{ "id": 5574565, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK ANTHONY BAKER, Defendant-Appellant", "name_abbreviation": "People v. Baker", "decision_date": "2003-04-30", "docket_number": "No. 4\u201401\u20140597", "first_page": "1083", "last_page": "1091", "citations": [ { "type": "official", "cite": "341 Ill. App. 3d 1083" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "669 N.E.2d 111", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "113" } ], "opinion_index": 0 }, { "cite": "282 Ill. App. 3d 32", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159548 ], "year": 1996, "pin_cites": [ { "page": "34" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/0032-01" ] }, { "cite": "594 N.E.2d 291", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "305" } ], "opinion_index": 0 }, { "cite": "149 Ill. 2d 71", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5599698 ], "year": 1992, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/149/0071-01" ] }, { "cite": "743 N.E.2d 126", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "136" } ], "opinion_index": 0 }, { "cite": "195 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 725355 ], "year": 2000, "pin_cites": [ { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/195/0001-01" ] }, { "cite": "687 N.E.2d 24", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "28" } ], "opinion_index": 0 }, { "cite": "177 Ill. 2d 495", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317115 ], "year": 1997, "pin_cites": [ { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/177/0495-01" ] }, { "cite": "677 N.E.2d 830", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1996, "pin_cites": [ { "page": "831" }, { "page": "831" }, { "page": "833" }, { "page": "835" } ], "opinion_index": 0 }, { "cite": "175 Ill. 2d 412", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295816 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "414" }, { "page": "414-15" }, { "page": "418" }, { "page": "423-24" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/175/0412-01" ] }, { "cite": "564 N.E.2d 770", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1990, "pin_cites": [ { "page": "772" }, { "page": "774" }, { "page": "774" } ], "opinion_index": 0 }, { "cite": "139 Ill. 2d 172", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5573783 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "176-78" }, { "page": "181" }, { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0172-01" ] }, { "cite": "786 N.E.2d 994", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "1004" } ], "opinion_index": 0 }, { "cite": "203 Ill. 2d 470", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799382 ], "year": 2003, "pin_cites": [ { "page": "486-87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/203/0470-01" ] }, { "cite": "739 N.E.2d 433", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "437" } ], "opinion_index": 0 }, { "cite": "193 Ill. 2d 413", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 963706 ], "year": 2000, "pin_cites": [ { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/193/0413-01" ] }, { "cite": "769 N.E.2d 928", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "930" } ], "opinion_index": 0 }, { "cite": "199 Ill. 2d 392", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58927 ], "year": 2002, "pin_cites": [ { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0392-01" ] } ], "analysis": { "cardinality": 815, "char_count": 18784, "ocr_confidence": 0.78, "pagerank": { "raw": 2.0395715474351078e-07, "percentile": 0.7475887590357585 }, "sha256": "46dbb921d95eed1d165f0e613e55b516ba47d0b62b3670ebd2d5ea7384943851", "simhash": "1:232abf30e5169e55", "word_count": 3091 }, "last_updated": "2023-07-14T21:38:13.673521+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. MARK ANTHONY BAKER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nIn June 2000, defendant, Mark Anthony Baker, pleaded guilty to one count of attempt (home invasion) (720 ILCS 5/8 \u2014 4(a), 12 \u2014 11 (West 1998)) (Champaign County case No. 99 \u2014 CF\u20142047). The trial court later sentenced him to 36 months\u2019 probation. In October 2000, the State filed a petition to revoke defendant\u2019s probation, and following a May 2001 hearing, the court granted the State\u2019s petition.\nLater in May 2001, a jury found defendant guilty of aggravated kidnaping (in that he committed the offense of kidnaping while armed with a firearm) (720 ILCS 5/10 \u2014 2(a)(6) (West 2000)), two counts of armed violence (720 ILCS 5/33A \u2014 2(a) (West 2000)), and unlawful possession of a weapon by a felon (720 ILCS 5/24 \u2014 1.1(a) (West 2000)) (Champaign County case No. 01 \u2014 CF\u2014165).\nIn June 2001, the trial court sentenced defendant to 40 years in prison for aggravated kidnaping (which included an automatic 15-year enhancement for being armed with a firearm (720 ILCS 5/10 \u2014 2(b) (West 2000))), 30 years for one count of armed violence, and 5 years for unlawful possession of a weapon by a felon, with those sentences to be served concurrently. (The court determined that the two convictions for armed violence merged into one and, accordingly, imposed sentence upon only one count.) The court also resentenced defendant to 10 years in prison for attempt (home invasion), with that sentence to be served consecutively to his other sentences.\nDefendant appeals, arguing that (1) the 15-year enhancement for aggravated kidnaping violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, \u00a7 11); and (2) the trial court considered an improper factor in sentencing. We affirm in part, vacate in part, and remand with directions.\nI. BACKGROUND\nIn January 2001, the State charged defendant with (1) two counts of armed violence; (2) unlawful possession of a weapon by a felon; and (3) aggravated kidnaping, in that defendant, \u201cin committing the offense of [k]idnapping, *** knowingly and secretly confined [M.S.] against her will, while armed with a firearm, a handgun.\u201d Although aggravated kidnaping is classified generally as a Class X felony, subsection (b) of the aggravated kidnaping statute provides that when an individual commits the offense of kidnaping while armed with a firearm, \u201c15 years shall be added to the term of imprisonment imposed by the court.\u201d 720 ILCS 5/10 \u2014 2(b) (West 2000).\nIn May 2001, defendant moved to dismiss the aggravated kidnaping charge on the grounds that the 15-year enhancement violates (1) the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, \u00a7 11); (2) the separation of powers clause of the Illinois Constitution (Ill. Const. 1970, art. I, \u00a7 1); and (3) the equal protection and due process clauses of the federal and state constitutions. The trial court denied defendant\u2019s motion, and the case proceeded to trial.\nThe evidence presented at defendant\u2019s jury trial showed the following. Around 3 a.m. on January 24, 2001, defendant, who was one of M.S.\u2019s long-time friends, showed up unannounced at her apartment. After talking for about 20 minutes, defendant asked M.S. to have sex, and she told him no because she had a serious boyfriend. Shortly thereafter, defendant walked into the kitchen and came back out wearing gloves and holding a handgun. When M.S. felt the handgun against her head, she grabbed the barrel and pointed the gun at the floor. She then tried to run, but defendant grabbed her and told her that if she yelled, he would kill her and her son, who was sleeping upstairs. Defendant taped her hands together but later untaped them so that she could use the bathroom. Defendant then took M.S. into the bedroom, put a sock in her mouth, and placed tape over her mouth. At that point, he emptied the bullets out of his gun and told M.S. that he would not hurt her. He then told her that he was sorry, she walked him to the door, and he left.\nThe police arrested defendant shortly thereafter and recovered a handgun on a rooftop near M.S.\u2019s apartment. The parties stipulated that a print found on the handgun matched defendant\u2019s fingerprints.\nDefendant testified and denied committing the offenses.\nBased on this evidence, the jury convicted defendant of all charges. The trial court later sentenced him as stated. In sentencing defendant, the court stated, in pertinent part, as follows:\n\u201cThe [c]ourt heard the testimony of [M.S.] [Defense counsel] has commented on that testimony, and, again, this is a situation where the defendant has decided to prey upon a young woman who[m] he knew, *** who went to school with him. And unlike the situation in [Champaign County case No.] 99 \u2014 CF\u20142047[,] where he was armed with cutting devices, in the case involving [M.S.] he armed himself with a firearm.\n[Defense counsel] is correct, there could have been \u2014 he could have done a great many more terrible things to this victim than he did, but for some reason he chose to stop and left the residence, but the victim \u2014 with the victim totally terrorized by his activities. The [c]ourt gets back to the pattern. The pattern of this defendant preying upon young women that he has established a relationship with, and when he committed the offense in [Champaign County case No. 01 \u2014 CF\u2014165], aggravated kidnapping, armed violence, and possession of weapons by a felon, he escalated his choice of weapons in that he armed himself with a firearm. That more than offsets the fact that he didn\u2019t rape the victim in this case. Again, potential for serious bodily injury was great.\n[Defendant], you are a dangerous young man. And the [c]ourt needs to fashion a sentence that will see to it that you will no longer prey upon women in this community or anywhere else or any other women that you establish a relationship with.\nGiven all that\u2019s been presented, I believe an appropriate sentence is one of incarceration in the Illinois Department of Corrections for the offense of aggravated kidnapping involving use of a firearm. That sentence will be 40 years. It will be served concurrently with the 30[-]year sentence imposed in the armed violence count, and with the 5[-]year sentence that will also run concurrently with the possession of a weapon by a felon.\u201d\nThis appeal followed.\nII. ANALYSIS\nA. Proportionate Penalties\nDefendant first argues that the 15-year enhancement of his sentence for aggravated kidnaping (committing the offense of kidnaping while armed with a firearm) (720 ILCS 5/10 \u2014 2(a)(6), (b) (West 2000)) violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, \u00a7 11). We agree.\nA statute is presumed constitutional, and the party challenging the statute bears the burden of demonstrating its invalidity. People v. Walden, 199 Ill. 2d 392, 394, 769 N.E.2d 928, 930 (2002). Courts have a duty to construe a statute in a manner that upholds its validity and constitutionality if it reasonably can be done. Whether a statute is constitutional involves a question of law. People v. Malchow, 193 Ill. 2d 413, 418, 739 N.E.2d 433, 437 (2000).\nIn evaluating statutory challenges brought under the proportionate penalties clause, our supreme court has employed three distinct tests: (1) whether the penalty is cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community; (2) whether the described offense, when compared to a similar offense, carries a more severe penalty although the proscribed conduct creates a less serious threat to the public health and safety; or (3) whether the described offense, when compared to an offense having identical elements, carries a different sentence. People v. Morgan, 203 Ill. 2d 470, 486-87, 786 N.E.2d 994, 1004 (2003). In this case, defendant contends that the 15-year enhancement for aggravated kidnaping (committing the offense of kidnaping while armed with a firearm) violates the proportionate penalties clause under the third test.\nIn People v. Christy, 139 Ill. 2d 172, 564 N.E.2d 770 (1990), the supreme court considered a challenge to an armed violence conviction brought under the proportionate penalties clause of the Illinois Constitution. On appeal, the defendant argued that the penalties for armed violence predicated on kidnaping with a category I weapon and aggravated kidnaping (Ill. Rev. Stat. 1987, ch. 38, par. 10 \u2014 2(a)(5)) were disproportionate because each offense consisted of the same elements, yet armed violence was punished more severely than aggravated kidnaping. Christy, 139 Ill. 2d at 176-78, 564 N.E.2d at 772. The supreme court agreed, stating:\n\u201cUpon review of the relevant statutory provisions it is apparent that the commission of kidnapping while armed with a \u2018knife with a blade of at least 3 inches in length\u2019 constitutes both aggravated kidnapping and armed violence. Since the elements which constitute aggravated kidnapping and armed violence are identical, common sense and sound logic would seemingly dictate that their penalties be identical.\u201d (Emphasis in original.) Christy, 139 Ill. 2d at 181, 564 N.E.2d at 774.\nBecause the penalties for armed violence predicated on kidnaping with a category I weapon and aggravated kidnaping were not identical, the Christy court held that the penalties were unconstitutionally disproportionate. The court thus vacated the defendant\u2019s conviction and sentence for armed violence and remanded the cause for sentencing on the offense of aggravated kidnaping. Christy, 139 Ill. 2d at 181, 564 N.E.2d at 774.\nIn People v. Lewis, 175 Ill. 2d 412, 414, 677 N.E.2d 830, 831 (1996), the defendant was charged with robbery (720 ILCS 5/18 \u2014 1 (West 1994)), armed robbery (720 ILCS 5/18 \u2014 2 (West 1994)), and armed violence predicated on robbery committed with a category I weapon (720 ILCS 5/33A \u2014 1 (West 1994)). The defendant moved to dismiss the armed violence charge on the ground that the penalty for that offense violated the proportionate penalties clause, and the trial court granted the motion. Lewis, 175 Ill. 2d at 414-15, 677 N.E.2d at 831. On appeal, the supreme court reviewed the pertinent statutes and determined that armed robbery and armed violence predicated on robbery committed with a category I weapon had identical statutory elements, but were punished with disparate penalties. Lewis, 175 Ill. 2d at 418, 677 N.E.2d at 833. Reaffirming the Christy holding, the Lewis court concluded that the penalties for armed violence predicated on robbery committed with a category I weapon and armed robbery were unconstitutionally disproportionate. Lewis, 175 Ill. 2d at 423-24, 677 N.E.2d at 835.\nThe supreme court\u2019s decisions in Christy and Lewis thus establish that \u201cthe proportionate penalties clause is violated where two offenses have identical elements, but are subject to different sentencing ranges.\u201d People v. Davis, 177 Ill. 2d 495, 503, 687 N.E.2d 24, 28 (1997).\nIn this case, the offenses that defendant asks us to compare under the \u201cidentical elements\u201d test are (1) aggravated kidnaping (committing the offense of kidnaping while armed with a firearm) (720 ILCS 5/10 \u2014 2(a)(6) (West 2000)); and (2) armed violence predicated on the offense of kidnaping while carrying a category I weapon (720 ILCS 5/33A \u2014 2(a), 33A \u2014 3(a) (West 2000)). The aggravated kidnaping statute provides, in pertinent part, as follows:\n\u201cA kidnaper within the definition of paragraph (a) of [s]ection 10 \u2014 1 is guilty of the offense of aggravated kidnaping when he:\n^ ^\n(6) Commits the offense of kidnaping while armed with a firearm!.]\u201d 720 ILCS 5/10 \u2014 2(a)(6) (West 2000).\nSection 10 \u2014 1 of the Criminal Code of 1961 (Code), in turn, provides, in pertinent part, that \u201c[k]idnaping occurs when a person knowingly: (1) [a]nd secretly confines another against his will.\u201d 720 ILCS 5/10\u2014 1(a)(1) (West 2000). As earlier stated, although aggravated kidnaping is classified generally as a Class X felony punishable by 6 to 30 years in prison (730 ILCS 5/5 \u2014 8\u20141(a)(3) (West 2000)), section 10 \u2014 2(b) of the Code provides that aggravated kidnaping involving the commission of the offense of kidnaping by knowingly and secretly confining another against her will while armed with a firearm, such as a handgun, constitutes a Class X felony, for which 15 years shall be added to the term of imprisonment imposed by the court (720 ILCS 5/10 \u2014 2(b) (West 2000)). Thus, in reality, aggravated kidnaping (committing the offense of kidnaping while armed with a firearm) is punishable by 21 to 45 years in prison. 720 ILCS 5/10 \u2014 2(b) (West 2000); 730 ILCS 5/5 \u2014 8\u20141(a)(3) (West 2000).\nThe armed violence statute provides, in pertinent part, as follows:\n\u201cA person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law, except first degree murder, attempted first degree murder, intentional homicide of an unborn child, predatory criminal sexual assault of a child, aggravated criminal sexual assault, aggravated kidnaping, aggravated battery of a child, home invasion, armed robbery, or aggravated vehicular hijacking.\u201d 720 ILCS 5/33A \u2014 2(a) (West 2000).\nSection 33A \u2014 1(c)(1) provides that \u201c[a] person is considered armed with a dangerous weapon for purposes of this [ajrticle, when he or she carries on or about his or her person or is otherwise armed with a [cjategory I, [cjategory II, or [cjategory III weapon.\u201d 720 ILCS 5/33A\u2014 1(c)(1) (West 2000). A category I weapon \u201cis a handgun, sawed-off shotgun, sawed-off rifle, any other firearm small enough to be concealed upon the person, semiautomatic firearm, or machine gun.\u201d 720 ILCS 5/33A \u2014 1(c)(2) (West 2000). Armed violence predicated on the offense of kidnaping while carrying a category I weapon, such as a handgun, is a Class X felony \u201cfor which the defendant shall be sentenced to a minimum term of imprisonment of 15 years.\u201d 720 ILCS 5/33A \u2014 3(a) (West 2000). Thus, armed violence with a category I weapon is a Class X felony with a sentencing range of 15 to 30 years. 730 ILCS 5/5 \u2014 8\u20141(a)(3) (West 2000).\nReviewing the pertinent statutory provisions, it is clear that the commission of the offense of kidnaping while armed with a firearm, such as a handgun, constitutes both aggravated kidnaping and armed violence. However, as earlier stated, aggravated kidnaping is a Class X felony that is punishable by 21 to 45 years in prison, while armed violence is a Class X felony that is punishable by 15 to 30 years in prison. Like Christy and Lewis, this case involves two substantively identical offenses which, illogically, are punished with disparate penalties. Thus, in accordance with the principles set forth in Christy and Lewis, we conclude that the 15-year enhancement for aggravated kidnaping (committing the offense of kidnaping while armed with a firearm) (720 ILCS 5/10 \u2014 2(a)(6), (b) (West 2000)) violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, \u00a7 11) and is unenforceable.\nAccordingly, we vacate the 15-year enhancement for defendant\u2019s aggravated kidnaping conviction and remand with directions that the trial court issue an amended written judgment to reflect that defendant\u2019s sentence for aggravated kidnaping is 25 years. See 134 Ill. 2d R 615(b).\nB. Sentencing\nLast, defendant argues that the trial court erred by considering an element of the offenses of armed violence and aggravated kidnaping while armed with a firearm \u2014 namely, the presence of a firearm \u2014 as an aggravating factor in sentencing him. Specifically, he contends that the court erred when it commented that defendant had \u201cescalated his choice of weapon in that he armed himself with a firearm.\u201d We disagree.\nInitially, we note that defendant did not include this issue in his posttrial motion challenging his sentence. Therefore, we must determine whether the trial court committed plain error.\n\u201cThe plain error rule may be invoked if the evidence at a sentencing hearing was closely balanced[ ] or if the error was so egregious as to deprive the defendant of a fair sentencing hearing.\u201d People v. Hall, 195 Ill. 2d 1, 18, 743 N.E.2d 126, 136 (2000). The second prong of the plain error rule should be invoked only when the possible error is so serious that its consideration is \u201c \u2018necessary to preserve the integrity and reputation of the judicial process.\u2019 [Citation.]\u201d People v. Hampton, 149 Ill. 2d 71, 102, 594 N.E.2d 291, 305 (1992). The rule is not a general saving clause for alleged errors but is designed to redress serious injustices. People v. Helm, 282 Ill. App. 3d 32, 34, 669 N.E.2d 111, 113 (1996).\nAfter reviewing the record, we conclude that defendant\u2019s argument does not satisfy either requirement of the plain error rule. Initially, we do not consider the evidence in aggravation and mitigation to be closely balanced. Defendant offered no evidence in mitigation, and he stated in allocution that he was sorry but he did not commit the offenses. In contrast, John Grabow, a Rantoul police officer, testified in aggravation that K.T., one of defendant\u2019s friends from high school, told Grabow that in June 1998, defendant forcibly sexually assaulted her. Further, J.B. testified that on November 15, 1999, defendant, who was J.B.\u2019s friend, telephoned her and asked if she wanted to \u201chang out\u201d at a mutual friend\u2019s apartment. After they arrived at that apartment, defendant told her that their other friends were going to arrive later. After about 45 minutes, defendant told J.B. that he had a knife and forced her to perform oral sex. The evidence presented also showed that M.S.\u2019s life was forever changed by the present crime.\nIn addition, the trial court\u2019s comment that defendant \u201chad escalated his choice of weapons in that he armed himself with a firearm\u201d was not so egregious as to deprive defendant of a fair sentencing hearing. In this regard, we note that the court\u2019s comment (1) was brief and isolated, and (2) was made in the context of distinguishing defendant\u2019s current crime from his prior offenses.\nIII. CONCLUSION\nFor the reasons stated, we affirm in part, vacate in part, and remand with directions.\nAffirmed in part and vacated in part; cause remanded with directions.\nCOOK and APPLETON, JJ., concur.", "type": "majority", "author": "JUSTICE STEIGMANN" } ], "attorneys": [ "Daniel D. Yuhas and Susan M. Wilham, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "John C. Piland, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Perry L. Miller, all 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. MARK ANTHONY BAKER, Defendant-Appellant.\nFourth District\nNo. 4 \u2014 01\u20140597\nOpinion filed April 30, 2003.\nModified on denial of rehearing August 18, 2003.\nDaniel D. Yuhas and Susan M. Wilham, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nJohn C. Piland, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Perry L. Miller, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "1083-01", "first_page_order": 1101, "last_page_order": 1109 }