{ "id": 5501016, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAUD S. PACE, Defendant-Appellant", "name_abbreviation": "People v. Pace", "decision_date": "1981-09-10", "docket_number": "No. 80-602", "first_page": "213", "last_page": "219", "citations": [ { "type": "official", "cite": "100 Ill. App. 3d 213" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "368 N.E.2d 882", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "68 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809665 ], "weight": 2, "pin_cites": [ { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0149-01" ] }, { "cite": "412 N.E.2d 541", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "545" } ], "opinion_index": 0 }, { "cite": "82 Ill. 2d 268", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5476013 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0268-01" ] }, { "cite": "357 N.E.2d 184", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "43 Ill. App. 3d 677", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2722125 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0677-01" ] }, { "cite": "6 Ill. 2d 152", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2708807 ], "pin_cites": [ { "page": "159" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/6/0152-01" ] }, { "cite": "400 Ill. 449", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5306408 ], "pin_cites": [ { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/ill/400/0449-01" ] }, { "cite": "403 N.E.2d 1029", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "79 Ill. 2d 410", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3069839 ], "pin_cites": [ { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0410-01" ] }, { "cite": "97 Ill. App. 3d 1113", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3109130 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/97/1113-01" ] }, { "cite": "422 N.E.2d 627", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "85 Ill. 2d 261", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5470220 ], "weight": 4, "pin_cites": [ { "page": "269-70" }, { "page": "268" }, { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0261-01" ] } ], "analysis": { "cardinality": 749, "char_count": 14467, "ocr_confidence": 0.899, "pagerank": { "raw": 4.666970501906556e-08, "percentile": 0.29298580728065615 }, "sha256": "7d5d702afaf17ca3daff5fbd7eebf4b8bff7ff4b5b3c3786ab5b106d91e025fa", "simhash": "1:29b0af1a3e46e271", "word_count": 2376 }, "last_updated": "2023-07-14T21:36:06.230892+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAUD S. PACE, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE LINN\ndelivered the opinion of the court:\nAt the conclusion of a bench trial in the circuit court of Cook County, defendant, Laud S. Pace, was found guilty of seven counts of theft (Ill. Rev. Stat. 1979, ch. 38, par. 16 \u2014 1), one count of unlawful use of weapons (Ill. Rev. Stat. 1979, ch. 38, par. 24 \u2014 1) and three counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A \u2014 2). Defendant was sentenced to concurrent prison terms of ten years for armed violence, four years for theft, and one year for unlawful use of weapons. On appeal, defendant contends that: (1) he was improperly convicted of armed violence because the armed violence statute is unconstitutionally vague and the evidence failed to show the use of a weapon to commit theft; and (2) the sentences of 10 years for armed violence and four years for theft are excessive and should be reduced to the respective statutory m\u00ednimums of six and two years.\nWe affirm.\nDefendant, a former employee of the Chicago Art Institute, personally carried out his scheme whereby three paintings by Paul Cezanne, entitled \u201cApples on a Table Cloth,\u201d \u201cHouse on a River\u201d and \u201cMadame Cezanne in a Yellow Chair\u201d were stolen. On May 21, 1979, defendant' contacted E. Lawrence Chalmers, president of the Art Institute, and informed him that the \u201cthieves\u201d of the Cezanne paintings had contacted him. They asked him to arrange an exchange of the paintings for $250,000. After contacting law enforcement authorities, Chalmers told defendant that he should speak with William Smith, the Art Institute\u2019s, insurance adjuster, who was staying at the Drake Hotel.\nLater, Chalmers, Smith, and law enforcement personnel arranged to obtain the sum demanded and to have the hotel room next door to Smith\u2019s room set up with-recording equipment staffed by police. When defendant, by prearrangement, met Smith in Smith\u2019s room on May 22, 1979, defendant asked to see the money to be exchanged for the. paintings. Smith showed it to him. An exchange of the cash for the paintings was agreed upon for the next morning in Smith\u2019s room.\nThe next morning, defendant brought with him a large package which contained three paintings. Smith and Chalmers were present in Smith\u2019s room. Defendant told Smith that the \u201cthieves\u201d wished to make the exchange and that there were men in the corridor and in the streets armed with \u201c45\u2019s.\u201d Defendant then opened his suit coat for three to four seconds and displayed a pistol placed under his belt. Smith did not see the gun but Chalmers did. The exchange of the money for the paintings then took place. As defendant departed from the room with the money, he was arrested. The money was retaken. Upon searching defendant, police recovered from him a loaded nine-millimeter automatic pistol and four fully loaded ammunition clips. The retrieved paintings had an aggregate value of $4.3 million.\nOpinion\nI\nDefendant first contends that his conviction for armed violence is legally impermissible and cannot stand because the armed violence statute is unconstitutionally vague and denies due process of law under the constitutions of both Illinois and the United States. Defendant also contends that the armed violence convictions must be reversed because the evidence presented did not prove defendant used the gun to commit the theft.\nArticle 33A of the Criminal Code of 1961 provides:\n\u201c\u00a733A \u2014 1. Definitions, (a) \u2018Armed with a dangerous weapon\u2019. A person is considered armed with a dangerous weapon for purposes of this Article, when he carries on or about his person- or is otherwise armed with a category I or category II weapon, (b) A category I weapon is a pistol, revolver, rifle, shotgun, spring gun, or any other firearm, sawed-off shotgun, a stun gun or taser as defined in paragraph (a) of Section 24 \u2014 1 of this Code, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto, or any other deadly or dangerous weapon or instrument of like character, (c) A category II weapon is a bludgeon, blackjack, slungshot, sandbag, sandclub, metal knuckles, billy or other dangerous weapon of like character.\u201d\n\u201c\u00a733A \u2014 2. Armed violence \u2014 Elements of the offense. A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law.\u201d\n\u201c\u00a733A \u2014 3. Sentence, (a) Violation of Section 33A \u2014 2 with a Category I weapon is a Class X felony, (b) Violation of Section 33A \u2014 2 with a Category II weapon is a Class 2 felony or the felony classification provided for the same act while unarmed, whichever permits the greater penalty. A second or subsequent violation of Section 33A \u2014 2 with a Category II weapon is a Class 1 felony or the felony classification provided for the same act while unarmed, whichever permits the greater penalty.\u201d Ill. Rev. Stat. 1979, ch. 38, pars. 33A \u2014 1 to 33A \u2014 3.\nDefendant\u2019s vagueness attack is two-fold: first, the statute fails to make clear whether the weapon must actually be used to facilitate the offense and the statute is inconsistent since it includes nonviolent felonies as acts of armed violence; and second, the penalty.set forth for the offense is not determined with respect to the seriousness of the offense in violation of article 1, section ll of the Illinois Constitution because all violations of section 33A \u2014 2 with a category I weapon are declared class X felonies.\nThe Illinois Supreme Court recently addressed these issues in People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, and held that the statute was not unconstitutionally vague. In Har\u00f3n, the defendant\u2019s charge of armed violence was predicated upon his carrying a derringer during the commission of a nonviolent crime. There was no allegation that the defendant used the weapon to facilitate the offense. The Har\u00f3n court held that the armed violence statute clearly does not require that the presence of a weapon facilitate the underlying offense, but that \u201cthe mere fact that a person, while committing a felony, \u2018carries on or about his person or is otherwise armed with\u2019 a dangerous weapon is sufficient to come within the language of the statute.\u201d (85 Ill. 2d 261, 269-70.) The court reasoned that in amending the armed-violence statute to include all felonies, the General Assembly clearly \u201cintended to extend the number of circumstances in which the presence of a weapon is prohibited [citation].\u201d 85 Ill. 2d 261, 268.\nIn view of the Illinois supreme court\u2019s conclusion that the armed-violence statute neither requires nor forbids the doing of an act, which in terms is so vague \u2018<* * * that men of common intelligence must necessarily guess at its meaning and differ as to its application\u2019 \u201d (85 Ill. 2d 261, 270), we necessarily must reject the first aspect of defendant\u2019s vagueness argument.\nWe now turn to the second aspect of defendant\u2019s argument, that the required six year minimum term of imprisonment applicable to a violation of article 33A involving a category I weapon violates due process under the Illinois and United States constitutions. Although Har\u00f3n discussed but declined to decide a similar constitutional challenge, this court recently upheld the statute against this constitutional challenge in People v. Lynom (1981), 97 Ill. App. 3d 1113.\nAs in Har\u00f3n and Lynom, defendant here argues that a penalty statute which seeks to remedy the \u201cgrowing incidence of violent crime\u201d by subjecting a nonviolent perpetrator of theft to a mandatory minimum prison sentence of six years without the possibility of probation, periodic imprisonment, or conditional discharge is not reasonably designed to remedy that evil. Defendant also posits that the armed violence statute offends article 1, section 11 of the 1970 Illinois constitution, which provides that penalties shall be determined with respect to the seriousness of the offense, because the sentencing judge is not allowed to tailor an appropriate punishment for the offense.\nAs noted by both the Haron and Lynom courts, the standard by which legislative determinations of penalty are to be judged was recently set forth in People v. Bradley (1980), 79 Ill. 2d 410, 417, 403 N.E.2d 1029, 1032:\n\u201cIt is the general rule that the legislature, under the State\u2019s police power, has wide discretion to prescribe penalties for defined offenses. (People v. Dixon (1948), 400 Ill. 449, 453.) The legislature\u2019s power to fix penalties is, however, subject to the constitutional proscription which prohibits the deprivation of liberty without due process of law. [Citations.]\n\u2018We have consistently stated that the standard of a proper exercise of the police power is whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety and general welfare.\u2019 (Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 159.)\nThe test, thus, focuses on the purposes and objectives of the enactment in question.\u201d\nThe Haron court noted that in amending article 33A, the legislature intended to extend the number of circumstances in which the presence of a weapon is prohibited. Although we are without benefit of legislative history in this area, we believe it is apparent that the legislature intended to remedy the likelihood that violence could occur if a person committed a felony \u2014 any felony \u2014 while armed with a category I weapon. The remedy designed to void that evil \u2014 the penalty of a possible prison term of 6 to 30 years \u2014 is not so disproportionate to the seriousness of the offense such that it shocks the moral sense or is cruel or degrading. People v. Lynom; People v. Houston (1976), 43 Ill. App. 3d 677, 357 N.E.2d 184.\nWe also do not believe that the penalty violates article 1, section 11 of the 1970 Illinois constitution. Defendant urges that the penalty scheme prohibits sentencing alternatives regardless of the violent or nonviolent nature of the act and thereby allows punishments that are disproportionate to the offense. As already noted by this court, the statute\u2019s penalty is directed at the commission of any felony \u2014 whether or not it is \u201cviolent\u201d \u2014 while armed with a category I weapon. The penalty is not designed to remedy the evil of the underlying felony alone, but rather the evil of committing the felony while armed with a category I weapon. It is evident that the legislature intended to proscribe the commission of any felony with such a weapon and believed that the seriousness of this offense warranted the penalty so affixed. In our view, the statute is a proper exercise of police power. The armed violence statute is not unconstitutionally vague. Since defendant was armed with a category I weapon while committing the felony of theft, we necessarily must sustain his armed violence convictions.\nII\nDefendant next contends that his sentences of ten years for armed violence and four years for theft should be reduced to the respective statutory m\u00ednimums of six and two years. We disagree.\nIn People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541, the Illinois supreme court affirmed its earlier ruling in People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882, that under Supreme Court Rule 615(b)(4), which provides that a reviewing court may reduce the punishment imposed by the trial court, \u201c[t]he standard of review of a sentence claimed to be excessive is whether in fact the trial court exercised its discretion and, if so, whether this discretion was abused.\u201d 82 Ill. 2d 268, 275, 412 N.E.2d 541, 545.\nAt the sentencing hearing in the instant case, the State argued in aggravation that the stolen property was valued at $4.3 million and that defendant, who was armed heavily, posed a serious danger to the persons involved in the exchange of money and to innocent bystanders. In mitigation, the defense argued that defendant had no prior convictions and was enrolled in a training program. Defendant\u2019s mother testified that he suffered from epilepsy and that her health was poor. Defendant\u2019s step-father testified that the family business would close without defendant\u2019s help.\nIn accordance with section 5 \u2014 4\u20141(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 \u2014 4\u20141(c)), the experienced trial court specified the reasons for the sentences imposed. The trial court emphasized that defendant committed the theft by taking advantage of his employee status at the Art Institute, that defendant was armed during the exchange of money for the paintings, and that the property stolen was worth $4.3 million dollars. As noted in People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882:\n\u201c[T]he trial judge is normally in a better position to determine the punishment to be imposed than the courts of review. [Citations.] A reasoned judgment as to the proper sentence to be imposed * * * depends upon many factors, including the defendant\u2019s credibility, demeanor, general moral character, mentality, social environment, habits, and age. [Citation.] The trial judge, in the course of the trial and the sentencing hearing, has an opportunity to consider these factors \u2018which is superior to that afforded by the cold record in this court.\u2019 [Citation.]\u201d\nHere, the trial judge was charged with the difficult task of fashioning a sentence which would strike the appropriate balance between protection of society and rehabilitation of the offender. It is not our function to serve as a sentencing court, and we will not substitute our judgment for that of the trial court merely because we would have balanced the appropriate factors differently if the sentencing task had been ours. (People v. Cox; People v. Perruquet.) We cannot say that the trial judge abused his discretion.\nFor the reasons noted, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nROMITI, P. J., and JIGANTI, J., concur.\nThis section provides in part:\n\u201cAll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. \u00b0 \u00b0 Ill. Const. 1970, art. 1, \u00a711.", "type": "majority", "author": "Mr. JUSTICE LINN" } ], "attorneys": [ "Ralph Ruebner and Richard F. Faust, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr, Pamela L. Gray, and Mark E. Thompson, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAUD S. PACE, Defendant-Appellant.\nFirst District (4th Division)\nNo. 80-602\nOpinion filed September 10,1981.\nRalph Ruebner and Richard F. Faust, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr, Pamela L. Gray, and Mark E. Thompson, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0213-01", "first_page_order": 235, "last_page_order": 241 }