The opinion of the court was delivered by: Justice Thomas
Docket No. 90976-Agenda 9-January 2002.
The issue presented is whether the 15-year sentencing enhancement for armed robbery while in possession of a firearm (720 ILCS 5/18-2(a)(2), (b) (West 2000)) is valid and enforceable. We hold that it is not.
Defendant, David Walden, was charged by information with one count of armed robbery while in possession of a firearm (720 ILCS 5/18-2(a)(2) (West 2000)). Although armed robbery is classified generally as a Class X felony, subsection (b) of the armed robbery statute provides that, for armed robberies while in possession of a firearm, "15 years shall be added to the term of imprisonment imposed by the court." 720 ILCS 5/18-2(b) (West 2000). Prior to trial, defendant moved to dismiss the information, arguing that the 15-year enhancement violates numerous constitutional provisions, including the proportionate penalties clause and the separation of powers clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11; art. II, §1). Defendant also argued that the 15-year increase constitutes an unlawful double enhancement. The circuit court of Sangamon County agreed with defendant's proportionate penalties, separation of powers, and double enhancement arguments and dismissed the information. The State immediately appealed under Supreme Court Rule 604(a)(1) (145 Ill. 2d R. 604(a)(1)). Because the trial court's ruling invalidates a statute of this state, the appeal was taken directly to this court. 134 Ill. 2d R. 603.
A statute is presumed constitutional, and the party challenging the statute bears the burden of demonstrating its invalidity. In re K.C., 186 Ill. 2d 542, 550 (1999). This court has a duty to construe a statute in a manner that upholds its validity and constitutionality if it reasonably can be done. People v. Malchow, 193 Ill. 2d 413, 418 (2000). Whether a statute is constitutional is a question of law that we review de novo. Malchow, 193 Ill. 2d at 418.
We first consider the trial court's conclusion that the 15-year enhancement violates the proportionate penalties clause of the Illinois Constitution. In evaluating statutory challenges brought under that clause, this court has employed three distinct tests. First, a penalty violates the proportionate penalties clause if it is cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community. People v. Bailey, 167 Ill. 2d 210, 236 (1995). Second, a penalty violates the proportionate penalties clause where similar offenses are compared and conduct that creates a less serious threat to the public health and safety is punished more severely. People v. Davis, 177 Ill. 2d 495, 503 (1997). Third, the proportionate penalties clause is violated when identical offenses are given different sentences. People v. Lewis, 175 Ill. 2d 412, 418-19 (1996). Here, defendant argues that the trial court's decision is defensible under all three proportionate penalties tests. We need not address the first and third of these tests, however, as the second test is clearly dispositive.
The "similar offenses" that defendant asks us to compare are armed robbery while in possession of a firearm and armed violence predicated upon aggravated robbery. The relevant portion of the armed robbery statute provides that:
"(a) A person commits armed robbery when he or she [commits a robbery]; and
(2) he or she carries on or about his or her person or is otherwise armed with a firearm[.]" 720 ...