People v. Palmer ( 2006 )

Docket No. 98333.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
NATHAN PALMER, Appellee.
Opinion filed January 20, 2006.
JUSTICE FITZGERALD delivered the judgment of the court,
with opinion.
Justices Freeman, McMorrow, and Kilbride concurred in the
judgment and opinion.
Justice Garman concurred in part and dissented in part, with
opinion, joined by Chief Justice Thomas and Justice Karmeier.
OPINION
A jury convicted defendant, Nathan Palmer, of eight Class X
offenses for actions committed over an approximately two-hour
period in the home of M.J. and D.J. on Sunday afternoon July 18,
1999. After finding that defendant had received two prior serious
felony convictions within a 20-year period, the circuit court of Kane
County adjudged defendant an habitual criminal. The court imposed
seven natural-life sentences pursuant to the Habitual Criminal Act
(Act) (720 ILCS 5/33B (West 2000)). Citing section 5B8B4(a) of the
Unified Code of Corrections (Code) (730 ILCS 5/5B8B4(a) (West
2000)), the trial court also ordered defendant to serve those sentences
consecutively. The appellate court vacated three of the eight
convictions, and held that the Act transformed the remaining five
convictions into only Aone conviction@ requiring one natural-life
sentence, absolving the need for consecutive sentences. 346 Ill. App.
3d 942, 949-50.
In this case, we determine the proper sentence for a person who
committed multiple simultaneous offenses and was then adjudged an
habitual criminal. We hold that the trial court did not err in imposing
a natural-life sentence on each conviction, but erred in ordering
defendant to serve those sentences consecutively. We therefore
reverse in part and affirm in part.
BACKGROUND
On Sunday July 18, 1999, M.J. and her husband, D.J., were at
home in their two bedroom apartment with their four-year-old and
two-year-old daughters. At approximately 12:30 p.m., M.J. was
cleaning the house and D.J. was watching television, while the girls
were playing. M.J. heard a knock on the door and looked through the
peep hole. She saw the defendant standing outside with a newspaper
in his hand. She told D.J. a man was standing at the door, and she
opened the door. M.J. observed that defendant was bald, weighed
about 250 to 300 pounds, stood 5 foot 11 inches, with green eyes.
Defendant asked if they wanted to buy a newspaper for fifty cents.
They declined, but defendant entered the apartment without
permission, became upset, and dropped the newspaper. He pulled out
a steak knife with a pink handle from his shorts and held it to M.J.=s
throat. Over an approximately two-hour period, defendant committed
various crimes. Defendant stole cash and M.J.=s wedding ring, struck
M.J. in the head, forced M.J. to perform oral sex on him, forced M.J.
to perform oral sex on her husband while defendant watched,
penetrated M.J. with his penis and fingers, bound D.J. by the wrists
and placed an electrical cord around D.J.=s neck, and slit D.J.=s throat
with the steak knife, just missing the jugular vein. Defendant did not
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follow through on his threats to have forcible intercourse with the
four-year-old daughter.
An amended indictment filed on March 22, 2000, charged
defendant with eight Class X felony offenses. Count I alleged the
offense of home invasion (720 ILCS 5/12B11 (West 2000)) in that
defendant entered the dwelling place of M.J. and used force or
threatened to use force while armed with a dangerous weapon. Count
II alleged the offense of home invasion (720 ILCS 5/12B11 (2000)) in
that defendant entered the dwelling place of D.J. and intentionally
caused him injury by slashing his throat. Count III alleged the offense
of attempted first degree murder (720 ILCS 5/8B4(a), 9B1(a)(1) (West
2000)) in that defendant intended to kill D.J. by strangling him with
an electrical cord and slashing his throat. Counts IV and V alleged
the offenses of aggravated criminal sexual assault (720 ILCS
5/12B13(a)(1), 12B14(a)(1) (West 2000)) in that defendant, while
displaying a knife, placed his penis in the mouth and vagina of M.J.
by use of force. Counts VI and VII alleged aggravated criminal
sexual assault (720 ILCS 5/12B14(a)(2) (West 2000)) in that
defendant caused bodily harm to M.J. by placing his penis in her
mouth and vagina. Count VIII alleged armed robbery (720 ILCS
5/18B2(a) (West 2000)) in that defendant, while armed with a knife,
took cash and a ring from M.J. by the use of force or by threatening
the use of force. A jury trial was held and, at the close of evidence,
the jury found defendant guilty on all counts.
At sentencing, the trial court ruled that, for purposes of
sentencing, the home invasion counts merged because the charges
arose from the same acts. The State also filed a petition to have
defendant adjudged an habitual criminal. See 720 ILCS 5/33BB1
(West 2000). The trial court granted the petition upon defendant=s
stipulation that he met the statutory requirements, having been
convicted of criminal sexual assault in case number 87 CR 001360 on
October 14, 1987, and convicted of aggravated criminal sexual
assault, in case number 92 CR 2856601, on March 25, 1994. The trial
court imposed a natural-life sentence on each remaining count
pursuant to the Act. 720 ILCS 5/33BB1(e) (West2000). The trial
court then found that the consecutive sentencing provision of section
5B8B4(a) of the Code (730 ILCS 5/5B8B4(a) (West 2002)) required
that defendant serve seven consecutive sentences of natural-life
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imprisonment. The trial court denied defendant=s posttrial motion for
a new trial and motion to declare the Act unconstitutional.
On appeal, after the State confessed error, the appellate court
vacated the convictions on counts I and V based on the one-act, one-
crime doctrine. 346 Ill. App. 3d at 953. The appellate court also
vacated count IV based on People v. Crespo, 203 Ill. 2d 335 (2001).
346 Ill. App. 3d at 953. 1 On the remaining five convictions, the
appellate court counted them as only Aone conviction@ for purposes of
sentencing under the Act. 346 Ill. App. 3d at 953. Because there was
only Aone conviction,@ the court further held that the trial court
improperly sentenced defendant to consecutive natural-life sentences
pursuant to section 5B8B4(a) of the Code (730 ILCS 5/5B8B4(a)
(West 2002)). 346 Ill. App. 3d at 950. The appellate court therefore
reversed the trial court=s judgment imposing seven consecutive
natural-life sentences and sentenced defendant to one term of natural-
life imprisonment based upon the most serious conviction, attempted
first degree murder. 346 Ill. App. 3d at 953. We granted the State=s
petition for leave to appeal. 177 Ill. 2d R. 315(a). As this case
presents only issues of statutory interpretation, which are questions of
law, our review is de novo. People v. Harris, 203 Ill. 2d 111, 116
(2003).
ANALYSIS
We note defendant did not raise his present sentencing issues at
his sentencing hearing or in a posttrial motion. However, we agree
1
Justice Gilleran Johnson specially concurred with the result of the
vacated conviction on count IV. 346 Ill. App. 3d at 953-54 (Gilleran
Johnson, J., specially concurring). Justice Bowman dissented in part, stating
that count IV should not have been vacated. 346 Ill. App. 3d at 957
(Bowman, J., concurring in part and dissenting in part). This ruling is not an
issue on appeal.
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with both the State and defendant that we may review defendant=s
claim that the trial court=s sentence was void. A sentence imposed
without statutory authority is not subject to defendant=s forfeiture.
Harris, 203 Ill. 2d at 118-19, citing People v. Arna, 168 Ill. 2d 107
(1995). It is well established that a sentencing judge cannot impose a
penalty not otherwise allowed by the sentencing statute in question.
Harris, 203 Ill. 2d at 116, quoting People v. Wooters, 188 Ill. 2d 500,
506 n.1 (1999). We therefore address three main questions: (1)
whether the appellate court correctly found that the Act transforms
defendant=s five convictions into just one conviction, (2) if not,
whether the trial court correctly imposed a natural-life sentence on
each conviction, and (3) if so, whether the trial court properly
imposed consecutive natural-life sentences pursuant to the Code.
I
In general, the Habitual Criminal Act mandates the imposition of
a natural-life sentence on a defendant convicted of three temporally
separate Class X offenses, or other eligible serious felonies, within a
20-year period. 720 ILCS 5/33BB1 et seq. (West 2002). At issue here
is section 33BB1 of the Act, which provides:
A' 33BB1. (a) Every person who has been twice convicted
in any state or federal court of an offense that contains the
same elements as an offense now classified in Illinois as a
Class X felony, criminal sexual assault, aggravated
kidnapping or first degree murder, and is thereafter convicted
of a Class X felony, criminal sexual assault or first degree
murder, committed after the 2 prior convictions, shall be
adjudged an habitual criminal.
(b) The 2 prior convictions need not have been for the
same offense.
(c) Any convictions which result from or are connected
with the same transaction, or result from offenses committed
at the same time, shall be counted for the purposes of this
Section as one conviction.
(d) This Article shall not apply unless each of the
following requirements are satisfied:
(1) the third offense was committed after the effective
date of this Act;
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(2) the third offense was committed within 20 years of the
date that judgment was entered on the first conviction,
provided, however, that time spent in custody shall not be
counted;
(3) the third offense was committed after conviction on
the second offense;
(4) the second offense was committed after conviction on
the first offense.
(e) Except when the death penalty is imposed, anyone
adjudged an habitual criminal shall be sentenced to life
imprisonment.@ 720 ILCS 5/33BB1 (West 2002).
The State contends the appellate court erred by holding that the
phrase Aany convictions@ in subsection (c) of the Act (720 ILCS
5/33BB1(c) (West 2002)), transforms defendant=s five convictions
into only one for purposes of sentencing. According to the State, the
appellate court misunderstood how the Habitual Criminal Act works,
in that the Act did not create a new, independent offense. The
defendant=s argument is consistent with the appellate court=s
reasoning in that subsection (c) of the Act (720 ILCS 5/33BB1(c)
(West 2002)) requires that Aany convictions@ which are connected
with the same transaction be counted as a single conviction, thus
requiring a single natural-life sentence.
In construing the meaning of a statute, the primary objective of
this court is to ascertain and give effect to the intention of the
legislature. Michigan Avenue National Bank v. County of Cook, 191
Ill. 2d 493, 503-04 (2000). Accordingly, in determining the intent of
the General Assembly, we may properly consider not only the
language of the statute, but also the purpose and necessity for the law,
the evils sought to be remedied, and goals to be achieved. In re
Detention of Lieberman, 201 Ill. 2d 300, 308 (2002). The language of
the statute must be afforded its plain, ordinary, and popularly
understood meaning. In re Detention of Lieberman, 201 Ill. 2d at 308
(2000). This court will not depart from the plain language of a statute
by reading into it exceptions, limitations or conditions that conflict
with the express legislative intent. Petersen v. Wallach, 198 Ill. 2d
439, 446 (2002). All provisions of a statutory enactment are viewed
as a whole. Michigan Avenue National Bank, 191 Ill. 2d at 504. Each
word, clause and sentence of the statute, if possible, must be given
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reasonable meaning and not rendered superfluous. Michigan Avenue
National Bank, 191 Ill. 2d at 504. In construing a statute, we presume
that the General Assembly, in its enactment of legislation, did not
intend absurdity, inconvenience or injustice. Michigan Avenue
National Bank, 191 Ill. 2d at 504.
The Habitual Criminal Act does not create a new offense, but
only enhances the sentence on the offense of which an habitual
criminal has been most recently convicted. People v. Dunigan, 165
Ill. 2d 235, 242 (1995). 2 In Dunigan, the defendant, who had two
prior felony rape convictions, had committed the offense of criminal
sexual assault, making him eligible to be adjudged an habitual
criminal. In rejecting defendant=s argument that a defendant adjudged
an habitual criminal is found guilty of an independent criminal
offense, namely, being an Ahabitual criminal,@ we explained:
AThe United States Supreme Court and our court have
repeatedly recognized, however, that habitual criminal
statutes do not define a new or independent criminal offense.
[Citations.] Rather, such statutes simply prescribe the
circumstances under which a defendant found guilty of a
specific crime may be more severely punished because that
defendant has a history of prior convictions. The punishment
imposed under the Act is for the most recent offense only.
The penalty is made heavier because the person convicted is a
habitual criminal. The Act does not punish a defendant again
for his prior felony convictions, nor are those convictions
elements of the most recent felony offense. Instead, they
2
We note that this proposition does not run afoul of Apprendi v. New
Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), where the
Court held that any fact other than a prior conviction sufficient to raise the
limit of the possible sentence must be found by a jury, absent a waiver by
the defendant. The Apprendi court left undisturbed the holding in
Almendarez-Torres v. United States, 523 U.S. 224, 140 L. Ed. 2d 350, 118
S. Ct. 1219 (1998), which drew an exception to the Apprendi line of cases
for judicial fact-finding that concerns a defendant=s prior convictions.
Apprendi, 530 U.S. at 487-90, 147 L. Ed. 2d at 453-55, 120 S. Ct. at 2361-
62. We note further that defendant=s prior convictions were stipulated to by
the defendant himself, and would have certainly been proved beyond a
reasonable doubt.
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simply aggravate or enhance the penalty imposed for the third
and most recent offense. [Citations.]@ Dunigan, 165 Ill. 2d at
242.
In creating the Act, the Alegislature devised a separate sentencing
scheme for criminal defendants who have demonstrated a propensity
to commit violent crimes.@ Dunigan, 165 Ill. 2d at 243. The Act may
be invoked only after defendant has demonstrated that two
convictions and terms of imprisonment do not dissuade him from a
life of crime. We stated, A[T]he Act unquestionably represents a
careful legislative consideration of both the seriousness of the offense
and the rehabilitative potential of offenders subject to its terms.@
Dunigan, 165 Ill. 2d at 246-47. Dunigan, however, did not directly
determine the sentencing of an adjudged habitual criminal where, as
here, a defendant=s third serious felony offense is but one of several
offenses resulting from or connected with the same transaction.
Here, defendant=s argument that subsection (c) of the Act
transforms defendant=s five convictions into one is only a slight
variation of the argument rejected in Dunigan. The Act is a
sentencing statute and does not create an independent criminal
offense. Therefore, there is no Aconviction@ by terms of the Act.
Dunigan, 165 Ill. 2d at 242. Under the Act, a criminal is Aadjudged@
an habitual criminal rather than Aconvicted@ as an habitual criminal.
720 ILCS 5/33BB1(a) (West 2002). Hence, because the Act cannot
create a conviction, the Act has no ability to replace lawfully entered
convictions which are the result of proof beyond a reasonable doubt
for the offenses in question.
Rather, a review of the Act demonstrates that the language at
issue in subsection (c) is only a counting mechanism to determine
when a particular defendant has reached the status of an habitual
criminal. 720 ILCS 5/33BB1(c) (West 2002) (AAny convictions which
result from or are connected with the same transaction, or result from
offenses committed at the same time, shall be counted for the
purposes of this Section as one conviction@). Subsection (c)=s
meaning is apparent from a review of subsections (a), (b), and (d) of
section 33BB1 of the Act. Turning to subsection (a), the Act speaks in
terms of a tally of offenses, the summation of which provides
eligibility as an habitual criminal:
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AEvery person who has been twice convicted in any state
or federal court of an offense that contains the same elements
as an offense now classified in Illinois as a Class X felony,
criminal sexual assault, aggravated kidnapping or first degree
murder, and is thereafter convicted of a Class X felony,
criminal sexual assault or first degree murder, committed
after the 2 prior convictions, shall be adjudged an habitual
criminal.@ (Emphases added.) 720 ILCS 5/33BB1(a) (West
2002).
The Act states that defendant must have been Atwice convicted@ of an
offense or offenses. Then it speaks sequentially of one further offense
by using the article Aa.@ Thus, the third conviction must be a
conviction for Aa Class X felony, criminal sexual assault or first
degree murder@ which is Acommitted after the 2 prior convictions.@
(Emphasis added.) 720 ILCS 5/33BB1(a) (West 2002). A defendant
has already met the requirements for an habitual criminal under the
Act by the third offense. It is therefore unnecessary to mention a
fourth or fifth offense in a series of offenses because any two prior
convictions may also enhance the sentences on the fourth and fifth
offenses.
Subsection (b) also demonstrates the Act=s function as a counting
mechanism. Subsection (b) provides, AThe 2 prior convictions need
not have been for the same offense.@ 720 ILCS 5/33BB1(b) (West
2002). It is unnecessary to speak of further convictions because it is
the third offense to reach the habitual criminal status which is key.
Sentences on all subsequent convictions may be enhanced by any two
temporally distinct prior convictions.
The Act=s focus on the counting of offenses until a defendant
reaches habitual criminal status finds support in the additional
language of the Act in subsection (d), which provides:
A(d) This Article shall not apply unless each of the
following requirements are satisfied:
(1) the third offense was committed after the effective
date of this Act;
(2) the third offense was committed within 20 years of the
date that judgment was entered on the first conviction,
provided, however, that time spent in custody shall not be
counted;
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(3) the third offense was committed after conviction on
the second offense;
(4) the second offense was committed after conviction on
the first offense.@ (Emphases added.) 720 ILCS 5/33BB1(d)
(West 2002).
Thus, within the plain language of section (d), the article does not
apply until defendant commits the third offense. A further tally
beyond the third offense is unnecessary because defendant has
reached the status of an habitual criminal.
Returning to subsection (c), it provides, AAny convictions which
result from or are connected with the same transaction, or result from
offenses committed at the same time, shall be counted for the
purposes of this Section as one conviction.@ (Emphasis added.) 720
ILCS 5/33BB1(c) (West 2002). This subsection does not erase the
offense which results in liability in the form of a conviction, by
transforming five convictions into one, regardless of the sentence
imposed. Rather, the provision provides that the mechanism is Afor
the purposes of this Section@ (720 ILCS 5/33BB1(c) (West 2000)),
and the purpose of the section is to calculate the sum which results in
defendant=s status as an habitual criminal. This status requires an
enhanced sentence in accordance with the legislative determination
that defendant may not be rehabilitated, such that societal protection
in the form of permanent removal of defendant from society is
necessary. The sum does not result in a new conviction, but in an
enhanced sentence on any of defendant=s convictions after he has
been adjudged an habitual criminal.
Because the Act does not create an independent Aconviction,@ the
parties= arguments over whether the definition of Aconviction@
includes a sentence is beside the point. Instead, the word Aconviction@
is placed within the context of the entire Act, a sentencing statute,
and must be construed accordingly.
This holding is in line with the outcomes of numerous cases. We
note that in each case, unlike the appellate court in the present matter,
the court did not merge the most recent convictions into Aone
conviction@ by terms of the Act, regardless of the sentence imposed.
Rather, a sentence was imposed, without effect upon the number of
convictions. See People v. Robinson, 167 Ill. 2d 53 (1995) (defendant
convicted of armed robbery and armed violence and sentenced to one
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sentence of natural-life imprisonment); People v. Henderson, 343 Ill.
App. 3d 1108 (2003) (defendant convicted in 1983 of rape and
deviate sexual assault, but only given one natural-life sentence);
People v. Watson, 338 Ill. App. 3d 765 (2003) (defendant convicted
of aggravated criminal sexual assault and aggravated kidnapping, but
sentenced to only one natural-life sentence); People v. Madison, 334
Ill. App. 3d 680 (2002) (defendant sentenced for committing the two
attempted murders and the armed robbery with three apparently
concurrent natural-life sentences); People v. Pickens, 323 Ill. App. 3d
429, 432 (2001) (defendant convicted of armed robbery, two counts
of aggravated battery with a firearm, and two counts of attempted
murder, but opinion does not consistently describe whether more than
one life sentence was imposed); People v. Norris, 303 Ill. App. 3d
163 (1999) (defendant received one sentence of natural-life
imprisonment on convictions for armed robbery and armed violence
and also sentenced to a concurrent five-year sentence for aggravated
battery); People v. Barnwell, 285 Ill. App. 3d 981 (1996) (defendant
convicted of aggravated criminal sexual assault, kidnapping and
robbery and sentenced to one natural-life sentence); People v.
Shriner, 262 Ill. App. 3d 10 (1994) (defendant convicted of home
invasion, two counts of armed robbery and two counts of unlawful
restraint and given one sentence of natural-life imprisonment on the
home invasion and armed robbery convictions); People v. Murdock,
259 Ill. App. 3d 1014 (1994) (defendant sentenced to one natural-life
sentence based on murder and robbery convictions).
Thus, the appellate court erred in holding that the remaining
convictions are to be transformed into Aone conviction@ for purposes
of sentencing under the Act. As we shall discuss shortly, however,
that error can hardly affect the actual sentence which defendant shall
serve in prison.
II
We now determine the proper sentence to be imposed on
defendant=s five Class X felony convictions. The State contends that
the provisions of the Act do not prohibit the imposition of more than
one natural-life sentence where a defendant is found guilty of
multiple Class X felonies committed during a single course of
conduct. We agree, as several provisions of the Code dictate that it is
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not error to sentence defendant on each conviction. First, the Code
provides that A[e]xcept as otherwise provided in the statute defining
the offense, a sentence of imprisonment for a felony shall be a
determinate sentence set by the court under this Section, according to
the following limitations.@ 730 ILCS 5/5B8B1(a) (West 2002).
Subsection (a)(2) provides one of these limitations, stating that a
person adjudged an habitual criminal under article 33B shall be
sentenced to natural-life imprisonment. 730 ILCS 5/5B8B1(a)(2)
(West 2002). Second, the Adisposition@ section of the Code, section
5B5B3, provides, in pertinent part, AEvery person convicted of an
offense shall be sentenced as provided in this Section.@ 730 ILCS
5/5B5B3 (a) (West 2002). The section further provides that when a
defendant is adjudged an habitual criminal under article 33B of the
Criminal Code of 1961, the court shall sentence defendant to a term
of natural-life imprisonment. 730 ILCS 5/5B5B3(c)(7) (West 2002).
Finally, the Act itself provides that A(e) Except when the death
penalty is imposed, anyone adjudged an habitual criminal shall be
sentenced to life imprisonment.@ 720 ILCS 5/33BB1(e) (West 2002).
Again, the Act and the Code do not prohibit sentencing on each
conviction resulting from the same transaction as the third eligible
conviction under the Act.
Hence, because defendant has been adjudged an habitual
criminal, the Code and the Act set forth the enhanced sentence on
each of his convictions: natural-life imprisonment. Therefore, the trial
court did not err in sentencing defendant to natural-life imprisonment
on each of defendant=s convictions.
III
We next consider the propriety of consecutive natural-life
sentences without parole. The State argues the trial court correctly
applied Code section 5B8B4(a) (730 ILCS 5/5B8B4(a) (West 2002)).
We disagree, as we find this result is contrary to the legislature=s
intent as to both the Act (720 ILCS 5/33BB1 (West 2002)) and the
Code.
We recognized in Dunigan that Athe legislature devised a separate
sentencing scheme for criminal defendants who have demonstrated a
propensity to commit violent crimes.@ Dunigan, 165 Ill. 2d at 243.
Moreover,
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AThe legislature obviously considered the seriousness of the
offense when it enacted the Act, which applies only to Class
X felonies, first degree murder and criminal sexual assault,
offenses recognized to be particularly violent and dangerous
to society. The legislature also weighed the rehabilitative
potential of offenders by limiting the Act to those offenders
who have a third serious felony conviction within a
prescribed period of time. *** The Act may be invoked only
after a defendant has twice demonstrated that conviction and
imprisonment do not deter him from a life of crime. Thus, the
Act unquestionably represents a careful legislative
consideration of both the seriousness of the offense and the
rehabilitative potential of offenders subject to its terms.@
Dunigan, 165 Ill. 2d at 246-47.
We see no reason to depart from the legislative intent we recognized
in Dunigan that the Act is a Aseparate sentencing scheme@ merely
because defendant has committed multiple serious felonies
simultaneous to his Athird offense.@ This is consistent with the series
of cases cited earlier which adjudged the defendants habitual
criminals, but did not also apply the consecutive sentencing provision
of the Code. See Robinson, 167 Ill. 2d 53; Henderson, 343 Ill. App.
3d 1108; Watson, 338 Ill. App. 3d 765; Madison, 334 Ill. App. 3d
680; Pickens, 323 Ill. App. 3d 429; Norris, 303 Ill. App. 3d 163;
Barnwell, 285 Ill. App. 3d 981; Shriner, 262 Ill. App. 3d 10 (1994);
Murdock, 259 Ill. App. 3d 1014. The legislature has not made any
amendments to the Act or the consecutive-sentencing law in response
to these decisions.
Perhaps more importantly, we recognize the impossibility of
serving consecutive natural-life sentences both according to natural
law and within the plain meaning of the Aconsecutive@ sentencing
law, section 5B8B4(a). 730 ILCS 5/5B8B4(a) (West 2002). This
impossibility is based on the critical distinction between a term of
natural-life imprisonment and that of a term of years, namely, the
particular sentences= potential for release of defendant. Unlike a term
of years, the Code provides that A[n]o person serving a term of natural
life imprisonment may be paroled or released except through
executive clemency.@ 730 ILCS 5/3B3B3(d) (West 2002). With the
unavailability of parole or release for defendant in mind, we examine
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section 5B8B4(a) of the Code (730 ILCS 5/5B8B4(a) (West 2002)). It
provides:
AConcurrent and Consecutive Terms of Imprisonment.
(a) When multiple sentences of imprisonment are imposed
on a defendant at the same time, *** the sentences shall run
concurrently or consecutively as determined by the court. ***
The court shall not impose consecutive sentences for offenses
which were committed as part of a single course of conduct
during which there was no substantial change in the nature of
the criminal objective, unless:
(i) one of the offenses for which defendant was
convicted was first degree murder or a Class X or Class 1
felony and the defendant inflicted severe bodily injury,
***
***
in which event the court shall enter sentences to run
consecutively. 730 ILCS 5/5B8B4(a)(i) (West 2002).
All of the offenses committed by defendant were Class X offenses,
and there is no dispute that defendant inflicted severe bodily injury to
both M.J. and D.J. However, we hold that the section 5B8B4(a) does
not apply here, based on the plain meaning of the word Aconsecutive.@
The necessity of this holding is foreshadowed in our case law.
Previous judicial pronouncements have failed to acknowledge the
impossibility of serving and enforcing sentences consecutive to death
or life without parole. For example, we have previously
circumscribed the consecutive sentencing law where there has been a
sentence of death. See, e.g., People v. Johnson, 149 Ill. 2d 118
(1992); People v. Terrell, 132 Ill. 2d 178 (1989). In Johnson, we held
that 30-year sentences for two attempted murder convictions could
not run consecutive to the death sentence. Johnson, 149 Ill. 2d at 159.
Johnson was based partly on People v. Terrell, 132 Ill. 2d 178
(1989), where we held that a death sentence is not to be considered a
Aterm of imprisonment@ within the meaning of the consecutive-
sentencing statute (Ill. Rev. Stat. 1985, ch. 38, par. 1005B8B4(a)).
Neither Johnson nor Terrell, however, mentioned the plain meaning
of the word Aconsecutive@ and the impossibility of serving any term
of years consecutive to a death sentence.
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This uneasiness is also exhibited in cases where a defendant has
received consecutive natural-life sentences. We have previously not
addressed this issue, although we have been presented cases with
such sentences without challenge to their propriety. People v.
Caballero, 206 Ill. 2d 65 (2002); People v. Hendricks, 137 Ill. 2d
31(1990). Only two appellate court cases have explicitly considered
the issue, People v. Hattery, 183 Ill. App. 3d 785 (1989), and People
v. Bush, 103 Ill. App. 3d 5 (1981). In Hattery, defendant was
convicted and sentenced to three consecutive natural-life terms. The
Hattery court discussed arguments set forth and rejected in other
cases. The court noted Bush, which emphasized that consecutive
natural-life sentences were necessary because of the nature of the
offense and for the protection of society. Hattery, 183 Ill. App. 3d at
831. The court further cited People v. Epps, 143 Ill. App. 3d 636
(1986), which stated that sentences consecutive to a natural-life
sentence were necessary to protect the public because the sentence
could be of consequence should the legislature, the governor, or the
appellate court act under appropriate authority to modify or commute
a sentence. Hattery, 183 Ill. App. 3d at 832. Additionally cited in
Hattery was the Epps court=s statement that A >the legislature has
apparently recognized that consecutive sentences serve a useful
purpose, for it has provided for mandatory consecutive sentences in
certain circumstances= [citation] and has never imposed >any
limitation on the length or nature of the sentence involved.= @ Hattery,
183 Ill. App. 3d at 831, quoting Epps, 143 Ill. App. 3d at 643.
Further, the Hattery court noted that the legislature=s latest
amendments to section 5B8B4 have made no exceptions for terms of
natural-life imprisonment. Hattery, 183 Ill. App. 3d at 831. Rather, it
noted that the legislature failed to make any exceptions to
consecutive natural-life terms in response to case law.
Notably, the Hattery court stopped short of explicitly endorsing
any of these arguments or specifically identifying a useful purpose
that consecutive natural-life sentences may have. Instead, the Hattery
court concluded, AThus, where case law supports upholding
defendant=s consecutive sentences, and action by neither the
legislature nor our supreme court precludes them, and where the
express terms of the governing statute do not preclude them, we
cannot find that the trial court, having met all statutory requirements,
erred in sentencing defendant ***.@ Hattery, 183 Ill. App. 3d at 832.
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Like Johnson and Terrell, the court did not address the plain meaning
of the word Aconsecutive@ or the possibility of actually serving
consecutive natural-life terms.
Here, we attempt to relieve this judicial uneasiness by
acknowledging the elephant in the room and the plain meaning of the
word Aconsecutive.@ AConsecutive@ has been defined as Afollowing
esp. in a series: one right after the other often with small intervening
intervals.@ Webster=s Third New International Dictionary 482 (1993).
Additionally, Aconsecutive sentences@ are A[t]wo or more sentences of
jail time to be served in sequence. $ For example, if a defendant
receives consecutive sentences of 20 years and five years, the total
amount of jail time is 25 years.@ Black=s Law Dictionary 1393-94 (8th
ed. 2004). It belabors the obvious to state that at the conclusion of a
defendant=s first natural-life sentence, his life is over. Further, the
Department of Corrections cannot enforce an order imposing another
natural-life sentence consecutive to it. Thus, consecutive natural-life
sentences cannot follow in a series right after one another. Defendant
cannot serve two natural-life sentences in sequence, nor will the total
amount of two or more natural-life sentences ever be more than
defendant=s one life. There is only one way in which a defendant can
serve the sentences, with his one life. Therefore, the sentences may
not be consecutive, but must be concurrent because concurrent
sentences are sentences which operate simultaneously. Black=s Law
Dictionary 1393 (8th ed. 2004).
Moreover, the purpose of the consecutive sentencing statute is not
furthered by consecutive natural-life sentences. ABy enacting the
mandatory consecutive sentencing provision of section 5B8B4(a), the
legislature sought to punish the commission of triggering offenses
more harshly than the commission of other crimes. [Citation.] This
legislative intent would be defeated if the triggering and
nontriggering offenses were treated in a like manner.@ People v.
Curry, 178 Ill. 2d 509, 538 (1997). Here, the disparate treatment of
triggering and nontriggering offenses is not at issue; therefore, our
decision is consistent with Curry. Absent the death penalty, it is not
possible to punish defendant more harshly. It is also clear that, by
means of the Habitual Criminal Act, the legislature expressed the
intent that habitual criminals, like defendant, are not capable of being
rehabilitated, and should therefore be removed permanently from
society. A consecutive natural-life sentence cannot advance that goal.
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We also reject the additional arguments noted in Hattery. The
first additional argument is Athat the sentence could be of
consequence should the legislature, the governor, or an appellate
court act under appropriate authority to modify or commute a
sentence.@ This argument is not only pure speculation as to the fate of
defendant in this case, but it speculates as to the actions of all three
branches of government without setting forth any reason why they
may so act. Our reasoning is based on defendant=s lack of any
prospect for parole, the only certain fact. Second, the argument that
the legislature did not change the consecutive sentencing law in light
of Hattery and Bush is also unpersuasive. As we noted above, the
legislature did not amend the Habitual Criminal Act in the cases cited
above where the courts failed to impose multiple sentences of
natural-life imprisonment or impose those sentences consecutively.
Finally, we acknowledge defendant=s crimes warrant the harshest
of penalties, other than death. Certainly, given the approximately
two- hour period of violence endured by M.J., D.J., and their
daughters, we cannot quibble with the fact that the Anature of the
offense@ that defendant has committed may have caused the
perception that justice necessitates consecutive natural-life sentences.
We simply believe the harshest of penalties is concurrent natural-life
sentences. Calling it consecutive would add not one minute or one
day to defendant=s punishment. If it did, there would be every
justification.
But there is a countervailing value in prohibiting the imposition
of consecutive natural-life sentences which can never be carried out.
Additionally, because defendant will serve no more or no less than
the rest of his life in jail, if we affirm the trial court, the defendant
will not be actually prejudiced. However, if we affirm the appellate
court, the State also will not be actually prejudiced. This may explain
the reticence of some previous courts to apply several natural-life
sentences when they were able to do so, or even apply them
consecutively. We explicitly find, as these aforementioned courts also
did implicitly, that defendant=s actual sentence is governed by the
laws of nature, regardless of whether a trial judge imposes his
sentence consecutively or concurrently. Because defendant may only
serve these sentences concurrently, we reverse the circuit court=s
imposition of consecutive natural-life sentences on the five remaining
convictions. Accordingly, under Supreme Court Rule 615(b)(4) (see
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134 Ill. 2d R. 615(b)(4)), we change the defendant's sentence to five
concurrent sentences of natural-life imprisonment.
CONCLUSION
For the foregoing reasons, we reverse the judgment of the
appellate court concerning the Habitual Criminal Act holding that the
trial court erred in imposing natural-life sentences on each of
defendant=s remaining five convictions. We therefore affirm the
circuit court=s judgment on the five remaining convictions and
natural-life sentences for each conviction. However, we reverse the
circuit court=s judgment that defendant served those sentences
consecutively and we impose concurrent sentences in the exercise of
our supervisory authority pursuant to Supreme Court Rule 615(b)(4).
Appellate court affirmed in part
and reversed in part;
circuit court affirmed in part
and reversed in part;
sentence modified.
JUSTICE GARMAN, concurring in part and dissenting in part:
Because I conclude that section 5B8B4(a) of the Unified Code of
Corrections (Code) (730 ILCS 5/5B8B4(a) (West 2002)) requires the
imposition of consecutive life sentences when a conviction for
multiple felonies triggers the operation of the Habitual Criminal Act
(Act) (720 ILCS 5/33BB1 et seq. (West 2002)), I respectfully dissent
in part.
The majority errs in relying on the Alaws of nature@ (slip op. at 17)
rather than the laws established by our state legislature. This case
concerns the interpretation of two of those laws: the Habitual
Criminal Act (720 ILCS 5/33BB1 et seq. (West 2002)) and the
sentencing provisions of the Unified Code of Corrections (730 ILCS
5/5B8B1 et seq. (West 2002)). The primary rule of statutory
construction is to ascertain and give effect to the intent of the
legislature. People v. Whitney, 188 Ill. 2d 91, 97 (1999). The
language of a statute is the best means of determining legislative
intent. Whitney, 188 Ill. 2d at 97. It is unnecessary to look beyond the
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plain language of the statutes at issue to reach the proper result in this
case.
The power to determine the appropriate punishment for criminal
conduct rests with the legislature (People v. Taylor, 102 Ill. 2d 201,
205 (1984)), while A[t]he judiciary=s discretion in fashioning a
criminal sentence extends only as far as the parameters of the
sentencing statute permit@ (People v. Wooters, 188 Ill. 2d 500, 506
n.1 (1999)). Via the Unified Code of Corrections, the legislature has
imposed specific requirements upon circuit courts with respect to the
imposition of mandatory consecutive sentences, and the circuit court
is responsible for enforcing these requirements and imposing the
appropriate sentence. 730 ILCS 5/5B8B4 (West 2004); People ex rel.
Waller v. McKoski, 195 Ill. 2d 393, 399B401 (2001).
In enacting and later amending section 5B8B4 of the Code, the
legislature determined that the sentences for certain felonies shall be
served consecutively:
AConcurrent and Consecutive Terms of Imprisonment.
(a) When multiple sentences of imprisonment are imposed
on a defendant at the same time, *** the sentences shall run
concurrently or consecutively as determined by the court. ***
The court shall not impose consecutive sentences for offenses
which were committed as part of a single course of conduct
during which there was no substantial change in the nature of
the criminal objective, unless:
(i) one of the offenses for which defendant was
convicted was first degree murder or a Class X or Class 1
felony and the defendant inflicted severe bodily injury,
***
***
in which event the court shall enter sentences to run
consecutively.@ 730 ILCS 5/5B8B4(a)(i) (West 2002).
As this court has noted, these consecutive sentencing provisions
are mandatory once the trial court has determined that the defendant=s
course of conduct qualifies. People v. Harris, 203 Ill. 2d 111, 114B15
(2003). The trial court in this case appropriately determined that the
defendant=s five Class X felonies and the severe bodily injury he
inflicted upon M.J. and D.J. qualify the defendant for consecutive
sentencing under section 5B8B4(a)(i). Thus, regardless of the duration
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of the defendant=s sentences, the trial court was required to order that
he serve those sentences consecutively. Neither the trial court, nor
this court, possesses the discretion to breach these statutory
parameters requiring consecutive sentencing. See Wooters, 188 Ill. 2d
at 506 n.1.
While section 5B8B4 determines that the defendant=s five
sentences must be served consecutively, the Habitual Criminal Act
(720 ILCS 5/33BB1 et seq. (West 2002)) determines the duration of
each sentence. Having been twice convicted of qualifying felonies,
the defendant is a habitual criminal who must be sentenced to life
imprisonment. 720 ILCS 5/33BB1 (West 2002). The majority
correctly concludes that the Act requires a sentence of natural-life
imprisonment for each of the defendant=s convictions (slip op. at 11).
It is these life sentences to which section 5B8B4(a) applies, requiring
that they be served consecutively.
The Unified Code of Corrections subjects all felons, including
habitual criminals, to its felony sentencing provisions. It
acknowledges its relationship with the Habitual Criminal Act by
noting that when a defendant has committed a felony and is adjudged
a habitual criminal, the sentence for the felony will be a term of
natural-life imprisonment:
AExcept as otherwise provided in the statute defining the
offense, a sentence of imprisonment for a felony shall be a
determinate sentence set by the court under this Section,
according to the following limitations:
***
(2) for a person adjudged a habitual criminal under
Article 33B of the Criminal Code of 1961, as amended
[720 ILCS 5/33BB1 et seq. (West 2002)], the sentence
shall be a term of natural life imprisonment[.]@ 730 ILCS
5/5B8B1(a)(2) (West 2002).
The remainder of section 5B8B1 establishes the required sentences
of imprisonment for the various classes of felonies. The Code then
goes on to detail, in section 5B8B4(a), what happens when a
defendant commits more than one of these felonies, causing a trial
court to impose more than one of these sentences. 730 ILCS
5/5B8B4(a) (West 2002). Section 5B8B4 contains no indication that
the habitual criminal life sentences recognized by section 5B8B1(a)(2)
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are not subject to its provisions. Lacking an exemption, multiple life
sentences are subject to section 5B8B4 in the same way as all other
sentences detailed by section 5B8B1. Although the Habitual Criminal
Act does, as the majority noted, establish a separate sentencing
scheme (slip op. at 7), the reference to the Act in the Unified Code of
Corrections reinforces the conclusion that the two schemes must be
read together.
In imposing concurrent sentences, the majority notes that
ADefendant cannot serve two natural-life sentences in sequence, nor
will the total amount of two or more natural-life sentences ever be
more than defendant=s one life.@ Slip op. at 15. However, serving five
consecutive life sentences is no more of a factual impossibility than
serving five concurrent life sentencesB after all, it is impossible for
the defendant to serve five days= time in one 24-hour period. A
scenario can be factually impossible, yet still be legally possible, as
when a defendant is convicted of attempted theft even though his
intended victim had nothing of value to steal. See 720 ILCS
5/5B8B4(b) (West 2004) (factual impossibility is no defense to a
charge of attempt); People v. Richardson, 32 Ill. 2d 497, 502 (1965).
Here, the legislature has determined it is legally possible to serve
consecutive natural-life sentences. The majority observes that
A[c]alling it consecutive@ will not actually increase or decrease the
amount of time the defendant spends in jail (slip op. at 16), and thus
its decision cannot prejudice either the defendant or the State (slip op.
at 16). This reasoning, however, overlooks the significance of
consecutive sentences to the public and to crime victims such as M.J.
and D.J. The legislature has apparently determined that the
imposition of consecutive life sentences is meaningful, if only
symbolically, and this court must give effect to the legislature=s clear
intent. McKoski, 195 Ill. 2d at 399-401.
In addition, some disquietude remains under the surface of the
majority=s waves of assurances that consecutive life sentences would
never be necessary to protect the public should one of the branches of
government act to impact defendant=s length of incarceration. The
majority could easily dispel such concerns by simply following the
sentencing framework enacted by the legislature.
Using the language of the Act (720 ILCS 5/33BB1 et seq. (West
2002)) and section 5B8B4(a) of the Code (730 ILCS 5/5B8B4(a) (West
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2002)), the legislature has mandated the imposition of consecutive
natural-life sentences when a conviction for multiple felonies triggers
the operation of the Habitual Criminal Act. The trial court sentenced
the defendant in accordance with the mandate of these statutes. I
would affirm the judgment of the trial court as to the five convictions
not vacated by the appellate court.
CHIEF JUSTICE THOMAS and JUSTICE KARMEIER join in
this partial concurrence and partial dissent.
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