FIRST DIVISION
August 16, 2004

No. 1-02-3290

 

A jury convicted defendant Floyd Cummings of armed robbery. He was sentenced to natural life imprisonment as a habitualcriminal. 720 ILCS 5/33B-1 (West 2000)(Habitual Criminal Act). In this appeal, Cummings first claims that his sentence isunconstitutional because the penalties for the identical offensesof armed robbery and armed violence with a category III weaponare disproportionate. Second, he claims that his natural lifesentence is unconstitutionally disproportionate to the nature ofthe offense, his involvement in the offense, his background andcharacter, and the sentences imposed on his codefendants. Finally, he claims that the trial court failed to conduct anadequate inquiry into his posttrial pro se claims of ineffectiveassistance.

The evidence at trial showed that on October 29, 2000,Yashika Jones, Lee Washington, and Cummings robbed a SubwaySandwich Shop located at 5300 South Kimbark, Chicago (theSubway). Jones was an employee of the Subway at the time. Washington was her boyfriend. The two planned the robbery andinvited Cummings to participate.

At about 10:30 p.m., on October 29, 2000, Jones was workingat the Subway. She stepped outside and smoked a cigarette. Shespoke with Washington, who was outside with Cummings. When Jonesentered the Subway again, she did not lock the employee door. Washington and Cummings entered the Subway through the unlockedemployee door. According to Johnny Johnson, the manager on dutyat the Subway, Washington carried a baseball bat into the Subway. According to Washington and Jones, it was Cummings who carriedthe baseball bat. In a statement that he made to an assistantState's Attorney, Cummings claimed that Washington held thebaseball bat.

Inside the Subway, Cummings grabbed Johnson by the collar.Washington and Cummings made Johnson unlock the petty cash boxes. They took the money inside the boxes while Jones removed themoney from the register in the front of the Subway. Washingtonand Cummings wanted more money, but Johnson was not able to openthe floor safe.

Cummings used some duct tape he found in the office to tapeJohnson's hands, legs, and eyes. At one point, Johnson heard oneof the men smashing the television monitors and videocassetterecorder in the office. Johnson felt debris from the destructionfalling on him. Washington claimed that Cummings smashed theobjects with the baseball bat. Cummings claimed it wasWashington who destroyed the objects using the baseball bat.

Eventually, Washington and Cummings asked Johnson for thekeys. One of the men struck Johnson when he said he did not knowwhere the keys were. Cummings claimed that it was Washington whostruck Johnson. When Washington and Cummings located the keys,Jones used them to open the door. The three left in Cummings'car with the money. They went to Cummings' house, where theydivided the money.

Cummings and Washington drove back to the Subway, hoping toopen the floor safe, but as they approached the Subway, they sawthe police. Instead of going inside for the floor safe, theywent back to Cummings' house. Washington and Jones leftCummings' house together that night. They were arrested shortlythereafter. Each was in possession of some of the proceeds ofthe robbery. Washington also had the key to the petty cashboxes. Jones and Washington confessed to their participation inthe robbery. They pled guilty to charges of armed robbery. Jones was sentenced to six years' imprisonment. Washington wassentenced to eight years' imprisonment.

Washington provided information, which allowed the police tolocate Cummings. Johnson viewed a lineup and identified Cummingsas one of the offenders. Cummings subsequently gave ahandwritten statement to an assistant State's Attorney, in whichhe admitted his participation in the robbery. After hearing allthe evidence, which included Cummings' statement, the juryconvicted Cummings of armed robbery.

The trial court held a sentencing hearing. It heardevidence that on September 18, 1984, Cummings was sentenced to aminimum of 5 years' imprisonment and a maximum of 10 years'imprisonment for an armed robbery that occurred in Newaygo City,Michigan. Cummings was discharged from the Michigan Departmentof Corrections on May 10, 1996. Also, on June 19, 1967, Cummingswas convicted and sentenced in Cook County for murder. He wassentenced to 50 to 75 years' imprisonment. Cummings was paroledfrom the Illinois Department of Corrections on May 16, 1979. Thetrial court found that based on the evidence of Cummings' priorconvictions, it was required to sentence him as a habitualcriminal. The court imposed a sentence of natural lifeimprisonment.

Cummings claims that his sentence of natural lifeimprisonment is unconstitutionally disproportionate. He urges usto remand for resentencing. The Illinois Constitution providesthat "[a]ll penalties shall be determined both according to theseriousness of the offense and with the objective of restoringthe offender to useful citizenship" (Ill. Const. 1970, art. I,