{ "id": 5373698, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH R. MURPHY, Defendant-Appellant", "name_abbreviation": "People v. Murphy", "decision_date": "1994-06-01", "docket_number": "No. 2\u201492\u20141249", "first_page": "1019", "last_page": "1024", "citations": [ { "type": "official", "cite": "261 Ill. App. 3d 1019" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "208 Ill. App. 3d 525", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2549553 ], "pin_cites": [ { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/208/0525-01" ] }, { "cite": "126 Ill. 2d 70", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5557241 ], "pin_cites": [ { "page": "77" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/126/0070-01" ] }, { "cite": "66 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463653 ], "pin_cites": [ { "page": "565-66" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0551-01" ] }, { "cite": "164 Ill. App. 3d 468", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2461812 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "874" }, { "page": "875" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/200/0872-01" ] } ], "analysis": { "cardinality": 572, "char_count": 12384, "ocr_confidence": 0.813, "pagerank": { "raw": 6.770845263994211e-08, "percentile": 0.4109977068161117 }, "sha256": "14b41605d6c47e0517a88dc4eec740e1523a9ddcc83579680f04ac8c823747fe", "simhash": "1:2b226d9574111e51", "word_count": 1999 }, "last_updated": "2023-07-14T17:03:20.371410+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. KENNETH R. MURPHY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BOWMAN\ndelivered the opinion of the court:\nA jury found defendant, Kenneth R. Murphy, guilty of armed violence (Ill. Rev. Stat. 1991, ch. 38, par. 33A\u20142 (now 720 ILCS 5/33A\u20142 (West 1992))), aggravated unlawful restraint (Ill. Rev. Stat. 1991, ch. 38, par. 10\u20143.1(a) (now 720 ILCS 5/10\u20143.1(a) (West 1992))), unlawful possession of a firearm by a felon (Ill. Rev. Stat. 1991, ch. 38, par. 24\u20141.1(a) (now 720 ILCS 5/24\u20141.1(a) (West 1992))), aggravated assault (Ill. Rev. Stat. 1991, ch. 38, par. 12\u20142(a)(1) (now codified, as amended, at 720 ILCS 5/12\u20142(a)(1) (West 1992))), and unlawful violation of an order of protection (Ill. Rev. Stat. 1991, ch. 38, par. 12\u201430(a) (now 720 ILCS 5/12\u201430(a) (West 1992))). The court sentenced defendant to concurrent terms of imprisonment of seven years for armed violence, five years for aggravated unlawful restraint and the possession of a firearm, and one year for the remaining convictions. Defendant raises two issues for review: whether the penalties for aggravated unlawful restraint and armed violence are unconstitutionally disproportionate; and whether defendant was convicted of more than one offense arising out of the same conduct.\nThe essential facts underlying the offenses are as follows. Defendant\u2019s ex-wife, Lorre Murphy, brought their two children to defendant\u2019s home for visitation. She stayed in her car with the children because there was an order of protection against defendant and she did not want to enter his apartment. Defendant picked up a sawed-off shotgun and loaded it before going out to the car. After playing with his daughter at the car for a few minutes, defendant got into the front seat of the vehicle and pointed the shotgun at Lorre. She screamed, which upset their older child. Defendant allowed Lorre to bring the child into the front seat to comfort her. He then told Lorre to drive to a park. She did as he said and parked the car there. Defendant continued to hold the gun, but he pointed it away from Lorre. Defendant asked her personal questions and talked about counselling. Finally, she agreed to go to counselling with him. At one point, he unloaded the gun and handed her the shells and the gun, but a few minutes later he took back the gun. Defendant insisted on spending the night with her so that she would not go to the police. She agreed but asked that he get rid of the gun first. When defendant got out of the car at his apartment to put away the gun, Lorre drove to the police department. The entire incident lasted about two hours.\nBefore the trial, defendant moved to dismiss the armed violence charge on the basis that it violated the proportionate penalties guarantee of the Illinois Constitution. The court denied the motion. Defendant preserved the issue in the post-trial motion, which was also denied. Following sentencing, defendant timely appealed.\nDefendant contends that the court erred in failing to dismiss the armed violence charge because the offense of armed violence, predicated on unlawful restraint, is unconstitutionally disproportionate under article I, sections 2 and 11, of the Illinois Constitution (Ill. Const. 1970, art. I, \u00a7\u00a7 2,11). Under these sections, the penalty imposed must be proportionate to the seriousness of the offense.\nDefendant argues that armed violence predicated on unlawful restraint is disproportionate to the identical offense of aggravated unlawful restraint. \"A person commits the offense of aggravated unlawful restraint when he knowingly without legal authority detains another while using a deadly weapon.\u201d (720 ILCS 5/10\u20143.1(a) (West 1992).) Aggravated unlawful restraint is a Class 3 felony. (720 ILCS 5/10\u20143.1(b) (West 1992).) \"A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law.\u201d (720 ILCS 5/33A\u20142 (West 1992).) Defendant was charged with armed violence by committing unlawful restraint while armed with a category I dangerous weapon (720 ILCS 5/33A\u20141(b) (West 1992)), which is a Class X felony (720 ILCS 5/33A\u20143(a) (West 1992)).\nIn People v. Bloyer (1990), 200 Ill. App. 3d 872, this court rejected the same argument defendant advances here. The defendant in Bloyer premised his contention on the supreme court\u2019s opinion in People v. Wisslead (1983), 94 Ill. 2d 190, where the court held that a conviction of armed violence predicated on unlawful restraint violated the proportionate penalties guarantee because a less serious offense, unlawful restraint committed with a dangerous weapon, would be punished more severely than a more serious offense, aggravated kidnapping, a Class 1 felony (see 720 ILCS 5/10\u20142 (West 1992)). (Wisslead, 94 Ill. 2d at 196.) The court emphasized that the use of a gun would change a kidnapping to an aggravated kidnapping, but the use of a gun would elevate an unlawful restraint to armed violence. 94 Ill. 2d at 195.\nAfter Wisslead, the legislature added the offense of aggravated unlawful restraint. The Bloyer court concluded that the amendment cured the constitutional infirmity in the statutory scheme because the use of a weapon would cause the offense of unlawful restraint to rise to a Class 3 felony, whereas the use of a weapon would cause the offense of kidnapping to rise to a Class 1 felony. (Bloyer, 200 Ill. App. 3d at 874.) Bloyer recognized that a prosecutor could exercise discretion in determining whether to charge aggravated unlawful restraint or armed violence and, based on People v. Moritz (1988), 173 Ill. App. 3d 498, it assumed that armed violence could be predicated on kidnapping. Bloyer, 200 Ill. App. 3d at 875.\nSeveral months after we released our opinion in Bloyer, the supreme court decided People v. Christy (1990), 139 Ill. 2d 172. The defendant in that case was convicted of armed violence predicated on his commission of kidnapping while armed with a category I weapon, a knife with a blade in excess of three inches. Christy addressed whether the statutory penalties for aggravated kidnapping and armed violence were constitutionally disproportionate. The court noted that aggravated kidnapping is defined as the commission of kidnapping while armed with a dangerous weapon. (See 720 ILCS 5/10\u20142(a)(5) (West 1992).) Thus, under the statutory scheme, a person cannot commit aggravated kidnapping without also committing armed violence. The court declined to follow Moritz, which reasoned that the penalties for aggravated kidnapping and armed violence predicated on kidnapping were constitutionally proportionate because the ability to choose between them is a matter of prosecutorial discretion. (See Moritz, 173 Ill. App. 3d at 505-06.) Christy rejected that reasoning because prosecutorial discretion would \"effectively nullify the aggravated kidnapping statute, as skilled State\u2019s Attorneys will usually seek the more severe sentence and, therefore, charge defendants with armed violence rather than aggravated kidnapping.\u201d (Christy, 139 Ill. 2d at 180.) The court ruled that it was disproportionate for the same act to be subject to different punishments. It therefore held that the penalties for aggravated kidnapping and armed violence are unconstitutionally disproportionate. 139 Ill. 2d at 181.\nDefendant argues that the principles of Christy should apply to the present cause. The State responds that Christy is inapposite because, unlike aggravated kidnapping, aggravated unlawful restraint does not require the use of a \"dangerous weapon\u201d as defined in the armed violence statute. (Compare 720 ILCS 5/10\u20142(a)(5) with 5/10\u20143.1(a) (West 1992).) We agree with the State because a person can commit aggravated unlawful restraint by using a \"deadly\u201d weapon, rather than a \"dangerous weapon,\u201d and not simultaneously commit armed violence. Thus, allowing unlawful restraint to be used as the predicate offense for armed violence does not nullify the aggravated unlawful restraint statute, and the rationale of Christy does not apply.\nHowever, our analysis does not end here. As noted above, Bloyer\u2019s holding was premised on the reasoning of Moritz that kidnapping could be a predicate offense for armed violence. The supreme court\u2019s holding in Christy calls into question this court\u2019s holding in Bloyer that the addition of the offense of aggravated unlawful restraint solved the problem set forth in Wisslead. We conclude that, in light of Christy, the statutory infirmity identified in Wisslead remains: the offense of armed violence predicated on unlawful restraint is unconstitutionally disproportionate to aggravated kidnapping. We therefore hold that armed violence cannot be predicated on unlawful restraint and, thus, defendant\u2019s conviction of armed violence must be vacated. Although defendant asserts that the cause should be remanded for resentencing, remand is unnecessary because there is nothing in the record to indicate that the armed violence conviction influenced the other sentences. See People v. Bourke (1983), 96 Ill. 2d 327, 332; People v. Burke (1987), 164 Ill. App. 3d 468, 474.\nDefendant next contends that his conviction of aggravated assault should be vacated under the \"one-act-one-crime\u201d rule. A defendant cannot be convicted of and sentenced for multiple offenses arising from the same physical act. (People v. King (1977), 66 Ill. 2d 551, 565-66.) However, if the physical acts are distinct, multiple convictions are proper. (People v. Segara (1988), 126 Ill. 2d 70, 77.) In determining whether the defendant\u2019s conduct constitutes a single physical act, courts consider: (1) the prosecutorial intent, as reflected in the language of the charging instrument; (2) the existence of an intervening act; (3) a time interval between successive parts of the defendant\u2019s conduct; (4) the similarity of the acts; and (5) the location of the acts. People v. Guzman (1990), 208 Ill. App. 3d 525, 535.\nThe information alleged that defendant committed aggravated unlawful restraint by \"knowingly detain[ing] Lorrie [sic] Murphy in that he held her against her will at gunpoint.\u201d The aggravated assault count charged that defendant \"knowingly pointed a gun, at Lorrie [sic] Murphy, thereby placing Lorrie [sic] Murphy in reasonable apprehension of receiving a battery.\u201d Defendant argues that both offenses are based on the same physical act: pointing a gun at Lorre, which placed her in reasonable apprehension of receiving a battery and coerced her to remain in the car against her will.\nThe State responds that there were two separate acts: defendant pointed the sawed-off shotgun at Lorre, thereby committing aggravated assault; he then allowed her to comfort their daughter before he ordered her to drive to the park, commencing the aggravated unlawful restraint. We disagree with the State\u2019s interpretation of the facts. The aggravated unlawful restraint was a continuing offense which began when defendant pointed the gun at Lorre, thereby preventing her from leaving the car. Defendant\u2019s act of allowing Lorre to comfort their daughter did not end the restraint on Lorre\u2019s freedom. Based on the language of the charging instrument and the facts, we agree with defendant that both offenses were predicated on the same physical act. We therefore vacate the conviction of aggravated assault.\nFinally, defendant points out that he was sentenced to 365 days in the county jail for his misdemeanor conviction of the violation of an order of protection. (See Ill. Rev. Stat. 1991, ch. 38, par. 12\u201430(d) (now 720 ILCS 5/12\u201430(d) (West 1992)).) As defendant correctly notes, the maximum jail term for a Class A misdemeanor is 364 days. (Ill. Rev. Stat. 1991, ch. 38, par. 1005\u20148\u20143(a)(1) (now 730 ILCS 5/5\u20148\u20143(a)(1) (West 1992)).) We therefore reduce his sentence for this offense to 364 days in the county jail. See 134 Ill. 2d R. 615(b)(4).\nThe judgment of the circuit court is affirmed in part as modified and vacated in part.\nAffirmed in part as modified; vacated in part.\nINGLIS, P.J., and QUETSCH, J., concur.", "type": "majority", "author": "JUSTICE BOWMAN" } ], "attorneys": [ "G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Michael P. Coghlan, State\u2019s Attorney, of Sycamore (William L. Browers and Cynthia N. Schneider, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH R. MURPHY, Defendant-Appellant.\nSecond District\nNo. 2\u201492\u20141249\nOpinion filed June 1, 1994.\nG. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nMichael P. Coghlan, State\u2019s Attorney, of Sycamore (William L. Browers and Cynthia N. Schneider, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "1019-01", "first_page_order": 1037, "last_page_order": 1042 }