People v. Johns

FIRST DIVISION
November 17, 2008

No. 1-06-1190

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 02 CR 31770
)
DEMETRIUS JOHNS, ) The Honorable
) Reginald Baker,
Defendant-Appellant. ) Judge Presiding.

JUSTICE GARCIA delivered the opinion of the court.

Following a jury trial, Demetrius Johns was found

accountable for armed robbery but not for murder. He was given

an 11-year sentence with an "add-on" penalty of 15 years because

the armed robbery was committed with a handgun. On appeal, the

defendant contends (1) his trial counsel was ineffective for

failing to assert a compulsion defense, (2) the add-on portion of

his sentence violates the "prohibition against disproportionate

penalties," and (3) his nonenhanced sentence of 11 years is an

abuse of discretion because a principal codefendant was sentenced

to six years for armed robbery.

We affirm: a compulsion defense was unavailable to the

defendant as a matter of law. We therefore reject his

ineffective assistance claim. We agree, however, that imposing

an add-on penalty of 15 years violated the proportionate
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penalties clause of the Illinois Constitution on the authority of

People v. Hauschild, 226 Ill. 2d 63, 86-87, 871 N.E.2d 1 (2007).

Because we vacate his sentence in its entirety and remand for a

new sentencing hearing, we do not reach the third issue.

BACKGROUND

The victim, Eugene Williams, was killed on May 5, 2002, at

the Knights' Inn in Harvey. The defendant was arrested nine days

later. After his arrest, the defendant made statements

implicating himself, Larry Melvin, and Michael Powe1 in the

victim's death. The defendant was charged in a 10-count

indictment under an accountability theory. The case proceeded to

trial in March 2006 before a jury on three counts of murder

(intent to kill, strong probability of death and felony murder)

and one count of armed robbery.

At trial, the State presented the testimony of Dolores

Bibbs, a housekeeper at the Knights' Inn. On May 5, 2002, Bibbs

went to the victim's room to get her boyfriend. When she entered

the room, her boyfriend was smoking and drinking with the victim,

the defendant, Powe, and Melvin. Bibbs and her boyfriend left

the room and Bibbs began her housekeeping duties. While she was

cleaning, another housekeeper screamed for Bibbs to come to the

1
Sometimes spelled "Poe" in the trial transcripts.

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victim's room. When Bibbs got to the victim's room, the victim

was kneeling in the doorway covered in blood. Bibbs stayed with

the victim until the paramedics arrived.

Quiara Campbell testified she was at the Knights' Inn

watching television with her sister's children when she heard a

door slam. She got up to look out the window and saw three men

running out of the room next door. Campbell recognized the

defendant, Melvin, and Powe as the three men, all of whom had

blood on their white T-shirts. The men ran down a flight of

stairs to the parking lot and drove away in a car driven by the

defendant. Campbell returned to watching television. After a

few minutes, there was a knock on the door. Campbell's nephew

opened the door to reveal the victim, who was covered in blood.

Campbell jumped up, closed the door, and called the police.

Detective William Martin of the Harvey police department

first spoke to the defendant on the evening of May 14, 2002.

After indicating he understood his Miranda rights, the defendant

agreed to speak with Martin. Detective Boone joined the

interview. The defendant initially told Martin he knew nothing

about the victim's death. After Martin shared information

gathered during the investigation, the defendant admitted he was

at the Knights' Inn when the victim was killed.

Martin asked the defendant to provide a written statement

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detailing his version of what occurred, which the defendant

agreed to do. After reviewing the handwritten statement with the

defendant, Martin had the statement typed and he reviewed the

typed statement with the defendant. Then Martin, along with

Boone, and the defendant signed each page of the typed statement.

During cross-examination, Martin testified that the

defendant claimed he "wasn't with the plan to kill" the victim,

never touched the victim, and never had a gun.

After Martin's testimony, the defendant's typed statement

was read into the record. In the statement, the defendant

admitted he was driving his car on May 5, 2002, when he saw

Melvin and Powe walking and picked them up. The defendant drove

Melvin and Powe to another location "so [Melvin] could serve a

customer." When the three men were back in the car, Melvin told

the defendant about a "lick," meaning a robbery, he wanted to do

at the Knights' Inn.

Melvin told the defendant that he and Powe had planned to

commit the robbery the previous night, but could not because they

did not have a car. Melvin, who had robbed the victim before,

described the victim as "sweet," meaning he would not fight back

during the robbery. Melvin indicated he planned to kill the

victim after the robbery. The defendant said he was not going to

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the Knights' Inn if the victim was going to be killed and asked

why the victim had to be killed if he was sweet. Melvin agreed

not to kill the victim.

When the three men arrived at the Knights' Inn, they saw

people coming out of the victim's room. The defendant tried to

signal to Melvin and Powe to call off the robbery because too

many people were around.

The defendant, Melvin, and Powe proceeded to the victim's

room. After a while, Powe went to the bathroom. When he came

out of the bathroom, he had a gun. Powe pointed the gun at the

victim and told him to get on the ground. Once the victim was on

the floor, Melvin used duct tape to bind the victim's legs and

hands. Powe demanded the victim reveal where his money and drugs

were located. The victim complied.

After Powe and Melvin obtained the victim's money and drugs,

Melvin began dragging the victim toward the bathroom. At this

point, the defendant said he was leaving. Powe told the

defendant to stay. Melvin took a razor off the bureau, handed it

to Powe, and told Powe to cut the victim's throat. Powe handed

the razor back, telling Melvin to do it. Once Melvin and the

victim were in the bathroom, Powe paced between the two rooms.

The defendant heard a gunshot but could not see who fired

the gun from where he was seated. After the gunshot, the

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defendant got up and ran out of the room. Melvin and Powe

followed. The three men got into the defendant’s car and the

defendant drove away. The defendant drove Melvin and Powe to

several locations before dropping them off.

Assistant State's Attorney Shawn Concannon testified she met

the defendant at the Harvey police station. She introduced

herself as an attorney, explained she was not the defendant's

attorney, and read the defendant his Miranda rights. Concannon

testified the defendant said he understood his rights and agreed

to speak with her about the victim's death. After their

conversation, Concannon offered the defendant several ways to

memorialize his statement. The defendant chose to make a

videotaped statement.

After Concannon's testimony, the defendant's videotaped

statement, which was substantially similar to his written

statement, was played in open court. The State rested.

The trial court denied the defendant's motion for a directed

verdict.

The defendant took the stand. The defendant testified that

when he learned that Melvin wanted to kill the victim after the

robbery, the defendant said he "wasn't with that." The defendant

told Melvin " 'if you steady talking about killing this guy, I'm

not with it.' " Based on Melvin's response that he would not

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kill the victim, the defendant testified he believed the robbery

was called off as well and that the men were going to the

Knights' Inn to watch a basketball game on television.

When the three men arrived at the Knights' Inn, the victim

and several other people were on a balcony overlooking the

parking lot. The defendant looked at Melvin and Powe and "[it]

was basically like, 'Man, I'm not in this. I ain't with this.

Look at these people.' " Powe nodded his head, which the

defendant took as agreeing with him. Melvin did not respond.

The defendant, Powe, and Melvin proceeded to the victim's

room. The defendant sat in a chair against the back wall of the

room. After 45 minutes of watching television, Powe went to the

bathroom. He came out with a gun. The defendant stood up and

asked Powe twice, "Man, what is you doing?" Powe pointed the gun

at him and told him to shut up and sit down. The defendant

complied, because Powe scared him with the gun.

While seated, the defendant watched as Melvin removed cash

from the victim's pocket after Powe asked the victim where the

money was. While he remained seated, the defendant saw Powe

remove drugs from a drawer. Melvin then bound the victim with

duct tape, took a razor off the television stand, and dragged the

victim into the bathroom.

Once the victim was in the bathroom, the defendant stood up

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and said he was leaving because he "wasn't on this, and they were

doing it anyway." Powe again pointed the gun at the defendant

and told him to sit down and shut up because he was driving. The

defendant believed that if he tried to leave the victim's room,

Melvin and Powe might "shoot and kill" him.

When the defendant heard a gunshot, he got up and ran out of

the room. Powe and Melvin followed. The three men got into the

defendant's car and the defendant drove away. The victim had

been shot and had his throat slit.

After leaving the Knights' Inn, the defendant drove Melvin

and Powe to several locations before dropping them off at Powe's

mother's home. The defense rested after the defendant's

testimony.

In her closing statement, defense counsel argued that the

defendant should not be held accountable for Melvin and Powe's

actions because the defendant terminated his role in the robbery

when he arrived at the Knights' Inn and signaled to Melvin and

Powe that the robbery could not go forward with so many people

around. The jury was instructed on the defendant's claim of

withdrawal. Illinois Pattern Jury Instructions, Criminal, No.

5.04 (4th ed. 2000) (IPI Criminal 4th No. 5.04).

The jury found the defendant not guilty of murder but guilty

of armed robbery.

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After denying the defendant's motion for a new trial, the

trial court sentenced the defendant to a total of 26 years, 15 of

which constituted the add-on penalty based on the use of a

firearm. The trial court denied the defendant's motion to

reconsider the sentence. This timely appeal follows.

ANALYSIS

The defendant raises three issues on appeal. First, he

contends his trial counsel was ineffective because she failed to

raise the affirmative defense of compulsion when evidence was

presented at trial that "the defendant was forced at gunpoint to

remain with [Melvin and Powe] as they committed an armed

robbery." Next, the defendant claims his enhanced sentence for

armed robbery based on the use of a firearm during the offense

violates the Illinois Constitution's prohibition against

disproportionate penalties because armed robbery committed with a

firearm has a more severe penalty than armed violence predicated

on a robbery although the two offenses have the same statutory

elements. Finally, the defendant contends the trial court abused

its discretion when it sentenced him to 11 years for armed

robbery, without the add-on penalty, when Melvin, who the

defendant contends had a direct role, was given six years for the

same offense.

I. Ineffective Assistance of Counsel

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According to the defendant's main brief, the defendant's

ineffective assistance of counsel claim is founded on his

testimony "that he tried to stop codefendant Michael Powe from

robbing Eugene Williams and when [the defendant] tried to leave

the scene, Michael Powe, while holding a gun, told [the

defendant] to 'shut up and sit down' because he [the defendant]

was driving and that [the defendant] felt too scared to leave."

This evidence, according to the defendant, was sufficient to

"raise a compulsion defense and [defense counsel should have

requested] that the jury be instructed accordingly." If in fact

the evidence at trial was sufficient to raise the affirmative

defense of compulsion, then trial counsel's failure to recognize

the availability of that defense would constitute ineffective

assistance of counsel. See People v. Sims, 374 Ill. App. 3d 231,

869 N.E.2d 1115 (2007).

Where the State's evidence does not raise the issue of an

affirmative defense, the defendant need only "present some

evidence thereon" to enlarge the State's burden of proving beyond

a reasonable doubt the offense charged to overcoming the evidence

supporting the elements of the affirmative defense as well. 720

ILCS 5/3-2 (West 2002); People v. Pegram, 124 Ill. 2d 166, 173,

529 N.E.2d 506 (1988), quoting Ill. Rev. Stat. 1983, ch. 38,

pars. 3-2(a),(b) (testimony elicited from the defendant

10
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"certainly satisfied the requirement that a defendant, to raise

an affirmative defense, 'must present some evidence thereon' ");

People v. Adcock, 29 Ill. App. 3d 917, 331 N.E.2d 573 (1975)

(evidence sufficient to require instruction on compulsion, which

the State must disprove beyond a reasonable doubt).

Thus, the question before us is whether the defendant

presented some evidence to support the defense of compulsion.

See People v. Kucavik, 367 Ill. App. 3d 176, 179, 854 N.E.2d 255

(2006) ("even slight evidence" sufficient to mandate instructing

on affirmative defense). In the context of this case, we examine

the defendant's testimony as to his involvement in the armed

robbery to determine whether it "raise[s] an issue of fact for

the jury creating a reasonable doubt as to defendant's guilt."

Sims, 374 Ill. App. 3d at 268, citing People v. Redmond, 59 Ill.

2d 328, 320 N.E.2d 321 (1974) (quantum of evidence necessary to

raise an affirmative defense is sufficient evidence to raise an

issue of fact for the jury creating a reasonable doubt as to the

defendant's guilt).

On the record before us, we conclude the affirmative defense

of compulsion is foreclosed to the defendant for three reasons.

First, our examination of the record finds it devoid of any

evidence that the defendant performed any conduct under

compulsion that amounted to armed robbery. Second, the

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defendant's testimony at trial amounts to no more than a claim

that he was unaware that the robbery would take place. Finally,

the defendant had ample opportunity to withdraw from the criminal

enterprise to commit robbery but he failed to withdraw.

A. No Evidence of Compelled Conduct

The defendant claims that his trial testimony that he tried

to stop the commission of the armed robbery, for which he was

found accountable, should have alerted defense counsel of the

availability of the defense of compulsion. We take the

defendant's claim that he attempted to "stop" the armed robbery

to be founded on his testimony that when Powe exited the bathroom

with a gun in hand and announced the robbery, the defendant stood

up and stated twice, "Man, what is you doing?" According to the

defendant, Powe then pointed the gun at him and told him to shut

up and sit down, and he complied.

We find the defendant's claim that he attempted to stop the

armed robbery to be wholly at odds with his claim that it was

this same conduct that formed his accountablility for armed

robbery. We fail to understand how conduct aimed at stopping the

armed robbery can also serve as conduct amounting to the

commission of armed robbery. The defendant's generous

interpretation of his trial testimony that he attempted to stop

the armed robbery but was foiled by Powe is not "some evidence"

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of a plausible compulsion defense. While it is true that the

defendant testified that he remained seated during the armed

robbery "under the compulsion of threat or menace of imminent

infliction of death or great bodily harm" (720 ILCS 5/7-11 (West

2002)), this is not the conduct that formed the basis for his

armed robbery conviction. "The defense of compulsion is a

defense only with respect to the conduct demanded by the

compeller." People v. Scherzer, 179 Ill. App. 3d 624, 644

(1989), citing People v. Rodriguez, 30 Ill. App. 3d 118, 332

N.E.2d 194 (1975).

Clearly, if the jury believed the defendant had attempted to

stop the armed robbery but was foiled by Powe and his handgun,

the jury should have found him not guilty of armed robbery, as

his mere presence was insufficient to hold him accountable for

the actions of Powe and Melvin. See People v. Perez, 189 Ill. 2d

254, 268, 725 N.E.2d 1258 (2000) ("presence at the commission of

the crime, even when joined with flight from the crime or

knowledge of its commission, is not sufficient to establish

accountability"). Yet, the defendant makes no argument on appeal

that the jury issued its verdict against the evidence presented.

The videotape and the defendant's written statement introduced at

trial explain his failure to so argue and provide the basis for

the jury's verdict. Scherzer, 179 Ill. App. 3d at 645.

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The defendant was found accountable not based on his failed

effort to "stop" the armed robbery or his decision to follow

Powe's command that he shut up and remain seated. Rather, the

defendant was found accountable based on the aid he provided

before, during and after the three arrived at the Knights' Inn

with the shared intent to commit a robbery. Both the videotape

and his written statement made clear that the defendant joined in

the criminal purpose of going to Knights' Inn to commit a "lick."

The videotape and written statement made clear that the defendant

drove to the Knights' Inn with Powe and Melvin with the intention

of committing a robbery, proceeded with Powe and Melvin to the

victim's room, remained with them while they searched and

recovered the victim's drugs and money, only announced he was

leaving after the victim was dragged to the bathroom and a shot

was fired, and drove Powe and Melvin away from the scene of the

murder. The evidence is overwhelming that the defendant aided

Powe and Melvin in the planning and commission of the offense.

The jury's verdict is confirmed by the defendant's own testimony

that Melvin and Powe were unable to commit the robbery the day

before because they lacked transportation. The defendant

provided the missing transportation. There is no evidence that

he committed any of the acts in furtherance of the criminal

enterprise under a threat or menace of imminent death of great

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bodily harm.2 See People v. Scherzer, 179 Ill. App. 3d 624, 644,

534 N.E.2d 1043 (1989) (no error in refusal to instruct on

defense of compulsion "as to those offenses that the defendant

did not act under compulsion").

The defendant's testimony that he was compelled to shut up

and sit down was not "some evidence" that he committed armed

robbery under compulsion. The affirmative defense of compulsion

was foreclosed to the defendant because the conduct that he was

compelled to perform, according to his testimony, can in no way

be connected to the commission of the offense of armed robbery.

Scherzer, 179 Ill. App. 3d at 645-46. There is no evidence that

the defendant committed armed robbery under the threat or menace

of imminent death or great bodily harm. In fact, based on the

defendant's testimony, which is the only evidence offered in

support of a compulsion defense, he did not perform any conduct

under compulsion other than to remain seated while the armed

2
Consistent with the jury's finding of not guilty of

murder, the defendant also made clear in the videotape and

written statement that he would not take Powe and Melvin to the

Knights' Inn if, along with the robbery, Melvin intended to kill

the victim.

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robbery took place in front of him.

B. Unaware of Impending Armed Robbery

The evidence is unchallenged that the defendant played no

direct role in the removal of the cash from the victim's pockets

or the drugs from the drawers. He testified that he believed the

assurances Melvin gave while en route to the Knights' Inn that he

would not kill the victim also meant the robbery was off as well.

The defendant also testified that if he was mistaken that the

robbery was not called off in the car, the robbery was certainly

off when he remarked to Powe and Melvin upon arriving at the

Knights' Inn that there were too many individuals around.

However, once again the defendant's claims are at odds with

each other. If the robbery was called off at the same time

Melvin gave assurances that the killing would not go forward,

there would have been no reason for the defendant to express

concern upon arriving at the Knights' Inn over the number of

persons around if the three were there simply to watch television

with the victim, as the defendant contended at trial. While we

understand the defendant to say, in the end, Melvin lied to him

about both the robbery and the killing, the jury had good reason

to reject the defendant's claim that he believed that the robbery

was off either before or upon arriving at the Knights' Inn. The

incriminating evidence in the videotape and the written statement

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gave the jury ample evidence to conclude that at the time the

three defendants arrived at the Knights' Inn, the plan to commit

the robbery was very much in play. There was ample evidence that

the robbery would go forward if the opportunity arose. When the

opportunity to commit the robbery presented itself with the three

defendants being alone with the victim, Powe acted. While the

defendant, according to his trial testimony, sat through the

commission of the armed robbery, based on the evidence, the jury

had ample evidence to find the defendant accountable for that

offense.

A generous reading of the defendant's testimony is that at

most he was unaware that the robbery would take place. This is

precisely the import of the defendant's claim when he points to

his testimony that he believed the robbery had been called off,

first in the car and then at the Knights' Inn, that he twice

questioned Powe what he was doing when he exited the bathroom

with a gun in hand, and that he played no role in the removal of

the cash from the victim's pockets or the drugs from the drawers.

That the defendant was unaware that the robbery would take place

forecloses the defense of compulsion. Scherzer, 179 Ill. App. 3d

at 644 (no reversible error in refusing the defendant's

instructions on the affirmative defense of compulsion where the

defendant testified he was unaware the offenses were going to

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take place).

C. No Withdrawal

In the nature of an alternative argument, the defendant

contends he had a change of mind, amounting to withdrawal,

regarding the robbery when he observed too many individuals

around upon arriving at the Knights' Inn. Perhaps the defendant

did have a change of mind, but he did not withdraw at that point.

Nor did Powe and Melvin share, as it turns out, the defendant's

claimed change of mind.

The defendant went along with Powe and Melvin to the

victim's room. The only explanation for going to the victim's

room offered in the videotape and written statement was to commit

a robbery. In proceeding to the victim's room with Powe and

Melvin, we find no evidence that the defendant withdrew from the

original intention to commit a robbery that first brought the

three defendants to the Knights' Inn. See People v. Rucheinski,

224 Ill. App. 3d 118, 125, 586 N.E.2d 506 (1991) (no evidence in

record to entitle the defendant to instruct jury on withdrawal

exception to accountability theory).

Thus, even if we were to find "some evidence" to support the

defendant's claim of compulsion, under the facts of this case, a

compulsion defense remained unavailable to the defendant. A

compulsion defense is not available "if the defendant had ample

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opportunities to withdraw from the criminal enterprise but failed

to do so." Sims, 374 Ill. App. 3d at 267, citing Scherzer, 179

Ill. App. 3d 624, 645-46. The defendant's claim that he believed

the robbery was called off at the time they arrived at Knights'

Inn was based on too many witnesses being present, not a

withdrawal from the criminal enterprise the three had embarked

upon. While the defendant understood Powe's nod to mean that he

agreed that the robbery was off, he admitted he got no such

assurances from Melvin, and it was Melvin that brought up the

"lick" and his intention of killing the victim after the robbery.

Of course, the nod from Powe turned out to mean nothing more than

a need to wait for the victim to be alone with the three

defendants to commit the robbery. Sometime after Dolores Bibbs

and her boyfriend left the victim in the company of the

defendant, Powe and Melvin, Powe acted on the original plan to

rob the victim. The defendant had ample opportunity to withdraw

from the planned robbery but failed to do so. More to the point,

the jury was instructed on withdrawal and it was rejected.

Sims, the case the defendant heavily relies upon for his

claim that his testimony was sufficient to raise a compulsion

defense, is distinguishable on its facts. In Sims, we found

ineffective assistance of counsel based on counsel's failure to

raise the affirmative defense of compulsion and request the jury

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be instructed accordingly in light of the evidence adduced at

trial. Sims was found accountable for both the murder and the

armed robbery committed at a restaurant. Sims, 374 Ill. App. 3d

at 232. Sims was a 15-year-old, whose role in the robbery was to

serve as a lookout. A codefendant, who pled guilty and was a

witness for the State, testified on cross-examination that before

all those involved in the robbery got into the car to drive to

the restaurant, the "defendant stated that he did not want to

take part in the robbery." Sims, 374 Ill. App. 3d at 235. The

codefendant testified that the ringleader, with a gun in hand,

"told defendant that 'he was there when it started, he got to be

there when it finished.' " Sims, 374 Ill. App. 3d at 235. After

this testimony was elicited, the trial court called a recess to

inquire of defense counsel whether he "was attempting to raise an

affirmative defense of compulsion without having pled it." Sims,

374 Ill. App. 3d at 235. Defense counsel conceded that he made a

" 'mistake by not filing or asking to file a compulsion

defense.' " Sims, 374 Ill. App. 3d at 235. When testimony

resumed, the codefendant testified that none of the participants

ever saw Sims carrying out his role of being a lookout. Sims,

374 Ill. App. 3d at 236. The defendant was arrested near the

robbery site, about 30 to 40 feet away. Sims, 374 Ill. App. 3d

at 236. The jury was never instructed on a compulsion defense.

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No testimony similar to that presented in Sims was ever elicited

in this case.

The other case cited by the defendant in support of his

claim that defense counsel should have raised a compulsion

defense is also distinguishable on its facts. See People v.

Pegram, 124 Ill. 2d 166, 174, 529 N.E.2d 506 (1988). In Pegram,

the supreme court concluded that the defendant's testimony that

he was forced at gunpoint to lead the robbers to the victim,

forced to place the victim in a locked room, lie on the floor and

lead them to the victim's car, "certainly satisfied the

requirement that a defendant, to raise an affirmative defense,

'must present some evidence thereon.' " Pegram, 124 Ill. 2d at

173, quoting 720 ILCS 5/3-2(a) (West 2002). No such force was

ever exerted against the defendant here.

D. Trial Counsel Not Ineffective

We find the record devoid of any evidence to support the

defendant's claim that he aided and abetted the commission of

armed robbery under compulsion. We find the defendant's

testimony as to his involvement in the armed robbery amounts to

no more than he was unaware that the armed robbery would be

committed. The defendant's testimony fails to raise an issue of

fact for the jury creating a reasonable doubt as to the

defendant's guilt. In any event, the defendant was presented

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with ample opportunity to withdraw from the plan to commit the

robbery but he failed to do so. The evidence against compulsion

was so clear and convincing that as a matter of law we conclude

that there was no compulsion based on the defendant's testimony.

See People v. Carpentier, 20 Ill. App. 3d 1024, 1027, 314 N.E.2d

647 (1974) (if evidence against affirmative defense is clear and

convincing then, as a matter of law, jury need not be instructed

on affirmative defense); People v. Dunlap, 315 Ill. App. 3d 1017,

1025, 734 N.E.2d 973 (2000) (no evidence in the record as to any

of the necessary elements of self-defense). Consequently, the

record is barren of any evidence that might call into question

defense counsel's failure to assert a compulsion defense, which

in turn means there is no evidentiary support for his claim of

ineffective assistance of counsel. See People v. Moore, 356 Ill.

App. 3d 117, 121, 824 N.E.2d 1162 (2005). On the contrary, the

result counsel achieved for the defendant supports that she was

very effective.

II. The Defendant's Enhanced Sentence

The defendant contends his sentence with an add-on penalty

violates the proportionate penalties clause of the Illinois

Constitution because armed robbery with a firearm and armed

violence predicated on robbery have identical statutory elements,

yet armed robbery with a firearm is punished more severely. As

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controlling authority, the defendant cites People v. Hauschild,

226 Ill. 2d 63, 86-87, 871 N.E.2d 1 (2007). The defendant argues

that under the authority of Hauschild, the add-on portion of 15

years of his 26-year sentence must be vacated, leaving him with

an 11-year sentence.

The State agrees that Hauschild is controlling. However,

the State contends Hauschild requires this court to vacate the

defendant's sentence in totality and remand the case to the trial

court for a new sentencing hearing.

In Hauschild, our supreme court determined that under the

identical elements test, the "sentence for armed robbery while

armed with a firearm (720 ILCS 5/18-2(b) (West 2000)) 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 (720 ILCS 5/33A-3(a), (a-5) (West 2000))."

Hauschild, 226 Ill. 2d at 86-87. In Hauschild, the defendant was

not given the corresponding " 'add-on penalty' of 15 years" for

armed robbery because the sentence was imposed "while [People v.

Walden, 199 Ill. 2d 392, 769 N.E.2d 928 (2002),] was still good

law, invalidating the enhanced penalty for armed robbery while

armed with a firearm." Hauschild, 226 Ill. 2d at 88. The

supreme court in Hauschild established a bright line that "when

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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." Hauschild, 226 Ill. 2d at 88-89. A

remand was ordered even though the 12-year sentence imposed was a

proper one. Hauschild, 226 Ill. 2d at 89.

Thus, we vacate the defendant's sentence for armed robbery

and remand this matter to the trial court for resentencing,

"within the range for armed robbery as it existed prior to being

amended by Public Act 91-404, eff. January 1, 2000." Hauschild,

226 Ill. 2d at 89.

III. The Defendant's Sentence

In light of our remand, we do not address the defendant's

final contention that the trial court abused its discretion when

it imposed a sentence of 11 years for the nonenhanced portion of

the defendant's sentence when Melvin was given a sentence of six

years for the same offense.3

CONCLUSION

3
In fact, on the record before us, it appears the defendant

and Melvin received identical aggregate sentences of 26 years.

Melvin was sentenced to 20 years for murder, to be followed by 6

years for armed robbery.

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For the reasons stated above, we affirm the defendant's

conviction, vacate the defendant's sentence, and remand this case

to the circuit court for resentencing.

Affirmed in part and vacated in part; cause remanded.

R. GORDON, P.J., and HALL, J., concur.

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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,

v.

DEMETRIUS JOHNS,
Defendant-Appellant.
________________________________________________________________

No. 1-06-1190

Appellate Court of Illinois
First District, First Division

Filed: November 17, 2008
_________________________________________________________________

JUSTICE GARCIA delivered the opinion of the court.

R. GORDON, P.J., and HALL, J., concur.
_________________________________________________________________

Appeal from the Circuit Court of Cook County
Honorable Reginald Baker, Judge Presiding
_________________________________________________________________

For PLAINTIFF - James E. Fitzgerald, Assistant State's Attorney, Of Counsel,
APPELLEE Manuel Magence, Assistant State's Attorney, Of Counsel, Sari
London, Assistant State's Attorney, Of Counsel
RICHARD A. DEVINE
State's Attorney of Cook County
Richard J. Daley Center–Room 309
Chicago, Illinois 60602

For DEFENDANT - Tiffany Green, Assistant Public Defender
APPELLANT MICHAEL J. PELLETIER, Deputy Defender
Office of the State Appellate Defender
203 N. LaSalle Street, 24th Floor

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Chicago, IL 60601

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