FIRST DIVISION January 20, 2015

No. 1-12-1867

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IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) ) Nos. 85 C 6031 ) 85 C 6032 ) 85 C 6033 ) 85 C 6034 v. ) 85 C 6035 ) 85 C 6036 ) 85 C 6037 ) 85 C 6038 ) 85 C 6039 ) WILLIE DAVIS, ) Honorable ) Mary Margaret Brosnahan, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

PRESIDING JUSTICE DELORT delivered the judgment of the court, with opinion. Justices Cunningham and Connors concurred in the judgment and opinion.

OPINION

¶1 Defendant Willie Davis appeals from an order of the circuit court of Cook County

denying his pro se petition for relief from judgment under section 2-1401 of the Code of Civil

Procedure (Code). 735 ILCS 5/2-1401 (West 2008). The record shows that in 1985, defendant

was separately charged with armed robbery in cases No. 85 C 6031 and No. 85 C 6039, and 1-12-1867

found guilty after two separate jury trials. Defendant was then adjudicated a habitual criminal,

and sentenced to terms of natural life imprisonment pursuant to the Criminal Code of 1961 (Ill.

Rev. Stat. 1985, ch. 38, ¶ 33B-1). This court affirmed those judgments on direct appeal. People

v. Davis,

(1990); People v. Davis, No. 1-87-0045 (1989) (unpublished order

under Supreme Court Rule 23). Defendant subsequently filed numerous collateral challenges to

those judgments, all of which were unsuccessful. See, e.g., People v. Davis, No. 1-95-4289

(1997) (unpublished order under Supreme Court Rule 23); People v. Davis, No. 1-06-0964

(2007) (unpublished order under Supreme Court Rule 23); People v. Davis, No. 1-10-3330

(2012) (summary order).

¶2 On March 7, 2012, defendant filed a pro se petition for relief from judgment, alleging

that he did not receive notice within 10 days of the denial of his 2008 motion for leave to file a

successive postconviction petition and that, as a consequence, he was denied his right to appeal.

The circuit court denied the petition, finding that the record rebutted defendant’s claimed lack of

timely notice and that, “[e]ven if [his] claim *** is true, the clerk’s tardy notice does not result in

a void order.” Defendant filed notice of appeal from that ruling and was appointed counsel to

assist him.

¶3 In this appeal, defendant abandons the claims in the underlying petition and instead

contends that his convictions and sentences violate the proportionate penalties clause of the

Illinois Constitution (Ill. Const. 1970, art. I, § 11), because the Class X offenses of armed

robbery for which he was convicted carry more severe penalties than do the “identical” Class 2

offenses of armed violence predicated on robbery with a category II weapon.

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¶4 As an initial matter, the State contends that defendant has forfeited review of this issue by

failing to raise it in the underlying petition. Defendant replies that he is not barred from seeking

relief because he is attacking a void judgment, which may be challenged at any time.

¶5 If a sentencing provision violates the proportionate penalties clause, then it is void ab

initio. People v. Guevara,

(2005). A claim that a judgment is void is not

subject to waiver and can be raised at any time, either directly or collaterally (People v.

Thompson,

(2004)), including for the first time on appeal (People v. Spears,

(2007)). Accordingly, we conclude that defendant is not precluded

from raising the voidness issue on appeal, even though he failed to include it in his section

2-1401 petition. Guevara,

.

¶6 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.”

. 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.

¶7 In upholding the “identical elements” test, the supreme court has 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.” People v. Ligon,

(quoting Christy, 139

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Ill. 2d at 181). The question of whether a statute violates the proportionate penalties clause is

reviewed de novo. People v. Hauschild,

(2007).

¶8 In arguing that his convictions for armed robbery violate the proportionate penalties

clause, defendant compares the offense of armed robbery to armed violence predicated on

robbery with a category II weapon, and contends that the offenses have identical elements. To

convict defendant of Class X armed robbery in the cases below, the State was required to prove

that he committed the offense of robbery while armed with a dangerous weapon. Ill. Rev. Stat.

1985, ch. 38, ¶ 18-2(a), (b). By contrast, a person commits “armed violence” when, “while

armed with a dangerous weapon, he commits any felony defined by Illinois Law.” Ill. Rev. Stat.

1985, ch. 38, ¶ 33A-2. If that “dangerous weapon” is a category I weapon including a firearm,

that person has committed a Class X felony. Ill. Rev. Stat. 1985, ch. 38, ¶¶ 33A-1(b), 33A-3(a).

If, however, that person is armed with a category II, “bludgeon, blackjack, slingshot, *** or

other dangerous weapon of like character” the offense is a Class 2 felony, punishable by three to

seven years’ imprisonment. Ill. Rev. Stat. 1985, ch. 38, ¶¶ 33A-1(c), 33A-3(b).

¶9 Defendant observes that the “respective juries were not asked to identify the ‘dangerous

weapon’ that was used during the offense[s]” and contends that there was no evidence that the

weapon met the statutory definition of a firearm; as such, “the only logical conclusion is that the

‘dangerous weapon[s]’ ” in the cases below were category II weapons, namely, “bludgeon[s]” or

other dangerous weapons “of like character.” Defendant thus contends that his armed robbery

convictions should be compared to the Class 2 felony offense of armed violence, which carries a

less severe penalty than Class X armed robbery. We disagree with defendant’s basic premise.

¶ 10 It is clear from the trial records that the main issue in each case was whether the weapon

that was brandished by defendant during the robberies was a real or toy gun. In its opening

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statements in case No. 85 C 6031, the State acknowledged that the toy gun found on defendant at

the time of his arrest was not a dangerous weapon, but argued that the evidence would show that

it was not the gun used during the offense. In both cases, the defense presented the theory that

the weapon used during the robberies was merely a toy gun and, thus, not a “dangerous weapon.”

In doing so, defendant highlighted evidence of that toy gun found in his possession, and of his

confession that followed, in which he stated that he had used a toy gun during the robberies.

¶ 11 The transcript of defendant’s trial in case No. 85 C 6039 shows that Delores Collins

testified that she was working at a fast-food restaurant when defendant entered and pulled out a

“big,” “dark-colored” gun from a paper bag and pointed it at her. Collins admitted that she was

not familiar with guns, but she stated that it “wasn’t made of plastic. It wasn’t a funny gun, it

was the real thing.” She stated that it had a “big thing on the outside where the bullets go in it.”

Similarly, in case No. 85 C 6031, Della White testified that she was working at a fast-food

restaurant when defendant approached the counter, pulled a metal gun with a silver barrel from a

paper bag, and told her to put money in the bag. She stated that the gun was “silver,” “shiny”

and appeared to be “a real gun.” Both witnesses unequivocally testified that the gun they saw

was real, and not the toy gun recovered during defendant’s arrest.

¶ 12 After considering the evidence presented, the respective juries returned verdicts

convicting defendant of both armed robberies. In doing so, they clearly rejected defendant’s

version of events, including his argument that the weapon at issue was merely a toy gun, and we

do not find that conclusion to be inherently unreasonable. Both the supreme court and this court

have consistently held that eyewitness testimony that the offender was armed with a gun,

combined with circumstances under which the witness was able to see the weapon, is sufficient

to allow a reasonable inference that the weapon was a real gun. People v. Washington, 2012 IL

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107993, ¶¶ 35-36; People v. Malone,

; People v. Toy,

(2011).

¶ 13 We thus conclude that defendant’s Class X felony armed robbery convictions may not

properly be compared to the Class 2 felony offense of armed violence with a category II weapon,

as defendant requests. When defendant’s convictions are compared to the more apt Class X

offense of armed violence predicated on robbery while armed with a category I firearm, it is

clear that no disproportionality exists, as a conviction under either statute would be a Class X

felony subjecting defendant to a mandatory natural life sentence as a habitual offender. Ill. Rev.

Stat. 1985, ch. 38, ¶¶ 18-2(b), 33A-3(a), 33B-1, 1005-8-1. We thus find no proportionate

penalties clause violation in this case.

¶ 14 In so holding, we find Christy, People v. Span,

, and Ligon,

relied on by defendant, distinguishable from the case at bar. In Christy, the supreme court held

that because the commission of kidnapping while armed with a knife constituted both aggravated

kidnapping and armed violence, the penalties for aggravated kidnapping and armed violence

were unconstitutionally disproportionate where they had different sentencing ranges. Christy,

. In Span, this court concluded that attempted armed robbery with a bludgeon

and attempted armed violence predicated on robbery while armed with a bludgeon have identical

elements, and thus violate the proportionate penalties clause where they were punished

differently. Span,

. Similarly, in Ligon, this court determined

that defendant’s sentence violated the proportionate penalties clause where aggravated vehicular

hijacking while armed with a bludgeon was punished more harshly than the identical offense of

armed violence based upon vehicular hijacking with a bludgeon. Ligon,

. In those cases, however, the courts did not compare defendants’ convictions to

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armed violence offenses predicated on a lesser category of weapon than the one that was

established to have been used during the offense, as defendant would have us do here.

¶ 15 For the reasons stated, we affirm the denial of defendant’s petition for relief from

judgment under section 2-1401 of the Code.

¶ 16 Affirmed.

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