Appeal from the Circuit Court of Cook County; the Hon. Robert
J. Collins, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendants Dorothy and Andre Taylor were found guilty of the murders of Derrick Montgomery and Cedrick Maltbia and of armed violence and sentenced to natural life imprisonment. They appeal, contending: (1) section 5-8-1(a)(1)(c) of the Unified Code of Corrections imposing mandatory natural life imprisonment is unconstitutional (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-1(a)(1)(c)) and (2) they were improperly convicted of both murder and armed violence.
On January 12, 1981, Derrick Montgomery, Cedrick Maltbia, Enicha Washington and Michael Simmons were at Patti Washington's apartment at 826 North Sedgwick in Chicago. At that time, defendant Dorothy Taylor and her sister Virgie entered the apartment. Virgie went into a bedroom with Montgomery to discuss his return of her jewelry and, as they exited the room, he struck Virgie. At this, Dorothy pulled out a gun, gave it to Virgie and ordered her to shoot Montgomery. Virgie complied, firing twice at Montgomery. Dorothy then opened the front door and admitted co-defendant Andre (the son of Virgie), who was armed with a shotgun.
A few moments later, Dorothy and Virgie started to leave the apartment. Defendant Dorothy Taylor then told her nephew Andre to "kill everyone in the apartment, don't leave nobody." Andre shot Cedrick Maltbia twice at close range with a shotgun. Andre then turned toward Michael Simmons, who had grabbed Enicha Washington in order to protect her. Andre pumped the shotgun in their direction. Dorothy Taylor, however, intervened, telling Andre that they should be spared. Andre then turned to Derrick Montgomery and shot him once.
Defendants were sentenced for the murders under section 5-8-1(a)(1)(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-1(a)(1)(c)), which provides:
"Sentence of Imprisonment for Felony. (a) A sentence of imprisonment for a felony shall be a determinate sentence set by the court under this Section, according to the following limitations:
(1) for murder * * * (c) if the defendant has previously been convicted of murder under any state or federal law or is found guilty of murdering more than one victim, the court shall sentence the defendant to a term of natural life imprisonment; * * *." (Emphasis added.)
Section 3-3-3(d) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1003-3-3(d)) provides:
"(d) No person serving a term of natural life imprisonment may be paroled or released except through executive clemency."
The able and experienced trial judge denied defendants' motion to reconsider the sentences. However, he expressed with eloquence his belief that defendants are not beyond rehabilitation; that he had no choice or discretion with reference to the sentence; and that he, in the exercise of the judicial function, would not have imposed these sentences.
Defendants contend that the natural life sentences imposed under section 5-8-1(a)(1)(c) violate article I, section 11, of the 1970 Illinois Constitution: "All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. * * *."
If section 5-8-1(a)(1)(c) is mandatory, we agree.
The power of the legislature to determine punishment is subject to constitutional limitations. (People v. Grant (1978), 71 Ill.2d 551, 377 N.E.2d 4.) A sentence imposed by a trial court will not be disturbed unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit and purpose. The spirit and purpose of the law are upheld when a sentence in conformity with article I, section 11, reflects the seriousness of the offense and gives adequate consideration to the rehabilitative potential of the defendant. People v. Heflin (1978), 71 Ill.2d 525, 376 N.E.2d 1367, cert. denied (1979), 439 U.S. 1074, 59 L.Ed.2d 41, 99 S.Ct. 848; People v. Murphy (1978), 72 Ill.2d 421, 381 N.E.2d 677; People v. Carlson (1980), 79 Ill.2d 564, 404 N.E.2d 233.
The power to impose sentence is exclusively a function of the judiciary. (People v. Davis (1982), 93 Ill.2d 155, 442 N.E.2d 855.) A reasoned judgment as to the proper sentence to be imposed must be based upon the particular circumstances of each case. Such judgment depends upon many factors, including the defendant's credibility, demeanor, general moral character, mentality, social environment, habits and age. The trial judge, in the course of the trial and the sentencing hearing, has an opportunity to consider these factors. People v. Perruquet (1977), 68 Ill.2d 149, 368 N.E.2d 882.
In People v. Cox (1980), 82 Ill.2d 268, 280, 412 N.E.2d 541, the court said that the trial judge is "charged with the difficult task of fashioning a sentence which would strike the appropriate balance between protection of society and rehabilitation of the offender."
If subsection (c) of section 5-8-1(a)(1) is mandatory, then the trial judge is precluded from considering any mitigating or aggravating factors and thus being ...