THE PEOPLE OF THE STATE OF ILLINOIS, Aрpellant, v. SALATHEO MOSS et al., Appellees. — THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. SALATHEO MOSS et al., Appellees. — THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DAVID MONTAGUEO, Appellee. — THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOSEPH CAMPOS, Appellee. — THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ANGEL GARCIA, Appellee. — THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MYCHAEL HORTON, Appellee. — THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. EDDIE REESE, Appellee. — THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOE HUNT, Appellee. — THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MARCO GARCIA, Appellee. — THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ANGELO SCOTT, Appellee. — THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DARVUS BARNETTE, Appellee. — THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. STEFFON MEADERDS, Appellee.
Nos. 91012, 91013, 91045, 91046, 91047, 91048, 91050, 91052 & 91328 cons. — (Nos. 91044 & 91051 cons. — (No. 91049.
Supreme Court of Illinois
June 19, 2003
206 Ill. 2d 503
James E. Ryan, Attorney General, of Springfield, and Richard A. Devine, State’s Attorney, of Chicago (William L. Browers, Assistant Attorney General, of Chicago, and Renee G. Goldfarb, Veronica Calderon-Malavia, Annette Collins and Kathryn A. Schierl, Assistant State’s Attorneys, of counsel), for the People.
Rita A. Fry, Public Defender, of Chicago (Donald S.
CHIEF JUSTICE McMORROW delivered the opinion of the court:
The common question presented in these 12 consolidated appeals is whether sentencing enhancements added to certain offenses by Public Act 91-404 (Pub. Act 91-404, § 5, eff. January 1, 2000) are constitutional. Public Act 91-404 amended the penalty portions of several statutes by adding what have been referred to as the “15/20/25-to-life” provisions. Under these provisions, a mandatory enhancement is added to the defendant’s sentence if a firearm was used in the сommission of the offense. The length of the enhancement varies depending on how the firearm was used. In the case at bar, defendants were charged with various offenses whose penalties were amended by Public Act 91-404, including attempted first degree murder (
The circuit court of Cook County heard and decided the pretrial motions. Nine of the cases were consolidated before one judge, who found that the sentencing amendments violated the proportionate penalties clause of the Illinois Constitution (
BACKGROUND
Causes Nos. 91044 Through 91052
In cause No. 91044, defendant David Montagueo was charged by information with one count of armed robbery with a firearm (
In causes Nos. 91045 and 91046, indictments charged defendants Joseph Campos and Angel Garcia, respectively, with multiple offenses (16 counts) stemming from the February 1, 2000, taking of a motor vehicle and other items from the victim. Included among the charges were two counts of attempted first degree murder, one with a firearm and one with personal discharge of a firearm (
The indictment in cause No. 91047 charged defendant Mychael Horton with multiple offenses (five counts) in connection with a shooting that occurred on March 31, 2000. Included in the charges were two counts of attempted murder, one with a firearm and one with personal discharge of a firearm causing great bodily harm (
Eddie Reese, thе defendant in cause No. 91048, was charged by indictment with multiple offenses (six counts) stemming from a shooting that occurred on February 24, 2000. Included among the charges were four counts of attempted first degree murder, two with a firearm (one for each of the two victims) and two with personal discharge of a firearm (one for each of the two victims) (
Among the charges included in a 26-count indictment against Marco Garcia, defendant in cause No. 91050, were two counts of attempted murder of a peace officer with personal disсharge of a firearm (
In cause No. 91051, defendant Darvus Barnette was charged in a four-count indictment with two counts of aggravated vehicular hijacking with a firearm (
Angelo Scott, defendant in cause No. 91052, was charged by indictment (10 counts) with, inter alia, one count of armed robbery with a firearm (
As noted, these nine cases were consolidated before one circuit court judge. On January 17, 2001, the judge granted defendants’ motions to dismiss, some in full and some only in part. The circuit court found that the 15- and 20-year additions mandated by Public Act 91-404 violated the proportionate penalties clause of the Illinois Constitution (
With regard to these nine consolidated cases, the circuit court dismissed the following counts: cause No. 91044 (David Montagueo), count I (armed robbery with a firearm) (
Cause No. 91328
In cause No. 91328, defеndant Steffon Meaderds was charged by information with multiple offenses (seven counts) stemming from an incident that took place on May 30, 2000. Among the charges included in the
On January 5, 2001, the circuit court of Cook County granted defendant’s motion to dismiss the armed robbery count. In its written order, the court noted that under the amended penalty provision in the armed robbery statute, the mandatory additional penalties are to be “added to the term of imprisonment imposed by the court.”
Causes Nos. 91012 and 91013
In causes Nos. 91012 and 91013, defendants Salatheo Moss and Thomas Gibson were charged by indictment with multiple offenses in connection with two robberies that took place on January 2, 2000. In cause No. 91012,
On October 4, 2000, the circuit court of Cook County granted defendants’ motions to declare the Public Act 91-404 sentenсing amendments to the armed robbery statute unconstitutional. The court found the amended sentencing portion of the armed robbery statute unconstitutionally vague and a violation of the separation of powers clause (
On February 9, 2001, upon motion for reconsideration by the State, the circuit court vacated its previous order but nevertheless found the sentencing portion of the armed robbery statute unconstitutional, this time on different grounds. According to the court, the Public Act 91-404 amendments to the armed robbery statute violated the proportionate penalties clause of the Illinois Constitution (
Interpreting this third order of the circuit court as effectively dismissing the charges of armed robbery with a firearm against defendants in causes Nos. 91012 and 91013, the State appeals this ruling as well as the other two (in causes Nos. 91044 through 91052, and cause No. 91328) directly to this court. 134 Ill. 2d R. 603.
ANALYSIS
The main purpose of Public Act 91-404, as stated in the act, 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
We begin by setting out the amended statutes relevant to these appeals. The measures added to the “General Definitions” section include sections 2-3.6, 2-7.5, and 2-15.5 of the Criminal Code. Section 2-3.6 provides:
” ‘Armed with a firearm‘[.] Except as otherwise provided
in a specific Section, a person is considered ‘armed with a firearm’ when he or she carries on or about his or her person or is otherwise armed with a firearm.” 720 ILCS 5/2-3.6 (West 2000).
Section 2-7.5 states:
” ‘Firearm‘. Except as оtherwise provided in a specific Section, ‘firearm’ has the meaning ascribed to it in Section 1.1 of the Firearm Owners Identification Card Act [
430 ILCS 65/1.1 (West 2000)].”720 ILCS 5/2-7.5 (West 2000).
Section 2-15.5 provides:
” ‘Personally discharged a firearm‘. A person is considered to have ‘personally discharged a firearm’ when he or she, while armed with a firearm, knowingly and intentionally fires a firearm causing the ammunition projectile to be forcefully expelled from the firearm.”
720 ILCS 5/2-15.5 (West 2000).
The attempt statute, section 8-4 of the Criminal Code, provides in pertinent part:
“(a) Elements of the Offense.
A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.
* * *
(c) Sentence.
A person convicted of an attempt may be fined or imprisoned or both not to exceed the maximum provided for the offense attempted but, except for an attempt to commit the offense defined in Section 33A-2 of this Act [armed violence],
(1) the sentence for attempt to commit first degree murder is the sentence for a Class X felony, except that
* * *
(B) 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;
(C) an attempt tо commit first degree murder during which the person personally discharged a firearm is a Class X felony for which 20 years shall be added to the term of imprisonment imposed by the court;
(D) an attempt to commit first degree murder during which the person personally discharged a firearm that proximately caused great bodily harm, permanent disability, permanent disfigurement, or death to another person, is a Class X felony for which 25 years or up to a term of natural life shall be added to the term of imprisonment imposed by the court.”
720 ILCS 5/8-4 (West 2000).
As is shown in the statute set forth above, the 15/20/25-to-life provisions require additional terms of imprisonment where a firearm is used in the commission of the offense. The length of the additional term depends on how the firearm is used. Hence, where the firearm is merely possessed, the required addition is 15 years. Where it is personally discharged, an additional 20 years is mandated. Finally, where the firearm is personally discharged and it proximately causes great bodily harm, permanent disability, permanent disfigurement, or death, an enhancement of 25 years to life must be added to the term of imprisonment imposed by the court.
These same penalty provisions were added to the other three statutes at issue in thеse appeals: aggravated kidnapping, armed robbery, and aggravated vehicular hijacking. The aggravated kidnapping statute, section 10-2 of the Criminal Code, provides in pertinent part:
“(a) A kidnaper within the definition of paragraph (a) of Section 10-1 [kidnapping] is guilty of the offense of aggravated kidnaping when he:
* * *
(5) Commits the offense of kidnaping while armed with a dangerous weapon, other than a firearm, as defined in Section 33A-1 of the ‘Criminal Code of 1961‘, or
(6) Commits the offense of kidnaping while armed with a firearm, or
(7) During the commission of the offense of kidnaping, personally discharged a firearm, or
(8) During the commission of the offense of kidnaping, personally discharged a firearm that proximately
caused great bodily harm, permanent disability, permanent disfigurement, or death to another person.
* * *
(b) Sentence. Aggravated kidnaping in violation of paragraph (1), (2), (3), (4), or (5) of subsection (a) is a Class X felony. A violation of subsection (a)(6) is a Class X felony for which 15 years shall be added to the term of imprisonment imposed by the court. A violation of subsection (a)(7) is a Class X felony for which 20 years shall be added to the term of imprisonment imposed by the court. A violation of subsection (a)(8) is a Class X felony for which 25 years or up to a term of natural life shall be added to the term of imprisonment imposed by the court.”
720 ILCS 5/10-2 (West 2000).
The armed robbery statute, section 18-2 of the Criminal Code, states:
“(a) A person commits armed robbery when he or she violates Section 18-1 [robbery]; and
(1) he or she carries on or about his or her person or is otherwise armed with a dangerous weapon other than a firearm; or
(2) he or she carries on or about his or her person or is otherwise armed with a firearm; or
(3) he or she, during the commission of the offense, personally discharges a firearm; or
(4) he or she, during the commission of the offense, personally discharges a firearm that proximately causes great bodily harm, permanent disability, permanent disfigurement, or death to another person.
(b) Sentence.
Armed robbery in violation of subsection (a)(1) is a Class X felony. A violation of subsection (a)(2) is a Class X felony for which 15 years shall be added to the term of imprisonment imposed by the court. A violation of subsection (a)(3) is a Class X felony for which 20 years shall be added to the term of imprisonment imposed by the court. A violation of subsection (a)(4) is a Class X felony for which 25 years or up to a term of natural life shall be added to the term of imprisonment imposed by the court.”
720 ILCS 5/18-2 (West 2000).
Finally, the aggravated vehicular hijacking statute,
“(a) A person commits aggravated vehicular hijacking when he or she violates Section 18-3 [vehicular hijacking]; and
* * *
(3) he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon, other than a firearm; or
(4) he or she carries on or about his or her person or is otherwise armed with a firearm; or
(5) he or she, during the commission of the offense, personally discharges a firearm; or
(6) he or she, during the commission of the offense, personally discharges a firearm that proximately causes great bodily harm, permanent disability, permanent disfigurement, or death to another person.
(b) Sentence. Aggravated vehicular hijacking in violation of subsections (a)(1) or (a)(2) is a Class X felony. Aggravated vehicular hijacking in violation of subsection (a)(3) is a Class X felony for which a term of imprisonment of not less than 7 years shall be imposed. Aggravated vehicular hijacking in violation of subsection (a)(4) is a Class X felony for which 15 years shall be added to the term of imprisonment imposed by the court. Aggravated vehicular hijacking in violation of subsection (a)(5) is a Class X felony for which 20 years shall be added to the term of imprisonment imposed by the court. Aggravated vehicular hijacking in violation of subsection (a)(6) is a Class X felony for which 25 years or up to a term of natural life shall be added to the term of imprisonment imposed by the court.”
720 ILCS 5/18-4 (West 2000).
We note initially that the constitutionality of some of the sentencing measures at issue in these appeals has already been determined by this court. In People v. Morgan, 203 Ill. 2d 470, 492 (2002), we held that “the attempt statute (
The counts that remain, which were dismissed in the decision below in causes Nos. 91044 through 91052, involve armed robbery, аggravated kidnapping, and aggravated vehicular hijacking. The remaining armed robbery counts include: one count of armed robbery with personal discharge of a firearm against defendants Joseph Campos and Angel Garcia, and one count of armed robbery with personal discharge of a firearm causing great bodily harm against defendant Joe Hunt. The remaining aggravated kidnapping charges include: two counts of aggravated kidnapping with a firearm and two counts of aggravated kidnapping with personal discharge of a firearm, all against Campos and Garcia. Four counts of aggravated vehicular hijacking are still at issue: one count of aggravated vehicular hijacking with a firearm against Campos and Garcia; two counts of aggravated vehicular hijacking with a firearm against defendant Darvus Barnette; and one count of aggravated vehicular hijacking with personal discharge of a firearm against Campos and Garcia.
Standard of Review
A statute is presumed constitutional, and the party challenging the statute bears the burden of demonstrat-
Proportionate Penalties Violation
In the case at bar, the circuit court judge who dealt with causes Nos. 91044 through 91052 concluded that two of the three Public Act 91-404 sentencing enhancements — the 15-year addition required for carrying a firearm and the 20-year enhancement for personally discharging a firearm — violated the proportionate penalties clause of the Illinois Constitution (
“[B]ecause aggravated battery with a firearm carries a penalty of 6 to 30 years [of] imprisonment, a person who intentionally shoots an individual [aggravated battery with a firearm] faces a minimum penalty that is less than a third of the 21-year minimum [six-year Class X minimum plus 15-year add-on] for an armed robbery where the firearm is simply possessed, but not fired.” (Emphasis added.)
Similarly, the circuit court found that the 20-year addition mandated when a firearm is personally discharged produced a penalty that was disproportionate to the punishment for aggravated discharge of a firearm (
“(a) A person commits aggravated discharge of a firearm when he or she knowingly or intentionally:
* * *
(2) Discharges a firearm in the direction of another person or in the direction of a vehicle he or she knows or reasonably should know to be occupied by a person.”
720 ILCS 5/24-1.2(a)(2) (West 2000)).
Noting that aggravated discharge of a firearm “requires that a weapon be discharged in the direction of another person,” the circuit court concluded that this conduct represented a more serious threat to the public health, safety, and general welfare than did the conduct targeted by the second level of the 15/20/25-to-life provisions, “which simply proscribe[s] the discharge of a firearm during the commission of a given offense.” Aggravated discharge of a firearm is a Class 1 felony (
“Given that aggravated discharge of a firearm carries a potential sentence of probation, or 4 to 15 years imprisonment, that penalty is clearly disproportionate to the 26-
year add[-]on [six-year Class X minimum plus 20-year addition] required where a firearm is discharged during the course of an armed robbery.”
In evaluating whether a proportionate penalties violation has been established, the central question is whether the penalty at issue has been set by the legislature “according to the seriousness of the offense.”
In the case at bar, the circuit court employed the second, or cross-comparison test, in comparing the Public Act 91-404 amendments with the aggravated battery with a firearm and aggravated discharge of a firearm statutes. This sort of cross-comparison analysis involves a two-step inquiry: (1) whether the measures being compared share “common statutory purposes” (Lombardi, 184 Ill. 2d at 476; Walden, 199 Ill. 2d at 395), and (2) if the purposes are related, whether the less serious offense is punished more harshly than the more serious offense (Lombardi, 184 Ill. 2d at 475-76; see Davis, 177
The State argues that the circuit court erred as to both prongs of this inquiry. According to the State, the statutes containing the 15/20/25-to-life provisions do not have the same or similar purpose as the aggravated battery with а firearm and aggravated discharge of a firearm statutes. Thus the State contends that it was inappropriate for the circuit court to conduct comparative proportionality review as to these provisions. Even if such review were appropriate, the State argues in the alternative, the conduct targeted by the aggravated battery with a firearm and aggravated discharge of a firearm statutes is less serious than the conduct proscribed by the 10 statutes containing the 15/20/25-to-life enhancements. The State therefore contends that the disparity in the penalties does not render the Public Act 91-404 en
Regarding the State‘s similarity-of-purpose argument, the circuit court below concluded that the statutes proscribing the offenses at issue, such as armed robbery with a firearm and aggravated kidnapping with personal discharge of a firearm, shared a similar purpose with the aggravated battery with a firearm and aggravated discharge of a firearm statutes, respectively. In describing the purpose of the amended statutes, the circuit court looked to the express aim of the Public Act 91-404 amendments, which is “to deter the use of firearms in the commission of a felony offense.”
The State argues that the circuit court‘s analysis is flawed because, with regard to the 10 amended statutes, this analysis focuses on the purpose of the Public Act 91-404 amendments rather than on the purpose of the statutes themselves. According to the State, the purpose of the armed robbery with a firearm statute, for example, “is to deter/punish the unauthorized, forcible taking of another‘s property.” Similarly, the purpose of the aggravated vehicular hijacking statute, the State argues, is “to deter/punish the unauthorized taking of another‘s motor vehicle.” Noting that these offenses “do[] not
The issue regarding the first stage of a cross-comparison analysis has already been decided. In People v. Walden, 199 Ill. 2d 392 (2002), as previously noted, this court held that the 15-year enhancement mandated by Public Act 91-404 for armed robbery while in possession of a firearm (
“In order to deter the use of firearms in the commission of a felony offense, the General Assembly deems it appropriate for a greater penalty to be imposed when a firearm is used or discharged in the commission of an offense than the penalty imposed for using other types of weapons and for the penalty to increase on more serious offenses.”
720 ILCS 5/33A-1(b)(1) (West 2000) , quoted in Walden, 199 Ill. 2d at 396.
This analysis runs counter to the State‘s argument that such legislative purposes must be determined by looking to the underlying offense itself, e.g., robbery, rather than to the purpose for the Public Act 91-404 amendments. The State recognizes the disparity between its argument and Walden, and argues that Walden was wrongly decided. We disagree, and decline the State‘s invitation to overrule Walden. Instead, we hold that, based on the reasoning in Walden, the circuit court below correctly сoncluded that the statutes carrying the 15- and 20-year sentence enhancements had a similar purpose to the statutes for aggravated battery with a firearm and aggravated discharge of a firearm. Because of this similarity of purpose, the circuit court was correct to proceed to the next step in the cross-comparison analysis.
The State argues in the alternative that even if it were proper to proceed to the second stage of this review, the circuit court‘s analysis in the second stage also is flawed. According to the State, the offenses carrying the 15/20/25-to-life sentence enhancements are more serious than aggravated battery with a firearm and aggravated discharge of a firearm. Thus there is no violation of the proportionate penalties clause, which requires only that the penalty for a more serious offense be equal to or greater than—but not less than—the penalty for a less serious offense. Lee, 167 Ill. 2d at 144; Wisslead, 94 Ill. 2d at 196.
The circuit court below found that aggravated battery with a firearm and aggravated discharge of a firearm were more serious than the offenses carrying the 15- and 20-year sentence enhancements. It was thus a violаtion of the proportionate penalties clause for the former two
The State contends that the 15/20/25-to-life offenses—e.g., armed robbery with a firearm and aggravated kidnapping with a firearm—are more serious because they involve elements in addition to firearm conduct. Armed robbery with a firearm, for example, requires the possession of a firearm while committing the offense of robbery. Similarly, aggravated kidnapping with a firearm involves the possession of a firearm while committing the offense of kidnapping. By contrast, no additional felonies are involved in aggravated battery with a firearm and aggravated discharge of a firearm, which focus on the firearm conduct itself.
In support of its argument the State points to the legislative findings and legislative intent sections of Public Act 91-404. Under “Legislative findings,” the act states in pertinent part:
“Current law does contain offenses involving the use or discharge of a gun toward or against a person, such as aggravated battery with a firearm, aggravated discharge of a firearm, and reckless discharge of a firearm; however, the General Assembly has legislated greater penaltiеs for the commission of a felony while in possession of a firearm because it deems such acts as more serious.”
Pub. Act 91-404, § 5, eff. January 1, 2000 (codified at 720 ILCS 5/33A-1(a)(3) (West 2000)) .
Under “Legislative intent,” the act provides in pertinent part:
“With the additional elements of the discharge of a firearm and great bodily harm inflicted by a firearm being added to armed violence and other serious felony offenses, it is the intent of the General Assembly to punish those elements more severely during commission of a felony offense than when those elements stand alone as the act of the offender.”
Pub. Act 91-404, § 5, eff. January 1, 2000 (codified at 720 ILCS 5/33A-1(b)(2) (West 2000)) .
Based on these statements, the State asserts that the
In the case at bar, as noted, the circuit court concluded that aggravated battery with a firearm and aggravated discharge of a firearm are more serious than the Public Act 91-404 offenses requiring the possession or discharge of a firearm. As the court noted, aggravated battery with a firearm (
Similarly, the circuit court noted that the offense of aggravated discharge of a firearm (
Notwithstanding the foregoing, the State argues that the circuit court‘s analysis is flawed because the court accorded too much weight to the degree of harm caused by the respective offenses. The State notes correctly that the degree of harm is not the only factor to be considered in determining the seriousness of an offense. Other factors include the frequency of the crime and the high risk of bodily harm associated with it. Lee, 167 Ill. 2d at 146; People v. v. Hill, 199 Ill. 2d 440, 454 (2002). Nevertheless, the extent of harm remains a relevant consideration. Lee, 167 Ill. 2d at 146. Moreover, in making its determination as to the relative seriousness of the offenses, the circuit court considered not only the degree of harm but the risk of bodily harm as well. For example, in comparing aggravated discharge of a firearm with the Public Act 91-404 offenses involving personal discharge of a firearm, the circuit court noted that the former offense focuses on “the intentional firing of a weapon at or in the direction of individuals” (emphasis added), while the latter offenses require only that the firearm be discharged, not that it be discharged in the direction of a person. The risk of bodily harm clearly is greater where an offense involves the discharge of a firearm at someone, than it is where the offense merely requires the discharge of the firearm. Thus, it was not only the degree of harm that the circuit court considered in determining the
We agree with the circuit court that the additional elements in aggravated battery with a firearm (injury resulting from the intentional discharge of a firearm) and aggravated discharge of a firearm (discharge of a firearm in the direction of another person) render these offenses a greater “threat to the public health and safety” (Lombardi, 184 Ill. 2d at 474; see Davis, 177 Ill. 2d at 503) than the corresponding Public Act 91-404 offenses, which, with respect to the firearm, require only its possession or its discharge. We reject the legislature‘s judgment to the contrary. While such legislative judgments normally are accorded deference (Hill, 199 Ill. 2d at 454; Davis, 177 Ill. 2d at 502-03), we agree with the circuit court that in this instance such deference is unwarranted.
Having concluded that aggravated battery with a firearm and aggravated discharge of a firearm are more serious than the corresponding Public Act 91-404 offenses, we must determine whether these more serious offenses are punished more or less harshly than those creating a less serious threat to the public health and safety. Davis, 177 Ill. 2d at 503, 504-05; Lombardi, 184 Ill. 2d at 474. This inquiry is not difficult. As noted, the relevant Public Act 91-404 offenses—those involving possession of a firearm and discharge of a firearm—require mandatory add-ons of 15 years and 20 years, respectively, creating sentencing ranges of 21 to 45 years and 26 to 50 years. By contrast, aggravated battery with a firearm (
“[B]ecause aggravated battery with a firearm carries a penalty of 6 to 30 years imprisonment, a person who intentionally shoots an individual [aggravated battery with a firearm] faces a minimum penalty that is less than a third of the 21-year minimum for an аrmed robbery where the firearm is simply possessed, but not fired.”
Similarly, in comparing aggravated discharge of a firearm with armed robbery with personal discharge of a firearm, the circuit court stated:
“Given that aggravated discharge of a firearm carries a potential sentence of *** 4 to 15 years [of] imprisonment, that penalty is clearly disproportionate to the 26-year [minimum] required where a firearm is discharged during the course of an armed robbery.”
We conclude, as did the circuit court below, that the less serious conduct proscribed in the Public Act 91-404 offenses involving possession of a firearm (15-year add-on) and personal discharge of a firearm (20-year add-on) is punished more harshly than is the more serious conduct targeted by the statutes for aggravated battery with a firearm and aggravated discharge of a firearm. Accordingly, with regard to the statutes for armed robbery (
We therefore affirm the circuit court‘s dismissal of the following charges: causes Nos. 91045 and 91046 (Joseph Campos and Angel Garcia): count II, aggravated vehicular hijacking with personal dischаrge of a firearm (
The only remaining charge that was dismissed by the circuit court is count V of the indictment against defendant Joe Hunt in cause No. 91049: armed robbery with personal discharge of a firearm causing great bodily harm (
In addition to this finding, the circuit court also concluded that all of the 15/20/25-to-life provisions violated the prohibition against double enhancement. This latter finding apparently formed the basis for the
Double Enhancement
Double enhancement occurs when a single factor is used “both as an element of a defendant‘s crime and as an aggravating factor justifying the imposition of a harsher sentence than might otherwise have been imposed.” (Emphasis in original.) People v. Gonzalez, 151 Ill. 2d 79, 83-84 (1992); see also People v. Thomas, 171 Ill. 2d 207, 223 (1996) (“Double enhancement occurs when a factor already used to enhance an offense or penalty is reused to subject a defendant to a further enhanced offense or penalty“). It is assumed that the lеgislature, in determining the appropriate penalty for an offense, necessarily takes into account the factors inherent in the offense. “Thus, to use one of those same factors that make up the offense as the basis for imposing a harsher penalty than might otherwise be imposed constitutes a double use of a single factor.” (Emphasis in original.) Gonzalez, 151 Ill. 2d at 84. The general prohibition against such double enhancement is a rule of statutory construction. People v. Rissley, 165 Ill. 2d 364, 390 (1995).
In the case at bar, the circuit court found that the 15/20/25-to-life provisions violated this prohibition. The court stated:
“[I]t is apparent that the General Assembly has created separate offenses proscribing the commission of certain named offenses while carrying a firearm, personally discharging a firearm[,] or personally discharging a firearm that proximately causes injury to another. The legislature has classified these offenses as Class X felonies, which generally provide for a term of imprisonment of 6 to 30 years.
730 ILCS 5/5-8-1[(a)(3)] (West 2000) . However, incrafting the ten enactments challenged herein, the legislature has indeed utilized the same factor, e.g.[,] the firearm, that constitutes an element of the amended offenses to trigger the enhancements mandated. Hence, the use of the same factor that makes up the offenses as a basis for imposing harsher penalties than might otherwise be imposed has resulted in an impermissible double enhancement.”
According to the circuit court‘s reasoning, the firearm factors are used first to enhance the Class 1 felony of robbery to armed robbery, a Class X offense. They are then used a second time to justify the 15/20/25-to-life add-ons that are, under the statute, triggered by these same firearm factors. The problem with this reasoning is that the first enhancement from a Class 1 to a Class X felony comes as a result of nonfirearm conduct. As is clearly expressed in subsection (a)(1) of the statute, the first form of armed robbery, which is a Class X felony, occurs when a person commits robbery and “he or she carries on or about his or her person or is otherwise armed with a dangerous weapon other than a firearm.” (Emphasis added.)
Double Jeopardy
Defendants argue that there is an alternative ground on which we may affirm the circuit court‘s dismissal of several of the 15/20/25-to-life charges, including the armed robbery count at issue against Hunt. Defendants contend that the relevant sentеncing provisions violate the double jeopardy clause of the Illinois Constitution (
The double jeopardy clause of the fifth amendment to the United States Constitution, which is construed in the same manner as the corresponding clause in the Illinois Constitution (In re P.S., 175 Ill. 2d 79, 91 (1997)), affords three protections to the criminal defendant. “The first two, which are the most familiar, protect against a second prosecution for the same offense after acquittal, and
In the case at bar, defendants argue:
“Because defendants were subjected to both a Class X sentence based on the criminal conviction for possession [or use] of the firearm and a higher penalty *** for possession [or use] of the same firearm, they received the prohibited multiple punishments for the same crime.”
According to this argument, if a defendant is charged, for example, with armed robbery with a firearm, the Class X portion of thе sentence that he faces is directly attributable to the element of firearm possession. This cannot be so, however. The reason is that, as previously noted, a defendant charged with armed robbery is subject to a Class X sentence even if the offense was committed with a dangerous weapon other than a firearm.
The same is true for the armed robbery count at issue against defendant Joe Hunt. As noted, this count alleged that, during the commission of armed robbery, Hunt personally discharged a firearm that proximately caused great bodily harm to the victim.
With regard to the armed robbery statute, we reject defendants’ argument that the 15/20/25-to-life enhancements violated defendants’ constitutional right to freedom from multiple punishments for the same offense. The firearm elements are not given multiple punishments, and there was thus no double jeopardy violation. Accordingly, this ground may not serve as a basis for the dismissal of count V of the indictment against defendant Joe Hunt in cause No. 91049. We therefore reverse the circuit court‘s dismissal of this count, which charged Hunt with armed robbery with personal discharge of a firearm that proximately caused great bodily harm to the victim.
CONCLUSION
For the reasons set forth above, we affirm the circuit court‘s dismissal of all but one of the counts at issue, on the ground that the relevant sentencing amendments of Public Act 91-404 are unconstitutionally disproportionate. Specifically, we reaffirm our decision in People v. Morgan, 203 Ill. 2d 470, 492 (2002), that “the attempt statute (
Accordingly, we affirm the circuit court‘s dismissal of the following counts:
Cause No. 91044 (David Montagueo), count I, armed robbery with a firearm (
Causes Nos. 91045 and 91046 (Joseph Campos and Angel Garcia), count I, attempted murder with personal discharge of a firearm (
Cause No. 91047 (Mychael Horton), count II, attempted murder with personal discharge of a firearm causing great bodily harm (
Cause No. 91048 (Eddie Reese), counts III and IV, attempted murder with personal discharge of a firearm (
Cause No. 91050 (Marco Garcia), counts I and II, attempted murder of a peace officer with personal discharge of a firearm (
Cause No. 91051 (Darvus Barnette), counts I and II, aggravated vehicular hijacking with a firearm (
Cause No. 91052 (Angelo Scott), count II, armed robbery with a firearm (
Cause No. 91012 (Salatheo Moss and Thomas Gibson), count I, armed robbery with a firearm (
Cause No. 91013 (Salatheo Moss and Thomas Gibson), counts I and II, armed robbery with a firearm (
Cause No. 91328 (Steffon Meaderds), count I, armed robbery with a firearm (
For the reasons set forth above, we reverse the circuit court‘s dismissal of count V, armed robbery with personal discharge of a firearm that caused great bodily harm (
In causes Nos. 91044 (David Montagueo) and 91051 (Darvus Barnette), we affirm the dismissals of the entire indictments. In the remaining causes, we remand to the
Nos. 91044 and 91051—Affirmed.
Nos. 91012, 91013, 91045, 91046, 91047, 91048, 91050, 91052, 91328—Affirmed and remanded.
No. 91049—Affirmed in part and reversed in part; cause remanded.
JUSTICE THOMAS, dissenting:
Contrary to the majority‘s thesis, cross-comparison analysis in this case is inappropriate, as the statutes at issue do not share a common purpose.
In People v. Walden, 199 Ill. 2d 392 (2002), this court held that the purpose of the 15/20/25-to-life statutes is identical to that of the armed violence statute, namely, deterring the use of dangerous weapons in the commission of a felony. People v. Walden, 199 Ill. 2d 392, 396 (2002). In People v. Lombardi, 184 Ill. 2d 462 (1998), this court held that the purpose of the aggravated battery with a firearm statute is entirely distinct from that of the armed violence statute. Lombardi, 184 Ill. 2d at 478. Indeed, Lombardi taught that, while the armed violence statute targets “the risk of harm associated with the presence of a weapon during the commission of a felony,” the aggravated battery with a firearm statute is designed to “discourage individuals from inflicting injury by knowingly discharging a firearm.”2 Lombardi, 184 Ill. 2d at 478. If the purpose of the 15/20/25-to-life statutes is identical to that of the armed violence statute, while the purpose of the aggravated battery with a firearm statute is entirely distinct from that of the armed violence
Unlike my colleagues in the majority, I am convinced that the purpose of the aggravated battery with a firearm statute remains exactly what Lombardi declared it to be five years ago: discouraging the infliction of injury by knowingly discharging a firearm. Inasmuch as this purpose is wholly distinct from that of the 15/20/25-to-life statutes, I prefer not to participate in the majority‘s cross-comparison analysis.
I therefore dissent.
JUSTICES KILBRIDE and GARMAN join in this dissent.