THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JOSEPH HAUSCHILD, Appellant.
No. 102468
Supreme Court of Illinois
Opinion filed June 7, 2007.
Lisa Madigan, Attorney General, of Springfield, and John A. Barsanti, State’s Attorney, of St. Charles (Gary Feinerman, Solicitor General, and Michael M. Glick and Garson Fischer, Assistant Attorneys General, of Chicago, of counsel), for the People.
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.
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.
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 (
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 (
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 (
ANALYSIS
On appeal to this court, defendant rаises 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 defendаnt’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
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, arе “forfeited”); People v. Rogers, 197 Ill. 2d 216, 221 (2001) (same). Defendant, however, urges us to follow In
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 post-trial motion or in his petition for leave to appeal where his related proportionate penalties and due process constitutional challenges were 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
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
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” (
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.”
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
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 sentence enhancement for both armed robbery while armed with a firearm (
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 armеd robbery and attempted murder convictions, and
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. Defen-
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 sсheme 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-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
Having now determined that Sharpe’s holding pertains to defendant’s casе, 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,
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 (
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.”
“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 kidnapping with a category I weapon, a Class X felony punishable by 6 to 30 years’ imprisonment, was unconstitutionally disproportionate to the penalty for aggravated kidnapping, 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 was punished more severely, the defendant was entitled to have his conviction for armed violence vacated and thе cause remanded for sentencing on the offense with the lesser penalty, aggravated kidnapping. 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
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 а 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 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
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 еxpressly excluded armed robbery as a predicate offense for armed violence, the offense of robbery was not excluded (
Accordingly, we must now compare
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
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 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 of-
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 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 felоny punishable by 6 to 30 years’ imprisonment (
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
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 tо 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 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.
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 conсessions 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
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 fоr attempted murder and directs the circuit court, on remand, to conduct a new sentencing hearing wherein the 15-year penalty mandated by
Appellate court judgment affirmed in part and reversed in part; cause remanded.