NOTICE NOTICE Decision filed 05/02/23. The This order was filed under text of this decision may be NO. 5-22-0048 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Madison County. ) v. ) No. 05-CF-1433 ) JOSEPH C. ROTHE, ) Honorable ) Janet R. Heflin, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE WELCH delivered the judgment of the court. Justices Cates and Barberis concurred in the judgment.

ORDER

¶1 Held: The trial court’s denial of the defendant’s petition for relief from judgment filed pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2- 1401(West 2020)) is affirmed where his sentence for armed robbery did not violate the proportionate penalties clause of the Illinois Constitution.

¶2 The defendant, Joseph C. Rothe, appeals the dismissal of his petition for relief from

judgment filed pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-

1401 (West 2020)), arguing that his Class X armed robbery conviction violates the proportionate

penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) in that the identical

offense of armed violence predicated on robbery with a Category III weapon is punished less

severely than armed robbery, as charged in this case. For the reasons that follow, we affirm the

order of the circuit court of Madison County.

1 ¶3 I. BACKGROUND

¶4 As we have sufficiently detailed the facts of this case in our previous decision in the

defendant’s direct appeal (People v. Rothe, No. 5-07-0683 (2009) (unpublished order under Illinois

Supreme Court Rule 23)), and in our decision following the denial of his amended petition for

postconviction relief (People v. Rothe, No.

), we will recite only those

facts necessary to dispose of the issue raised here.

¶5 The evidence at trial established that, on June 6, 2005, at approximately 12:40 a.m., Shawn

Woodruff was walking north on Main Street in Edwardsville, Illinois, after leaving a downtown

bar. The defendant approached Woodruff, demanded money from him, and struck him in the face

with a large red pipe wrench, which severely damaged his jaw. Based on the evidence presented

at the jury trial, the defendant was convicted of armed robbery. Since the armed robbery was his

third Class X conviction, the trial court subsequently sentenced him to natural life imprisonment

as a habitual criminal under section 33B-1 of the Criminal Code of 1961 (720 ILCS 5/33B-1 (West

2006) (now enacted at 730 ILCS 5/5-4.5-95(a) (West 2022))). His conviction was then affirmed

on direct appeal. People v. Rothe, No. 5-07-0683 (2009) (unpublished order under Illinois

Supreme Court Rule 23).

¶6 In July 2010, the defendant filed a pro se petition for postconviction relief under the Post-

Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2008)), in which he argued, among other

things, that his sentence for armed robbery violated the proportionate penalties clause of the Illinois

Constitution. However, the proportionate penalties argument was not included in his August 2011

amended petition filed by appointed counsel. Subsequently, the State filed a motion to dismiss the

amended petition, which the trial court granted with respect to all issues except for the defendant’s

alibi-defense claim. After the evidentiary hearing on the alibi-defense claim, the court entered an

2 order denying the claim. This decision was also affirmed on appeal. People v. Rothe, No.

.

¶7 Subsequently, on October 31, 2016, the defendant pro se filed a petition pursuant to section

2-1401 of the Code (735 ILCS 5/2-1401 (West 2014)). In this petition, he argued that his natural

life sentence based on his conviction for the Class X offense of armed robbery with a dangerous

weapon, other than a firearm, violated the proportionate penalties clause because the identical

offense of armed violence predicated on a robbery with a Category III weapon was punishable as

a Class 2 felony. Although the defendant did not file his section 2-1401 petition within the required

two-year time limit, he argued that a voidness challenge based on the unconstitutionality of a

criminal statute under the proportionate penalties clause could be raised at any time. In response,

on August 25, 2017, the State filed a motion to dismiss the section 2-1401 petition because the

petition was untimely in that it was filed more than two years after entry of the judgment.

Following a hearing on the motion to dismiss, on January 14, 2022, the trial court granted the

State’s motion to dismiss, finding that the petition for relief was not timely filed. This appeal

followed.

¶8 II. ANALYSIS

¶9 On appeal, the defendant argues that his armed robbery conviction and natural life sentence

must be vacated because the proportionate penalties clause of the Illinois Constitution (Ill Const.

1970, art. I, § 11) was violated in that the identical offense of armed violence predicated on robbery

with a Category III weapon would have received a lesser sentence. Armed violence predicated on

robbery with a Category III weapon was a Class 2 felony, punishable with a sentence of three to

seven years’ imprisonment. See 720 ILCS 5/33A-2(a), 33A-3(b) (West 2006); 730 ILCS 5/5-8-

1(a)(5) (West 2006). By contrast, armed robbery with a dangerous weapon was a Class X offense,

3 which was generally punishable with a sentence between 6 and 30 years. See 720 ILCS 5/18-2(b)

(West 2006); 730 ILCS 5/5-8-1(a)(3) (West 2006). However, the defendant, having previously

been twice convicted of Class X felonies, received a natural life sentence as a habitual criminal

under section 33B-1 of the Criminal Code of 1961 (720 ILCS 5/33B-1 (West 2006) (now enacted

at 730 ILCS 5/5-4.5-95 (West 2022))).

¶ 10 As noted above, the defendant brought this issue in a section 2-1401 petition, and the trial

court found that it was untimely filed. Generally, a section 2-1401 petition must be filed no later

than two years after entry of the order of judgment. 735 ILCS 5/2-1401(c) (West 2014). However,

voidness challenges based on the unconstitutionality of a criminal statute under the proportionate

penalties clause may be raised at any time. People v. Ligon,

. Also, a motion

to vacate a void judgment is properly raised in a section 2-1401 petition.

Thus, we will address

the merits of the defendant’s argument.

¶ 11 The proportionate penalties clause of the Illinois Constitution provides that all penalties

must be determined according to the seriousness of the offense and with the objective of restoring

the offender to useful citizenship. Ill. Const. 1970, art. I, § 11. When analyzing whether a statute

violates the proportionate penalties clause, our ultimate inquiry is whether the legislature has set

the sentence in accord with the seriousness of the offense. People v. Hernandez,

.

¶ 12 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 an offense with identical elements. Ligon,

.

The defendant in the present case based his proportionate penalties challenge on the identical

elements test. Under that test, our supreme court has consistently held that, if the legislature

4 determines the exact same elements merit two different penalties, then one of those penalties has

not been set in accordance with the seriousness of the offense. Id. ¶ 11. Thus, where the identical

offenses do not yield identical penalties, the penalties are unconstitutionally disproportionate, and

the greater penalty cannot stand. Id. Because the constitutionality of a statute is purely a matter

of law, we review the question de novo. Id.

¶ 13 A person committed armed robbery when he took property from the person or presence of

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

firearm. 720 ILCS 5/18-1(a), 18-2(a)(1) (West 2006). In comparison, a person committed armed

violence when, armed with a dangerous weapon, he committed any felony defined by Illinois law,

with the exception of certain enumerated felonies; robbery was not included in the enumerated

exceptions. 720 ILCS 5/33A-2(a) (West 2006). A person was considered armed with a dangerous

weapon for purposes of armed violence when he carried on or about his person or was otherwise

armed with a Category I, Category II, or Category III weapon. Id. § 33A-1(c)(1). Category III

weapons were defined as a “bludgeon, black-jack, slungshot, sand-bag, sand-club, metal knuckles,

billy, or other dangerous weapon of like character.” Id. § 33A-1(c)(3).

¶ 14 In Hernandez, defendant was convicted of armed robbery while armed with a dangerous

weapon, i.e., a bludgeon. Hernandez,

. He subsequently argued that the

armed robbery statute was facially unconstitutional because it carried a harsher penalty than that

imposed for armed violence with a Category III weapon. Id. ¶¶ 1, 6-7. After comparing the

elements of the two offenses, our supreme court determined that the elements of armed robbery

with a dangerous weapon were not identical to the elements of armed violence with a Category III

weapon. Id. ¶¶ 12-16. In making this decision, the court noted that the relevant armed robbery

statute required that defendant be armed with a dangerous weapon but did not define “dangerous

5 weapon.” Id. ¶ 12. Thus, the common law definition of that term applied. Id. Under the common

law, determining what constituted a dangerous weapon presented a factual question and included

any object sufficiently subject to be used in a manner likely to cause a victim serious injury, i.e.,

objects that were per se dangerous as well as objects that could be used in a dangerous manner.

Id.

¶ 15 However, in contrast, and as explained above, the relevant armed violence statute required

defendant be armed with a dangerous weapon as defined by section 33A-1(c)(1) of the Criminal

Code of 1961 (720 ILCS 5/33A-1(c)(1) (West 2006)). Id. § 33A-2(a); Hernandez,

. Thus, Category III dangerous weapons for purposes of the armed violence statute

are defined by statute and are limited to the weapons identified by the statute. Hernandez,

. The court then noted that, although the weapon used by defendant in the armed

robbery, i.e., tin snips, qualified under the common-law definition applicable to the statutory

offense of armed robbery, it did not fall within the meaning of a Category III dangerous weapon

(a bludgeon or bludgeon-like weapon) as defined by the armed violence statute. Id. ¶¶ 14-15.

Specifically, the court concluded that tin snips would not be considered a bludgeon or other

dangerous weapon of like character where, notwithstanding any shared characteristics to a

bludgeon and that it was used like a bludgeon, it was not inherently dangerous and had a legitimate

use. Id. Consequently, the court determined that the common-law definition of dangerous weapon

for the purposes of the armed robbery statute was broader than the definition of dangerous weapon

in the armed violence statute. Id. ¶ 16.

¶ 16 Because the definitions were not the same, the supreme court found that the elements of

armed robbery were not identical to the elements of armed violence with a Category III weapon.

6 Id. Therefore, the court concluded that the two offenses did not violate the identical elements test

of the proportionate penalties clause. Id.

¶ 17 Following Hernandez, we conclude that the armed robbery statute that the defendant was

convicted under did not violate the proportionate penalties clause under the identical elements test

because the general, broader class of dangerous weapons under the armed robbery statute was

distinct from the specific, statutorily defined list of dangerous weapons under the armed violence

statute. Consequently, we affirm the trial court’s denial of the defendant’s section 2-1401 petition

for relief from judgment. See People v. White,

(the appellate court

may affirm a decision of the circuit court on any basis that appears in the record on appeal).

¶ 18 III. CONCLUSION

¶ 19 For the foregoing reasons, we affirm the judgment of the circuit court of Madison County.

¶ 20 Affirmed.

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