People v. GravesPeople v. Graves
The issue presentеd is whether the penalty for unauthorized theft of $20,000 from a victim over the age of 60 (
BACKGROUND
While working as an investment representative at Edward Jones, defendant, James P. Graves, misappropriated a $20,000 check entrusted to him by a 71-year-old man and his 93-year-old mother. Defendant later pleaded guilty to unauthorized theft of more than $10,000 but not more than $100,000, an offense that ordinarily is a Class 2 felony carrying a sentence of 3 to 7 years in prison.
Before the appellate court, defendant first argued that his extended-tеrm sentence was unconstitutional under the United States Supreme Court‘s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In support, defendant noted that the statutory aggravating factor in this case—i.e., the age of the victims—was neithеr charged in the indictment nor proven beyond a reasonable doubt. Citing this court‘s decision in People v. Jackson, 199 Ill.2d 286, 263 Ill.Dec. 819, 769 N.E.2d 21 (2002), the appellate court held that defendant‘s guilty plea waived any Apprendi-based challenges to his sentence. 332 Ill.App.3d 685, 688, 266 Ill.Dec. 173, 773 N.E.2d 1243.
In the alternative, defendant argued that his 12-year sentence violates the proportionate penalties clause of the Illinois Constitution (
Finally, defendant argued that the $20,000 restitution payment should be redirected from the victims tо Edward Jones. According to defendant, Edward Jones has already reimbursed the victims for their $20,000 loss, and thus the payment of an additional $20,000 to the victims would constitute an unjustified windfall. The appellate court did not reach the merits of this argument, instead remanding the cause for further fact finding. 332 Ill.App.3d at 691, 266 Ill.Dec. 173, 773 N.E.2d 1243.
We allowed the State‘s petition for leave to appeal.
A statute is presumed constitutional, and the party challenging the statute bears the burden of demonstrating its invаlidity. In re K.C., 186 Ill.2d 542, 550, 239 Ill.Dec. 572, 714 N.E.2d 491 (1999). This court has a duty to construe a statute in a manner that upholds its validity and constitutionality if it reasonably can be done. People v. Malchow, 193 Ill.2d 413, 418, 250 Ill.Dec. 670, 739 N.E.2d 433 (2000). Whether a statute is constitutional is a question of law thаt we review de novo. Malchow, 193 Ill.2d at 418, 250 Ill.Dec. 670, 739 N.E.2d 433.
In evaluating statutory challenges brought under the proportionate penalties clause of the Illinois Constitution, this court has employed three distinct tests. First, a penalty violаtes the proportionate penalties clause if it is cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community. People v. Bailey, 167 Ill.2d 210, 236, 212 Ill.Dec. 608, 657 N.E.2d 953 (1995), quoting People v. Gonzales, 25 Ill.2d 235, 240, 184 N.E.2d 833 (1962), quoting People ex rel. Bradley v. Illinois State Reformatory, 148 Ill. 413, 421-22, 36 N.E. 76 (1894). Second, a penalty violates the proportionate penalties clause where similar offenses are compared and conduct that creates a lеss serious threat to the public health and safety is punished more severely. People v. Davis, 177 Ill.2d 495, 503, 227 Ill.Dec. 101, 687 N.E.2d 24 (1997). Third, the proportionate penalties clause is violated “where offenses with identical elements are given different sentences.” People v. Moss, 206 Ill.2d 503, 522, 276 Ill.Dec. 855, 795 N.E.2d 208 (2003); see also Davis, 177 Ill.2d at 503, 227 Ill.Dec. 101, 687 N.E.2d 24; People v. Christy, 139 Ill.2d 172, 181, 151 Ill.Dec. 315, 564 N.E.2d 770 (1990).
Here, we are concerned only with the last of these tests, the identical elements test. This test formed the sole basis for the appellate court‘s ruling, and it is the sole basis upon which defendant defends that ruling before this court. Under this test, the elements of the respective offenses must be identical before the proportionate penalties clause will be implicated. See Davis, 177 Ill.2d at 503, 227 Ill.Dec. 101, 687 N.E.2d 24; Christy, 139 Ill.2d at 181, 151 Ill.Dec. 315, 564 N.E.2d 770. In Christy, for example, this court observed that the commission of kidnapping while armed with a knife with a blade of at least three inches in length сonstitutes both aggravated kidnapping and armed violence with a category I weapon. Christy, 139 Ill.2d at 181, 151 Ill.Dec. 315, 564 N.E.2d 770. The court then noted that, “[s]ince the elements which constitute aggravated kidnapping and armed violence are identical, common sense and sound logic would seemingly dictate that their penalties be identical.” (Emphasis added.) Christy, 139 Ill.2d at 181, 151 Ill.Dec. 315, 564 N.E.2d 770. Nevertheless, aggravated kidnapping was a Class 1 felony punishаble by 4 to 15 years in prison, while armed violence predicated upon kidnapping with a category I weapon was a Class X felony punishable by 6 to 30 years in prison. Accordingly, the cоurt held that the penalties for aggravated kidnapping and armed violence were unconstitutionally disproportionate. Christy, 139 Ill.2d at 181, 151 Ill.Dec. 315, 564 N.E.2d 770.
Unlike the offenses in Christy, and contrary to the appellate court‘s holding below, the offenses at issue in this case do not share identical elements. A person commits unauthorized theft when he or she knowingly obtains or exerts unauthorized control over property оf the owner.
In support of the opposite assertion—that “the two offenses require the same elements“—the appellate court below cited People v. Fowler, 72 Ill.App.3d 491, 494, 28 Ill.Dec. 787, 390 N.E.2d 1377 (1979), which in turn cites this court‘s decision in People v. Marino, 44 Ill.2d 562, 256 N.E.2d 770 (1970). The appellate court‘s reliance upon these decisions is misplaced. In Marino, the defendants were charged with unauthorized theft under what is now
CONCLUSION
Under the identical elements test, the proportionate penalties clause is violated
Affirmed in part and reversed in part; cause remanded.