FIRST DIVISION Filed: June 23, 2014

No. 1-12-0913 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT ______________________________________________________________________________

) Appeal from the Circuit Court THE PEOPLE OF THE STATE OF ILLINOIS, ) of Cook County. ) Plaintiff-Appellee, ) ) v. ) No. 01 CR 2559 ) DENNIS LIGON, ) Honorable ) James Michael Obbish, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Presiding Justice Connors and Justice Cunningham concurred in the judgment and opinion.

OPINION

¶1 A jury found the defendant, Dennis Ligon, guilty of aggravated vehicular hijacking with

a dangerous weapon, a Class X felony, under section 18-4(a) of the Criminal Code of 1961

(Code) (720 ILCS 5/18-4(a)(3) (West 2004)). Determining that this was the defendant's third

Class X felony conviction, the court sentenced him to a term of mandatory life imprisonment as

an habitual criminal under section 33B-1 of the Code (720 ILCS 5/33B-1(a), (e) (West 2004)).

The defendant filed a petition for relief from judgment (petition) under section 2-1401 of the 1-12-0913

Code of Civil Procedure (735 ILCS 5/2-1401 (West 2008)), contending that his sentence violated

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

11). The trial court dismissed his petition, and the defendant now appeals. We reverse the

judgment of the trial court, vacate the defendant's sentence, and remand for further proceedings.

¶2 The facts of this case have been recited in detail in the defendant's direct appeal (People

v. Ligon,

(2006)), and we therefore set forth only those facts necessary to

consider the issues raised here. In 2003, the defendant was charged with aggravated vehicular

hijacking "while armed with a dangerous weapon other than a firearm," in violation of section

18-4(a)(3) of the Code. The evidence established that, on December 16, 2000, the defendant

used a BB gun, which could have been employed as a bludgeon, to force the victim to turn over

the keys to her pickup truck. The defendant then drove the vehicle away. The jury convicted the

defendant of aggravated vehicular hijacking. On June 11, 2003, the State petitioned to have the

defendant found to be an habitual criminal under section 33B-1(a) of the Code, based upon the

fact that this was his third conviction for a Class X offense. The trial court agreed, and following

the denial of the defendant's post trial motions, adjudged the defendant an habitual offender, and

sentenced him to natural life in prison pursuant to section 33B-1(e). See 720 ILCS 5/33B-1(a),

(e) (West 2004).

¶3 The defendant appealed his conviction to this court, and we affirmed. People v. Ligon,

. His arguments on appeal included the contention that the habitual criminal

law as applied to him deprived him of his constitutional right to a jury and to due process.

. The defendant's subsequent petition for leave to appeal was denied by the supreme court

(People v. Ligon,

(September 27, 2006)), as was his petition for a writ of habeas

corpus. Ligon v. Jones, 2007 U.S. Dist. Lexis 59678 (August 14, 2007).

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¶4 On March 8, 2007, the defendant filed a pro se postconviction petition which was

summarily dismissed by the trial court. The defendant again appealed, and this court affirmed,

further finding that defendant did not have a constitutional right to the assistance of court-

appointed counsel in preparing that petition. People v. Ligon,

(2009),

aff'd,

(2010), cert. denied, Ligon v. Illinois, ___ U.S. ___,

(March

21, 2011).

¶5 The defendant then filed the section 2-1401 petition at issue in this appeal, maintaining,

for the first time, that his sentence was void as a violation of the proportionate penalties clause of

the Illinois Constitution. The defendant argued that the Class X offense of aggravated vehicular

hijacking has identical elements of proof as the Class 1 offense of armed violence predicated on

vehicular hijacking with a dangerous weapon. Accordingly, under the mandate of the

proportionate penalties clause, he should have been sentenced for the Class 1 offense. The trial

court dismissed the petition, finding that the defendant forfeited his constitutional challenge by

failing to raise it in his direct appeal or postconviction petitions, and that, despite forfeiture, his

legal arguments were not the proper subject of a petition for relief from judgment under section

2-1401. The instant appeal followed.

¶6 The defendant argues that his Class X conviction and sentence for aggravated vehicular

hijacking violate the proportionate penalties clause of the Illinois constitution, because

aggravated vehicular hijacking is punished more severely than the identical offense of armed

violence predicated on vehicular hijacking with a dangerous weapon. Accordingly, the argument

continues, as an armed violence conviction is classified only as a Class 1 or 2 offense, he should

not have been sentenced to mandatory life imprisonment under the habitual offender statute. We

agree.

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¶7 Preliminarily, we take issue with the trial court's dismissal of this case on the basis of

forfeiture. Our supreme court has upheld a defendant's right to challenge a sentencing scheme as

a violation of the proportionate penalties clause at any time in the proceedings. People v.

Guevara,

(2005). Such a violation renders the scheme void ab initio and not

subject to waiver.

Further, a challenge alleging a void sentence is the proper subject of a

section 2-1401 petition. See People v. Harvey,

(2001). We conclude,

therefore, that the court should have reached the merits of the petition.

¶8 In determining whether a proportionate penalties violation has been established, the

primary inquiry is whether the "legislature has set the sentence in accord with the seriousness of

the offense." Guevara,

. A sentence violates the proportionate penalties clause

if (1) it is cruel, degrading, or so wholly disproportionate to the offense that it shocks the moral

sense of the community, or (2) it is greater than the sentence for a different offense comprised of

identical elements.

In upholding the "identical elements" test, the supreme court has

consistently observed that, if the legislature " 'determines that the exact same elements merit two

different penalties, then one of these penalties has not been set in accordance with the

seriousness of the offense.' " People v. Clemons,

, quoting People v.

Sharpe,

(2005); People v. Christy,

(1990). An expectation of

identical penalties for identical offenses comports with "common sense and sound logic," and

also gives effect to the plain language of the Illinois Constitution. See Christy,

;

see also Clemons,

. The question of whether a statute violates the

proportionate penalties clause is reviewed de novo. People v. Hauschild,

(2007).

¶9 Section 18-4(a)(3) defines aggravated hijacking as the taking of a motor vehicle from

another by the use or threat of force while "armed with a dangerous weapon" other than a

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firearm. 720 ILCS 5/18-4(a)(3) (West 2004). Correspondingly, the Code in effect at the time of

the defendant's actions defines armed violence as the commission of any felony, with several

exceptions1, while "armed with a dangerous weapon." 720 ILCS 5/33A-2(a) (West 2004).

"Dangerous weapons" are divided into three categories, with categories I and II consisting of

various firearms, and category III expressly including a bludgeon, which was the basis for the

defendant's conviction here. 720 ILCS 5/33A–1(c) (West 2004). For purposes of the identical

elements test, we conclude that the offense of aggravated vehicular hijacking with a bludgeon is

identical to armed violence based upon vehicular hijacking with a bludgeon. See People v.

Andrews,

, (2006); People v. Williams,

(aggravated vehicular hijacking with a firearm held identical to armed violence predicated upon

simple vehicular hijacking with a firearm); see also Hauschild,

(substantive

offense of armed robbery identical to armed violence based upon robbery while armed with a

firearm).

¶ 10 The respective penalties for these offenses, however, are disparate, with aggravated

hijacking uniformly designated a Class X felony, and armed violence based upon vehicular

hijacking with a category III weapon designated as either a Class 1 or 2 felony. 720 ILCS

5/33A-3(b). Therefore, the defendant's sentence for aggravated vehicular hijacking is

1 Among the exceptions are aggravated vehicular hijacking and armed robbery. However, although these offenses cannot serve as predicate offenses to armed violence, the legislature did not specifically bar vehicular hijacking or robbery from forming the basis of such an offense. Accordingly, aggravated vehicular hijacking and armed robbery can properly be compared with armed violence based upon simple vehicular hijacking and robbery for purposes of a proportionate penalties claim. Clemons,

.

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disproportionate to that for the identical offense of armed violence, and cannot stand under

longstanding precedent. People v. Span,

; see Clemons,

; Christy,

.

¶ 11 In determining the appropriate remedy in this case, there is less guidance, owing to

revisions to the armed violence statute in response to proportionate penalties challenges. See,

e.g., Williams,

. In the majority of cases, proportionate penalties claims

were brought as the result of statutory amendments which added sentencing enhancements to the

offending statutes. In those cases, the proper remedy was to vacate the sentence, and remand for

resentencing in accordance with the statute as it was written before the amendment. Span,

; see Christy,

; Andrews,

;

Williams,

. This case, by contrast, is not premised upon any such

amendment, as aggravated vehicular hijacking has remained a Class X offense since its

inception. Accordingly, we follow the holding in Christy,

(1989),

aff'd,

, wherein we ruled that the defendant must be sentenced under the lesser of

the two identical offenses, even if that lesser offense was uncharged. Consequently, we agree

with the defendant that, here, his sentence for aggravated vehicular hijacking must be vacated,

and he must be sentenced as a Class I offender under the armed violence statute. 2

2 We note that, in any event, this issue has become moot. In 2007, the armed violence statute was amended to specifically exclude vehicular hijacking from serving as a predicate to that offense. See Pub. Act 95–688, § 4 (eff. Oct. 23, 2007) (amending 720 ILCS 5/33A–2, 33A–3). Thus, there is no longer any overlap between the offense of armed violence and section 18-4(a)(3) (720 ILCS 5/18-4(a)(3) (West 2004)), and the proportionate penalties infirmities at issue here no longer exist.

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¶ 12 The State argues that the effect of our decision in this case would lead prosecutors to

refrain from charging defendants under the aggravated vehicular hijacking statute and to opt

instead for prosecution under the armed violence statute, frustrating the intent of the legislature

by leading to an "ineffective" aggravated vehicular hijacking statute, as well as an ineffective

habitual criminal statute. The State further asserts, relying upon our decisions in People v.

Cummings, that this case is distinguishable from Christy, because in Christy, unlike here, the

defendant had been charged with the lesser offense, and was not subject to sentencing as an

habitual criminal.

¶ 13 In Cummings, the defendant alleged that his sentence for armed robbery with a dangerous

weapon was unconstitutionally disproportionate to the offense of armed violence predicated on

robbery with a bludgeon. As it was his third Class X offense, he was sentenced as an habitual

offender. On appeal, this court rejected the defendant's proportionality challenge, finding that he

was "not sentenced for his armed robbery conviction," but rather, as an habitual offender, and

therefore, the comparison of the sentences for armed violence and armed robbery was

inapplicable. People v. Cummings,

(2007). The court further

noted, in the defendant's earlier appeal, that the prosecutor had properly exercised its discretion

to charge the defendant only with the more serious offense of armed robbery, and was not

required to proceed on a lesser charge. People v. Cummings,

, 347-8 (2005).

¶ 14 We question the vitality of Cummings in light of the supreme court's ongoing

reaffirmation of the identical elements test, despite efforts to denounce it as unworkable,

inconsistent with our constitution, and an affront to the power of the General Assembly and to

prosecutorial discretion. See Clemons,

; People v. Lewis,

(1996). While we agree that the State need not proceed on a lesser offense when there is

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sufficient evidence to convict on a greater one, this court cannot relax the prohibition against

different penalties for identical crimes merely because the State elects to proceed exclusively on

the offense carrying a greater penalty. See Lewis,

. Thus, we must reject the

State's argument.

¶ 15 For the foregoing reasons, we reverse the judgment of the circuit court, vacate the

defendant's sentence, and remand for resentencing in accordance with this opinion.

¶ 16 Reversed, sentence vacated, and cause remanded.

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