dissenting:
The majority has held that a conviction for enhanced driving while license revoked (DWLR) can serve as the predicate felony for a conviction for armed violence and that the State proved defendant guilty of armed violence on that basis. I believe that decision to be wrong and, therefore, dissent.
Although I would thus not reach defendant’s other two issues, I will discuss them because the majority has done so. Therefore, assuming, solely for purposes of argument and without conceding the point, that the majority’s decision on the first two issues is correct, I would concur with the holding that defendant’s convictions for armed violence and for unlawful use of a weapon would not, if properly reached, violate the one-act, one-crime rule and would agree that the conviction for unlawful use of a weapon should be affirmed. Subject to the same assumption, I would dissent from the majority’s conclusion that defendant’s 30-year sentence for armed violence does not violate' the proportionate penalties clause of the Illinois Constitution or constitute an abuse of discretion.
I. Predicate Felony and II. Proof of Predicate Felony at Trial
Defendant admits that he drove while his license was revoked and that the State had revoked his license as a result of his conviction for driving under the influence (DUI). DWLR is normally a Class A misdemeanor. 625 ILCS 5/6—303(a) (West 2004). Because defendant’s second conviction for DWLR was based on a prior revocation for driving under the influence, however, section 6—303(d) of the Illinois Vehicle Code required the court to sentence defendant as if he had committed a Class 4 felony. Section 6—303(d) reads, in pertinent part, as follows:
“Any person convicted of a second violation of this Section shall be guilty of a Class 4 felony *** if the revocation or suspension was for a violation of Section 11—401 or 11—501 of this Code, or a similar out-of-state offense, or a similar provision of a local ordinance, a violation of Section 9—3 of the Criminal Code of 1961, relating to the offense of reckless homicide, or a similar out-of-state offense, or a statutory summary suspension under Section 11—501.1 of this Code [625 ILCS 5/11—501.1].” 625 ILCS 5/6—303(d) (West 2004).
However, under section 111—3(c) of the Code of Criminal Procedure (725 ILCS 5/111—3(c) (West 2004)), the State could not disclose to the jury the fact of defendant’s prior conviction or its intention to seek an enhanced sentence. Section 111—3(c) reads, in pertinent part, as follows:
“When the State seeks an enhanced sentence because of a prior conviction, the charge shall also state the intention to seek an enhanced sentence and shall state such prior conviction so as to give notice to the defendant. However, the fact of such prior conviction and the State’s intention to seek an enhanced sentence are not elements of the offense and may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during such trial. For the purposes of this Section, ‘enhanced sentence’ means a sentence which is increased by a prior conviction from one classification of offense to another higher level classification of offense set forth in Section 5—5—1 of the ‘Unified Code of Corrections’ ***; it does not include an increase in the sentence applied within the same level of classification of offense.” 725 ILCS 5/111—3(c) (West 2004).
Defendant argues that enhanced DWLR cannot serve as a predicate felony for armed violence because the offense is not actually a Class 4 felony; it is a Class A misdemeanor with an enhanced sentencing provision. For this reason, defendant also asserts that any misdemeanors that carry enhanced sentencing provisions may never serve as the predicate offense for armed violence. Alternatively, defendant argues the State failed to prove him guilty of armed violence because it failed to prove an element of that offense. Specifically, that defendant committed a felony. Defendant argues the State never proved he committed a felony (enhanced DWLR — assuming it is in fact a Class 4 felony and not merely a misdemeanor sentenced as one) because it never submitted evidence at trial of the reason for his prior revocation — a fact necessary to make his offense a felony. Therefore, defendant asserts, the State only proved him guilty of committing a Class A misdemeanor (DWLR) while armed.
The State responds the statute clearly states that “[a]ny person convicted of a second violation of this Section shall be guilty of a Class 4 felony.” (Emphasis added.) The State also argues that “enhanced sentence” as used in section 111—3(c) does not really mean an “enhanced sentence” but actually means that the classification of the subsequent offense is higher — in this case from a Class A misdemeanor to a Class 4 felony. Finally, the State argues that even if section 6—303(d) contains only an enhanced sentencing provision and does not make the subsequent offense itself a felony, the subsequent offense may be treated as a felony for purposes of the armed violence statute. For this proposition the State analogizes attempt offenses and claims that “courts have consistently held that an attempt offense that is not classified as a felony may be treated as a felony and serve as the predicate felony for an armed violence conviction where the attempt offense is punishable as a felony.”
Based on its claim that enhanced DWLR is a Class 4 felony and not merely a Class A misdemeanor with a sentencing provision for repeat offenders, the State argues it proved defendant guilty of that offense beyond a reasonable doubt. The State argues it was not required to prove the reason for his prior revocation to the jury because that is not an element of the offense of enhanced DWLR. The State points out that “[section] 5/111—3(c) specifically states that when the People seek an enhanced sentence because of a prior conviction, that prior conviction is not an element of the offense. It is for this reason that the pattern jury instructions do not have a separate definition or issues instruction for the felony of driving while license revoked.”1
“The offense of attempt is not classified under the Unified Code of Corrections as either a felony or a misdemeanor.” People ex rel. Carey v. Scotillo, 84 Ill. 2d 170, 173, 417 N.E.2d 1356, 1358 (1981). The court has held that although attempt is classified as neither a misdemeanor nor a felony, “where an attempt offense is punishable as a felony such an offense may be treated as a felony for purposes of the armed violence statute.” (Emphasis in original.) People v. Goodman, 109 Ill. App. 3d 203, 209, 440 N.E.2d 345, 349 (1982), citing People v. Gibson, 99 Ill. App. 3d 1068, 425 N.E.2d 1208 (1981). In Gibson, the court held that an “armed violence verdict could properly be based on the underlying felony of attempt murder.” Gibson, 99 Ill. App. 3d at 1072, 425 N.E.2d at 1212. The Gibson court also stated that attempt (murder) is a Class X felony, but section 8—4 of the Criminal Code of 1961 states that “the sentence for attempt to commit first degree murder is the sentence for a Class X felony.” (Emphases added.) 720 ILCS 5/8—4(c)(1) (West 2004).
I believe this court should find that the Goodman court erroneously expanded the holding in Gibson and, therefore, the rationale permitting attempt (murder), which is not actually classified as a felony, to serve as the predicate felony for armed violence, is not applicable to DWLR. First, Gibson’s explicit statement that attempt (murder) is a Class X felony indicates the court’s belief that the legislature had in fact classified the offense of attempt (murder) as a felony. Therefore, the Gibson court did not apparently address or resolve whether an offense that was not a felony (but is sentenced as one) could serve as the predicate offense for armed violence. Certainly, Gibson did not resolve that issue.
Second, Gibson was concerned with whether the defendant’s conviction for armed violence resulted from the double enhancement the supreme court found impermissible in People v. Haron, 85 Ill. 2d 261, 422 N.E.2d 627 (1981). There, the court held that a defendant cannot be convicted of armed violence predicated on an offense that was not a felony before it was enhanced by the use of a deadly weapon.2 Therefore, in Gibson, the defendant’s conviction for armed violence could not stand if it was based on the underlying felony of aggravated battery.3 However, in Gibson, the State had also charged the defendant with attempt (murder). The jury in Gibson found the defendant guilty of armed violence without specifying the felony on which it based its finding of guilt. The court, which apparently believed attempt (murder) was a Class X felony, held the defendant’s conviction for armed violence could stand because “a general finding of guilty is presumed to be based upon any good count in the indictment to which the proof is applicable.” Gibson, 99 Ill. App. 3d at 1072, 425 N.E.2d at 1212. Regardless, Gibson did not address the question of whether an offense that is merely sentenced as a felony could serve as the predicate felony for armed violence in reaching its decision on the issue actually presented, and it provides no basis for Goodman’s stated conclusion that it did.
Despite the language of section 6—303(d), which reads that persons to whom it applies “shall be guilty of a Class 4 felony” (emphasis added) (625 ILCS 5/6—303(d) (West 2004)), the court has held that “[t]he existence of these predicate offenses is used after a defendant’s conviction [for DWLR (a Class A misdemeanor)] to increase the classification of his crime at sentencing” (emphases added) (People v. DiPace, 354 Ill. App. 3d 104, 114, 818 N.E.2d 774, 784 (2004)). Indeed, the State need not prove at trial the fact that would make defendant guilty of a Class 4 felony — the reason for his prior revocation — for defendant to be sentenced for a Class 4 felony. See People v. DiPace, 354 Ill. App. 3d at 114, 818 N.E.2d at 784 (“the State need not prove prior commissions of *** driving while license revoked as an element of Class 4 felony driving while license revoked”). See also People v. Braman, 327 Ill. App. 3d 1091, 1094, 765 N.E.2d 500, 503 (2002) (“the aggravated DUI terminology used in the DUI statute simply refers to an aggravated or enhanced sentence for a third or subsequent DUI. Section 11—501(d)(1)(A) of the Vehicle Code is clearly a recidivist sentencing statute for repeat DUI offenders”). Section 11—501(d)(1) is an identical sentencing scheme to that found in section 6—303(d). See, e.g., DiPace, 354 Ill. App. 3d at 114, 818 N.E.2d at 784.
If section 6—303(d) created a separate offense — felony DWLR — its elements would be (1) driving on a revoked driver’s license (2) having previously been revoked for, inter alia, DUI. “[T]he State has the burden of proving every element of the crime beyond a reasonable doubt.” People v. Churchill, 80 Ill. App. 3d 405, 410, 399 N.E.2d 985, 988 (1980). The State is prohibited from satisfying its burden by section 111—3(c). Moreover, in Almendarez-Torres v. United States, 523 U.S. 224, 226, 140 L. Ed. 2d 350, 357, 118 S. Ct. 1219, 1222 (1998), the United States Supreme Court addressed whether a similar sentencing provision4 “defines a separate crime or simply authorizes an enhanced penalty.” The Court held “that the subsection is a penalty provision, which simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime.” Almendarez-Torres, 523 U.S. at 226, 140 L. Ed. 2d at 357, 118 S. Ct. at 1222.
In the present case, we should hold that the State did not prove defendant guilty of felony DWLR because section 6—303(d) creates no such offense. Thus, it appears defendant was not found guilty of committing a Class 4 felony but the court could, properly, sentence him as if he committed one. Because so-called “felony DWLR” served as the sole predicate offense for armed violence in this case, we should also hold that the State failed to prove an element of the offense of armed violence. That is, the State failed to prove defendant committed a felony. Accordingly, defendant’s conviction for armed violence should be reversed outright. See People v. Coulson, 13 Ill. 2d 290, 298, 149 N.E.2d 96, 100 (1958) (“Since there is nothing in the record to indicate that any *** evidence will be available to the People upon remandment for a new trial, we reverse the judgment of conviction without remand”). Moreover, because of the restriction section 111—3(c) places on the State, we should further find that misdemeanors subject to enhanced felony sentencing may never serve as the predicate offense for armed violence.
Because we have done none of those things, I respectfully dissent on this issue.
III. Applicability of Proportionate Penalties Clause and Abuse of Discretion to Defendant’s 30-Year Sentence.
The majority, having found that DWLR can serve as the predicate felony for armed violence, rejects defendant’s federal constitutional challenge that his 30-year sentence for driving while his license was revoked was grossly disproportionate to the seriousness of his offense and his state constitutional challenge to his sentence as violative of the proportionate penalties clause. Conviction of a Class 4 felony would result in a maximum sentence of three years. Because he had a switchblade knife in his possession, he became eligible for a sentence between 10 and 60 years. The trial court considered defendant’s criminal history and determined that a sentence of 30 years was appropriate for his offense.
a. Proportionate penalties
Defendant argues that sentencing his conduct as a Class X felony with a minimum sentence of 10 years’ imprisonment violates the proportionate penalties clause because it “is so wholly disproportionate to the severity of the conduct as to shock the conscience of the community.” See People v. Sharpe, 216 Ill. 2d 481, 487, 839 N.E.2d 492, 498 (2005), quoting People v. Moss, 206 Ill. 2d 503, 522 (2003) (“ ‘[A] penalty violates the proportionate penalties clause if it is cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community’ ”). He observes that the purpose of the armed violence statute is to “deter felons from using dangerous weapons, thereby minimizing the deadly consequences which may result when a felony victim resists.” People v. Smith, 191 Ill. 2d 408, 411, 732 N.E.2d 513, 514 (2000).
Defendant argues that his offense, driving a car, without a license, while carrying a spring-loaded knife, is wholly disproportionate to the penalties for a Class X felony. Defendant asserts that the presence of a weapon does not make driving without a license more likely to result in death or bodily harm. Therefore, he argues, predicating armed violence on DWLR does not serve the armed violence statute’s purpose. In response, the State contends that the focus in determining the severity of the offense should be on the use of a weapon and not the character of the underlying felony. That is, “the penalty for the predicate felony [does] not restrict the legislature’s authority to impose a severe penalty.”
That argument ignores Smith’s statement of statutory purpose and assumes that misdemeanor conduct somehow takes on the threatening characteristics of felonious behavior simply because of a repeat offense. Because the essence of his offense is a misdemeanor enhanced to an entry-level felony only because it is his second such offense, and because DWLR is essentially a victimless crime, this stated purpose of the statute is not served by treating the defendant as a felon. The basic character of the conduct remains a misdemeanor and a 30-year sentence is grossly disproportionate.
In People v. Green, 301 Ill. App. 3d 767, 772, 704 N.E.2d 437, 440 (1998), cited by the State, the court “rejectfed] defendant’s argument that the penalty for the predicate felony — here, a maximum of three years in prison with the possibility of probation — should somehow restrict the legislature’s authority to impose severe penalties upon conviction of that same Class 4 felony when the offender is carrying a gun.” (Emphasis omitted.) The State’s reliance on Green reflects its mischaracterization of defendant’s argument. Defendant does not argue that sentencing him for a Class X felony is disproportionate because the underlying offense is only a Class 4 felony — or even because it is a Class A misdemeanor. Defendant argues his penalty is disproportionate to the actual underlying conduct — merely driving an automobile without a valid license while in possession of a knife — and that the penalty is disproportionate because his core conduct was not made more dangerous by the presence of a weapon — the evil the armed violence statute is meant to address.
The penalty imposed by a statute is determined by its purpose. See People v. Moss, 206 Ill. 2d 503, 523, 795 N.E.2d 208, 221 (2003) (“where statutes are enacted for different purposes, we presume that the legislature considered different factors in establishing the respective punishments”). “[T]he penalty contained in the armed violence statute is *** designed to achieve the legislature’s goal of deterring individuals from arming themselves with dangerous weapons during the commission of a felony.” People v. Lombardi, 184 Ill. 2d 462, 472, 705 N.E.2d 91, 96-97 (1998), overruled on other grounds, People v. Sharpe, 216 Ill. 2d 481, 519, 839 N.E.2d 492, 515-16 (2005). Even assuming defendant was committing a felony when he drove his car without a license, the armed violence statute would not cause defendant to contemplate that he “better not do so while armed.” Cf. Green, 301 Ill. App. 3d at 772, 704 N.E.2d at 440. Unlike other felonies, defendant’s crime had no victim, thus the risk of “deadly consequences [should] a felony victim resistí ]” was not present in this case. Nor would defendant be “forced to make a spontaneous and often instantaneous decision to kill without time to reflect on the use of such deadly force” in this situation. Thus “the deterrent purpose of the armed violence statute” is not present in this case. See People v. Condon, 148 Ill. 2d 96, 110, 592 N.E.2d 951, 958 (1992).
If a conviction for a particular offense (in this case armed violence predicated on DWLR) does not serve the purpose of the statute, then the penalty as determined by the purpose of the statute is disproportionate to the offense because the penalty and the offense do not share the intended relation. The armed violence statute is meant to address the potential for escalation to violence during the commission of a felony that the presence of a weapon creates. That potential is simply not present here. Despite the State’s reliance on the “long recognized *** risk to police officer[s] approaching an individual seated in an automobile,” nothing here suggests that defendant ever posed such a threat to police or the public. The presence of a weapon in this case did not exacerbate defendant’s offense of driving without a valid license.
Because I believe defendant’s sentence violates the proportionate penalties clause, I respectfully dissent on this issue.
b. Abuse of discretion
Defendant argues that the trial court abused its discretion in sentencing him to the maximum non-extended-term sentence for armed violence, 30 years’ imprisonment. In response, the State recounts defendant’s criminal history and points out that the trial court also noted that at sentencing the defense focused on the nature and circumstances of the instant offense rather than defendant’s history and character. The State argues defendant’s sentence was appropriate based on that history. Defendant’s criminal history is a relevant factor in fashioning his sentence. People v. Curtiss, 126 Ill. App. 3d 568, 575, 467 N.E.2d 624, 630 (1984). However, “[ujnder section 5—5—3.2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005—5—3.2(a)) the trial court is required to weigh the harm caused by a defendant’s conduct, as well as his history of delinquency or criminal activity, as factors in aggravation for purposes of fashioning the sentence appropriate to the cause.” Curtiss, 126 Ill. App. 3d at 575, 467 N.E.2d at 630.
Defendant cites People v. Stacey, 193 Ill. 2d 203, 737 N.E.2d 626 (2000), for the proposition that the appellate court may find an abuse of discretion and reduce a sentence where the sentence is disproportionate to the severity of the offense. The Stacey court found that the defendant’s conduct was “not severe enough to warrant 25-year sentenced],” “[gjiven the nature of the crimes.” The court noted that it was “not reweighing any aggravating or mitigating factors” but that its holding was based on “our constitution’s mandate that penalties be determined according to the seriousness of the offense. Ill. Const. 1970, art. I, §11.” Stacey, 193 Ill. 2d at 210-11, 737 N.E.2d at 630.
Defendant did not ask this court to reweigh sentencing factors. Instead, he asked us to evaluate his sentence in light of the severity of his conduct. Stacey instructs that just such a review is appropriate. Because I disagree with the majority’s evaluation, I dissent on this issue as well.
Turning to my own examination of defendant’s sentence in light of the severity of his conduct, I would conclude that defendant’s behavior was not severe enough to warrant a 30-year sentence. The maximum sentence permitted by the armed violence statute is 30 years’ imprisonment. 720 ILCS 5/33A—3(a—5) (West 2004); 730 ILCS 5/5—8—1(3) (West 2004). As previously discussed, the armed violence statute is meant “not only to punish the criminal and protect society from him but also to deter his conduct — that of carrying the weapon while committing a felony” due to the “belief that the chances that violence will erupt and cause great bodily harm because of the weapon are increased when a felony is committed.” People v. Alejos, 97 Ill. 2d at 509, 508-09, 455 N.E.2d at 51.
There was little chance violence would erupt from defendant’s behavior because he was merely driving his car. Admittedly, defendant fled police, but on foot. Defendant’s flight while possessed of a weapon posed no serious threat. Nor did his driving. Further, whatever risk of harm defendant may have created was minimal given the weapon at issue, especially when compared with the potential for harm created by, for example, a handgun. Cf. People v. Brown, 362 Ill. App. 3d 374, 384, 839 N.E.2d 596, 605 (2005) (“If ever there was a felony offense during which the use of a deadly weapon should be deterred, it is a high-speed flight from or attempt to elude police. The possible consequences to the peace officers involved, and to any citizens unlucky enough to be nearby, if defendant decided to employ that deadly weapon, especially a firearm, are unquestionable” (emphases added)).
Defendant later surrendered to police after disarming himself. At no time did the commission of a felony, possession of a knife, and arrest by police coincide to create a danger that violence would erupt and cause great bodily harm. In this case, excluding extended-term sentencing, it seems defendant received the same sentence he would have had he been armed with a gun. Defendant’s conduct did not place him in a position to make a spontaneous decision to kill or create a risk of harm should a victim resist. Sentencing him to the maximum penalty possible under the armed violence statute is therefore “greatly at variance with the spirit and purpose of the law.” Moreover, defendant was armed with a knife and disarmed himself before surrendering to police.
Because the maximum sentence defendant received is “manifestly disproportionate to the nature of the offense,” I respectfully dissent on this issue as well.
Accordingly, for all of the foregoing reasons, I would reverse.
It is, of course, possible that the instruction does not exist because the crime — this so-called enhanced DWLR, a Class 4 felony — does not exist.
For its proposition that attempt may serve as the predicate felony for armed violence, the State cites only one case from our supreme court, People v. Del Percio, 105 Ill. 2d 372, 475 N.E.2d 528 (1985). That case, however, merely resolves a conflict in the appellate court over the interpretation of Harón. As noted, the issue in Harón is distinct from the question defendant raises here.
“Battery is a Class A misdemeanor.” 720 ILCS 5/12—3(b) (West 2004). “In committing a battery, a person commits aggravated battery if he or she: (1) Uses a deadly weapon other than by the discharge of a firearm.” 720 ILCS 5/12—4(b)(1) (West 2004). “Aggravated battery is a Class 3 felony.” 720 ILCS 5/12—4(e) (West 2004).
“Subsection (a) of 8 U.S.C. §1326 *** forbids an alien who once was deported to return to the United States without special permission, and it authorizes a prison term of up to, but no more than, two years. Subsection (b)(2) of the same section authorizes a prison term of up to, but no more than, 20 years for ‘any alien described’ in subsection (a), if the initial ‘deportation was subsequent to a conviction for commission of an aggravated felony.’ ” Almendarez-Torres, 523 U.S. at 226, 140 L. Ed. 2d at 357, 118 S. Ct. at 1222.