dissenting:
In my view, the case at bar is indistinguishable from People v. Wade (1989), 131 Ill. 2d 370, and the principles expressed in that opinion are clearly applicable here. Consistent with Wade, I would hold that the defendant’s conviction and sentence for the Class X felony of armed violence, based on the predicate felony of kidnapping, does not abridge the guarantee of sentencing proportionality found in the Illinois Constitution (Ill. Const. 1970, art. I, §11), even though the same conduct could also have been prosecuted as the Class 1 felony of aggravated kidnapping.
As a preliminary matter, the majority holds that the defendant’s supposed failure to raise in the circuit court his constitutional challenge to the armed violence conviction was not a procedural default. While the majority cites several cases in support of the proposition that such an argument may be raised at any time, the majority ignores other decisions that suggest a contrary rule. (See People v. Fernetti (1984), 104 Ill. 2d 19, 21-23; People v. Myers (1981), 85 Ill. 2d 281, 290-91.) That question need not be resolved in this case, however, for a review of the record reveals that the constitutional issue was adequately presented in the circuit court.
During a pretrial conference, the trial judge raised sua sponte the question whether there was any constitutional infirmity in the existence of differently classified offenses proscribing the same conduct. The judge did not .rule on the matter at that time. At a later hearing, the judge distinguished this court’s decision in People v. Wisslead (1983), 94 Ill. 2d 190, on the ground that Wisslead involved predicate offenses of different, rather than identical, classes. The judge expressed the view that the present case, involving predicate offenses of the same class, was essentially a matter of prosecutorial discretion. The defendant proceeded to trial on the armed violence charge, and he was convicted of that offense.
Although the defendant did not raise in his post-trial motion the constitutional claim presented here, he did argue that the prosecutor had abused his discretion in charging him with armed violence rather than aggravated kidnapping, and he asked that his conviction for armed violence be reduced accordingly. At the hearing on the post-trial motion, the trial judge let stand the defendant’s conviction for armed violence. Citing the appellate court’s decision in People v. Moritz (1988), 173 Ill. App. 3d 498, which addressed the same issue, the judge explained that the prosecutor was free to charge either armed violence or aggravated kidnapping. The judge thus ruled that the conviction for the more serious offense was valid.
As the record demonstrates, the constitutionality of the defendant’s conviction for armed violence was considered and resolved in the circuit court. Acting sua sponte, the trial judge posed the precise issue that is now before us. Although the defendant’s post-trial motion did not explicitly challenge the armed violence conviction on constitutional grounds, the defendant did assert that the prosecutor had abused his discretion in charging that offense. In denying the post-trial motion, the trial judge relied on case law that rejected the same argument made here. I would conclude that the constitutional question presented here was adequately raised in the trial court. Contrary to the majority’s view, we have no cause in this case to determine whether such a claim may never be procedurally defaulted.
Turning to the merits of the case, I do not agree with the court’s conclusion that, for constitutional reasons, a defendant may be convicted of only the less serious crime when two differently classified offenses proscribe the same conduct. The majority purports to distinguish last year’s decision in Wade on the ground that the predicate felonies in Wade were “different, but related, offenses,” while the predicate felonies in the present case are “two identical offenses” (emphasis in original) (139 Ill. 2d at 180). The distinction drawn by the court is an unwarranted one, however. That the same offense may serve as the predicate for an enhanced charge under both the armed violence and aggravated kidnapping statutes is but a variation on the established rule that criminal offenses may overlap and that the same conduct may violate more than one statutory proscription. Trial and conviction of the present defendant on the more serious offense simply confirms the measure of discretion the legislature has granted prosecutors in deciding what crimes to charge.
In Wade we rejected the argument that “identically classified offenses may not be enhanced by the same circumstance to offenses of different classifications.” (131 Ill. 2d at 379.) Citing the Supreme Court’s decision in United States v. Batchelder (1979), 442 U.S. 114, 60 L. Ed. 2d 755, 99 S. Ct. 2198, and this court’s decision in People v. MeCollough (1974), 57 Ill. 2d 440, we reasoned that “the availability of different punishments for separate offenses based on the commission of the same acts does not offend the constitutional guarantees of equal protection or due process.” (131 Ill. 2d at 379.) In addition, we noted that the legislature enjoys broad power to define criminal offenses and to prescribe penalties for those violations. (131 Ill. 2d at 379, citing People v. Upton (1986), 114 Ill. 2d 362, 373.) Although the “identically classified [predicate] offenses” presented for comparison in Wade were indeed different felonies, it is clear that the same conduct was thought to underlie each one. Having determined in Wade that identically classified offenses, though based on the same conduct, may be enhanced to offenses of different classifications, we should now hold that the same offense may itself serve as the predicate for differently classified offenses, in the absence of the legislature’s expression of a contrary design.
As Wade’s citations to Batchelder and MeCollough make clear, Wade was not the first case to consider the validity of overlapping criminal statutes that prohibited identical conduct. Batchelder involved two Federal statutes that both proscribed the receipt of a firearm by a convicted felon. The Supreme Court found no statutory or constitutional impediment to conviction and sentencing of the defendant under the statute that allowed imposition of the longer term of imprisonment. Of significance here, the Court held that the overlapping statutes were not unconstitutionally vague even though they authorized different punishments for identical conduct. The Court stated:
“Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied.” Batchelder, 442 U.S. at 123, 60 L. Ed. 2d at 764, 99 S. Ct. at 2204.
In addition, the Batchelder Court ruled that the discretion afforded to the prosecutor by the existence of the two provisions did not offend the constitutional guarantees of equal protection or due process. The Court noted that it had “long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants” (442 U.S. at 123-24, 60 L. Ed. 2d at 764, 99 S. Ct. at 2204) and rejected the view of the court of appeals in that case that a different rule should apply to overlapping statutes that require proof of the same elements. The Court explained:
“[T]here is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context.” (Batchelder, 442 U.S. at 125, 60 L. Ed. 2d at 765, 99 S. Ct. at 2205.)
It was therefore within the prosecutor’s discretion to decide which of the two identical provisions would form the basis for the prosecution.
In McCollough, this court similarly found no constitutional infirmity in the existence of the overlapping offenses of reckless homicide and involuntary manslaughter, which provided different penalties for the same conduct, the reckless operation of a motor vehicle causing the death of another person. The court dismissed the argument that the existence of the two provisions allowed the prosecutor undue discretion in determining which offense to charge, reasoning that prosecutors customarily exercise discretion in evaluating evidence and determining what charges to bring. Rejecting a related contention, the court observed that an accused may not normally be heard to complain of standing trial for a particular offense though the same conduct could be punished less severely under a different charge. The court considered that the legislature, in establishing the distinct offenses of reckless homicide and involuntary manslaughter, may well have believed that the overlapping provisions, with their different punishments, would enable a prosecutor to tailor the charge to the circumstances of the particular case. McCollough, 57 Ill. 2d at 444-45.
Batehelder, McCollough, and Wade found no constitutional infirmity in the legislature’s provision of separate offenses proscribing the same conduct. Those decisions recognized that such statutory overlap simply affords the prosecutor discretion in determining which offense to charge. As the McCollough court noted, “The kind of determination committed to the discretion of the State’s Attorney by the statute in this case is the same kind of discretion that is committed to him with respect to a host of other offenses, and is exercised by him every day.” (McCollough, 57 Ill. 2d at 444.) Such discretion serves a useful function and, until today’s decision, was not thought to be unconstitutional.
I would also reject the defendant’s alternative contention, not addressed by the majority, that prosecution under the armed violence statute must be barred here as a matter of statutory interpretation. Invoking two familiar rules, the defendant asserts that the aggravated kidnapping statute, as the more lenient and more specific provision, must take precedence over the armed violence statute. The present case demonstrates that the provisions share kidnapping as a predicate felony and thus overlap to that degree. There is ample reason, however, to suppose that the legislature intended the two statutes to coexist, affording prosecutors greater discretion in the charging process.
It is certainly true that ambiguities in criminal statutes will be resolved in favor of lenity. (United States v. Bass (1971), 404 U.S. 336, 347, 30 L. Ed. 2d 488, 496, 92 S. Ct. 515, 522; People v. Hillenbrand (1988), 121 Ill. 2d 537, 560-61.) The present statutes, however, pose no ambiguity requiring such treatment. Unambiguous language will be given effect “without resort to supplementary principles of statutory construction.” (People v. Singleton (1984), 103 Ill. 2d 339, 341.) The language used in the armed violence, aggravated kidnapping, and kidnapping statutes is clear on this point (see Ill. Rev. Stat. 1987, ch. 38, pars. 10 — 1 (kidnapping), 10 — 2 (aggravated kidnapping), 33A — 2 (armed violence)), permitting prosecution for either enhanced offense, and therefore we have no occasion in the present case to rely on the rule of lenity. Similarly, the provisions at issue here may be read together in a consistent manner, and thus we have no cause to resort to the rule that favors a more specific provision over a more general one. Cf. People v. Haron (1981), 85 Ill. 2d 261, 278 (if conflict exists between specific and general statutes, specific one may take precedence).
To be sure, this court has previously construed the armed violence statute to bar the use of certain felonies as the predicate offense for that charge. Thus, the court has held that armed violence may not be based on a felony that is itself enhanced, because of the presence of a weapon, from another felony (People v. Del Percio (1985), 105 Ill. 2d 372) or from a misdemeanor (Haron, 85 Ill. 2d 261). In addition, the court has held that a charge of armed violence may not be predicated on either voluntary manslaughter (People v. Alejos (1983), 97 Ill. 2d 502) or involuntary manslaughter (People v. Fernetti (1984), 104 Ill. 2d 19), because application of the armed violence statute to the essentially unpremeditated conduct constituting those offenses would not advance the deterrent or retributive purposes of the armed violence statute.
The concerns animating the decisions in Del Percio, Haron, Alejos, and Fernetti are absent here. The present defendant abducted two youths from their campground and held them captive for 18 hours. The predicate offense for the defendant’s armed violence conviction is the unenhanced felony of kidnapping, and the defendant’s actions in threatening one of the victims with a knife during the period of confinement supply the aggravating element. Conduct of this nature surely is what the legislature intended to deter — and to punish— when it enacted the armed violence statute, and I would sustain the defendant’s Class X conviction for that offense.
For the reasons stated, I respectfully dissent.
JUSTICE RYAN joins in this dissent.