Does Enhancement of Sentence for Armed Robbery Violate the Proportional-Penalties Clause ?

In People v. Hauschild, 226 Ill. 2d 63, 871 N.E.2d 1, 312 Ill. Dec. 601 (2007), our supreme court revisited the proportionate-penalties issue raised by Public Act 91-404. There, the trial court refused to enhance the defendant's armed-robbery sentence on the grounds it violated the proportionate-penalties clause. Hauschild, 226 Ill. 2d at 69, 871 N.E.2d at 4-5. Our supreme court reviewed defendant's conviction for armed robbery in light of the "lesser offense" of armed violence predicated on robbery because the evidence would have supported that conviction. Hauschild, 226 Ill. 2d at 88, 871 N.E.2d at 15. The court determined a charge of armed violence predicated on robbery had the same elements as a charge of armed robbery while armed with a firearm, but the offenses carried different penalties. Hauschild, 226 Ill. 2d at 85-86, 871 N.E.2d at 13-14. In accordance with Lewis, the court held when an amended statute violates the proportionate-penalties clause, the reviewing court should remand for resentencing under the statute as it existed before the amendment. Hauschild, 226 Ill. 2d at 88-89, 871 N.E.2d at 15. The Code defines armed robbery as the taking of property from the person or presence of another by the use of force or the threat of imminent force while armed with a firearm. 720 ILCS 5/18-1(a), 18-2(a)(2) (West 2006). Armed violence predicated on robbery is the offense of robbery (720 ILCS 5/18-1(a) (West 2006)) while armed with a category I weapon. 720 ILCS 5/33A-1(c), 33A-2(a) (West 2006). As the elements of the two offenses are identical, the proportionate-penalties clause applies and their sentences should be identical as well. Hauschild, 226 Ill. 2d at 86, 871 N.E.2d at 14. However, armed robbery with a firearm, with the 15-year enhancement, carries a 21- to 45-year sentence while the sentencing range for armed violence is 15 to 30 years. Hauschild, 226 Ill. 2d at 86, 871 N.E.2d at 14. Because the penalty for armed robbery with a firearm is more severe than the penalty for armed violence, the 15-year enhancement for armed robbery created by Public Act 91-404 violates the proportionate-penalties clause. Hauschild, 226 Ill. 2d at 88, 871 N.E.2d at 15.