People v. Lee

FOURTH DIVISION
August 30, 2007

No. 1-04-2258

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
TERRIN LEE, ) Honorable
) Kenneth J. Wadas,
Defendant-Appellant. ) Judge Presiding.

MODIFIED UPON REHEARING

PRESIDING JUSTICE QUINN delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County,

defendant Terrin Lee was convicted of one count of armed robbery

and three counts of aggravated unlawful restraint. He was then

sentenced to concurrent prison terms of 19 years for armed

robbery and 10 years for each conviction of aggravated unlawful

restraint. On appeal, defendant contends that the State failed

to prove him guilty of armed robbery beyond a reasonable doubt

and that his convictions for aggravated unlawful restraint must

be vacated under the one-act, one-crime doctrine. In a

supplemental brief, defendant contends that the armed robbery
1-04-2258

statute under which he was convicted is void because the penalty

provision of that statute violates the proportionate penalties

clause of the Illinois Constitution (Ill. Const. 1970, art. I,

§11), thereby rendering his armed robbery conviction void.

When we initially issued this decision, we affirmed the

defendant's convictions for armed robbery and for two counts of

aggravated unlawful restraint and we vacated the defendant's

sentences and remanded the case to the circuit court. Based on

our holding that the decision in People v. Sharpe, 216 Ill. 2d

481 (2005), rendered the defendant's nonenhanced sentences void,

we ordered the circuit court to impose a sentence that included

the 15-year enhancement for armed robbery while in possession of

a firearm (720 ILCS 5/18-2(a)(2)(b)(West 2000)). Defendant filed

a petition for rehearing and this court ordered the State to file

an answer and allowed the defendant to file a reply to the

State's answer. After this court wrote and circulated an amended

opinion that agreed with the reasoning of the petition for

rehearing, but before the amended opinion was filed, our supreme

court issued their opinion in People v. Hauschild, 226 Ill. 2d 63

(2007). This opinion applies the holding in Hauschild, but in

doing so, we raise some concerns regarding some of the aspects of

that case. We now withdraw our prior opinion and vacate our

order remanding this case to the circuit court for purposes of

- 2 -
1-04-2258

resentencing the defendant.

BACKGROUND

Defendant was charged with the armed robbery of Duncan

Ellington and the aggravated unlawful restraint of Duncan, his

wife Claudina and their 11-year-old son Christopher. The

incident occurred in the 2000 block of West 79th Street in

Chicago on September 1, 2001. At trial, Duncan testified that

about 12:45 on the morning in question, he entered a liquor store

in that area with Claudina and Christopher to purchase some items

and to withdraw money from a cash machine. They left the store

with their purchases and walked northbound across 79th Street. As

they approached the median, Duncan heard his wife scream, then

saw her take a step back. Duncan stopped when he heard someone

behind him say, "[G]ive me all your money." Without turning

around, he gave $10 to this person, who then demanded the rest of

his money. Duncan then turned and saw his assailant, whom he

identified as defendant.

Duncan also testified that defendant was carrying a chrome

or silver-colored weapon at his side, which looked like a gun.

After taking the rest of Duncan's money, defendant crossed the

street, entered a waiting vehicle and drove away. Duncan

notified police of the incident and subsequently identified

- 3 -
1-04-2258

defendant in a lineup at the police station. On cross-

examination, Duncan acknowledged that he did not know if the

chrome weapon in defendant's hand was a gun and that he never saw

defendant point anything at himself or anyone else.

Claudina Ellington testified that she was using drugs during

most of 2001 and that she had since gone through rehabilitation.

She further testified that as she and her family were crossing

79th Street after leaving the liquor store, she heard someone

behind her say, "[G]ive me your money motherfucker. I'm going to

shoot you." She turned around and screamed when she saw

defendant pointing a 9-millimeter, chrome-plated gun at her

husband. Claudina stated that her vision was not impaired in any

way during this incident.

On cross-examination, Claudina acknowledged that she free-

based cocaine in the past and that she had purchased narcotics on

the night in question. She denied ever meeting defendant or

purchasing narcotics from him.

Christopher Ellington testified that he and his parents were

crossing the street when defendant approached his dad and said,

"[G]ive me your money." Christopher also testified that the man

was carrying "a gun, I think," that was silver in color.

Christopher ran back across the street to the sidewalk and saw

defendant take his father's money and flee in a waiting car.

- 4 -
1-04-2258

Detective Jenny Christoforakis testified that in the early

morning hours of September 1, 2001, she was called to 75th and

Honore Streets, where a car had been stopped and police had

defendant in custody. She also testified that no weapon was

found in this vehicle. The detective noted in her supplemental

police report that Claudina heard defendant say, "I am going to

shoot you in the back if you don't give me that money."

The parties stipulated that, if called to testify, Officer

Demato would testify that on the date in question, he stopped the

vehicle in which defendant was riding and that no handgun was

found on defendant's person or inside that vehicle.

The State rested, and the defense recalled Claudina. She

testified that she did not know an individual named Timothy

Collins, but knew a Tim who had an eye impairment. She denied

ever commenting to Tim or anyone else that she did not believe

defendant had a gun in his possession during the robbery. On

cross-examination, Claudina testified that she spoke to Tim prior

to trial, that he identified himself as defendant's brother-in-

law, and that he offered her $100 not to testify against

defendant.

Adrian Anderson testified that he accompanied defendant to

the liquor store on the day in question. Anderson stated that

defendant always carried the faceplate of his radio with him,

- 5 -
1-04-2258

that defendant had this plate in his hands during the incident,

and that he never pointed it at anyone.

Timothy Collins testified that he had gotten "high" in the

same room as Claudina on past occasions. He also testified that

he spoke to Claudina twice prior to defendant's trial and that

she told him that she did not actually see defendant with a gun.

Collins also testified that defendant had told him that the only

thing he had in his hands during the incident was the faceplate

to his radio. Collins denied offering Claudina money not to

testify at defendant's trial.

The trial court found defendant guilty of one count of armed

robbery and three counts of aggravated unlawful restraint. In

doing so, the court specifically found that both Claudina and

Christopher credibly testified that defendant was carrying a gun

in his hand. The court sentenced defendant to concurrent prison

terms of 19 years for armed robbery and 10 years for each count

of aggravated unlawful restraint. Defendant now appeals.

ANALYSIS
Sufficiency of the Evidence

On appeal, defendant first challenges the sufficiency of the

evidence to convict him of armed robbery. When a court reviews a

challenge to the sufficiency of the evidence, the relevant

question is whether, after viewing the evidence in a light most

- 6 -
1-04-2258

favorable to the State, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt. People v. Cunningham, 212 Ill. 2d 274, 278 (2004). A

criminal conviction will not be set aside on appeal unless the

evidence is so improbable or unsatisfactory that it creates a

reasonable doubt as to the defendant's guilt. People v. Cox, 195

Ill. 2d 378, 387 (2001). We do not find this to be such a case.

In order for defendant's conviction for armed robbery to be

sustained, the State was required to prove that defendant

committed robbery (720 ILCS 5/18-1 (West 2000)) while carrying a

firearm (720 ILCS 5/18-2(a)(2) (West 2000)). Defendant does not

dispute the sufficiency of the evidence to establish the elements

of robbery, but contends that the State failed to prove beyond a

reasonable doubt that he committed the robbery while carrying a

firearm.

In this case, Claudina unequivocally testified that

defendant was holding a chrome-plated, 9-millimeter handgun while

he robbed her husband. The trial court found Claudina to be a

credible witness, and her testimony alone was sufficient to

establish that defendant was armed during the robbery. People v.

Thomas, 189 Ill. App. 3d 365, 371 (1989). In addition,

Claudina's version of events was corroborated by Duncan and

Christopher, who testified that defendant was carrying a silver

- 7 -
1-04-2258

object in his hand. Finally, defendant's threat to shoot Duncan

was circumstantial evidence that he was carrying a firearm during

the robbery. See People v. Garcia, 229 Ill. App. 3d 436, 439

(1992) (defendant's repeated threats to shoot the victim were

circumstantial evidence that he was armed with a dangerous

weapon). We thus conclude that this evidence, considered in the

light most favorable to the State, was sufficient to find

defendant guilty of armed robbery beyond a reasonable doubt.

People v. Coleman, 345 Ill. App. 3d 1029, 1032 (2004).

Nonetheless, defendant argues that Claudina's testimony was

incredible and unconvincing and therefore insufficient to support

his conviction for armed robbery. In support of his assertion,

defendant cites Claudina's admitted prior drug use, Collins'

testimony that Claudina told him that she did not actually see a

gun, and Anderson's testimony that defendant was carrying the

faceplate to his radio. We note, however, that it was the

responsibility of the trial court to assess the credibility of

the witnesses and to resolve conflicts in their testimony.

People v. Ortiz, 196 Ill. 2d 236, 259 (2001). Here, the trial

court was aware of Claudina's drug use, but chose to believe her

version of events over that of defendant's alibi witness, and

specifically found her to be credible. We will not substitute

our judgment for that of the trier of fact in these matters

- 8 -
1-04-2258

(Ortiz, 196 Ill. 2d at 259), and we find that defendant's attack

on the credibility of this witness does not raise a reasonable

doubt of his guilt (People v. Hall, 114 Ill. 2d 376, 410 (1986);

People v. Berland, 74 Ill. 2d 286, 307 (1978)).

Defendant further argues that the evidence was insufficient

to prove him guilty beyond a reasonable doubt because the victim,

Duncan, did not know if defendant had a gun and he was unable to

give a description of the object in defendant's hand except for

its color. We disagree. A conviction for armed robbery may be

sustained " 'even though the weapon itself was neither seen nor

accurately described by the victim.' " Coleman, 345 Ill. App. 3d

at 1033, quoting People v. Elam, 50 Ill. 2d 214, 220 (1972).

Finally, defendant argues that there is insufficient

circumstantial evidence that he was armed with a firearm because

all three Ellingtons testified inconsistently as to the exact

threat that he made to Duncan. We have already found there was

sufficient direct evidence to support defendant's armed robbery

conviction, and further note that the three members of the

Ellington family testified consistently that defendant demanded

Duncan's money, and Claudina testified that defendant threatened

to shoot her husband. The trier of fact is not required to

disregard the inferences that flow from the evidence in order to

find guilt beyond a reasonable doubt (Hall, 114 Ill. 2d at 409),

- 9 -
1-04-2258

and in this case, we find that the circumstances described by the

witnesses support the inference that defendant was armed with a

gun (Coleman, 345 Ill. App. 3d at 1033). Moreover, we find that

the alleged inconsistencies were minor in nature and fully

explored at trial, and that they do not create a reasonable doubt

of defendant's guilt. People v. Crespo, 118 Ill. App. 3d 815,

819 (1983).

In reaching this conclusion, we find People v. Fiala, 85

Ill. App. 3d 397 (1980), cited by defendant, distinguishable from

the case at bar. In Fiala, the State's case was based entirely

on circumstantial evidence, and none of the eyewitnesses to the

robbery actually saw a gun in defendant's possession. Fiala, 85

Ill. App. 3d at 400-01. Here, on the other hand, there was

direct evidence in the form of Claudina's positive and credible

eyewitness testimony that defendant was carrying a firearm and

threatened to shoot Duncan. Therefore, Fiala provides no basis

for reversal.

One act, One crime

Defendant next contends that his convictions for aggravated

unlawful restraint must be vacated because they violate the one-

act, one-crime doctrine. Initially, we note that defendant

- 10 -
1-04-2258

waived this issue by failing to raise it at trial or in a

posttrial motion (People v. Enoch, 122 Ill. 2d 176, 186 (1988));

however, we may review this claim under the plain error doctrine

(People v. Carter, 213 Ill. 2d 295, 299-300 (2004)).

Defendant first argues that his conviction for the

aggravated unlawful restraint of Duncan must be vacated because

that offense was carved out of the same physical act that formed

the basis of his armed robbery conviction. The State concedes

that this conviction should be vacated under the one-act, one-

crime principle announced in People v. King, 66 Ill. 2d 551, 566

(1977). We agree and thus vacate defendant's conviction for the

aggravated unlawful restraint of Duncan (count II).

Based on our conclusion that defendant was improperly

convicted of the aggravated unlawful restraint of Duncan,

defendant further argues that his case should be remanded for

resentencing because it is impossible to determine from the

record whether the trial court would have imposed the same

sentences had it entered fewer judgments of conviction. Where,

as here, there is no indication in the record that the vacated

conviction had any bearing on the remaining sentences, a remand

for resentencing is not necessary. People v. Moreland, 292 Ill.

App. 3d 616, 622 (1997).

Defendant also argues that his convictions for the

- 11 -
1-04-2258

aggravated unlawful restraint of Claudina and Christopher must be

vacated because they are based on the same physical act as his

armed robbery conviction, i.e., his detention of the Ellingtons

in order to obtain money from Duncan. In making this argument,

defendant again relies on King for the proposition that multiple

convictions are improper if they are based on precisely the same

physical act. King, 66 Ill. 2d at 566.

Although we agree with the cited principle, we find the case

at bar more akin to People v. Shum, 117 Ill. 2d 317, 363 (1987),

where the supreme court distinguished its holding in King and

found that separate convictions based on one act are proper when

there are multiple victims of that act. In this case, there were

multiple victims of defendant's conduct, as the effect of his

threat was not confined to Duncan but, rather, extended to

Claudina and Christopher. Therefore, pursuant to Shum, we find

that defendant's convictions for the aggravated unlawful

restraint of Claudina and Christopher were proper. Shum, 117

Ill. 2d at 363.

Defendant responds, however, that he only intended to rob

Duncan and that any restraint of Claudina and Christopher was

incidental to that robbery. This argument was rejected in King,

where the court abandoned the "independent motivation" test,

which focused on defendant's overall criminal objective at the

- 12 -
1-04-2258

time the acts were committed. King, 66 Ill. 2d at 566.

Alternatively, defendant asserts that his conviction for the

aggravated unlawful restraint of Christopher must be reversed

because the State failed to prove that Christopher was

restrained, based on his testimony that he ran back across the

street when defendant approached his family.

Aggravated unlawful restraint is committed when a person

"knowingly without legal authority detains another while using a

deadly weapon." 720 ILCS 5/10-3.1 (West 2000). Actual or

physical force is not an element of the offense, so long as the

individual's freedom of movement is impaired. People v. Bowen,

241 Ill. App. 3d 608, 628 (1993). Here, Christopher and his

parents were stopped in the middle of the street by defendant,

who demanded his father's money at gunpoint. Christopher was

thus restrained by defendant's actions with his parents, then ran

back to the sidewalk and watched and waited for them. The

totality of these circumstances and reasonable inferences

therefrom were sufficient to find defendant guilty of the

aggravated unlawful restraint of Christopher. Bowen, 241 Ill.

App. 3d at 627-28.

Proportionate Penalties Clause

In a supplemental brief, defendant contends that the penalty

- 13 -
1-04-2258

provision of the armed robbery statute under which he was

convicted is void because it violates the proportionate penalties

clause of the Illinois Constitution. Ill. Const. 1970, art. I,

§11. He further argues that the substantive armed robbery

statute is inextricably linked to the unconstitutional penalty

provision, thereby rendering that statute and his armed robbery

conviction void as well. Defendant's argument is based on People

v. Moss, 206 Ill. 2d 503, 531 (2003), and People v. Walden, 199

Ill. 2d 392, 397 (2002), where the court used cross-comparison

analysis and declared, inter alia, that the 15-year sentencing

enhancement for armed robbery while in possession of a firearm

(720 ILCS 5/18-2(a)(2), (b) (West 2000)), and the 20-year

enhancement for armed robbery when the offender discharges a

firearm (720 ILCS 5/18-2(a)(3), (b) (West 2000)), violated the

proportionate penalties clause and were unenforceable.

After defendant filed his supplemental brief, our supreme

court issued its decision in People v. Sharpe, 216 Ill. 2d 481

(2005), which overruled Moss and Walden and held that a defendant

could no longer use the cross-comparison analysis to challenge a

penalty under the proportionate penalties clause. Sharpe, 216

Ill. 2d at 533. In reaching this conclusion, the court stated:

"After much reflection, we have concluded

that cross-comparison analysis has proved to

- 14 -
1-04-2258

be nothing but problematic and unworkable,

and that it needs to be abandoned. Those

cases that used such an analysis to

invalidate a penalty are overruled, and this

court will no longer use the proportionate

penalties clause to judge a penalty in

relation to the penalty for an offense with

different elements." Sharpe, 216 Ill. 2d at

519.

The State responded that, pursuant to Sharpe, the firearm

enhancements were revived and constitutional and defendant's

argument is without merit. Based on that conclusion, the State

maintained that the statutory 15-year sentence enhancement for

armed robbery with a firearm (720 ILCS 5/18-2(a)(2), (b) (West

2000)) applied to defendant. The State then requested this court

to impose the enhancement or remand the case for resentencing

with the direction that it be imposed because the current

sentence does not conform to the statutory requirement and is

therefore void. People v. Arna, 168 Ill. 2d 107, 113 (1995).

Defendant responded that Sharpe does not apply retroactively

and that its applicability to this case was limited to precluding

him from using cross-comparison analysis to challenge his

sentence under the proportionate penalties clause. Defendant

- 15 -
1-04-2258

also argued that the State has no right to raise sentencing

issues on appeal unless the sentence is void, and he claimed that

his sentence is not void because the trial court had jurisdiction

in this case and sentenced him within the appropriate range

consistent with Walden.

When this court initially issued this opinion, we agreed

with the State's argument. We held that the holding in Sharpe

should be applied retroactively and we remanded this matter to

the trial court to resentence the defendant on his armed robbery

conviction. This sentence was to include the 15-year enhancement

for armed robbery with a firearm (720 ILCS 5/18-2(a)(2),(b)(West

2000)). In doing so, we relied upon the reasoning of the Fourth

District in People v. James, 362 Ill. App. 3d 1202 (2006), appeal

denied, 219 Ill. 2d 580 (2006), and upon our supreme court's

holding in People v. Guevara, 216 Ill. 2d 533 (2005). Defendant

filed a petition for rehearing and this court ordered the State

to file an answer and allowed defendant to file a reply to the

State's answer.

Since initially issuing this opinion, the First District has

twice addressed the issue of the retroactive application of

Sharpe. In People v. Harvey, 366 Ill. App. 3d 119 (2006), appeal

allowed, 221 Ill. 2d 654 (2006), the third division followed our

holding in this case. There, in 2000, the defendant had

- 16 -
1-04-2258

committed an armed robbery while armed with a firearm. Prior to

the defendant's trial, our supreme court issued its decision in

People v. Walden, 199 Ill. 2d 392 (2002), wherein the court

determined that pursuant to the cross-comparison test, the

statutory 15-year mandatory enhancement for armed robbery

violated the proportionate penalties clause. People v. Walden,

199 Ill. 2d at 397. Consequently, when the trial court sentenced

Harvey in 2004, the court lacked the authority to impose the 15-

year enhancement to Harvey's Class X sentence for armed robbery

while armed with a firearm. The trial court sentenced Harvey to

18 years in prison. When the defendant appealed his convictions

and sentence, the State argued that this sentence was void as

Sharpe had overruled Walden and defendant's 18-year sentence was

void as the mandated minimum sentence was 21 years (15-year

enhancement added to the minimum 6-year sentence for armed

robbery).

The Harvey court first pointed out: "It has long been

established that judicial opinions announcing new constitutional

rules applicable to criminal cases are retroactive to those cases

pending on direct review at the time the new rule is announced.

People v. Martinez, 348 Ill. App. 3d 521, 533 (2004), citing

People v. Ford, 198 Ill. 2d 68, 73 (2001), citing Griffith v.

Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987)."

- 17 -
1-04-2258

People v. Harvey, 366 Ill. App. 3d at 132. Citing our opinion in

this case and our supreme court's holding in People v. Guevara,

216 Ill. 2d 533 (2005), the Harvey court agreed with the State

that Sharpe should be applied retroactively to defendant.

However, the court went on to find that the 15-year add-on to

defendant's sentence for armed robbery with a firearm violated

the proportionate penalties clause as it was more severe than the

penalty for an offense with identical elements, armed violence

with a firearm. People v. Harvey, 366 Ill. App. 3d at 134.

In People v. Douglas, 371 Ill. App. 3d 21 (2007), the second

division of the First District also considered whether Sharpe

should be applied retroactively. In Douglas, the defendant was

convicted of two counts of attempted first-degree murder of a

peace officer. At the sentencing hearing in 2004, the State

informed the trial court that the enhancement provisions for

attempted murder with a firearm (720 ILCS 5/8-4(c)(1)(B),(C)(1)

(C), (C)(1)(D)(West 2004)) did not apply. The trial court then

sentenced defendant to 35 years in prison. People v. Douglas,

371 Ill. App. 3d at 23.

Neither the defendant nor the State appealed the court's

sentence. In its appellee brief, the State contended that the

defendant's sentence was void because it did not include the

mandatory 20-year enhancement. The Douglas court considered the

- 18 -
1-04-2258

holding in Sharpe, which had been decided after Douglas's

sentencing, during the pendency of his appeal. The court

reviewed the supreme court's holdings in People v. Guevara and in

In re M.T., 221 Ill. 2d 517 (2006), which addressed the holding

in Sharpe. People v. Douglas, 371 Ill. App. 3d at 24-25. The

Douglas court held that the defendant's sentences were not void

as they "were valid when imposed and they remain valid. The

trial judge had the power and authority to impose them without

concern for the statutory enhancement." People v. Douglas, 371

Ill. App. 3d at 25. The Douglas court also rejected the State's

argument regarding resentencing because the defendant's

conviction was for attempted first-degree murder of a peace

officer (720 ILCS 5/8-4(c)(1)(A)(West 2000)), which did not carry

with it an enhanced sentence. People v. Douglas, 371 Ill. App.

3d at 26.

The supreme court has applied its holding in Sharpe several

times since issuing it. People v. Guevara, 216 Ill. 2d 533, was

issued contemporaneously with Sharpe. It applied the holding in

Sharpe in rejecting the defendant's argument on direct appeal

that the sentence for home invasion while in possession of a

firearm (720 ILCS 5/12-11(a)(3)(West 2002)) is unconstitutionally

disproportionate to the sentence for aggravated battery with a

firearm (720 ILCS 5/12-4.2(a)(1), (b)(West 2000)). People v.

- 19 -
1-04-2258

Guevara, 216 Ill. 2d at 544-45.

In In re M.T., 221 Ill. 2d 517 (2006), the supreme court

reversed the appellate court's holding that the indecent-

solicitation-of-an-adult statute (720 ILCS 5/11-6.5 (West 2000))

violated the proportionate penalties clause. In doing so, the

appellate court had applied a cross-comparison analysis. In

reversing, the supreme court noted that the appellate court's

decision was issued before Sharpe was decided. In re M.T., 221

Ill. 2d at 527.

In People v. McCarty, 223 Ill. 2d 109 (2006), the court

considered the defendant's argument that the 15-year mandatory

minimum sentence for manufacturing methamphetamine (720 ILCS

570/401(a)6.5(D)(West 2002)) was violative of the proportionate

penalties clause. The court, explained "a defendant may no

longer premise a proportionate penalties challenge on the

comparison of similar offenses with different elements. Sharpe,

216 Ill. 2d at 521. A defendant may, however, still argue that a

penalty for a particular offense violates the 'cruel or

degrading' standard or is harsher than the penalty for an offense

with identical elements. Sharpe, 216 Ill. 2d at 521." People v.

McCarty, 223 Ill. 2d at 136-37. The court ultimately rejected

the defendant's argument that the 15-year mandatory minimum

sentence violated the "cruel and degrading" standard. People v.

- 20 -
1-04-2258

McCarty, 223 Ill. 2d at 137.

As previously mentioned, after we wrote and circulated an

amended opinion that agreed with the defendant's petition for

rehearing, but before that amended opinion could be filed, our

supreme court issued its opinion in People v. Hauschild, 226 Ill.

2d 63 (2007).

In People v. Hauschild, 364 Ill. App. 3d 202, 205 (2006),

appeal allowed, 221 Ill. 2d 654 (2006), a jury convicted the

defendant of attempted first-degree murder, home invasion and

armed robbery. The trial court sentenced the defendant to

consecutive prison terms of 35 years for home invasion, 18 years

for attempted first-degree murder and 12 years for armed robbery.

Relying on the holdings in Walden and People v. Morgan, 203 Ill.

2d 470 (2003), the trial court determined that the penalty

enhancements for armed robbery and attempted first-degree murder

violated the proportionate penalties clause. Upon appeal, the

Second District also applied the cross-comparison test pursuant

to the holdings in Walden and Moss and vacated the defendant's

convictions and sentences on the armed robbery and home invasion

counts.

The State filed a petition for rehearing based on the

holding in Sharpe, which was decided the day after the appellate

court first decided Hauschild. The court granted the petition

- 21 -
1-04-2258

for rehearing. In their subsequently issued opinion, the court

pointed out "[d]efendant does not dispute that the result of the

Sharpe ruling is to render void his sentences for armed robbery

and attempted first-degree murder." People v. Hauschild, 364

Ill. App. 3d at 223. The appellate court vacated the defendant's

sentences for armed robbery and attempted first-degree murder and

remanded the cause to the trial court to resentence the defendant

in compliance with the enhanced sentencing provisions (720 ILCS

5/8-4(c)(West 2000); 730 ILCS 5/5-8-1(a)(3)(West 2000)). People

v. Hauschild, 364 Ill. App. 3d at 229.

On appeal to the supreme court, the defendant raised the

issue of "whether his existing sentences for armed robbery and

attempted murder were authorized by the law in effect at the time

of sentencing such that those sentences are not void and no new

sentencing hearing is required." People v. Hauschild, 226 Ill.

2d at 71. In considering this issue, the supreme court first

rejected the State's argument that the defendant had forfeited

his right to make this issue due to his failure to raise it in

the appellate court. People v. Hauschild, 226 Ill. 2d at 72.

Citing their holding in Sharpe and the holding in People v.

Harvey, 366 Ill. App. 3d 119, 131 (2006), the court explained:

"Sharpe effectively 'revived' the constitutionality of the 15-

year add on penalty for armed robbery while armed with a firearm

- 22 -
1-04-2258

and attempted murder with a firearm." People v. Hauschild, 226

Ill. 2d at 76. The defendant had argued that applying Sharpe

retroactively to vacate nonenhanced sentences that were valid

under the prior case law would violate due process by making the

law less favorable to him than it previously was and by denying

him his right to notice and fair warning.

In rejecting this argument, the court pointed out:

"It is well established that judicial opinions

announcing new constitutional rules applicable to

criminal cases are retroactive to those cases pending

on direct review at the time the new rule is announced.

People v. Ford, 198 Ill. 2d 68, 72-73 (2001); People

v. Erickson, 117 Ill. 2d 271, 288 (1987), citing

Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649,

107 S. Ct. 708 (1987); Harvey, 366 Ill. App. 3d at

132. As the Supreme Court noted in Griffith, the

failure to apply a new constitutional rule to criminal

cases pending on direct review, even when that rule

is a ' "clear break" [from] the past,' violates the

basic norms of constitutional adjudication. Griffith,

479 U.S. at 322, 328, 93 L. Ed. 2d at 658, 661, 107

S. Ct. at 713, 716. Under this reasoning, we find

that the rule announced in Sharpe is of constitutional

- 23 -
1-04-2258

dimension (see People v. Gersch, 135 Ill. 2d 384,

393-95 (1990)(distinguishing a new rule of law that

is statutory in origin from one that is constitutionally

based)) and, therefore applicable to defendant's case.

See Harvey, 336 Ill. App. at 132." People v. Hauschild,

226 Ill. 2d at 77-78.

The court went on to explain its rejection of the defense

arguments that Sharpe could not be applied retroactively to his

case because it made the law less favorable to him than it was at

the time of his sentencing. The court also rejected the argument

that the defendant's due process rights to notice and fair

warning barred applications of the 15-year enhancement.

The court continued:

"Having now determined that Sharpe's holding

pertains to defendant's case, we must answer the

remaining question, i.e., whether Sharpe renders

defendant's existing nonenhanced sentences void.

A sentence is void if it fails to conform to

statutory requirements. People v. Arna, 168 Ill.

2d 107, 113 (1995). Here, although at the time of

defendant's sentencing Walden and Morgan had rendered

the 15-year enhanced penalties for his armed robbery

and attempted murder convictions unconstitutional, we

- 24 -
1-04-2258

find that the overruling of those cases during the

pendency of defendant's appeal has made the

nonenhanced sentences imposed by the trial court

statutorily nonconforming and thus void. See 364

Ill. App. 3d at 223; see also People v. Garcia, 179

Ill. 2d 55, 73 (1997)(trial court's imposition of

concurrent sentences in certain instances where

consecutive sentences were mandated rendered

defendants' sentences void). Thus, contrary to

defendant's contention in this court, but in accord

with his argument adopted by the appellate court, we

believe the proper remedy in this instance is to

remand the cause to the trial court for a new

sentencing hearing. 364 Ill. App. 3d at 223-24,

citing Arna, 168 Ill. 2d at 112-13." People v.

Hauschild, 226 Ill. 2d at 80-81.

In holding that Sharpe rendered the defendant's sentence

void, the Hauschild court cited People v. Arna, 168 Ill. 2d 107,

113 (1995). Arna held: "A sentence which does not conform to a

statutory requirement is void. [Citations.] Because the order

imposing concurrent terms was void, the appellate court had the

authority to correct it at any time [citation], and the actions

of the appellate court were not barred by our rules which limit

- 25 -
1-04-2258

the State's right to appeal [Rule 604(a)(134 Ill. 2d R. 604(a))]

and which prohibit the appellate court from increasing a

defendant's sentence on review [Rule 615(b)(134 Ill. 2d R.

615(b))]. People v. Scott, (1977) 69 Ill. 2d 85; see also People

v. Dixon, (1982) 91 Ill. 2d 346." People v. Arna, 168 Ill. 2d at

113.

In Arna, the defendant was convicted of two counts of

attempted first-degree murder. The trial court sentenced the

defendant to 30 years in prison on one count and to 45 years in

prison on the second count, with the sentences to run

concurrently. The State did not ask for the sentences to be

served consecutively either in the trial court or on appeal. The

appellate court affirmed the convictions but determined, sua

sponte, that consecutive sentences were mandatory under section

5-8-4(a) of the Unified Code of Corrections (730 ILCS 5/5-8-

4(a)(West 1992)). The supreme court ruled as above.

Our supreme court has followed Arna several times. In

People v. Garcia, 179 Ill. 2d 55, 73 (1997), also cited in

Hauschild, the court held that the trial court's imposition of

concurrent sentences in a gang rape case where consecutive

sentences were mandated rendered the defendants' sentences void

and remanded the cause to the trial court for resentencing.

The Hauschild court also cited People ex rel. Waller v.

- 26 -
1-04-2258

McKoski, 195 Ill. 2d 393, 402 (2001), where the court granted the

State's original action for mandamus, holding that because the

imposition of consecutive sentences was mandatory, the trial

court's decision to sentence the defendant to concurrent

sentences rendered the sentence void.

In City of Chicago v. Roman, 184 Ill. 2d 504 (1998), the

court explained:

"[Supreme Court Rule 604(a)(1)] does not allow the

State to contest the propriety of a sentence imposed

on a criminal defendant. [Citations.]

This case, however, involves a void judgment.

A void judgment is one entered by a court that lacks,

inter alia, the inherent power to make or enter the

particular order involved. A void judgment may be

attacked at any time, either directly or collaterally."

City of Chicago v. Roman, 184 Ill. 2d at 509-10 (1998).

Each of the sentences imposed by the trial courts in Arna,

Garcia, McKoski and Roman was in violation of the applicable

statutes in effect at the time of sentencing. Consequently, the

trial courts had no authority to sentence the defendants in those

cases in the manner in which they did. In the instant case, the

trial judge not only had the inherent power to sentence the

defendant in the manner he did, the trial judge had no authority

- 27 -
1-04-2258

to apply the 15-year enhancement provisions to defendant's

sentence for armed robbery. This is because Moss and Walden were

binding interpretations of the applicable statutes at the time of

the defendant's sentencing. See People v. Atkins, 217 Ill. 2d

66, 71 (2005) (holding that the amended residential burglary

statute could not be applied retroactively to support the

defendant's burglary conviction where defendant was convicted and

sentenced prior to the effective date of the amendment. At the

time of trial, the trial judge had no authority to convict the

defendant of burglary as a lesser-included offense of residential

burglary because People v. Childress, 158 Ill. 2d 275 (1994), was

a "binding interpretation of the statutes then in effect").

In People v. Davis, 156 Ill. 2d 149 (1993), the defendant

appealed the circuit court's denial of his postconviction

petition. In that appeal, the defendant argued that he had been

improperly convicted of unlawful possession of cannabis as well

as unlawful possession of cannabis with intent to deliver. The

supreme court held that the conviction for the lesser included

offense constituted a voidable judgment which was not subject to

collateral attack, as opposed to a void judgment.

"The term 'void' is so frequently employed

interchangeably with the term 'voidable' as

to have lost its primary significance. Therefore,

- 28 -
1-04-2258

when the term 'void' is used in a judicial opinion

it is necessary to resort to the context in which

the term is used to determine precisely the term's

meaning. Whether a judgment is void or voidable

presents a question of jurisdiction. (Herb v.

Pitcairn (1943), 384 Ill. 237, 241.) Jurisdiction

is a fundamental prerequisite to a valid prosecution

and conviction. Where jurisdiction is lacking,

any resulting judgment rendered is void and may be

attacked either directly or indirectly at any time.

(5 Callaghan's Illinois Criminal Procedure §39.09

(1971)). By contrast, a voidable judgment is one

entered erroneously by a court having jurisdiction

and is not subject to collateral attack. See 5

Callaghan's Illinois Criminal Procedure §39.09

(1971).

* * *

Our constitution confers upon the circuit

courts a general grant of authority to hear and

decide all matters of controversy. Such

jurisdiction is not defined by the propriety of

the court's judgments. 'There are many rights

belonging to litigants-rights which a court may

- 29 -
1-04-2258

not properly deny, and yet which if denied do

not oust the jurisdiction or render the

proceedings absolutely null and void.' (Humphries

v. District of Columbia (1899), 174 U.S. 190,

194, 43 L. Ed. 944, 945, 19 S. Ct. 637, 639.)

Significantly, this court has held that the

constitutional right to not be twice put in

jeopardy for the same offense is a personal

privilege which may be waived. People v. Scales

(1960), 18 Ill. 2d 283, 285.

In this case, jurisdiction over the

defendant, as well as over the subject matter,

was proper. The court had authority to enter

conviction and sentence on either of the

charged offenses (see People v. Donaldson (1982),

91 Ill. 2d 164, 170; People v. King (1977), 66 Ill.

2d 551, 566), and judgment on both was, merely error.

Nevertheless, the court's erroneous judgment was

insufficient to effect divestiture of the court's

jurisdiction. The judgment was, therefore,

voidable and is not subject to collateral attack.

See People v. Stueve (1977), 66 Ill. 2d 174, 179

(where the subject matter and personal jurisdiction

- 30 -
1-04-2258

proper, judgment on multiple convictions, though

improper, not void)." People v. Davis, 156 Ill. 2d

155-58.

The legislature enacted Public Act 91-404 in 2000, amending

various felony offenses, including armed robbery, by adding

sentence enhancements when a firearm is involved in the

commission of the offense. See Pub. Act 91-404, §5, eff. January

1, 2000. Here, defendant was indicted for an offense that he

committed in 2001, and his trial and sentencing hearing were held

in 2003, when Moss (decided June 19, 2003) and Walden (decided

April 18, 2002) had invalidated the enhancement provisions. The

decision in Sharpe, which overturned Moss and Walden, was issued

on October 6, 2005, while defendant's case was pending on direct

review. The decision in Hauschild was filed on June 7, 2007.

The issue of whether a sentence that was imposed pursuant to

the holdings in Walden or Moss is void is not merely an exercise

in semantics. Section 5-8-1(c) of the Unified Code of Corrections

provides: "A motion to reduce a sentence may be made, or the

court may reduce a sentence without motion, within 30 days after

the sentence is imposed. A defendant's challenge to the

correctness of a sentence or to any aspect of the sentencing

hearing shall be made by a written motion filed within 30 days

following the imposition of sentence. However, the court may not

- 31 -
1-04-2258

increase a sentence once it is imposed." (Emphasis added.) 730

ILCS 5/5-8-1(c)(West 2006).

Our supreme court considered section 5-8-1(c) in People v.

Kilpatrick, 167 Ill. 2d 439 (1995):

"Under well-settled rules of statutory

construction, section 5-8-1(c) is to be interpreted

according to the plain meaning of its terms, in order

to ascertain and give effect to the intent of the

legislature, bearing in mind the reasons for the

provision, the harms to be remedied, and the goals

to be achieved. Faheeem-El v. Klincar (1988), 123

Ill. 2d 291, 298. Section 5-8-1(c) is consistent

with the United States Supreme Court's decision in

North Carolina v. Pearce (1969), 395 U.S. 711,

23 L. Ed. 2d 656, 89 S. Ct. 2072. In Pearce,

the Court stated that due process may prohibit

a judge from imposing a more severe sentence

where the defendant has been convicted following

a retrial. The Court reasoned that imposing a

greater sentence after retrial could essentially

penalize the defendant's right to challenge his

conviction and sentence. The Court observed that

'[d]ue process of law *** requires that

- 32 -
1-04-2258

vindictiveness against a defendant for having

successfully attacked his first conviction must

play no part in the sentence he receives after a

new trial. And since the fear of such

vindictiveness may unconstitutionally deter a

defendant's exercise of the right to appeal or

collaterally attack his first conviction, due

process also requires that a defendant be freed of

apprehension of such a retaliatory motivation on

the part of the sentencing judge.' (Pearce, 395 U.S.

at 725, 23 L. Ed. 2d at 669, 89 S. Ct. at 2080.

The Court concluded that an increased sentence upon

resentencing is proper where the defendant has

engaged in additional conduct since the date of

his original sentence that warrants an enhanced penalty.

In addition, whenever a more severe sentence is

imposed on resentencing, the 'reasons for *** doing

so must affirmatively appear [on the record].'

(Pearce, 395 U.S. at 726, 23 L. Ed. 2d at 670, 89 S.

Ct. at 2081. The Pearce rule was recognized and

applied by this court in People v. Baze (1969), 43

Ill. 2d 298, and People v. Rivera (1995), 166 Ill.

2d 279.

- 33 -
1-04-2258

* * *

*** By its express terms, section 5-8-1(c) forbids

the increase in a sentence once it has been imposed."

People v. Kilpatrick, 167 Ill. 2d at 443-46.

Section 5-8-1(c) codifies Pearce's goal of eliminating the

risk that a defendant will be penalized for his efforts to seek

to obtain relief by pursuing his right to an appeal. 730 ILCS

5/5-8-1(c)(West 2006). Section 5-8-1(c) extends the protection

of Pearce to defendants upon their being sentenced by the trial

court, rather than only when a defendant has been convicted

following a retrial. As demonstrated by the holdings in Arna,

Garcia, McKoski and Roman, section 5-8-1(c) does not apply to

sentences that are void. As Hauschild holds that sentences

imposed upon defendants pursuant to Moss and Walden are void,

those defendants are denied the protection of section 5-8-1(c).

Apparently, this issue was not raised before the supreme court

when Hauschild was being considered. While 5-8-1(c) does apply to

cases in which the circuit court originally imposed a nonenhanced

sentence, by its own language, section 5-8-1(c)'s proscription

against increasing a defendant's sentence has no applicability to

cases in which the circuit court originally imposed an enhanced

sentence that is subsequently affirmed or reinstated by a court

of review.

- 34 -
1-04-2258

Applying well-settled principles of law regarding

retroactivity, Hauschild requires that the holding in Sharpe must

be applied to cases on direct review at the time Sharpe was

decided (October 6, 2005). People v. Hauschild, 226 Ill. 2d at

78-79. Consequently, defendants cannot rely on the cross-

comparison analysis to challenge their sentences under the

proportionate penalties clause. Ill. Const. 1970, art. I, §11.

Cases pending on direct review in which courts refused to impose

or vacated sentences based on an application of the cross-

comparison analysis should have that portion of their holdings

vacated.

A problem arises as a result of Hauschild's holding that

nonenhanced sentences imposed pursuant to the cross-comparison

analysis are void. Under previous holdings of our supreme court,

void sentences may be attacked by the State, which may ask courts

to "correct" them at any time. People v. Arna, 168 Ill. 2d at

113; City of Chicago v. Roman, 184 Ill. 2d at 510. The issue is

further complicated by the fact that the Hauschild court also

held that "judicial opinions announcing new constitutional rules

applicable to criminal cases are retroactive to those cases

pending on direct review at the time the new rule is announced."

People v. Hauschild, 226 Ill. 2d at 77. This language would make

Sharpe applicable only to those cases that were pending on direct

- 35 -
1-04-2258

review at the time Sharpe was decided (October 6, 2005). Those

defendants whose cases were either not appealed or whose appeals

had been concluded at the time Sharpe was decided arguably would

not be affected. See People v. De La Paz, 204 Ill. 2d 426, 429

(2003) ("Apprendi does not apply retroactively to causes in which

the direct appeal process had concluded at the time that Apprendi

was decided"). As the benefits of Apprendi were denied to those

defendants whose direct appeals had concluded at the time that

Apprendi was decided, it appears to make sense that the

detrimental aspects of Sharpe should also not be applied

"retroactively to cases in which the direct appeal process had

concluded at the time that [Sharpe] was decided."

Limiting the holding in Sharpe to cases on direct appeal would

allow courts of review to reject any cross-comparison analysis

and affirm enhanced sentences where the trial court imposed them.

Hauschild's holding that nonenhanced sentences which were imposed

pursuant to Walden and Moss are void arguably subjects those

defendants who never appealed, or whose appeals had been

concluded at the time of the Sharpe decision, to the threat of

having their nonenhanced sentences vacated and being subjected to

enhanced sentences. In remanding the cause to the trial court

for a new sentencing hearing, the supreme court said they were

doing so "in accord with [Hauschild's] argument adopted by the

- 36 -
1-04-2258

appellate court." People v. Hauschild, 226 Ill. 2d at 81. As

previously mentioned, in the appellate court Hauschild "[did] not

dispute that the result of the Sharpe ruling is to render void

his sentences for armed robbery and attempted first-degree

murder." People v. Hauschild, 364 Ill. App. 3d at 223. As

Hauschild chose not to file a petition for rehearing before the

supreme court, that court did not have an opportunity to consider

the argument that sentences imposed pursuant to Walden and Moss

are not void.

Our decision in the instant case relies upon the holding in

Hauschild rather than the holding in Sharpe. In reviewing any

sentence under the proportionate penalties clause, the reviewing

court should consider whether the sentence violates the "cruel or

degrading" standard or is harsher than the penalty for an offense

with identical elements. People v. Hauschild, 226 Ill. 2d at 82-

83; People v. McCarty, 223 Ill. 2d at 136-37. See also People v.

Andrews, 364 Ill. App. 3d at 275; People v. Harvey, 366 Ill. App.

3d at 134.

The defendant in the instant case was convicted of armed

robbery while carrying a firearm and sentenced to 19 years in

prison for that offense. The defendant in Hauschild was

similarly convicted of armed robbery. There, the supreme court

held that the statutory elements of armed robbery while armed

- 37 -
1-04-2258

with a firearm are identical to the elements of armed violence

predicated on robbery while armed with a dangerous weapon.

People v. Hauschild, 226 Ill. 2d at 85. The court held that

because the offenses are identical but their penalties are not,

the "defendant's sentence for armed robbery while armed with a

firearm [citation] violates the proportionate penalties clause

because the penalty for that offense is more severe than the

penalty for the identical offense of armed violence predicated on

robbery with a category I or category II weapon." People v.

Hauschild, 226 Ill. 2d at 86-87.

The court further held:

"[W]hen an amended sentencing statute has been

found to violate the proportionate penalties clause,

the proper remedy is to remand for resentencing in

accordance with the statute as it existed prior to

the amendment. See People v. Pizano, 347 Ill. App.

3d 128, 136 (2004)(proper remedy where a statutory

amendment is found to have violated proportionate

penalties clause is to remand the cause for a new

sentencing hearing under the statute in effect before

the adoption of the amendment); see also People v.

Gersch, 135 Ill. 2d 384, 390 (1990)('The effect of

enacting an unconstitutional amendment to a statute

- 38 -
1-04-2258

is to leave the law in force as it was before the

adoption of the amendment'). Thus, while the 12-year

term originally imposed on defendant is a proper one,

we remand, as earlier noted, in order to allow the

trial court to reevaluate defendant's sentence in light

of his cumulative sentence and to then resentence him

within the range for armed robbery as it existed prior

to being amended by Public Act 91-404, effective January

1, 2000. In light of this holding, we reject defendant's

claim that his armed robbery while armed with a firearm

conviction should be reduced to 'simple robbery.' "

People v. Hauschild, 226 Ill. 2d at 88-89.

We follow Hauschild's holding and remand this matter to the

trial court for resentencing.

CONCLUSION

For the aforementioned reasons, we affirm defendant's

convictions for armed robbery and for the aggravated unlawful

restraint of Claudina and Christopher; we vacate his conviction

for the aggravated unlawful restraint of Duncan; but we affirm

his concurrent sentence of 10 years for the aggravated unlawful

restraint convictions. We vacate defendant's sentence of 19

years for armed robbery and remand this matter to the trial court

to again impose a sentence within the range for armed robbery as

- 39 -
1-04-2258

it existed prior to being amended by Public Act 91-404, effective

January 1, 2000.

Affirmed in part and vacated in part.

GREIMAN and MURPHY, JJ., concur.

- 40 -
1-04-2258

- 41 -