{ "id": 4282620, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEMETRIUS JOHNS, Defendant-Appellant", "name_abbreviation": "People v. Johns", "decision_date": "2008-11-17", "docket_number": "No. 1-06-1190", "first_page": "8", "last_page": "21", "citations": [ { "type": "official", "cite": "387 Ill. App. 3d 8" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "769 N.E.2d 928", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "199 Ill. 2d 392", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58927 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/ill-2d/199/0392-01" ] }, { "cite": "824 N.E.2d 1162", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "356 Ill. App. 3d 117", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3750439 ], "year": 2005, "pin_cites": [ { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/356/0117-01" ] }, { "cite": "734 N.E.2d 973", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "no evidence in the record as to any of the necessary elements of self-defense" } ], "opinion_index": 0 }, { "cite": "315 Ill. App. 3d 1017", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980699 ], "year": 2000, "pin_cites": [ { "page": "1025", "parenthetical": "no evidence in the record as to any of the necessary elements of self-defense" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/315/1017-01" ] }, { "cite": "314 N.E.2d 647", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "pin_cites": [ { "parenthetical": "if evidence against affirmative defense is clear and convincing then, as a matter of law, jury need not be instructed on affirmative defense" } ], "opinion_index": 0 }, { "cite": "20 Ill. App. 3d 1024", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5345783 ], "year": 1974, "pin_cites": [ { "page": "1027", "parenthetical": "if evidence against affirmative defense is clear and convincing then, as a matter of law, jury need not be instructed on affirmative defense" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/20/1024-01" ] }, { "cite": "586 N.E.2d 506", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "no evidence in record to entitle the defendant to instruct jury on withdrawal exception to accountability theory" } ], "opinion_index": 0 }, { "cite": "224 Ill. App. 3d 118", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5252139 ], "year": 1991, "pin_cites": [ { "page": "125", "parenthetical": "no evidence in record to entitle the defendant to instruct jury on withdrawal exception to accountability theory" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/224/0118-01" ] }, { "cite": "534 N.E.2d 1043", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "no error in refusal to instruct on defense of compulsion \"as to those offenses that the defendant did not act under compulsion\"" } ], "opinion_index": 0 }, { "cite": "725 N.E.2d 1258", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "\"presence at the commission of the crime, even when joined with flight from the crime or knowledge of its commission, is not sufficient to establish accountability\"" } ], "opinion_index": 0 }, { "cite": "189 Ill. 2d 254", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224780 ], "year": 2000, "pin_cites": [ { "page": "268", "parenthetical": "\"presence at the commission of the crime, even when joined with flight from the crime or knowledge of its commission, is not sufficient to establish accountability\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0254-01" ] }, { "cite": "332 N.E.2d 194", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "30 Ill. App. 3d 118", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2622067 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/0118-01" ] }, { "cite": "179 Ill. App. 3d 624", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2606728 ], "weight": 6, "year": 1989, "pin_cites": [ { "page": "644" }, { "page": "645" }, { "page": "644", "parenthetical": "no error in refusal to instruct on defense of compulsion \"as to those offenses that the defendant did not act under compulsion\"" }, { "page": "645-46" }, { "page": "644", "parenthetical": "no reversible error in refusing the defendant's instructions on the affirmative defense of compulsion where the defendant testified he was unaware the offenses were going to take place" }, { "page": "645-46" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/179/0624-01" ] }, { "cite": "320 N.E.2d 321", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "pin_cites": [ { "parenthetical": "quantum of evidence necessary to raise an affirmative defense is sufficient evidence to raise an issue of fact for the jury creating a reasonable doubt as to the defendant's guilt" } ], "opinion_index": 0 }, { "cite": "59 Ill. 2d 328", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2957947 ], "year": 1974, "pin_cites": [ { "parenthetical": "quantum of evidence necessary to raise an affirmative defense is sufficient evidence to raise an issue of fact for the jury creating a reasonable doubt as to the defendant's guilt" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0328-01" ] }, { "cite": "854 N.E.2d 255", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "pin_cites": [ { "parenthetical": "\"even slight evidence\" is sufficient to mandate instructing on affirmative defense" } ], "opinion_index": 0 }, { "cite": "367 Ill. App. 3d 176", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4265575 ], "year": 2006, "pin_cites": [ { "page": "179", "parenthetical": "\"even slight evidence\" is sufficient to mandate instructing on affirmative defense" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/367/0176-01" ] }, { "cite": "331 N.E.2d 573", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "pin_cites": [ { "parenthetical": "evidence was sufficient to require instruction on compulsion, which the State must disprove beyond a reasonable doubt" } ], "opinion_index": 0 }, { "cite": "29 Ill. App. 3d 917", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2499036 ], "year": 1975, "pin_cites": [ { "parenthetical": "evidence was sufficient to require instruction on compulsion, which the State must disprove beyond a reasonable doubt" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/29/0917-01" ] }, { "cite": "529 N.E.2d 506", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "124 Ill. 2d 166", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3217740 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "173" }, { "page": "174" }, { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0166-01" ] }, { "cite": "869 N.E.2d 1115", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "opinion_index": 0 }, { "cite": "374 Ill. App. 3d 231", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 7327780 ], "weight": 10, "year": 2007, "pin_cites": [ { "page": "268" }, { "page": "267" }, { "page": "232" }, { "page": "235" }, { "page": "235" }, { "page": "235" }, { "page": "235" }, { "page": "236" }, { "page": "236" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/374/0231-01" ] }, { "cite": "871 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2007, "opinion_index": 0 }, { "cite": "226 Ill. 2d 63", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3610746 ], "weight": 7, "year": 2007, "pin_cites": [ { "page": "86-87" }, { "page": "86-87" }, { "page": "86-87" }, { "page": "88" }, { "page": "88-89" }, { "page": "89" }, { "page": "89" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/226/0063-01" ] } ], "analysis": { "cardinality": 1057, "char_count": 32424, "ocr_confidence": 0.757, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.39348452361508335 }, "sha256": "05f25a51fa4eb295122be85b4e91ff9338581761e6bf21c0331cfe975d55a0bf", "simhash": "1:3a2e766f324b00b7", "word_count": 5481 }, "last_updated": "2023-07-14T22:05:00.567552+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. DEMETRIUS JOHNS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GARCIA\ndelivered the opinion of the court:\nFollowing a jury trial, Demetrius Johns was found accountable for armed robbery but not for murder. He was given an 11-year sentence with an \u201cadd-on\u201d penalty of 15 years because the armed robbery was committed with a handgun. On appeal, the defendant contends (1) his trial counsel was ineffective for failing to assert a compulsion defense, (2) the add-on portion of his sentence violates the \u201cprohibition against disproportionate penalties,\u201d and (3) his nonenhanced sentence of 11 years is an abuse of discretion because a principal codefendant was sentenced to six years for armed robbery.\nWe affirm: a compulsion defense was unavailable to the defendant as a matter of law. We therefore reject his ineffective assistance claim. We agree, however, that imposing an add-on penalty of 15 years violated the proportionate penalties clause of the Illinois Constitution on the authority of People v. Hauschild, 226 Ill. 2d 63, 86-87, 871 N.E.2d 1 (2007). Because we vacate his sentence in its entirety and remand for a new sentencing hearing, we do not reach the third issue.\nBACKGROUND\nThe victim, Eugene Williams, was killed on May 5, 2002, at the Knights\u2019 Inn in Harvey. The defendant was arrested nine days later. After his arrest, the defendant made statements implicating himself, Larry Melvin, and Michael Powe in the victim\u2019s death. The defendant was charged in a 10-count indictment under an accountability theory. The case proceeded to trial in March 2006 before a jury on three counts of murder (intent to kill, strong probability of death and felony murder) and one count of armed robbery.\nAt trial, the State presented the testimony of Dolores Bibbs, a housekeeper at the Knights\u2019 Inn. On May 5, 2002, Bibbs went to the victim\u2019s room to get her boyfriend. When she entered the room, her boyfriend was smoking and drinking with the victim, the defendant, Powe, and Melvin. Bibbs and her boyfriend left the room and Bibbs began her housekeeping duties. While she was cleaning, another housekeeper screamed for Bibbs to come to the victim\u2019s room. When Bibbs got to the victim\u2019s room, the victim was kneeling in the doorway covered in blood. Bibbs stayed with the victim until the paramedics arrived.\nQuiara Campbell testified she was at the Knights\u2019 Inn watching television with her sister\u2019s children when she heard a door slam. She got up to look out the window and saw three men running out of the room next door. Campbell recognized the defendant, Melvin, and Powe as the three men, all of whom had blood on their white T-shirts. The men ran down a flight of stairs to the parking lot and drove away in a car driven by the defendant. Campbell returned to watching television. After a few minutes, there was a knock on the door. Campbell\u2019s nephew opened the door to reveal the victim, who was covered in blood. Campbell jumped up, closed the door, and called the police.\nDetective William Martin of the Harvey police department first spoke to the defendant on the evening of May 14, 2002. After indicating he understood his Miranda rights, the defendant agreed to speak with Martin. Detective Boone joined the interview. The defendant initially told Martin he knew nothing about the victim\u2019s death. After Martin shared information gathered during the investigation, the defendant admitted he was at the Knights\u2019 Inn when the victim was killed.\nMartin asked the defendant to provide a written statement detailing his version of what occurred, which the defendant agreed to do. After reviewing the handwritten statement with the defendant, Martin had the statement typed and he reviewed the typed statement with the defendant. Then Martin, along with Boone, and the defendant signed each page of the typed statement.\nDuring cross-examination, Martin testified that the defendant claimed he \u201cwasn\u2019t with the plan to kill\u201d the victim, never touched the victim, and never had a gun.\nAfter Martin\u2019s testimony, the defendant\u2019s typed statement was read into the record. In the statement, the defendant admitted he was driving his car on May 5, 2002, when he saw Melvin and Powe walking and picked them up. The defendant drove Melvin and Powe to another location \u201cso [Melvin] could serve a customer.\u201d When the three men were back in the car, Melvin told the defendant about a \u201click,\u201d meaning a robbery, he wanted to do at the Knights\u2019 Inn.\nMelvin told the defendant that he and Powe had planned to commit the robbery the previous night, but could not because they did not have a car. Melvin, who had robbed the victim before, described the victim as \u201csweet,\u201d meaning he would not fight back during the robbery. Melvin indicated he planned to kill the victim after the robbery. The defendant said he was not going to the Knights\u2019 Inn if the victim was going to be killed and asked why the victim had to be killed if he was sweet. Melvin agreed not to kill the victim.\nWhen the three men arrived at the Knights\u2019 Inn, they saw people coming out of the victim\u2019s room. The defendant tried to signal to Melvin and Powe to call off the robbery because too many people were around.\nThe defendant, Melvin, and Powe proceeded to the victim\u2019s room. After awhile, Powe went to the bathroom. When he came out of the bathroom, he had a gun. Powe pointed the gun at the victim and told him to get on the ground. Once the victim was on the floor, Melvin used duct tape to bind the victim\u2019s legs and hands. Powe demanded the victim reveal where his money and drugs were located. The victim complied.\nAfter Powe and Melvin obtained the victim\u2019s money and drugs, Melvin began dragging the victim toward the bathroom. At this point, the defendant said he was leaving. Powe told the defendant to stay. Melvin took a razor off the bureau, handed it to Powe, and told Powe to cut the victim\u2019s throat. Powe handed the razor back, telling Melvin to do it. Once Melvin and the victim were in the bathroom, Powe paced between the two rooms.\nThe defendant heard a gunshot but could not see who fired the gun from where he was seated. After the gunshot, the defendant got up and ran out of the room. Melvin and Powe followed. The three men got into the defendant\u2019s car and the defendant drove away. The defendant drove Melvin and Powe to several locations before dropping them off.\nAssistant State\u2019s Attorney Shawn Concannon testified she met the defendant at the Harvey police station. She introduced herself as an attorney, explained she was not the defendant\u2019s attorney, and read the defendant his Miranda rights. Concannon testified the defendant said he understood his rights and agreed to speak with her about the victim\u2019s death. After their conversation, Concannon offered the defendant several ways to memorialize his statement. The defendant chose to make a videotaped statement.\nAfter Concannon\u2019s testimony, the defendant\u2019s videotaped statement, which was substantially similar to his written statement, was played in open court. The State rested.\nThe trial court denied the defendant\u2019s motion for a directed verdict.\nThe defendant took the stand. The defendant testified that when he learned that Melvin wanted to kill the victim after the robbery, the defendant said he \u201cwasn\u2019t with that.\u201d The defendant told Melvin \u201c \u2018if you steady talking about killing this guy, I\u2019m not with it.\u2019 \u201d Based on Melvin\u2019s response that he would not kill the victim, the defendant testified he believed the robbery was called off as well and that the men were going to the Knights\u2019 Inn to watch a basketball game on television.\nWhen the three men arrived at the Knights\u2019 Inn, the victim and several other people were on a balcony overlooking the parking lot. The defendant looked at Melvin and Powe and \u201c[it] was basically like, \u2018Man, I\u2019m not in this. I ain\u2019t with this. Look at these people.\u2019 \u201d Powe nodded his head, which the defendant took as agreeing with him. Melvin did not respond.\nThe defendant, Powe, and Melvin proceeded to the victim\u2019s room. The defendant sat in a chair against the back wall of the room. After 45 minutes of watching television, Powe went to the bathroom. He came out with a gun. The defendant stood up and asked Powe twice, \u201cMan, what is you doing?\u201d Powe pointed the gun at him and told him to shut up and sit down. The defendant complied, because Powe scared him with the gun.\nWhile seated, the defendant watched as Melvin removed cash from the victim\u2019s pocket after Powe asked the victim where the money was. While he remained seated, the defendant saw Powe remove drugs from a drawer. Melvin then bound the victim with duct tape, took a razor off the television stand, and dragged the victim into the bathroom.\nOnce the victim was in the bathroom, the defendant stood up and said he was leaving because he \u201cwasn\u2019t on this, and they were doing it anyway.\u201d Powe again pointed the gun at the defendant and told him to sit down and shut up because he was driving. The defendant believed that if he tried to leave the victim\u2019s room, Melvin and Powe might \u201cshoot and kill\u201d him.\nWhen the defendant heard a gunshot, he got up and ran out of the room. Powe and Melvin followed. The three men got into the defendant\u2019s car and the defendant drove away. The victim had been shot and had his throat slit.\nAfter leaving the Knights\u2019 Inn, the defendant drove Melvin and Powe to several locations before dropping them off at Powe\u2019s mother\u2019s home. The defense rested after the defendant\u2019s testimony.\nIn her closing statement, defense counsel argued that the defendant should not be held accountable for Melvin and Powe\u2019s actions because the defendant terminated his role in the robbery when he arrived at the Knights\u2019 Inn and signaled to Melvin and Powe that the robbery could not go forward with so many people around. The jury was instructed on the defendant\u2019s claim of withdrawal. Illinois Pattern Jury Instructions, Criminal, No. 5.04 (4th ed. 2000) (IPI Criminal 4th No. 5.04).\nThe jury found the defendant not guilty of murder but guilty of armed robbery.\nAfter denying the defendant\u2019s motion for a new trial, the trial court sentenced the defendant to a total of 26 years, 15 of which constituted the add-on penalty based on the use of a firearm. The trial court denied the defendant\u2019s motion to reconsider the sentence. This timely appeal follows.\nANALYSIS\nThe defendant raises three issues on appeal. First, he contends his trial counsel was ineffective because she failed to raise the affirmative defense of compulsion when evidence was presented at trial that \u201cthe defendant was forced at gunpoint to remain with [Melvin and Powe] as they committed an armed robbery.\u201d Next, the defendant claims his enhanced sentence for armed robbery based on the use of a firearm during the offense violates the Illinois Constitution\u2019s prohibition against disproportionate penalties because armed robbery committed with a firearm has a more severe penalty than armed violence predicated on a robbery although the two offenses have the same statutory elements. Finally, the defendant contends the trial court abused its discretion when it sentenced him to 11 years for armed robbery, without the add-on penalty, when Melvin, whom the defendant contends had a direct role, was given six years for the same offense.\nI. Ineffective Assistance of Counsel\nAccording to the defendant\u2019s main brief, the defendant\u2019s ineffective assistance of counsel claim is founded on his testimony \u201cthat he tried to stop codefendant Michael Powe from robbing Eugene Williams and when [the defendant] tried to leave the scene, Michael Powe, while holding a gun, told [the defendant] to \u2018shut up and sit down\u2019 because he [the defendant] was driving and that [the defendant] felt too scared to leave.\u201d This evidence, according to the defendant, was sufficient to \u201craise a compulsion defense and [defense counsel should have requested] that the jury be instructed accordingly.\u201d If in fact the evidence at trial was sufficient to raise the affirmative defense of compulsion, then trial counsel\u2019s failure to recognize the availability of that defense would constitute ineffective assistance of counsel. See People v. Sims, 374 Ill. App. 3d 231, 869 N.E.2d 1115 (2007).\nWhere the State\u2019s evidence does not raise the issue of an affirmative defense, the defendant need only \u201cpresent some evidence thereon\u201d to enlarge the State\u2019s burden of proving beyond a reasonable doubt the offense charged to overcoming the evidence supporting the elements of the affirmative defense as well. 720 ILCS 5/3 \u2014 2 (West 2002); People v. Pegram, 124 Ill. 2d 166, 173, 529 N.E.2d 506 (1988), quoting Ill. Rev. Stat. 1983, ch. 38, pars. 3 \u2014 2(a),(b) (testimony elicited from the defendant \u201ccertainly satisfied the requirement that a defendant, to raise an affirmative defense, \u2018must present some evidence thereon\u2019 \u201d); People v. Adcock, 29 Ill. App. 3d 917, 331 N.E.2d 573 (1975) (evidence was sufficient to require instruction on compulsion, which the State must disprove beyond a reasonable doubt).\nThus, the question before us is whether the defendant presented some evidence to support the defense of compulsion. See People v. Kucavik, 367 Ill. App. 3d 176, 179, 854 N.E.2d 255 (2006) (\u201ceven slight evidence\u201d is sufficient to mandate instructing on affirmative defense). In the context of this case, we examine the defendant\u2019s testimony as to his involvement in the armed robbery to determine whether it \u201craise[s] an issue of fact for the jury creating a reasonable doubt as to defendant\u2019s guilt.\u201d Sims, 374 Ill. App. 3d at 268, citing People v. Redmond, 59 Ill. 2d 328, 320 N.E.2d 321 (1974) (quantum of evidence necessary to raise an affirmative defense is sufficient evidence to raise an issue of fact for the jury creating a reasonable doubt as to the defendant\u2019s guilt).\nOn the record before us, we conclude the affirmative defense of compulsion is foreclosed to the defendant for three reasons. First, our examination of the record finds it devoid of any evidence that the defendant performed any conduct under compulsion that amounted to armed robbery. Second, the defendant\u2019s testimony at trial amounts to no more than a claim that he was unaware that the robbery would take place. Finally, the defendant had ample opportunity to withdraw from the criminal enterprise to commit robbery but he failed to withdraw.\nA. No Evidence of Compelled Conduct\nThe defendant claims that his trial testimony that he tried to stop the commission of the armed robbery, for which he was found accountable, should have alerted defense counsel of the availability of the defense of compulsion. We take the defendant\u2019s claim that he attempted to \u201cstop\u201d the armed robbery to be founded on his testimony that when Powe exited the bathroom with a gun in hand and announced the robbery, the defendant stood up and stated twice, \u201cMan, what is you doing?\u201d According to the defendant, Powe then pointed the gun at him and told him to shut up and sit down, and he complied.\nWe find the defendant\u2019s claim that he attempted to stop the armed robbery to be wholly at odds with his claim that it was this same conduct that formed his accountability for armed robbery. We fail to understand how conduct aimed at stopping the armed robbery can also serve as conduct amounting to the commission of armed robbery. The defendant\u2019s generous interpretation of his trial testimony that he attempted to stop the armed robbery but was foiled by Powe is not \u201csome evidence\u201d of a plausible compulsion defense. While it is true that the defendant testified that he remained seated during the armed robbery \u201cunder the compulsion of threat or menace of imminent infliction of death or great bodily harm\u201d (720 ILCS 5/7 \u2014 11 (West 2002)), this is not the conduct that formed the basis for his armed robbery conviction. \u201cThe defense of compulsion is a defense only with respect to the conduct demanded by the compeller.\u201d People v. Scherzer, 179 Ill. App. 3d 624, 644 (1989), citing People v. Rodriguez, 30 Ill. App. 3d 118, 332 N.E.2d 194 (1975).\nClearly, if the jury believed the defendant had attempted to stop the armed robbery but was foiled by Powe and his handgun, the jury should have found him not guilty of armed robbery, as his mere presence was insufficient to hold him accountable for the actions of Powe and Melvin. See People v. Perez, 189 Ill. 2d 254, 268, 725 N.E.2d 1258 (2000) (\u201cpresence at the commission of the crime, even when joined with flight from the crime or knowledge of its commission, is not sufficient to establish accountability\u201d). Yet, the defendant makes no argument on appeal that the jury issued its verdict against the evidence presented. The videotape and the defendant\u2019s written statement introduced at trial explain his failure to so argue and provide the basis for the jury\u2019s verdict. Scherzer, 179 Ill. App. 3d at 645.\nThe defendant was found accountable not based on his failed effort to \u201cstop\u201d the armed robbery or his decision to follow Powe\u2019s command that he shut up and remain seated. Rather, the defendant was found accountable based on the aid he provided before, during and after the three arrived at the Knights\u2019 Inn with the shared intent to commit a robbery. Both the videotape and his written statement made clear that the defendant joined in the criminal purpose of going to Knights\u2019 Inn to commit a \u201click.\u201d The videotape and written statement made clear that the defendant drove to the Knights\u2019 Inn with Powe and Melvin with the intention of committing a robbery, proceeded with Powe and Melvin to the victim\u2019s room, remained with them while they searched and recovered the victim\u2019s drugs and money, only announced he was leaving after the victim was dragged to the bathroom and a shot was fired, and drove Powe and Melvin away from the scene of the murder. The evidence is overwhelming that the defendant aided Powe and Melvin in the planning and commission of the offense. The jury\u2019s verdict is confirmed by the defendant\u2019s own testimony that Melvin and Powe were unable to commit the robbery the day before because they lacked transportation. The defendant provided the missing transportation. There is no evidence that he committed any of the acts in furtherance of the criminal enterprise under a threat or menace of imminent death of great bodily harm. See People v. Scherzer, 179 Ill. App. 3d 624, 644, 534 N.E.2d 1043 (1989) (no error in refusal to instruct on defense of compulsion \u201cas to those offenses that the defendant did not act under compulsion\u201d).\nThe defendant\u2019s testimony that he was compelled to shut up and sit down was not \u201csome evidence\u201d that he committed armed robbery under compulsion. The affirmative defense of compulsion was foreclosed to the defendant because the conduct that he was compelled to perform, according to his testimony, can in no way be connected to the commission of the offense of armed robbery. Scherzer, 179 Ill. App. 3d at 645-46. There is no evidence that the defendant committed armed robbery under the threat or menace of imminent death or great bodily harm. In fact, based on the defendant\u2019s testimony, which is the only evidence offered in support of a compulsion defense, he did not perform any conduct under compulsion other than to remain seated while the armed robbery took place in front of him.\nB. Unaware of Impending Armed Robbery\nThe evidence is unchallenged that the defendant played no direct role in the removal of the cash from the victim\u2019s pockets or the drugs from the drawers. He testified that he believed the assurances Melvin gave while en route to the Knights\u2019 Inn that he would not kill the victim also meant the robbery was off as well. The defendant also testified that if he was mistaken that the robbery was not called off in the car, the robbery was certainly off when he remarked to Powe and Melvin upon arriving at the Knights\u2019 Inn that there were too many individuals around.\nHowever, once again the defendant\u2019s claims are at odds with each other. If the robbery was called off at the same time Melvin gave assurances that the killing would not go forward, there would have been no reason for the defendant to express concern upon arriving at the Knights\u2019 Inn over the number of persons around if the three were there simply to watch television with the victim, as the defendant contended at trial. While we understand the defendant to say, in the end, Melvin lied to him about both the robbery and the killing, the jury had good reason to reject the defendant\u2019s claim that he believed that the robbery was off either before or upon arriving at the Knights\u2019 Inn. The incriminating evidence in the videotape and the written statement gave the jury ample evidence to conclude that at the time the three defendants arrived at the Knights\u2019 Inn, the plan to commit the robbery was very much in play. There was ample evidence that the robbery would go forward if the opportunity arose. When the opportunity to commit the robbery presented itself with the three defendants being alone with the victim, Powe acted. While the defendant, according to his trial testimony, sat through the commission of the armed robbery, based on the evidence, the jury had ample evidence to find the defendant accountable for that offense.\nA generous reading of the defendant\u2019s testimony is that at most he was unaware that the robbery would take place. This is precisely the import of the defendant\u2019s claim when he points to his testimony that he believed the robbery had been called off, first in the car and then at the Knights\u2019 Inn, that he twice questioned Powe what he was doing when he exited the bathroom with a gun in hand, and that he played no role in the removal of the cash from the victim\u2019s pockets or the drugs from the drawers. That the defendant was unaware that the robbery would take place forecloses the defense of compulsion. Scherzer, 179 Ill. App. 3d at 644 (no reversible error in refusing the defendant\u2019s instructions on the affirmative defense of compulsion where the defendant testified he was unaware the offenses were going to take place).\nC. No Withdrawal\nIn the nature of an alternative argument, the defendant contends he had a change of mind, amounting to -withdrawal, regarding the robbery when he observed too many individuals around upon arriving at the Knights\u2019 Inn. Perhaps the defendant did have a change of mind, but he did not withdraw at that point. Nor did Powe and Melvin share, as it turns out, the defendant\u2019s claimed change of mind.\nThe defendant went along with Powe and Melvin to the victim\u2019s room. The only explanation for going to the victim\u2019s room offered in the videotape and written statement was to commit a robbery. In proceeding to the victim\u2019s room with Powe and Melvin, we find no evidence that the defendant withdrew from the original intention to commit a robbery that first brought the three defendants to the Knights\u2019 Inn. See People v. Rucheinski, 224 Ill. App. 3d 118, 125, 586 N.E.2d 506 (1991) (no evidence in record to entitle the defendant to instruct jury on withdrawal exception to accountability theory).\nThus, even if we were to find \u201csome evidence\u201d to support the defendant\u2019s claim of compulsion, under the facts of this case, a compulsion defense remained unavailable to the defendant. A compulsion defense is not available \u201cif the defendant had ample opportunities to withdraw from the criminal enterprise but failed to do so.\u201d Sims, 374 Ill. App. 3d at 267, citing Scherzer, 179 Ill. App. 3d at 645-46. The defendant\u2019s claim that he believed the robbery was called off at the time they arrived at Knights\u2019 Inn was based on too many witnesses being present, not a withdrawal from the criminal enterprise the three had embarked upon. While the defendant understood Powe\u2019s nod to mean that he agreed that the robbery was off, he admitted he got no such assurances from Melvin, and it was Melvin that brought up the \u201click\u201d and his intention of killing the victim after the robbery. Of course, the nod from Powe turned out to mean nothing more than a need to wait for the victim to be alone with the three defendants to commit the robbery. Sometime after Dolores Bibbs and her boyfriend left the victim in the company of the defendant, Powe and Melvin, Powe acted on the original plan to rob the victim. The defendant had ample opportunity to withdraw from the planned robbery but failed to do so. More to the point, the jury was instructed on withdrawal and it was rejected.\nSims, the case the defendant heavily relies upon for his claim that his testimony was sufficient to raise a compulsion defense, is distinguishable on its facts. In Sims, we found ineffective assistance of counsel based on counsel\u2019s failure to raise the affirmative defense of compulsion and request the jury be instructed accordingly in light of the evidence adduced at trial. Sims was found accountable for both the murder and the armed robbery committed at a restaurant. Sims, 374 Ill. App. 3d at 232. Sims was a 15-year-old whose role in the robbery was to serve as a lookout. A codefendant, who pled guilty and was a witness for the State, testified on cross-examination that before all those involved in the robbery got into the car to drive to the restaurant, the \u201cdefendant stated that he did not want to take part in the robbery.\u201d Sims, 374 Ill. App. 3d at 235. The codefendant testified that the ringleader, with a gun in hand, \u201ctold defendant that \u2018he was there when it started, he got to be there when it finished.\u2019 \u201d Sims, 374 Ill. App. 3d at 235. After this testimony was elicited, the trial court called a recess to inquire of defense counsel whether he \u201cwas attempting to raise an affirmative defense of compulsion without having pled it.\u201d Sims, 374 Ill. App. 3d at 235. Defense counsel conceded that he made a \u201c \u2018mistake by not filing or asking to file a compulsion defense.\u2019 \u201d Sims, 374 Ill. App. 3d at 235. When testimony resumed, the codefendant testified that none of the participants ever saw Sims carrying out his role of being a lookout. Sims, 374 Ill. App. 3d at 236. The defendant was arrested near the robbery site, about 30 to 40 feet away. Sims, 374 Ill. App. 3d at 236. The jury was never instructed on a compulsion defense. No testimony similar to that presented in Sims was ever elicited in this case.\nThe other case cited by the defendant in support of his claim that defense counsel should have raised a compulsion defense is also distinguishable on its facts. See People v. Pegram, 124 Ill. 2d 166, 174, 529 N.E.2d 506 (1988). In Pegram, the supreme court concluded that the defendant\u2019s testimony that he was forced at gunpoint to lead the robbers to the victim, forced to place the victim in a locked room, lie on the floor and lead them to the victim\u2019s car, \u201ccertainly satisfied the requirement that a defendant, to raise an affirmative defense, \u2018must present some evidence thereon.\u2019 \u201d Pegram, 124 Ill. 2d at 173, quoting 720 ILCS 5/3 \u2014 2(a) (West 2002). No such force was ever exerted against the defendant here.\nD. Trial Counsel Not Ineffective\nWe find the record devoid of any evidence to support the defendant\u2019s claim that he aided and abetted the commission of armed robbery under compulsion. We find the defendant\u2019s testimony as to his involvement in the armed robbery amounts to no more than he was unaware that the armed robbery would be committed. The defendant\u2019s testimony fails to raise an issue of fact for the jury creating a reasonable doubt as to the defendant\u2019s guilt. In any event, the defendant was presented with ample opportunity to withdraw from the plan to commit the robbery but he failed to do so. The evidence against compulsion was so clear and convincing that as a matter of law we conclude that there was no compulsion based on the defendant\u2019s testimony. See People v. Carpentier, 20 Ill. App. 3d 1024, 1027, 314 N.E.2d 647 (1974) (if evidence against affirmative defense is clear and convincing then, as a matter of law, jury need not be instructed on affirmative defense); People v. Dunlap, 315 Ill. App. 3d 1017, 1025, 734 N.E.2d 973 (2000) (no evidence in the record as to any of the necessary elements of self-defense). Consequently, the record is barren of any evidence that might call into question defense counsel\u2019s failure to assert a compulsion defense, which in turn means there is no evidentiary support for his claim of ineffective assistance of counsel. See People v. Moore, 356 Ill. App. 3d 117, 121, 824 N.E.2d 1162 (2005). On the contrary, the result counsel achieved for the defendant supports that she was very effective.\nII. The Defendant\u2019s Enhanced Sentence\nThe defendant contends his sentence with an add-on penalty violates the proportionate penalties clause of the Illinois Constitution because armed robbery with a firearm and armed violence predicated on robbery have identical statutory elements, yet armed robbery with a firearm is punished more severely. As controlling authority, the defendant cites People v. Hauschild, 226 Ill. 2d 63, 86-87, 871 N.E.2d 1 (2007). The defendant argues that under the authority of Hauschild, the add-on portion of 15 years of his 26-year sentence must be vacated, leaving him with an 11-year sentence.\nThe State agrees that Hauschild is controlling. However, the State contends Hauschild requires this court to vacate the defendant\u2019s sentence in totality and remand the case to the trial court for a new sentencing hearing.\nIn Hauschild, our supreme court determined that under the identical elements test, the \u201csentence for armed robbery while armed with a firearm (720 ILCS 5/18 \u2014 2(b) (West 2000)) violates the proportionate penalties clause because the penalty for that offense is more severe than the penalty for the identical offense of armed violence predicated on robbery with a category I or category II weapon (720 ILCS 5/33A\u2014 3(a), (a \u2014 5) (West 2000)).\u201d Hauschild, 226 Ill. 2d at 86-87. In Hauschild, the defendant was not given the corresponding \u201c cadd-on penalty\u2019 of 15 years\u201d for armed robbery because the sentence was imposed \u201cwhile [People v. Walden, 199 Ill. 2d 392, 769 N.E.2d 928 (2002),] was still good law, invalidating the enhanced penalty for armed robbery while armed with a firearm.\u201d Hauschild, 226 Ill. 2d at 88. The supreme court in Hauschild established a bright line that \u201cwhen an amended sentencing statute has been found to violate the proportionate penalties clause, the proper remedy is to remand for resentencing in accordance with the statute as it existed prior to the amendment.\u201d Hauschild, 226 Ill. 2d at 88-89. A remand was ordered even though the 12-year sentence imposed was a proper one. Hauschild, 226 Ill. 2d at 89.\nThus, we vacate the defendant\u2019s sentence for armed robbery and remand this matter to the trial court for resentencing, \u201cwithin the range for armed robbery as it existed prior to being amended by Public Act 91 \u2014 404, eff. January 1, 2000.\u201d Hauschild, 226 Ill. 2d at 89.\nIII. The Defendant\u2019s Sentence\nIn light of our remand, we do not address the defendant\u2019s final contention that the trial court abused its discretion when it imposed a sentence of 11 years for the nonenhanced portion of the defendant\u2019s sentence when Melvin was given a sentence of six years for the same offense.\nCONCLUSION\nFor the reasons stated above, we affirm the defendant\u2019s conviction, vacate the defendant\u2019s sentence, and remand this case to the circuit court for resentencing.\nAffirmed in part and vacated in part; cause remanded.\nR. GORDON, EJ., and HALL, J., concur.\nSometimes spelled \u201cPoe\u201d in the trial transcripts.\nConsistent with the July\u2019s finding of not guilty of murder, the defendant also made clear in the videotape and written statement that he would not take Powe and Melvin to the Knights\u2019 Inn if, along with the robbery, Melvin intended to kill the victim.\nIn fact, on the record before us, it appears the defendant and Melvin received identical aggregate sentences of 26 years. Melvin was sentenced to 20 years for murder, to be followed by 6 years for armed robbery.", "type": "majority", "author": "JUSTICE GARCIA" } ], "attorneys": [ "Michael J. Pelletier and Tiffany Green, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Manuel Magence, and Sari London, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEMETRIUS JOHNS, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1\u201406\u20141190\nOpinion filed November 17, 2008.\nRehearing denied December 18, 2008.\nMichael J. Pelletier and Tiffany Green, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Manuel Magence, and Sari London, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0008-01", "first_page_order": 24, "last_page_order": 37 }