{ "id": 4136023, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARCO SOLE, Defendant-Appellant", "name_abbreviation": "People v. Sole", "decision_date": "2005-05-26", "docket_number": "No. 1-03-1701", "first_page": "988", "last_page": "994", "citations": [ { "type": "official", "cite": "357 Ill. App. 3d 988" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "171 Ill. App. 3d 900", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3618147 ], "year": 1988, "pin_cites": [ { "page": "908" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/171/0900-01" ] }, { "cite": "239 Ill. App. 3d 960", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5147309 ], "year": 1993, "pin_cites": [ { "page": "968" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/239/0960-01" ] }, { "cite": "168 Ill. 2d 367", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307259 ], "year": 1995, "pin_cites": [ { "page": "373-74" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/168/0367-01" ] }, { "cite": "145 Ill. 2d 353", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596242 ], "year": 1991, "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0353-01" ] }, { "cite": "177 Ill. 2d 495", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317115 ], "year": 1997, "pin_cites": [ { "page": "503-04" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/177/0495-01" ] }, { "cite": "351 Ill. App. 3d 763", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5872678 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "922" }, { "page": "925" }, { "page": "923" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/345/0916-01" ] } ], "analysis": { "cardinality": 655, "char_count": 13654, "ocr_confidence": 0.742, "pagerank": { "raw": 5.855659742486081e-08, "percentile": 0.3633107567275158 }, "sha256": "a59c4917c99ea022c1ccc2235ddc61719c0ec1e7bc49c3c081559e480e0e6ba3", "simhash": "1:2a239fe93746fee5", "word_count": 2223 }, "last_updated": "2023-07-14T22:31:24.775353+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. MARCO SOLE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE QUINN\ndelivered the opinion of the court:\nFollowing a bench trial, defendant Marco Sole was found guilty of aggravated unlawful use of a weapon and was sentenced to 14 years in prison. On appeal, defendant contends that the aggravated unlawful use of a weapon statute (the aggravated UUW statute) (720 ILCS 5/24 \u2014 1.6 (West 2002)) is unconstitutional because it violates his right to due process of law and the proportionate penalties provision of the Illinois Constitution. He further contends that his sentence was excessive.\nDefendant was charged with aggravated unlawful use of a .22-caliber weapon and a .44-caliber weapon.\nAt trial, Officer Tyrone Pendarvis testified that on May 21, 2002, he was on patrol with his partner Philip Armstrong when a citizen on a bicycle informed them that someone was in the middle of the street a few blocks away pointing weapons at cars. The officers proceeded to the street indicated by the biker and saw two men in the street holding guns. One of the men was identified as defendant. The other man was identified as Deonte Blair. Defendant was holding a nickel-plated silver gun. When they saw the officers, defendant and Blair ran into a nearby house. The officers followed them into the house. In the house, Officer Pendarvis saw Blair in the hallway holding the nickel-plated silver gun. Blair complied with Officer Pendarvis\u2019 order to drop the gun and get on the floor. Officer Pendarvis could hear defendant in another room of the house and ordered him to drop any weapons and get on the floor. Defendant complied. The officers recovered the nickel-plated .44-caliber revolver that Pendarvis had seen Blair drop and a .22-caliber revolver that was found on the floor near defendant. During the State\u2019s rebuttal, Officer Armstrong corroborated Officer Pendarvis\u2019 testimony.\nAt the close of the State\u2019s case in chief, defendant moved for a directed verdict as to the charges of aggravated unlawful use of a .22-caliber weapon and a .44-caliber weapon. The trial court granted defendant\u2019s motion as to the .22-caliber weapon and denied the motion as to the .44-caliber weapon.\nJoanne Coleman, the mother of defendant\u2019s children, testified on defendant\u2019s behalf that she was sitting in a car outside the house when defendant was arrested. Earlier that day, Blair had come to the house with a silver gun. When the officers arrived at the house, defendant was sitting on the porch without a gun. Blair ran into the house, followed by the officers. Defendant then followed the officers into the house.\nThe trial court found defendant guilty of aggravated unlawful use of the .44-caliber weapon. The court denied the State\u2019s motion to revoke defendant\u2019s bond, warning defendant that if he failed to appear for his sentencing hearing, the trial court would sentence him in his absence. The court stated that \u201c[p]eople who don\u2019t show up I usually sentence to the maximum sentence.\u201d The trial court subsequently denied defendant\u2019s motion for a new trial.\nDue to defendant\u2019s failure to appear for a presentencing interview and for sentencing, the sentencing hearing was continued four times. Finally, the court held a sentencing hearing in defendant\u2019s absence. At the hearing, the State relied on the facts adduced at trial and the presentencing investigation report (PSI) in aggravation and requested that the court sentence defendant to 10 years in prison. In mitigation, defense counsel argued that defendant was the father of four children who would be disadvantaged if defendant were to be sentenced to a long prison term, that defendant was employed before being arrested and that the crime was nonviolent.\nIn sentencing the defendant to 14 years in prison, the trial judge considered the facts that were adduced at trial, the PSI, which indicated that defendant had been convicted of possession of a controlled substance in 1993, delivery of a controlled substance in 1993, unlawful use of a weapon in 1995 and misdemeanor battery in 1998, and defendant\u2019s absence from the sentencing hearing. The trial court also considered the need to impose a sentence that would deter others from committing the same crime.\nDefense counsel filed a motion to reconsider defendant\u2019s sentence in which he emphasized the nonviolent nature of defendant\u2019s crime. The trial court denied defendant\u2019s motion on March 7, 2003, stating that the primary factor it considered in sentencing defendant was the need to deter others from committing the same crime. The record is unclear as to when defendant was subsequently arrested pursuant to the warrant issued for his failure to appear*.\nOn appeal, defendant originally contended that the trial court had failed to ensure that the waiver of his right to a jury was knowing and voluntary. In light of the supplemental record filed by the State, defendant now concedes this argument.\nDefendant challenges the constitutionality of the aggravated UUW statute on two grounds. Although defendant did not raise the issue at trial, he may challenge the constitutionality of the UUW statute for the first time on appeal. People v. Pulley, 345 Ill. App. 3d 916, 922 (2004). Because we assume that a statute is constitutional, defendant bears the burden of showing the constitutional violation. People v. Grant, 339 Ill. App. 3d 792, 803 (2003). \u201cOur duty is to construe a statute in a manner that upholds its validity and constitutionality if it can reasonably be done.\u201d People v. McGee, 341 Ill. App. 3d 1029, 1032 (2003).\nDefendant first contends that the aggravated UUW statute deprives him of his constitutional right of due process because, though it requires a defendant to act \u201cknowingly,\u201d it requires no culpable mental state and therefore may punish innocent conduct.\nIn Grant, the defendant raised this exact argument. We noted:\n\u201cWhen legislation is being challenged as failing to comply with substantive due process requirements, as in this case, and that legislation does not involve a fundamental constitutional right, we must determine whether the statute bears a rational relationship to a legitimate state goal.\u201d Grant, 339 Ill. App. 3d at 803.\nThe defendant in Grant contended, as does defendant here, that the aggravated UUW statute is similar to those statutes that were held unconstitutional in People v. Wick, 107 Ill. 2d 62 (1985), People v. Zaremba, 158 Ill. 2d 36 (1994), and People v. Wright, 194 Ill. 2d 1 (2000), because it requires only a \u201cknowing\u201d mental state without requiring a culpable mental state. \u201cIn Grant, this court held that the aggravated UUW statute does, in fact, contain a sufficient mental state, i.e., knowledge.\u201d People v. Washington, 343 Ill. App. 3d 889, 894 (2003). We farther found that the purpose of the statute\n\u201cis to allow the State to seek a harsher penalty for any person in the State of Illinois who does not fall under a specific exemption from carrying a loaded weapon on or about his person or in any vehicle because of the inherent dangers to police officers and the general public, even if the person carrying the weapon has no criminal objective.\u201d Pulley, 345 Ill. App. 3d at 925, citing Grant, 339 Ill. App. 3d at 806.\nThe aggravated UUW statute does not violate a defendant\u2019s due process rights because it is rationally related to this legitimate state purpose. Grant, 339 Ill. App. 3d at 807.\nWe have repeatedly followed our holding in Grant, rejecting contentions that the aggravated UUW statute violates a defendant\u2019s due process rights. See Pulley, 345 Ill. App. 3d 916; Washington, 343 Ill. App. 3d 889; People v. Marin, 342 Ill. App. 3d 716 (2003); McGee, 341 Ill. App. 3d 1029; People v. Spivey, 351 Ill. App. 3d 763 (2004). We continue to adhere to the holding that the aggravated UUW statute is constitutional and similarly reject defendant\u2019s arguments.\nDefendant next contends that the aggravated UUW statute violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, \u00a7 11) when compared to the reckless discharge of a firearm statute (the reckless discharge statute) (720 ILCS 5/24\u2014 1.5 (West 2002)).\nReckless discharge of a firearm is a Class 4 felony. 720 ILCS 5/24\u2014 1.5 (West 2002). Conversely, aggravated UUW is generally a Class 4 felony, a second or subsequent offense is a Class 2 felony and an offense committed by a felon is a Class 2 felony. 720 ILCS 5/24 \u2014 1.6(d) (West 2002).\nUnder the proportionate penalties clause, \u201c[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.\u201d Ill. Const. 1970, art. I, \u00a7 11. There are three instances in which a violation of the proportionate penalties clause may occur:\n\u201cFirst, *** where the punishment for a particular offense is cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community [Citations.] Second, *** where similar offenses are compared and conduct that creates a less serious threat to the public health and safety is punished more harshly. [Citations.] Third, *** where identical offenses are given different sentences.\u201d People v. Davis, 177 Ill. 2d 495, 503-04 (1997).\nHere, defendant has raised the second proportionality challenge. When addressing such a challenge, a court of review employs a two-step inquiry:\n\u201c(1) whether the purposes of the compared offenses are similar such that a comparative analysis is appropriate; and (2) if the purposes are related, whether the offense with the harsher penalty is more serious than the offense with the less severe penalty.\u201d Pulley, 345 Ill. App. 3d at 923.\nWe recently addressed defendant\u2019s argument regarding the reckless discharge statute in Washington, We adhere to our holding in Washington that the reckless discharge statute and the aggravated UUW statute\n\u201chave distinctly different legislative purposes: the aggravated UUW statute to prevent persons from knowingly carrying loaded, concealed, and easily accessible weapons on their persons or in the passenger compartments of their vehicles; the reckless discharge *** statute to prevent the reckless, not knowing or intentional, discharge of a firearm out of a motor vehicle.\u201d Washington, 343 Ill. App. 3d at 898.\nAccordingly, we find, as we did in Washington, that \u201ccomparative proportionality review is inappropriate in this case and we need not address whether the offense with the harsher penalty is more serious than the offense with the less severe penalty.\u201d Washington, 343 Ill. App. 3d at 898.\nFinally, defendant contends that his sentence to 14 years in prison is excessive because, in .imposing the sentence, the trial court weighed too heavily defendant\u2019s absence from the sentencing hearing and did not adequately consider the nonviolent nature of his crime.\nTrial courts are afforded great deference in sentencing. People v. Illgen, 145 Ill. 2d 353, 379 (1991). \u201cWhere the sentence chosen by the trial court is within the statutory range permissible for the pertinent criminal offense *** a reviewing court has the power to disturb the sentence only if the trial court abused its discretion ***.\u201d People v. Jones, 168 Ill. 2d 367, 373-74 (1995). Absent an abuse of discretion, a trial court\u2019s sentence may not be altered on review simply because the reviewing court would have weighed the factors in mitigation and aggravation differently. People v. Cord, 239 Ill. App. 3d 960, 968 (1993). When defense counsel argues mitigating factors at the sentencing hearing, it is presumed that the trial court considers those factors in making its decision absent evidence on the record to the contrary. People v. Whitehead, 171 Ill. App. 3d 900, 908 (1988).\nBecause defendant had previously been convicted of a felony, his conviction under the aggravated UUW statute was a Class 2 felony. 720 ILCS 5/24 \u2014 1.6(d) (West 2002). The statutory sentence for a Class 2 felony is not less than three years and not more than seven years in prison. 730 ILCS 5/5 \u2014 8\u20141(a)(5) (West 2002). A court may impose an extended-term sentence when a defendant, as here, has been convicted of a felony of the same or higher class within 10 years of the crime for which he is being sentenced. 730 ILCS 5/5 \u2014 5\u20143.2(b) (West 2002). The extended term for a Class 2 felony is not less than 7 years and not more than 14 years. 730 ILCS 5/5 \u2014 8\u20142(a)(4) (West 2002).\nIn this case, the parties agree that the sentence imposed is an extended-term sentence within the applicable statutory guidelines. The trial court clearly stated the factors it considered in sentencing defendant to 14 years in prison, including defendant\u2019s past convictions, the necessity of imposing a sentence that would deter others from committing the same crime and defendant\u2019s failure to appear for sentencing. There is no evidence on the record that the trial court failed to consider the mitigating factor of the nonviolent nature of defendant\u2019s crime. We cannot say that the trial court abused its discretion in determining that a sentence of 14 years in prison was appropriate.\nAccordingly, we affirm the judgment of the trial court.\nAffirmed.\nGREIMAN and THEIS, JJ., concur.\nDefendant has withdrawn an issue regarding the jury waiver raised in his initial brief.", "type": "majority", "author": "JUSTICE QUINN" } ], "attorneys": [ "Michael J. Pelletier, Daniel J. Walsh, and Geneva L. Pension, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarh and Michelle Katz, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARCO SOLE, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1-03-1701\nOpinion filed May 26, 2005.\nMichael J. Pelletier, Daniel J. Walsh, and Geneva L. Pension, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarh and Michelle Katz, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0988-01", "first_page_order": 1004, "last_page_order": 1010 }