People v. Hauschild , 226 Ill. 2d 63 ( 2007 )

Docket No. 102468.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
JOSEPH HAUSCHILD, Appellant.
Opinion filed June 7, 2007.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,
Garman, and Burke concurred in the judgment and opinion.
OPINION
Following a jury trial in the Kane County circuit court, defendant,
Joseph Hauschild, was convicted of, inter alia, home invasion, armed
robbery and attempted first degree murder. Defendant appealed and
the appellate court originally reversed his convictions for armed
robbery and home invasion, substituted a conviction for simple
robbery and remanded for resentencing. Following a grant of the
State’s petition for rehearing, the appellate court affirmed defendant’s
convictions and remanded for resentencing on the armed robbery and
attempted murder convictions. 364 Ill. App. 3d 202. This court
allowed defendant’s petition for leave to appeal. 210 Ill. 2d R. 315.
For the reasons that follow, we affirm in part and reverse in part the
judgment of the appellate court.
BACKGROUND
On August 14, 2001, defendant and codefendant, Ethan Warden,
broke into a residence occupied by Thomas Wright and his family.
Defendant and Warden were each armed with a handgun. The two
men entered the master bedroom, awakened Wright and his wife, and
demanded a safe. Wright struggled with one of the defendants, and
both defendants fired their weapons. Two shots hit Wright, causing
life-threatening wounds to his chest and abdomen, as well as serious
wounds to his right arm and left leg. The defendant and Warden then
fled the scene carrying a lockbox.
On September 14, 2001, defendant was indicted for attempted first
degree murder (720 ILCS 5/8–4(a), 9–1(a)(1) (West 2000)); armed
robbery (720 ILCS 5/18–2(a)(4) (West 2000)); home invasion (720
ILCS 5/12–11(a)(3) (West 2000)); home invasion (720 ILCS
5/12–11(a)(5) (West 2000)); aggravated battery with a firearm (720
ILCS 5/12–4.2(a)(1) (West 2000)); and criminal damage to property
(720 ILCS 5/21–1(1)(d) (West 2000)). Following a jury trial, in which
an accountability instruction was given, defendant was found guilty of
attempted murder, armed robbery and home invasion. The verdict
form for home invasion required the jury to make a specific factual
finding regarding a single offense of home invasion, and the jury
indicated that defendant was guilty in that he “personally discharged
a firearm during the offense.” See 720 ILCS 5/12–11(a)(4) (West
2000). On May 28, 2003, the trial court merged the aggravated
battery with a firearm conviction into the attempted murder conviction
and sentenced defendant to 35 years’ imprisonment for home invasion,
18 years’ imprisonment for attempted murder, and 12 years’
imprisonment for armed robbery, each to be served consecutively, as
well as a 2-year concurrent term of imprisonment for criminal damage
to property, for a cumulative sentence of 65 years’ imprisonment.
While the sentence for home invasion included a 20-year enhancement
based on the jury’s finding that defendant discharged a firearm during
the commission of the offense (720 ILCS 5/12–11(a)(4), (c) (West
2000)), the trial court refused to enhance defendant’s sentences for
armed robbery while armed with a firearm and attempted murder,
finding that the penalties for those offenses violated the proportionate
penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I,
§11) under the holdings of this court in People v. Walden, 199 Ill. 2d
-2-
392 (2002), and People v. Morgan, 203 Ill. 2d 470 (2003),
respectively.
In an opinion filed on October 5, 2005, the appellate court
affirmed defendant’s convictions for criminal damage to property and
attempted murder, but based on a cross-comparison analysis,
determined that the penalties imposed for the home invasion and
armed robbery offenses violated the proportionate penalties clause of
the Illinois Constitution (Ill. Const. 1970, art. I, §11), and that the
penalties were not severable from the substantive offenses. Thus, the
court reversed defendant’s convictions of those two offenses and
vacated the sentences imposed thereon. However, at defendant’s
request, the court supplanted his conviction of armed robbery with a
conviction of simple robbery and remanded the cause for resentencing.
One day later, October 6, 2005, this court filed its decision in People
v. Sharpe, 216 Ill. 2d 481 (2005), abandoning cross-comparison
analysis in proportionate penalties clause cases. The State therefore
filed a petition for rehearing in this case, based on Sharpe. The
appellate court granted the petition, withdrew its October 5, 2005,
opinion, and filed a new opinion in which it affirmed defendant’s
convictions for home invasion, attempted murder, armed robbery, and
criminal damage to property, but vacated his sentences for armed
robbery and attempted murder and remanded for resentencing on
those convictions. 364 Ill. App. 3d 202.
In its opinion after rehearing, the appellate court agreed with both
the State and defendant that he was actually charged with, and
convicted of, armed robbery pursuant to subsection (a)(2) of the
armed robbery statute (720 ILCS 5/18–2(a)(2) (West 2000)), as
opposed to subsection (a)(4) (720 ILCS 5/18–2(a)(4) (West 2000)),
as stated in the indictment. 364 Ill. App. 3d at 211. The panel also
held that: (1) the penalty for armed robbery was not unconstitutionally
disproportionate to the penalty for armed violence based on the
identical-elements test (364 Ill. App. 3d at 213-17); and (2) in light of
Sharpe, defendant’s sentences for armed robbery and attempted
murder, which the trial court had refused to enhance as violative of
the proportionate penalties clause, should be vacated and remanded
to the trial court for resentencing in accordance with the statutorily
mandated enhancements (364 Ill. App. 3d at 223-25). Additionally,
the appellate court affirmed defendant’s 35-year sentence for home
-3-
invasion, finding it was not excessive. 364 Ill. App. 3d at 220-22.
Finally, the panel rejected defendant’s claim, made for the first time in
his answer to the State’s petition for rehearing, that consecutive
sentences were not required for each of his home invasion, attempted
murder and armed robbery convictions, and instructed the trial court,
on remand, to order the sentences for each of the three offenses to run
consecutively. 364 Ill. App. 3d at 225, 227-29.
ANALYSIS
On appeal to this court, defendant raises the following three
issues: (1) whether his conviction for armed robbery must be reduced
to a conviction for simple robbery, because the penalty for that offense
is disproportionate to the penalty for an offense involving identical
elements, i.e., armed violence based on robbery; (2) whether his
existing sentences for armed robbery and attempted murder were
authorized by the law in effect at the time of sentencing such that
those sentences are not void and no new sentencing hearing is
required; and (3) whether his 65-year aggregate consecutive sentence
is excessive and unfairly harsh when compared to the 12-year sentence
imposed on his codefendant, who was allowed to plead guilty to
reduced charges in exchange for his testimony against defendant. We
choose to address defendant’s second contention first.
Effective January 1, 2000, our legislature enacted Public Act
91–404, the stated purpose of which is “to deter the use of firearms
in the commission of a felony offense.” Pub. Act 91–404, §5, eff.
January 1, 2000 (codified at 720 ILCS 5/33A–1(b)(1) (West 2000)).
To accomplish this purpose, the legislature increased the penalties for
certain felonies, including attempted murder and armed robbery, when
the offender possesses or uses a firearm during the commission of the
offense. See 720 ILCS 5/8–4(c)(1), 18–2 (West 2000). These
additional penalties are commonly referred to as the “15/20/25-to-life”
sentencing provisions. 364 Ill. App. 3d at 209; People v. Guevara,
216 Ill. 2d 533, 536 (2005). Defendant contends that the appellate
court erred in vacating his sentences for armed robbery while armed
with a firearm and attempted murder as void and remanding for
resentencing, where the trial court had properly refused to enhance
those offenses under People v. Walden, 199 Ill. 2d 392 (2002),
overruled by People v. Sharpe, 216 Ill. 2d 481 (2005), and People v.
-4-
Morgan, 203 Ill. 2d 470 (2003), overruled by People v. Sharpe, 216
Ill. 2d 481 (2005), which were binding precedent at the time of
defendant’s sentencing. Whether a judgment is void is a question of
law which we review de novo. See People v. Rodriguez, 355 Ill. App.
3d 290, 293-94 (2005); see also Ford Motor Credit Co. v. Sperry, 214
Ill. 2d 371, 378-79 (2005).
Initially we note that, as defendant admits, his answer to the
State’s rehearing petition did not challenge the State’s claim that these
sentences were void, rather he was proceeding “on the assumption
that the sentences were void, in the context of discussing whether the
appropriate remedy was to remand for a new sentencing hearing or
simply to add the 15-year enhancement to the existing sentence.”
Defendant now acknowledges that this issue “boils down to whether
Sharpe should be applied retroactively” and, if so, whether Sharpe
renders the existing nonenhanced sentences void. The State argues
that defendant’s failure to raise this argument at any time prior to his
filings in this court have caused its forfeiture, citing People v. Enoch,
122 Ill. 2d 176, 186 (1988). See also People v. Blair, 215 Ill. 2d 427,
443-44 (2005) (issues that could have been raised, but were not, are
“forfeited”); People v. Rogers, 197 Ill. 2d 216, 221 (2001) (same).
Defendant, however, urges us to follow In re C.R.H., 163 Ill. 2d 263,
274 (1994), wherein this court interpreted the rule of waiver1 as an
admonition to the parties and not a limitation on the jurisdiction of
reviewing courts, particularly where necessary to “provide a just
result.”
This court has noted in the past that a challenge to the
constitutionality of a statute may be raised at any time. People v.
McCarty, 223 Ill. 2d 109, 123 (2006); In re J.W., 204 Ill. 2d 50, 61-
62 (2003). In McCarty, 223 Ill. 2d at 123, the defendant did not
forfeit his statutory interpretation argument for failure to raise it in a
posttrial motion or in his petition for leave to appeal where his related
proportionate penalties and due process constitutional challenges were
1
We note that courts often use the terms “forfeit,” “waive,” and
“procedural default” interchangeably in criminal cases. For purposes of this
opinion, we henceforth use the term “forfeited” to mean issues that could
have been raised, but were not, and are therefore barred. See Blair, 215 Ill.
2d at 443-44.
-5-
not subject to forfeiture. Thus, here, we find that defendant has not
forfeited his claim, as it involves a determination of whether applying
Sharpe retroactively in order to resentence him under the enhanced
penalty statute would be a due process violation. Defendant also urges
this court to address this issue for reasons of judicial economy, as it
is presented in another case currently pending before this court,
People v. Harvey, 366 Ill. App. 3d 119 (2006), appeal allowed, 221
Ill. 2d 654 (2006) (table). While we find it unnecessary to address this
“judicial economy” rationale for evading forfeiture, our review of the
appellate court’s reasoning in Harvey does reveal it to be instructive
in examining the issues raised in the case at bar.
In Harvey, the defendant was charged in indictment No.
00–CR–12069 with 11 felony counts, consisting of 3 counts of
attempted murder, 4 counts of armed robbery and 4 counts of
aggravated battery with a firearm, and with 1 count of armed robbery
in indictment No. 00–CR–12146. Following a consolidated bench
trial, the defendant was convicted of two of the counts in No.
00–CR–12069, and with armed robbery while armed with a firearm
(720 ILCS 5/18–2(a)(2) (West 2000)), in No. 00–CR–12146. On
appeal, defendant raised several arguments concerning his convictions
and sentences in No. 00–CR–12069. The State, in its motion for leave
to file additional authority, argued for the first time that defendant’s
18-year sentence for armed robbery while armed with a firearm in No.
00–CR–12146 did not conform to the statutorily mandated minimum
sentence of 21 years’ imprisonment and was therefore void. In his
response to the State’s motion, the defendant contended, inter alia,
that Sharpe did not apply retroactively to his sentence and, even if
Sharpe did apply retroactively, the penalty for armed robbery while
armed with a firearm is unconstitutionally disproportionate to the
penalty for armed violence armed with a firearm. Harvey, 366 Ill.
App. 3d at 130. The panel held that Sharpe applied retroactively to
cases pending on direct review at the time of that decision’s entry.
However, it also found that because the defendant’s armed robbery
while armed with a firearm sentence violated the proportionate
penalties clause under the identical-elements test, his 18-year sentence,
imposed in accord with the statute as it existed prior to the adoption
of Public Act 91–404, should stand. Harvey, 366 Ill. App. 3d at 134.
-6-
Until this court’s recent decision in Sharpe, Illinois courts
recognized three ways in which a defendant’s sentence could violate
the proportionate penalties clause: (1) if it is cruel, degrading, or so
wholly disproportionate to the offense committed as to shock the
moral sense of the community; (2) if it is greater than the sentence for
an offense with identical elements; or (3) if it is greater than the
sentence for a similar offense that poses a greater threat to public
safety (cross-comparison). Sharpe, 216 Ill. 2d at 487, quoting People
v. Moss, 206 Ill. 2d 503, 522 (2003); Harvey, 366 Ill. App. 3d at 131.
Similar to the facts present in Harvey, at the time defendant herein
was sentenced in 2003, the armed robbery statute provided that armed
robbery committed while “armed with a firearm” (720 ILCS
5/18–2(a)(2) (West 2000)), “is a Class X felony for which 15 years
shall be added to the term of imprisonment imposed by the court”
(720 ILCS 5/18–2(b) (West 2002)). However, in People v. Walden,
199 Ill. 2d 392, 397 (2002), overruled by People v. Sharpe, 216 Ill.
2d 481 (2005), this court held that pursuant to the cross-comparison
test, the statutory 15-year mandatory enhancement for armed robbery
while armed with a firearm violated the proportionate penalties clause
of the Illinois Constitution and was “unenforceable.” Consequently,
the trial courts in the instant case and in Harvey found that they lacked
the authority, pursuant to Walden, to impose the 15-year “add on
penalty” to the defendants’ Class X sentences for armed robbery while
armed with a firearm. 364 Ill. App. 3d at 210; Harvey, 366 Ill. App.
3d at 131. Accordingly, following defendant’s conviction and
sentencing hearing, the trial court herein imposed a 12-year term,
which was within “ ‘the regular un-enhanced sentencing provisions’ ”
for the Class X offense of armed robbery. 364 Ill. App. 3d at 210-11;
720 ILCS 5/18–2(b) (West 2000); 730 ILCS 5/5–8–1(a)(3) (West
2000); cf. People v. Harvey, 196 Ill. 2d 444, 448 (2001) (if a trial
court imposes a sentence greater than that permitted by statute, the
excess portion of the sentence is void).
Similarly, the attempted murder statute provided, at the time of
defendant’s sentencing, that “an attempt to commit first degree
murder while armed with a firearm is a Class X felony for which 15
years shall be added to the term of imprisonment imposed by the
court.” 720 ILCS 5/8–4(c)(1)(B) (West 2000). However, in People
v. Morgan, 203 Ill. 2d 470, 491-92 (2003), overruled by People v.
-7-
Sharpe, 216 Ill. 2d 481 (2005), this court, using a cross-comparison
analysis, struck down the 15-year enhancement for attempted first
degree murder where “a firearm was in defendant’s possession,” as
unconstitutionally disproportionate to second degree murder.
Accordingly, under Morgan, the trial court herein found that it was
prohibited from imposing the enhanced portion of the penalty, and
therefore sentenced defendant to a nonenhanced term of 18 years’
imprisonment, within the 6- to 30-year range for the Class X felony of
attempted murder. 364 Ill. App. 3d at 207-08, 223; 720 ILCS
5/8–4(c)(1) (West 2000); 730 ILCS 5/5–8–1(a)(3) (West 2000).
As in People v. Harvey, 366 Ill. App. 3d 119 (2006), this court
decided Sharpe, which expressly overruled the decisions in Walden
and Morgan, while defendant’s case was pending on direct review. In
Sharpe, this court stated:
“After much reflection, we have concluded that cross-
comparison analysis has proved to be nothing but problematic
and unworkable, and that it needs to be abandoned. Those
cases that used such an analysis to invalidate a penalty are
overruled, and this court will no longer use the proportionate
penalties clause to judge a penalty in relation to the penalty for
an offense with different elements.” Sharpe, 216 Ill. 2d at 519.
Thus, Sharpe effectively “revived” the constitutionality of the 15-year
add on penalty for armed robbery while armed with a firearm and
attempted murder while armed with a firearm. See Harvey, 366 Ill.
App. 3d at 131. Put another way, because cross-comparison
proportionate penalties review was no longer part of our
jurisprudence following Sharpe, the Walden and Morgan decisions no
longer supported a finding that the 15-year sentencing enhancement
for armed robbery while armed with a firearm and attempted murder
while armed with a firearm violated the proportionate penalties clause
of the Illinois Constitution. See 364 Ill. App. 3d at 213, citing Sharpe,
216 Ill. 2d at 516-23; People v. Guevara, 216 Ill. 2d 533, 544-45
(2005). The question which we must now answer is whether Sharpe
should be applied retroactively to defendant’s case, which was
pending when our decision in Sharpe was rendered.
The State argues that Sharpe, which announced a new
constitutional rule, is to be applied retroactively so that defendant is
now eligible to be sentenced as mandated by the statutory 15-year
-8-
sentence enhancement for both armed robbery while armed with a
firearm (720 ILCS 5/18–2(a)(2) (West 2000)), and attempted murder
while armed with a firearm (720 ILCS 5/8–4(c)(1)(B) (West 2000)).
Defendant contends that applying Sharpe retrospectively to vacate
nonenhanced sentences that were valid under the prior caselaw would
violate due process by making the law less favorable to him than it
previously was, and by denying him his right to notice and fair
warning. We agree with the State.
We initially observe that the issue of the State’s right to appeal
defendant’s sentence is not before us because defendant, either
originally or on rehearing, appealed his armed robbery and attempted
murder convictions, and Supreme Court Rule 615(b) specifically
grants this court the authority to “modify the judgment or order from
which the appeal is taken.” 134 Ill. 2d R. 615(b)(1); see also People
v. Dixon, 91 Ill. 2d 346, 352-54 (1982); People v. Scott, 69 Ill. 2d 85,
88 (1977). It is well established that judicial opinions announcing new
constitutional rules applicable to criminal cases are retroactive to
those cases pending on direct review at the time the new rule is
announced. People v. Ford, 198 Ill. 2d 68, 72-73 (2001); People v.
Erickson, 117 Ill. 2d 271, 288 (1987), citing Griffith v. Kentucky, 479
U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987); Harvey, 366 Ill.
App. 3d at 132. As the Supreme Court noted in Griffith, the failure to
apply a new constitutional rule to criminal cases pending on direct
review, even when that rule is a “ ‘clear break’ [from] the past,”
violates the basic norms of constitutional adjudication. Griffith, 479
U.S. at 322, 328, 93 L. Ed. 2d at 658, 661, 107 S. Ct. at 713, 716.
Under this reasoning, we find that the rule announced in Sharpe is of
constitutional dimension (see People v. Gersch, 135 Ill. 2d 384, 393-
95 (1990) (distinguishing a new rule of law that is statutory in origin
from one that is constitutionally based)) and, therefore applicable to
defendant’s case. See Harvey, 336 Ill. App. 3d at 132. This conclusion
is consistent with our decision in Guevara which, in a case pending on
direct appeal at the time Sharpe was decided, applied the holding in
Sharpe, overturning Moss, to reverse and remand a trial court’s
dismissal of the defendant’s indictment for home invasion based on
Moss. Guevara, 216 Ill. 2d at 539, 544-45, see also Harvey, 366 Ill.
App. 3d at 132; People v. James, 362 Ill. App. 3d 1202, 1206-07
(2006) (finding that defendant’s request to reduce his sentence for
-9-
home invasion by 15 years because the mandatory 15-year
enhancement violated the proportionate penalties clause was
foreclosed by Guevara, even though he was sentenced prior to that
decision and while Moss had arguably invalidated the enhanced
sentencing provision for that offense).
Defendant argues that despite our holding in Guevara, Sharpe
cannot be applied retroactively to his case because Sharpe makes the
law less favorable to him than it was at the time of his sentencing. He
cites Bouie v. City of Columbia, 378 U.S. 347, 12 L. Ed. 2d 894, 84
S. Ct. 1697 (1964), where the United States Supreme Court held that
South Carolina could not retroactively apply a judicial decision
interpreting a criminal trespass statute in a way that expanded the
scope of the statute. Defendant claims that although applying Sharpe
retroactively would not expand the reach of the armed robbery and
attempted murder statutes by applying it to conduct that had
previously been lawful, it would increase the penalty range for each
offense beyond what could have been imposed when defendant was
sentenced.
We find defendant’s reliance on Bouie unpersuasive. As defendant
concedes, unlike Bouie, his conduct was prohibited by law at all
relevant points in time. Additionally, when defendant committed the
armed robbery and attempted murder in 2001, the enhanced sentences
for those offenses had not yet been found unconstitutional. While it is
correct to say that a defendant has a choice under which sentencing
scheme he wishes to be sentenced, i.e., the law in effect at the time the
offense was committed or that in effect at the time of sentencing
(People v. Hollins, 51 Ill. 2d 68, 71 (1972); People v. Malin, 359 Ill.
App. 3d 257, 261 (2005)), here, it was not the legislature which
changed the enhanced sentencing scheme during the pendency of
defendant’s case, but this court, in Walden and Morgan, which held
a portion of that sentencing scheme unconstitutional, and then
overruled itself in Sharpe. Thus, we find that the “new rule” in
Sharpe, announced while defendant’s case was pending on direct
appeal, does not afford defendant the same “choice of sentencing law”
applicable where a statutory change occurs during the prosecution of
a defendant’s case.
We are similarly unpersuaded by defendant’s argument that his
due process rights to notice and fair warning bar application of the 15-
-10-
year firearm enhancements. While defendant contends that Sharpe’s
restricted interpretation of the proportionate penalties clause was a
sudden and radical departure from prior law, we find that despite the
proportionality attacks to the 15/20/25-to-life sentence enhancements,
the statutes at issue remained intact and defendant was therefore on
notice that his conduct might fall within their scope. See Harvey, 366
Ill. App. 3d at 133; see also Rogers v. Tennessee, 532 U.S. 451, 462-
67, 149 L. Ed. 2d 697, 708-11, 121 S. Ct. 1693, 1700-03 (2001)
(Tennessee Supreme Court did not violate due process in judicially
abolishing the common law “year and a day rule” in murder cases and
applying that ruling to case of defendant which occurred when rule
was still in effect, because abolition of rule was neither “unexpected”
nor “indefensible” in light of prior court decisions). Furthermore,
defendant has not suggested that his purported reliance on the
unconstitutionality of the sentencing enhancements for armed robbery
and attempted murder had any effect on his decisions relating to plea
bargaining, whether to take a bench or a jury trial, or what trial
strategies to employ. See Harvey, 366 Ill. App. 3d at 133. We
therefore find that defendant is not deprived of due process by
application of the Sharpe decision.
Having now determined that Sharpe’s holding pertains to
defendant’s case, we must answer the remaining question, i.e.,
whether Sharpe renders defendant’s existing nonenhanced sentences
void. A sentence is void if it fails to conform to statutory
requirements. People v. Arna, 168 Ill. 2d 107, 113 (1995). Here,
although at the time of defendant’s sentencing Walden and Morgan
had rendered the 15-year enhanced penalties for his armed robbery
and attempted murder convictions unconstitutional, we find that the
overruling of those cases during the pendency of defendant’s appeal
has made the nonenhanced sentences imposed by the trial court
statutorily nonconforming and thus void. See 364 Ill. App. 3d at 223;
see also People v. Garcia, 179 Ill. 2d 55, 73 (1997) (trial court’s
imposition of concurrent sentences in certain instances where
consecutive sentences were mandated rendered defendants’ sentences
void). Thus, contrary to defendant’s contention in this court, but in
accord with his argument adopted by the appellate court, we believe
the proper remedy in this instance is to remand the cause to the trial
court for a new sentencing hearing. 364 Ill. App. 3d at 223-24, citing
-11-
Arna, 168 Ill. 2d at 112-13 (it was within appellate court’s authority
to remand cause to trial court for determination of appropriate
sentences to be imposed consecutively where imposition of concurrent
sentences did not conform to statutory requirement and was void).
This procedure will provide the trial court an opportunity to
determine, within the statutory sentencing range, the length of the
sentence for each offense while considering defendant’s sentence in its
totality. People ex rel. Waller v. McKoski, 195 Ill. 2d 393, 401-02
(2001) (where trial court’s judgment vacated as void and remanded
for resentencing with sentences to run consecutively, “[i]t remains
within the discretion of the circuit court to determine, within the
permissible statutory sentencing range [citations], the length of each
sentence to be imposed”); see also Guevara, 216 Ill. 2d at 545, 547
(reversal of trial court’s judgment and remand for further proceedings
required where trial court had dismissed home invasion count as
unconstitutional due to proportionate penalties violation which was
overturned on appeal). Accordingly, we hold that defendant’s 18-year
sentence for attempted murder while armed with a firearm must be
vacated and the cause remanded to the trial court to impose a
sentence within the Class X range, enhanced by the 15-year
mandatory penalty set forth in 720 ILCS 5/8–4(c)(1)(B) (West 2000).
Although our decision on the retroactivity of Sharpe also makes
defendant eligible for a mandatory 15-year enhancement of his armed
robbery while armed with a firearm conviction (720 ILCS
5/18–2(a)(2), (b) (West 2000)), our disposition of this issue requires
consideration of defendant’s first contention: that sentencing him to
an enhanced term violates the proportionate penalties clause of the
Illinois Constitution (Ill. Const. 1970, art. I, §11). Defendant contends
that the appellate court erred in rejecting his proportionate penalties
clause challenge to his armed robbery while armed with a firearm
conviction because, under the identical elements test, his conviction
for armed robbery while armed with a firearm is significantly more
severe than the sentence for the equivalent offense of armed violence
predicated on robbery with a category I or category II weapon (720
ILCS 5/18–2(a)(2), 33A–2(a) (West 2000)).2 Defendant argues that
2
A category I weapon is a handgun, sawed-off shotgun, sawed-off rifle,
any other firearm small enough to be concealed upon a person,
-12-
the appropriate relief for this violation of the proportionate penalties
clause is a reversal of his conviction for armed robbery while armed
with a firearm, a reduction of the offense to the lesser-included offense
of simple robbery, and remand of the cause for sentencing on the
reduced charge.
As this court stated in Sharpe:
“All statutes carry a strong presumption of constitutionality.
[Citation.] To overcome this presumption, the party
challenging the statute must clearly establish that it violates the
constitution. [Citation.] We generally defer to the legislature
in the sentencing arena because the legislature is institutionally
better equipped to gauge the seriousness of various offenses
and to fashion sentences accordingly. [Citation.]” Sharpe, 216
Ill. 2d at 487.
The proportionate penalties clause provides that “[a]ll penalties
shall be determined both according to the seriousness of the offense
and with the objective of restoring the offender to useful citizenship.”
Ill. Const. 1970, art. I, §11. “In analyzing a proportionate penalties
challenge, our ultimate inquiry is whether the legislature has set the
sentence in accord with the seriousness of the offense.” Guevara, 216
Ill. 2d at 543. As the constitutionality of a statute is purely a matter of
law, we review the question de novo. Sharpe, 216 Ill. 2d at 486-87.
“The identical elements test is an appropriate form of
proportionality review.” Harvey, 366 Ill. App. 3d at 133; see also
Guevara, 216 Ill. 2d at 544. In People v. Christy, 139 Ill. 2d 172
(1990), this court examined the defendant’s claim that his sentence for
armed violence predicated on kidnaping with a category I weapon, a
Class X felony punishable by 6 to 30 years’ imprisonment, was
unconstitutionally disproportionate to the penalty for aggravated
kidnaping, a Class I felony punishable by 4 to 15 years’ imprisonment,
because the elements of the offenses were identical. This court agreed,
finding that because the elements were identical and armed violence
semiautomatic firearm or machine gun. 720 ILCS 5/33A–1(c)(2) (West
2000). The parties do not dispute the fact that the firearm defendant used in
the commission of the armed robbery involved herein was a category I
weapon.
-13-
was punished more severely, the defendant was entitled to have his
conviction for armed violence vacated and the cause remanded for
sentencing on the offense with the lesser penalty, aggravated
kidnaping. Christy, 139 Ill. 2d at 174, 181.
In People v. Lewis, 175 Ill. 2d 412 (1996), the defendant was
charged with armed robbery and armed violence predicated on
robbery committed with a category I weapon. At the time Lewis was
decided, prior to the enactment of Public Act 91–404, armed robbery
was a Class X offense punishable by 6 to 30 years’ imprisonment, and
armed violence predicated on robbery with a category I weapon was
punishable by 15 to 30 years’ imprisonment. Lewis, 175 Ill. 2d at 418.
In the trial court, the defendant argued that the penalty for the offense
of armed violence predicated on robbery violated the proportionate
penalties clause because it was unconstitutionally disproportionate to
the penalty for the offense of armed robbery under an identical-
elements test. The trial court agreed and dismissed the armed violence
charge. Lewis, 175 Ill. 2d at 414-15. This court affirmed the trial
court’s finding that the two offenses had identical elements and its
dismissal of the charge of armed violence predicated on robbery,
reasoning that the application of the armed violence statute violated
the proportionate penalties clause. Lewis, 175 Ill. 2d at 415-24.
The appellate court herein, when faced with the same
proportionate penalties, identical-elements challenge, found that
because the Lewis court determined that the penalty for armed
violence predicated on robbery was unconstitutionally
disproportionate to the penalty for armed robbery, the offense of
armed violence “ceased to exist” after Lewis, so that it could not be
used as a basis to conduct a proportionate penalties analysis. 364 Ill.
App. 3d at 217. Thus, the court rejected defendant’s proportionate
penalties argument. 364 Ill. App. 3d at 217.
Contrary to the appellate court’s conclusion, we hold that the
comparison of armed robbery while armed with a firearm and armed
violence predicated on robbery is permissible. While Lewis, 175 Ill. 2d
at 423, found the sentencing scheme for armed violence predicated on
armed robbery to be unconstitutional as penalizing the same conduct
more severely than did the armed robbery statute, and therefore
unavailable to prosecutors, that prohibition was eradicated by the
legislature’s enactment of Public Act 91–404. In other words, Public
-14-
Act 91–404 “revived” the offense of armed violence predicated on
robbery when it amended the sentence for certain armed robberies to
add the 15/20/25-to-life provisions, creating more severe penalties for
those offenses than for armed violence predicated on robbery. See
Harvey, 366 Ill. App. 3d at 127. Therefore, we agree with the
appellate court in Harvey that, because the penalty for armed robbery
while armed with a firearm (720 ILCS 5/18–2(a)(2), (b) (West 2000))
is now greater than the penalty for armed violence predicated on
robbery with a category I or category II weapon (720 ILCS
5/33A–2(a), 33A–3(a) (West 2000)), the holding in Lewis cannot be
used as a basis to preclude comparison of the “revived” armed
violence offense to armed robbery while armed with a firearm for
purposes of proportionality review. See Harvey, 366 Ill. App. 3d at
127.
We also reject the State’s claim that because the legislature, in
enacting Public Act 91–404, excluded armed robbery as a predicate
offense of armed violence, it is inappropriate to compare the offenses
using the identical-elements test. Although it is true that Public Act
91–404 expressly excluded armed robbery as a predicate offense for
armed violence, the offense of robbery was not excluded (720 ILCS
5/33A–2(a) (West 2000)). The armed violence statute includes, as an
element of the offense, the commission of certain felonies, including
robbery, “while armed with a dangerous weapon.” 720 ILCS
5/33A–2(a) (West 2000). It therefore follows that every charge of
armed violence predicated on robbery would also be an armed
robbery. Thus, because the armed violence statute unambiguously
allows robbery to serve as a predicate offense, and those robberies are
inherently committed while armed, we must enforce the statute as
enacted and may not depart from the language by creating exceptions,
limitations, or conditions not expressed by the legislature. See People
v. Harvey, 366 Ill. App. 3d at 128, citing People v. Woodard, 175 Ill.
2d 435, 443 (1997).
Accordingly, we must now compare section 18–2(a)(2) of the
armed robbery statute with section 33A–2(a) of the armed violence
statute, as they exist today, to determine whether these two offenses
have identical elements but disparate sentences. In this case, defendant
was convicted of armed robbery while armed with a firearm. A person
commits that offense when he “takes property *** from the person or
-15-
presence of another by the use of force or by threatening the imminent
use of force” (720 ILCS 5/18–1(a) (West 2000)), and he “carries on
or about his *** person or is otherwise armed with a firearm” (720
ILCS 5/18–2(a)(2) (West 2000)). A person commits the offense of
armed violence predicated on robbery when, “while armed with a
dangerous weapon, he commits [robbery (720 ILCS 5/18–1 (West
2000))].” 720 ILCS 5/33A–2(a) (West 2000). A person is considered
to be “armed with a dangerous weapon” in the context of the armed
violence statute “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 33A–1(c)(1) (West 2000). Clearly, the statutory
elements of these offenses are identical, and proportionate penalties
analysis is therefore appropriate. See Harvey, 366 Ill. App. 3d at 128,
133-34.
Given that we have determined the elements of armed robbery
while armed with a firearm and armed violence predicated on robbery
with a category I or category II weapon are identical, “common sense
and sound logic would seemingly dictate that their penalties be
identical.” Christy, 139 Ill. 2d at 181. However, the penalties for these
offenses are not identical. A violation of section 18–2(a)(2) is a Class
X felony, which carries a 6 to 30 year term, with a mandatory “add-on
penalty” of 15 years, making the possible sentence for armed robbery
while armed with a firearm 21 to 45 years (720 ILCS 5/18–2(a)(2),
(b) (West 2000)), while a violation of section 33A–2(a) of the armed
violence statute is a Class X felony punishable by a sentence ranging
from 15 to 30 years (720 ILCS 5/33A–3(a) (West 2000)). Thus, in
accordance with our holdings in Christy and Lewis, we find
defendant’s 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)).
Further, we agree with the appellate court in Harvey, 366 Ill. App.
3d at 130, that although the State is not required to proceed on a
lesser offense when there is evidence sufficient to convict of a greater
offense (see People v. Cummings, 351 Ill. App. 3d 343, 347-48
(2004)), it is impermissible to allow the constitutional prohibition
-16-
against disproportionate penalties for identical crimes to be relaxed
where the State decides to proceed only with the crime carrying a
greater penalty. The court in Lewis rejected an argument by the State
that the trial court, in dismissing the armed violence charge as
violating the proportionate penalties clause, usurped the State’s
discretion in evaluating the evidence and deciding what offenses to
charge. Lewis, 175 Ill. 2d at 422. The court cited the following
language from Christy:
“ ‘Generally, prosecutorial discretion is a valuable aspect of
the criminal justice system. [Citation.] In the present case,
however, prosecutorial discretion will effectively nullify the
aggravated kidnapping statute, as skilled State’s Attorneys
will usually seek the more severe sentence and, therefore,
charge defendants with armed violence rather than aggravated
kidnapping. An ineffective aggravated kidnapping statute is
not what the legislature intended when it enacted both the
armed violence statute and aggravated kidnapping statutes.’
Christy, 139 Ill. 2d at 180.” Lewis, 175 Ill. 2d at 417.
The Lewis court went on to say that the State’s argument
misconstrues the nature of the defendant’s challenge to the armed
violence statute. Lewis, 175 Ill. 2d at 422. The defendant did not
allege improper use of prosecutorial discretion, rather, he argued the
State had no authority, discretionary or otherwise, to charge the
offense because it violated the proportionate penalties clause. Lewis,
175 Ill. 2d at 422. Therefore, here, while the State was not required
to charge defendant with the “lesser offense” of armed violence
predicated on robbery with a category I or category II weapon,
because the evidence at trial clearly established, and defendant does
not contest, his guilt of armed robbery while armed with a firearm, we
must determine the appropriate sentence for this latter offense given
the proportionate penalties violation.
Although Sharpe applies retroactively to defendant’s case,
because we have found that the current sentencing statute for armed
robbery while armed with a firearm violates the proportionate
penalties clause of the Illinois Constitution, the trial court is precluded
on resentencing from using this statutory scheme. See Harvey, 366 Ill.
App. 3d at 134. However, defendant was originally sentenced while
Walden was still good law, invalidating the enhanced penalty for
armed robbery while armed with a firearm as unconstitutionally
-17-
disproportionate under a cross-comparison analysis. Thus, the trial
court herein chose to impose a term of imprisonment in accordance
with the armed robbery statute as it existed before its amendment by
Public Act 91–404, which added the 15-year sentence enhancement.
364 Ill. App. 3d at 210. Prior to being amended by Public Act 91–404,
armed robbery was a Class X felony punishable by 6 to 30 years’
imprisonment (720 ILCS 5/18–2(b) (West 1998); 730 ILCS
5/5–8–1(a)(3) (West 1998)), and the trial court sentenced defendant,
within this range, to a 12-year term.
We agree with the trial court’s reasoning and therefore hold that,
when 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. See People v. Pizano, 347 Ill. App. 3d 128, 136 (2004)
(proper remedy where a statutory amendment is found to have
violated proportionate penalties clause is to remand the cause for a
new sentencing hearing under the statute in effect before the adoption
of the amendment); see also People v. Gersch, 135 Ill. 2d 384, 390
(1990) (“The effect of enacting an unconstitutional amendment to a
statute is to leave the law in force as it was before the adoption of the
amendment”). Thus, while the 12-year term originally imposed on
defendant is a proper one, we remand, as earlier noted, in order to
allow the trial court to reevaluate defendant’s sentence in light of his
cumulative sentence and to then resentence him within the range for
armed robbery as it existed prior to being amended by Public Act
91–404, eff. January 1, 2000. In light of this holding, we reject
defendant’s claim that his armed robbery while armed with a firearm
conviction should be reduced to “simple robbery.”
Finally, we address defendant’s contention that his 65-year
consecutive aggregate sentence is excessive and unfairly harsh when
compared to that of his codefendant, Warden. We note that, upon
rehearing in the appellate court, defendant argued only that his home
invasion sentence was excessive as compared to Warden, and that
because we have now vacated defendant’s sentences for both
attempted murder while armed with a firearm and armed robbery
while armed with a firearm, the 65-year cumulative sentence no longer
exists. However, because on remand the trial court will be required to
-18-
impose a consecutive aggregate sentence of similar or greater length,3
we choose to address the issue. See In re C.R.H., 163 Ill. 2d at 274.
Absent an abuse of discretion by the trial court, sentences may not
be altered on review. People v. Stacey, 193 Ill. 2d 203, 209-10
(2000). “[A] sentence within statutory limits will be deemed excessive
and the result of an abuse of discretion by the trial court where the
sentence is greatly at variance with the spirit and purpose of the law,
or manifestly disproportionate to the nature of the offense.” Stacey,
193 Ill. 2d at 210. Here, defendant contends that the appropriateness
of his sentence cannot be meaningfully determined without
considering the 12-year aggregate consecutive sentence given to
Warden. Warden, however, though charged with the same offenses as
defendant, made an agreement with the State to testify against
defendant in exchange for the opportunity to enter a plea of guilty to
reduced charges.
Defendant concedes that, generally, one who proceeds to trial
cannot compare his sentence to the sentence imposed on a
codefendant who entered a negotiated guilty plea. People v.
Caballero, 179 Ill. 2d 205, 217 (1997). He argues, nevertheless, that
this general rule “should not be applied blindly or mechanically.” In
Caballero, 179 Ill. 2d at 218, this court refused to compare one
defendant’s posttrial sentence to another defendant’s negotiated
sentence because “dispositional concessions are properly granted to
defendants who plead guilty when the interest of the public in the
effective administration of criminal justice would thereby be served.”
Here, as in Caballero, 179 Ill. 2d at 218, by pleading guilty, Warden:
“(1) acknowledged his guilt and showed willingness to assume
responsibility for his conduct; (2) made a public trial unnecessary; and
(3) gave cooperation which resulted in the successful prosecution of
another offender engaged in equally serious or more serious criminal
conduct.”
3
The minimum cumulative sentence which the trial court could impose on
remand is 62 years’ imprisonment, i.e., the existing concurrent 35- and 2-
year respective terms for home invasion and criminal damage to property,
plus new consecutive minimum terms of 21 years’ imprisonment for
attempted murder while armed with a firearm and 6 years’ imprisonment for
armed robbery. See 720 ILCS 5/8–4(c)(1)(B) (West 2000); 720 ILCS
5/18–2(b) (West 2000); 730 ILCS 5/5–8–1(a)(3) (West 1998).
-19-
Defendant contends that a “defendant should not lose his right to
challenge the fairness of his sentence in comparison to a codefendant’s
sentence simply because the State made a strategic decision, accepted
by the trial court, to boost its case against the defendant by using its
bargaining power to secure the testimony of the codefendant.” While
we agree that Warden was placed in a different position from
defendant because “the State put him in that position,” we also agree
with the State that this result occurs in every case involving a
negotiated plea agreement based upon a promise to testify in a
codefendant’s case. Thus, given this court’s clearly stated belief in the
public benefit obtained through the State’s ability to negotiate such
plea agreements (Caballero, 179 Ill. 2d at 218), we find that the trial
court in this case did not abuse its discretion in failing to compare the
reduced sentence imposed on codefendant Warden, with the sentence
defendant received following a jury trial.
CONCLUSION
Based upon the foregoing, we affirm that portion of the appellate
court’s judgment which vacates defendant’s nonenhanced sentence for
attempted murder and directs the circuit court, on remand, to conduct
a new sentencing hearing wherein the 15-year penalty mandated by
720 ILCS 5/8–4(c)(1)(B) (West 2000), is added to the base term of
between 6 and 30 years for this Class X offense. We further affirm the
appellate court’s judgment vacating defendant’s sentence for armed
robbery, but reverse the appellate court’s directive on remand, and
instruct the circuit court to resentence defendant to a term of between
6 and 30 years, in accordance with section 18–2 (720 ILCS 5/18–2
(West 1998)), as it existed prior to being amended by Public Act
91–404 (Pub. Act 91–404, eff. January 1, 2000). We affirm the
remainder of the appellate court’s judgment.
Appellate court judgment affirmed in part
and reversed in part;
cause remanded.
-20-