Appeal from the Circuit Court of Du Page County, the Hon.
Robert A. Nolan, Judge, presiding.
JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
The defendants in these consolidated appeals were charged by information in the circuit court of Du Page County with residential burglary in connection with three unrelated occurrences, in that they, knowingly and without authority, entered the dwelling place of another with the intent to commit therein a theft in violation of section 19-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 19-3). Prior to trial, each defendant filed a motion to dismiss the charge for failure to state an offense. (Ill. Rev. Stat. 1983, ch. 38, par. 114-1(a)(8).) The trial court dismissed the residential-burglary charges against the defendants, holding that the statute, on its face, was so vague that it violated the constitutional guarantees of due process (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, sec. 2), and that the mandatory minimum sentence imposed upon conviction of the offense of residential burglary violated the limitation-of-penalties provision of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 11). The State appealed directly to this court from the trial court's finding that section 19-3 is unconstitutional (94 Ill.2d R. 302(a)(1)). The defendants still stand charged with burglary.
There are three issues on appeal: (1) whether the residential burglary statute, on its face, is so vague that it violates the due process provisions of the United States Constitution and the Illinois Constitution; (2) whether the legislative classification of residential burglary as a Class 1 felony violates the equal protection provision of the United States Constitution; and (3) whether the sentencing scheme for the offense of residential burglary violates the limitation-of-penalties provision of the Illinois Constitution.
In considering the vagueness-due process issue, the trial court considered the following three sections of the Criminal Code of 1961 as amended. Section 19-3 defines residential burglary as follows:
"Sec. 19-3(a). Residential burglary. A person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft." (Ill. Rev. Stat. 1983, ch. 38, par. 19-3(a).)
Residential burglary is a Class 1 felony, the sentence for which is not less than 4 years and not more than 15 years (Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-1(a)(4)). Probation, periodic imprisonment or conditional discharge shall not be imposed and the court shall sentence the offender for not less than the minimum sentence (Ill. Rev. Stat. 1983, ch. 38, par. 1005-5-3(c)(2)(G)). Although section 19-3 refers to "dwelling place of another," it does not define that phrase. However, the word "dwelling" is defined in section 2-6 of the Code as follows:
"Sec. 2-6. `Dwelling'. `Dwelling' means a building or portion thereof, a tent, a vehicle, or other enclosed space which is used or intended for use as a human habitation, home or residence." (Ill. Rev. Stat. 1983, ch. 38, par. 2-6.)
Section 19-1 of the Code defines burglary as follows:
"Sec. 19-1. Burglary. (a) A person commits burglary when without authority he knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft. This offense shall not include the offenses set out in section 4-102 of The Illinois Vehicle Code, nor the offense of residential burglary as defined in Section 19-3 hereof." (Ill. Rev. Stat. 1983, ch. 38, par. 19-1(a).)
Burglary is a Class 2 felony punishable by not less than three years and not more than seven years (Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-1(a)(5)). The trial court, by reading section 19-3 which defines "residential burglary," with section 2-6, which defines "dwelling," concluded that, as set forth in the statutes, there is no difference between burglary and residential burglary. Thus the trial court found the residential-burglary statute vague, ambiguous and violative of the due process clauses.
Before proceeding, we restate some of the general guidelines this court has previously set forth in reviewing the constitutionality of statutes. All statutes are presumed to be constitutional. (Sayles v. Thompson (1983), 99 Ill.2d 122, 124-25.) Thus, the party challenging a statute has the burden of clearly establishing the alleged constitutional violation. (Polyvend, Inc. v. Puckorius (1979), 77 Ill.2d 287, 303.) As this court emphasized in Continental Illinois National Bank & Trust Co. v. Illinois State Toll Highway Com. (1969), 42 Ill.2d 385, 389, "It is our duty to construe acts of the legislature so as to affirm their constitutionality and validity, if it can reasonably be done, and further if their construction is doubtful, the doubt will be decided in favor of the validity of the law challenged. [Citations.]"
There are two requirements under the due process-vagueness standard when the first amendment is not involved. First, the statute must give a person of ordinary intelligence a reasonable opportunity to know what conduct is lawful and what conduct is unlawful. Thus, the statute must give fair warning as to what conduct is prohibited. Second, the statute must provide standards, so as to avoid arbitrary and discriminatory enforcement and application by police officers, judges, and juries. (Grayned v. City of Rockford (1972), 408 U.S. 104, 108-09, 33 L.Ed.2d 222, 227-28, 92 S.Ct. 2294, 2298-99; People v. Garrison (1980), 82 Ill.2d 444, 453.) The determination of whether a statute is void for vagueness must be made in the factual context of each case. "A defendant therefore may be prosecuted under a statute without violating his due process rights if his conduct clearly falls within the statutory proscription even though the statute may be vague as to other conduct. [Citations.]" People v. Garrison (1980), 82 Ill.2d 444, 454.
The defendants argue that the phrase "dwelling place of another" does not afford a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited by section 19-3. They also maintain that, due to the vagueness of that phrase, law-enforcement authorities are given unreasonable and arbitrary ...