Appeal from the Circuit Court of Lake County; the Hon.
Lawrence D. Inglis, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 20, 1984.
Defendant, Wendy Lee Moorhead, was charged by information with solicitation to commit murder (Ill. Rev. Stat. 1983, ch. 38, par. 8-1(a)) in that she, with the intent to commit murder (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(a)(1)), requested Paul Olson, a special agent with the Illinois Department of Law Enforcement, to kill her husband, John Moorhead. Following a mistrial in her original trial when the jury was unable to reach a verdict, she was found guilty of that offense in a second jury trial. Defendant was subsequently sentenced to a 25-year term of imprisonment.
Two issues are raised on appeal: (1) whether defendant was denied her constitutional rights to proportionate penalties and due process of law where the maximum penalty provided for solicitation to commit murder, 30 years, is more severe than the maximum penalty provided for conspiracy to commit murder, 7 years, since, she contends, solicitation is a less serious offense; and (2) whether the 25-year sentence of imprisonment is excessive.
• 1 Preliminarily, we consider the State's contention that the constitutional issue has been waived by defendant's failure to raise it in the trial court. While the general rule is that the failure to raise the issue of a statute's constitutionality in the trial court is a waiver of that issue on review (People v. Amerman (1971), 50 Ill.2d 196, 279 N.E.2d 353; People v. Luckey (1969), 42 Ill.2d 115, 245 N.E.2d 769; People v. Coleman (1983), 120 Ill. App.3d 851, 459 N.E.2d 5), it has been held that where the conviction was under an unconstitutional statute, it is a nullity, and there is no need for a defendant to preserve the error by post-trial motion since the conviction is void and can be attacked at any time. (People v. Wagner (1982), 89 Ill.2d 308, 311, 433 N.E.2d 267.) Where, as here, a substantial question of constitutionality is raised, which, if sustained, would make void the applicable statute or a pertinent part thereof, we may decline to apply the waiver rule and address the merits of the contention even though we may upon analysis ultimately reject the contention. (People v. McNeal (1983), 120 Ill. App.3d 625, 627-29, 458 N.E.2d 630; see also People v. Coleman (1983), 120 Ill. App.3d 851, 459 N.E.2d 5.) We decline to apply the waiver rule to the constitutional issue presented here.
Defendant contends that the maximum penalty for solicitation to commit murder is unconstitutional because there is a violation of the due process clause under the Illinois and Federal constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, sec. 2) which, she maintains, require that the statutory scheme of sentencing must be "reasonably designed to remedy the evil at which it is aimed." Defendant also asserts that the policy underlying section 11, article I, of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 11), which provides for penalties to be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship, is violated here. More specifically, defendant argues that conspiracy to commit murder is a more serious offense and presents a greater danger to the public than solicitation to commit murder, yet the maximum penalty for conspiracy to commit murder is imprisonment for seven years, while the maximum penalty for solicitation to commit murder is imprisonment for 30 years.
Several arguments are advanced by defendant to support her theory that conspiracy to commit murder is the more serious offense. Defendant states that while in both solicitation and conspiracy the prosecution must prove the defendant had the intent to commit the offense of murder, the offense of conspiracy not only requires the involvement of two or more persons, but also requires the commission of an act in furtherance of the agreement to commit murder. She also contends that two or more individuals agreeing to act in concert to commit an offense presents a greater threat to the public than one acting alone and a greater likelihood that the object offense will actually be committed.
The State basically contends that from the statutory definitions of both offenses it cannot be determined that solicitation is a less serious offense, and looking to the penalties provided it is clear that the legislature has determined that solicitation to commit murder is more serious than conspiracy to commit murder. Thus, the State argues that courts> should not interfere with this legislative authority unless the challenged penalty is clearly in excess of the very broad and general constitutional limitations applicable.
The elements of the offense of solicitation are:
"A person commits solicitation when, with intent that an offense be committed, he commands, encourages or requests another to commit that offense." (Ill. Rev. Stat. 1983, ch. 38, par. 8-1(a).)
The elements of the offense of conspiracy are:
"A person commits conspiracy when, with intent that an offense be committed, he agrees with another to the commission of that offense. No person may be convicted of conspiracy to commit an offense unless an act in furtherance of such agreement is alleged and proved to have been committed by him or by a co-conspirator." (Ill. Rev. Stat. 1983, ch. 38, par. 8-2(a).)
The penalty for solicitation is as follows:
"A person convicted of solicitation may be fined or imprisoned or both not to exceed the maximum provided for the offense solicited: Provided, however, the penalty shall not exceed the corresponding maximum limit provided by subparagraph (c) of Section 8-4 of this Act, as heretofore and hereafter amended." (Ill. Rev. Stat. 1983, ch. 38, par. 8-1(b).)
As set forth in the penalty section for solicitation, the maximum penalty is linked to the corresponding maximum penalty for the offense of attempt, which is as follows:
"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 ...