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People v. Morgan

January 24, 2003

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
CLIFTON MORGAN, APPELLEE.



The opinion of the court was delivered by: Chief Justice McMORROW

Docket No. 90891-Agenda 7-January 2002.

In the present appeal, we consider the constitutionality of the attempt statute (720 ILCS 5/8-4 (West 2000)), as amended by Public Act 91-404 (Pub. Act 91-404, §5, eff. January 1, 2000). Public Act 91-404 amended the sentencing provisions of the offense of attempted first degree murder by adding what has been referred to as the "15-20-25 to life" provisions. The circuit court of Sangamon County ruled that the attempt statute, as amended, is unconstitutional because the "15-20-25 to life" sentencing provisions mandate penalties for the offense of attempted first degree murder that violate the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11). Interpreting the circuit court's order as effectively dismissing the charge of attempted first degree murder against defendant, Clifton Morgan, the State appeals the circuit court's ruling directly to this court, pursuant to Supreme Court Rules 603 and 604(a)(1) (188 Ill. 2d R. 604(a)(1); 134 Ill. 2d R. 603). For the reasons that follow, we affirm the judgment of the circuit court.

BACKGROUND

On July 27, 2000, an information was filed in the circuit court of Sangamon County, charging defendant with one count of aggravated battery with a firearm (720 ILCS 5/12-4.2 (West 2000)), one count of attempted armed robbery (720 ILCS 5/8-4, 18-2(a) (West 2000)), and one count of attempted first degree murder (720 ILCS 5/8-4, 9-1 (West 2000)). The charging instrument, read as a whole, alleged that defendant "performed a substantial step toward the commission of [armed robbery] in that said defendant went to the residence of Willie Davis, armed with a handgun, with the intent to rob Willie Davis"; that defendant "knowingly performed a substantial step toward the commission of [the offense of first degree murder] in that he, with the intent to kill Willie Davis, shot a handgun at Willie Davis"; and "by means of discharging a firearm, caused an injury to Willie Davis."

On November 15, 2000, defendant filed a motion in the circuit court, seeking the dismissal of the information charging him with attempted first degree murder. Defendant argued that the mandatory enhancement sentencing scheme for the offense of attempted first degree murder, as set forth in subsections (c)(1)(B), (c)(1)(C), and (c)(1)(D) of the attempt statute (720 ILCS 5/8-4(c)(1)(B), (c)(1)(C), (c)(1)(D) (West 2000)), is unconstitutional because it violates the separation of powers clause of article II, section 1, of the Illinois Constitution (Ill. Const. 1970, art. II, §1) and imposes penalties which violate the proportionate penalties clause of article I, section 11, of the Illinois Constitution (Ill. Const. 1970, art. I, §11). Defendant also maintained that the sentencing scheme: (1) violates the due process and equal protection clauses of the United States Constitution and the Illinois Constitution; (2) is void for vagueness; and (3) requires penalties for the offense of attempted first degree murder which (a) constitute cruel and unusual punishment in violation of the eighth amendment to the United States Constitution and article I, section 11, of the Illinois Constitution; (b) punish a defendant twice for the same conduct, in violation of the double jeopardy clauses of the fifth amendment to the United States Constitution and article I, section 10, of the Illinois Constitution; and (c) violate the law against double enhancement.

Ruling on defendant's motion, the circuit court declared the amended attempt statute unconstitutional on proportionality grounds, stating:

"In applying the constitution's proportionality test to the sentencing ranges involved, I believe the required sentences shock the moral sense of the community. As a result, this court rules that the foregoing referenced statutory provisions are unconstitutional."

The State appealed directly to this court, pursuant to Supreme Court Rules 603 and 604(a)(1) (134 Ill. 2d R. 603; 188 Ill. 2d R. 604(a)(1)).

ANALYSIS

We begin our analysis with an examination of the attempt statute, which is at issue in this appeal. Since the adoption of the Criminal Code of 1961, Illinois law has provided that the offense of attempt is committed when a person, "with intent to commit a specific offense, *** does any act which constitutes a substantial step toward the commission of that offense." 720 ILCS 5/8-4(a) (West 2000). This general attempt provision presumptively applies to all offenses (People v. Wallace, 57 Ill. 2d 285, 290-91 (1974); People v. Taylor, 314 Ill. App. 3d 943, 945-46 (2000); 720 ILCS Ann. 5/8-4, Committee Comments-1961, at 438 ( Smith-Hurd 1993)) and it is no defense to a charge of attempt that, due to a misapprehension of the circumstances, it would have been legally or factually impossible to commit the principal offense. 720 ILCS Ann. 5/8-4, Committee Comments-1961, at 437-38 (Smith-Hurd 1993).

The attempt statute provides that, as a general matter, the penalty for committing an attempt may not exceed the maximum penalty for the offense attempted. 720 ILCS 5/8-4(c) (2000). The statute further specifies that, when the offense attempted is designated a Class X felony, the attempt will be sentenced as a Class 1 felony; when the offense attempted is designated a Class 1 felony, the attempt will be sentenced as a Class 2 felony; when the offense attempted is designated a Class 2 felony, the attempt will be sentenced as a Class 3 felony; and when the offense attempted does not fall within one of the specified categories, the attempt will be sentenced as a Class A misdemeanor. 720 ILCS 5/8-4(c)(2), (c)(3), (c)(4), (c)(5) (West 2000).

Special sentencing rules apply, however, when the offense attempted is first degree murder. Under ordinary circumstances, the offense of attempted first degree murder is to be sentenced as a Class X felony, which carries a sentencing range of 6 to 30 years. 720 ILCS 5/8-4(c)(1) (West 2000); 730 ILCS 5/5-8-1(a)(3) (West 2000). If certain aggravating factors are present, however, the sentencing range is increased to a minimum of 20 years and a maximum of 80 years. 720 ILCS 5/8-4(c)(1)(A) (West 2000).

Effective January 1, 2000, the attempt statute was amended by Public Act 91-404, which added the following provisions:

"(B) an attempt to commit first degree murder while armed with a firearm is a Class X felony for which 15 years shall be added to the term of imprisonment imposed by the court;

(C) an attempt to commit first degree murder during which the person personally discharged a firearm is a Class X felony for which 20 years shall be added to the term of imprisonment imposed by the court;

(D) an attempt to commit first degree murder during which the person personally discharged a firearm that proximately caused great bodily harm, permanent disability, permanent disfigurement, or death to another person, is a Class X felony for which 25 years or up to a term of natural life shall be added to the term of imprisonment imposed by the court." 720 ILCS 5/8-4(c)(1)(B), (c)(1)(C), (c)(1)(D) (West 2000).

Accordingly, the attempt statute, as amended, requires the offense of attempted first degree murder to be sentenced as a Class X felony with the mandatory addition of 15 years, 20 years or 25 years to life, based on the extent to which a handgun was involved in the commission of the offense. 720 ILCS 5/8-4(c)(1)(B), (c)(1)(C), (c)(1)(D) (West 2000).

As noted above, the general attempt provision is ordinarily applicable to all offenses. However, there are exceptions. Where application of the attempt provision to a principal offense creates an inherent impossibility, the offense cannot exist. See People v. Viser, 62 Ill. 2d 568, 581 (1975) (attempt statute not applicable to felony-murder statute).

Applying this principle, it was determined in People v. Reagan, 99 Ill. 2d 238 (1983), that the offense of attempted voluntary manslaughter was inherently impossible. In Reagan, the defendant was charged with three counts of attempted murder and three counts of armed violence. Defendant raised the affirmative defense of self-defense and was acquitted of attempted murder. Instead, defendant was found guilty of three counts of attempted voluntary manslaughter based on imperfect self-defense. Defendant appealed his convictions, arguing that the offense of attempted voluntary manslaughter did not exist. The appellate court agreed and reversed defendant's convictions, holding that it was inherently impossible to commit the offense of attempted voluntary manslaughter.

On review, this court affirmed the appellate court's judgment. Viewing the attempt statute in conjunction with the voluntary manslaughter statute, this court reasoned that, because the offense of attempt requires the intent to commit a "specific offense," an attempt to commit voluntary manslaughter necessarily would require a person "to specifically intend to kill with an unreasonable belief in the need to use deadly force in self-defense." Reagan, 99 Ill. 2d at 240. Finding it inherently impossible to intend an unreasonable belief, this court concluded that the offense of attempted voluntary manslaughter did ...


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