 33A-2(a) with a Category I weapon is a Class X felony

for which the defendant shall be sentenced to a minimum term of

imprisonment of 15 years." 720 ILCS 5/33A-3(a) (West 2006). A

handgun is a category I weapon. 720 ILCS 5/33A-1(c)(1) (West

2006).

Article I, section 11, of the Illinois Constitution of

1970 provides "[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." Ill. Const. 1970,

art. I, §11. Where offenses with identical elements carry

different sentences, the proportionate-penalties clause is

violated. Sharpe, 216 Ill. 2d at 487, 839 N.E.2d at 498. An

unconstitutional statute is void ab initio, i.e., "'"[a]n invalid

law is no law at all."'" People v. Gersch, 135 Ill. 2d 384, 390,

553 N.E.2d 281, 283 (1990), quoting Van Driel Drug Store, Inc. v.

Mahin, 47 Ill. 2d 378, 381, 265 N.E.2d 659, 661 (1970), quoting

People ex rel. Barrett v. Sbarbaro, 386 Ill. 581, 590, 54 N.E.2d

559, 562 (1944). The effect of declaring a statute unconstitu-

tional is to revert to the statute as it existed before the

amendment. Gersch, 135 Ill. 2d at 390, 553 N.E.2d at 283. A

reviewing court has a duty to vacate void orders. People v.

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Brown, 225 Ill. 2d 188, 195, 866 N.E.2d 1163, 1167 (2007).

Here, defendant committed armed robbery with a firearm

and armed violence in March 2006. In 1996, our supreme court

held armed robbery with a dangerous weapon (sentencing range of 6

to 30 years' imprisonment) and armed violence with a dangerous

weapon (sentencing range of 15 to 30 years' imprisonment) were

substantively identical offenses with different penalties.

People v. Lewis, 175 Ill. 2d 412, 418, 677 N.E.2d 830, 832-33

(1996). As such, the Lewis court held the penalty for armed

violence predicated on armed robbery violated the proportionate-

penalties clause. Lewis, 175 Ill. 2d at 418, 677 N.E.2d at 833.

In 2000, the Illinois legislature enacted Public Act 91-404 "to

deter the use of firearms in the commission of a felony offense."

Pub. Act 91-404, §5, eff. January 1, 2000 (1999 Ill. Legis. Serv.

4026, 4032 (West)). The act amended the sentencing portion of

the armed-robbery statute to provide for 15/20/25 to life in-

creases in sentences for the four varieties of armed robbery.

Pub. Act 91-404, §5, eff. January 1, 2000 (1999 Ill. Legis. Serv.

4026, 4031 (West)). The effect of this amendment was to increase

the minimum sentence for armed robbery, while armed with a

firearm, to 21 years.

In People v. Hauschild, 226 Ill. 2d 63, 871 N.E.2d 1

(2007), our supreme court revisited the proportionate-penalties

issue raised by Public Act 91-404. There, the trial court

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refused to enhance the defendant's armed-robbery sentence on the

grounds it violated the proportionate-penalties clause. Hauschi-

ld, 226 Ill. 2d at 69, 871 N.E.2d at 4-5. Our supreme court

reviewed defendant's conviction for armed robbery in light of the

"lesser offense" of armed violence predicated on robbery because

the evidence would have supported that conviction. Hauschild,

226 Ill. 2d at 88, 871 N.E.2d at 15. The court determined a

charge of armed violence predicated on robbery had the same

elements as a charge of armed robbery while armed with a firearm,

but the offenses carried different penalties. Hauschild, 226 Ill.

2d at 85-86, 871 N.E.2d at 13-14. In accordance with Lewis, the

court held when an amended statute violates the proportionate-

penalties clause, the reviewing court should remand for

resentencing under the statute as it existed before the amend-

ment. Hauschild, 226 Ill. 2d at 88-89, 871 N.E.2d at 15.

The Code defines armed robbery as the taking of prop-

erty from the person or presence of another by the use of force

or the threat of imminent force while armed with a firearm. 720

ILCS 5/18-1(a), 18-2(a)(2) (West 2006). Armed violence predi-

cated on robbery is the offense of robbery (720 ILCS 5/18-1(a)

(West 2006)) while armed with a category I weapon. 720 ILCS

5/33A-1(c), 33A-2(a) (West 2006). As the elements of the two

offenses are identical, the proportionate-penalties clause

applies and their sentences should be identical as well.

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Hauschild, 226 Ill. 2d at 86, 871 N.E.2d at 14. However, armed

robbery with a firearm, with the 15-year enhancement, carries a

21- to 45-year sentence while the sentencing range for armed

violence is 15 to 30 years. Hauschild, 226 Ill. 2d at 86, 871

N.E.2d at 14. Because the penalty for armed robbery with a

firearm is more severe than the penalty for armed violence, the

15-year enhancement for armed robbery created by Public Act 91-

404 violates the proportionate-penalties clause. Hauschild, 226

Ill. 2d at 88, 871 N.E.2d at 15.

In this case, the trial court sentenced defendant to 15

years' imprisonment for armed violence and did not sentence him

on his conviction for armed robbery with a firearm. At the time

of his sentencing, Hauschild had already determined the 15-year

enhancement for armed robbery with a firearm was unconstitu-

tional. The sentencing range for armed robbery was 6 to 30

years. However, armed violence, a crime with identical elements

to armed robbery with a firearm, carries a penalty of no less

than 15 years' imprisonment. As such, the armed-violence sen-

tence violates the proportionate-penalties clause. Because the

statute was void ab initio at the time of sentencing, defendant's

sentence is void. According to Hauschild, the proper remedy

under these circumstances is to remand for sentencing on the

offense with the lesser penalty, armed robbery.

We note subsequent to defendant's commission of this

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offense, the legislature amended the armed-violence statute in an

attempt to alleviate the proportionate-penalties issue. See Pub.

Act 95-688, §4, eff. October 23, 2007 (2007 Ill. Legis. Serv.

6228, 6228-29 (West)). The language of the new statute, inter

alia, eliminated the charge of armed violence for a person who

uses a firearm to commit robbery. We also recognize the issue of

Hauschild's viability has been argued before the supreme court in

People v. Kelly, No. 107832 (March 2010). Unless and until our

supreme court modifies its decision in Hauschild, we are bound to

follow it.

III. CONCLUSION

For the reasons stated, we vacate the trial court's 15-

year sentence and remand for sentencing on defendant's armed-

robbery conviction.

Sentence vacated; cause remanded for resentencing.

MYERSCOUGH, P.J., and McCULLOUGH, J., concur.

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