Appeal from the Circuit Court of Cook County Honorable Stuart E. Palmer, Judge Presiding.
The opinion of the court was delivered by: Justice O'mara Frossard
Defendant Andre Lewis (also known as Dary Lewis) entered an open plea of guilty to two counts of first degree murder for the beating death of the victim, P. B., a five-year-old boy. The State sought imposition of the death penalty. At the death penalty hearing, the court found that defendant qualified for the death penalty because the crime was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty under section 9-1(b)(7) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/9-1(b)(7) (West 1998)). However, the trial judge did not impose the death penalty because of mitigating factors, primary of which was defendant's guilty plea. Defendant was sentenced to life in prison pursuant to section 5-8-1(a)(1)(c)(ii) of the Unified Code of Corrections (Code), which provided that the maximum sentence for the murder of a child under age 12 by a defendant who was at least 17 years old was death, and that the minimum sentence was a term of natural life imprisonment. 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 1998).
On direct appeal this court vacated defendant's sentence and remanded his case for re-sentencing because, following the imposition of his sentence, the statute under which he was sentenced was ruled unconstitutional in People v. Wooters, 188 Ill. 2d 500 (1999). People v. Lewis, No. 1-99-3226 (2000) (unpublished order under Supreme Court Rule 23). On remand, the trial judge again sentenced defendant to life in prison. Defendant on appeal contends the trial judge abused his discretion by imposing a life sentence because defendant's behavior was not exceptionally brutal or heinous indicative of wanton cruelty.
In our previous order we recognized that the instant case is a capital case in which, after a hearing, the judge found that defendant qualified for the death penalty, but based on mitigating factors, sentenced him to life imprisonment. We addressed the fact that the statute under which defendant was sentenced to life imprisonment was declared unconstitutional in Wooters by the Illinois Supreme Court, which found that it violated the single-subject rule of the Illinois Constitution (Ill. Const. 1970, art. IV, § 8). Wooters, 188 Ill. 2d at 502. We recognized that the effect of enacting an unconstitutional amendment to a statute is to leave the law in force as it was before the adoption of the amendment. People v. Gersch, 135 Ill. 2d 384, 390 (1990). We noted that a defendant cannot be prosecuted under an unconstitutional statute. People v. Manuel, 94 Ill. 2d 242, 245 (1983), citing People v. Meyerowitz, 61 Ill. 2d 200 (1975). Therefore, we vacated defendant's sentence of mandatory life imprisonment and "remanded for resentencing in accordance with the law in effect prior to the enactment of 730 ILCS 5/5-8-1(a)(1)(c)(ii) (Pub. Act 89-203 (eff. July 21, 1995))." Lewis, No. 1-99-3226, at 8.
The minimum sentence under section 5-8-1(a)(1) prior to its amendment by Public Act 89-203 (Pub. Act 89-203, eff. July 21, 1995) was 20 years (see 730 ILCS 5/5-8-1(a)(1)(a) (West 1994)). The trial court admonished defendant before he originally pled guilty that the minimum sentence under section 5-8-1(a)(1)(c)(ii) was a term of natural life. Lewis, No. 1-99-3226, at 2. As such, defendant received an admonishment that was clearly erroneous, not as a result of any error by the trial court but as a direct result of the fact that the statute under which he was sentenced was shortly thereafter ruled unconstitutional by the Illinois Supreme Court. Wooters, 188 Ill. 2d at 502. We, therefore, concluded his plea could not be considered voluntary and intelligent. Lewis, No. 1-99-3226, at 3.
Specifically, we indicated as follows:
"Accordingly, defendant's sentence of life imprisonment is vacated and the cause is remanded for resentencing in accordance with the law in effect prior to the enactment of 730 ILCS 5-8-1(a)(1)(c)(ii) (Pub. Act. 89-203 (eff. July 21, 1995)). Upon remand, defendant may move to vacate his guilty plea. Should defendant choose not to vacate his guilty plea, the circuit court is barred from imposing the death penalty upon him. Should defendant choose to vacate his guilty plea, the State is not barred at sentencing from seeking the death penalty if the defendant is proven guilty beyond a reasonable doubt at trial." Lewis, No. 1-99-3226, at 8.
On remand, defendant did not move to withdraw his guilty plea. At the outset of the sentencing hearing on remand, the trial court noted, and defense counsel acknowledged, that defendant had indicated he wanted to maintain his guilty plea. When the trial court then asked defense counsel if that was still defendant's position, defense counsel responded affirmatively. After the trial court confirmed defendant wanted to maintain his guilty plea, defense counsel and the State stipulated to the evidence presented at the original bifurcated sentencing hearing. After the hearing, the trial court again sentenced defendant to natural life in prison. In support of its sentence, the trial court noted it had previously found, during the original sentencing hearing, that the commission of defendant's offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.
During the first part of the bifurcated hearing, which addressed defendant's eligibility for the death penalty, the State published defendant's confession to Assistant State's Attorney Thomas Mahoney. Defendant stated in his confession that on Friday, June 13, 1997, the victim's mother dropped the victim off at defendant's house for the weekend. When the victim's mother came to pick the victim up on Sunday, defendant told her he wanted the victim to stay with him a few more days. She agreed, and when she returned on Wednesday to pick the victim up, defendant again told her he wanted the victim to stay with him. The victim's mother agreed to let defendant keep the victim until Thursday. As she was leaving defendant's house around 4:15 p.m. Wednesday, the victim began crying and asked to go home with his mother. Defendant told him to stay and everything was going to be okay.
Wednesday evening the victim began crying, and defendant tried to console him by telling him he would take him to the zoo and get him a bike. When this attempt at consolation failed, defendant indicated in his confession that he slapped the victim three or four times in the face. Defendant then stated that he punched the victim, who was still crying, 10 times in the side, stomach, and back. The victim told defendant he did not want to be with him and that he wanted to go home with his mother and that he loved his mother. Defendant responded that he wanted to be the victim's friend. When the victim told defendant he did not want to be his friend, defendant felt "[h]urt, upset, [and] a little angry." The victim then called defendant a "shit-head," and defendant responded by slapping the victim's mouth and the back of his head three or four times. The victim was still crying. Between 8 p.m. and 8:30 p.m. on Wednesday evening, the victim stopped crying and defendant gave him his asthma medication and put him to bed.
The next morning, Thursday, June 19, 1997, according to defendant's confession, the victim and defendant got up between 10:30 a.m. and 11 a.m. After the victim brushed his teeth, he began crying again and told defendant he wanted to go home. Defendant responded that he wanted the victim to stay with him, and the victim in turn repeated he wanted to go home. Defendant in his confession indicated that, angered by the victim's responses, he hit the back of the victim's head three or four times with his open hand and kicked the victim's leg, side, and back a few times. Defendant then punched the victim but could not recall how many times. The victim was crying while defendant was hitting and kicking him. At some point defendant stopped kicking and hitting the victim, and the victim told defendant that he was sleepy. Defendant gave the victim his asthma medication and put him to bed around noon on Thursday.
Defendant watched television, went outside to talk with his uncle's fiancee, and then returned inside and checked on the victim. Defendant indicated in his confession that after noticing the victim was breathing abnormally and still lying in bed, defendant gave him cardiopulmonary resuscitation (CPR). The victim was making funny noises breathing and did not respond when defendant asked him if he was all right. Defendant then sat the victim up, and the victim made gurgling noises and subsequently began spitting a yellow-green fluid out of his nose and mouth. Defendant laid the victim back down, left the house and started walking up and down the block, and then returned to the house. After approximately 10 to 15 minutes, at around 5 p.m., defendant went to see two friends. Defendant then returned to his house again. He stayed there briefly and then went to a friend's house before ultimately spending Thursday night at the house of a female friend.
On Friday, June 20, 1997, defendant's female friend dropped him off at another friend's house, and while there he saw his aunt's fiancé. After she told defendant he needed to go home, he left his friend's house. As he was walking toward his house, he saw his aunt, uncle, grandfather, and the fiancée of his uncle. They asked defendant whether he knew the victim was dead. Defendant initially answered no, but then admitted he was aware the victim was dead. Defendant told them he got scared, went into shock, and did not know what to do.
During the hearing, Dr. Nancy Jones, an assistant medical examiner with the Cook County medical examiner's office who, defendant and the State stipulated, was an expert in the field of forensic pathology, testified she reviewed the victim's entire case file. That file included, among other items, X rays and photographs of the victim, a post-mortem examination report prepared by Dr. Larry Sims, and the external and internal examinations performed by Dr. Sims. Dr. Jones indicated the autopsy report prepared by Dr. Sims revealed numerous blunt trauma injuries to the victim. Dr. Sims' external examination revealed multiple contusions on the victim's chest, abdomen, and back as well as abrasions on his genitals and penis. His internal examination revealed multiple areas of bleeding under the victim's scalp as well as bleeding in the subcutaneous tissues of his chest, abdomen, and back. In addition, the victim had bleeding around both kidneys as well as hemorrhaging around his pelvis and spine. The victim's liver, spleen, and brain were pale, indicating severe blood loss. Dr. Jones stated that the injuries revealed by Dr. Sims' examination were consistent with being struck with a closed fist and being kicked. Dr. Jones opined that the victim died as a result of blunt abdomen trauma caused by multiple blunt force injuries. Dr. Jones also indicated that the severity and seriousness of the victim's internal injuries may not have initially been apparent. She indicated that very little time transpired between the injury to the victim's liver and his death.
At the conclusion of the death eligibility portion of the hearing and pursuant to section 9-1(b)(7) of the Criminal Code (720 ILCS 5/ 9-1(b)(7) (West 1998)), the trial court found beyond a reasonable doubt that the victim was under 12 years of age and that his death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty. Based on this finding, the trial court concluded defendant was eligible for the death penalty.
During the second portion of the bifurcated hearing, 11 witnesses testified in mitigation on behalf of defendant. Defendant did not testify on his own behalf. The witnesses in mitigation included friends and family members. All testified to defendant's good character and nonviolent nature.
The trial court asked defendant whether there was anything he wanted to say before the trial court imposed his sentence. Defendant answered, "No."
At the conclusion of the original sentencing hearing, the trial court declined to sentence defendant to the death penalty, but instead imposed a term of natural life in prison under the mandatory life sentence provision. 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 1998). Prior to imposing that sentence, the trial court noted:
"[W]e have what is obviously an exceptionally brutal crime. The clearly savage beating of a child which resulted in an ...