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People v. Moss

June 19, 2003

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
SALATHEO MOSS ET AL., APPELLEES.
THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
SALATHEO MOSS ET AL., APPELLEES.
THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
DAVID MONTAGUEO, APPELLEE.
THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
JOSEPH CAMPOS, APPELLEE.
THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
ANGEL GARCIA, APPELLEE.
THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
MYCHAEL HORTON, APPELLEE.
THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
EDDIE REESE, APPELLEE.
THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
JOE HUNT, APPELLEE.
THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
MARCO GARCIA, APPELLEE.
THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
ANGELO SCOTT, APPELLEE.
THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
DARVUS BARNETTE, APPELLEE.
THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
STEFFON MEADERDS, APPELLEE.



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

Docket Nos. 91012, 91013, 91044, 91045, 91046, 91047, 91048, 91049, 91050, 91051, 91052, 91328 cons.-Agenda 12-September 2002.

The common question presented in these 12 consolidated appeals is whether sentencing enhancements added to certain offenses by Public Act 91-404 (Pub. Act 91-404, §5, eff. January 1, 2000) are constitutional. Public Act 91-404 amended the penalty portions of several statutes by adding what have been referred to as the "15/20/25-to-life" provisions. Under these provisions, a mandatory enhancement is added to the defendant's sentence if a firearm was used in the commission of the offense. The length of the enhancement varies depending on how the firearm was used. In the case at bar, defendants were charged with various offenses whose penalties were amended by Public Act 91-404, including attempted first degree murder (720 ILCS 5/8-4, 9-1 (West 2000)), armed robbery (720 ILCS 5/18-2 (West 2000)), aggravated vehicular hijacking (720 ILCS 5/18-4 (West 2000)), and aggravated kidnapping (720 ILCS 5/10-2 (West 2000)). In each case, defendants filed pretrial motions alleging that the Public Act 91-404 sentencing enhancements were unconstitutional.

The circuit court of Cook County heard and decided the pretrial motions. Nine of the cases were consolidated before one judge, who found that the sentencing amendments violated the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11) and the general prohibition against double enhancement (People v. Gonzalez, 151 Ill. 2d 79, 83-84 (1992)). The judge granted defendants' motions to dismiss, some in full and some in part. A second judge heard arguments in the tenth case and found that the amendments at issue violated the separation of powers clause of the Illinois Constitution (Ill. Const. 1970, art. II, §1). The judge in that case dismissed the armed robbery count against defendant. The two remaining cases were consolidated before a third judge, who found that the amendments violated both the proportionate penalties and the double jeopardy clauses of the Illinois Constitution (Ill. Const. 1970, art. I, §§10, 11). Interpreting this third ruling as effectively dismissing the relevant charges, the State appealed all three orders directly to this court, pursuant to Supreme Court Rule 603 (134 Ill. 2d R. 603). For the reasons set forth below, we affirm in part and reverse in part the judgments of the circuit court.

BACKGROUND

Causes Nos. 91044 Through 91052

In cause No. 91044, defendant David Montagueo was charged by information with one count of armed robbery with a firearm (720 ILCS 5/18-2(a)(2), (b) (West 2000)). According to the information, on January 26, 2000, Montagueo, while armed with a handgun, took United States currency from the victim. Prior to trial, Montagueo moved to dismiss the charge on the ground that the additional 15-year penalty mandated for this offense violated, inter alia, the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11) and the prohibition against double enhancement.

In causes Nos. 91045 and 91046, indictments charged defendants Joseph Campos and Angel Garcia, respectively, with multiple offenses (16 counts) stemming from the February 1, 2000, taking of a motor vehicle and other items from the victim. Included among the charges were two counts of attempted first degree murder, one with a firearm and one with personal discharge of a firearm (720 ILCS 5/8-4(a), (c)(1)(B), (c)(1)(C), 9-1(a)(1) (West 2000)); two counts of aggravated vehicular hijacking, one with a firearm and one with personal discharge of a firearm (720 ILCS 5/18-4(a)(4), (a)(5), (b) (West 2000)); two counts of armed robbery, one with a firearm and one with personal discharge of a firearm (720 ILCS 5/18-2(a)(2), (a)(3), (b) (West 2000)); and four counts of aggravated kidnapping, two with a firearm and two with personal discharge of a firearm (720 ILCS 5/10-2(a)(6), (a)(7), (b) (West 2000)). Defendants in these two cases filed essentially the same pretrial motion as did Montagueo. Campos and Garcia moved to dismiss the relevant charges against them on the basis that the additional 15- and 20-year penalties mandated for these offenses were unconstitutionally disproportionate. They also alleged, inter alia, that the penalties violated the prohibition against double enhancement.

The indictment in cause No. 91047 charged defendant Mychael Horton with multiple offenses (five counts) in connection with a shooting that occurred on March 31, 2000. Included in the charges were two counts of attempted murder, one with a firearm and one with personal discharge of a firearm causing great bodily harm (720 ILCS 5/8-4(a), (c)(1)(B), (c)(1)(D), 9-1(a)(1) (West 2000)). As in the previous cases, Horton filed a pretrial motion to dismiss the attempted murder counts on the ground that the additional 15- and 25-years-to-life penalties mandated for these offenses were, inter alia, unconstitutionally disproportionate and a violation of the prohibition against double enhancement.

Eddie Reese, the defendant in cause No. 91048, was charged by indictment with multiple offenses (six counts) stemming from a shooting that occurred on February 24, 2000. Included among the charges were four counts of attempted first degree murder, two with a firearm (one for each of the two victims) and two with personal discharge of a firearm (one for each of the two victims) (720 ILCS 5/8-4(a), (c)(1)(B), (c)(1)(C), 9-1(a)(1) (West 2000)). Reese based his pretrial motion to dismiss on the same grounds that were cited in the previous cases.

In cause No. 91049, defendant Joe Hunt was charged in a 10-count indictment with, inter alia, two counts of attempted murder, one with a firearm and one with personal discharge of a firearm causing great bodily harm (720 ILCS 5/8-4(a), (c)(1)(B), (c)(1)(D), 9-1(a)(1) (West 2000)); and two counts of armed robbery, one with a firearm and one with personal discharge of a firearm causing great bodily harm (720 ILCS 5/18-2(a)(2), (a)(4), (b) (West 2000)). According to the indictment, Hunt took United States currency from the victim in a robbery that occurred on August 29, 2000. Hunt filed essentially the same pretrial motion to dismiss as was filed in the previous cases, based on the same grounds.

Among the charges included in a 26-count indictment against Marco Garcia, defendant in cause No. 91050, were two counts of attempted murder of a peace officer with personal discharge of a firearm (720 ILCS 5/8-4(a), (c)(1)(C), 9-1(a)(1), (b)(1) (West 2000)), one for each of two Chicago police officers at whom Garcia allegedly shot on August 20, 2000. The indictment also charged Garcia with, inter alia, 12 counts of attempted murder, six with a firearm and six with personal discharge of a firearm (720 ILCS 5/8-4(a), (c)(1)(B), (c)(1)(C), 9-1(a)(1) (West 2000)). According to the indictment, Garcia shot at four other victims in addition to the two police officers. Garcia filed essentially the same pretrial motion to dismiss as did defendants in the previous cases.

In cause No. 91051, defendant Darvus Barnette was charged in a four-count indictment with two counts of aggravated vehicular hijacking with a firearm (720 ILCS 5/18-4(a)(4), (b) (West 2000)) and two counts of armed robbery with a firearm (720 ILCS 5/18-2(a)(2), (b) (West 2000)). According to the allegations in the indictment, on September 3, 2000, Barnette took a motor vehicle from the two victims, a cellular telephone from one of them, and United States currency from the other. Prior to trial, Barnette moved to dismiss the indictment on the same grounds cited in the previous cases.

Angelo Scott, defendant in cause No. 91052, was charged by indictment (10 counts) with, inter alia, one count of armed robbery with a firearm (720 ILCS 5/18-2(a)(2), (b) (West 2000)). According to the indictment, on October 14, 2000, Scott took a wallet and United States currency from the victim. As in the previous cases, Scott filed a pretrial motion to dismiss the indictment on the ground that the 15-year additional penalty mandated for this offense was unconstitutional.

As noted, these nine cases were consolidated before one circuit court judge. On January 17, 2001, the judge granted defendants' motions to dismiss, some in full and some only in part. The circuit court found that the 15- and 20-year additions mandated by Public Act 91-404 violated the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11). The court explicitly found that there was "no disproportionateness in the case of the 25 years to life enhancement in cases resulting [in] great bodily harm or death." The circuit court also found that all of the 15-20-25 to life provisions violated the prohibition against double enhancement.

With regard to these nine consolidated cases, the circuit court dismissed the following counts: cause No. 91044 (David Montagueo), count I (armed robbery with a firearm) (720 ILCS 5/18-2(a)(2) (West 2000)), which constituted the entire indictment; causes Nos. 91045 and 91046 (Joseph Campos and Angel Garcia), counts I and VII (attempted first degree murder with personal discharge of a firearm, and with a firearm) (720 ILCS 5/8-4(a), (c)(1)(C), (c)(1)(B), 9-1(a)(1) (West 2000)); counts II and VIII (aggravated vehicular hijacking with personal discharge of a firearm, and with a firearm) (720 ILCS 5/18-4(a)(5), (a)(4), (b) (West 2000)); counts III and IX (armed robbery with personal discharge of a firearm, and with a firearm) (720 ILCS 5/18-2(a)(3), (a)(2), (b) (West 2000)); and counts IV, V, X and XI (aggravated kidnapping with personal discharge of a firearm, and with a firearm) (720 ILCS 5/10-2(a)(7), (a)(6), (b) (West 2000)); cause No. 91047 (Mychael Horton), count II (attempted first degree murder with personal discharge of a firearm causing great bodily harm) (720 ILCS 5/8-4(a), (c)(1)(D), 9-1(a)(1) (West 2000)); cause No. 91048 (Eddie Reese), counts III and IV (attempted first degree murder with personal discharge of a firearm) (720 ILCS 5/8-4(a), (c)(1)(C), 9-1(a)(1) (West 2000)); cause No. 91049 (Joe Hunt), count II (attempted first degree murder with personal discharge of a firearm causing great bodily harm) (720 ILCS 5/8-4(a), (c)(1)(D), 9-1(a)(1) (West 2000)); and counts IV and V (armed robbery with a firearm, and with personal discharge of a firearm causing great bodily harm) (720 ILCS 5/18-2(a)(2), (a)(4), (b) (West 2000)); cause No. 91050 (Marco Garcia), counts I and II (attempted first degree murder of a peace officer with personal discharge of a firearm) (720 ILCS 5/8-4(a), (c)(1)(C), 9-1(a)(1), (b)(1) (West 2000)); and counts IX through XIV (attempted first degree murder with personal discharge of a firearm) (720 ILCS 5/8-4(a), (c)(1)(C), 9-1(a)(1) (West 2000)); cause No. 91051 (Darvus Barnette), counts I and II (aggravated vehicular hijacking with a firearm) (720 ILCS 5/18-4(a)(4), (b) (West 2000)); and counts III and IV (armed robbery with a firearm) (720 ILCS 5/18-2(a)(2), (b) (West 2000)), which constituted the entire indictment; and cause No. 91052 (Angelo Scott), count II (armed robbery with a firearm) (720 ILCS 5/18-2(a)(2) (West 2000)).

Cause No. 91328

In cause No. 91328, defendant Steffon Meaderds was charged by information with multiple offenses (seven counts) stemming from an incident that took place on May 30, 2000. Among the charges included in the information was one count of armed robbery with a firearm (720 ILCS 5/18-2(a)(2), (b) (West 2000)). According to the information, Meaderds, while armed with a firearm, took a wallet and United States currency from the victim. Prior to trial, Meaderds filed a motion to dismiss the armed robbery charge on the ground that the 15-year additional penalty mandated for this offense violated, inter alia, the proportionate penalties clause and the separation of powers clause of the Illinois Constitution. (Ill. Const. 1970, art. I, §11; art. II, §1).

On January 5, 2001, the circuit court of Cook County granted defendant's motion to dismiss the armed robbery count. In its written order, the court noted that under the amended penalty provision in the armed robbery statute, the mandatory additional penalties are to be "added to the term of imprisonment imposed by the court." 720 ILCS 5/18-2(b) (West 2000). While the circuit court found this language unclear, it interpreted it as indicating that someone other than the court was to impose the additional penalties. This, the court concluded, was a usurpation of the court's sentencing power. The court thus found that the Public Act 91-404 sentencing amendments to the armed robbery statute violated the separation of powers clause of the Illinois Constitution. *fn1

Causes Nos. 91012 and 91013

In causes Nos. 91012 and 91013, defendants Salatheo Moss and Thomas Gibson were charged by indictment with multiple offenses in connection with two robberies that took place on January 2, 2000. In cause No. 91012, the charges in the four-count indictment included one count of armed robbery with a firearm (720 ILCS 5/18-2(a)(2), (b) (West 2000)). According to the indictment, Moss and Gibson, while armed with a firearm, took jewelry, a purse and its contents from the victim. In cause No. 91013, the charges in the five-count indictment included two counts of armed robbery with a firearm (720 ILCS 5/18-2(a)(2), (b) (West 2000)), one count for each of the two victims. The indictment alleges that Moss and Gibson, while armed with a firearm, took jewelry and United States currency from the victims. Moss and Gibson filed pretrial motions seeking a declaration that the 15-year add-on mandated for armed robbery with a firearm violated the separation of powers clause of the Illinois Constitution (Ill. Const. 1970, art. II, §1). Gibson's motion alleged in addition that the sentencing provision was vague in that it failed to state who, other than the court, was to impose the additional penalty.

On October 4, 2000, the circuit court of Cook County granted defendants' motions to declare the Public Act 91-404 sentencing amendments to the armed robbery statute unconstitutional. The court found the amended sentencing portion of the armed robbery statute unconstitutionally vague and a violation of the separation of powers clause (Ill. Const. 1970, art. II, §1) and the due process clause of the fifth amendment to the United States Constitution (U.S. Const., amend. V).

On February 9, 2001, upon motion for reconsideration by the State, the circuit court vacated its previous order but nevertheless found the sentencing portion of the armed robbery statute unconstitutional, this time on different grounds. According to the court, the Public Act 91-404 amendments to the armed robbery statute violated the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11). The court also found that the amendments violated the double jeopardy clause of the Illinois Constitution (Ill. Const. 1970, art. I, §10).

Interpreting this third order of the circuit court as effectively dismissing the charges of armed robbery with a firearm against defendants in causes Nos. 91012 and 91013, the State appeals this ruling as well as the other two (in causes Nos. 91044 through 91052, and cause No. 91328) directly to this court. 134 Ill. 2d R. 603.

ANALYSIS

The main purpose of Public Act 91-404, as stated in the act, is "to deter the use of firearms in the commission of a felony offense" (Pub. Act 91-404, §5, eff. January 1, 2000 (codified at 720 ILCS 5/33A-1 (West 2000)). People v. Walden, 199 Ill. 2d 392, 395-96 (2002). In order to achieve this purpose, the act amended the sentencing portions of several provisions in the Criminal Code of 1961 (Criminal Code), including those criminalizing 10 offenses that the legislature felt were "the most serious offenses" (91st Ill. Gen. Assem., House Proceedings, May 13, 1999, at 67-68 (statements of Representative Turner)). Included among these 10 offenses are the four at issue in the instant appeals: attempted first degree murder, aggravated kidnapping, armed robbery, and aggravated vehicular hijacking. The additions to the penalties for these offenses are what have been referred to as the "15/20/25-to- life" provisions. Public Act 91-404 also amended the penalties for armed violence (720 ILCS 5/33A-3 (West 2000)), but these changes did not include the "15/20/25-to-life" measures. The act also added three definitions to the "General Definitions" section of the Criminal Code.

We begin by setting out the amended statutes relevant to these appeals. The measures added to the "General Definitions" section include sections 2-3.6, 2-7.5, and 2-15.5 of the Criminal Code. Section 2-3.6 provides:

" `Armed with a firearm'[.] Except as otherwise provided in a specific Section, a person is considered `armed with a firearm' when he or she carries on or about his or her person or is otherwise armed with a firearm." 720 ILCS 5/2-3.6 (West 2000).

Section 2-7.5 states:

" `Firearm'. Except as otherwise provided in a specific Section, `firearm' has the meaning ascribed to it in Section 1.1 of the Firearm Owners Identification Card Act [430 ILCS 65/1.1 (West 2000)]." 720 ILCS 5/2-7.5 (West 2000).

Section 2-15.5 provides:

" `Personally discharged a firearm'. A person is considered to have `personally discharged a firearm' when he or she, while armed with a firearm, knowingly and intentionally fires a firearm causing the ammunition projectile to be forcefully expelled from the firearm." 720 ILCS 5/2-15.5 (West 2000).

The attempt statute, section 8-4 of the Criminal Code, provides in pertinent part:

"(a) Elements of the Offense.

A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.

(c) Sentence.

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 offense defined in Section 33A-2 of this Act [armed violence],

(1) the sentence for attempt to commit first degree murder is the sentence for a Class X felony, except that

***

(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 (West 2000).

As is shown in the statute set forth above, the 15/20/25-to-life provisions require additional terms of imprisonment where a firearm is used in the commission of the offense. The length of the additional term depends on how the firearm is used. Hence, where the firearm is merely possessed, the required addition is 15 years. Where it is personally discharged, an additional 20 years is mandated. Finally, where the firearm is personally discharged and it proximately causes great bodily harm, permanent disability, permanent disfigurement, or death, an enhancement of 25 years to life must be added to the term of imprisonment imposed by the court.

These same penalty provisions were added to the other three statutes at issue in these appeals: aggravated kidnapping, armed robbery, and aggravated vehicular hijacking. The aggravated kidnapping statute, section 10-2 of the Criminal Code, provides in pertinent part:

"(a) A kidnaper within the definition of paragraph (a) of Section 10-1 [kidnapping] is guilty of the offense of ...


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