WHAT IS ARMED VIOLENCE?

WHAT IS ARMED VIOLENCE?   It sounds more like a movie starring Liam Nielson than a crime. It’s not. Unless it’s a really bad one that ends with you going to prison for a minimum of 15 years.   In reality, and as a crime, it’s not much better. Outside of first degree murder and certain controlled substances offenses, the minimum sentence for armed violence ranks among the highest of all Illinois criminal statutes.   Possession of cocaine, DUI, Robbery, Retail theft. All of these offenses pretty much say what what you’re accused of in their title. Armed Violence, though, holds no such explanation.   So what is Armed Violence?   Essentially its the commission of a felony* PLUS being armed OR discharging a dangerous weapon. (*exceptions)   There are 3 types of Armed Violence offenses 720 ILCS 5/33A-2(a)-(c).  

1. Committing a felony while armed with a dangerous weapon.
2. Committing a felony while personally discharging a firearm that is a category I or II weapon
3. Committing a felony while personally discharging a firearm that is a category I or II weapon & proximately causing the death/great bodily harm/ permanent disfigurement of another.

  Commission of a Felony:   Armed violence is triggered if you commit any felony while armed with or discharging a dangerous felony, unless the felony you are committing is: First degree murder, attempted first degree murder, intentional homicide of an unborn child, second degree murder, involuntary manslaughter, reckless homicide, predatory criminal sexual assault of a child, aggravated battery of a child, home invasion OR any offense that makes the use or possession of a dangerous weapon as an element of the base offense or sentencing enhancement. 720 ILCS 5/33A-2.   This means that armed violence can’t be charged if you commit one of the specifically listed offenses. The punishment and proof for these charges is its own separate world of pain. You also can’t be charged with armed violence if the felony you are committing specifically requires the use or possession of a gun to be found guilty. Think Aggravated Unlawful Use of a Weapon. The State can’t piggyback on that and throw on an armed violence charge because you were committing a felony (Agg UUW) and were armed. The exact fact that you were armed is required to be found guilty of Aggravated Unlawful Use of a Weapon. Armed: “A person is considered armed with a dangerous weapon . . . when he or she carries on or about his or her person or is otherwise armed with a category I, Category II, or Category III weapon.” 720 ILCS 5/33A-1(c)(1).   Dangerous Weapon: The law breaks down “dangerous weapon(s)” into 3 categories from most dangerous to least dangerous. Additionally, the category of weapon determines the sentence for the Armed Violence charge. Not surprisingly, the more dangerous the weapon (think: firearm), and whether you’re armed or it discharged, the worse the punishment.   Category I weapon: THINK: GUNS A Category I weapon is a handgun, sawed-off shotgun, sawed-off rifle, any other firearm small enough to be concealed upon the person, semiautomatic firearm, or machine gun. 720 ILCS 5/33A-1(c)(2).   Category II weapon: THINK: TASERS/KNIVES A Category II weapon is any other rifle, shotgun, spring gun, other firearm, stun gun or taser, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto, axe, hatchet, or other deadly or dangerous weapon or instrument of like character. 720 ILCS 5/33A-1(c)(2)   Category III weapon: THINK: BLUDGEON A Category III weapon is a bludgeon, black-jack,slungshot, sand-bag, sand-club, metal knuckles, billy, or other dangerous weapon of like character. 720 ILCS 5/33A-1(c)(3)   Sentence/Punishment: 720 ILCS 5/33A-3  

• “Armed” only + category I weapon = cl. X felony- MINIMUM 15 YEARS IDOC (MAX 30)
• “Armed” only + category II weapon = cl. X felony- MINIMUM 10 YEARS IDOC (MAX 30)
• “Armed” only + category III weapon = cl. 2 felony (or higher level of underlying felony)

 

• “Personally Discharged” + category I or II weapon = cl. X felony- MINIMUM 20 YEARS IDOC (MAX 30)

 

• “Personally Discharged” + Great Bodily Harm/Death/Permanent Disfigurement + category I or II weapon = cl. X felony- MINIMUM 25 YEARS IDOC (MAX 40)

 

• “Armed” or “Personally Discharged” + Category I-III weapon + 3 or more separate prior convictions for: (Cl. X Felony- 25 years -50 years IDOC).
  • Treason
  • First Degree Murder
  • Second Degree Murder
  • Predatory Criminal Sexual Assault of a child
  • Aggravated Criminal Sexual Assault,
  • Robbery
  • Burglary
  • Arson
  • Kidnapping
  • Aggravated Battery-Great Bodily Harm
  • (Violation of)Methamphetamine Control And Community Protection Act
  • (Violation of) Manufacture or Delivery of a Controlled Substance.

 

• CONSECUTIVE SENTENCING APPLIES: If the Felony committed while armed and/or personally discharging a dangerous weapon is:
  • Solitician of murder/murder for hire
  • Heinous Battery
  • Aggravated Battery of a Senior Citizen
  • Manufacture/Delivery of Cannabis-5,000+ grams
  • Cannabis Trafficking
  • Manufacture/Delivery of a Controlled Substance- Cl. X
  • Controlled Substance Trafficking- Cl. X
  • Calculated Criminal Drug Conspiracy
  • Street Gang criminal drug conspiracy
  • (Violation of)Methamphetamine Control And Community Protection Act
  • ***The sentence for these offenses will be served consecutively to the Armed Violence sentence.

      IMMEDIATE ACCESS:   It’s important to remember that the weapon does not have to be USED in the felony for armed violence to apply. It is simply the presence of the weapon, or more specifically, one’s immediate access to the weapon. Remember the definition of “armed with a dangerous weapon:”   “A person is considered armed with a dangerous weapon . . . when he or she carries on or about his or her person or is otherwise armed with a category I, Category II, or Category III weapon.” 720 ILCS 5/33A-1(c)(1)   Obviously, you have immediate access to a weapon that you carry on or about your person. But what about “otherwise armed”? The Illinois Supreme Court provides us with the applicable definition:   “A felon with a weapon at his or her disposal is forced to make a spontaneous and often instantaneous decision to kill without time to reflect on the use of such deadly force. Without a weapon at hand, the felon is not faced with such a deadly decision. Hence, we have the deterrent purpose of the armed violence statute. Thus, for this purpose to be served, it would be necessary that the defendant have some type of immediate access to or timely control over the weapon.” People v. Condon, 148 Ill. 2d 96, 109-10 (1992). This definition has been used to justify armed violence convictions in situations where a defendant drops the weapon out of his window as the police are entering his house, for example. People v. Smith, 191 Ill. 2d 408 (2000). Other examples of the Court finding immediate access to the weapon include:  

• Defendant hiding in crawl space where drugs and weapon were found. People v. Anderson, 364 Ill. App. 3d 528, 542 (2006); People v. Brown, 277 Ill. App. 3d 989, 992 (1996).
• Firearm and drugs found under and near mattress where defendant was sleeping. People v. Hernandez, 229 Ill. App. 3d 546, 551-52 (1992).
• firearm and drugs found under and near mattress where defendant was sleeping. People v. King, 155 Ill. App. 3d 363, 365 (1987).
• defendant alone in a bedroom lying on a bed next to controlled substances and a revolver. People v. Lenoir, 125 Ill. App. 3d 260, 261 (1984).
• Defendant answers bedroom door naked, guns found behind storage container in far left corner of bedroom. People v. Norwood, 2018 IL App (4th) 150883.

    CONCLUSION   Why is Armed Violence such a serious offense? As explained the Armed Violence statute, “[t]he use of a dangerous weapon in the commission of a felony offense poses a much greater threat to the public health, safety, and general welfare, than when a weapon is not used in the commission of the offense.” 720 ILCS 5/33-A-1(a)(1).  Illinois caselaw explains that Armed Violence serves “to deter felons from using dangerous weapons so as to avoid the deadly consequences which might result if the felony victim resists.” People v. Condon, 148 Ill. 2d 96, 109 (1992).   Armed Violence is a serious offense. If you are charged with it, you need a serious legal team. At Robert Callahan & Associates, we handle all types of criminal offenses, from misdemeanors to murders, DUIs to drugs, batteries to burglaries, and everything in between. We break down the law to break down the State’s case and then defeat it. Call Robert Callahan & Associates, at 312 322 9000, and let’s discuss how we’ll apply our expert analysis to your case.