I’ve seen this scenario…
Client who has been charged with armed robbery (720 ILCS 5/18-2). He was there. He committed the robbery. You’d think he was dead to rights? He should plead guilty and the lawyer should focus his efforts on trying to get the lowest prison sentence possible for his client. Being charged with armed robbery is a Class X felony. That’s a 6-30 year sentence. This client has never been arrested before this, he’s got a clean record so he’ll receive the minimum of 6 years. That’s pretty good right? Don’t forget that he’s been charged with armed robbery. What that means is that, since a firearm was involved he gets a 15 year sentencing enhancement so the minimum is 21 years. Uh oh.
21 years is a long sentence for anyone. Especially if you’ve never been arrested before. What could save this client years or decades off of his sentence is challenging the weapon itself. 720 ILCS 5/18-2 reads:
A person commits armed robbery when he or she commits a robbery; and he or she carried on or about his or
her person or is otherwise armed with a dangerous weapon other than a firearm; or he or she carried on or
about his or her person or is otherwise armed with a firearm.
The sentence for armed robbery with a dangerous weapon is a Class X felony. A violation using a firearm is
a Class X felony for which 15 years shall be added to the term of imprisonment imposed by the court.
Somewhere in that non-english english is the key to saving this client years off of his sentence. The firearm that he used and, more importantly, the firearm that was analyzed by the crime lab, didn’t work. It was inoperable and would not fire. So the question then becomes, “Can we call a non-firing gun a firearm?”
Courts have argued over the years about this and have ruled both ways. “It’s based on what the victim thought” or “A gun is a firearm regardless of whether it works or not.” But courts have also determined that a gun that does not fire is not a firearm but could still be a dangerous weapon. Depending on how large or small the gun is, what it is made of and how it was used can determine if an inoperable gun is a dangerous weapon.
If the court rules that the broken gun is a dangerous weapon instead of a firearm, according to the law, there is no 15 year enhancement. And you’ve saved this client 15 years off of his sentence.
There are many battles in a war. The more battles you win, the more likely you will win the war.
Purav Bhatt is a criminal defense attorney in Chicago, Illinois. If you have a criminal matter and you have questions, contact Chicago criminal defense attorney Purav Bhatt at 773-791-9682.