People v. Johns ( 2008 )


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  •                                                FIRST DIVISION
    November 17, 2008
    No. 1-06-1190
    THE PEOPLE OF THE STATE OF ILLINOIS,      )    Appeal from the
    )    Circuit Court of
    Plaintiff-Appellee,             )    Cook County.
    )
    v.                                   )    No. 02   CR 31770
    )
    DEMETRIUS JOHNS,                          )    The Honorable
    )    Reginald Baker,
    Defendant-Appellant.            )    Judge Presiding.
    JUSTICE GARCIA delivered the opinion of the court.
    Following a jury trial, Demetrius Johns was found
    accountable for armed robbery but not for murder.    He was given
    an 11-year sentence with an "add-on" 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 "prohibition against disproportionate
    penalties," 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.
    We 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
    1-06-1190
    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.
    BACKGROUND
    The victim, Eugene Williams, was killed on May 5, 2002, at
    the Knights' Inn in Harvey.    The defendant was arrested nine days
    later.    After his arrest, the defendant made statements
    implicating himself, Larry Melvin, and Michael Powe1 in the
    victim's 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.
    At trial, the State presented the testimony of Dolores
    Bibbs, a housekeeper at the Knights' Inn.       On May 5, 2002, Bibbs
    went to the victim's 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
    1
    Sometimes spelled "Poe" in the trial transcripts.
    2
    1-06-1190
    victim's room.   When Bibbs got to the victim's room, the victim
    was kneeling in the doorway covered in blood.   Bibbs stayed with
    the victim until the paramedics arrived.
    Quiara Campbell testified she was at the Knights' Inn
    watching television with her sister's 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's nephew
    opened the door to reveal the victim, who was covered in blood.
    Campbell jumped up, closed the door, and called the police.
    Detective 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's death.   After Martin shared information
    gathered during the investigation, the defendant admitted he was
    at the Knights' Inn when the victim was killed.
    Martin asked the defendant to provide a written statement
    3
    1-06-1190
    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.
    During cross-examination, Martin testified that the
    defendant claimed he "wasn't with the plan to kill" the victim,
    never touched the victim, and never had a gun.
    After Martin's testimony, the defendant's 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 "so [Melvin] could serve a
    customer."   When the three men were back in the car, Melvin told
    the defendant about a "lick," meaning a robbery, he wanted to do
    at the Knights' Inn.
    Melvin 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 "sweet," 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
    4
    1-06-1190
    the Knights' 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.
    When the three men arrived at the Knights' Inn, they saw
    people coming out of the victim's room.     The defendant tried to
    signal to Melvin and Powe to call off the robbery because too
    many people were around.
    The defendant, Melvin, and Powe proceeded to the victim's
    room.    After a while, 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's legs and
    hands.    Powe demanded the victim reveal where his money and drugs
    were located.    The victim complied.
    After Powe and Melvin obtained the victim's 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's 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.
    The defendant heard a gunshot but could not see who fired
    the gun from where he was seated.     After the gunshot, the
    5
    1-06-1190
    defendant got up and ran out of the room.   Melvin and Powe
    followed.   The three men got into the defendant’s car and the
    defendant drove away.   The defendant drove Melvin and Powe to
    several locations before dropping them off.
    Assistant State's 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's
    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's death.   After their
    conversation, Concannon offered the defendant several ways to
    memorialize his statement.   The defendant chose to make a
    videotaped statement.
    After Concannon's testimony, the defendant's videotaped
    statement, which was substantially similar to his written
    statement, was played in open court.   The State rested.
    The trial court denied the defendant's motion for a directed
    verdict.
    The 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 "wasn't with that."   The defendant
    told Melvin " 'if you steady talking about killing this guy, I'm
    not with it.' "   Based on Melvin's response that he would not
    6
    1-06-1190
    kill the victim, the defendant testified he believed the robbery
    was called off as well and that the men were going to the
    Knights' Inn to watch a basketball game on television.
    When the three men arrived at the Knights' Inn, the victim
    and several other people were on a balcony overlooking the
    parking lot.    The defendant looked at Melvin and Powe and "[it]
    was basically like, 'Man, I'm not in this.     I ain't with this.
    Look at these people.' "    Powe nodded his head, which the
    defendant took as agreeing with him.     Melvin did not respond.
    The defendant, Powe, and Melvin proceeded to the victim's
    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, "Man, what is you doing?"     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.
    While seated, the defendant watched as Melvin removed cash
    from the victim's 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.
    Once the victim was in the bathroom, the defendant stood up
    7
    1-06-1190
    and said he was leaving because he "wasn't on this, and they were
    doing it anyway."    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's room,
    Melvin and Powe might "shoot and kill" him.
    When 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's car and the defendant drove away.    The victim had
    been shot and had his throat slit.
    After leaving the Knights' Inn, the defendant drove Melvin
    and Powe to several locations before dropping them off at Powe's
    mother's home.    The defense rested after the defendant's
    testimony.
    In her closing statement, defense counsel argued that the
    defendant should not be held accountable for Melvin and Powe's
    actions because the defendant terminated his role in the robbery
    when he arrived at the Knights' 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's claim of
    withdrawal.    Illinois Pattern Jury Instructions, Criminal, No.
    5.04 (4th ed. 2000) (IPI Criminal 4th No. 5.04).
    The jury found the defendant not guilty of murder but guilty
    of armed robbery.
    8
    1-06-1190
    After denying the defendant's 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's motion to
    reconsider the sentence.    This timely appeal follows.
    ANALYSIS
    The 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 "the defendant was forced at gunpoint to
    remain with [Melvin and Powe] as they committed an armed
    robbery."    Next, the defendant claims his enhanced sentence for
    armed robbery based on the use of a firearm during the offense
    violates the Illinois Constitution's 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, who the
    defendant contends had a direct role, was given six years for the
    same offense.
    I. Ineffective Assistance of Counsel
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    According to the defendant's main brief, the defendant's
    ineffective assistance of counsel claim is founded on his
    testimony "that 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 'shut up and sit down' because he [the defendant]
    was driving and that [the defendant] felt too scared to leave."
    This evidence, according to the defendant, was sufficient to
    "raise a compulsion defense and [defense counsel should have
    requested] that the jury be instructed accordingly."   If in fact
    the evidence at trial was sufficient to raise the affirmative
    defense of compulsion, then trial counsel's 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).
    Where the State's evidence does not raise the issue of an
    affirmative defense, the defendant need only "present some
    evidence thereon" to enlarge the State's 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 5/3-2 (West 2002); People v. Pegram, 
    124 Ill. 2d 166
    , 173,
    
    529 N.E.2d 506
     (1988), quoting Ill. Rev. Stat. 1983, ch. 38,
    pars. 3-2(a),(b) (testimony elicited from the defendant
    10
    1-06-1190
    "certainly satisfied the requirement that a defendant, to raise
    an affirmative defense, 'must present some evidence thereon' ");
    People v. Adcock, 
    29 Ill. App. 3d 917
    , 
    331 N.E.2d 573
     (1975)
    (evidence sufficient to require instruction on compulsion, which
    the State must disprove beyond a reasonable doubt).
    Thus, 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) ("even slight evidence" sufficient to mandate instructing
    on affirmative defense).   In the context of this case, we examine
    the defendant's testimony as to his involvement in the armed
    robbery to determine whether it "raise[s] an issue of fact for
    the jury creating a reasonable doubt as to defendant's guilt."
    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's guilt).
    On 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
    11
    1-06-1190
    defendant's 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.
    A. No Evidence of Compelled Conduct
    The 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's claim that he attempted to "stop" 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, "Man, what is you doing?"   According to the
    defendant, Powe then pointed the gun at him and told him to shut
    up and sit down, and he complied.
    We find the defendant's 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 accountablility 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's generous
    interpretation of his trial testimony that he attempted to stop
    the armed robbery but was foiled by Powe is not "some evidence"
    12
    1-06-1190
    of a plausible compulsion defense.     While it is true that the
    defendant testified that he remained seated during the armed
    robbery "under the compulsion of threat or menace of imminent
    infliction of death or great bodily harm" (720 ILCS 5/7-11 (West
    2002)), this is not the conduct that formed the basis for his
    armed robbery conviction.   "The defense of compulsion is a
    defense only with respect to the conduct demanded by the
    compeller."   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).
    Clearly, 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) ("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").    Yet, the defendant makes no argument on appeal
    that the jury issued its verdict against the evidence presented.
    The videotape and the defendant's written statement introduced at
    trial explain his failure to so argue and provide the basis for
    the jury's verdict.    Scherzer, 179 Ill. App. 3d at 645.
    13
    1-06-1190
    The defendant was found accountable not based on his failed
    effort to "stop" the armed robbery or his decision to follow
    Powe's 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' 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' Inn to commit a "lick."
    The videotape and written statement made clear that the defendant
    drove to the Knights' Inn with Powe and Melvin with the intention
    of committing a robbery, proceeded with Powe and Melvin to the
    victim's room, remained with them while they searched and
    recovered the victim's 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's verdict is confirmed by the defendant's 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
    14
    1-06-1190
    bodily harm.2    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 "as to those offenses that the defendant
    did not act under compulsion").
    The defendant's testimony that he was compelled to shut up
    and sit down was not "some evidence" 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's 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
    2
    Consistent with the jury's 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' Inn if, along with the robbery, Melvin intended to kill
    the victim.
    15
    1-06-1190
    robbery took place in front of him.
    B. Unaware of Impending Armed Robbery
    The evidence is unchallenged that the defendant played no
    direct role in the removal of the cash from the victim's pockets
    or the drugs from the drawers.   He testified that he believed the
    assurances Melvin gave while en route to the Knights' 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' Inn that there were too many individuals around.
    However, once again the defendant's 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' 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's claim that he believed that the robbery
    was off either before or upon arriving at the Knights' Inn.    The
    incriminating evidence in the videotape and the written statement
    16
    1-06-1190
    gave the jury ample evidence to conclude that at the time the
    three defendants arrived at the Knights' 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.
    A generous reading of the defendant's testimony is that at
    most he was unaware that the robbery would take place.    This is
    precisely the import of the defendant's 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' 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's 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's
    instructions on the affirmative defense of compulsion where the
    defendant testified he was unaware the offenses were going to
    17
    1-06-1190
    take place).
    C. No Withdrawal
    In 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' 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's
    claimed change of mind.
    The defendant went along with Powe and Melvin to the
    victim's room.   The only explanation for going to the victim's
    room offered in the videotape and written statement was to commit
    a robbery.   In proceeding to the victim's 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' 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).
    Thus, even if we were to find "some evidence" to support the
    defendant's claim of compulsion, under the facts of this case, a
    compulsion defense remained unavailable to the defendant.    A
    compulsion defense is not available "if the defendant had ample
    18
    1-06-1190
    opportunities to withdraw from the criminal enterprise but failed
    to do so."   Sims, 374 Ill. App. 3d at 267, citing Scherzer, 
    179 Ill. App. 3d 624
    , 645-46.   The defendant's claim that he believed
    the robbery was called off at the time they arrived at Knights'
    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's 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
    "lick" 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.
    Sims, 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's failure to
    raise the affirmative defense of compulsion and request the jury
    19
    1-06-1190
    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 "defendant stated that he did not want to
    take part in the robbery."    Sims, 374 Ill. App. 3d at 235.     The
    codefendant testified that the ringleader, with a gun in hand,
    "told defendant that 'he was there when it started, he got to be
    there when it finished.' "    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 "was attempting to raise an
    affirmative defense of compulsion without having pled it."       Sims,
    374 Ill. App. 3d at 235.    Defense counsel conceded that he made a
    " 'mistake by not filing or asking to file a compulsion
    defense.' "    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.
    20
    1-06-1190
    No testimony similar to that presented in Sims was ever elicited
    in this case.
    The 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's 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's car, "certainly satisfied the
    requirement that a defendant, to raise an affirmative defense,
    'must present some evidence thereon.' "    Pegram, 
    124 Ill. 2d at 173
    , quoting 720 ILCS 5/3-2(a) (West 2002).    No such force was
    ever exerted against the defendant here.
    D. Trial Counsel Not Ineffective
    We find the record devoid of any evidence to support the
    defendant's claim that he aided and abetted the commission of
    armed robbery under compulsion.    We find the defendant's
    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's testimony fails to raise an issue of
    fact for the jury creating a reasonable doubt as to the
    defendant's guilt.   In any event, the defendant was presented
    21
    1-06-1190
    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's 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's 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.
    II. The Defendant's Enhanced Sentence
    The 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
    22
    1-06-1190
    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.
    The State agrees that Hauschild is controlling.     However,
    the State contends Hauschild requires this court to vacate the
    defendant's sentence in totality and remand the case to the trial
    court for a new sentencing hearing.
    In Hauschild, our supreme court determined that under the
    identical elements test, the "sentence for armed robbery while
    armed with a firearm (720 ILCS 5/18-2(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-3(a), (a-5) (West 2000))."
    Hauschild, 
    226 Ill. 2d at 86-87
    .     In Hauschild, the defendant was
    not given the corresponding " 'add-on penalty' of 15 years" for
    armed robbery because the sentence was imposed "while [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."   Hauschild, 
    226 Ill. 2d at 88
    .   The
    supreme court in Hauschild established a bright line that "when
    23
    1-06-1190
    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."     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
    .
    Thus, we vacate the defendant's sentence for armed robbery
    and remand this matter to the trial court for resentencing,
    "within the range for armed robbery as it existed prior to being
    amended by Public Act 91-404, eff. January 1, 2000."     Hauschild,
    
    226 Ill. 2d at 89
    .
    III. The Defendant's Sentence
    In light of our remand, we do not address the defendant's
    final contention that the trial court abused its discretion when
    it imposed a sentence of 11 years for the nonenhanced portion of
    the defendant's sentence when Melvin was given a sentence of six
    years for the same offense.3
    CONCLUSION
    3
    In 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.
    24
    1-06-1190
    For the reasons stated above, we affirm the defendant's
    conviction, vacate the defendant's sentence, and remand this case
    to the circuit court for resentencing.
    Affirmed in part and vacated in part; cause remanded.
    R. GORDON, P.J., and HALL, J., concur.
    25
    1-06-1190
    REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
    ______________________________________________________________________________
    THE PEOPLE OF THE STATE OF ILLINOIS,
    Plaintiff-Appellee,
    v.
    DEMETRIUS JOHNS,
    Defendant-Appellant.
    ________________________________________________________________
    No. 1-06-1190
    Appellate Court of Illinois
    First District, First Division
    Filed: November 17, 2008
    _________________________________________________________________
    JUSTICE GARCIA delivered the opinion of the court.
    R. GORDON, P.J., and HALL, J., concur.
    _________________________________________________________________
    Appeal from the Circuit Court of Cook County
    Honorable Reginald Baker, Judge Presiding
    _________________________________________________________________
    For PLAINTIFF -           James E. Fitzgerald, Assistant State's Attorney, Of Counsel,
    APPELLEE                  Manuel Magence, Assistant State's Attorney, Of Counsel, Sari
    London, Assistant State's Attorney, Of Counsel
    RICHARD A. DEVINE
    State's Attorney of Cook County
    Richard J. Daley Center–Room 309
    Chicago, Illinois 60602
    For DEFENDANT -           Tiffany Green, Assistant Public Defender
    APPELLANT                 MICHAEL J. PELLETIER, Deputy Defender
    Office of the State Appellate Defender
    203 N. LaSalle Street, 24th Floor
    26
    1-06-1190
    Chicago, IL 60601
    27